Ava Community Energy Board of Directors
January 19, 2022

Board of Directors Meeting
Wednesday, January 19, 2022
5:00 pm
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If you have anything that you wish to be distributed to the Board, please email it to the clerk by 5:00 pm the day prior to the meeting.

1. Welcome & Roll Call

2. Pledge of Allegiance

3. Public Comment
This item is reserved for persons wishing to address the Board on any EBCE-related matters that are not otherwise on this meeting agenda. Public comments on matters listed on the agenda shall be heard at the time the matter is called. Members of the public who wish to address the Board are limited to two minutes per speaker and must complete an electronic speaker slip. The Board Chair may increase or decrease the time allotted to each speaker.

CONSENT AGENDA
All items under Consent Calendar will be considered together by one action of the Board, any Member or members of the public may request that an item be removed and considered separately.

4. Approval of Board of Directors Meeting Minutes of December 15, 2021 East Bay Community Energy
Board of Directors Page | 2

5. Treasurer’s Report

6. Contracts entered into between December 8, 2021 and January 12, 2022. (Informational Item)

7. Extend the Temporary Suspension of and Revise Certain Customer Terms and Conditions.

8. Adoption of Resolution 2002-___ regarding Imminent Risks Findings Pursuant to AB 361 and Authorization to Continue Meeting via Teleconferencing

REGULAR AGENDA

9. CEO REPORT
a. Executive Committee Meeting;
b. Marketing and Outreach update;
c. Local Development Business Plan Update and
d. Update on Opt-out
Recommendation: Accept Chief Executive Officer (CEO) report on update items below.

10. Community Advisory Committee Report – Verbal report

11. Program to Support and Scale Low to Moderate Income Building Electrification and Efficiency
Recommendation: Approve Resolution authorizing CEO to execute an Agreement with BlocPower to provide for $1 million in investment at the junior capital position and negotiate and execute a separate Agreement to provide $400,000 in grants to support electrification and clean energy upgrades on low to moderate income homes in EBCE’s service area.

12. Mid-Year Budget Review
Recommendation: Receive the report informing the Board of the mid-year Budget position for the 2021-2022 fiscal year.

13. Credit Rating Review
Recommendation: Receive the review of the credit rating and its implications to EBCE operations.

14. Authorize CEO to negotiate and execute a contract with FEC Nevada I East Bay Community Energy
Board of Directors Page | 3
Recommendation: Adopt a Resolution authorizing the CEO to negotiate and execute a contract with FEC Nevada I, LLC for a renewable energy supply agreement for a minimum term of 15 years and a maximum of 20 years.

15. Authorize CEO to Negotiate and Execute a Contract extension with NCPA to Provide Wholesale Energy Services
Recommendation: Adopt a Resolution authorizing the CEO to negotiate and execute a contract with FEC Nevada I, LLC for a renewable energy supply agreement for a minimum term of 15 years and a maximum of 20 years.

16. Board Member and Staff Announcements including requests to place items on future Board Agendas

17. Adjournment – to Wednesday, February 16, 2022

CERTIFICATION OF POSTING
I, Lori Frontella, Acting Board Clerk, do hereby declare under penalty of perjury that the foregoing agenda was posted on website at www.ebce.org and made available for public review prior to or at 5:00 p.m. on January 14, 2022
Date Posted: January 14,2022 Time Posted:5:00 pm
_______________________________________
Lori Frontella, MMC, Board Clerk
Draft Agenda
Board of Directors Meeting
Wednesday, December 15, 2022
5:00 pm
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Meetings are accessible to people with disabilities. Individuals who need special assistance or a disability-related modification or accommodation to participate in this meeting, or who have a disability and wish to request an alternative format for the meeting materials, should contact the Clerk of the Board at least 2 working days before the meeting at (510) 906-0491 or [email protected].

If you have anything that you wish to be distributed to the Board, please email it to the clerk by 5:00 pm the day prior to the meeting.

1. Welcome & Roll Call

Present: Directors: Valle (Alameda County), Tiedemann (Albany), Hernandez (Dublin), Cox (Fremont), Marquez (Hayward), Hannon (Newark), Kalb (Oakland), Narum (Pleasanton), Arriola (Tracy), Patino (Union City), Vice-Chair Lopez (San Leandro) and Chair Martinez (Emeryville) Excused: Directors: Harrison (Berkeley), Munro (Livermore), McCarthy (Piedmont), Director Cox served as an Alternate for Director Mei (Fremont).

2. Pledge of Allegiance

3. Public Comment
This item is reserved for persons wishing to address the Board on any EBCE-related matters that are not otherwise on this meeting agenda. Public comments on matters listed on the agenda shall be heard at the time the matter is called. As with all public comment, members of the public who wish to address the Board are customarily limited to two minutes per speaker and must complete an electronic speaker slip. The Board Chair may increase or decrease the time allotted to each speaker.

Wells Brown, on behalf of Rising Sun Center for Opportunity, spoke regarding the Community Innovation Grant. Wells Brown stated that because Rising Sun’s youth workforce development program, Climate Careers, was a 2019 recipient of an EBCE Community Innovation Grant they were able to increase the number of youths and homes served in EBCE territory. Wells Brown Agenda Item: 4

East Bay Community Energy
Board of Directors Page | 2
encouraged the EBCE Board to continue the Community Innovation Grant program to other Alameda County and City of Tracy organizations.

Chuck Rosselle spoke with respect to a 15-year contract between EBCE and Intersect Power regarding the Oberon Solar project near Desert City, CA., stating the project does not currently conform to the Desert Renewable Energy Conservation Plan negotiated with the BLM, and while EBCE was not aware of this nonconformity prior to signing the contract, Intersect Power was.

Chuck Rosselle suggested the review procedures be enhanced to incorporate conformance to land use in California to avoid bringing operational risk to EBCE and to bring the matter to the attention of Intersect Power.

Jessica Tovar, on behalf of East Bay Clean Power Alliance, spoke regarding the importance of the Local Development Business Plan intended to bring community benefits that are invested by EBCE to advance a clean energy future through various programs, including the Community Innovation Fund offered every year to provide seed funding for local non-profits, specifically with a partnership between EBCE and the community organizations.

Chris Gilbert, on behalf of the Sierra Club, spoke regarding problems with the DEIR on the Oberon Renewable project being done by Intersect Power. Chris Gilbert stated desert regions could be damaged due to these problems and requested this item be agendized for the next Board meeting.

Crystal Huang, on behalf of People Power Solar Cooperative, spoke regarding the Community Innovation Grant that allowed them to build their second and third community-owned solar projects and enabled them to develop resources and tools to enable communities to organize around the energy transition moving forward. Crystal Huang stated that their experience with the Community Innovation Grant proves it is possible to create a partnership between EBCE and community-based organizations and urged EBCE to support the implementation of the Local Development Business Plan, including the Community Innovation Plan.

Joan Taylor, on behalf of the California Nevada Desert Energy Committee of the Sierra Club, spoke regarding the Oberon Solar project. Joan Taylor stated that Intersect Power’s claims that its need to generate 500 megawatts justifies bypassing and redefining DREP’s management actions could set a damaging precedent by threatening management prescriptions developed by the Desert Renewable Energy Plan.

CONSENT AGENDA

4. Adoption of Imminent Risks Findings Pursuant to AB 361 and Authorization to Continue Meeting via Teleconferencing

5. Contracts Entered into (Informational Item)

6. Adopt a Resolution authorizing CEO to negotiate and execute a Consulting Service Agreement with Acterra to offer an induction Cooktop Lending Program to EBCE’s residential customers.

7. Adopt a Resolution authorizing the CEO to negotiate and execute a Third Amendment to the Consulting Services Agreement with Weideman Group, Inc.

8. Summary of changes made to service terms and conditions to support product transitions in January 2022
Agenda Item: 4

East Bay Community Energy
Board of Directors Page | 3

9. Adopt a Resolution authorizing CEO or Treasurer to execute a Consulting Service Agreement with Maher Accountancy

10.Adopt a Resolution amending the Conflict of Interest Code clarifying those certain specified positions (BODs & Treasurer) must file a Form 700 under Government Code Section 87200 Director Valle joined the meeting prior to motion to approve the Consent Agenda.

Director Arriola motioned to approve the Consent Agenda. Director Hernandez seconded the motion which passed 11/0. Excused: Director Cox.

REGULAR AGENDA

11.CEO REPORT
• CC Power Policies
• Presentation on Service Transitions
Ceyda Durmaz Dogan, on behalf of the Clean Energy Alliance, stated CC Power should not go with the project-by-project approach and should not act in a way that would harm the reputation of individual CCAs in California, that their policies should be at least as strong as the policies of member CCAs or it would undermine decisions made by EBCE and other boards of member CCAs. Ceyda Durmaz Dogan stated CC Power should adopt environmental justice and labor policies that would require project proposals to include benefits to local communities and support work force development for underserved and disadvantaged workers.

The Board Discussed:
• Reflecting EBCE’s values and priorities in CC Power’s policies. • Educating the public on the meaning of opting up or opting down on residential and commercial sides and the cost to them.
• California Public Utilities Commission Net Energy Metering 3.0. engagement with cities. • Transition to the renewable 100%, how the solar true-up works, and the difference between PG&E and EBCE.
• Educating the public that the decision by cities to opt everyone in is part of legislation from Sacramento for CCAs, not the choice of the cities. • CC Power project procurement policy and meaning of 2.5%, which is the scoring that goes into it, how that percentage was arrived at, and preferences allowed under Prop 209.

Ann Olivia Eldred, Chair of Community Advisory Committee, joined the meeting at 6:04pm.

12.Community Advisory Committee Report (Verbal report)
• Chair Eldred announced two new CAC members were sworn in at the Committee’s December 13, 2021 meeting.
• Chair Eldred stated the CAC has received public comments regarding concerns about the DRECP emissions level in the Right Choice product, updates on the net energy metering decision, and the Community Innovation Grants.
• Chair Eldred also stated the CAC has received a request that the Board look at funding the Community Innovation Grants and get report backs from some of the programs EBCE has agreed to fund.

Agenda Item: 4

East Bay Community Energy
Board of Directors Page | 4

13.Adopt a Resolution approving a fifth amended and restated Administrative Procurement Policy to include a preference for Disabled Veteran Owned Businesses and Businesses located in Disadvantaged Communities
Director Cox motioned to adopt a Resolution Approving a Fifth Amended and Restated Administrative Procurement Policy to Include a Preference for Disabled Veteran Owned Businesses and Businesses Located in Disadvantaged Communities. Vice Chair Lopez seconded the motion.

There were no speakers for public comment.

The Board Discussed:
• Adding language that indicates a business should be located in a disadvantaged community and providing benefits for that community.

The motion passed 12/0. Excused: Director Harrison, Director Munro, Director McCarthy.

14.Board Member and Staff Announcements including requests to place items on future Board Agendas
CEO Chaset appreciated Director Hernandez’s service and commitment to EBCE as this is Director Hernandez’s last meeting as a member of the EBCE Board.

Director Hernandez stated one reason for taking her position on the EBCE Board was to ensure the City of Dublin got into a great position and Dublin is now 100% renewable energy. Director Hernandez commended the members of EBCE for putting their hearts into bringing clean energy to residents and businesses.

Vice Chair Lopez appreciated Director Hernandez’s service and leadership in also inspiring the City of San Leandro to also reach 100% renewable energy. Vice Chair Lopez requested to learn more regarding a contract EBCE has entered into involving desert land by having an analysis done, verifying public concerns, and looking to see what steps EBCE could take going forward.

CAC Chair Eldred stated the CAC would also be hearing the item regarding the desert plan.

Chair Eldred stated this would be a good time to begin looking at a review and update of the Local Development Business Plan.

Director Mei requested EBCE focus on the City of Fremont’s work in joint efforts trying to encourage more solar adoption, in particular charging stations. Director Mei also requested to focus on legislative advocacy in those areas and appreciated the partnership with the California Energy Commission in that regard and thanked CEO Chaset and the EBCE team for its leadership in this area.

Jessica Tovar, on behalf of East Bay Clean Power Alliance, expressed huge appreciation for Director Hernandez’s service on the EBCE Board, noting that Director Hernandez was one of very few women and women of color representing EBCE and the clean energy work it does.

Chair Martinez also expressed deep appreciation for Director Hernandez’s contributions and the great pleasure it has been to work together and share ideas.

15.Adjournment to January 19, 2022 5:00 p.m.

Agenda Item: 4

Staff Report Item 5
TO: East Bay Community Energy Board of Directors
FROM: Howard Chang, Chief Operating Officer & Treasurer SUBJECT: Treasurer’s Report (Informational Item)
DATE: January 19, 2022
________________________________________________________________________ Recommendation
Receive report on EBCE cash position
Background and Discussion
For quarter ending December 31, 2021, EBCE has maintained a positive cash balance on all EBCE bank accounts. Below is a summary of account balances, cash received, and outstanding loan balances.

Account Balances as of 12/31/2021
Cash Received by Month into Lockbox Account
Account Amount
Internal Operating $ 1,878,838
Operating Fund $ 82,643,022
Lockbox (Includes $2,000,000 reserve) $ 10,734,706
Operating Reserve Fund $ 41,096,812
Money Market $ 1,006,173
Insured Cash Sweep $ 21,308,968
SubTotal $ 158,668,519
October 2021 43,147,236 $
November 2021 36,863,220 $
December 2021 36,613,096 $
Total $ 116,623,552
Agenda Item: 5

Outstanding Loan Balances:

Barclays Credit Facility: $0.00
Customer Delinquency:

As of December 31, 2021
30 – 60 Days: $ 4,380,600
60 – 90 Days: $ 3,664,133
90 - 120 Days: $ 3,013,455
120+ Days: $ 22,113,668
More recent data has not yet been provided by PG&E and billing vendor on the date this report was generated
Agenda Item: 5

Consent Item 6
TO: East Bay Community Energy Board of Directors
FROM: Nick Chaset, Chief Executive Officer
SUBJECT: Contracts Entered Into
DATE: January 19, 2022
________________________________________________________________________

RECOMMENDATION
Accept the CEO’s report on contracts that EBCE has entered, as required by the Administrative Procurement Policy. Items executed between December 8, 2021 and January 12, 2022;
C-2021-130 Thomas E. Dum Real Estate Appraisers (Brentwood, CA) Contract for Real Estate Appraisal for 251 8th Street, total amount in not to exceed $4,275.

C-2021-131 Regional Government Services Authority (Carmel Valley, CA) Consulting Services Agreement for Board Clerk services, for an amount not to exceed $35,000 through June 30, 2022.

C-2021-132 Sixth Dimension PMCM (Oakland) Consulting Services Agreement for Construction Management services, for an amount not to exceed $33,005 through June 30, 2022.

C-2021-133 Fluence Energy Platform Services Agreement (San Francisco) access to the Fluence Platform, a Software as Service, with an cost of $50,000 for the first year, and a $30,000 Integration fee.

C-2021-134 Vicki Blandin (Greensboro, NC) Consulting Services Agreement for the purposes of providing Meeting Transcription services through June 30, 2022, for an amount not to exceed $20,000.

C-2021-135 First Principles Advisory (Capitola, CA) Consulting Services Agreement for Integrated Resource Plan services through March 31, 2023 with compensation not to exceed $95,000.

Agenda Item: 6

C-2021-136 The Mixing Bowl (Oakland) Catering Contract - food for all day December 2021 in person meeting and Holiday Party, not to exceed $11,639.37.

C-2021-137 Wilson Sonsini Goodrich Rosati (Palo Alto, CA) Second Amendment to CSA for the purposes of increasing the compensation for FY 20-21 by $21,900 for an amount not to exceed $271,900 through June 30, 2021.

C-2021-138 Acterra: Action for a Healthy Planet (Palo Alto, CA) Consulting Services Agreement for induction cooktop lending and outreach awareness building services to EBCE, for an amount not to exceed $135,000 through March 21, 2022.

C-2021-139 Full Court Press (Oakland) Second Amendment to CSA extends the termination date to June 30, 2022 and updated the Schedule of Work.

C-2021-140, & C-2021-141 SMUD Amendment 2 to MSA & Amendment 3 to Task Order 2 - extends the term of the agreement for call center and data management services for an additional two years, may extend for up to an additional 5 years.

C-2021-142 Energy and Environmental Economics (San Francisco) Consulting Services Agreement for technical energy and regulatory services for an amount not to exceed $100,000 through June 30, 2022.

Agenda Item: 6

Consent Item 7
TO: East Bay Community Energy Board of Directors
FROM: Kelly Brezovec, Sr Manager of Account Services
SUBJECT: Extend the Temporary Suspension of and Revise Certain Customer Terms and Conditions
DATE: January 19, 2022
__________________________________________________________________ Recommendation
Adopt a Resolution to extend the temporary suspension of and revise certain customer terms and conditions and administrative policies.

Background and Discussion
Over the course of 2020 and 2021, the Board approved Resolutions to temporarily authorize the CEO to suspend the following customer terms and conditions and administrative policies:
(a) Customer terms and conditions related to ‘Failure to Pay’ and (b) Delinquent Accounts and Collections Policy.

PG&E suspended service disconnections for non-payment for all residential and small business customers until January 1, 2022. EBCE matched that previous timeline for the suspension of our own collections and “failure to pay” activities.

Currently, staff requests that we extend the temporary suspension of our Failure to Pay and collection policies until May 1, 2022. An extension beyond the PG&E disconnection moratorium end date gives EBCE staff the opportunity to apply debt forgiveness funds anticipated through the California Arrearage Payment Program (CAPP), as well as implement efforts to ramp up customer enrollment in the Arrearage Management Plan (AMP) program. Per state requirements, CAPP funds must be applied to customer accounts by April 1, 2022. EBCE is currently accepting applications through February 25, 2022 for local organizations to support outreach Agenda Item: 7

focused on AMP enrollment. Both the application of the CAPP funds and expanded enrollment in AMP will put customers in a better position to pay off past-due debt.

Staff recommend we revisit the policy during the April 2022 board meeting to determine if an additional extension is needed.

Financial Impacts
The financial impact is minimal given the limited pool of customers who would be eligible for return to PG&E and for collections after application of CAPP funding and enrollment in AMP.

Attachments
A. Resolution of the Board of Directors of the East Bay Community Energy Authority to Extend the Temporary Suspension of and Revise Certain Customer Terms and Conditions and Administrative Policies
B. Revised Failure to Pay Section of Service Terms and Conditions Agenda Item: 7

Attachment Consent Item 7
RESOLUTION NO. R-2022-xx

A RESOLUTION OF THE BOARD OF DIRECTORS OF THE EAST BAY COMMUNITY

ENERGY AUTHORITY TO EXTEND SUSPENSION OF AND REVISE CERTAIN CUSTOMER

TERMS AND CONDITIONS AND ADMINISTRATIVE POLICIES
WHEREAS, the East Bay Community Energy Authority (“EBCE”) was formed as a community choice aggregation agency (“CCA”) on December 1, 2016, Under the Joint Exercise of Power Act, California Government Code sections 6500 et seq., among the County of Alameda, and the Cities of Albany, Berkeley, Dublin, Emeryville, Fremont, Hayward, Livermore, Piedmont, Oakland, San Leandro, and Union City to study, promote, develop, conduct, operate, and manage energy-related climate change programs in all of the member jurisdictions. The cities of Newark and Pleasanton, located in Alameda County, along with the City of Tracy, located in San Joaquin County, were added as members of EBCE and parties to the JPA in March of 2020.

WHEREAS, in December 2019, an outbreak of respiratory illness due to a novel coronavirus (a disease now known as COVID-19), spread around the world, impacting more than 75 countries, including the United States; and WHEREAS, many EBCE customers continue to face ongoing economic hardships as fall out the COVID-19 global health pandemic; and
WHEREAS, throughout 2020 and 2021, the Board of Directors resolved on multiple occasions to temporarily suspend certain customer terms and conditions and administrative policies associated with collections and customer payments; and WHEREAS, PG&E suspended disconnection services through January 1, 2022; and
WHEREAS, EBCE desires to extend the suspension of and revise certain customer terms and conditions and administrative policies associated with collections and customer payments in order to continue to support the recovery of customers from the financial impacts of COVID-19.

NOW, THEREFORE, THE BOARD OF DIRECTORS OF THE EAST BAY COMMUNITY ENERGY AUTHORITY DOES HEREBY RESOLVE AS FOLLOWS:

Section 1. For a period of 120 days from January 1, 2022 through May 1, 2022, the Board hereby authorizes the CEO to suspend the following customer terms and conditions and administrative policies:
(a) Customer terms and conditions related to ‘Failure to Pay’ and (b) Delinquent Accounts and Collections Policy.

Agenda Item: 7

Attachment Consent Item xx
Section 2. Unless extended by the Board, this suspension shall expire and be of no further force or effect on May 2, 2022, at which point the approved terms and policy shall resume to be effective.

Section 3. The Board hereby approves revisions to the Service Terms and Conditions related to ‘Failure to Pay’, as shown in Exhibit A.

Agenda Item: 7

Attachment Consent Item xx
ADOPTED AND APPROVED this 19th day of January 2022.

Dianne Martinez, Chair
ATTEST:

Agenda Item: 7

Attachment Staff Report Item 7
Proposed Revisions to the
Failure to Pay Section of Service Terms and Conditions
Failure to Pay
If you fail to pay your bill, EBCE may transfer your account to PG&E upon 30 days’ written notice for commercial customers and 60 days’ written notice for residential customers. If your account is transferred, you will be required to pay the opt out fees described above. This provision is suspended until at least December 31, 2021May 1, 2022 and does not apply to any customer that is participating in a payment plan.

Agenda Item: 7

Staff Report Item 8
TO: East Bay Community Energy Board of Directors
FROM: Inder Khalsa, General Counsel
SUBJECT: Adoption of Imminent Risks Findings Pursuant to AB 361 and Authorization to Continue Meeting via Teleconferencing
DATE: January 19, 2022
__________________________________________________________________ Recommendation
Find that conducting in-person meetings of the Board would present imminent risks to attendees’ health and authorize the Board to continue meeting via teleconferencing pursuant to Government Code Section 54953(e).

Background and Discussion
On March 4, 2020, Governor Gavin Newsom proclaimed a state of emergency related to COVID-19, pursuant to Government Code Section 8625, which is still in effect. On March 10, 2020, the Alameda County Board of Supervisors ratified the County Health Officer’s declaration of a local health emergency due to COVID-19.

The Brown Act allows legislative bodies to meet by “teleconference,” but only if the agenda listed the remote location of each member, the agenda was posted at all remote locations, and the public could access any of the remote locations.

Additionally, a quorum of the legislative body had to be within the legislative body’s jurisdiction. See Government Code Section 54953(b)(3)
Due to the COVID-19 pandemic, the Governor issued Executive Order N-29-20, suspending certain sections of the Brown Act. Pursuant to the Executive Order, legislative bodies no longer needed to list the location of each remote attendee, post agendas at each remote location, or allow the public to access each location. Further, a quorum of the legislative body does not need to be within the legislative body’s Agenda Item: 8

jurisdiction. After several extensions, Executive Order N-29-20 expired on September 30, 2021.

On September 16, 2021 Governor Newsom signed AB 361, new legislation that amends the Brown Act to allow local agencies to meet remotely during Governor declared emergencies under certain conditions. AB 361 took effect immediately as an urgency measure, but the Governor subsequently suspended application of the legislation ̶ with limited exceptions ̶ until October 1, 2021. The provisions of AB 361 relevant to local agencies are codified at Government Code Section 54953(e).

AB 361 authorizes local agencies to continue meeting remotely without following the Brown Act’s standard teleconferencing provisions if the meeting is held during a state of emergency proclaimed by the Governor and either of the following applies: (1) state or local officials have imposed or recommended measures to promote social distancing; or (2) the agency has already determined or is determining whether, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.

The legislative body must make the required findings every 30 days, until the end of the state of emergency or recommended or required social distancing.

AB 361 also requires legislative bodies to make remote public meetings accessible telephonically or otherwise electronically to all members of the public seeking to observe and to address the local legislative body, and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of the Brown Act. AB 361 adds new procedures and clarifies the requirements for conducting remote meetings.

A legislative body that meets remotely must allow members of the public to access the meeting via a call-in option or an internet-based service option, and the agenda for the remote meeting must provide an opportunity for members of the public to directly address the body in real time.

Due to the rise in COVID-19 cases caused by the Delta Variant, Alameda County is still impacted by the effects of the COVID-19 emergency. The Centers for Disease Control (CDC) recommends physical distancing of at least six (6) feet whenever possible, avoiding crowds, and avoiding spaces that do not offer fresh air from the outdoors, particularly for people who are not fully vaccinated or who are at higher risk of getting very sick from COVID-19. The CDC also recommends that people who live with unvaccinated people avoid activities that make physical distancing hard.

Agenda Item: 8

EBCE’s public-meetings are held at indoor facilities not designed to ensure circulation of fresh or outdoor air, particularly during periods of cold and/or rainy weather, and were not designed to ensure that attendees can remain six (6) feet apart.

Additionally, holding in-person meetings may encourage community members to come to EBCE facilities to participate in EBCE meetings in-person, and some of them could be at high risk of getting very sick from COVID-19 and/or live with someone who is at high risk. At this point in time, there are few in-person locations available for the EBCE to meet in, since most of the agencies in Alameda County are still holding remote meetings.

In-person meetings could also tempt community members who are experiencing COVID-19 symptoms to leave their homes in order to come to EBCE Board meetings to participate. Attendees may need to use ride-share services and/or public transit to travel to in-person meetings, thereby putting them in close and prolonged contact with additional people outside of their households.

For these reasons, staff recommends that the Board adopt findings that, as a result of the state of emergency caused by COVID-19, meeting in person would present imminent risks to the health and safety of attendees.

Staff will continue to monitor the situation and will return to the Board every 30 days or as needed with additional recommendations related to the conduct of public meetings.

Attachments
• Proclamation of Governor Newson of a State of Emergency due to COVID-19 • Resolution No. R-2020-91 of the Alameda County Board of Supervisors Ratifying the Declaration of a Local Health Emergency due to COVID-19 Agenda Item: 8

EXECUTIVE DEPARTMENT

STATE OF CALIFORNIA

PROCLAMATION OF A STATE OF EMERGENCY
WHEREAS in December 2019, an outbreak of respiratory illness due to a novel coronavirus (a disease now known as COVID-19), was first identified in Wuhan City, Hubei Province, China, and has spread outside of China, impacting more than 75 countries, including the United States; and
WHEREAS the State of California has been working in close collaboration with the national Centers for Disease Control and Prevention (CDC), with the United States Health and Human Services Agency, and with local health departments since December 2019 to monitor and plan for the potential spread of COVID-19 to the United States; and WHEREAS on January 23, 2020, the CDC activated its Emergency Response System to provide ongoing support for the response to COVID-19 across the country; and WHEREAS on January 24, 2020, the California Department of Public Health activated its Medical and Health Coordination Center and on March 2, 2020, the Office of Emergency Services activated the State Operations Center to support and guide state and local actions to preserve public health; and
WHEREAS the California Department of Public Health has been in regular communication with hospitals, clinics and other health providers and has provided guidance to health facilities and providers regarding COVID-19; and
WHEREAS as of March 4, 2020, across the globe, there are more than 94,000 confirmed cases of COVID-19, tragically resulting in more than 3,000 deaths worldwide; and
WHEREAS as of March 4, 2020, there are 129 confirmed cases of COVID-19 in the United States, including 53 in California, and more than 9,400 Californians across 49 counties are in home monitoring based on possible travel-based exposure to the virus, and officials expect the number of cases in California, the United States, and worldwide to increase; and
WHEREAS for more than a decade California has had a robust pandemic influenza plan, supported local governments in the development of local plans, and required that state and local plans be regularly updated and exercised; and
WHEREAS California has a strong federal, state and local public health and health care delivery system that has effectively responded to prior events including the Hl N 1 influenza virus in 2009, and most recently Ebola; and
Agenda Item: 8

WHEREAS experts anticipate that while a high percentage of individuals affected by COVID-19 will experience mild flu-like symptoms, some will have more serious symptoms and require hospitalization, particularly individuals who are elderly or already have underlying chronic health conditions; and
WHEREAS it is imperative to prepare for and respond to suspected or confirmed COVID-19 cases in California, to implement measures to mitigate the spread of COVID-19, and to prepare to respond to an increasing number of individuals requiring medical care and hospitalization; and
WHEREAS if COVID-19 spreads in California at a rate comparable to the rate of spread in other countries, the number of persons requiring medical care may exceed locally available resources, and controlling outbreaks minimizes the risk to the public, maintains the health and safety of the people of California, and limits the spread of infection in our communities and within the healthcare delivery system; and WHEREAS personal protective equipment [PPE) is not necessary for use by the general population but appropriate PPE is one of the most effective ways to preserve and protect California's healthcare workforce at this critical time and to prevent the spread of COVID-19 broadly; and WHEREAS state and local health departments must use all available preventative measures to combat the spread of COVID-19, which will require access to services, personnel, equipment, facilities, and other resources, potentially including resources beyond those currently available, to prepare for and respond to any potential cases and the spread of the virus; and
WHEREAS I find that conditions of Government Code section 8558(b), relating to the declaration of a State of Emergency, have been met; and
WHEREAS I find that the conditions caused by COVID-19 are likely to require the combined forces of a mutual aid region or regions to appropriately respond; and
WHEREAS under the provisions of Government Code section 8625(c), I find that local authority is inadequate to cope with the threat posed by COVID-19; and
WHEREAS under the provisions of Government Code section 8571 , I find that strict compliance with various statutes and regulations specified in this order would prevent, hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19.

NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes, including the California Emergency Services Act, and in particular, Government Code section 8625, HEREBY PROCLAIM A STATE OF EMERGENCY to exist in California.

Agenda Item: 8

IT IS HEREBY ORDERED THAT:

1. In preparing for and responding to COVID-19, all agencies of the state government use and employ state personnel, equipment, and facilities or perform any and all activities consistent with the direction of the Office of Emergency Services and the State Emergency Plan, as well as the California Department of Public Health and the Emergency Medical Services Authority. Also, all residents are to heed the advice of emergency officials with regard to this emergency in order to protect their safety.

2. As necessary to assist local governments and for the protection of public health, state agencies shall enter into contracts to arrange for the procurement of materials, goods, and services needed to assist in preparing for, containing, responding to, mitigating the effects of, and recovering from the spread of COVID-19. Applicable provisions of the Government Code and the Public Contract Code, including but not limited to travel, advertising, and competitive bidding requirements, are
suspended to the extent necessary to address the effects of COVID-19.

3. Any out-of-state personnel, including, but not limited to, medical personnel, entering California to assist in preparing for, responding to, mitigating the effects of, and recovering from COVID-19 shall be permitted to provide services in the same manner as prescribed in Government Code section 179.5, with respect to licensing and certification. Permission for any such individual rendering service is subject to the approval of the Director of the Emergency Medical Services Authority for medical personnel and the Director of the Office of Emergency Services for non-medical personnel and shall be in effect for a period of time not to exceed the duration of this emergency.

4. The time limitation set forth in Penal Code section 396, subdivision {b), prohibiting price gouging in time of emergency is hereby waived as it relates to emergency supplies and medical supplies.

These price gouging protections shall be in effect through September 4, 2020.

5. Any state-owned properties that the Office of Emergency Services determines are suitable for use to assist in preparing for, responding to, mitigating the effects of, or recovering from COVID-19 shall be made available to the Office of Emergency Services for this purpose, notwithstanding any state or local law that would restrict, delay, or otherwise inhibit such use.

6. Any fairgrounds that the Office of Emergency Services determines are suitable to assist in preparing for, responding to, mitigating the effects of, or recovering from COVID-19 shall be made available to the Office of Emergency Services pursuant to the Emergency Services Act, Government Code section 8589.

The Office of Emergency Services shall notify the fairgrounds of the intended use and can immediately use the fairgrounds without the fairground board of directors' approval, and Agenda Item: 8

notwithstanding any state or local law that would restrict, delay, or otherwise inhibit such use.

7. The 30-day time period in Health and Safety Code section 101080, within which a local governing authority must renew a local health emergency, is hereby waived for the duration of this statewide emergency. Any such local health emergency will remain in effect until each local governing authority terminates its respective local health emergency.

8. The 60-day time period in Government Code section 8630, within which local government authorities must renew a local
emergency, is hereby waived for the duration of this statewide emergency. Any local emergency proclaimed will remain in effect until each local governing authority terminates its respective local emergency.

9. The Office of Emergency Services shall provide assistance to local governments that have demonstrated extraordinary or disproportionate impacts from COVID-19, if appropriate and necessary, under the authority of the California Disaster Assistance Act, Government Code section 8680 et seq., and California Code of Regulations, ntle 19, section 2900 et seq. l 0. To ensure hospitals and other health facilities are able to adequately treat patients legally isolated as a result of COVID-19, the Director of the California Department of Public Health may waive any of the licensing requirements of Chapter 2 of Division 2 of the Health and Safety Code and accompanying regulations with respect to any hospital or health facility identified in Health and Safety Code section 1250. Any waiver shall include alternative measures that, under the circumstances, will allow the facilities to treat legally isolated patients while protecting public health and safety. Any facilities being granted a waiver shall be established and operated in accordance with the facility's required disaster and mass casualty plan. Any waivers granted pursuant to this paragraph shall be posted on the Department's website.

11.To support consistent practices across California, state departments, in coordination with the Office of Emergency Services, shall provide updated and specific guidance relating to preventing and mitigating COVID-19 to schools, employers, employees, first responders and community care facilities by no later than March 10, 2020.

12.To promptly respond for the protection of public health, state entities are, notwithstanding any other state or local law, authorized to share relevant medical information, limited to the patient's underlying health conditions, age, current condition, date of exposure, and possible contact tracing, as necessary to address the effect of the COVID-19 outbreak with state, local, federal, and nongovernmental partners, with such information to be used for the limited purposes of monitoring, investigation and control, and treatment and coordination of care. The
Agenda Item: 8

ernor of California
notification requirement of Civil Code section 1798.24, subdivision (i), is suspended.

13. Notwithstanding Health and Safety Code sections 1797.52 and 1797.218, during the course of this emergency, any EMT-P licensees shall have the authority to transport patients to medical facilities other than acute care hospitals when approved by the California EMS Authority. In order to carry out this order, to the extent that the provisions of Health and Safety Code sections 1797.52 and 1797.218 may prohibit EMT-P
licensees from transporting patients to facilities other than acute care hospitals, those statutes are hereby suspended until the termination of this State of Emergency.

14.The Department of Social Services may, to the extent the Department deems necessary to respond to the threat of
COVID-19, waive any provisions of the Health and Safety Code or Welfare and Institutions Code, and accompanying
regulations, interim licensing standards, or other written policies or procedures with respect to the use, licensing, or approval of facilities or homes within the Department's jurisdiction set forth in the California Community Care Facilities Act (Health and Safety Code section 1500 et seq.), the California Child Day Care Facilities Act (Health and Safety Code section 1596.70 et seq.), and the California Residential Care Facilities for the Elderly Act (Health and Safety Code section 1569 et seq.). Any waivers granted pursuant to this paragraph shall be posted on the Department's website.

I FURTHER DIRECT that as soon as hereafter possible, this proclamation be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this proclamation.

IN WITNESS WHEREOF I have
hereunto set my hand and caused
the Great Seal of the State of
affixed this 4th day
ATTEST:

ALEX PADILLA
Secretary of State
Agenda Item: 8

AGENDA _____ March 10, 2020

ALAMEDA COUNTY

HEALTH CARE SERVICES
AGENCY
COLLEEN CHAWLA, Director

OFFICE OF THE AGENCY DIRECTOR
1000 San Leandro Boulevard, Suite 300
San Leandro, CA 94577
TEL (510) 618-3452
FAX (510) 351-1367
March 6, 2020
The Honorable Board of Supervisors
County Administration Building
1221 Oak Street
Oakland, CA 94612
SUBJECT: ADOPT A RESOLUTION RATIFYING THE DECLARATION OF A LOCAL HEALTH EMERGENCY BY THE COUNTY HEALTH OFFICER RELATED TO THE 2019 NOVEL

CORONAVIRUS
Dear Board Members:

RECOMMENDATION
Adopt a Resolution ratifying the Declaration of a Local Health Emergency by the County Health Officer related to the 2019 Novel Coronavirus

DISCUSSION/SUMMARY
In December 2019, an outbreak of a respiratory illness due to a novel coronavirus (a disease known as 2019 Novel Coronavirus or COVID-19) was first identified in Wuhan City, Hubei Province, China. Since then, the outbreak has spread to more than 75 countries, including the United States. As of March 5, 14 California counties have had at least one citizen infected with the virus. The County of Alameda is among those counties, as are several Bay Area counties including Contra Costa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma.

The United States Centers for Disease Control and Prevention (CDC) considers COVID-19 to present a very serious threat to public health. On January 23, 2020, the CDC activated its Emergency Response System to provide ongoing support for the response to COVID-19 across the United States. On January 31, 2020, the Secretary of the US Department of Health and Human Services declared a public health emergency in the United States.

As of March 6, 2020, the CDC has identified 164 confirmed cases of COVID-19 infection, across 19 states, including 45 in California. The number of reported cases has escalated dramatically, with more than 94,000 confirmed cases and more than 3,300 deaths worldwide.

On March 1, 2020, the California Department of Public Health confirmed that an Oakland resident had become infected with COVID-19 after providing healthcare to the Solano County COVID-19 patient.

Two days later, an individual in Berkeley also tested positive for COVID-19 Infection.

Agenda Item: 8

The Honorable Board of Supervisors
March 6, 2020

California Health and Safety Code section 101080 allows a local health officer to declare a local health emergency in the health officer’s jurisdiction, or any part thereof, “whenever the health officer reasonably determines that there is an imminent and proximate threat of the introduction of any contagious, infectious, or communicable disease, chemical agent, noncommunicable biologic agent, toxin, or radioactive agent.” On March 1, 2020, Alameda County Interim Health Officer Erica Pan, MD, MPH, FAAP declared a local health emergency. Dr. Pan found that with “multiple cases of COVID-19 and evidence of community transmission in the region, there is an ongoing risk and likelihood of additional COVID-19 positive patients and community spread in the County of Alameda.” Dr. Pan renewed this declaration of emergency on March 5, 2020.

The declaration of a local health emergency provides the following benefits: it allows other jurisdictions and state agencies to provide mutual aid; it allows the extraordinary costs of providing mutual aid to be a legal charge against the state; and it provides immunity to healthcare providers who render aid during the emergency. The declaration also provides the local Health Officer with the authority to exercise the full range of her power to protect the community’s public health, which includes issuance and enforcement of orders for quarantine and isolation.

Under section 101080, your Board is required to ratify the Health Officer’s declaration of emergency.

Ordinarily, your Board would need to renew this ratification every thirty (30) days; however, on March 4, 2020, California Governor Gavin Newsom issued a Proclamation of a State of Emergency relating to the COVID-19 outbreak that included a waiver of the renewal requirement: “The 30-day time period in Health & Safety Code section 101080, within which a local governing authority must renew a local health emergency, is hereby waived for the duration of this statewide emergency. Any such local health emergency will remain in effect until each local governing authority terminates its respective local emergency.” The Governor similarly waived the renewal requirement for a declaration of local emergency.

VISION 2026 GOAL
This Resolution meets the 10X goal pathway of Healthcare for All in support of our shared visions of Safe and Livable Communities, Thriving and Resilient Population, and Healthy Environment.

Sincerely,
Colleen Chawla, Director
Health Care Services Agency
Agenda Item: 8

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Staff Report Item 9
TO: East Bay Community Energy Board of Directors
FROM: Nick Chaset, Chief Executive Officer
SUBJECT: CEO Report (Informational Item)
DATE: January 19, 2022
________________________________________________________________________ Recommendation
Accept Chief Executive Officer (CEO) report on update items below.

Recommendation
Accept Chief Executive Officer (CEO) report on update items below.

Executive Committee Meeting
A Special Executive Committee Meeting was held on Friday December 4, 2020 at 12 pm.

Members received an update on the legislative program, as well as a presentation on EBCE’s ability to sell the nuclear energy from the 2021 Pacific Gas and Electric carbon free allocation. The next meeting is scheduled for Friday January 22, 2021 at 12 pm.

Finance, Administration and Procurement Subcommittee Meeting The December 11th meeting for the FAP Subcommittee was cancelled. Meetings will resume in 2021.

Marketing Regulatory and Legislative Subcommittee Meeting There is no Marketing, Regulatory and Legislative meeting scheduled for the month of December. Meetings will resume in 2021.

New Staff
Update on Brilliant 100 Closure and Renewable 100 Transitions The Brilliant 100 product is no longer available to any customers as of January 2022.

Additionally, four cities are transitioning most of their customers to Renewable 100 during the month of January. Those cities are Albany, Dublin (residential only), Hayward, and Pleasanton. Voluntary Brilliant 100 customers and impacted customers in the four cities were Agenda Item: 9

sent printed and electronic notifications in December. A second notification was mailed and emailed during the first two weeks of January.

Staff has tracked the enrollment status of customers in these areas and found that customers who act are more frequently staying with EBCE on Bright Choice rather than choosing to return to PG&E. Within the four cities, a range of 2.95% to 11.22% are choosing to select Bright Choice rather than transition to Renewable 100. While a much smaller population of customers, a range of 0.19% to 0.60%, within those cities are returning to PG&E service.

These figures suggest that customers are making informed decisions about their electricity service.

Below is a table showing the change in enrollment status percentages from November 2021 to January 4, 2022. Note that “All EBCE” includes those voluntary Brilliant 100 customers that were transitioned to Bright Choice in January 2022.

Agenda Item: 9

TO:

FROM:

Staff Report Item11
East Bay Community Energy Board of Directors
Beckie Menten, Program Manager, Building Electrification and Energy Efficiency
SUBJECT: Program to Support and Scale Low to Moderate Income Building Electrification and Efficiency
DATE: January 19, 2022
__________________________________________________________________ Recommendation
Approve Resolution authorizing CEO to execute an Agreement with BlocPower to provide for $1 million in investment at the junior capital position and negotiate and execute a separate Agreement to provide $400,000 in grants to support electrification and clean energy upgrades on low to moderate income homes in EBCE’s service area.

Background and Discussion
This item was heard at the November 15th EBCE Board of Directors meeting. At that meeting, the Directors offered strong support for the program concept and requested additional information on customer benefits and obligations, including the types of measures funded, the costs to participating customers, and the underwriting criteria and default provisions of the program. This Board Memo and the attached presentation address that request; more background information can be found in the November 17th, 2021 Board Packet1.

BlocPower provided information on several projects installed recently in EBCE’s service area. Typical installation costs average $35,000 and project scopes most frequently include at least one electric appliance (i.e heat pump water heater or space conditioning equipment), several energy efficiency measures (i.e. lighting and 1 Item 11: Low and Moderate Income Electrification Program. EBCE Board of Directors Packet, November 17th 2021. https://res.cloudinary.com/diactiwk7/image/upload/v1637026693/Item_11_- _LMI_Electrification_hztmwp.pdf
Agenda Item: 11
Page1
building envelope improvements) and additional building upgrades (service panel replacements, new windows or doors, plumbing and/or new appliances). Most projects included in the portfolio saw a net increase in monthly expenses of $55-100 while 22% (two of nine projects) are expected to generate net monthly savings.

There may be many reasons why a customer voluntarily accepts an increase in monthly expenses. Efficiency and electrification projects provide important co-benefits beyond energy savings, including improvements in indoor air quality and an increase in safety and comfort. In spite of a customer’s ability and willingness to undertake a home improvement project, they may find themselves unable to access capital. Traditional financing programs remain out of reach to some customers based on strict underwriting criteria and low risk acceptance; in turn, these customers are frequently left out of traditional rebate-based programs that require an upfront investment.

BlocPower provides a mission driven service intended to improve the health, performance, and carbon footprint of homes. Customers are presented with a proposal before committing to the project which summarizes monthly expense and other terms of the financing on the front page. Customers make informed decisions on upgrades to their homes and the net savings or payments resulting from the project.

BlocPower works with independent community stewards who review and approve proposals before submission to the customer. This program aggregates multiple incentives with competitive, accessible financing to make these upgrades viable for customers who may otherwise not be able to improve their homes.

Fiscal Impact
EBCE staff are proposing a $1 million investment in BlocPower and an additional $400,000 in grant dollars for customer projects. $650,000 of this funding would be sources from this year’s Local Programs budget and includes the additional $250,000 that the Board requested to be allocated to Community Grants in the June 16th, 2021 Board meeting approving the FY’22 EBCE Budget. The remaining $750,000 will be allocated from the upcoming FY 2022/2023 programs budget.

EBCE anticipates earning $500,000 in interest payments on this investment over a 15- year period. Additionally, EBCE anticipates additional revenue associated with the electrification of homes. Finally, this funding would be leveraged with BlocPower’s existing capital stack.

Attachments
Agenda Item: 11
Page2

1. Resolution Authorizing the CEO to execute a Loan Agreement and Promissory Note with BlocPower for 1 Million Dollars and to negotiate and execute an Agreement to administer $400,000 in grants

2. PowerPoint presentation

3. Loan Agreement and Promissory Note.

4. Consulting Services Agreement for $400,000 in customer grants.

Agenda Item: 11
Page3
RESOLUTION NO. R-2022-

A RESOLUTION OF THE BOARD OF DIRECTORS

OF THE EAST BAY COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CEO TO EXECUTE A LOAN AGREEMENT AND PROMISSORY NOTE WITH BLOCPOWER FOR $1

MILLION DOLLARS AND TO NEGOTIATE AND EXECUTE AN AGREEMENT TO ADMINISTER $400,000 IN INCENTIVES
WHEREAS The East Bay Community Energy Authority (“EBCE”) was formed as a community choice aggregation agency (“CCA”) on December 1, 2016, Under the Joint Exercise of Power Act, California Government Code sections 6500 et seq., among the County of Alameda, and the Cities of Albany, Berkeley, Dublin, Emeryville, Fremont, Hayward, Livermore, Piedmont, Oakland, San Leandro, and Union City to study, promote, develop, conduct, operate, and manage energy-related climate change programs in all of the member jurisdictions. The cities of Newark and Pleasanton, located in Alameda County, along with the City of Tracy, located in San Joaquin County, were added as members of EBCE and parties to the JPA in March of 2020.

WHEREAS building electrification can improve the health, comfort, and efficiency of homes within EBCE’s service area, savings customers money on energy bills while improving indoor air quality and providing a new source of revenue for EBCE;
WHEREAS EBCE recognizes that frontline communities, defined as those hardest hit by a combination of historical underinvestment, exposure to environmental pollution, and lower income rates, have historically been excluded from participation in clean energy subsidy programs by requiring upfront investment on the part of participants;
WHEREAS BlocPower is a company which seeks to provide building electrification upgrades that also address energy efficiency, health, and safety to low to moderate income customers in EBCE’s service area;
WHEREAS EBCE desires to provide a loan to BlocPower to provide more EBCE customers opportunities to access the health and safety benefits associated with building electrification while providing a sustaining fund to continue re-investment in our community;
WHEREAS EBCE desires to provide incentive funds to BlocPower to be used to reduce overall project costs and to improve the affordability and access to the program.

NOW, THEREFORE, THE BOARD OF DIRECTORS OF THE EAST BAY COMMUNITY ENERGY AUTHORITY DOES HEREBY RESOLVE AS FOLLOWS:

Agenda Item: 11
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Section 1. Authorize Chief Executive Officer to execute a Loan Agreement and Promissory Note with BlocPower for $1 million to finance electrification projects for EBCE’s customer base, and
Section 2. Authorize Chief Executive Officer to negotiate and execute an agreement with BlocPower to provide $400,000 in incentives to low and moderate income customers to facilitate residential energy efficiency and electrification home upgrades.

ADOPTED AND APPROVED this 19th day of January, 2022.

Dianne Martinez, Chair
ATTEST:

Clerk of the Board
Agenda Item: 11
Page5
LMI
Electrification
January 19, 2021

BOD MEETING
Agenda Item: 11
Page6
2 Background:
• Presentation in November Board meeting
o BOD supportive of program concept and design
• To approve The LMI Electrification Program, the Board requested clarification on the following:
o Provide evidence of project economics
o Clarify non-monetary customer benefits
o Clarify customer protections and the sales process
Agenda Item: 11
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3 $1.4 Million LMI Electrification Program
• $1M in project capital at 5.5% interest rate
• $400k in grants for LMI customers (up to 120% of Area Median Income) EBCE Budget Impact
• $500k allocated from FY’21 Local Programs Electrification budget • $250k allocated by BOD for electrification grants to LMI communities (June ‘21) • $650k to be requested in FY’22
Sole Source with BlocPower
• BlocPower’s “electrification-as-a-service” approach and focus on LMI communities is unique in the market
• BlocPower will use local contractors to provide electrification and EE to ~60 EBCE customers • Provides access to well priced capital that LMI customers may not otherwise access Agenda Item: 11
Page8
4 LMI Customers
• Households up to 120% of Area Median Income (AMI)
•Incentives scaled to income
• Higher incentive levels for lower income households
•Incentives will minimize bill impacts to CARE customers % AMI
Income
Household
= 1
Household
= 4
Maximum
Incentive
80% $76,720 $109,600 $10,000
120% $105,500 $150,700 $4,000
Qualifying technologies / scope
Heat pump
space
conditioning
Heat pump
water heaters
Monitoring and
control
LEDs, insulation,
air sealing
appliances &
panel upgrades
Lead, mold,
asbestos Solar Battery Storage
Agenda Item: 11
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Pilot projects tested affordability + proved value to homeowners 5 Project Scope of Work
Avg. total
project
costs (pre-incentives)
Avg.

Monthly
Payments
Avg. Total
Customer
Payments
Avg
Annual
GHG
Savings
#1
Air Sealing, Attic Insulation, Wall Insulation
Mini Split HVAC HP + Smart Thermostat
LED lighting, 1 window, 1 door
$34,687 -$52 -$11,500 2.2T
#2 Air Sealing Attic Insulation Wall Insulation Mini Split HP HVAC + smart thermostat, HP water heater, Floor Insulation, replace windows and door Main Panel upgrade #3 Air Sealing, Attic/Wall Insulation, Floor Insulation LED lighting HP Water Heater, Mini Split HP
#4 Minisplit HP, HP WH, air sealing, insulation floor, wall, attic (3 units) #5 Minisplit HP, air sealing, insulation floor, wall, attic new windows
● Non-monetary benefits include comfort, safety, indoor air quality and useability ● General home improvements increase the value of homes and the opportunity to make additional investments ● Total payments are far below the costs of the home improvements ● Monthly Customer Payments benefit from other incentives from BayREN, TECH and other sources ● Pilot program tested customer acquisition and project development, but was not replicable for BlocPower economically Agenda Item: 11
Page10
Total expected
project costs (pre-incentives)
Income based EBCE
grants
Expected Monthly
Customer Payments
(post-incentives, post-financing)
Expected Monthly
Energy Bill Savings
Expected Net Monthly
Payments (yr 1)
Estimated Net
Customer Payments Income Bracket
$37,500 $10,000 -$146 $87 -$59 -$10,662 Low Income
$4,000 -$199 -$112 -$20,075 Mod Income
Project Costs assuming no EBCE Program
*$34,500 NA -$235 $87 -$148 -$26,607 NA
- Income based incentives higher for low income customers - Improvements improve quality of life and reduce energy bills - BlocPower lending criteria broadens program eligibility - *Prevailing wage requirement will increase labor costs by ~$3,000 - EBCE debt lowers cost of financing for participants by ~$6,000 EBCE Program sustainably scales program, addresses most support to highest-need and improves value to customer
Estimated # of
projects 60
Total Program Capex $2,250,000
Program Grants $400,000
Net Cost $1,850,000
Agenda Item: 11
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BlocPower partners with local developers, contractors,
trainers and workers to deliver completed projects
7 Role Company Details
Developer Revalue.io West Oakland-based, MWOB
Contractors East Bay
Indoor
Environmental
Oakland-based MWOB
Eco Options Oakland-based, MWOB
Energineers Hayward-based MWOB
BOLD
Construction
Oakland and San Leandro-based
MWOB
Workforce
Development
Cypress
Mandela
Oakland and Union City-based
MWO Non-profit
Trust is key
● Multi-faceted retrofits involving different trades,
program administrators, financing obstacles, and
decisions. The risk of fatigue is high.
● Trusted community partners help bridge that gap
Education is both hard, and a necessary step
● Unfamiliar technologies, and their value needs
explanation so they can deliver expected results.
● Simplifying the process is critical for buy in and
overcoming decision fatigue.

Turnkey
● Programs need to be stitched together to actually
work for homeowners. We can’t have them jump
through too many hoops for this to actually work.

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Customer agreement
safeguards customer interests
Sample customer agreement
8 Agenda Item: 11
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Our customers tell us that health and community are among their most important values
Our pilot customers shared key insights that helped them appreciate the benefits of energy transformation. We started by remediating home health hazards (Indoor Air Quality - IAQ) and creating energy cost-savings.

Health Impacts
- Lead, Mold, Asbestos and other environmental toxins persist in West Oakland housing.
- Burning fossil fuels within the building envelope contributes significantly to poor health outcomes (source: EPA).
- The ability to deliver clean, healthy air is a crucial decision factor for customers. See https://www.blocpower.io/covid-19-resources Marshal St. owner Vince Gibbs
"My daughters were so uncomfortable in their room, now we hardly even have to run our mini-split, the insulation job is amazing and the moisture smell is gone!!" 9 https://oaklandnorth.net/2018/12/11/oaklands-air-quality-problem-can-first-of-its-kind-legislation-solve-it/ https://science.howstuffworks.com/environmental/energy/natural-gas-energy.htm Agenda Item: 11
Page14
Additional Slides
10 Agenda Item: 11
Page15
About BlocPower
● Black-owned climate tech company founded in 2014
● Focused on greening residential and small commercial
buildings in the US, particularly in Low and Moderate
Income (LMI) neighborhoods
● Gas-to-electrification technology building conversions (air source heat pumps, hot water, etc.)
● Built a tech platform to speed up energy assessments
and financing, lowering project development costs by
50%+
● Backed by government offices, utilities, and the
world’s top investors
11 Agenda Item: 11
Page16
Smarter, Healthier, Greener buildings for ALL
Marshal St. owner Vince Gibbs
"My daughters were so uncomfortable in
their room, now we hardly even have to run
our mini-split, the insulation job is amazing
and the moisture smell is gone!!"
"Nobody cares about building electrification if they can't breathe in their home...and having contractors that reflect the community helps establish trust" - Mark Hall, Revalue.io
Helen St. owner Reymon LaCheaux
"I knew I wanted to be energy efficient, just
didn't know where to start. Working with the
Revalue.io team and Blocpower, made the
process seamless and easy."
Agenda Item: 11
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Case Study: AFFORDABLE HOUSING IMPROVEMENTS
Union Street, Oakland
13 Pictured: Owner and Mark Hall, Revalue.io
Agenda Item: 11
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Case Study: GREEN HEALTHY HOME
Marshall Street, Oakland
14 Agenda Item: 11
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Case Study: ENABLEMENT CAPITAL
Northern California Land Trust; 36th Street, Oakland
15 https://nclt.org/).

Agenda Item: 11
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Holistic financing program enables projects while
safeguarding customer interests
Financing Instrument
● Lease, target term of 15 years + Customer payments targeted to savings ● Targeting ~6.5% effective interest, secured only by the assets installed. ● Low 1% annual escalation in payment.
● Operations + Maint. costs may be included for 15 years; Full guarantee on equipment & service ● Purchase, renew or remove options at end of term
● No lien on underlying property
Underwriting criteria
Customers are qualified through a holistic review of their financial portfolio, beyond just a credit score.

We do require no bankruptcy within the last three years, and no outstanding major judgements or liens.

Non-payment
BlocPower engages in a managed and flexible process to support payment. Rather than going directly to collections, we work with other service providers like PromisePay to work with our customer portfolio to support their obligations
Financing Program Details
16 Agenda Item: 11
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Negotiating complex incentives + financing is a significant barrier
Access to health equity resources is confusing, cumbersome and often insufficient to remediate home health hazards. What we need are:

Enablement capital
● The federal, state and local programs that offer grants (e.g., LiHEAP, WAP) and financing programs (REEL) for LMI customers often restrict projects through narrow requirements.
● Bridge financing makes qualification for many of these programs possible.

Flexible underwriting
● Many eligible residents have been excluded even from low-cost financing due to structural discrimination and predatory practices.

Complete Scope
● Essential considerations for health and long-term deferred maintenance are also included in project design, not just energy efficiency or weatherization.
17 Agenda Item: 11
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Loan Agreement By And Between East Bay Community Energy Authority and BlocPower Energy Services 3
This Loan Agreement (the “Agreement”), dated as of January 19, 2022 (the “Effective Date”), is entered into by and between the by and between East Bay Community Energy Authority, a joint powers authority formed under the laws of the State of California (“EBCE”), and BlocPower Energy Services 3, LLC, a Delaware limited liability company (the “Borrower”).

RECITALS
A. Fossil fuel based heating and appliances are connected to harmful indoor air quality and contribute to climate change.

B. In recently signed SB 68, the California Legislature found that emissions from fossil fuels in residential buildings make up a significant share of the State’s carbon emissions. The Legislature found that it is a priority to make it as easy as possible for building owners to switch from fossil fuel to electric based energy.

C. Many in EBCE’s service area have already transitioned from fossil fuel to electric heating and appliances and as a result, a smaller pool of ratepayers must pay to maintain fossil fuel distribution infrastructure.

D. Low to moderate income (LMI) customers are disproportionately impacted by the health and financial effects of fossil fuel.

E. LMI customers are more likely to rent and therefore have less control over decisions impacting the buildings in which they live.

F. The Borrower is a black-owned company, specializing in making residential and commercial buildings more energy efficient, especially in LMI communities.

G. The Borrower assists LMI customers and landlords with LMI tenants with electrification of buildings, by providing equipment and installation with limited upfront costs and long term payment options. The Borrower has now completed projects in almost 1,000 buildings.

H. The Borrower has also developed a technology platform that reduces administrative costs associated with project implementation, including energy assessments and financing, helping to reduce overall project cost to participants.

I. In order to assist LMI customers and landlords with LMI tenants with the electrification of residential buildings and meet the State’s decarbonization goals, the EBCE Board of Directors has authorized a loan to Borrower in the amount of $1,000,000.

Agenda Item: 11
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J. The proceeds of the loan shall be used solely for the electrification of buildings by providing equipment and installation with limited upfront costs and long term payment options for LMI customers or landlords with LMI tenants, in EBCE’s service area.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS

AND CONDITIONS CONTAINED HEREIN, AND OTHER VALUABLE

CONSIDERATION, THE ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:

Article I. DEFINITIONS; CONSTRUCTION; EXHIBITS
Section I.01 Definitions
The following capitalized terms have the meanings set forth in this Section 1.01 wherever used in this Agreement, unless otherwise provided:
(a) “Agreement” means this Agreement, as the same may be modified from time to time, pursuant to the terms hereof.
(b) “Business Day” means a day other than: (i) a Saturday, (ii) a Sunday, or (iii) a day on which the administrative offices of the EBCE are closed. (c) “EBCE” means East Bay Community Energy Authority, a joint powers authority formed under the laws of the State of California (d) “Default Rate” means the interest rate equal to the lesser of: (i) 6.5 percent per annum, or (ii) if lower, the highest rate permitted by law. (e) “Event of Default” has the meaning set forth in Section 5.1. (f) “Fiscal Year” means calendar year or, if the Borrower uses another 12- month period as its annual accounting period, then such other 12-month period. (g) “Funding Date” means the first date on which EBCE funds the Loan. (h) “Law” means, collectively, all federal, state or local laws, rules, regulations, statutes, ordinances, codes, orders, injunctions or decrees. (i) “LMI” means a household or family with income not greater than 100% of the Alameda County area median income, adjusted for household or family size. (j) “Loan” is the loan being made by EBCE to the Borrower pursuant to the terms of this Agreement.
(k) “Loan Documents” means this Agreement and the Promissory Note.

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(l) “Material Adverse Effect” means a material adverse effect on: (i) the business, assets, operations, prospects or condition, financial or otherwise, of the Borrower, (ii) the ability of the Borrower to perform any of its obligations under the Loan Documents, or (iii) the rights of or benefits available to EBCE under the Loan Documents. (m) “Payment Date” means the 1st Business Day of each month, commencing on December 2022 .
(n) “Payment Schedule” means the schedule set forth in Exhibit A, which sets forth the scheduled principal and interest payment for the Loan on each Payment Date. (o) “Parties” means EBCE and the Borrower.
(p) “Project” has the meaning set forth in Recital J.
(q) “Promissory Note” means the promissory note, in the form attached hereto as Exhibit B, that will evidence Borrower's obligation to repay the loan. (r) “State” means the State of California.
(s) “Tenant Improvements” means the improvements or other alterations, to be undertaken and paid by the Borrower, at the properties where the Borrower conducts its business for the Project.

Section I.02 Construction
(a) Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to include the neuter, masculine or feminine gender, as appropriate.
(b) Headings of sections in this Agreement are solely for convenience of reference, do not constitute a part of this Agreement and shall not affect the meaning, construction or effect of the provisions of this Agreement. (c) Each of the Parties affirms that it has reviewed and understood each and every provision of this Agreement and has consulted an attorney before executing this Agreement. As such, no court or other judicial authority shall construe any provision of this Agreement against any party by reason of such party’s being deemed to have drafted such provision.

Section I.03 Exhibits
The following exhibits are attached to this Agreement and incorporated into this Agreement by reference:

Exhibit A: Payment Schedule
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Exhibit B: Form of Promissory Note
Exhibit C: Form of Officers Certificate
Exhibit D: California Labor Code Compliance
Article II. LOAN TERMS; PAYMENTS
Section II.01 Loan
(a) EBCE agrees, subject to the terms and conditions set forth in this Agreement, to make the Loan in the principal amount of One Million Dollars ($1,000,000.00) to Borrower for the Project.
(b) The Loan shall be evidenced by the Promissory Note, in substantially the form set forth in Exhibit B.
(c) The Loan shall bear interest, commencing on the date that is 12 months from the Effective Date, at the rate of five and one half percent (5.5%) per annum (calculated on the basis of a 360-day year of twelve 30-day months), and shall be payable on each Payment Date in the amounts set forth in the Payment Schedule set forth in Exhibit A.
(d) Notwithstanding the foregoing, upon the occurrence of an Event of Default and so long as it is continuing and remains uncured, the Loan shall bear interest at the Default Rate. Interest due based on such Default Rate shall be in addition to any fee due pursuant to Section 2.03(c).

Section II.02Prepayment
(a) Subject to the provisions of this Section 2.02 and Section 2.03 below, the Borrower may prepay all or a portion of the outstanding principal together with accrued interest thereon of the Loan on any Payment Date without penalty, in addition to scheduled principal and interest payment due on that Payment Date. (b) Unless otherwise agreed in writing by the CEO of EBCE, any partial prepayment shall be applied to scheduled principal payments in inverse order of maturity (i.e., with the latest due date).
(c) At least 15 days before any prepayment, the Borrower shall send to EBCE:
(i) a written notice specifying the prepayment amount and (ii) unless no principal amount of the Loan will remain outstanding after such prepayment, a proposed revised Payment Schedule to become effective after such prepayment. EBCE shall notify the Borrower at least five days before the proposed prepayment date whether such revised Payment Schedule is acceptable to EBCE. If EBCE has any objection to the proposed revised Payment Schedule, then the Parties shall cooperate in good faith to make mutually Agenda Item: 11
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acceptable revisions. No prepayment shall be made or accepted until EBCE and the Borrower agree on a revised Payment Schedule.

Section II.03Payments Generally
(a) Borrower shall make each payment required to be made under the Loan Documents no later than 12:00 PM on its respective due dates, in immediately available funds in lawful money of the United States of America, without set-off, counterclaim, withholding or deduction of any kind whatsoever. Such payments shall be either by cashier’s check, certified check, or by wire/electronic transfer, and sent to the following (provided, that EBCE may designate a different address or a different account in writing from time to time):
(i) If by check, made to “East Bay Community Energy” (with “BLOCPOWER 2021 LOAN” in the reference line) and sent to East Bay Community Energy
Attention: CEO
1999 Harrison Street, Suite 800
Oakland, CA 94612
(ii) If by wire/electronic transfer, to the following account:

ACCOUNT INFORMATION
(b) If at any time EBCE receives insufficient funds from the Borrower to pay fully all amounts of principal, interest and fees then due hereunder, such funds received shall be applied: (i) first, to pay costs, expenses and fees due to EBCE hereunder, (ii) second, to pay interest then due hereunder, (iii) third, to pay principal then due hereunder; provided that, after the occurrence and during the continuation of an Event of Default, EBCE may apply insufficient funds differently at its sole discretion. (c) In addition, if any principal of or interest on the Loan or other amount payable by the Borrower hereunder past due, remains unpaid for 5 days, after written notice by EBCE, whether due at stated maturity, upon acceleration or otherwise, the Borrower agrees to pay a late charge of three percent (3%) of the amount which is past due. The parties agree that such late charge represents the reasonable estimate of a fair average compensation to EBCE for additional expenses to process such delinquency.

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Article III. FUNDING DATE;

CONDITIONS PRECEDENT TO FUNDING OF LOAN
Section III.01 Funding Date and Location.
(a) The parties anticipate that the Funding Date shall be January, 20 2022; provided, that the Funding Date may be such other Business Day as agreed by the Parties in writing; provided, further, funding shall only occur after the Borrower’s satisfaction of all of the conditions set forth in Section 3.02.
(b) On the Funding Date and on July 1, 2022, EBCE shall issue a check or wire transfer to the Borrower the amount of $ 500,000, in lawful moneys of the United States of America,.
(c) Funds shall be transferred to:

BlocPower Energy Services 3 LLC
First Republic Bank
Section III.02 Conditions Precedent.
(a) The obligations of EBCE to make the Loan hereunder shall not become effective until EBCE shall have received the following on or before the Funding Date:
(i) Executed copies of this Agreement and the Promissory Note. (ii) A true, correct and complete copy of each of: (A) the Certificate of Formation of the Borrower, (B) the current operating agreement of the Borrower, and (C) a Certificate of Good Standing (or similar document), issued by the Secretary of State within 30 days of the Funding Date, showing the Borrower’s good standing to conduct business in the State.
(iii) Financial statements of the Borrower for the two full Fiscal Years completed before the Funding Date (which may be unaudited financial statements, if no audited financial statements have not been prepared and, therefore, unavailable). (iv) A written description of any event or change since the end of the period covered by the Borrower’s most recent audited financial statements, which may have a Material Adverse Effect.
(v) The Borrower’s most recent cash flow projection reasonably forecasting the next five years of operations (including revenues, expenses and capital expenditures) for: (i) the Borrower, and (ii) the Project. (vi) Evidence of the insurance coverage meeting the requirements of Section 5.06 below (which shall include disclosure regarding all applicable deductibles).

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(vii) A certificate of the Parent of the Borrower’s CEO and CFO, dated the Funding Date, in substantially the form set forth in Exhibit C. (viii) Such other certificates, instruments and other documents as EBCE may reasonably request.
(b) If the Borrower shall be unable to satisfy the conditions set forth in this Section 3.02, or if EBCE shall determine in good faith (and provide written notice to the Borrower) that there has been a change in law which prohibits the funding of the Loan, then this Agreement shall terminate and the Borrower and EBCE shall be under no further obligation hereunder.

Article IV. REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower represents and warrants to EBCE that, as of the date of this Agreement and as of the Funding Date:

Section IV.01 Organization; Authorization.
(a) The Borrower is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to carry on its business as it is now being conducted and to own, operate and lease its properties and assets in the State of California.1 (b) The Borrower has the full power, authority and legal right to undertake the Project.
(c) The Borrower has full power, authority and legal right to enter into and execute the Loan Documents.

Section IV.02 Enforceability; No Conflict.
(a) The Loan Documents and all other documents or instruments executed or delivered in connection herewith have been duly authorized by all necessary action on the part of the Borrower, have been duly executed and delivered and are the legal, valid and binding obligations of Borrower and are enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. (b) The execution, delivery and performance by Borrower of the Loan Documents do not and will not conflict with, or result in, any breach or violation of any of the terms and conditions of, or constitute a default under, or give rise to a right to require 1 NTD: BlocPower LLC is registered to do business in CA. BPES3 is not required to be registered in CA.

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the Borrower to make any payment under, or result in the creation of any lien or encumbrance upon any assets or properties of the Borrower pursuant to: (a) the certificate of formation or operating agreement or other organizational or constituent documents of Borrower, (b) any Law or requirement imposed under any permit or by any governmental authority applicable to Borrower, (c) any judicial order, judgment, injunction or decree to which the Borrower is a party or by which it is bound or (d) any agreement to which the Borrower is a party or by which it is bound.

Section IV.03 Audited Financial Statements; Cash Flow Projections. (a) The financial statements delivered by the Borrower to EBCE present fairly, in all material respects, the financial position of the Borrower as of their respective dates.

Except as disclosed to EBCE in writing, since the date of the most recent financial statements, there has been no material adverse change in the business, assets, operations, prospects or condition (financial or otherwise) of the Borrower. (b) The cash flow projections provided to EBCE regarding the Borrower and the Project have been prepared in good faith and reflect the true expectation of the Borrower (subject to reasonable assumptions), based on the experience of the Borrower.

Section IV.04 Outstanding Indebtedness.
(a) Borrower does not have any outstanding indebtedness except: (i) the indebtedness evidenced by the Note, (ii) debt pursuant to Regulation CF and (iii) as previously disclosed to EBCE in writing or included in the submitted financial statements.2
(b) Except as previously disclosed to EBCE in writing, there are no outstanding liens on record against any of the Borrower’s properties or assets.

Section IV.05 Insurance.

All premiums in respect of all insurance maintained by or on behalf of the Borrower, including all insurance required hereunder, have been paid. The Borrower believes that the insurance maintained by or on behalf of the Borrower is adequate.

Section IV.06 Compliance with Laws and Agreements.
(a) The Borrower is in compliance with all Laws applicable to it or its property and all leases, agreements and other instruments binding on it or its property, except where failures to do so, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No material default (however defined) under any such agreement or instrument has occurred and is continuing. 2 NTD: Please confirm EBCE has received info about our crowdfunding debt.

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(b) The Borrower has timely filed or caused to be filed all tax returns and reports required to have been filed by it and has paid or caused to be paid all taxes required to have been paid by it as and when due.

Section IV.07 No Litigation.

There are no actions, suits or proceedings pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower by or before any arbitrator or court or governmental or administrative body or agency. The Borrower is not subject to any judgment, confession of judgment, injunction, decree, order, order to show cause, writ, lien or attachment of any kind, whether or not final or contingent, and none of the foregoing has been filed, recorded or otherwise attached to any of Borrower’s assets or properties.

Section IV.08 Disclosure.

The Borrower has disclosed to EBCE all agreements, instruments and corporate or other restrictions to which Borrower is subject, and all other matters known to it that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the information contained in this Agreement or any other instrument, document, list, certificate, statement, schedule or exhibit delivered to EBCE in connection with the negotiation of this Agreement or the Promissory Note or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains any untrue statement or material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.

Article V. COVENANTS
So long as any portion of the Loan remains outstanding or any other amount is unpaid hereunder, the Borrower shall comply with the following covenants:

Section V.01Continuation of Business.
(a) The Borrower shall not assign, sell, transfer, dispose or encumber its assets or revenues (including accounts receivables) or rights with respect thereto, in any manner that would adversely affect its continuing existence or otherwise reasonably be expected to have a Material Adverse Effect.
(b) Borrower shall obtain and maintain in full force such government approval, authorization, certificate of need, license, or designation as required to operate its business.

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Section V.02Undertaking of Project; Use of Proceeds; Applicability of Prevailing Wage Requirements.
(a) The Borrower shall use proceeds of the Loan solely for the Project. (b) The Borrower acknowledges that use of the proceeds of the Loan outside of the scope of the Project may constitute a “gift of public funds,” which is prohibited by Cal. Const., art. XVI, §6.
(c) The Borrower acknowledges that, in view of the benefit conferred by EBCE’s assistance to the Project in the form of the Loan, use of Loan for any construction is subject to the provisions of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, as if they are undertaken by EBCE. The Borrower agrees to comply with, and to require any and all contractors performing construction, alteration, demolition, installation, repair work or any other work constituting a public work as described in California Labor Code Section 1720, in connection with the Tenant Improvements, to comply with, the provisions set forth in Exhibit D.

Section V.03Compliance with Law and Contracts.
(a) The Borrower shall conduct its business in a manner that complies with all applicable Law.
(b) Borrower will not commit any default on its contractual obligations in any manner which could reasonably be expected to result in a Material Adverse Effect.

Section V.04Payment of Indebtedness and Other Obligations; Incurrence of Other Indebtedness or Creation of Lien.
(a) Borrower shall pay and discharge, when due (i) all of its debts and other obligations and liabilities, including, but not limited to, payroll obligations, and (ii) all taxes, assessments and other governmental charges on its income and properties, in each case as and when the same are due, and in all events before the same shall become delinquent or in default such that interest or penalties would accrue, except where: (I) the validity or amount thereof is being diligently contested in good faith by appropriate proceedings, (II) the Borrower has set aside on its books reserves with respect thereto that are reasonably adequate, (III) such contest effectively suspends collection of the contested obligation and the enforcement of any lien securing such obligation, or Borrower has posted such bonds or other security or instruments as may be necessary to remove any such lien from title to any of Borrower’s assets or properties, and (IV) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
(b) Without EBCE’s prior written consent, the Borrower shall not borrow money from other sources (or enter into capital leases or similar instrument), that exceeds $10,000,000 in the aggregate.

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(c) The Borrower shall not create, assume or allow any security interest or lien on any property that the Borrower now or later owns, except for: (i) liens and security interest in favor of EBCE, (ii) liens for taxes not yet due, (iii) liens outstanding on the date of this Agreement and disclosed to EBCE in writing, and (iv) liens arising in the ordinary course of business securing amounts the Borrower owes in the operation of its business.

Section V.05Books and Records; Financial Statements.
(a) Borrower shall, at all times, keep proper books of record and account in which complete and correct entries are made of all transactions relating to its business and activities. The Borrower will permit any representatives designated by EBCE, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, to audit such books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested.
(b) After the close of each calendar year, the Borrower shall cause an independent certified public accountant to prepare on a consolidated basis an audit of the financial transactions and records of EBCE for such Fiscal Year. No later than four months days after the end of each Fiscal Year, the Borrower shall furnish to EBCE a copy of the full audited financial report for such Fiscal Year.

Section V.06Insurance.
(a) Borrower shall procure and maintain general comprehensive liability insurance and automobile liability insurance (for any owned, non-owned or hired vehicle), against loss arising from personal injury and death or property damage caused by accident or occurrence, in the amount not less than One Million Dollars ($1,000,000.00) for any occurrence or accident, Two Million Dollars ($2,000,000.00) annual aggregate and naming EBCE and its officials, officers, employees, agents, and contractors as additional insured. Such insurance may be provided through a combination of primary and excess (or umbrella) policies. All such policies (other than umbrella policies, if such endorsement is not available for umbrella policies) shall name EBCE as an additional insured.
(b) The Borrower shall comply with all State requirements relating to the procurement and maintenance of workers’ compensation insurance, any state mandated disability benefits insurance, and such other forms of insurance which the Borrower is required by Law to provide in at least the coverage amounts required by Law. (c) Borrower shall provide EBCE at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Borrower shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Borrower shall deliver renewal certificate(s) including the required Additional Insured endorsement to EBCE at least ten (10) days prior to the effective date of cancellation or expiration.

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(d) All required policies of insurance shall be endorsed to waive the right of subrogation. All insurance policies obtained by the Borrower, including all deductibles, shall be reasonably satisfactory to EBCE. Copies of the insurance policies and endorsements for all insurance required to be obtained by Borrower shall be delivered to EBCE prior to the Funding Date.

Section V.07Disclosure Notices.
(a) The Borrower shall furnish to EBCE prompt written notice of any of the following:
(i) The occurrence of an Event of Default;
(ii) Any development in the business or affairs of the Borrower that results in, or could reasonably be expected to result in, a Material Adverse Effect; or (iii) Any upcoming change in the senior management of the Borrower; or (iv) Any upcoming change in the Borrower’s primary business location(s).
(b) Each notice delivered under this Section shall be accompanied by a statement describing the nature thereof and the action the Borrower proposes to take with respect thereto.

Section V.08Indemnification; Costs and Expenses.
(a) To the fullest extent permitted by law, the Borrower shall indemnify defend, and hold harmless EBCE and its officials, officers, employees, agents, and contractors (collectively, the “Indemnitees”) against and hold the Indemnitees harmless from any and all claims, actions, suits, proceedings, damages, liabilities, reasonable costs, reasonable expenses (collectively, “Claims”), including attorneys’ fees, arising out of, connected with or resulting from any acts or omission to act by the Borrower (or the Borrower’s officers, employees, agents or contractors) in connection with or related to the Loan, this Agreement or the Project; provided, however, that the Borrower shall not be required to indemnify the Indemnitees for any Claims that are caused by the sole gross negligence, bad faith or willful misconduct of the Indemnitees.
(b) Borrower’s duty to indemnify, defend, and hold harmless EBCE and the Indemnitees shall extend to claims, actions, suits, proceedings, damages, liabilities, reasonable costs, reasonable expenses (collectively, “Claims”), including attorneys’ fees, arising out of, connected with or resulting from any acts or omission to act by the Borrower (or the Borrower’s officers, employees, agents or contractors) in connection with or related to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code.
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damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, the Loan or the use of the proceeds thereof, or the Project. (d) The Borrower shall promptly pay the reasonable out-of-pocket expenses and disbursements of EBCE, including reasonable attorney fees, and related expenses and disbursements, in connection with: (A) obtaining by the Borrower of any waiver or consent under this Agreement, the Loan or any Event of Default hereunder, (B) the preparation, execution, delivery, administration, defense and enforcement or preservation of rights in connection with a workout, restructuring or waiver with respect to the Loan, and (C) the occurrence of an Event of Default and collection and other enforcement proceedings resulting therefrom.
(e) The Borrower shall pay all amounts due under this Section 5.08 within 20 days after written demand.
(f) The provisions of this Section 5.08 shall survive the repayment of the Loan and the termination of this Agreement.

Section V.09Equal Opportunity Employer.

The Borrower shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.

Section V.10Further Assurances.

The Borrower shall preserve and protect the rights of EBCE pursuant to this Agreement. From and after the date of issuance of the Promissory Note, the Borrower will not contest the validity or enforceability of the Promissory Note or Loan Agreement.

The Borrower shall take such action, and make, execute and deliver any and all such further instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Loan Agreement, and for the better assuring and confirming unto EBCE of its rights and benefits provided in the Loan Documents.

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Article VI. EVENTS OF DEFAULT
Section VI.01 Events of Default.

The occurrence of any of the following events shall constitute an “Event of Default” hereunder:
(a) The Borrower shall have failed to make a payment required hereunder when after payment becomes due, EBCE sends written notice to Borrower and such failure continues for five days after the date of written notice; (b) Failure by the Borrower to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in Section

6.01(a), for a period of 30 days after written notice, specifying such failure and requesting that it be remedied, is given to the Borrower by EBCE, unless EBCE agrees in writing to an extension of such time prior to its expiration; provided, if the failure stated in the notice cannot be corrected within the applicable period, EBCE will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the Borrower within the applicable period and diligently pursued until the default is corrected; or (c) Any representation or warranty made by the Borrower set forth herein or in any information concerning the Borrower’s business operation or financial condition submitted by the Borrower to EBCE in connection with the Loan proves to have been incorrect in any material respect when made; or
(d) The Borrower is dissolved or liquidated or merged with or into any other entity; or, if Borrower ceases to exist in its present form and (where applicable) in good standing and duly qualified under the laws of the State; or all or substantially all of the assets of Borrower are sold or otherwise transferred; or (e) The Borrower is subject to an order for relief by the bankruptcy court, or is unable or admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of creditors; or the Borrower applies for or consents to the appointment of any receiver, trustee or similar official for Borrower or for all or any part of its assets (or an appointment is made without its consent and the appointment continues undischarged and unstayed for sixty (60) days); or the Borrower institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, rehabilitation or similar proceeding relating to Borrower or to all or any part of its assets under the laws of any jurisdiction (or a proceeding is instituted without its consent and continues undismissed and unstayed for more than sixty (60) days); or any judgment, writ, warrant of attachment or execution or similar process is issued or levied against the improvements or any other assets of Borrower and is not released, vacated or fully bonded within sixty (60) days after its issue or levy; or
(f) The Borrower is in default of its obligations under any other agreement entered into with EBCE, and the default remains uncured following the expiration of any applicable cure periods.

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Section VI.02 Default Rate; Acceleration.
(a) Pursuant to Section 2.01(d), upon the occurrence of an Event of Default and so long as it is continuing and remains uncured, the Loan shall bear interest at the Default Rate.
(b) Upon the occurrence of an Event of Default, EBCE may, by notice in writing to the Borrower, declare the principal of the Loan then outstanding, the interest accrued thereon and any other charges due hereunder and under the Promissory Note, to be due and payable immediately, and upon any such declaration, the same shall become and shall be immediately due and payable, without protest, presentment, notice of dishonor, demand or further notice of any kind, all of which the Borrower expressly waives.

Section VI.03 Other Remedies; Remedies Not Exclusive.
(a) EBCE may take whatever other action at law or in equity may appear necessary or desirable to enforce its rights under this Agreement. (b) No remedy conferred upon or reserved to EBCE in this Agreement is intended to be exclusive of any other remedy. Every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing, at law or in equity or by statute or otherwise, and may be exercised without exhausting and without regard to any other remedy conferred by law.

Section VI.04 Non-Waiver.

A waiver by EBCE of any default or breach of duty or contract hereunder shall not affect any subsequent default or breach of duty or contract, or impair any rights or remedies on any such subsequent default or breach. No delay or omission by a party hereunder to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence in such default, and every power and remedy conferred upon the party by law or by this Agreement may be enforced and exercised from time to time and as often as shall be deemed expedient by EBCE.

Section VI.05 Restoration of Positions.

If a suit, action or proceeding to enforce any right or exercise any remedy is abandoned or determined adversely to EBCE, the Borrower and EBCE shall be restored to their former positions, rights and remedies as if such suit, action or proceeding had not been brought or taken, subject to any court directions or agreements by the Parties.

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Article VII. MISCELLANEOUS
Section VII.01 Notices.

Any notice, request, complaint, demand or other communication under this Loan Agreement shall be given by first certified or registered mail or personal delivery to the party entitled thereto at its address set forth below, by overnight mail, as a .pdf attachment to electronic mail, or by telecopy or other form of telecommunication (provided, for any electronic mail, telecopy or other form of telecommunication, the sender shall obtain confirmation of receipt of the communication by the receiving party). Notice shall be effective either: (i) upon transmission by telecopy or other form of telecommunication, (ii) 48 hours after deposit in the United States mail, postage prepaid, (iii) in the case of overnight mail, upon delivery to the addressed destination, or (iv) in the case of personal delivery to any person, upon actual receipt. Each entity below may, by written notice to the other party from time to time, modify addresses, telephone or e-mail addresses to which communications are to be given under this Agreement.

To EBCE: East Bay Community Energy
1999 Harrison Street, Suite 800
Oakland, CA 94612
Attention: TITLE
Telephone: (XXX) XXX-XXXX
E-mail: XXXX
To Borrower: BlocPower
1623 Flatbush Avenue, Box #222
Brooklyn New York 11210
Attention: General Counsel
E-mail: [email protected]
Section VII.02 No Third Party Beneficiaries.

Nothing in this Agreement or the Promissory Note, expressed or implied, is intended to give to any entity or person other than EBCE and the Borrower any right, remedy or claim under or by reason of this Loan Agreement.

Section VII.03 EBCE Obligations Limited to Funding of Loan.

EBCE’s sole obligation under this Agreement is limited to providing the funds for the Loan as described in this Agreement, subject to the conditions precedent set forth herein. Under no circumstances, including breach of this Agreement, will EBCE be liable to the Borrower for any special or consequential damages arising out of actions or failure to act by EBCE in connection with the Loan or the Loan Documents.

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Section VII.04 Inurement; Assignment.

The benefits of this Agreement shall inure to the successors and assigns of EBCE and the Borrower, as applicable; provided, that the Borrower may not assign this Agreement or the Promissory Note (or delegate any obligations hereunder or thereunder) without EBCE’s prior consent of EBCE, which may be given or withheld in EBCE’s sole and absolute discretion. EBCE may transfer or assign its interest in this Agreement and the Note.

Section VII.05 Amendments.

This Agreement may be amended only in writing signed by the parties hereto.

Section VII.06 Severability.

The unenforceability or invalidity of any provision or provisions of this Agreement (as determined by a court of competent jurisdiction) as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other provisions or circumstances, and all provisions of this Agreement, in all other respects, shall remain valid and enforceable.

Section VII.07 Integration.

This Agreement, together with all exhibits hereto, constitutes the entire understanding and agreement of the parties with respect to the subject matters hereof, and integrates all of the terms and conditions mentioned herein or incidental thereto, and supersedes all prior or contemporaneous negotiations, discussions and previous agreements between EBCE and the Borrower concerning all or any part of the subject matter of this Agreement.

Section VII.08 Business Days.

Whenever a scheduled Payment Date is not a Business Day, such payment may be made on the next succeeding Business Day. When any other action is provided for in this Agreement to be done on a day within a specified time period, and the day or the last day of the period falls on a day other than a Business Day, such action may be performed on the next ensuing Business Day with the same effect as though performed on the appointed day or within the specified period.

Section VII.09 Governing Law; Venue.

This Agreement shall be governed and construed in accordance with the laws of the State of California. Venue for any legal action arising out of this Agreement shall be Alameda County, California.

Agenda Item: 11
Page39
Section VII.10 Execution in Counterparts.

This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts shall together constitute but one and the same instrument.

IN WITNESS WHEREOF, each of EBCE and the Borrower has caused this Agreement to be signed in its name by its duly authorized representative, all as of the date first above written.

EBCE:

East Bay Community Energy,
a California municipal corporation
By:

Nick Chaset
CEO

BORROWER
BlocPower,
a Delaware limited liability company
By:

Cullen Kasunic
CFO
APPROVED AS TO FORM:

By:

Inder Khalsa
General Counsel
Agenda Item: 11
Page40

EXHIBIT A
PAYMENT SCHEDULE3
Date Month Draw
Down
Begin
Balance
Interest Payment End
Balance
1/31/2022 0 $500,000 $(500,000)
2/28/2022 1 $(500,000)
3/31/2022 2 $(500,000)
4/30/2022 3 $(500,000)
5/31/2022 4 $(500,000)
6/30/2022 5 $(500,000)
7/31/2022 6 $500,000 $(1,000,000)
8/31/2022 7 $(1,000,000)
9/30/2022 8 $(1,000,000)
10/31/2022 9 $(1,000,000)
11/30/2022 10 $(1,000,000)
12/31/2022 11 $(1,000,000)
1/31/2023 12 $(1,000,000) $(4,583) $8,142 $(996,442)
2/28/2023 13 $(996,442) $(4,567) $8,142 $(992,867)
3/31/2023 14 $(992,867) $(4,551) $8,142 $(989,276)
4/30/2023 15 $(989,276) $(4,534) $8,142 $(985,668)
5/31/2023 16 $(985,668) $(4,518) $8,142 $(982,044)
6/30/2023 17 $(982,044) $(4,501) $8,142 $(978,403)
7/31/2023 18 $(978,403) $(4,484) $8,142 $(974,746)
8/31/2023 19 $(974,746) $(4,468) $8,142 $(971,072)
9/30/2023 20 $(971,072) $(4,451) $8,142 $(967,381)
10/31/2023 21 $(967,381) $(4,434) $8,142 $(963,673)
3 Subject to adjustments pursuant to the terms of the Loan Agreement in the event of a prepayment or an Event of Default.

Agenda Item: 11
Page41
11/30/2023 22 $(963,673) $(4,417) $8,142 $(959,948)
12/31/2023 23 $(959,948) $(4,400) $8,142 $(956,206)
1/31/2024 24 $(956,206) $(4,383) $8,142 $(952,447)
2/29/2024 25 $(952,447) $(4,365) $8,142 $(948,670)
3/31/2024 26 $(948,670) $(4,348) $8,142 $(944,877)
4/30/2024 27 $(944,877) $(4,331) $8,142 $(941,066)
5/31/2024 28 $(941,066) $(4,313) $8,142 $(937,237)
6/30/2024 29 $(937,237) $(4,296) $8,142 $(933,391)
7/31/2024 30 $(933,391) $(4,278) $8,142 $(929,527)
8/31/2024 31 $(929,527) $(4,260) $8,142 $(925,646)
9/30/2024 32 $(925,646) $(4,243) $8,142 $(921,747)
10/31/2024 33 $(921,747) $(4,225) $8,142 $(917,829)
11/30/2024 34 $(917,829) $(4,207) $8,142 $(913,894)
12/31/2024 35 $(913,894) $(4,189) $8,142 $(909,941)
1/31/2025 36 $(909,941) $(4,171) $8,142 $(905,970)
2/28/2025 37 $(905,970) $(4,152) $8,142 $(901,981)
3/31/2025 38 $(901,981) $(4,134) $8,142 $(897,973)
4/30/2025 39 $(897,973) $(4,116) $8,142 $(893,947)
5/31/2025 40 $(893,947) $(4,097) $8,142 $(889,903)
6/30/2025 41 $(889,903) $(4,079) $8,142 $(885,840)
7/31/2025 42 $(885,840) $(4,060) $8,142 $(881,758)
8/31/2025 43 $(881,758) $(4,041) $8,142 $(877,657)
9/30/2025 44 $(877,657) $(4,023) $8,142 $(873,538)
10/31/2025 45 $(873,538) $(4,004) $8,142 $(869,400)
11/30/2025 46 $(869,400) $(3,985) $8,142 $(865,243)
12/31/2025 47 $(865,243) $(3,966) $8,142 $(861,067)
1/31/2026 48 $(861,067) $(3,947) $8,142 $(856,872)
2/28/2026 49 $(856,872) $(3,927) $8,142 $(852,658)
3/31/2026 50 $(852,658) $(3,908) $8,142 $(848,424)
4/30/2026 51 $(848,424) $(3,889) $8,142 $(844,171)
5/31/2026 52 $(844,171) $(3,869) $8,142 $(839,898)
6/30/2026 53 $(839,898) $(3,850) $8,142 $(835,606)
7/31/2026 54 $(835,606) $(3,830) $8,142 $(831,294)
Agenda Item: 11
Page42
8/31/2026 55 $(831,294) $(3,810) $8,142 $(826,962)
9/30/2026 56 $(826,962) $(3,790) $8,142 $(822,611)
10/31/2026 57 $(822,611) $(3,770) $8,142 $(818,239)
11/30/2026 58 $(818,239) $(3,750) $8,142 $(813,848)
12/31/2026 59 $(813,848) $(3,730) $8,142 $(809,436)
1/31/2027 60 $(809,436) $(3,710) $8,142 $(805,004)
2/28/2027 61 $(805,004) $(3,690) $8,142 $(800,552)
3/31/2027 62 $(800,552) $(3,669) $8,142 $(796,080)
4/30/2027 63 $(796,080) $(3,649) $8,142 $(791,587)
5/31/2027 64 $(791,587) $(3,628) $8,142 $(787,073)
6/30/2027 65 $(787,073) $(3,607) $8,142 $(782,539)
7/31/2027 66 $(782,539) $(3,587) $8,142 $(777,983)
8/31/2027 67 $(777,983) $(3,566) $8,142 $(773,407)
9/30/2027 68 $(773,407) $(3,545) $8,142 $(768,810)
10/31/2027 69 $(768,810) $(3,524) $8,142 $(764,192)
11/30/2027 70 $(764,192) $(3,503) $8,142 $(759,553)
12/31/2027 71 $(759,553) $(3,481) $8,142 $(754,893)
1/31/2028 72 $(754,893) $(3,460) $8,142 $(750,211)
2/29/2028 73 $(750,211) $(3,438) $8,142 $(745,508)
3/31/2028 74 $(745,508) $(3,417) $8,142 $(740,783)
4/30/2028 75 $(740,783) $(3,395) $8,142 $(736,036)
5/31/2028 76 $(736,036) $(3,373) $8,142 $(731,268)
6/30/2028 77 $(731,268) $(3,352) $8,142 $(726,478)
7/31/2028 78 $(726,478) $(3,330) $8,142 $(721,666)
8/31/2028 79 $(721,666) $(3,308) $8,142 $(716,832)
9/30/2028 80 $(716,832) $(3,285) $8,142 $(711,975)
10/31/2028 81 $(711,975) $(3,263) $8,142 $(707,097)
11/30/2028 82 $(707,097) $(3,241) $8,142 $(702,196)
12/31/2028 83 $(702,196) $(3,218) $8,142 $(697,273)
1/31/2029 84 $(697,273) $(3,196) $8,142 $(692,327)
2/28/2029 85 $(692,327) $(3,173) $8,142 $(687,358)
3/31/2029 86 $(687,358) $(3,150) $8,142 $(682,367)
4/30/2029 87 $(682,367) $(3,128) $8,142 $(677,352)
Agenda Item: 11
Page43
5/31/2029 88 $(677,352) $(3,105) $8,142 $(672,315)
6/30/2029 89 $(672,315) $(3,081) $8,142 $(667,255)
7/31/2029 90 $(667,255) $(3,058) $8,142 $(662,171)
8/31/2029 91 $(662,171) $(3,035) $8,142 $(657,065)
9/30/2029 92 $(657,065) $(3,012) $8,142 $(651,934)
10/31/2029 93 $(651,934) $(2,988) $8,142 $(646,781)
11/30/2029 94 $(646,781) $(2,964) $8,142 $(641,603)
12/31/2029 95 $(641,603) $(2,941) $8,142 $(636,402)
1/31/2030 96 $(636,402) $(2,917) $8,142 $(631,177)
2/28/2030 97 $(631,177) $(2,893) $8,142 $(625,928)
3/31/2030 98 $(625,928) $(2,869) $8,142 $(620,656)
4/30/2030 99 $(620,656) $(2,845) $8,142 $(615,358)
5/31/2030 100 $(615,358) $(2,820) $8,142 $(610,037)
6/30/2030 101 $(610,037) $(2,796) $8,142 $(604,691)
7/31/2030 102 $(604,691) $(2,772) $8,142 $(599,321)
8/31/2030 103 $(599,321) $(2,747) $8,142 $(593,926)
9/30/2030 104 $(593,926) $(2,722) $8,142 $(588,507)
10/31/2030 105 $(588,507) $(2,697) $8,142 $(583,062)
11/30/2030 106 $(583,062) $(2,672) $8,142 $(577,593)
12/31/2030 107 $(577,593) $(2,647) $8,142 $(572,098)
1/31/2031 108 $(572,098) $(2,622) $8,142 $(566,579)
2/28/2031 109 $(566,579) $(2,597) $8,142 $(561,034)
3/31/2031 110 $(561,034) $(2,571) $8,142 $(555,463)
4/30/2031 111 $(555,463) $(2,546) $8,142 $(549,867)
5/31/2031 112 $(549,867) $(2,520) $8,142 $(544,246)
6/30/2031 113 $(544,246) $(2,494) $8,142 $(538,599)
7/31/2031 114 $(538,599) $(2,469) $8,142 $(532,925)
8/31/2031 115 $(532,925) $(2,443) $8,142 $(527,226)
9/30/2031 116 $(527,226) $(2,416) $8,142 $(521,501)
10/31/2031 117 $(521,501) $(2,390) $8,142 $(515,749)
11/30/2031 118 $(515,749) $(2,364) $8,142 $(509,972)
12/31/2031 119 $(509,972) $(2,337) $8,142 $(504,167)
1/31/2032 120 $(504,167) $(2,311) $8,142 $(498,336)
Agenda Item: 11
Page44
2/29/2032 121 $(498,336) $(2,284) $8,142 $(492,478)
3/31/2032 122 $(492,478) $(2,257) $8,142 $(486,594)
4/30/2032 123 $(486,594) $(2,230) $8,142 $(480,682)
5/31/2032 124 $(480,682) $(2,203) $8,142 $(474,744)
6/30/2032 125 $(474,744) $(2,176) $8,142 $(468,778)
7/31/2032 126 $(468,778) $(2,149) $8,142 $(462,785)
8/31/2032 127 $(462,785) $(2,121) $8,142 $(456,764)
9/30/2032 128 $(456,764) $(2,094) $8,142 $(450,716)
10/31/2032 129 $(450,716) $(2,066) $8,142 $(444,640)
11/30/2032 130 $(444,640) $(2,038) $8,142 $(438,536)
12/31/2032 131 $(438,536) $(2,010) $8,142 $(432,404)
1/31/2033 132 $(432,404) $(1,982) $8,142 $(426,244)
2/28/2033 133 $(426,244) $(1,954) $8,142 $(420,056)
3/31/2033 134 $(420,056) $(1,925) $8,142 $(413,840)
4/30/2033 135 $(413,840) $(1,897) $8,142 $(407,595)
5/31/2033 136 $(407,595) $(1,868) $8,142 $(401,321)
6/30/2033 137 $(401,321) $(1,839) $8,142 $(395,019)
7/31/2033 138 $(395,019) $(1,811) $8,142 $(388,687)
8/31/2033 139 $(388,687) $(1,781) $8,142 $(382,327)
9/30/2033 140 $(382,327) $(1,752) $8,142 $(375,938)
10/31/2033 141 $(375,938) $(1,723) $8,142 $(369,519)
11/30/2033 142 $(369,519) $(1,694) $8,142 $(363,071)
12/31/2033 143 $(363,071) $(1,664) $8,142 $(356,593)
1/31/2034 144 $(356,593) $(1,634) $8,142 $(350,086)
2/28/2034 145 $(350,086) $(1,605) $8,142 $(343,548)
3/31/2034 146 $(343,548) $(1,575) $8,142 $(336,981)
4/30/2034 147 $(336,981) $(1,544) $8,142 $(330,384)
5/31/2034 148 $(330,384) $(1,514) $8,142 $(323,757)
6/30/2034 149 $(323,757) $(1,484) $8,142 $(317,099)
7/31/2034 150 $(317,099) $(1,453) $8,142 $(310,410)
8/31/2034 151 $(310,410) $(1,423) $8,142 $(303,691)
9/30/2034 152 $(303,691) $(1,392) $8,142 $(296,941)
10/31/2034 153 $(296,941) $(1,361) $8,142 $(290,161)
Agenda Item: 11
Page45
11/30/2034 154 $(290,161) $(1,330) $8,142 $(283,349)
12/31/2034 155 $(283,349) $(1,299) $8,142 $(276,506)
1/31/2035 156 $(276,506) $(1,267) $8,142 $(269,631)
2/28/2035 157 $(269,631) $(1,236) $8,142 $(262,725)
3/31/2035 158 $(262,725) $(1,204) $8,142 $(255,788)
4/30/2035 159 $(255,788) $(1,172) $8,142 $(248,818)
5/31/2035 160 $(248,818) $(1,140) $8,142 $(241,817)
6/30/2035 161 $(241,817) $(1,108) $8,142 $(234,784)
7/31/2035 162 $(234,784) $(1,076) $8,142 $(227,718)
8/31/2035 163 $(227,718) $(1,044) $8,142 $(220,620)
9/30/2035 164 $(220,620) $(1,011) $8,142 $(213,489)
10/31/2035 165 $(213,489) $(978) $8,142 $(206,326)
11/30/2035 166 $(206,326) $(946) $8,142 $(199,130)
12/31/2035 167 $(199,130) $(913) $8,142 $(191,901)
1/31/2036 168 $(191,901) $(880) $8,142 $(184,639)
2/29/2036 169 $(184,639) $(846) $8,142 $(177,343)
3/31/2036 170 $(177,343) $(813) $8,142 $(170,014)
4/30/2036 171 $(170,014) $(779) $8,142 $(162,652)
5/31/2036 172 $(162,652) $(745) $8,142 $(155,255)
6/30/2036 173 $(155,255) $(712) $8,142 $(147,825)
7/31/2036 174 $(147,825) $(678) $8,142 $(140,361)
8/31/2036 175 $(140,361) $(643) $8,142 $(132,863)
9/30/2036 176 $(132,863) $(609) $8,142 $(125,330)
10/31/2036 177 $(125,330) $(574) $8,142 $(117,762)
11/30/2036 178 $(117,762) $(540) $8,142 $(110,160)
12/31/2036 179 $(110,160) $(505) $8,142 $(102,523)
1/31/2037 180 $(102,523) $(470) $8,142 $(94,852)
2/28/2037 181 $(94,852) $(435) $8,142 $(87,145)
3/31/2037 182 $(87,145) $(399) $8,142 $(79,402)
4/30/2037 183 $(79,402) $(364) $8,142 $(71,624)
5/31/2037 184 $(71,624) $(328) $8,142 $(63,811)
6/30/2037 185 $(63,811) $(292) $8,142 $(55,962)
7/31/2037 186 $(55,962) $(256) $8,142 $(48,076)
Agenda Item: 11
Page46
8/31/2037 187 $(48,076) $(220) $8,142 $(40,155)
9/30/2037 188 $(40,155) $(184) $8,142 $(32,197)
10/31/2037 189 $(32,197) $(148) $8,142 $(24,203)
11/30/2037 190 $(24,203) $(111) $8,142 $(16,172)
12/31/2037 191 $(16,172) $(74) $8,142 $(8,105)
1/31/2038 192 $(8,105) $(37) $8,142 $(0)
Agenda Item: 11
Page47

EXHIBIT B

FORM OF PROMISSORY NOTE

PROMISSORY NOTE
Note Amount: US $1,000,000.00 Date: ____________

FOR VALUE RECEIVED, BlocPower Energy Services 3, LLC, a Delaware limited liability company (the “Borrower”) promises to pay to East Bay Community Energy Authority, a joint powers authority formed under the laws of the State of California (the “EBCE”), the sum of ONE MILLION AND NO/100 DOLLARS ($100,000.00), plus accrued interest, and other charges owing hereunder.

This Promissory Note (the “Note”) evidences that certain Loan made pursuant to the Loan Agreement, dated as of __________, 2021 (the “Loan Agreement”), by and between EBCE and Borrower. Capitalized term used but not defined herein have the meanings set forth in the Loan Agreement. The Loan Agreement (as the same many be amended and supplemented from time to time pursuant to the terms thereof) is hereby incorporated as though set forth herein.

The Loan was made to assist the Borrower with respect to a project to expand the local supply of specialized incubator space.

1. Loan Terms; Payment Schedule
(a) So long as no Event of Default has occurred and continuing,[ interest shall accrue at the rate of five and 1/2 percent (5.5%) per annum]. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months. (b) The Borrower shall make principal and interest payment on the first of each month, commencing December 1, 2022, in the amounts set forth the Payment Schedule set forth in Exhibit A. As reflected in the Payment Schedule, in the absence of any prepayment (or default), the final Payment Date is ____________. (c) Subject to the provisions of the Loan Agreement, the Borrower may prepay all or a portion of the outstanding principal amount of the Loan on any Payment Date, in addition to scheduled principal and interest payment due on that Payment Date. Unless otherwise agreed in writing by the CEO of EBCE, any partial prepayment shall be applied to scheduled principal payments in inverse order of maturity (i.e., with the latest due date).

At least 15 days before any prepayment, the Borrower shall send to EBCE: (i) a written notice specifying the prepayment amount, and (ii) unless no principal amount of the Loan will remain outstanding after such prepayment, a proposed revised Payment Schedule to become effective after such prepayment. EBCE shall notify the Borrower at least five Agenda Item: 11
Page48
days before the proposed prepayment date whether such revised Payment Schedule is acceptable to EBCE. If EBCE has any objection to the proposed revised Payment Schedule, then the parties shall cooperate in good faith to make mutually acceptable revisions. No prepayment shall be made or accepted until EBCE and the Borrower mutually agree on a revised Payment Schedule.

2. No Waiver by EBCE
A waiver by EBCE of any default or breach of duty or contract hereunder or under the Loan Agreement shall not affect any subsequent default or breach of duty or contract, or impair any rights or remedies on any such subsequent default or breach. No delay or omission by EBCE to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence in such default, and every power and remedy conferred upon EBCE hereby or this Note or the Loan Agreement may be enforced and exercised from time to time and as often as shall be deemed expedient by EBCE.

3. Severability; Governing Law; Amendment
(a) The unenforceability or invalidity of any provision or provisions of this Note (as determined by a court of competent jurisdiction) as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other provisions or circumstances, and all provisions of this Note, in all other respects, shall remain valid and enforceable.
(b) This Note has been executed and delivered by Borrower in the State of California and is to be governed and construed in accordance with the laws thereof. (c) Neither this Note nor any term hereof may be waived, amended, discharged, modified, changed, or terminated orally; nor shall any waiver of any provision hereof be effective except by an instrument in writing signed by Borrower and EBCE.

4. Certain Waivers by Borrower
The Borrower hereby waives for itself and any person or entity who now or may hereafter become liable with respect to this Note, to the fullest extent permitted by law, diligence, presentment, protest and demand, notice of dishonor and all other notices and demands without in any way affecting the liability of the Borrower and any other person or entity who now or may hereafter become liable with respect to this Note. The Borrower further waives, to the full extent permitted by law, the right to plead any and all statutes of limitations.

5. Assignment
The Borrower may not assign this Note (or delegate any obligations hereunder) without EBCE’s prior written consent, which may be given or withheld in EBCE’s sole and absolute discretion. EBCE may transfer or assign its interest in this Note.

Agenda Item: 11
Page49
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name and on its behalf by its CEO, on the date first written above.

EBCE:

East Bay Community Energy,
a California municipal corporation
By:

Nick Chaset
CEO

BORROWER
BlocPower,
a Delaware limited liability company
By:

Cullen Kasunic
CFO
Agenda Item: 11
Page50

EXHIBIT C

FORM OF OFFICERS CERTIFICATE

CERTIFICATE OF

BLOCPOWER CEO AND CFO
with reference to
Loan Agreement, dated as of ______, 2022 (the “Loan Agreement”), by and between East Bay Community Energy, as Lender,
and BlocPower, a Delaware limited liability company (“BlocPower”), as Borrower
With reference to the above-captioned Loan Agreement, the undersigned hereby state and certify as follows:
(a) The undersigned Donnel Baird is the duly acting Chief Executive Officer of BlocPower, and the undersigned Cullen Kasunic is the duly acting Chief Financial Officer of BlocPower.
(b) By all necessary actions, BlocPower has duly authorized and approve the execution and delivery of the Loan Agreement and the Promissory Note, and BlocPower has duly executed and deliver the same.
(c) The undersigned are familiar with, and understand, the provisions of the Loan Agreement.
(d) The representations of BlocPower contained in the Loan Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date of.

Capitalized terms used but not defined herein have the meanings ascribed to them in the Loan Agreement.

Each of the undersigned declare under penalty of perjury under the laws of the State of California that the statements contained herein are true and correct.

Date: January 20, 2022

Donnel Baird

Cullen Kasunic
Agenda Item: 11
Page51

EXHIBIT D

CALIFORNIA LABOR CODE COMPLIANCE

1. Borrower (below for the purposes of this Exhibit, “Contractor”) acknowledges that in view of the financial assistance provided by EBCE to the Project, work for the the Project is subject to the provisions of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works and EBCE.

Contractor agrees to be bound, and to require any and all contractors and subcontractors performing such work to be bound, by all the provisions thereof as though set forth in full herein.

2. Work for the Project is considered the same as a public work project and requires the payment of prevailing wages for the work or craft in which the worker is employed for any public work done under the contract by Contractor or by any subcontractor pursuant to Section 1771 of the Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, EBCE has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification, or type of workman needed to execute this contract from the Director of the Department of Industrial Relations. These rates are on file with EBCE’s Clerk or may be obtained at http://www.dir.ca.gov/OPRL/DPreWageDetermination.htm.

Copies may be obtained at cost at EBCE’s Clerk's office. Contractor shall post a copy of such wage rates at the job site and shall pay the adopted prevailing wage rates as a minimum. Contractor shall comply with the provisions of Sections 1775, 1776, 1777.5, 1777.6, and 1813 of the Labor Code. Pursuant to the provisions of 1775 of the Labor Code, Contractor shall forfeit to EBCE, as a penalty, not more than $200.00 for each calendar day, or portion thereof, for each laborer, worker, or mechanic employed, paid less than the stipulated prevailing rates for any work done under this contract, by the Contractor or by any subcontractor thereunder, in violation of the provisions of this Agreement.

3. In accordance with Labor Code Sections 1725.5 and 1771.1, and except for projects involving construction, alteration, demolition, installation, or repair work of $25,000 or less, or maintenance work of $15,000 or less, no contractor or subcontractor shall be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract unless currently registered and qualified to perform public work pursuant to Section 1725.5 [with limited exceptions for bid purposes, only, pursuant to Labor Code Section 1771.1(a)].

4. Pursuant to Labor Code Section 1776, Contractor shall maintain and make available an accurate record showing the name of each worker and hours worked each day and each week by each worker employed by Contractor performing Agenda Item: 11
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services covered by this Agreement. Contractor and its subcontractors shall furnish electronic certified payroll records to the Labor Commissioner in accordance with Labor Code Section 1771.4. The Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations (the “DIR”).

The Contractor is responsible for compliance with Section 1776 by itself and all of its subcontractors. This Project is subject to compliance monitoring and enforcement by the DIR. The Contractor shall post job site notices, as prescribed by regulation.

5. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Code of Regulations Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. The Contractor shall be responsible for compliance with these Sections for all apprenticeable occupations. Before commencing Work on this Project, the Contractor shall provide EBCE with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) Days after concluding Work, Contractor and each of its Subcontractors shall submit to EBCE a verified statement of the journeyman and apprentice hours performed under this Contract.

6. Contractor agrees to comply with the provisions of California Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to EBCE, forfeit twenty-five dollars ($25) for each worker employed in the execution of the contract by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the California Labor Code.

7. California Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Contractor hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
Date Signature ______________________
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EXHIBIT E
Terms of Projects to Be Financed
● Overview
BlocPower is a Black-owned climate tech leader focused on Smarter, Healthier, Greener Buildings for all. We have deep experience delivering electrification and energy efficiency projects in low-and-moderate-income (LMI) communities and will engage, on behalf of EBCE, a program to deliver clean, healthy, electrified buildings.

The program will leverage $1M of project finance made available by EBCE to fund building remediation and retrofit projects in EBCE service territory.

The investment will provide a scalable financing opportunity to re-invest the returns from customer payments over time into additional projects. (The scope of this effort does not require EBCE to do so but will provide a model for how that can be executed). BlocPower will add value to the proposed project by implementing workforce development services in the EBCE service territory. BlocPower will provide high-road clean energy jobs and democratizing wealth creation opportunities for local communities.

In addition to project finance, EBCE will offer $400,000 in incentives to further enable the above program.
● Use of Funds
- Targeting [60] households (single or multi-family units less than (5 units) at an average incentive level of [~$7,000] to further enable the financials of the project through 2022-2023.
- If BlockPower is not able to enroll sufficient customers to utilize the full $1M in EBCE project capital, BlocPower will return unused project capital to EBCE - BlocPower will, with their local partners, engage in Customer acquisition, education, project development, financing, construction management, and ongoing O&M, as applicable.
- Sufficient underwriting to ensure a prudent investment ● EBCE’s investment will serve the following
● Public Purpose:
- Invest in household health remediations, energy efficiency and electrification for low-to-moderate income (LMI) households (defined as households below 12 0% of area median income)
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- Deliver insights and analysis for policy to further support and engage under-served and energy-burdened communities on a quarterly basis, and at the conclusion of the program
- Provide high-road clean energy jobs, democratizing wealth creation opportunities ● Types of Projects Funded:
- Energy Efficiency Upgrades
- LED lighting
- Air sealing, insulation
- High-efficiency window treatments
- Energy-efficient appliances
- Electrification / Fuel switching
- Electrical upgrades
- Air source heat pumps
- Heat pump water heaters
- Induction cooktops
- Efficient washers & dryers
- Retrofitting Measures
- Smart thermostats
- Hazardous materials abatement (lead, asbestos, mold)
- IoT monitoring & controls for M&V
- Low-flow water fixtures
- Clean Energy Projects
- Roofing upgrades
- PV
- Solar + Storage (Battery storage)
- Solar water heating
- EV charging infrastructure
● Further Details:

BlocPower will continue to invest in the East Bay market, expanding on existing partnerships with local developers such as Revalue.io, and leveraging existing incentives and capital available through BayREN, the CPUC TECH program and additional sources to provide this offer to local building owners. Prevailing wages will be applied to those projects receiving EBCE incentives and financing, as applicable. Documentation will be provided to EBCE on a customer-basis as requested. EBCE to provide format for customer enrollment and savings data to match with EBCE system of customer record.

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● Quality Assurance
● Customer Underwriting Overview
The target clients are building owners, not tenants. The buildings may have low/moderate income tenants, regular market rate tenants, or be co-ops or condos. Low income residents may receive rental payment support from government programs, paid directly to building owners. Building owners may be non-profits.

Materials BlocPower will gather:
● Standard financials (at least 2 years income statement/balance sheet) ● Tax return (at least one year, to match financials; tax returns may be substituted for financials if needed, at BlocPower discretion)
● Rent roll (current and prior year, to evaluate vacancy) ● Debt details (mortgage terms, covenants to estimate DSCR) ● Recent property appraisal (This is typically from the client’s mortgage or a refinance.

If old, or not available, the market value of the property will be estimated directly via comps.)
● DOB violations
● Business credit report (Experian, D&B, Equifax, etc.) ● 12 months of utility bills (this will show both the client’s rates, and whether there have been any late payments in the last 12 months)
BlocPower evaluates global DSCR as a primary means of determining if the client will be able to meet project payment obligations. This is calculated as EBITDA over all financing obligations, including those related to our project. We will accept personal or corporate guarantors to help meet the obligations if it appears if DSCR is tight, or the building cannot meet the obligations on its own. The income and obligations of the guarantors will be included in global DSCR calculation. We will factor the expected net energy savings into the global DSCR calculation, as they should reduce operating expenses. We will however include some margin of safety on the savings.

We will not accept a bankruptcy within 3 years, unless there are heavy mitigating factors.

We will similarly not accept anyone with a global DSCR less than 1.20x without significant mitigation. Historical vacancy, and debt-to-equity ratio of the client will also be taken into account. Excessive DOB violations will be a negative indicator, unless the measures to be implemented will address the source of violations. The client must be current on their utility bills before entering into an agreement, and delinquencies over 30 days must be explained, with additional mitigation provided.

We do not take any liens on the underlying real estate.

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● Credit Evaluation
When evaluating the credit of a real estate business, primary factors include coverage of current debt obligations, leverage, property value, operating performance, and history of payment. In our analysis, these are expressed respectively by:
● Debt Service Coverage Ratio, determined by looking at all debt held by the entity, and dividing this by its Net Operating Income or EBITDA. ● Debt to Equity ratio, determined by comparing the entity’s debt outstanding against an acceptable market valuation of the property.
● Rents and Operations, determined by evaluating the property’s rental history, operating costs, and Net Operating Income to determine whether the building is being well managed.
● Creditworthiness, determined by evaluating a combination of the property’s business credit (as reported by Experian, D&B, Equifax, or other agencies), payment history on utility bills (as reported on the 12 months of utility bills collected from the client), and violation history (publicly available through the local municipalities) ● Criteria
Required Criteria
● No bankruptcy within the last three years
● No outstanding major judgements or lien
Strong positive indicators, lack of which may be adjusted only with considerable mitigation and/or suitable explanation
● DSCR equal to 1.20x or greater, including any net savings from the project, subject to a 20% margin of safety on the savings estimates
● Debt-to-Equity ratio of 80% or below, including the termination value of our lease obligation
General negative indicators, requiring explanation
● Utility bill delinquencies 30+ days past due in reviewed period ● Average vacancies over 15% for multi-family properties in reviewed period ● Excessive DOB violations will be a negative indicator as well, unless the measures to be implemented will address the source of violations.

Acceptable mitigants
● Personal guarantee, typically from a substantial equity holder in the entity ● Corporate guarantee, typically from a parent company or other related entity ● Down-payment of some portion of the system costs. This improves DSCR and decreases exposure.
● Shortened lease term, with associated increase to monthly payments ● Increased monthly payments. While acting as a net drag on DSCR, increased revenue can serve to mitigate against increased risk in certain areas.

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● Security Package
BlocPower places a UCC 1 filed at the county level for the assets owned and installed at the customer property. This enables us to remove the property as needed, while also serving as a lien should the client attempt to sell their building. In addition, BlocPower maintains security through the ability to switch systems off in the event of non-payment. Through remote access, individual systems or all systems at the property may be throttled, turned off, or turned on.
● Ensuring Quality Construction of Projects
● Completing Agreements Between BP and Contractors
● Scope of work and services to be performed are agreed upon between BlocPower and its contractors and is appended to SCHEDULE A of the ESA ● Payment Approval Process
Requirements for each application w/dates:

A timeline is associated with each project, which is part of the project gantt chart. Payments and amounts to the contractor(s), equipment provider(s), and other parties (each a “Vendor”) are outlined here. Funding sources for the project are identified, including which accounts to be used, how much to be spent from each, and method of sending payment (check, ACH, or Wire). If capital contributions are made from the parent to an SPE, then a Memorandum of Investment is produced, which formalizes the investment, and provides basis from an accounting perspective that cash assets have decreased in the Parent, but the value of project assets has increased in equal proportion.

Construction Manager reviews the invoice, and determines if the payment requirements have been met. This review consists of:
- For Contractors: Examining the work in detail either in-person or by proxy, with photographic evidence showing the work has been completed to specification for the milestone.
- For Equipment Providers: Comparing the bill of lading and BlocPower PO to ensure that all required materials have been received. All materials will be examined in person or by proxy, with photographic evidence taken of all major materials showing presence and actual condition of materials received. This will include documentation of any damage to boxes or equipment itself that may be required for a later claim of any kind.
- Other parties: Reviewing the work product with the appropriate parties to ensure it meets the requirements of the associated purchase order, contract, or other agreement. For example, when procuring professional engineering services, the Head of Engineering must provide written notification that the completed work is acceptable.

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Upon approval that work has been completed in accordance with requirements, the Construction Manager will prepare a written notification of such. This may take the form of a standard memo and shall be signed by the construction manager.

The Construction Manager will prepare a memo to approve payment, for signoff by the Head of Engineering and the Head of Finance. Once they are satisfied that work has been completed in a satisfactory manner, they will provide their approval, and the memo will be shared with the CEO for final authorization.

A short meeting will be held bi-weekly or as needed to review all requests and issue payments. This meeting may include the CEO, General Manager, COO, Head of Finance, and Head of Engineering.

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Consulting Services Agreement for
Services By And Between East Bay Community Energy Authority and BlocPower Energy Services 3
This Consulting Services Agreement (“Agreement”) is made this 20 day of January, 2020 (“Effective Date”) by and between East Bay Community Energy Authority, a joint powers authority formed under the laws of the State of California (“EBCE”) and BlocPower Energy Services 3, LLC, a Delaware limited liability company (“Consultant”) for the purpose of providing rebates to low and moderate income residential customers in EBCE’s service area.

Section 1. Recitals

1.1 The Authority is an independent joint powers authority duly organized under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.) (“Act”) with the power to conduct its business and enter into agreements.

1.2 Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement pursuant to the terms and conditions described herein.

NOW THEREFORE, for good and valuable consideration, the amount and sufficiency of which is hereby acknowledged, the Parties to this Agreement, agree as follows:

Section 2. Term
The term of this Agreement is from the Effective Date of this Agreement through June, 30, 2023, unless terminated earlier pursuant to Section 8.

Section 3. Scope of Work/Compliance with Laws and Regulations

3.1 Consultant agrees to perform the scope of work (the “Work”) in Exhibit A in accordance with the compliance schedule in Exhibit B.

3.2 Consultant represents and warrants that it has the skill and expertise to perform the Work. Consultant agrees to obtain any and all necessary licenses, approvals or permits necessary to perform the Work.

3.3 Consultant and its Subconsultants must comply with all federal, state and local laws and regulations in performing the Work under this Agreement.

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Section 4. Consultant Staffing
Exhibit C contains a list of Consultant’s project manager and all team members.

Consultant will not change or substitute the project manager or any team members or add additional team members without consultation with EBCE.

Section 5. Subconsultants

5.1 Consultant agrees to use only those Subconsultants listed on Exhibit D.

Consultant shall notify EBCE within a reasonable period of time of any changes, additions, or removals of a Subconsultant.

5.2 Consultant agrees to require all Subconsultants to comply with the terms of this Agreement, including without limitation, maintaining insurance in compliance with the insurance obligations under Section 9, the Confidentiality requirements under Section 11 and indemnifying EBCE under Section 12.

Section 6. Compensation and Payment

6.1 The maximum compensation under this Agreement is $400,000.

6.2 If the Work under this Agreement is to be performed on a time and materials basis, Consultant must submit invoices to EBCE on a monthly basis, complete with the name of the individual that conducted the Work, the time spent, and a brief description of the tasks performed during that time. On all invoices, Consultant must include the contract number provided by EBCE and the total compensation left on the Agreement after deducting the amount of the invoice. Notification to EBCE is required once the contract budget has been used up by 80% (including invoiced work and work that may not have been invoiced yet) which is $320,000 for this Agreement. Invoices must be submitted to EBCE by the 20th of the month following the month in which Consultant performed the Work.

6.3 If the Work under this Agreement is to be performed on a task or project basis, the Consultant will submit an invoice within thirty (30) days of completing the project to the satisfaction of EBCE for full payment, unless other arrangements have been made.

6.4 EBCE will not agree to pay any markups on Subconsultant Services or supplies unless such markups are included in Exhibit E, Compensation/Budget and such markups were included in Consultant’s bid, if applicable.

6.5 The following are conditions on EBCE’s obligation to process any payments under this Agreement:

6.5.1 If the Consultant is a U.S. based person or entity, the Consultant must provide to EBCE a properly completed Internal Revenue Service Form W-9 before EBCE will process payment. If the Consultant is a U.S based person or entity but has neither a Agenda Item: 11
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permanent place of business in California nor is registered with the California Secretary of State to do business in California, the Consultant must provide EBCE with a properly completed California Franchise Tax Board form related to nonresident withholding of California source income before EBCE will process payment.

6.5.2 If the Consultant is not a U.S. based person or entity, the Consultant must provide EBCE with the applicable Internal Revenue Service form related to its foreign status and a California Franchise Tax Board form related to nonresident withholding before EBCE will process payment.

6.6 EBCE agrees to pay invoices within forty-five (45) days of receipt. Invoices may be sent to EBCE by U.S. mail or electronic mail to [email protected]. Invoices will be deemed received on the next business day following the date of transmission via electronic mail or three days after placement in the U.S. mail.

6.7 EBCE, as a Joint Powers Authority, is a separate public entity from its constituent members and will be solely responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Consultant acknowledges that it will have no rights and agrees not to make any claims, take any actions or assert any remedies against any of EBCE’s constituent members in connection with this Agreement.

Section 7. Records Retention and Ownership of Work Product

7.1 The Consultant must retain all ledgers, books of accounts, invoices, vouchers, cancelled checks, background materials, or other records relating to its performance under this Agreement for a period of three years following termination of this Agreement.

7.2 EBCE owns all rights, including without limitation, all licenses, copyrights, service marks and patents, in and to all Work Product(s), whether written or electronic, without restriction or limitation upon their use and immediately when and as created by the Consultant, any Subconsultants, or any other person engaged directly or indirectly by the Consultant to perform under this Agreement. “Work Product(s)” means all writings, reports, drawings, plans, data, video, media, photographs, renderings, plans, software, models, and other similar documents and materials developed or created by Consultant or its Subconsultants on behalf of or for use by EBCE under this Agreement. All Work Product(s) will be considered “works made for hire,” and together with any and all intellectual property rights arising from their creation will be and remain the property of EBCE without restriction or limitation upon their use, duplication or dissemination by EBCE. Consultant agrees not to obtain or attempt to obtain copyright protection in its own name for any Work Product.

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Section 8. Termination

8.1 EBCE may terminate this Agreement at any time and for any reason, in EBCE’s sole and absolute discretion, by giving Consultant written notice. The termination notice shall set the date of termination.

8.2 8.4 EBCE will pay Consultant the reasonable value of services satisfactorily rendered by the Consultant to EBCE up to the date of written Notice of Termination. If EBCE authorizes Consultant to continue performing the Work through the date of termination, EBCE will pay Consultant the reasonable value of services satisfactorily rendered up through the date of termination, providing such services are in compliance with the Compensation/Budget in Exhibit E.

8.5 Upon termination of this Agreement, and at no cost to EBCE, Consultant, its Subconsultants and anyone working for EBCE under control of Consultant must return all Work Product to EBCE. Consultant may only retain copies of the Work Product by express written permission of EBCE.

Section 9. Insurance

9.1 Consultant must procure, maintain and comply with the insurance requirements in Exhibit F throughout the full Term of this Agreement. Consultant must provide proof of insurance either in the form of a certificate of insurance or, if requested by EBCE, a copy of the insurance policy, prior to performing any work under this Agreement.

9.2 Consultant agrees to stay in compliance with the insurance coverage requirements during the term of this Agreement. Consultant must give EBCE ten (10) days written notice and obtain EBCE’s written approval prior to making any modifications that would reduce its insurance coverage.

9.3 Consultant must either include Subconsultants under its insurance policies or require each Subconsultant to comply with the insurance obligations in Exhibit F.

Section 10. No Discrimination or Conflict of Interest

10.1 Consultant represents and warrants, on behalf of itself and its Subconsultants, that it has not and will not discriminate against anyone based on his/her age, color religion, sex, sexual orientation, disability, race or national origin.

10.2 Consultant represents and warrants, on behalf of itself and its Subconsultants, that it is familiar with local, state and federal conflict of interest laws, that in entering into this Agreement it is not violating any of the conflict of interest laws, that it will avoid any conflicts of interest during the term of this Agreement, and that it will notify EBCE immediately if it identifies any conflicts of interest Consultant understands that violations Agenda Item: 11
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of this Section 10 could result in immediate termination of this Agreement and disgorgement of compensation.

10.3 In accordance with the California Political Reform Act (Cal. Gov’t Code section 81000 et seq.), Consultant will cause each of the following people performing services under this Agreement to file a Form 700 within 30 days after the person begins performing services under this Agreement and subsequently on an annual basis in conformance with the requirements of the Political Reform Act by filing the original with the EBCE Clerk to the Board of Directors. Form 700 submissions should be sent to [email protected], with carbon copy to the EBCE contact. Each of the identified positions must disclose interests in accordance with the EBCE Resolution-2018-7, Conflict of Interest Code, which may be amended from time to time. For the work currently outlined in Exhibit A, this Agreement does not require the Filing of Form 700 at this time.

Name Position or Assignment
Section 11. Confidentiality

11.1 Except as authorized by EBCE or as otherwise required by law, Consultant shall not disclose to any third party/ies any draft or final Work Product, discussions or written correspondence between Consultant and its Subconsultants or discussions or written correspondence between Consultant and EBCE staff. In the event Consultant receives a request from any third-party requesting disclosure of any Work Product, discussions, communications or any other information Consultant is prohibited from disclosing, Consultant will immediately notify EBCE and wait for direction from EBCE before disclosing the information.

11.2 For the purposes of this Section 11, “third parties” refers to any person or group other than EBCE staff and Board members. For example, “third parties” include community groups, Board advisory groups, other governmental agencies, other consultants or members of the community.

11.3 This Section 11 will survive the expiration or termination of this Agreement.

Section 12. Indemnity
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12.1 Except with regard to any matter involving professional negligence, Consultant agrees, at its sole cost and expense, to indemnify, defend with counsel reasonably approved by EBCE, and protect and hold harmless EBCE, its officers, directors, employees, agents, attorneys, designated volunteers, successors and assigns, and those EBCE agents serving as independent contractors in the role of EBCE staff (collectively “EBCE Indemnitees”) from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, penalties, judgements, liens and losses of whatever nature (“Claims”) that arise, directly or indirectly, in whole or in part, out of or are in any way related to Consultant’s or Subconsultant’s performance or failure to perform the Work under this Agreement, regardless of whether the Consultant or its Subconsultants acted or failed to act intentionally, willfully, recklessly or negligently. Consultant agrees that its indemnity and defense obligations include all costs and expenses, including all attorney fees, expert fees, mediation, arbitration, or court costs in connection with the defense. Consultant further agrees to indemnify, defend, protect and hold harmless Indemnitees from and against any breach of this Agreement and any infringement of patent rights, trade secret, trade name, copyright, trademark, service mark or any other proprietary right of any person(s) caused by EBCE’s use of any services, Work Product or other items provided by Consultant or its Subconsultants under this Agreement.

12. 2 With regard to any matter involving professional negligence, Consultant agrees, at its sole cost and expense, to indemnify, defend with counsel reasonably approved by EBCE, and protect and hold harmless the EBCE Indemnitees from and against any and all Claims to the extent arising out of or resulting from Consultant’s or Subconsultant’s negligence, recklessness, or willful misconduct. In no event shall the cost to defend charged to Consultant exceed the Consultant’s proportionate percentage of fault.

12.3 Consultant’s obligations in Subsection 12.1 and 12.2 do not apply to the extent any Claim results from the sole negligence or willful misconduct of the EBCE Indemnitees.

12.4 Except as limited by Subsection 12.2, Consultant’s obligation to defend EBCE applies to the maximum extent allowed by law and includes defending Indemnitees as set forth in California Civil Code sections 2778 and 2782.8.

12.5 The Consultant’s obligations under Section 12 applies regardless of the existence or amount of insurance the Consultant carries or has made available to EBCE.

12.6 The Parties agree that this Section 12 survives the expiration or earlier termination of the Agreement.

Section 13. Consultant is an Independent Contractor

13.1 Consultant and its Subconsultant(s) are and at all times will be independent contractors. Consultant has complete control over its operations and employees and is Agenda Item: 11
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not an agent or employee of the EBCE and must not represent or act as the EBCE’s agent or employee. Consultant agrees, on behalf of itself and its employees and Subconsultants, that it does not have any rights to retirement benefits or other benefits accruing to EBCE employees, and expressly waives any claim it may have to any such rights.

13.2 As an independent contractor, Consultant has complete control over its Subconsultants, Sub, suppliers, affiliates agents and any other person or entity with whom the Consultant contracts in furtherance of this Agreement (collectively “Subconsultants”). Subject to the requirements of Section 5 of this Agreement, Consultant is solely responsible for selecting, managing and compensating its Subconsultants, and for ensuring they comply with this Agreement.

Section 14. Miscellaneous Terms and Conditions

14.1 EBCE Authority.

The Chief Executive Officer or his/her designee is authorized to take all actions under this Agreement, including without limitation, amendments that fall within the Chief Executive Officer’s signing authority, termination or modification of terms.

14.2 Waiver.

Waiver by either party of any one or more conditions, Sections, provisions or performance of this Agreement will not be a waiver of any other provision; nor will failure to enforce a provision or Section in one instance waive the right to enforce such provision or Section in the future. In no event will payment by EBCE to Consultant constitute or be construed as a waiver by EBCE of any breach or default of this Agreement, nor will such payment prejudice any of EBCE’s other rights or remedies.

14.3 Governing Law.

Consultant and EBCE agree that this Agreement will be interpreted under the laws of the State of California.

14.4 Venue.

Any litigation resulting from this Agreement will be filed and resolved by a state court in Alameda County, California, or if appropriate, the federal courts in the Northern District of California located in San Francisco.

14.5 Audit Rights.

All records or documents required to be kept pursuant to this Agreement must be made available for audit at no cost to EBCE, at any time during regular business hours, upon written request by EBCE. Copies of such records or documents shall be provided to EBCE at EBCE’s offices unless an alternative location is mutually agreed upon.

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14.6 Recitals and Exhibits.

The Recitals in Section 1 above are intentionally made a part of this Agreement. All Exhibits and any other documents incorporated by reference are a part of this Agreement.

14.7 Notices.

Any notices required to be given under this Agreement must be made in writing and may be delivered a) personally, in which case they are effective upon receipt; b) by U.S.

Mail, in which case they are effective three (3) days following deposit in the U.S. Mail, unless accompanied by a return receipt in which case, they are effective upon the date on the receipt; or c) by electronic mail, in which case they are effective upon confirmation of receipt, and if no confirmation of receipt, they are effective one day after transmission, providing that a hard copy is also sent via U.S. mail. All notices must be sent to the addresses below:

EBCE Attn: Beckie Menten
East Bay Community Energy
1999 Harrison Street, Suite 800
Oakland, CA 94612
Email: [email protected]
Phone: (510) 988-1736
Consultant Attn: Grace Park-Bradbury
BlocPower
1625 Flatbush Avenue, Box #222
Brooklyn, NY 11210
Email: [email protected]
Phone: (510) 282-0697

14.8 Assignment.

Except to the extent this Agreement authorizes Consultant to use Subconsultants, Consultant will not assign any part of this Agreement without the EBCE’s prior written consent. EBCE, at its sole discretion, may void this Agreement if a violation of this provision occurs.

14.9 Integrated Agreement.

The Recitals, this Agreement and the Exhibits attached to this Agreement contain the complete understanding between EBCE and Consultant and supersedes any prior or contemporaneous negotiations, representations, agreements, understandings and Agenda Item: 11
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statements, written or oral respecting the Work up through the Effective Date of this Agreement.

14.10 Amendments.

Any and all amendments or modifications to this Agreement must be made in writing and signed by each Party before such amendment will be effective.

14.11 Government Claims Act.

Nothing in this Agreement waives the requirements to comply with the Governmental Claims Act, where applicable.

14.12 Severability.

If a court of competent jurisdiction holds any Section or part of this Agreement to be invalid or unenforceable for any reason and the Work can still be performed, the Parties agree to sever the invalid or unenforceable Section from this Agreement and that all remaining Sections or parts of this Agreement will continue to be enforceable.

14.13 Counterparts.

This Agreement may be executed in one or more counterparts, all of which taken together will constitute one and the same instrument and each of which will be deemed an original.

14.14 No Party Deemed Drafter.

This Agreement will be considered for all purposes as prepared through the joint efforts of the Parties and will not be construed against one Party or the other as a result of the preparation, substitution, submission, or other event of negotiation, drafting or execution hereof.

14.15 Supplier Diversity.

EBCE is required to report to the California Public Utilities Commission on their diverse suppliers, as defined by CPUC General Order 156. Consistent with the California Public Utilities Code and California Public Utilities Commission policy objectives, Contractor agrees to document and provide information to EBCE regarding Contractor’s status and any engagement of women, minority, disabled veteran, and LGBT owned business enterprises in its provision of Services under this Agreement. Specifically, Contractor agrees to complete EBCE’s Supplier Diversity questionnaire, which may be updated or revised during the term of the Agreement, and otherwise reasonably cooperate with EBCE to provide the information described above. Contractor shall provide such information in the timeframe requested by EBCE and in no event later than January 31 of the year following the Effective Date of this Agreement.

Section 15. Authorized Signatories

15.1 Proper Countersignatures
Agenda Item: 11
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Type of Entity Authorized Signatories
For a corporation:

Pursuant to California Corporations Code Section 313 proof of authority to execute the Agreement is established if one of the corporate officers listed in Column A below and one of the corporate officers listed in Column B below both sign the documents.

Column A AND Column B
Chairman of the Board,
or
Secretary, or
President, or  Assistant Secretary, or
Vice President  Chief Financial Officer,
or
Assistant Treasurer
If the agreement is signed by any combination of persons other than those listed above or by an individual, then the agreement must be accompanied by a copy of the Board minutes, resolution, Corporate Secretary’s certificate, or articles of incorporation stating that the signatories have the authority to bind the corporation.

For a general
partnership, a
limited partnership,
or a limited liability
partnership:

All the general partners must sign the Agreement (a general partnership agreement is sufficient to establish the names of all general partners) unless the person signing the Agreement provides proof that he/she has authority to bind the partnership.

For a limited liability
company (LLC)
Copies of the following documents should be provided to establish who has authority to bind the LLC: (1) State Forms LLC-1 and LLC-12 if the company was formed in California; and (2) the operating agreement for the LLC – whether formed in California or another state.

For a sole
proprietor, or a sole
proprietor doing
business under
another name:

Only the individual who owns the business can sign. Either a Fictitious Business Name Statement or a EBCE Business Tax Certificate is sufficient to establish the authority of an individual to bind a sole proprietorship. [signatures on following page]
Agenda Item: 11
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IN WITNESS WHEREOF, the parties have caused the Agreement to be executed as of the date set forth above.
[VENDOR’S LEGAL NAME]
Legal form of business, state of
formation
By __________________
Title __________________
Date __________________

EAST BAY COMMUNITY ENERGY

AUTHORITY
A Joint Powers Authority
By __________________
Title __________________
Date __________________
By __________________
Title __________________
Date __________________
[*remove if chart in 15.1 confirms only
one signature is required]
APPROVED AS TO FORM:
_________________________
EBCE Counsel
Agenda Item: 11
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LIST OF EXHIBITS
EXHIBIT A: SCOPE OF WORK
EXHIBIT B: SCHEDULE
EXHIBIT C: CONSULTANT STAFFING
EXHIBIT D: SUBCONSULTANTS
EXHIBIT E: COMPENSATION/BUDGET
EXHIBIT F: INSURANCE REQUIREMENTS
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Exhibit A

SCOPE OF WORK
Overview
BlocPower is a Black-owned climatetech leader focused on Smarter, Healthier, Greener Buildings for all. We have deep experience delivering electrification and energy efficiency projects in low-and-moderate-income (LMI) communities and will engage, on behalf of EBCE, a program to deliver clean, healthy, electrified buildings.

The program will leverage $1M of project finance made available by EBCE to fund building remediation and retrofit projects in EBCE service territory. The investment will provide a scalable financing opportunity to re-invest the returns from customer payments over time into additional projects. (The scope of this effort does not require EBCE to do so but will provide a model for how that can be executed).

This scope of work governs the additional $400,000 in incentives EBCE will offer to further enable the above program.

Use of Funds
• Targeting [60] households (single or multi-family units) at an average incentive level of [~$6,667] to further enable the financials of the project through 2022- 2023.
• BlocPower will, with their local partners, engage in Customer acquisition, education, project development, financing, construction management, and ongoing O&M, as applicable.
• Sufficient underwriting to ensure a prudent investment EBCE’s investment will serve the following public purpose:
• Invest in household health remediations, energy efficiency and electrification for low-to-moderate income (LMI) households (defined as households below 120% of area median income)
• Deliver insights and analysis for policy to further support and engage under-served and energy-burdened communities on a quarterly basis, and at the conclusion of the program
Task 1. Administration
This task covers general administrative activities associated with the disbursement of incentives for EBCE. BlocPower will provide monthly reporting and invoicing to EBCE to communicate project progress and submit documentation associated with incentives disbursed during the invoicing period. EBCE and BlocPower will develop a standard invoicing and reporting template. In addition to the information agreed upon for monthly Agenda Item: 11
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reporting and invoicing, BlocPower shall retain all project-specific information.

BlocPower will also furnish an annual report no later than 14 months following program launch reporting on program impacts.

Deliverables:
-Monthly invoice and report template
-Monthly invoicing
-Monthly reporting
-Annual report
Task 2. Incentive Disbursement
Incentives will be scaled based on need, as determined by income level, according to the table below. BlocPower will verify incentive eligibility and will invoice EBCE no more frequently than monthly for incentives. BlocPower will provide EBCE with documentation showing verified income and associated incentive disbursed per project; EBCE retains the right to request more detailed income information.

Income Level Incentive
At or Below 80%AMI Up to $10,000
Above 80% AMI Up to $4,000
Incentives should be stacked on other program incentives as available; however, overall incentives are not to exceed costs associated with material and installation costs for eligible measures. Eligible measures for this incentive are listed below; BlocPower may include other energy efficiency and building electrification measures if those incentives are included in existing IOU rebate programs or if permission is received in writing from EBCE. BlocPower assumes responsibility for ensuring quality installation of projects, including compliance with local permitting and inspection requirements. Sample eligible measure list:
• Energy Efficiency Upgrades
o LED lighting
o Air sealing, insulation
o High-efficiency window treatments
o Energy-efficient appliances
• Electrification / Fuel switching
o Electrical upgrades
o Air source heat pumps
o Heat pump water heaters
o Induction cooktops
o Efficient washers & dryers
• Retrofitting Measures
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o Smart thermostats
o Hazardous materials abatement (lead, asbestos, mold)
o IoT monitoring & controls for M&V
o Low-flow water fixtures
BlocPower shall invoice EBCE monthly for incentives disbursed the prior month.

Incentive disbursement requests should include itemized project invoices, identification of other program incentives applied to the project, and income level of incentive recipient.

Deliverable:
• Monthly incentive invoices
Task 3. Inclusion of tenants in program
EBCE’s LMI population is characterized by a high proportion of tenants. EBCE seeks an expansion of the existing program model to serve renter populations. EBCE will work with BlocPower to identify potential barriers and negative impacts to renter populations, including threat of eviction or rent increases, and will develop policies to mitigate potential concerns. EBCE and BlocPower have committed to inclusion of rental properties within six months of program launch, if possible.

Deliverables:
• Memo categorizing program policy updates for rental populations Further Details:

BlocPower will continue to invest in the East Bay market, expanding on existing partnerships with local developers such as Revalue.io, and leveraging existing incentives and capital available through BayREN, the CPUC TECH program and additional sources to provide this offer to local building owners. Prevailing wages will be applied to those projects receiving EBCE incentives and financing, as applicable.

Documentation will be provided to EBCE on a customer-basis as requested. EBCE to provide format for customer enrollment and savings data to match with EBCE system of customer record.

Customer Underwriting Overview
BlocPower will implement reasonable underwriting criteria, which may include the following.

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The target clients are building owners, not tenants. The buildings may have low/moderate income tenants, regular market rate tenants, or be co-ops or Agenda Item: 11
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condos. Low income residents may receive rental payment support from government programs, paid directly to building owners. Building owners may be non-profits.

Materials BlocPower will gather:
• Standard financials (at least 2 years income statement/balance sheet) • Tax return (at least one year, to match financials; tax returns may be substituted for financials if needed, at BlocPower discretion)
• Rent roll (current and prior year, to evaluate vacancy) • Debt details (mortgage terms, covenants to estimate DSCR) • Recent property appraisal (This is typically from the client’s mortgage or a refinance. If old, or not available, the market value of the property will be estimated directly via comps.)
• DOB violations
• Business credit report (Experian, D&B, Equifax, etc.) • 12 months of utility bills (this will show both the client’s rates, and whether there have been any late payments in the last 12 months)
BlocPower evaluates global DSCR as a primary means of determining if the client will be able to meet project payment obligations. This is calculated as EBITDA over all financing obligations, including those related to our project. We will accept personal or corporate guarantors to help meet the obligations if it appears if DSCR is tight, or the building cannot meet the obligations on its own. The income and obligations of the guarantors will be included in global DSCR calculation. We will factor the expected net energy savings into the global DSCR calculation, as they should reduce operating expenses. We will however include some margin of safety on the savings.

BlocPower will not accept a bankruptcy within 3 years, unless there are heavy mitigating factors. We will similarly not accept anyone with a global DSCR less than 1.20x without significant mitigation. Historical vacancy, and debt-to-equity ratio of the client will also be taken into account. Excessive DOB violations will be a negative indicator, unless the measures to be implemented will address the source of violations. The client must be current on their utility bills before entering into an agreement, and delinquencies over 30 days must be explained, with additional mitigation provided.

BlocPower does not take any liens on the underlying real estate.

Credit Evaluation
When evaluating the credit of a real estate business, primary factors include coverage of current debt obligations, leverage, property value, operating performance, and history of payment. In our analysis, these are expressed respectively by:
• Debt Service Coverage Ratio, determined by looking at all debt held by the entity, and dividing this by its Net Operating Income or EBITDA. • Debt to Equity ratio, determined by comparing the entity’s debt outstanding against an acceptable market valuation of the property
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• Rents and Operations, determined by evaluating the property’s rental history, operating costs, and Net Operating Income to determine whether the building is being well managed.
• Creditworthiness, determined by evaluating a combination of the property’s business credit (as reported by Experian, D&B, Equifax, or other agencies), payment history on utility bills (as reported on the 12 months of utility bills collected from the client), and violation history (publicly available through the local municipalities)
Criteria
Required Criteria
• No bankruptcy within the last three years
• No outstanding major judgements or lien
Strong positive indicators, lack of which may be adjusted only with considerable mitigation and/or suitable explanation
• DSCR equal to 1.20x or greater, including any net savings from the project, subject to a 20% margin of safety on the savings estimates • Debt-to-Equity ratio of 80% or below, including the termination value of our lease obligation
General negative indicators, requiring explanation
• Utility bill delinquencies 30+ days past due in reviewed period • Average vacancies over 15% for multi-family properties in reviewed period • Excessive DOB violations will be a negative indicator as well, unless the measures to be implemented will address the source of violations.

Acceptable mitigants
• Personal guarantee, typically from a substantial equity holder in the entity • Corporate guarantee, typically from a parent company or other related entity • Down-payment of some portion of the system costs. This improves DSCR and decreases exposure.
• Shortened lease term, with associated increase to monthly payments • Increased monthly payments. While acting as a net drag on DSCR, increased revenue can serve to mitigate against increased risk in certain areas.

Security Package
BlocPower places a UCC 1 filed at the county level for the assets owned and installed at the customer property. This enables us to remove the property as needed, while also serving as a lien should the client attempt to sell their building. In addition, BlocPower maintains security through the ability to switch systems off in the event of non-payment.

Through remote access, individual systems or all systems at the property may be throttled, turned off, or turned on.

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Ensuring Quality Construction of Projects / Completing Agreements Between BP and Contractors
• Scope of work and services to be performed are agreed upon between BlocPower and its contractors and is appended to SCHEDULE A of the ESA Payment Approval Process
Requirements for each application w/dates:

A timeline is associated with each project, which is part of the project gantt chart.

Payments and amounts to the contractor(s), equipment provider(s), and other parties (each a “Vendor”) are outlined here. Funding sources for the project are identified, including which accounts to be used, how much to be spent from each, and method of sending payment (check, ACH, or Wire). If capital contributions are made from the parent to an SPE, then a Memorandum of Investment is produced, which formalizes the investment, and provides basis from an accounting perspective that cash assets have decreased in the Parent, but the value of project assets has increased in equal proportion.

Construction Manager reviews the invoice, and determines if the payment requirements have been met. This review consists of:
• For Contractors: Examining the work in detail either in-person or by proxy, with photographic evidence showing the work has been completed to specification for the milestone.
• For Equipment Providers: Comparing the bill of lading and BlocPower PO to ensure that all required materials have been received. All materials will be examined in person or by proxy, with photographic evidence taken of all major materials showing presence and actual condition of materials received. This will include documentation of any damage to boxes or equipment itself that may be required for a later claim of any kind.
• Other parties: Reviewing the work product with the appropriate parties to ensure it meets the requirements of the associated purchase order, contract, or other agreement. For example, when procuring professional engineering services, the Head of Engineering must provide written notification that the completed work is acceptable.

Upon approval that work has been completed in accordance with requirements, the Construction Manager will prepare a written notification of such. This may take the form of a standard memo and shall be signed by the construction manager.

The Construction Manager will prepare a memo to approve payment, for signoff by the Head of Engineering and the Head of Finance. Once they are satisfied that work has been completed in a satisfactory manner, they will provide their approval, and the memo will be shared with the CEO for final authorization.

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A short meeting will be held bi-weekly or as needed to review all requests and issue payments. This meeting may include the CEO, General Manager, COO, Head of Finance, and Head of Engineering.

Additional Services:

Consultant will not provide additional services outside of the services identified in Exhibit A, unless it obtains advance written authorization from the project manager or lead EBCE representative prior to commencement of any additional services.

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Exhibit B

SCHEDULE
As directed by EBCE.

Agenda Item: 11
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Exhibit C

CONSULTANT STAFFING
[Include names of all team members who will be providing EBCE services.] Agenda Item: 11
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Exhibit D

SUBCONSULTANTS
Subconsultants must be authorized in advance, in writing by EBCE.

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Exhibit E

COMPENSATION/BUDGET
The funding for this program will be available for use by BlocPower to reduce the project cost associated with energy related home improvements for EBCE’s low and moderate income customers. Incentives will be scaled based on need, as determined by income level. BlocPower will verify incentive eligibility and will invoice EBCE no more frequently than monthly for incentives. BlocPower will provide EBCE with documentation showing verified income and associated incentive disbursed per project; EBCE retains the right to request more detailed income information.

Income Level Incentive
At or Below 80%AMI Up to $10,000
Above 80% AMI Up to $4,000
The maximum compensation under this Agreement is $400,000.

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Exhibit F

INSURANCE REQUIREMENTS
A. Minimum Scope and Limits of Insurance. Consultant must procure, and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
1) Commercial General Liability Insurance with a minimum limit of One Million Dollars ($1,000,000.00) per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of Two Million Dollars ($2,000,000.00) per project or location. If Consultant is a limited liability company, the commercial general liability coverage must be amended so that Consultant and its managers, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.
2) Automobile Liability Insurance for any owned, non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of One Million Dollars ($1,000,000.00) per accident for bodily injury and property damage.
3) Workers’ Compensation Insurance as required by the State of California and Employer’s Liability Insurance with a minimum limit of One Million Dollars ($1,000,000.00) per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers’ compensation policy is not required, but Consultant must execute a declaration that it has no employees.
4) Professional Liability/Errors & Omissions Insurance with minimum limits of Two Million Dollars ($2,000,000.00) per claim and in aggregate.

B. Acceptability of Insurers. The insurance policies required under this Exhibit F must be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide.

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C. Additional Insured/Additional Named Insured. The automobile liability policies must contain an endorsement naming EBCE, its officers, employees, agents and volunteers as additional insureds. The commercial general liability policy must contain an endorsement naming EBCE, its officers, employees, agents and volunteers as additional named insureds.

D. Primary and Non-Contributing. The insurance policies required under this Agreement must apply on a primary non-contributing basis in relation to any other insurance or self-insurance available to EBCE. Any insurance or self-insurance maintained by EBCE, its officers, employees, agents or volunteers, will be in excess of Consultant’s insurance and will not contribute with it.

E. Consultant’s Waiver of Subrogation. The insurance policies required under this Agreement will not prohibit Consultant and Consultant’s employees, agents or Subconsultants from waiving the right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against EBCE.

F. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by EBCE. At EBCE’s option, Consultant must either reduce or eliminate the deductibles or self-insured retentions with respect to EBCE, or Consultant must procure a bond guaranteeing payment of losses and expenses.

G. Cancellations or Modifications to Coverage. Consultant agrees not to cancel any insurance coverage during the Term. Consultant further agrees not to, reduce or otherwise modify the insurance policies required by this Agreement during the term of this Agreement, without the prior written approval of EBCE. The commercial general and automobile liability policies required under this Agreement must be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days’ prior written notice to EBCE. If any insurance policy required under Agreement is canceled or reduced in coverage or limits, Consultant must, within two business days of notice from the insurer, phone and notify EBCE via electronic mail and certified mail, return receipt requested, of the cancellation of or reductions to any policy.

H. EBCE Remedy for Noncompliance. If Consultant does not maintain the policies of insurance required under this Agreement in full force and effect during the term of this Agreement, or in the event any of Consultant’s policies do not comply with the requirements of this Exhibit F, EBCE may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, EBCE may, but has no duty to, take out the necessary insurance and pay, at Consultant’s expense, the premium thereon. Consultant must promptly reimburse EBCE for any premium paid by EBCE or EBCE, in its sole discretion, may withhold amounts sufficient to pay the premiums from payments due to Consultant.

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I. Evidence of Insurance. Prior to the performance of Services under this Agreement, Consultant must furnish EBCE with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Agreement. The endorsements are subject to EBCE’s approval. EBCE may request, and Consultant must provide complete, certified copies of all required insurance policies to EBCE. Consultant must maintain current endorsements on file with EBCE. Consultant must provide proof to EBCE that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant must furnish such proof at least two weeks prior to the expiration of the coverages.

J. Indemnity Requirements not Limiting. Procurement of insurance by Consultant will not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify EBCE under Section 12 of this Agreement.

K. Subconsultant Insurance Requirements. Consultant’s insurance coverage must include its Subconsultants or Consultant must require each of its Subconsultants that perform Work under this Agreement to maintain insurance coverage that meets all the requirements of this Exhibit F.

Agenda Item: 11
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TO:

FROM:

Staff Report Item 12
East Bay Community Energy Board of
Directors Jason Bartlett, Finance Manager
SUBJECT: Fiscal Year 2021-2022 Mid-Year Budget Report (Informational) DATE: January 19, 2022
__________________________________________________________________ Recommendation
Receive the report informing the Board of the mid-year Budget position for the 2021- 2022 fiscal year.

Background and Discussion
This staff report compares EBCE’s financial performance for the current fiscal year from July 1, 2021 through November 30, 2021 with the approved June budget.

December’s revenues and expenses are still being reconciled, and therefore included in this report as estimates.

Attachment A provides the numerical table summaries and comparisons. The difference for each category shown in dollar amounts and percentages relative to budgeted amounts.

Highlights and assumptions from this comparison are listed here:
• Revenues
o Year-end electricity sales are expected to be 7.9% above budgeted amounts due to CPUC approving higher than expected rates starting in March of 2022, but sales have come in softer in the mid-year due to lower demand from cooler temperatures
o Uncollectable amounts are still estimated at 2.0% for 2021 and 1.5% for 2022
Agenda Item: 12

• Energy Costs
o Year-end Cost of Energy is 3.5% above budgeted amounts due to higher than expected market prices estimated in 2022, with mid-year costs coming in lower than expected due to cooler temperatures o Pre-Pay agreement adds about $2MM in cost reduction in 2022 estimates • Operating Overhead
o Overhead is 10.6% below budgeted amounts due to less than expected costs with personnel as not all positions have been filled • Non-Operational Position
0 10,000,000
20,000,000
30,000,000
40,000,000
50,000,000
60,000,000
70,000,000
80,000,000
Monthly Net Sales Revenue
Budget Actuals
0 10,000,000
20,000,000
30,000,000
40,000,000
50,000,000
60,000,000
Monthly Total Energy Expense
Budget Actual
Agenda Item: 12

o Non-Operating Position is 25.2% above budgeted amounts primarily due to the new building purchase
o Interest on cash accounts performing at 0.25% average as compared to budgeted 0.4%
o Some grant revenue has been recognized against appropriate expenses • Net Position
o Overall year-end Net Position is 148.0% above budget estimates due to the significant increase in expected revenues from 2022 rates despite rising energy costs in the same time period
Fiscal Impact
This report has no fiscal impact on operations
Attachments
A. FY 2021-22 Mid-Year Budget Report Table
-20,000,000
-10,000,000
0 10,000,000
20,000,000
30,000,000
40,000,000
Monthly Net Revenues
Budget Actuals
Agenda Item: 12

ITEM 11—Attachment A: FY 2021-2022 Mid-Year Budget Comparison BUDGET ACTUAL DELTA %D

OPERATIONS

REVENUE & OTHER SOURCES
Operating Revenue
Electricity Sales 508,636,000 548,790,000 40,154,000 7.9% Uncollectables (8,939,000) (9,441,000) (502,000) 5.6%
Other Operations Revenue 0 112,000 112,000 0.0%
Total Operating Revenue 499,697,000 539,461,000 39,764,000 8.0%

EXPENSES & OTHER USES
Energy Operating Expenses
Cost of Energy 442,338,000 459,087,000 16,749,000 3.8%
Data Management/CRM 8,645,000 8,032,000 (613,000) -7.1% Billing & Metering 2,752,000 2,709,000 (43,000) -1.6%
Scheduling 843,000 848,000 5,000 0.6%
Total Energy Operating Expenses 454,578,000 470,676,000 16,098,000 3.5% Overhead Operating Expenses
Personnel 9,421,000 8,472,000 (949,000) -10.1%
Marketing & Communications 1,614,000 1,422,000 (192,000) -11.9% Legal, Policy, & Regulatory Affairs 1,592,000 1,403,000 (189,000) -11.9% Other Professional Services 850,000 822,000 (28,000) -3.3% General & Administrative 3,033,000 2,639,000 (394,000) -13.0% Depreciation 60,000 57,000 (3,000) -5.0%
Total Overhead Operating Expenses 16,570,000 14,815,000 (1,755,000) -10.6% Total Operating Expenses 471,148,000 485,491,000 14,343,000 3.0%

NON-OPERATIONS

NON-OPERATING REVENUE
Interest Income 798,000 141,000 (657,000) -82.3%
Grants 894,000 894,000 0 0.0%
Other Non-Operating Revenue 0 210,000 210,000 0.0%
Total Non-Operating Revenue 1,692,000 1,245,000 (447,000) -26.4%

NON-OPERATING EXPENSES
Borrowing Interest 898,000 906,000 8,000 0.9%
Local Development Funding 9,007,000 9,007,000 0 0.0%
Capital Expenditures 5,500,000 8,507,000 3,007,000 54.7% Total Non-Operating Expenses 15,405,000 18,420,000 3,015,000 19.6% NET NON-OPERATING POSITION (13,713,000) (17,175,000) (3,462,000) 25.2% TOTAL REVENUES 501,389,000 540,706,000 39,317,000 7.8%
TOTAL EXPENSES 486,553,000 503,911,000 17,358,000 3.6%
NET INCREASE(DECREASE) IN POSITION 14,836,000 36,795,000 21,959,000 148.0% Agenda Item: 12

TO:

FROM:

Staff Report Item 13
East Bay Community Energy Board of
Directors Howard Chang, COO & Treasurer
SUBJECT: Credit Rating Review (Informational Item)
DATE: January 19, 2022
__________________________________________________________________ Recommendation
Receive the review of the credit rating and its implications to EBCE operations.

Background and Discussion
On December 9, 2021 EBCE received a grade of “A/Stable” credit rating by S&P Global Ratings.

This rating was based on several aspects of EBCE’s enterprise operations as it relates to various aspects of risk. The following is a summary of the strengths listed by S&P in the report:
• Deep customer base of 640,000 accounts with residential customers responsible for almost half of the load which gives EBCE large economies of scale, and a less than 5% opt out rate shows community support of value proposition • Protective joint powers agreement with the jurisdictional members • Diverse power supply arrangements
• Solid financial performance with an expectation of considerable liquidity increase in the coming years
• Limited direct exposure to local wildfire hazards
These strengths were considered partly offset by the following challenges:
• Direct retail competition with PG&E, which can limit rate-setting • Volatile load profile and fulfilling renewable energy balancing mandates Agenda Item: 13

• Exposure to PCIA
• Open position exposure to market purchases
• Still developing reserves and in a marginally tight current year of operations The conclusions in the report were based upon data submitted to S&P and a staff presentation given to the rating analysts on Oct 22, 2021.

The presentation included a summary of EBCE’s historical financial performance and strong five-year projections based on some essential assumptions; primarily in areas of PCIA, rates, established power purchase agreements, and expected forward costs of energy prices. The fundamental predication being on EBCE’s net liquidity metrics.

For S&P, the basis of the stable rating is EBCE’s ability to generate and retain substantial cost coverage by holding high levels of cash and equivalents, which allows the organization to remain competitive with PG&E.

It is important to note, by our current reserve policy (Policy P-10.1) liquidity and reserves are not exactly the same in this case. Liquidity reflects available cash and represents the organization’s ability to absorb cost or operational shocks, whereas reserves is a subset of cash held to be untouched except in extreme circumstances and with Board permission. Because it is difficult to forecast future Reserves, the provided forecasts assume all incremental net position contributes to liquidity and is allocated to Reserves. The graph below shows net position and reserves both increasing in future years.

Agenda Item: 13

Based on the above tables, and as of July 1, 2021, EBCE’s days liquidity on hand could cover approximately 137 days of operation based on net position and GASB 62 revenues.[HC1] EBCE’s Formal Reserve Policy states a target of 50% with a range of 25-75%. In addition to our cash/reserve position, our credit facility with Barclays Bank, LLC provides an additional 45 days of operating liquidity, should it be required.

The facility is sized at $80MM with up to $60MM for cash and $35MM for LOCs.

Additionally EBCE noted two potential working capital changes: Evaluating financing of the new office building purchase with low-cost financing through a lease leaseback structure and a planned RFP for new bank credit line in early 2022 to further improve credit terms and consider upsizing.

Fiscal Impact
This report is expected to have no fiscal impact on EBCE operations Attachments
A. S&P Global Ratings Direct Report for EBCE
Agenda Item: 13

Summary:

East Bay Community Energy,
California; Retail Electric
Primary Credit Analyst:

Timothy P Meernik, Centennial + 1 (303) 721 4786; [email protected] Secondary Contact:

Doug Snider, Centennial + 1 (303) 721 4709; [email protected] Table Of Contents
Rating Action
Stable Outlook
Credit Opinion
Related Research
WWW.STANDARDANDPOORS.COM/RATINGSDIRECT DECEMBER 9, 2021 1 Attachment A
Agenda Item: 13

Summary:

East Bay Community Energy, California; Retail
Electric
Credit Profile
ICR
Long Term Rating A/Stable New
Rating Action
S&P Global Ratings assigned its 'A' issuer credit rating (ICR) to East Bay Community Energy (EBCE), Calif. The outlook is stable.

At fiscal year-end 2021, EBCE had no debt outstanding.

Credit overview
EBCE, a community choice aggregator (CCA) that began serving electricity in 2018, has quickly gained more than half a million customer accounts and, we believe, has achieved credit supportive financial results while offering competitive rates. The CCA, formed to provide clean and affordable power and stimulate the local economy, is responsible for procuring a sufficient power supply for its customers' demands. EBCE uses the transmission and distribution assets of the service area's incumbent investor-owned utility, Pacific Gas and Electric Co. (PG&E; BB-/Negative), to deliver the electricity. Because the CCA provides retail electric service and is a public agency, S&P Global Ratings evaluates EBCE's creditworthiness under the scope of our municipal retail electric and gas utilities criteria.

The rating further reflects our view of EBCE's:
• Deep customer base of 640,000 accounts with residential customers responsible for almost half of EBCE's kilowatt-hour sales, enhancing revenue stability;
• Protective joint powers agreements with its member communities, requiring a departing member to provide six months' notice, receive EBCE board approval, and make the CCA whole for any costs incurred to serve that member signed prior to its departure, which we believe serves as a disincentive for a member to terminate its contract with EBCE;
• Diverse power supply arrangements with a variety of contract types, geographic locations, and storage capabilities (many of the supply contracts provide renewable power, which positions the CCA well for California's renewable portfolio standard as well as potential future federal carbon emission regulations); • Solid financial performance including historical fixed-cost and imputed charge coverage (FCC) around 1.3x on a historical and projected basis and, at the end of fiscal 2021, considerable liquidity of more than 180 days, which we expect will increase in the coming years; and
• Limited direct exposure to wildfires through California's strict liability standard and inverse condemnation given the absence of CCA-owned generation, transmission, or distribution assets.

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Partly offsetting the above strengths, in our view, are EBCE's:
• Direct retail competition with PG&E, which limits the CCA's rate-setting flexibility (EBCE has rate setting autonomy, but in its first few years of operations, the CCA has purposefully kept its standard offering slightly below the PG&E rate);
• Power procurement uncertainty as the CCA must balance its obligation to enter long-term contracts with a potentially volatile load profile given possible member community and/or individual customer exit from the CCA, as well as a need to balance its renewable mandates with the need for reliable baseload energy; • Exposure to the power charge indifference adjustment (PCIA), which varies year to year and could pressure the CCA's competitiveness if costly enough; and
• High reliance on market purchases with the CCA planning to purchase more than a quarter of its electricity from the market in each of the next several years (although we recognize that the CCA's hedging practices considerably reduce EBCE's exposure to elevated market prices, with typically more than 80% of projected load hedged at the start of each month).

The stable outlook reflects our expectation that EBCE's rates will maintain competitive with PG&E, enabling the CCA to sustain its large customer base. We also believe that EBCE's significant unrestricted reserves will continue growing, providing flexibility to meet financial obligations.

Environmental, social, and governance
We believe EBCE's environmental risk exposure is low, based on its predominantly carbon-free resource portfolio. In 2020, the CCA's fuel mix of its standard offering was 40% renewable and less than 1% specified fossil fuel resources.

EBCE plans for its fuel mix to be 100% carbon-free and a minimum of 65% from eligible renewables by 2030.

However, as a practical matter, the intermittency of renewable resources might frustrate EBCE from achieving California's ambitious greenhouse gas emission goals in the absence of storage technology breakthroughs. We also note that EBCE has indirect exposure to wildfires that affect PG&E's transmission and distribution assets needed to serve the CCA's customers.

Regarding social factors, health and safety precautions that officials enacted in response to the COVID-19 pandemic resulted in EBCE's experiencing reduced weather-normalized electric sales in calendar 2020. The CCA has suspended its "Delinquent Accounts and Collections Policy" through the end of 2021. EBCE initially increased its uncollectables budget to 2.5% from 0.5%, but has since lowered the budget to 1%; the CCA expects to receive state funding to cover at least some of its arrearages. S&P Global Economics forecasts that U.S. GDP declined 3.4% in 2020 and estimates a rebound of 5.5% in 2021. (See "Economic Outlook U.S. Q1 2022: Cruising At A Lower Altitude," published Nov. 29, 2021, on RatingsDirect.) S&P Global Ratings believes uncertainty remains high, albeit moderating, about the evolution of the coronavirus pandemic and its economic effects.

We view EBCE's governance factors as credit-supportive, as they include robust joint powers agreements with members, full rate-setting autonomy, comprehensive policies and planning (including a risk management program with detailed hedging targets), and a sophisticated management team. The CCA produces detailed long-term financial forecasting and integrated resource plans, and participates in California utility proceedings. We also believe that EBCE performs appropriate due diligence when entering power supply contracts, including examining counterparties' WWW.STANDARDANDPOORS.COM/RATINGSDIRECT DECEMBER 9, 2021 3 Summary: East Bay Community Energy, California; Retail Electric Agenda Item: 13

financial well-being and requiring collateral postings. However, the potential for retail customer opt-out somewhat tempers our view of EBCE's governance factors.

Stable Outlook
Downside scenario
We could lower the rating if EBCE experiences increases in its power supply costs, which could either pressure the CCA's rate competitiveness and/or result in a reduction in EBCE's unrestricted reserves, depending on management's actions. Also, if any of the member communities leave the CCA, EBCE could be forced to sell surplus contracted power to the market. In the event market prices decrease to levels significantly below those of the CCA's portfolio, EBCE could face significant financial pressure, which, in turn, could lead us to lower the rating.

Upside scenario
We do not expect to raise the rating in the next two years, given the inherent risks posed by the direct competition for EBCE's retail customer base. However, if the CCA's operations result in significant competitive advantages relative to the incumbent investor-owned utility over the next several years, while EBCE's FCC and liquidity strengthen, we could raise the rating.

Credit Opinion
In our view, EBCE's service area has favorable economic fundamentals. The CCA serves 15 member communities, all but one in Alameda County. Median household effective buying income in the county, which is part of the board and diverse San Francisco Bay Area economy, is 153% of the national level. We also note no customer concentration in the service area with the top 10 customers accounting for only 2.9% of sales and the top customer 0.4%.

EBCE has a large number of customer accounts, which we believe provides the CCA with considerable economies of scale. EBCE has grown quickly in the few years in which it has operated because all the accounts in the member communities that PG&E previously served were automatically switched to the CCA when that member community joined EBCE. Customers have the option to opt out of EBCE service and return to PG&E; there is no penalty to return to PG&E if undertaken within a set timeframe. However, the CCA's opt-out rate has been less than 5%, which we view as low and demonstrating EBCE's value proposition.

Compared with the member communities, individual customers have a much lower barrier to leave the CCA, which, in our view, constrains EBCE's rate-raising flexibility. In its first few years of operations, the CCA has offered customers a rate slightly lower than the customers would have received from PG&E, while still increasing unrestricted reserves. We believe EBCE's lower rate offering is a significant reason why the CCA's opt-out rates have been minimal. If EBCE's rates became more expensive than PG&E, we think more customers would opt-out and return to PG&E. Because of this, we think that EBCE's rate-setting flexibility is somewhat limited and especially so for as long as the CCA intends to set rates relative to the PG&E rate.

One area where EBCE has minimal control over its rates is the PCIA, which reflects the costs that PG&E incurred to procure power at above-market costs for these customers when PG&E still served them. The PCIA will decline in fiscal WWW.STANDARDANDPOORS.COM/RATINGSDIRECT DECEMBER 9, 2021 4 Summary: East Bay Community Energy, California; Retail Electric Agenda Item: 13

2022 relative to its 2021 level. In addition, over the longer term, the PCIA will become less meaningful as power supply contracts that PG&E signed for its former customers expire.

We believe that EBCE's FCC demonstrates healthy cost recovery, averaging 1.3x over the past three years. FCC is an S&P Global Ratings-calculated metric that treats a share of the CCA's purchased power expenses as debtlike instead of an operating expense. FCC was closer to 1.1x in fiscal 2021 as the COVID-19 pandemic reduced sales and the PCIA was elevated. Although EBCE has a short operating history, we project the CCA's FCC will rebound to near 1.3x over the next several years.

The utility has considerable liquidity to meet operational and financial challenges. Unrestricted cash and cash equivalents, including undrawn amounts on a committed line of credit, exceeded $206 million, or more than half a year of operating expenses, at fiscal year-end 2021. We believe EBCE's risks associated with its core business model--specifically the potential for customer exodus, rate-setting constraints, and substantial purchases of market electricity--necessitate enhanced reserves. The CCA has a formal liquidity target of 50% of operating expenses and expects to have reserves, including a committed line of credit, that reach 75% of operating expenses in the next five years, which we view as a credit positive.

EBCE has no debt outstanding, which we view favorably. The CCA's management reports that EBCE could incur indebtedness if the debt and associated assets were economical and fit within its risk management plan's tolerances.

We note that if the CCA acquires direct or indirect ownership of capital assets, this could have implications for EBCE's exposure to California's strict liability standard and inverse condemnation.

Related Research
Through The ESG Lens 2.0: A Deeper Dive Into U.S. Public Finance Credit Factors, April 28, 2020 Certain terms used in this report, particularly certain adjectives used to express our view on rating relevant factors, have specific meanings ascribed to them in our criteria, and should therefore be read in conjunction with such criteria. Please see Ratings Criteria at www.standardandpoors.com for further information. Complete ratings information is available to subscribers of RatingsDirect at www.capitaliq.com. All ratings affected by this rating action can be found on S&P Global Ratings' public website at www.standardandpoors.com. Use the Ratings search box located in the left column.

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Agenda Item: 13

TO:

FROM:

Staff Report Item 14
East Bay Community Energy Board of Directors
Marie Fontenot, Senior Director of Power Resources
SUBJECT: Authorize CEO to negotiate and execute a contract with FEC Nevada I DATE: January 19, 2022
_________________________________________________________________ Recommendation
Adopt a Resolution authorizing the CEO to negotiate and execute a contract with FEC Nevada I, LLC for a renewable energy supply agreement for a minimum term of 15 years and a maximum of 20 years.

Background and Discussion
In November of 2020 EBCE released its second long-term contract solicitation, the 2020 Renewable Energy and Storage RFO. The RFO sought several hundred megawatts (MW) of contracts with renewable energy and battery storage projects with a preference for projects located in CA, and more preferentially, those located in Alameda County. EBCE’s objective was to drive investments in new renewable and energy storage projects in Alameda and CA, while securing affordable resources to manage future power price risk. EBCE received a very healthy response to its RFO both in volume and quality of projects and proposals. EBCE administered the RFO and completed robust analytics using internal tools and the cQuant valuation platform to calculate the net present value of proposed projects and determine the optimal portfolio to meet its objectives. All of these contracts will be utilized to hedge EBCE against price fluctuation in the CAISO energy markets and they will also contribute to procurement mandates issued by the California Public Utilities Commission (CPUC).

On June 30, 2021 the California Public Utilities Commission (CPUC) released Decision 21-06-035, the “Decision Requiring Procurement to Address Mid-Term Reliability Agenda Item: 14

(2023-2026)”1 (the “Decision”). This Decision requires CPUC jurisdictional load serving entities execute contracts with new, incremental generating resources through long-term contracts. The Decision includes a carve out, requiring procurement of long lead time resources comprised of long duration storage (i.e. storage able to deliver energy for eight hours or longer) and of generation capacity with no on-site emissions and at least an 80 percent capacity factor that is not weather dependent.

As a result of the long lead time resource requirement, Staff revisited the 2020 RFO results and identified the Fervo Energy, FEC Nevada I geothermal project as a desirable resource to meet the 80 percent capacity factor requirement. EBCE seeks to execute a contract with FEC Nevada I, LLC in the coming weeks. Staff will seek long duration storage resources in a future solicitation.

Conclusion
EBCE staff recommends authorizing the CEO to negotiate and execute the 15 to 20 year RPS contract with FEC Nevada I, LLC. This project will help EBCE to satisfy the Decision Requiring Procurement for Mid-Term Reliability 2023-2026, as mandated by the CPUC.

Committee Recommendation
Not applicable.

Attachments
A. Resolution Authorizing CEO to Negotiate and Execute the Contract with FEC Nevada for up to a Twenty-Year Term.

B. EBCE Proforma RPS Power Purchase Agreement (for reference only).

C. PowerPoint Presentation
1 https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M389/K603/389603637.PDF Agenda Item: 14

RESOLUTION NO. R-2022-xx

A RESOLUTION OF THE BOARD OF DIRECTORS

OF THE EAST BAY COMMUNITY ENERGY AUTHORITY AUTHORIZING CEO TO

NEGOTIATE AND EXECUTE A RENEWABLE ENERGY SUPPLY AGREEMENT WITH FEC

NEVADA I, LLC FOR A MINIMUM TERM OF FIFTEEN YEARS UP TO A MAXIMUM TERM

OF TWENTY YEARS
WHEREAS, The East Bay Community Energy Authority (“EBCE”) was formed as a community choice aggregation agency (“CCA”) on December 1, 2016, Under the Joint Exercise of Power Act, California Government Code sections 6500 et seq., among the County of Alameda, and the Cities of Albany, Berkeley, Dublin, Emeryville, Fremont, Hayward, Livermore, Piedmont, Oakland, San Leandro, and Union City to study, promote, develop, conduct, operate, and manage energy-related climate change programs in all of the member jurisdictions. The cities of Newark and Pleasanton, located in Alameda County, along with the City of Tracy, located in San Joaquin County, were added as members of EBCE and parties to the JPA in March of 2020.

WHEREAS, EBCE issued the 2020 Renewable Energy and Stroage RFO in November 2020; and
WHEREAS, in response to the RFO, FEC Nevada I, LLC proposed a 40 MW geothermal generating project in Churchill County, Nevada, developed by Fervo Energy; and
WHEREAS, the project is expected to be operational by May 1, 2026 and will remain operational for a minimum contract term of fifteen years and a maximum contract term of twenty years.

NOW, THEREFORE, THE BOARD OF DIRECTORS OF THE EAST BAY COMMUNITY ENERGY AUTHORITY DOES HEREBY RESOLVE AS FOLLOWS:

Section 1. The CEO is hereby authorized to negotiate and execute an agreement with FEC Nevada I, LLC for a 40 MW geothermal energy project located in Churchill County, Nevada. The term of the agreement shall not be less than fifteen years or more than twenty years. The final agreement shall include the key terms outlined in the staff report associated with this Resolution.

ADOPTED AND APPROVED this 19th day of January, 2022.

Agenda Item: 14

Dianne Martinez, Chair
ATTEST:

Clerk of the Board
Agenda Item: 14

RENEWABLE POWER PURCHASE AGREEMENT

COVER SHEET
Seller: [Seller Name, e.g., Project Company LLC] (“Seller”) Buyer: East Bay Community Energy Authority, a California joint powers authority (“Buyer”) Description of Facility: A [XX] MW [e.g., solar photovoltaic, wind, geothermal, small hydro, etc.] project located in ___________ County, in the State of ___________.

Milestones:

Milestone Date for
Completion
Evidence of Site Control
CEC Pre-Certification Obtained
Financing Milestone
Documentation of Conditional Use Permit if required:

CEQA [ ] Cat Ex, [ ] Neg Dec, [ ] Mitigated Neg Dec, [ ] EIR Seller’s receipt of Phase I and Phase II Interconnection study results for Seller’s Interconnection Facilities
Executed Interconnection Agreement
Financial Close
Expected Construction Start Date
Full Capacity Deliverability Status Obtained
Initial Synchronization
Network Upgrades completed
Expected Commercial Operation Date
Delivery Term: The period for Product delivery will be for [XX] Contract Years.

Expected Energy: “Expected Energy” means [XXX,XXX] MWh during the first 12-month Contract Year and for each 12-month Contract Year thereafter during the Delivery Term. [If there is an annual adjustment for degradation, this should be noted.] Agenda Item: 14

Contract Year Expected Energy
(MWh)
1 [Subject to adjustment
based upon
Commercial Operation
Date]
2 – [XX]
Hourly Settlement Quantity: If applicable]
Hour Ending Hourly Settlement
Quantity (MW)
0100 - 0600 N/A
0700 - 2200 [XX]
2300 - 2400 N/A
Guaranteed Capacity: [XX] MW
Guaranteed RA Amount: [XX] MW
Contract Price: [Select one]
☐ Option A:

The “Contract Price” shall be $[XX.XX]/MWh, [with escalation at 2% per Contract Year] [with no] escalation.
☐ Option B:
“Contract Price” shall be equal to the sum of the Energy Price and the REC Price, less the CAISO Credit.

Contract Price shall be calculated as follows:

Contract Price = (Energy Price + REC Price) - CAISO Credit Where:
“CAISO Credit” means the Energy Price paid by the CAISO for the energy associated with the Product.

Agenda Item: 14

“Energy Price” means the applicable day-ahead hourly market, hour-ahead fifteen-minute market, or real-time five-minute market, locational marginal price clearing at the Delivery Point, as published by the CAISO, per MWh of energy delivered. “REC Price” is equal to $XX.XX/MWh.

Product:
 Facility Energy
 Green Attributes (Portfolio Content Category 1)
 Capacity Attributes (select options below as applicable) ☐ Energy Only Status
 Full Capacity Deliverability Status on and after the RA Guarantee Date  Ancillary Services
Scheduling Coordinator: [Buyer or Buyer’s agent][Seller or Seller’s agent] Development Security and Performance Security
Development Security: $90/kW of Guaranteed Capacity
Performance Security: $105/kW of Guaranteed Capacity
Agenda Item: 14

ARTICLE 1 DEFINITIONS......................................................................................................................... 1

1.1 CONTRACT DEFINITIONS. ............................................................................................................ 1

1.2 RULES OF INTERPRETATION. ..................................................................................................... 20 ARTICLE 2 TERM; CONDITIONS PRECEDENT .................................................................................. 21

2.1 CONTRACT TERM. ...................................................................................................................... 21

2.2 CONDITIONS PRECEDENT ........................................................................................................... 21

2.3 DEVELOPMENT; CONSTRUCTION; PROGRESS REPORTS ............................................................ 22

2.4 REMEDIAL ACTION PLAN .......................................................................................................... 22 ARTICLE 3 PURCHASE AND SALE ...................................................................................................... 23

3.1 PURCHASE AND SALE OF PRODUCT ........................................................................................... 23

3.2 COMPENSATION. ........................................................................................................................ 23

3.3 SALE OF GREEN ATTRIBUTES. ................................................................................................... 23

3.4 OWNERSHIP OF RENEWABLE ENERGY INCENTIVES. ................................................................. 24

3.5 FUTURE ENVIRONMENTAL ATTRIBUTES. .................................................................................. 24

3.6 TEST ENERGY. ........................................................................................................................... 24

3.7 CAPACITY ATTRIBUTES. ............................................................................................................ 24

3.8 RESOURCE ADEQUACY FAILURE ............................................................................................... 25

3.9 CEC CERTIFICATION AND VERIFICATION. ................................................................................ 26

3.10 CALIFORNIA RENEWABLES PORTFOLIO STANDARD. ................................................................ 26

3.11 CHANGE IN LAW. ....................................................................................................................... 27

3.12 PROJECT CONFIGURATION. ........................................................................................................ 28 ARTICLE 4 OBLIGATIONS AND DELIVERIES ................................................................................... 28

4.1 DELIVERY. ................................................................................................................................. 28

4.2 TITLE AND RISK OF LOSS. .......................................................................................................... 29

4.3 FORECASTING ............................................................................................................................ 29

4.4 DISPATCH DOWN/CURTAILMENT. ............................................................................................. 30

4.5 SELLER EQUIPMENT REQUIRED FOR CURTAILMENT INSTRUCTION COMMUNICATIONS. .......... 31

4.6 REDUCTION IN DELIVERY OBLIGATION .................................................................................... 31

4.7 GUARANTEED ENERGY PRODUCTION........................................................................................ 32

4.8 WREGIS. ................................................................................................................................... 32

4.9 INTERCONNECTION CAPACITY .................................................................................................. 34

4.10 GREEN E-CERTIFICATION .......................................................................................................... 34 ARTICLE 5 TAXES ................................................................................................................................... 34

5.1 ALLOCATION OF TAXES AND CHARGES. ................................................................................... 34

5.2 COOPERATION. ........................................................................................................................... 34 ARTICLE 6 MAINTENANCE OF THE FACILITY ................................................................................ 34

6.1 MAINTENANCE OF THE FACILITY. ............................................................................................. 34

6.2 MAINTENANCE OF HEALTH AND SAFETY. ................................................................................. 34

6.3 SHARED FACILITIES. .................................................................................................................. 35

6.4 OPERATING COMMITTEE AND OPERATING PROCEDURES. ........................................................ 35 Agenda Item: 14

ARTICLE 7 METERING ........................................................................................................................... 35

7.1 METERING. ................................................................................................................................. 35

7.2 METER VERIFICATION. .............................................................................................................. 36 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ............................................................................ 36

8.1 INVOICING. ................................................................................................................................. 36

8.2 PAYMENT. .................................................................................................................................. 37

8.3 BOOKS AND RECORDS. .............................................................................................................. 37

8.4 INVOICE ADJUSTMENTS. ............................................................................................................ 37

8.5 BILLING DISPUTES. .................................................................................................................... 37

8.6 NETTING OF PAYMENTS. ............................................................................................................ 38

8.7 SELLER’S DEVELOPMENT SECURITY. ........................................................................................ 38

8.8 SELLER’S PERFORMANCE SECURITY. ........................................................................................ 38

8.9 FIRST PRIORITY SECURITY INTEREST IN CASH OR CASH EQUIVALENT COLLATERAL.............. 39

8.10 FINANCIAL STATEMENTS. .......................................................................................................... 39 ARTICLE 9 NOTICES ............................................................................................................................... 39

9.1 ADDRESSES FOR THE DELIVERY OF NOTICES. ........................................................................... 39

9.2 ACCEPTABLE MEANS OF DELIVERING NOTICE. ........................................................................ 40 ARTICLE 10 FORCE MAJEURE ............................................................................................................. 40

10.1 DEFINITION. ............................................................................................................................... 40

10.2 TERMINATION FOLLOWING FORCE MAJEURE EVENT ............................................................... 41

10.3 NOTICE FOR FORCE MAJEURE. .................................................................................................. 41 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ..................................................................... 42

11.1 EVENTS OF DEFAULT. AN “EVENT OF DEFAULT” SHALL MEAN, .............................................. 42

11.2 REMEDIES; DECLARATION OF EARLY TERMINATION DATE. ..................................................... 45

11.3 TERMINATION PAYMENT. .......................................................................................................... 45

11.4 NOTICE OF PAYMENT OF TERMINATION PAYMENT. .................................................................. 46

11.5 DISPUTES WITH RESPECT TO TERMINATION PAYMENT. ........................................................... 46

11.6 RIGHTS AND REMEDIES ARE CUMULATIVE .............................................................................. 46 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES. ........................ 46

12.1 NO CONSEQUENTIAL DAMAGES. ............................................................................................... 46

12.2 WAIVER AND EXCLUSION OF OTHER DAMAGES. ...................................................................... 46 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY........................................... 47

13.1 SELLER’S REPRESENTATIONS AND WARRANTIES. .................................................................... 47

13.2 BUYER’S REPRESENTATIONS AND WARRANTIES ...................................................................... 48

13.3 GENERAL COVENANTS .............................................................................................................. 49

13.4 PREVAILING WAGE. ................................................................................................................... 49

13.5 RESERVED. ................................................................................................................................. 49

13.6 WORKFORCE DEVELOPMENT AND SUPPLIER DIVERSITY. ......................................................... 49 ARTICLE 14 ASSIGNMENT .................................................................................................................... 50

14.1 GENERAL PROHIBITION ON ASSIGNMENTS ................................................................................ 50

14.2 COLLATERAL ASSIGNMENT ....................................................................................................... 50

14.3 PERMITTED ASSIGNMENT BY SELLER ....................................................................................... 52

14.4 PERMITTED ASSIGNMENT BY BUYER ........................................................................................ 52 Agenda Item: 14

14.5 [PURCHASE OPTION ................................................................................................................... 52

14.6 RIGHT OF FIRST REFUSAL AS TO FUTURE PHASES, ADDITIONAL PROJECTS, ADDITION OF STORAGE CAPACITY ............................................................................................................................... 52 ARTICLE 15 DISPUTE RESOLUTION ................................................................................................... 53

15.1 GOVERNING LAW. ..................................................................................................................... 53

15.2 DISPUTE RESOLUTION. .............................................................................................................. 53 ARTICLE 16 INDEMNIFICATION .......................................................................................................... 54

16.1 INDEMNITY. ............................................................................................................................... 54

16.2 CLAIM NOTICE. .......................................................................................................................... 54

16.3 DEFENSE OF CLAIMS. ................................................................................................................. 55

16.4 AMOUNTS OWED. ...................................................................................................................... 55

16.5 RIGHTS AND REMEDIES ARE CUMULATIVE. .............................................................................. 55 ARTICLE 17 INSURANCE ....................................................................................................................... 56

17.1 INSURANCE. ............................................................................................................................... 56 ARTICLE 18 CONFIDENTIAL INFORMATION.................................................................................... 57

18.1 DEFINITION OF CONFIDENTIAL INFORMATION. ......................................................................... 57

18.2 DUTY TO MAINTAIN CONFIDENTIALITY. ................................................................................... 57

18.3 IRREPARABLE INJURY; REMEDIES. ............................................................................................ 57

18.4 DISCLOSURE TO LENDERS, ETC.. ............................................................................................... 58

18.5 PRESS RELEASES. ....................................................................................................................... 58 ARTICLE 19 MISCELLANEOUS ............................................................................................................ 58

19.1 ENTIRE AGREEMENT; INTEGRATION; EXHIBITS. ....................................................................... 58

19.2 AMENDMENTS............................................................................................................................ 58

19.3 NO WAIVER. .............................................................................................................................. 58

19.4 NO AGENCY, PARTNERSHIP, JOINT VENTURE OR LEASE. ......................................................... 58

19.5 SEVERABILITY. .......................................................................................................................... 59

19.6 MOBILE-SIERRA. ........................................................................................................................ 59

19.7 COUNTERPARTS. ........................................................................................................................ 59

19.8 ELECTRONIC DELIVERY. ............................................................................................................ 59

19.9 BINDING EFFECT. ....................................................................................................................... 59

19.10 NO RECOURSE TO MEMBERS OF BUYER. ................................................................................... 59

19.11 FORWARD CONTRACT. .............................................................................................................. 60

19.12 FURTHER ASSURANCES ............................................................................................................. 60 Agenda Item: 14

Exhibits:

Exhibit A Facility Description
Exhibit B Major Project Development Milestones and Commercial Operation Exhibit C Compensation
Exhibit D Scheduling Coordinator Responsibilities
Exhibit E Progress Reporting Form
Exhibit F-1 Form of Average Expected Energy Report
Exhibit F-2 Form of Monthly Available Capacity Report
Exhibit G Guaranteed Energy Production Damages Calculation Exhibit H Form of Commercial Operation Date Certificate Exhibit I Form of Installed Capacity Certificate
Exhibit J Form of Construction Start Date Certificate
Exhibit K Form of Letter of Credit
Exhibit L Form of Guaranty
Exhibit M Form of Replacement RA Notice
Exhibit N Notices
Exhibit O Operating Restrictions
Exhibit P Metering Diagram
Exhibit Q Workforce Development
Agenda Item: 14

RENEWABLE POWER PURCHASE AGREEMENT
This Renewable Power Purchase Agreement (this “Agreement”) is entered into as of _____, 2021 (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 meanings ascribed to them in Article 1 to this Agreement.

RECITALS
WHEREAS, Seller intends to develop, design, permit, construct, 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 consideration, the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the following:

ARTICLE 1

DEFINITIONS

1.1 Contract Definitions. The following terms, when used herein with initial capitalization, shall have the meanings set forth below:
“Accepted Compliance Costs” has the meaning set forth in Section 3.14. “Adjusted Energy Production” has the meaning set forth in Exhibit G. “Affiliate” means, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition and the definition of “Permitted Transferee”, “control”, “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. “Alternating Current” or “AC” means alternating current. “Ancillary Services” means all ancillary services, products and other attributes, if any, associated with the Facility. As of the Effective Date, the Parties agree and acknowledge that there are no Ancillary Services for Seller to provide and thus no value to the Ancillary Services.

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“Approved Forecast Vendor” means (x) CAISO or (y) any other vendor reasonably acceptable to both Buyer and Seller for the purposes of providing or verifying the forecasts under Section 4.3(d).
“Available Generating Capacity” means the capacity of the Facility, expressed in whole MWs, that is mechanically available to generate Energy. “Bankrupt” means with respect to any entity, such entity that (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, (b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, (c) makes an assignment or any general arrangement for the benefit of creditors, (d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due. “Bid” has the same meaning set forth in the CAISO Tariff. “Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 AM and ends at 5:00 PM Pacific Prevailing Time for the Party sending a Notice, or payment, or performing a specified action. “Buyer” means East Bay Community Energy Authority, a California joint powers authority.
“Buyer Bid Curtailment” means the occurrence of all of the following:
(a) the CAISO provides notice to a Party or the Scheduling Coordinator for the Facility, requiring the Party to deliver less Facility Energy from the Facility than the full amount of energy forecasted in accordance with Section 4.3 to be produced from the Facility for a period of time; (b) for the same time period as referenced in (a), the notice referenced in (a) results from the manner in which Buyer or the SC schedules or bids the Facility or Facility Energy, including where Buyer or the SC for the Facility:
(i) did not submit a Self-Schedule or an Energy Supply Bid for the MW subject to the reduction; or
(ii) submitted an Energy Supply Bid and the CAISO notice referenced in (a) is solely a result of CAISO implementing the Energy Supply Bid; or (iii) submitted a Self-Schedule for less than the full amount of Facility Energy forecasted to be generated by or delivered from the Facility.

If the Facility is subject to a Planned Outage, Forced Facility Outage, Force Majeure Event or a Curtailment Period during the same time period as referenced in (a), then the calculation of Deemed Delivered Energy in respect of such period shall not include any Energy that was not Agenda Item: 14

generated due to such Planned Outage, Forced Facility Outage, Force Majeure Event or Curtailment Period.
“Buyer Curtailment Order” means the instruction from Buyer to Seller to reduce Facility Energy from the Facility by the amount, and for the period of time set forth in such instruction, which instruction shall be consistent with the Operating Restrictions, for reasons unrelated to a Planned Outage, Forced Facility Outage, Force Majeure Event or Curtailment Order. “Buyer Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces Facility Energy from the Facility pursuant to or as a result of (a) Buyer Bid Curtailment or (b) a Buyer Curtailment Order; provided that the duration of any Buyer Curtailment Period shall be inclusive of the time required for the Facility to ramp down and ramp up.
“Buyer Default” means 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 System Operator Corporation. “CAISO Approved Meter” means a CAISO approved revenue quality meter or meters, CAISO approved data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, all Facility Energy delivered to the Delivery Point.
“CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
“CAISO Operating Order” means the “operating order” defined in Section 37.2.1.1 of the CAISO Tariff.
“CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC; provided that if there is a conflict between the BPMs, the CAISO Operating Agreement or the Operating Procedures, on the one hand, and the Tariff, on the other hand, the Tariff will control. “California Renewables Portfolio Standard” or “RPS” means the renewable energy program and policies established by California State Senate Bills 1038 (2002), 1078 (2002), 107 (2008), X-1 2 (2011), 350 (2015), and 100 (2018) as codified in, inter alia, California Public Utilities Code Sections 399.11 through 399.31 and California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time. “Capacity Attribute” means any current or future defined characteristic, certificate, tag, credit, or accounting construct, including any of the same counted towards any current or future resource adequacy or reserve requirements, associated with the electric generation capability and capacity of the Facility or the Facility’s capability and ability to produce and deliver energy.

Agenda Item: 14

Capacity Attributes shall be deemed to include all Resource Adequacy Benefits, if any, associated with the Facility. Capacity Attributes are measured in MW and shall exclude Energy, Green Attributes, Other Attributes, and PTCs or any other Renewable Energy Incentives now or in the future associated with the construction, ownership or operation of the Facility. “Capacity Damages” has the meaning set forth in Exhibit B. “CEC” means the California Energy Commission, 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 hundred eighty (180) days following the Commercial Operation Date, that the CEC has pre-certified) that the Facility is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard and that all Facility Energy delivered to the Delivery 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.
“CEQA” means the California Environmental Quality Act.
“Change of Control” means, except in connection with public market transactions of equity interests or capital stock of Seller’s Ultimate Parent, any circumstance in which Ultimate Parent ceases to own, directly or indirectly through one or more intermediate entities, more than fifty percent (50%) of the outstanding equity interests in Seller; provided that in calculating ownership percentages for all purposes of the foregoing:
(a) any ownership interest in Seller held by Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards Ultimate Parent’s ownership interest in Seller unless Ultimate Parent directly or indirectly owns more than fifty percent (50%) of the outstanding equity interests in each such intermediate entity; and (b) ownership interests in Seller owned directly or indirectly by any Lender (including any tax equity provider) shall be excluded from the total outstanding equity interests in Seller. “Claim” has the meaning set forth in Section 16.2.
“COD Certificate” has the meaning set forth in Exhibit B. “Commercial Operation” has the meaning set forth in Exhibit B. “Commercial Operation Date” has the meaning set forth in Exhibit B. “Commercial Operation Delay Damages” or “COD Delay Damages” means an amount equal to [$x/day] that is the result of (a) the Development Security amount required hereunder, divided by (b) sixty (60).

Agenda Item: 14

“Compliance ” has the meaning set forth in Section 3.14. “Compliance Expenditure Cap” has the meaning set forth in Section 3.14. “Compliance Showings” means the (a) the Resource Adequacy Requirements compliance or advisory showings (or similar or successor showings), (b) if applicable, the Local RAR compliance or advisory showings (or similar or successor showings) and (c) if applicable, the Flexible RAR compliance or advisory showings (or similar successor showings), that Buyer is required to make to the CPUC (and, to the extent authorized by the CPUC, to the CAISO), pursuant to the Resource Adequacy Rulings, to the CAISO pursuant to the CAISO Tariff, or to any Governmental Authority having jurisdiction.
“Confidential Information” has the meaning set forth in Section 18.1. “Construction Delay Damages” means an amount equal to [$x/day] that is the result of (a) the Development Security amount required hereunder, divided by (b) one hundred twenty (120).
“Construction Start” has the meaning set forth in Exhibit B. “Construction Start Date” has the meaning set forth in Exhibit B. “Contract Price” has the meaning set forth on the Cover Sheet; provided, however, that for all Facility Energy and Deemed Delivered Energy generated or deemed generated during the period on and after the Commercial Operation Date until the RA Guarantee Date, the Contract Price shall be equal to the Test Energy Rate.
“Contract Term” has the meaning set forth in Section 2.1. “Contract Year” means a period of twelve (12) consecutive months beginning on January 1st and continuing through December 31st of each calendar year, except that the first Contract Year shall commence on the Commercial Operation Date and the last Contract Year shall end at midnight at the end of the day prior to 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 expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace the Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating and replacing the Agreement. “Cover Sheet” means the cover sheet to this Agreement, which is incorporated into this Agreement.
“CPM Soft Offer Cap” has the meaning set forth in the CAISO Tariff. “CPUC” means the California Public Utilities Commission or any successor agency performing similar statutory functions.

Agenda Item: 14

“CPUC Filing Guide” is the document issued annually by the CPUC which sets forth the guidelines, requirements and instructions for load serving entities to demonstrate compliance with the CPUC’s resource adequacy program.
“CPUC System RA Penalty” has the meaning set forth in the Resource Adequacy Rulings.
“Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by S&P or Moody’s. If ratings by S&P and Moody’s are not equivalent, the lower rating shall apply.
“Curtailment Cap” is the yearly quantity per Contract Year, in MWh, equal to fifty (50) hours multiplied by the Guaranteed Capacity.
“Curtailment Order” means any of the following:
(a) CAISO or another Governmental Authority orders, directs, alerts, or provides notice to a Party, including through a CAISO Operating Order, to curtail deliveries of Facility Energy for the following reasons: (i) any System Emergency, or (ii) any warning of an anticipated System Emergency, or warning of an imminent condition or situation, which jeopardizes CAISO’s electric system integrity or the integrity of other systems to which CAISO is connected; (b) a curtailment ordered by the Participating Transmission Owner for reasons including, but not limited to, (i) any situation that affects normal function of the electric system including, but not limited to, any abnormal condition that requires action to prevent circumstances such as equipment damage, loss of load, or abnormal voltage conditions, or (ii) any warning, forecast or anticipation of conditions or situations that jeopardize the Participating Transmission Owner’s electric system integrity or the integrity of other systems to which the Participating Transmission Owner is connected;
(c) a curtailment ordered by CAISO or the Participating Transmission Owner due to scheduled or unscheduled maintenance on the Participating Transmission Owner’s transmission facilities that prevents (i) Buyer from receiving or (ii) Seller from delivering Facility Energy to the Delivery Point; or
(d) a curtailment in accordance with Seller’s obligations under its Interconnection Agreement with the Participating Transmission Owner or distribution operator; or (e) a curtailment by Seller.
“Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which generation from the Facility is reduced pursuant to a Curtailment Order; provided that the Curtailment Period shall be inclusive of the time required for the Facility to ramp down and ramp up.

Agenda Item: 14

“Damage Payment” means the dollar amount that equals the amount of the Development Security.
“Day-Ahead Forecast” has the meaning set forth in Section 4.3. “Day-Ahead Market” has the meaning set forth in the CAISO Tariff. “Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff. “Deemed Delivered Energy” means the amount of Energy expressed in MWh that the Facility would have produced and delivered to the Delivery Point, but that is not produced by the Facility during a Buyer Curtailment Period, shall be calculated using the CAISO VER forecast or an industry-standard methodology agreed to by Buyer and Seller that utilizes meteorological conditions on Site, less the amount of Energy delivered to the Delivery Point during the Buyer Curtailment Period; provided that, if the applicable difference is negative, the Deemed Delivered Energy shall be zero (0).
“Defaulting Party” has the meaning set forth in Section 11.1(a). “Deficient Month” has the meaning set forth in Section 4.8(e). “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, unless terminated earlier in accordance with the terms and conditions of this Agreement.
“Development Cure Period” has the meaning set forth in Exhibit B. “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. “Effective FCDS Date” means the date identified in Seller’s Notice to Buyer (along with a Full Capacity Deliverability Status Finding from CAISO) as the date that the Facility has attained Full Capacity Deliverability Status.
“Electrical Losses” means all transmission or transformation losses between the Facility and the Delivery Point, including losses associated with delivery of Energy to the Delivery Point. “Eligible Renewable Energy Resource” has the meaning set forth in California Public Utilities Code Section 399.12(e) and California Public Resources Code Section 25741(a), as either code provision is amended or supplemented from time to time. “Energy” means electrical energy (measured in MWh) generated by the Facility.

Agenda Item: 14

“Energy Supply Bid” has the meaning set forth in the CAISO Tariff. “Event of Default” has the meaning set forth in Section 11.1. “Excess MWh” has the meaning set forth in Exhibit C.
“Executed Interconnection Agreement Milestone” means the date for completion of execution of the Interconnection Agreement by Seller and the PTO as set forth on the Cover Sheet. “Expected Commercial Operation Date” is the date set forth on the Cover Sheet by which Seller reasonably expects to achieve Commercial Operation. “Expected Construction Start Date” is the date set forth on the Cover Sheet by which Seller reasonably expects to achieve Construction Start. “Expected Energy” means the quantity of Energy that Seller expects to be able to deliver to Buyer from the Facility during each 12-month Contract Year in the quantity specified on the Cover Sheet.
“Facility” means the electric generating facility described on the Cover Sheet and in Exhibit A, located at the Site and including mechanical equipment and associated facilities and equipment required to deliver Energy to the Delivery Point. “Facility Energy” means the Energy during any Settlement Interval or Settlement Period, net of Electrical Losses and Station Use, as measured by the Facility Meter, which Facility Meter will be adjusted in accordance with CAISO meter requirements and Prudent Operating Practices to account for Electrical Losses and Station Use.
“Facility Meter” means the CAISO Approved Meter that will measure all Facility Energy.

Without limiting Seller’s obligation to deliver Facility Energy to the Delivery Point, the Facility Meter will be located, and Facility Energy will be measured, at the low voltage side of the main step up transformer and will be subject to adjustment in accordance with CAISO meter requirements and Prudent Operating Practices to account for Electrical Losses and Station Use. “FERC” means the Federal Energy Regulatory Commission.
“Financial Close” means Seller or one of its Affiliates has obtained debt or equity financing commitments from one or more Lenders sufficient to construct the Facility, including such financing commitments from Seller’s owner(s).
“Financing Milestone” means the date set forth on the Cover Sheet for Seller to satisfy the following requirements demonstrating the Facility’s eligibility for the [ITC/PTC] by [Seller to propose suggested criteria for establishing eligibility, e.g., safe harboring of equipment prior to sunset dates, tax counsel opinion, etc.].
“Force Majeure Event” has the meaning set forth in Section 10.1.

Agenda Item: 14

“Forced Facility Outage” means an unplanned reduction, interruption or suspension of all or a portion of Energy deliveries from the Facility to the Delivery Point due to events or conditions outside the control of Seller and are not the result of a Force Majeure Event or Planned Outage. “Forecasting Penalty” means for each hour in which Seller does not provide the forecast required in Section 4.3(d) and Buyer incurs a loss or penalty resulting from its scheduling activities in such hour with respect to Facility Energy, the product of (A) the absolute difference (if any) between (i) the expected Energy for such hour set forth in the Monthly Delivery Forecast, and (ii) the actual Energy produced by the Generating Facility, multiplied by (B) the absolute value of the Real-Time Price in such hour.
“Forward Certificate Transfers” has the meaning set forth in Section 4.8(a). “Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff. “Full Capacity Deliverability Status Finding” means a written confirmation from the CAISO that the Facility is eligible for Full Capacity Deliverability Status. “Future Environmental Attributes” shall mean any and all generation attributes other than Green Attributes or Renewable Energy Incentives under the RPS regulations or under any and all other international, federal, regional, state or other law, rule, regulation, bylaw, treaty or other intergovernmental compact, decision, administrative decision, program (including any voluntary compliance or membership program), competitive market or business method (including all credits, certificates, benefits, and emission measurements, reductions, offsets and allowances related thereto) that are attributable, now, or in the future, to the generation of electrical energy by the Facility. Future Environmental Attributes do not include investment tax credits or production tax credits associated with the construction or operation of the Facility, or other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation.
“Gains” means, with respect to the Non-Defaulting Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner, which economic benefit (if any) shall be deemed the gain (if any) to such Non-Defaulting Party represented by the difference between the present value of the payments required to be made during the remaining Contract Term of this Agreement and the present value of the payments that would be required to be made under any transaction(s) replacing this Agreement. Factors used in determining the economic benefit to a Party may include reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, settlement prices for comparable transactions at liquid trading hubs (e.g., SP-15), all of which should be calculated for the remaining Contract Term, and include the value of Green Attributes and Capacity Attributes. “Governmental Authority” means any federal, state, provincial, local or municipal government, any political subdivision thereof or any other governmental, congressional or Agenda Item: 14

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 hereto. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Facility and its displacement of conventional energy generation. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or 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 Facility Energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) production tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating or air quality permits. If the Facility is a biomass or landfill gas facility and Seller receives any tradable Green Attributes based on the greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Facility.
“Green Tag Reporting Rights” means the right of a purchaser of renewable energy to report ownership of accumulated “green tags” in compliance with and to the extent permitted by applicable Law and include, without limitation, rights under Section 1605(b) of the Energy Policy Act of 1992, and any present or future federal, state or local certification program or emissions trading program, including pursuant to the WREGIS Operating Rules. “Guaranteed Capacity” means the amount of generating capacity of the Facility, as measured in MW at the Delivery Point, set forth on the Cover Sheet. “Guaranteed Commercial Operation Date” means the Expected Commercial Operation Date, as such date may be extended by the Development Cure Period. “Guaranteed Construction Start Date” means the Expected Construction Start Date, as such date may be extended by the Development Cure Period. “Guaranteed Energy Production” means an amount of Product, as measured in MWh, equal to [eighty-five percent (85%) – solar][ seventy-five percent (75%) – wind] of the total Expected Energy (as set forth on the Cover Sheet) for the applicable Performance Measurement Agenda Item: 14

Period.
“Guaranteed RA Amount” means the amount of Resource Adequacy Benefits (in MW) from the Facility Net Qualifying Capacity (NQC) (in MW) of the Facility as set forth on the Cover Sheet.
“Guarantor” means, with respect to the Party providing Performance Security in the form of a Guaranty, any Person that:
(a) does not already have any material credit exposure to Buyer under any other agreements, guarantees, or other arrangements at the time its Guaranty is issued, (b) is an Affiliate of Seller, or other third party reasonably acceptable to Buyer; (c) has a Credit Rating of BBB- or better from S&P or a Credit Rating of Baa3 or better from Moody’s;
(d) has a tangible net worth of at least One Hundred Million Dollars ($100,000,000); (e) is incorporated or organized in a jurisdiction of the United States and is in good standing in such jurisdiction; and
(f) executes and delivers a Guaranty for the benefit of the other Party. “Guaranty” means a payment guaranty from a Guarantor provided for the benefit of Buyer substantially in the form attached as Exhibit L or in such other form as is reasonably agreed to by the Parties.
“Imbalance Energy” means the amount of Energy in MWh, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy.
“Indemnifiable Loss(es)” has the meaning set forth in Section 16.3. “Indemnified Party” has the meaning set forth in Section 16.3. “Indemnifying Party” has the meaning set forth in Section 16.3. “Initial Synchronization” means the initial delivery of Facility 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 achieves Commercial Operation (up to but not in excess of the Guaranteed Capacity), adjusted for ambient conditions on the date of the performance test, and as evidenced by a certificate(s) substantially in the form attached as Exhibit I hereto. “Interconnection Agreement” means the interconnection agreements entered into by Seller pursuant to which the Facility will be interconnected with the Transmission System, providing for interconnection capacity available or allocable to the Facility that is no less than the Agenda Item: 14

Guaranteed Capacity, and 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 facilities, control and protective devices and metering facilities required to connect the Facility with the Transmission System in accordance with the Interconnection Agreement.
“Interest Rate” has the meaning set forth in Section 8.2. “Interim Deliverability Status” has the meaning set forth in the CAISO Tariff. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “Investment Grade Credit Rating” means a Credit Rating of BBB- or higher by S&P or Baa3 or higher by Moody’s.
“ITC” means the investment tax credit established pursuant to Section 48 of the United States Internal Revenue Code of 1986.
“Joint Powers Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.).
“Joint Powers Agreement” means that certain Joint Powers Agreement dated December 1, 2016, as amended from time to time, under which Buyer is organized as a Joint Powers Authority in accordance with the Joint Powers Act.
“Law” means any applicable law, statute, rule, regulation, decision, writ, order, decree or judgment, permit or any interpretation thereof, promulgated or issued by a Governmental Authority.
“Lender” means, collectively, any Person (i) providing credit support, senior or subordinated construction, interim, back leverage or long-term debt, working capital, equity or tax equity financing or refinancing for or in connection with the development, construction, purchase, installation, operation, maintenance, repair, replacement or improvement of the Facility, whether that financing or refinancing takes the form of private debt (including back-leverage debt), equity (including tax equity), public debt or any other form (including financing or refinancing provided to a member or other direct or indirect owner of Seller), including any equity or tax equity investor directly or indirectly providing financing or refinancing for the Facility or purchasing equity ownership interests of Seller or its Affiliates, and any trustee or agent or similar representative acting on their behalf, (ii) providing Interest Rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of 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 U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a Credit Rating of at least A- with an outlook designation of “stable” from S&P or A3 with an outlook designation Agenda Item: 14

of “stable” from Moody’s, in a form substantially similar to the letter of credit set forth in Exhibit K.
“Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Buyer, licensed in the State of California. “Local Capacity Area Resources” has the meaning set forth in the CAISO Tariff. “Local RAR” means the local resource adequacy requirements established for load serving entities by the CPUC pursuant to the Resource Adequacy Rulings, the CAISO pursuant to the CAISO Tariff, or by any other Governmental Authority having jurisdiction. “Locational Marginal Price” or “LMP” has the meaning set forth in the CAISO Tariff. “Losses” means, with respect to the Non-Defaulting Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner, which economic loss (if any) shall be deemed to be the loss (if any) to such Party represented by the difference between the present value of the payments required to be made during the remaining Contract Term of this Agreement and the present value of the payments that would be required to be made under transaction(s) replacing this Agreement. Factors used in determining economic loss to a Party may include reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, settlement prices for comparable transactions at liquid trading hubs (e.g., NP-15), all of which should be calculated for the remaining Contract Term and must include the value of Green Attributes, Capacity Attributes, and Renewable Energy Incentives. “Lost Output” means the amount of Facility Energy that Seller could reasonably have delivered to Buyer but was prevented from delivering to Buyer by reason of any Force Majeure Events, Curtailment Period, System Emergency, Buyer Default or Buyer Curtailment Periods . “Major Project Development Milestone” has the meaning set forth in Exhibit B. “Major Subcontractors” means any first-tier subcontractor of Seller with which Seller has an agreement having an aggregate value in excess of Ten Million Dollars ($10,000,000) for performance of any part of the Work at the Site.
“Meter Service Agreement” has the meaning set forth in the CAISO Tariff. “Milestones” means the development activities for significant permitting, interconnection, financing and construction milestones set forth on the Cover Sheet. “Monthly Delivery Forecast” has the meaning set forth in Section 4.3(b). “Moody’s” means Moody’s Investors Service, Inc.

Agenda Item: 14

“MW” means megawatts in alternating current, unless expressly stated in terms of direct current.
“MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Negative LMP” means, in any Settlement Period or Settlement Interval, the LMP at the Facility’s PNode is less than Zero dollars ($0).
“NERC” means the North American Electric Reliability Corporation or any successor entity performing similar functions.
“Net Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “Network Upgrades” has the meaning set forth in the CAISO Tariff. “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 electronic mail (email).
“Notice of Claim” has the meaning set forth in Section 16.2. “NP-15” means the Existing Zone Generation Trading Hub for Existing Zone region NP15 as set forth in the CAISO Tariff.

Operating Committee” means one representative each from Buyer and Seller appointed pursuant to Section 6.3.
“Operating Procedures” or “Operating Restrictions” means those rules, requirements, and procedures set forth on Exhibit O.
“Other Attributes” means any and all attributes, products or services, associated with the existence or operation of the Facility that may be claimed or tracked other than (a) Energy, (b) Green Attributes, (c) Capacity Attributes and (d) Renewable Energy Incentives. “Pacific Prevailing Time” means the prevailing standard time or daylight savings time, as applicable, in the Pacific time zone.
“Participating Transmission Owner” or “PTO” means an entity that owns, operates and maintains transmission or distribution lines and associated facilities or has entitlements to use certain transmission or distribution lines and associated facilities where the Facility is interconnected. For purposes of this Agreement, the Participating Transmission Owner is set forth in Exhibit A.
“Party” or “Parties” has the meaning set forth in the Preamble. “Performance Measurement Period” means each period consisting of two (2) consecutive rolling Contract Years.

Agenda Item: 14

“Performance Security” means (i) cash or (ii) a Letter of Credit or (iii) a Guaranty in the amount set forth on the Cover Sheet.
“Permitted Transferee” means (i) any Affiliate of Seller or (ii) any entity that has, or is controlled by another Person that satisfies the following requirements:
(a) A tangible net worth of not less than one hundred fifty million dollars ($150,000,000) or a Credit Rating of at least BBB- from S&P, BBB- from Fitch, or Baa3 from Moody’s; and
(b) At least five (5) years of experience in the ownership and operations of power generation facilities similar to the Facility, or has retained a third-party with such experience to operate the Facility.
“Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
“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 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law.
“Product” has the meaning set forth on the Cover Sheet. “Progress Report” means a progress report including the items set forth in Exhibit E. “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 industry during the relevant time period with respect to grid-interconnected, utility-scale generating facilities in the Western United States, or (b) any of the practices, methods and acts which, in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Prudent Operating Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to acceptable practices, methods or acts generally accepted in the industry with respect to grid-interconnected, utility-scale generating facilities with integrated storage in the Western United States. Prudent Operating Practice includes compliance with applicable Laws, applicable reliability criteria, and the criteria, rules and standards promulgated in the National Electric Safety Code and the National Electrical Code, as they may be amended or superseded from time to time, including the criteria, rules and standards of any successor organizations.

Agenda Item: 14

“PTC” means the production tax credit established pursuant to Section 45 of the United States Internal Revenue Code of 1986.
“PTC Amount” means the amount, on a dollar per MWh basis, equal to the PTC that Seller would have earned in respect of Energy from the Facility at the time, grossed up on an after tax basis at the then-highest marginal combined federal and state corporate tax rate, but failed to earn as a result of Buyer Bid Curtailment or Buyer Curtailment Order, which amount will be calculated by reference to the amount of Deemed Delivered Energy and the number of the Facility’s wind turbines that are eligible to receive Production Tax Credits at the time of determination. “Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “RA Deficiency Amount” means the liquidated damages payment that Seller shall pay to Buyer for an applicable RA Shortfall Month as calculated in accordance with Section 3.8(b). “RA Guarantee Date” means the date that is sixty (60) days after the Commercial Operation Date.
“RA Shortfall Amount” means, for purposes of calculating an RA Deficiency Amount under Section 3.8(b), the extent, expressed in kW, to which during any month commencing after the RA Guarantee Date, the Net Qualifying Capacity of the Facility for such month able to be shown on Buyer’s monthly or annual Resource Adequacy Plan (as defined in the CAISO Tariff) to the CAISO and CPUC and counted as Resource Adequacy Capacity (as defined in the CAISO Tariff) was less than the Guaranteed RA Amount for such month due to (a) the Facility not having achieved Full Capacity Deliverability Status, (b) a Forced Facility Outage, or (c) the CAISO’s reduction in the Net Qualifying Capacity of the Facility due to the Facility’s actual Forced Facility Outage rate (i.e., past performance).
“RA Shortfall Month” means, for purposes of calculating an RA Deficiency Amount under Section 3.8(b), any month commencing after the RA Guarantee Date during which there is an RA Shortfall Amount.
“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(d). “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” has the meaning set forth in California Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Law.

Agenda Item: 14

“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 incentive relating in any way to the Facility that is not a Green Attribute or a Future Environmental Attribute. “Replacement Green Attributes” means Renewable Energy Credits that are Portfolio Content Category 1 and were generated by a California RPS-eligible generating resource that does not produce emissions.
“Replacement RA” means Resource Adequacy Benefits, if any, equivalent to those that would have been provided by the Facility with respect to the applicable Showing Month in which a RA Deficiency Amount is due to Buyer, and, to the extent that Facility was eligible for Local RAR, located within NP 15 or Greater Bay Area Local Capacity Area Resource. “Resource Adequacy Benefits” means the rights and privileges attached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and includes any local, zonal or otherwise locational attributes associated with the Facility, in addition to flex attributes. “Resource Adequacy Requirements” or “RAR” means the resource adequacy requirements established for Buyer pursuant to the Resource Adequacy Rulings, the CAISO pursuant to the CAISO Tariff, or by any other Governmental Authority having jurisdiction. “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, 14-06-050, and any other existing or subsequent decisions, resolutions, or rulings related to resource adequacy, including, without limitation, the CPUC Filing Guide, in each case as may be amended from time to time by the CPUC, 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.
“S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill Companies, Inc.).
“Schedule” has the meaning set forth in the CAISO Tariff, and “Scheduled” has a corollary meaning.
“Scheduled Energy” means the Facility Energy that clears under the applicable CAISO market based on the final Day-Ahead Schedule, FMM Schedule (as defined in the CAISO Tariff), or any other financially binding Schedule, market instruction or dispatch for the Facility for a given period of time implemented in accordance with the CAISO Tariff. “Scheduling Coordinator” or “SC” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the Agenda Item: 14

functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time.
“Security Interest” has the meaning set forth in Section 8.9. “Self-Schedule” has the meaning set forth in the CAISO Tariff. “Seller” has the meaning set forth on the Cover Sheet.
“Seller’s WREGIS Account” has the meaning set forth in Section 4.8(a). “Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other. If the Non-Defaulting Party’s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to the Non-Defaulting Party. If the Non-Defaulting Party’s Gains exceed its Costs and Losses, then the Settlement Amount shall be zero dollars ($0). The Settlement Amount does not include consequential, incidental, punitive, exemplary or indirect or business interruption damages. “Settlement Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff. “Site” means the necessary real property on which the Facility is or will be located, as further described in Exhibit A, and as shall be updated by Seller at the time Seller provides an executed Construction Start Date certificate in the form of Exhibit J to Buyer. “Site Control” means that, for the Contract Term, Seller (or, prior to the Delivery Term, its Affiliate): (a) owns or has the option to purchase the Site; (b) is the lessee or has the option to lease the Site; or (c) is the holder of an easement or an option for an easement, right-of-way grant, or similar instrument with respect to the Site.
“Showing Month” means the calendar month of the Delivery Term that is the subject of the Compliance Showing, as set forth in the Resource Adequacy Rulings and outlined in the CAISO Tariff. For illustrative purposes only, pursuant to the CAISO Tariff and Resource Adequacy Rulings in effect as of the Effective Date, the monthly Compliance Showing made in June is for the Showing Month of August.
“Station Use” means:
(a) The Energy produced by the Facility that is used within the Facility to power the lights, motors, control systems and other electrical loads that are necessary for operation of the Facility; and
(b) The Energy produced by the Facility that is consumed within the Facility’s electric energy distribution system as losses.
“System Emergency” means any condition that requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (i) prevent or limit harm to or loss of life or Agenda Item: 14