Ava Community Energy Board of Directors
February 21, 2024

Board of Directors Meeting
Wednesday, February 21, 2024
6:00 pm
In Person
The Lake Merritt Room
Cal State East Bay - the Oakland Center
In the Transpacific Centre
1000 Broadway, Suite 109
Oakland, CA 94607
Or from the following remote locations:
• Member Tiedemann – 1121 L St #408 Sacramento, CA 95814 • Member Bartlett – Wells Fargo Building - 2140 Shattuck Avenue, Floor 6, Berkeley, CA 94704
• Member Barrientos – Residence Inn Bakersfield Lobby - 4241 Chester Ln, Bakersfield, CA 93309
• Member Kaur – Clipper Club - 5 Captain Dr. Emeryville, CA 94608 • Member Cox – Conference Room - Irvington Community Center 41885 Blacow Rd. Fremont, CA 94538
• Member Warmsley – Hilton Stockton Lobby - 2323 Grand Canal Boulevard, Stockton, CA, 95207
• Member Bedolla – 1755 Harvest Landing Lane, Tracy, CA 95376 • Member Patino – Tenaya Lodge Lobby - 1122 Highway 41 Fish Camp, CA 93623
• CAC Chair Eldred - 500 metros Este del Canopy, Calle, Montezuma-Delicias Rd, Provincia de Puntarenas, Montezuma, 60111, Costa Rica
Via Zoom:
https://ebce-org.zoom.us/j/87023071843
Dial(for higher quality, dial a number based on your current location): US: +1 669 900 6833 or +1 346 248 7799 or +1 253 215 8782 or +1 929 205 6099 or +1 301 715 8592 or 888 475 4499 (Toll Free) or 877 853 5257 (Toll Free) Webinar ID: 870 2307 1843
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].

Ava Community Energy
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If you have anything that you wish to be distributed to the Board of Directors, 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 Ava Community Energy-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.

4. Closed Session Public Comment

5. Closed Session
A. Public Employee Performance Evaluation and Appointment pursuant to Government Code § 54957: Chief Executive Officer; Conference with Labor Negotiators (Negotiators: Board Chair and Vice Chair) (Unrepresented Employee: Chief Executive Officer).

6. General Report Out of Closed Session

CONSENT AGENDA

7. Approval of Minutes from January 17, 2024

8. Contracts Entered into (Informational Item)

9. State Legislative Advocate
Adopt a Resolution authorizing the CEO to negotiate and execute a CSA with Omni government representation services.

10.Amendment to Celery Design Collaborative CSA
Adopt a resolution authorizing the CEO to negotiate and execute the sixth amendment to the CSA with Celery Design Collaborative

11.Fiscal Year 2023-2024 Q2 Financial Statements
Second quarter financial statements for the current fiscal year.

12. Arup Amendment
Approve Resolution Authorizing Ava CEO to Negotiate and Execute an Amendment to the Agreement with Arup to Provide Grant Writing Support and General Technical Consulting Services

REGULAR AGENDA
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13. CEO Report

14. CAC Chair Report

15. Selection of Chair and Vice-Chair (Action Item)

16. Long-Term Contracts for Approval
Requesting Intersect Easley PPA Approval

17. Disadvantaged Communities - Green Tariff / Community Solar Green Tariff Power Purchase Agreement (Action Item)
DAC-GT/CSGT PPA approval

18. Board Member and Staff Announcements including requests to place items on future Board agendas

19. Closed Session Public Comment

20. Closed Session
B. Conference with Real Property Negotiators pursuant to Government Code § 54956.8: 251 8th Street (Negotiators: CEO Nick Chaset, CFO Howard Chang, General Counsel Inder Khalsa) (price and terms of payment).

21.General Report Out of Closed Session

22. Adjourn
The next Board of Directors meeting will be held on Wednesday, March 20, 2024 at 6:00 pm.

The Lake Merritt Room
Cal State East Bay - the Oakland Center
In the Transpacific Centre
1000 Broadway, Suite 109
Oakland, CA 94607
Draft Minutes
Board of Directors Meeting
Wednesday, January 17, 2024
6:00 pm
In Person
The Lake Merritt Room
Cal State East Bay - the Oakland Center
In the Transpacific Centre
1000 Broadway, Suite 109
Oakland, CA 94607
Or from the following remote locations:
• Wells Fargo Building - 2140 Shattuck Avenue, Floor 6, Berkeley, CA 94704 • Dublin City Hall - 100 Civic Plaza, Dublin, CA 94568
• Clipper Club - 5 Captain Dr. Emeryville, CA 94608
• Conference Room - Irvington Community Center 41885 Blacow Rd. Fremont, CA 94538
• Marina Community Center Lobby, 15301 Wicks Blvd. San Leandro, CA 94577 • 1755 Harvest Landing Lane, Tracy, CA 95376
• 33349 9th Street (back office) Union City, CA 94587
• 500 metros Este del Canopy, Calle, Montezuma-Delicias Rd, Provincia de Puntarenas, Montezuma, 60111, Costa Rica
Via Zoom:
https://ebce-org.zoom.us/j/87023071843
Dial(for higher quality, dial a number based on your current location): US: +1 669 900 6833 or +1 346 248 7799 or +1 253 215 8782 or +1 929 205 6099 or +1 301 715 8592 or 888 475 4499 (Toll Free) or 877 853 5257 (Toll Free) Webinar ID: 870 2307 1843
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 of Directors, please email it to the clerk by 5:00 pm the day prior to the meeting.

1. (9:13) Welcome & Roll Call
Ava Community Energy
Board of Directors Page | 2

Present: Directors: Tiedemann (Albany), Hu (Dublin), Kaur (Emeryville), Cox (Fremont), Roche (Hayward), Barrientos (Livermore), Jorgens (Newark), Kalb (Oakland), Andersen (Piedmont), Nibert (Pleasanton), Simon (San Leandro), Wright (Stockton), Bedolla (Tracy), Patino (Union City), Eldred (Community Advisory Committee) and Chair Marquez (Alameda County)
Not Present: Directors: Bartlett (Berkeley)
Councilmember Sukhdeep Kaur is the new Member for Emeryville.

Councilmember John Bauters is new Alternate for Emeryville.

Director Nibert served as the voting representative for the City of Pleasanton (Vice-Chair Balch).

Director Simon served as the voting representative for the City of San Leandro (Member Gonzalez).

2. Pledge of Allegiance
Chair Marquez led the body in the Pledge of Allegiance.

3. Public Comment
This item is reserved for persons wishing to address the Board on any Ava Community Energy-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. (15:43) Public Comment – Jessica Tovar, representing East Bay Clean Power Alliance (EBCPA) and Local Clean Power Alliance (LCPA), stated that EBCPA and LCPA were started to advocate for community choice programs in the East Bay with a commitment to community investment. Jessica Tovar urged for a renewal of the agency's original community-focused commitment and a reevaluation of its progress. (18:01) Public Comment – Tom Kelly from Berkeley followed up on Jessica Tovar's remarks by noting that the 2018 Local Development Business Plan (LDBP) had significant recommendations that have not been implemented. He supported Jessica Tovar's call for revising the plan and requested a report on the achievements related to the plan's initial recommendations.

CONSENT AGENDA

4. Approval of Minutes from December 20, 2023

5. Contracts Entered into (Informational Item)

6. Quarterly Treasurer’s Report (Informational Item)
Report on Ava’s cash positions
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7. Resero CSA
Authorization to negotiate and execute a CSA for CAISO/wholesale market consulting services.
(19:03) Member Wright motioned to approve the Consent Agenda. Member Tiedemann seconded the motion, which was approved 14/0/2.

Yes: Members Tiedemann, Hu, Kaur, Cox, Roche, Jorgens, Kalb, Andersen, Simon, Wright, Bedolla, Patino, Nibert, Chair Marquez
Not Present: Members Bartlett and Barrientos

REGULAR AGENDA

8. CEO Report
(21:04) CEO Chaset reported that the January 10, 2024 Executive Committee meeting was not held. The next Executive Committee meeting will be held on February 7, 2024.

The Financial, Administrative and Procurement subcommittee meeting took place on January 10th. Members discussed the fiscal year budget surplus and long-term off-take agreements. The next Financial, Administrative and Procurement subcommittee meeting will be held on March 13, 2024. Two new colleagues joined Ava: Romeo Phillips as a data engineer and Vashna Manisha as a settlements manager.

9. CAC Chair Report
(22:42) CAC Chair Eldred reported that due to the holiday, the Community Advisory Committee (CAC) is currently at a six-member quorum, and with a member leaving early, they were unable to maintain quorum throughout the meeting. Chair elections are postponed to February, marking Eldred's last meeting with the board, and she announced her resignation from the CAC.

CAC Chair Eldred also mentioned concerns about the recruitment process for North Region, suggesting a full-time position and a longer recruitment period due to short notice to the community. She also discussed the need for better support for CAC members, including providing meals for those who travel long distances to attend meetings.

Chair Marquez (22:50) and Member Tiedemann (25:50) expressed their gratitude to CAC Chair Eldred for her dedicated service and impactful leadership of the Community Advisory Committee (CAC). Remarks from public commenters, including Jessica Tovar (28:23), Tim Frank (30:16), and Tom Kelly (30:43), expressed appreciation for CAC Chair Eldred's many contributions and her commitment to equity, justice, and community engagement.

10. (34:44) Fiscal Year Budget Surplus (Action Item)
Approve allocation of Budget surplus among a few options The presentation by Jason Bartlett, Finance Manager at Ava Community Energy, detailed the fiscal year's budget surplus and discussed potential allocations of net revenues. Initially, the budget projected net revenues just under $180 million, with the first $150 million allocated to working capital and reserves, and the remaining funds split between long-term renewables and on-bill credits for customers. However, current Ava Community Energy
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projections indicate a $260 million surplus, opening discussions for potentially reallocating the surplus towards more long-term renewables, on-bill credits, or other options like incentives for rooftop solar and storage targeting specific customer classes. (48:59) Member Roche asked about discussions within the Financial, Administrative and Procurement subcommittee regarding the allocation of funds to enhance the renewable content in Bright Choice. CEO Chaset clarified that that the current focus of the agency is on achieving 100% clean energy by 2030.
(53:33) Member Tiedemann asked about the rationale for selecting net metering proposals as an option for allocating surplus funds. CEO Chaset explained that public and board interest in funding resilience hubs, which are essentially solar and storage projects, influenced this reasoning. CEO Chaset clarified that while the net billing tariff is typically associated with homeowners, the funds could support a broader range of projects, including multifamily and community-based organizations. (1:05:53) Public Comment: Tom Kelly expressed concern that Ava Community Energy might be overcharging customers by adhering to a rate schedule pegged to PG&E's rates rather than adopting a cost-of-service rate schedule. He advocated for reallocating a significant amount of the funds designated for on-bill credits to CARE/FERA customers. (1:08:07) Public Comment: Audrey Ichinose spoke in support of increasing the allocation of resources for resiliency hubs. She spoke about the importance of these hubs in providing shelter during blackouts and other climate emergencies, in addition to traditional locations like firehouses and police stations. (1:09:21) Public Comment: Jessica Tovar representing the East Bay Clean Power Alliance and twelve environmental justice organizations, advocated for Ava Community Energy to allocate $15 million of its budget surplus to Community Resilience Hubs.

Jessica Tovar spoke about the need for resilience hubs to provide life-saving resources for the most vulnerable communities and urged investment in long-term community benefits rather than bill credits.
(1:11:40) CAC Chair Eldred stated that the CAC supported allocating 20% of the budget surplus towards CARE/FERA and medical baseline customers and at least $15 million towards resilience hubs - in alignment with the recommendations of environmental justice organizations.
(1:25:07) Member Tiedemann motioned to approve the Financial, Administrative and Procurement subcommittee’s recommendation to allocate the net surplus revenues after allocations to working capital and reserve funds as:
• 60% allocated to on-bill credits with some portion applied specifically to CARE/FERA customers
• 40% allocated to Option C--incentives for net billing tariffs.” Additionally, Member Tiedemann noted the expectation that the Option C allocation target community resilience hubs, and that the budget surplus allocations will be reviewed by the Executive Committee.

Member Barrientos seconded the motion, which was approved 15/0/1.

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Yes: Members: Tiedemann, Hu, Kaur, Cox, Roche, Barrientos, Jorgens, Kalb, Andersen, Gonzalez, Wright, Bedolla, Patino, Nibert and Chair Marquez.

Not Present: Member Bartlett

11. Workforce and EJ Project Selection Criteria (Action Item) Approval of a Policy regarding Workforce and Environmental Justice Project Selection Criteria
(1:27:53) CEO Nick Chaset presented about the collaborative effort between staff, environmental justice, and labor groups to develop criteria for selecting clean energy projects. These criteria cover workforce development, project location, environmental stewardship, and benefits to equity priority communities. (1:32:39) General Counsel Inder Khalsa proposed minor amendments to the Ava Community Energy's workforce and environmental justice project selection policy to ensure local hiring preferences comply with state and federal laws and to avoid the possibility for a reduction in hiring diversity.
(1:35:41) Member Cox asked about the weighting of the five criteria categories in the project selection process. CEO Chaset responded that there is no specific weighting assigned to project selection criteria.
(1:38:35) CAC Chair Eldred requested that any changes made to the language regarding local hiring preferences, aimed at ensuring diversity in hiring, be shared for informational purposes.
(1:42:41) Member Kalb raised concerns about how local hire policies would apply to projects outside of Ava's immediate service territory, such as those in Southern California or near Modesto. CEO Chaset clarified that while the policy encourages local hiring within the project's vicinity to stimulate the local economy, it might not be feasible or appropriate to enforce this for projects far from Ava's service area.

Public comments from Jason Gumanatano (1:46:45), Audrey Ichinose (1:48:26), Jessica Tovar (1:50:16), and Eric Veium (1:51:59) expressed strong support for the CCA Workforce and EJ Project Selection Criteria Policy. (1:54:15) Comments from Member Roche, Member Wright, Chair Marquez, Member Hu and CAC Chair Eldred expressed gratitude for the collaborative effort from labor representatives, stakeholders, board members and staff to develop the policy. (1:54:15) Member Wright motioned to approve the Workforce and Environmental Justice Project Selection Criteria Policy. Member Kalb seconded the motion, which was approved 15/0/1:

Yes: Members: Tiedemann, Hu, Kaur, Cox, Roche, Barrientos, Jorgens, Kalb, Andersen, Gonzalez, Wright, Bedolla, Patino, Nibert and Chair Marquez.

Not Present: Member Bartlett

12. Long-Term Contracts for Approval (Action Item)
Approval of multiple long-term contracts/offtake agreements from 2023 RFO and bilateral Ava Community Energy
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negotiations
(1:59:36) Marie Fontenot presented 5 long term contracts for approval, including:

A) Zeta Solar + Storage Project with Long Road Energy (37.5MW solar, 37.5MW battery storage)
B) 90MW Ignis Battery Storage Project
C) 240MW Ignis Wind Farm Project in Mexico
D) 200MW Clearway Battery Storage Project
E) 400MW Clearway Battery Storage Project
There was an extensive discussion about the Ignis Wind Farm project in Mexico and the use of Mexican labor. For example, Member Simon (2:20:56) raised concerns about using Mexican labor to build the wind turbines instead of American/IBEW workers, and Member Cox (2:22:19) spoke regarding about the lack of working rights and protections in Mexico. In response, Marie Fontenot stated that IBEW will build the transmission lines, including the portion in Mexico.
(2:51:36) Public Comment: Tim Frank of the Alameda County Building and Construction Trades Council suggested differentiating the Mexico wind project and requiring a check-back with the Board to resolve labor issues before approval, rather than rejecting the project outright.
(2:52:49) Public Comment: Jessica Tovar of Local Clean Energy Alliance stated Ava Community Energy should recommit to its original promise to the community of local clean energy development and reinvesting money back into the local community. (2:59:21) CAC Chair Eldred reported that the CAC voted in opposition the Mexico project due to concerns about the potential for lowered prevailing wages under bilateral and regional trade deals such as NAFTA. Members of the CAC spoke in support of increased local investment in renewables and storage and to ensure worker protections. (3:14:02) Member Wright offered to separate the staff’s recommendation into two motions. The first motion would separate consideration of the non-Mexico project items (a, c, d, and e) from the Mexico project (item b). The second motion would ask for approval of the Mexico wind farm project (item b) with the following conditions:
a) Ava has the unilateral right to terminate the contract with no penalty. b) The project will be brought back as an action item withing 12 months for the Board to consider, with a status update on if it meets the labor standards discussed. c) The Board would be able to terminate the contract for any reason. (3:16:09) Motion 1/2:

Member Wright motioned to approve Items A, C, D and E. Member Roche seconded the motion, which passed 15/0/1:

Yes: Members: Tiedemann, Hu, Kaur, Cox, Roche, Barrientos, Jorgens, Kalb, Andersen, Gonzalez, Wright, Bedolla, Patino, Nibert and Chair Marquez.

Not Present: Member Bartlett
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(3:18:06) Motion 2/2:

Member Wright motioned to approve Item B. the Ignis Wind Farm Project provided that:
a. Ava staff re-present the executed agreement to the Ava Board 12-months after its execution and seek authorization to continue to move forward with the Project after sufficient review of wage and labor standards, and b. Any executed agreement shall include the right for Ava to terminate the agreement for any reason including if, following the Board’s secondary review, the Board determines labor standards to no meeting Ava’s organizational standards.

Member Bedolla seconded the motion, which was approved 15/0/1:

Yes: Members: Tiedemann, Hu, Kaur, Cox, Roche, Barrientos, Jorgens, Kalb, Andersen, Gonzalez, Wright, Bedolla, Patino, Nibert and Chair Marquez.

Not Present: Member Bartlett

13. Selection of Chair and Vice-Chair (Action Item)
(3:22:14) Chair Marquez moved Item 13 – The Selection of the Chair and Vice-Chair to the February 21, 2024 BOD meeting.

14. Board Member and Staff Announcements including requests to place items on future Board agendas
(3:22:43) There were no Board Member or Staff Announcements.

Chair Marquez asked when a status update would be given for the Local Development Business Plan. CEO Chaset responded that a status update would be given to a subcommittee in February 2024 and the Board between March and May.

15. Closed Session
• Public Employee Performance Evaluation pursuant to Government Code § 54957:

Chief Executive Officer

16. General Report Out of Closed Session
(3:55:27) There were no items to report out of Closed Session.

17. Adjourned at 9:56 pm.

The next Board of Directors meeting will be held on Wednesday, February 21, 2024 at 6:00 pm.

The Lake Merritt Room
Cal State East Bay - the Oakland Center
In the Transpacific Centre
1000 Broadway, Suite 109
Oakland, CA 94607
Jessica Guadalupe Tovar
339 15th Street Suite 208
Oakland, CA 94612
415-766-7766
Subject: Staff Report 10 - Fiscal Year Budget Surplus (Action Item) - Need for Community Driven Resilience Hubs for Environmental Justice Communities January 16, 2024
Dear Ava Community Energy Board Members, Alternates and Community Advisory Committee, We, the undersigned community-based organizations, members and supporters of the East Bay Clean Power Alliance, call for the Board of Directors of Ava Community Energy to invest $15 million of any 2023-2024 budget surplus into community resilience hubs and prioritize environmental justice, low income and BIPOC communities in site selection, as this is where the need for energy resilience is highest.

The need for access to emergency energy services during climate-related and other crises, particularly in communities long neglected due to systemic injustice, has increased dramatically and is expected to become more frequent as accelerating climate chaos brings wildfires, smoke, hurricane-force storms, life-threatening heat, and increased utility power shutoffs (Public Safety Power Shut offs - PSPS). While there is certainly value to any distributed and aggregated solar and storage, we call on Ava/EBCE to fulfill its responsibility to maximize the community benefits of its programs by placing these distributed energy resources in community trusted locations that support environmental justice community needs.

In light of massive budget surpluses and the current focus on municipal buildings, the $2 Million that has been allocated to a Community Resilience Hub program is not nearly sufficient. The draft budget for 2023-2024 included an estimated surplus of $260.7million. Understanding this to be an estimate, we call on Ava Community Energy to commit at least $15 million of any budget surplus to a Community Resilience Hub program independent of their municipal ownership status. Examples include: health clinics, senior centers, day cares, shelters, affordable housing complexes, food banks, places of worship and community centers.

While we were pleased to hear that schools as well as senior and community centers were included as eligible sites for the Resilient Critical Municipal Facilities program in May 2023, nowhere is it guaranteed that these sites are being included in the program. Additionally, the program has not explicitly solicited any community feedback on priorities for site selection. We call on Ava Community Energy to develop a community feedback process for site selection in the Resilient Municipal Critical Facilities program that works with local Exhibit 1
Public Comment from Jessica Tovar for the January 17,
2024 Ava Board of Directors Meeting
community-based organizations to prioritize sites in environmental justice, low income and BIPOC communities similar to the proposed Community Innovation Grant to facilitate site selection of the Community Resilience Hub program. At least 60% of facilities in both programs must be in census tract disadvantaged communities:

We urge the EBCE Board of Directors to prioritize energy equity by:

1. Committing at least $15 Million of any budget surplus from 2023-2024 into the Community Resilience Hub program to target accessible and trusted community spaces independent of their municipal ownership status.

2. Developing a community feedback process for site selection in the Resilient Municipal Critical Facilities program that works with local community-based organizations and prioritizes sites in low income BIPOC communities.

Jessica Guadalupe Tovar, East Bay Clean Power Alliance
Signatory Organizations:

1. Communities for a Better Environment

2. Asian Pacific Environmental Network

3. Rose Foundation for Communities and the Environment

4. New Voices Are Rising

5. Kehilla Community Synagogue

6. California Trade Justice Coalition

7. Sierra Club

8. East Bay Asian Local Development Corporation

9. Reimagine Power

10. Reclaim Our Power Utility Justice Campaign

11. Collective Resilience

12. East Oakland Collective
Public Comment from Jessica Tovar on behalf of East Bay Clean Power Alliance for the January 17, 2024 Ava Board of Directors Meeting January 16, 2024
Chair Marquez and Honorable Board of Directors
Ava Community Energy
1999 Harrison Street, Suite 2300
Oakland, CA 94612
Subject: Support for Ava Community Energy’s Workforce & Environmental Justice Project Selection Criteria Policy (Staff Report Item 11)
Dear Chair Marquez and Honorable Directors,
On behalf of the CCA Workforce and Environmental Justice Standards Alliance, a coalition of over 40 labor, environmental, climate, and environmental justice organizations, we express our wholehearted support for the adoption of the Workforce & Environmental Justice Project Selection Criteria Policy.

We extend our sincere gratitude to the Ava Community Energy (formerly East Bay Community Energy) staff for their unwavering commitment and collaboration in developing the Workforce & Environmental Justice Project Selection Criteria Policy. We commend the openness and dedication of your staff throughout this process and believe that the demonstrated responsiveness, collaboration, and transparency should serve as a model for all future community and stakeholder engagement by CCAs across the state. This engagement process showcases how community-driven initiatives can thrive when stakeholders are actively involved.

Exhibit 2
Public Comment from Leslie Austin for the January 17, 2024 Ava Board of Directors Meeting We appreciate Finance Administrative Procurement (FAP) Committee Chair Bauters and members for their guidance in supporting this groundbreaking policy. If adopted by your board, the policy will establish a new standard for clean energy projects among Community Choice Aggregations (CCAs) in the state. Your commitment to environmental justice and workforce considerations positions Ava Community Energy as a leader among CCAs in California.

While the adoption of the Workforce & Environmental Justice Project Selection Criteria Policy is a significant achievement, we emphasize the importance of robust implementation. The success of this policy hinges on how it is translated into Request for Offer (RFO) language, the weighting of scoring criteria, proposal evaluations, and comprehensive reporting to the board during project approval and post-completion. Consistent and transparent reporting will be crucial in maintaining accountability and ensuring the policy's objectives are effectively realized.

In conclusion, we wholeheartedly support Ava Community Energy in taking this bold step towards a cleaner and more just future. Your leadership in adopting this policy will undoubtedly influence other CCAs across the state, setting a new standard for best practices in clean energy projects.

Thank you for your dedication to workers and the communities that host your clean energy projects.

Sincerely,
Endorsement list of alliance organizations follows:

Susan Penner, Co-Chair, Legislative Working Group, 1000 Grandmothers for Future Generations
Alan Weiner, Coordinator, 350 Conejo / San Fernando Valley Transition Team, California Alliance for Community Energy Lucas Zucker, Co-Executive Director, Central Coast Alliance United for a Sustainable Economy Ana Rosa Rizo-Centino, Network Manager, Central Coast Climate Justice Network Lynda Marin, Chapter Lead, Citizens’ Climate Lobby, Santa Cruz Chapter Michael Chiacos, Policy Director, Community Environmental Council Jordan Ackerman, Sr. Policy and Public Affairs Manager, Construction Trades Workforce Initiative
Ratha Lai, CEO, Critical Impact Consulting
Rita Casaverde, Executive Director, Diversity Coalition, San Luis Obispo County Jessica Tovar, East Bay Clean Power Alliance
Public Comment from Leslie Austin for the January 17, 2024 Ava Board of Directors Meeting John Foran, Founding Editor, Eco-Vista
Andy Carman, Director, Environteers
Leah Redwood, Action Coordinator, Extinction Rebellion San Francisco Bay Area Tim Frank, Representative, Building and Construction Trades Council of Alameda Bart Pantoja, Building and Construction Trades Council of San Mateo County John Doherty, Business Manager, IBEW Local 6
Paul Guiterrez, Business Manager, IBEW Local 234
Bill Baker, Business Manager, IBEW Local 413
Greg Bonato, Business Manager, IBEW Local 595
Scott Wein, Business Manager, IBEW Local 617
Mark Simonin, Business Manager, IBEW Local 639
Hector Huezo, California Director, Jobs to Move America Veronica Wilson, CA Organizer, Labor Network for Sustainability Leslie Austin, Director, Let’s Green CA!
Jessica Tovar, Steering Committee Member, Local Clean Energy Alliance Gopal Shanker, President, Récolte Energy
Nancy Faulstich, Executive Director, Regeneración Pajaro Valley Sara Nelson, Executive Director, Romero Institute
Alex Lansberg, Director, Research & Advocacy, San Francisco Electrical Contractors Assoc.

Jill ZamEk, Board Member, San Luis Obispo Mothers for Peace Robert M. Gould, MD, President, San Francisco Bay Physicians for Social Responsibility Joni Eisen, Representative, San Francisco Climate Emergency Coalition Ken Hough, Executive Director, Santa Barbara County Action Network Pauline Seales, Educator Organizer, Santa Cruz Climate Action Network Eric Veium, Chair and Co-Executive Director, SLO Climate Coalition Melissa Yu, Senior Energy Campaigns Representative, Sierra Club Timothy Duda, Directory, Terra Advocati
Woody Hastings, Fossil Fuel Phaseout Manager, The Climate Center Public Comment from Leslie Austin for the January 17, 2024 Ava Board of Directors Meeting Kristin Kusanovich, Founder, tUrn Climate Crisis Awareness & Action Bijan Ashtiani-Eisemann, Organizer, UC Green New Deal Coalition Louise Auerhahn, Director of Economic & Workforce Policy, Working Partnerships USA Public Comment from Leslie Austin for the January 17, 2024 Ava Board of Directors Meeting Exhibit 3
Public Comment from Barbara Stebbins for the January 17, 2024 Ava Board of Directors Meeting Adrian Bankhead <[email protected]> Wed, Jan 17, 2024 at 8:10 PM To: Clerk of the Board <[email protected]>
Cc: Barbara Stebbins <[email protected]>
Dear Ava Board of Directors,
The following written public comment was submitted by Barbara Stebbins during the meeting. This public comment will be added to the public meetings page and agenda packet after the meeting. "The Staff proposal to execute an agreement with Ignis for the Wind ProUSA/ Ignis Wind Farm Project is a perfect example of what the advocates who fought for and won the formation of Ava, a public, not-for-profit electricity hoped to prevent. For Ava to commit ratepayer funds to this project is an example of the worst kind of extractive purchase. Local ratepayer money leaves our communities to pay a corporate, profit-making entity. While important energy resources produced in Mexico are of no benefit to the people there.We urge the Board not to approve this contract, and to require staff to promote non-extractive , local projects that benefit their customers." thank you,
Adrian
Consent Item 8
Consent Item 8
TO: Ava Community Energy Board of Directors
FROM: Nick Chaset, Chief Executive Officer
SUBJECT: Contracts Entered Into
DATE: February 21, 2024
________________________________________________________________________

RECOMMENDATION
Accept the CEO’s report on contracts that Ava Community Energy has entered into, as required by the Administrative Procurement Policy, from January 11, 2024 to February 14, 2024; C-2023-151 Pacific Gas and Electric Trading Partner Agreement, replaces a previous version of this Agreement to reflect new legal name Ava Community Energy.

C-2023-152 Pacific Gas and Electric CCA Service Agreement, replaces a previous version of this Agreement to reflect new legal name Ava Community Energy.

C-2023-153 Lattice Order Form, provides Ava with their HR product core licenses for performance management, OKRs & Goals, Engagement, Grow, and Compensation, with a contract value of $27,000.

C-2023-154 Sacramento Municipal Utilities District (SMUD) Amendment 22 to Exhibit A, Task Order 2, amends Scope of Work to include Phase 1: Brand Changes by Channel and Phase II:

Brand Changes to Special Program Discounts for Bill Presentment, and amends Section 6.5 Optional Services Fee to include fees associated with scope changes.

C-2023-155 Paycor Order for Services, provides Ava with their HR Solutions Suite, including services for Human Capital Management, Talent Acquisition, Workforce Management, Benefits Advisory, Payroll Processing, Learning Library, and Learning Management, with an annualized total fee of $31,740.75, along with $6,500 in implementation fees, for a total first year investment of $38,240.75.

C-2023-156 Oakland Venue Management Consulting Services Agreement, provides audio services to Ava through June 30, 2024, with a maximum compensation of $35,000 ($2,008.80 per project assignment).

Consent Item 8
C-2023-157 AIQUEOUS Amendment 4 to Consulting Online Services Agreement, adds additional compensation, increasing the not-to-exceed amount by $70,000 for a total amount not to exceed of $430,000, and provides notification of Ava name change.

C-2023-158 Townsend Public Affairs First Amendment to Consulting Services Agreement, adds additional compensation, increasing the not-to-exceed amount by $60,000 for a total amount not-to-exceed of $120,000, and extends the term through November 30, 2024.

C-2024-001 Great Place To Work Institute Inc. Order Form, purchase order of the Great Place To Work products and services, Analyze, for an initial term length of 12 months, at a total price of $3,495.00.

C-2024-002 Ergobility, LLC Consulting Services Agreement, (San Ramon, CA) provides ergonomic training and assessment services with a maximum compensation of $2,000 effective January 2, 2024 through as directed by Ava.

C-2024-003 Habitat for Humanity East Bay/Silicon Valley (EBSV) Sponsorship Agreement, provides $100,000 sponsorship per year for two years for the purposes of accelerating clean energy and electrification investments within Ava's service territory, effective December 1, 2023 through June 30, 2025.

C-2024-004 City of Hayward Charging Station Master Site License Agreement, provides Ava, its contractors and vendors license to use and occupy a portion of property (Sites), including the designated parking spaces for charging electric vehicles (Charging Stations).

C-2024-005 Stantec Consulting Services Sixth Amendment to Consulting Services Agreement, adds additional compensation, increasing the not-to-exceed amount by $150,000 for a total amount of $550,000, updates and expands the scope to including Electric Vehicle (EV) Design Engineering services for additional cities in Ava's services territory, extends the termination date to June 30, 2025, and updates the hourly rates of compensation.

C-2024-006 City of Pleasanton Amendment No. 1 to Charging Station Master Site License Agreement, corrects an error in the preamble, reflects Ava's name change, updates Ava's address, adds language regarding public disclosure under California Records Act, and updates specific requirements related to operation and maintenance.

C-2024-007 Oakland Roots Sports Club and Oakland Soul Sports Club Local Sponsorship Agreement, provides the Oakland Roots Sports Club with $150,000 and the Oakland Soul Sports Club with $46,000 in sponsorships, as their exclusive clean energy sponsor, for the term of January 1, 2024 through December 31, 2024.

C-2024-008 Ergobility, LLC First Amendment to Consulting Services Agreement, increases the not-to-exceed amount by $3,000 for a total amount not to exceed of $5,000.

Consent Item 9
Consent Item 9
TO: Ava Community Energy Authority
FROM: Alec Ward, Principal Legislative Manager
SUBJECT: CSA with Omni Government Relations for State Legislative Advocacy and Advisory Services
DATE: February 21, 2024
__________________________________________________________________ Recommendation
Adopt a Resolution authorizing Ava Community Energy’s (Ava’s) Chief Executive Officer to negotiate and execute a Consulting Services Agreement (CSA) with Omni Government Relations, LLC (Omni) to provide state legislative advocacy and advisory services to Ava through December 31, 2024, with a not-to-exceed amount of $115,000.

Background and Discussion
Ava staff met separately with three highly recommended government relations firms in October 2023 to solicit quotes and discuss the firms’ background, qualifications, experience, abilities, and proposed approach: 1) Weideman Group, 2) Strategies 360, and 3) Omni. Staff evaluated the strengths and weaknesses of each proposal along with the proposed quote. Staff selected Omni as the best option and recommends Board approval of a one-year contract for state legislative services. Omni rose to the top of the selection pool based on the quality of its personnel, demonstrated competence and successes, existing partnerships and relationships, strategic and tactical insights and capabilities, proposed price, and ability to tailor its strategy and approach to the needs, mission, and goals of Ava. These services would replace those previously provided to Ava by Weideman Group between 2018 to 2023.

Omni is a full-service government affairs firm with years of proven experience shaping some of the state’s most pressing public policy issues. Omni was founded by one of Sacramento’s leading lobbyists, Mandy Lee, who brings her experience from the Consent Item 9
Capitol, private sector, and nonprofit background to bear for the benefit of her clients. Mandy Lee is a distinguished government and government affairs professional, and she brings over 15 years of government relations, campaign, political strategy, and public service experience to her clients. She serves as a trusted advisor to national and state trade associations, prominent Fortune 10 companies, and large public agencies. Dan Chia of Omni would also represent Ava.

Most recently, Dan was the Founder/Principal of Chia Strategies, a clean energy and transportation boutique consulting and lobbying firm. Dan created his own practice after a ten-year government affairs career at Tesla and SolarCity. Dan advocated for Ava’s legislative causes in 2022 through our previous government relations firm, and his work was well regarded. Omni also has a strong familiarity with Community Choice Aggregators and Ava. In addition, Omni represents the Clean Power Alliance, where they came highly recommended. Omni has strong relationships with elected officials, especially the Bay Area delegation.

Omni’s clear understanding of Ava’s mission and values, their successful experience advocating in the clean energy space, and their strategic insights gave Ava staff confidence that Omni is the best choice for providing Ava with state legislative advocacy and advisory services in 2024.

Fiscal Impact
The CSA would result in a not-to-exceed amount of $115,000 in calendar year 2024.

In 2023, Ava had a not-to-exceed amount of $125,000 for these services.

Attachments
A. Omni proposal to Ava
B. Resolution Authorizing the CEO to Negotiate and Execute a CSA with Omni

PROPOSAL FOR LOBBYING SERVICES

FOR AVA COMMUNITY ENERGY
by Omni Government Relations, LLC
A Registered California Lobbying Firm
Sacramento, CA
November 19, 2023
Attachment Consent Item 9A

TABLE OF CONTENTS
Contents Page No.

I. Introduction ……………………………………………………………….………… 3
II. Consultant Bio ……………………………………………………………………… 4-6
III. Scope of Work ……………………………………………………………………… 7
IV. Fee Schedule ….………………………………...………………………………….. 8
Attachment Consent Item 9A
3 I.

November 19, 2023
Alec Ward, Principal Legislative Manager
Ava Community Energy
1999 Harrison Street, Suite 2300
Oakland, CA 94612
Dear Mr. Ward:

Omni Government Relations, LLC (Omni) is pleased to submit this proposal for lobbying services to Ava Community Energy (ACE).

Founded by leading government affairs professional Mandy Lee, Omni prides itself on delivering smart solutions on behalf of our clients on a multitude of issues. The dictionary defines “omni” as “universal; of all things” and that is the service we bring to our clients. We are all things to our clients but above all, we are your trusted counsel. Omni is a full service government affairs firm with years of proven experience shaping some of the state’s most pressing public policy issues.

Our reach of influence benefits our clients and their causes.

Omni has a proven track record of delivering results for our diverse clients. Whether the task is securing a budget allocation, leading a coalition or successfully navigating a high-profile fight, we have done it all with great outcomes for our clients. We have also helped our clients navigate the political realm of Sacramento by helping them build profile and develop relationships with key touch points in the Capitol - advising step by step on how to achieve success and gain influence in California.

We have cultivated our political network through decades of trusted political relationships at the state and local level. Omni’s deep knowledge of the legislative and budgetary process allows us to customize an advocacy plan and work hand-in-hand with our clients to execute it, ultimately charting the course for our clients to achieve their legislative objectives. We develop strategies that are focused, smart and creative in California’s every-changing and tenuous political environment.

We view our mission as helping our clients overcome challenges and identify opportunities in one of the most difficult political landscapes in the world – the California Legislature. We are pleased to submit this proposal to ACE and thank you for the consideration of our firm.

Sincerely,
Mandy Lee
Founder/Principal
Omni Government Relations
Attachment Consent Item 9A
4 II.

TEAM BIO
Omni was founded by one of Sacramento’s leading lobbyists, Mandy Lee, who brings her experience from the Capitol, private sector and nonprofit background to bear for the benefit of her clients. Our experience and hard work will provide ACE with expert advocacy and the tools to deliver positive outcomes.

Leading this work will be Mandy Lee, Founder and Principal of the firm. Additionally, Dan Chia, Senior Director, will be supporting her work. Brittany Youngman, Executive Assistant, will provide administrative, legislative research and compliance support.

Mandy Lee
Founder, Omni Government Relations
Mandy Lee is a distinguished government and government affairs professional and brings over 15 years of government relations, campaign, political strategy and public service experience to her clients. She serves as a trusted advisor to national and state trade associations, prominent Fortune 10 companies, and large public agencies helping them navigate through the complex world of politics and policy in one of the world’s most challenging political landscapes - the California Legislature.

Mandy founded Omni Government Relations in 2019 with the intention of building a portfolio of world class clients, all while maintaining the personalized touch of a boutique firm. Valuing one-on-one interactions with clients, Mandy curates winning strategies for each of her clients. In 2021, Mandy led a coalition of local governments, electric vehicle charging companies and environmental groups and secured $51 million in the state budget for a program that will enable her client to build out EV infrastructure in underserved parts of its footprint. In 2022, Mandy succeeded in securing multiple budget allocations in order to relieve supply chain congestion. The most significant accomplishment was not only securing a $1.2 billion allocation for port infrastructure but ensuring that 70 percent of the funding went directly to the Ports of Long Beach and Los Angeles.

Prior to founding her firm, Mandy served in prominent leadership roles having served as President of one of Sacramento’s largest advocacy firms. There, she built a diverse portfolio of clients in the healthcare, banking and finance, transportation, energy and insurance space and managed and led a team of lobbyists. With her diverse client portfolio, she has built longstanding relationships with nearly every Member of the Legislature to the benefit of all of her clients.

Prior to that, Mandy served as Vice President of Government Affairs at the California Retailers Association, a prominent trade association representing the interests of the retail industry. There, she served as chief lobbyist for state, local and regulatory issues and managed the Association’s powerful Political Action Committee. In this role, she exhibited success in leading high profile legislative negotiations, coalition building and political strategy.

Attachment Consent Item 9A
5 In 2016, Mandy was nationally recognized as one of the top Asian American Pacific Islander political operatives by the National Association of Asian Pacifics in Politics and Public Affairs (NAAPPPA). In 2019, she was recognized by the California LGBT Caucus for her work in the community, including her efforts to elect more LGBT persons into office. In 2021, 2022 and 2023, she was named in Capitol Weekly’s Top 100 list, which highlights the 100 most powerful movers and shakers in California politics today.

Mandy started her career in public service, having served in a number of capacities in both houses of the California Legislature. A key pillar of Omni’s advocacy approach is built on the philosophy that you must master the institution that you seek to influence.

Mandy dedicates her spare time to giving back to the community. She is the former President and current Executive Committee Board Member of Equality California, one of the largest LGBTQ civil rights organizations in the nation, helping the organization with its political and advocacy activities. She also serves on the Board of the California Legislative LGBT Leadership Fund, participating in independent expenditures and direct electoral activities to get more LGBTQ+ people into elected office.

Mandy is a graduate of California State University Hayward, where she studied political science with an emphasis on law.

Dan Chia
Senior Director, Omni Government Relations
Dan Chia is a Senior Director at Omni Government Relations. Most recently, he was the Founder/Principal of Chia Strategies, a clean energy and transportation boutique consulting and lobbying firm. Dan created his own practice after a fulfilling, ten-year government affairs career at Tesla and SolarCity. As a Senior Manager of Public Policy and Business Development at Tesla, Dan led west coast government affairs, including CA state and local government affairs, during the company’s critical growth phase after introduction of the Model 3. He managed a team of policy and regulatory experts in EVs, solar energy, battery storage, and EV charging, provided strategic advice to the Tesla’s executive team regarding business development, tax incentives, and other matters, and helped resolve local government permitting and regulatory issues at Tesla’s major CA facilities. Dan played a pivotal role in helping to secure millions of dollars of sales tax exemptions for Tesla’s EV and battery manufacturing facilities and helped pass legislation and regulatory measures to accelerate the adoption of EVs, charging infrastructure, and rooftop solar. As Director of Policy and Electricity Markets for SolarCity, Dan managed California and Nevada legislative and regulatory affairs and opened new markets in these states.

Dan began his career in the public sector, as a land use regulator for the California Coastal Commission, analyzing coastal development permit applications for energy and other industrial projects in the coastal zone. He was the lead analyst reviewing the impacts of trans-Pacific fiber optic cables, oil and gas remediation, and coastal power plants. He then served four California State Assemblymembers, including three consecutive Chairs of the Assembly Natural Resources Committee, with expansive jurisdiction over issues such as energy, forestry and fire management, mining, land conservation, oil and gas development, and waste management. Dan Attachment Consent Item 9A
6 gained valuable energy and utility experience as a Deputy Director in the CA Public Utilities Commission’s (CPUC) Office of Government Affairs, advising CPUC Commissioners, senior leadership, and the Governor’s Office on legislative and budget matters and working closely with legislators, CPUC staff and stakeholders to shape legislation in a manner the CPUC could support.

Dan received a Master’s in Public Policy from the Goldman School of Public Policy at U.C.

Berkeley and Bachelor of Science degree in Environmental Policy Analysis and Planning from U.C. Davis.

He lives in Sacramento with his wife and son and enjoys keeping up with his son on the playground, playing tennis, hiking, and gardening.

Attachment Consent Item 9A
7 III.

SCOPE OF WORK
The Scope of Work described below is hereby included as an integral part of our proposal to ACE. The goal of the activities listed below is to provide you with the most coordinated and seamless service possible in furtherance of the ACE’s legislative, budgetary and administrative needs.
• Omni will assist ACE in building and enhancing relationships with key members of the Legislature, Governor’s Office, and Newsom Administration and their staff, enabling ACE to raise its profile and influence, improve its credibility, and increase its bandwidth. • Omni will connect ACE’s work with issues and policies that are of interest to the Governor and Legislature including climate change, energy reliability, zero-emission transportation and charging infrastructure, and distributed energy resources. With a full understanding of the breadth of the ACE’s assets and initiatives, Omni can help personalize ACE’s work both in Sacramento and in legislative districts in order to demonstrate ACE’s leadership in these areas and allow legislators to see how relevant policies are directly impacting their constituents. • Omni will initially focus on enhancing relationships with ACE’s legislative delegation with the goal of ensuring these legislators perceive ACE as a resource and leader in the clean energy space.
• Omni will work with ACE to develop an advocacy and outreach plan, incorporating the above scope and other strategies or tactics to accomplish its legislative, budgetary or administrative needs for the 2024 legislative cycle.
• Omni will help ACE organize advocacy or other trips to Sacramento and schedule meetings with Legislators, the Governor’s Office, relevant committee and other staff. • Omni will electronically track and analyze all introduced legislation and amendments affecting ACE. Omni will provide ACE with custom bill reports containing status, location, and relevant hearing dates.
• Omni will advocate on behalf of ACE in meetings with legislators, testify in committee or budget hearings, and assist in drafting or finalizing position letters, legislation and amendments as directed by ACE.
• Omni will provide ACE updates on legislation, the state budget, political trends, and electoral and other information relevant to ACE during regular check-ins and an annual strategy retreat. • Omni will keep ACE apprised of key proposals and developments at agencies such as the CA Energy Commission, CA Air Resources Board, and others as directed by ACE, and introduce ACE to relevant appointees and staff at these agencies.

Attachment Consent Item 9A
8 IV.

FEE SCHEDULE
Omni Government Relations proposes to meet the full range of legislative advocacy services work described above in the Scope of Work section. For this agreement, we suggest a monthly retainer fee set at Ten Thousand Dollars ($10,000) per month.

Extraordinary business expenses, such as air fare and hotel accommodations or other travel shall be reimbursed with prior approval from ACE. Omni’s retainer will be billed monthly by a written invoice to the contract administrator.

Attachment Consent Item 9A
Attachment Consent Item 9B
RESOLUTION NO. R-2024-XX

A RESOLUTION OF THE BOARD OF DIRECTORS OF AVA COMMUNITY ENERGY

AUTHORITY AUTHORIZING THE CEO TO NEGOTIATE AND EXECUTE A CONSULTING

SERVICES AGREEMENT WITH OMNI GOVERNMENT RELATIONS, LLC
WHEREAS The Ava Community Energy Authority (“Ava”) 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 Ava and parties to the JPA in March of 2020. The city of Stockton, located in San Joaquin County was added as a member of Ava and party to the JPA in September of 2022. The city of Lathrop, located in San Joaquin County, was added as a member to Ava and party to the JPA in October of 2023. On October 24, 2023, the Authority legally adopted the name Ava Community Energy Authority, where it had previously used the name East Bay Community Energy Authority since its inception.

WHEREAS Ava would be benefited by assistance from Omni Government Relations, LCC (Omni) for legislative advocacy and advisory services, both to represent Ava’s views on bills in the new legislative cycle as well as to provide legislative advocacy and advice around any bills that Ava may choose to sponsor. Omni would facilitate countless meetings in Sacramento, in district and remotely, and support Ava in developing relationships with legislators and their staff, as well as with administration officials and other key strategic partners.

WHEREAS Ava staff solicited quotes from three advocacy firms, and Omni was selected due to the quality of its personnel, demonstrated competence and successes, existing partnerships and relationships, strategic and tactical insights and capabilities, proposed price, and its ability to tailor its strategy and approach to the needs, mission, and goals of Ava.

WHEREAS From 2018 to 2023, Ava contracted with the Weideman Group, Inc. for these services. In 2023, the not-to-exceed for this contract was $125,000.

WHEREAS The contract with the Weideman Group, Inc. expired on December 31, 2023, and Ava now needs new legislative advocacy and advisory services.

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

Attachment Consent Item 9B
Section 1. Ava’s Board of Directors hereby authorizes Ava’s Chief Executive Officer to negotiate and execute a Consulting Services Agreement with Omni to provide state legislative advocacy and advisory services to Ava through December 31, 2024, with a not-to-exceed amount of $115,000.

ADOPTED AND APPROVED this 21st day of February 2024.

Elisa Márquez, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
Consent Item 10
Consent Item 10
TO: Ava Community Energy Authority Board of Directors
FROM: Theresa McDermit, Head of Brand
SUBJECT: Amendment to the Consulting Services Agreement with Celery Design Collaborative
DATE: February 21, 2024
__________________________________________________________________ Recommendation
Adopt a Resolution authorizing the Chief Executive Officer to negotiate and execute the sixth amendment to Ava Community Energy’s Consulting Services Agreement with Celery Design Collaborative, LLC to add $925,000 in compensation for Fiscal Year 2023 – 24.

Background and Discussion
EBCE staff issued a competitive solicitation for an independent graphic and web design consultant on April 25, 2019, and selected Celery Design Collaborative, LLC (“Celery”), a small firm located in Berkeley and registered as a Small, Local, and Emerging Business (SLEB) with the County of Alameda. The Board approved a contract with Celery at the regular meeting on July 17, 2019. The First Amendment, to expand the scope and budget of the agreement, was approved by the Board on February 19, 2020, for the term ending on July 31, 2020. A Second Amendment was approved by the Board on July 15, 2020, to extend the term to June 30, 2021, and increase the budget by $200,000 for the remainder of the term. A Third Amendment was approved by the Board on April 21, 2021, to add $100,000 to the not-to-exceed amount for fiscal year 2020 – 2021, add $300,000 to the not-to-exceed amount for fiscal year 2021-2022, bringing the not-to-exceed amount for both fiscal years to $300,000 each, and to extend the term through June 30, 2022. A Fourth Amendment was approved by the Board on July 20, 2022, to add $445,000 to the not-to-exceed amount for the fiscal year 2022-23 and extend the term through June 30, 2023. A Fifth Amendment, which added $400,000 Consent Item 10
to the not-to-exceed amount, extended the term through June 30, 2024, and updated the hourly rate of compensation, was approved by the Board on June 21, 2023.

During the second half of this fiscal year, Celery is supporting Ava on the territory-wide awareness advertising campaign designed to inform and engage our constituents about our recent rebrand and the role Ava plays in their lives. The funds requested in this amendment will cover creative development, media (i.e., the purchase of advertising), content development, production, and optimization activities associated with the campaign. Additionally, Celery continues to support our ongoing and emerging marketing activities, including those associated with programs, including DC Fast Charging, Health-e Communities, Induction Cooktop Lending Program (ICLP), and evFleet Consulting; therefore, staff recommends increasing the budget for these services with Celery.

Fiscal Impact
There is no additional fiscal impact associated with this request. There are approved funds in the current Marketing and Account Services budget to accommodate this request. Ava receives a discounted non-profit hourly rate from Celery.

Attachments
A. Resolution Authorizing the Chief Executive Officer to Negotiate and Execute a Sixth Amendment to the Consulting Services Agreement with Celery Design Collaborative
Attachment Staff Report Item 10A
RESOLUTION NO. R-2024-xx

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CHIEF

EXECUTIVE OFFICER TO NEGOTIATE AND EXECUTE A SIXTH AMENDMENT TO

THE CONSULTING SERVICES AGREEMENT WITH CELERY DESIGN

COLLABORATIVE
WHEREAS The Ava Community Energy Authority (“Ava”) 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 Ava and parties to the JPA in March of 2020. The city of Stockton, located in San Joaquin County was added as a member of Ava and party to the JPA in September of 2022. The city of Lathrop, located in San Joaquin County, was added as a member to Ava and party to the JPA in October of 2023. On October 24, 2023, the Authority legally adopted the name Ava Community Energy Authority, where it had previously used the name East Bay Community Energy Authority since its inception.

WHEREAS in July 2019, through a competitive solicitation, EBCE selected and entered into a Consulting Services Agreement with Celery Design Collaborative, LLC of Berkeley, California to provide graphic and web design services; and WHEREAS five amendments have been executed to extend the contract term, increase the not-to-exceed amount on the contract, and amend the hourly compensation rate; and
WHEREAS Ava’s workload for outsourced marketing services is forecast to be high in support of our post-rebrand awareness advertising campaign, and the launch and expansion of numerous local development programs.

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

Section 1. The CEO is hereby authorized to negotiate and execute the Sixth Amendment to the Consulting Services Agreement between Ava Community Energy (formerly EBCE) and Celery Design Collaborative, LLC to increase the compensation by $925,000, for a total amount not to exceed $2,670,000. The Agreement will be approved by the General Counsel.

Attachment Staff Report Item 10A
ADOPTED AND APPROVED this 21st day of February, 2024.

Elisa Márquez, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
1 ACCOUNTANTS’ COMPILATION REPORT
Board of Directors
AVA Community Energy
Management is responsible for the accompanying financial statements of AVA Community Energy (a California Joint Powers Authority) which comprise the statement of net position as of December 31, 2023, and the related statements of revenues, expenses, and changes in net position, and the statement of cash flows for the three and six months then ended in accordance with accounting principles generally accepted in the United States of America. We have performed a compilation engagement in accordance with Statements on Standards for Accounting and Review Services promulgated by the Accounting and Review Services Committee of the AICPA. We did not audit or review the accompanying statements nor were we required to perform any procedures to verify the accuracy or completeness of the information provided by management. Accordingly, we do not express an opinion, conclusion, nor provide any assurance on these financial statements.

Management has elected to omit substantially all of the note disclosures required by accounting principles generally accepted in the United States of America in these interim financial statements.

AVA Community Energy’s annual audited financial statements include the note disclosures omitted from these interim statements. If the omitted disclosures were included in these financial statements, they might influence the user’s conclusions about the Authority’s financial position, results of operations, and cash flows. Accordingly, these financial statements are not designed for those who are not informed about such matters.

We are not independent with respect to the Authority because we performed certain accounting services that impaired our independence.

Maher Accountancy
San Rafael, CA
February 6, 2024
1101 Fifth Avenue, Suite 200 San Rafael, CA 94901 415 459 1249 mahercpa.com Attachment Consent Item 11
Current assets
Cash and cash equivalents - unrestricted 442,390,646 $
Accounts receivable, net of allowance 76,854,357
Accrued revenue 50,606,910
Other receivables 3,762,496
Prepaid expenses 2,933,196
Deposits 7,302,495
Total current assets 583,850,100
Noncurrent assets
Unrestricted cash and cash equivalents in Rate Stabilization Fund 53,014,000 Deposits 933,059
Loan receivable 479,973
Lease asset, net of amortization 865,676
Capital assets:

Non depreciable asset 9,386,864
Furniture and equipment, net of depreciation 384,434
Total capital assets 9,771,298
Total noncurrent assets 65,064,006
Total assets 648,914,106
Current liabilities
Accrued cost of electricity 100,357,316
Accounts payable 2,805,275
Other accrued liabilities 6,831,292
User taxes and energy surcharges due to other governments 7,149,445 Lease liability 691,760
Security deposits - energy suppliers 5,210,360
Total current liabilities 123,045,448
Noncurrent liabilities
Lease liability 252,245
Security deposits - energy suppliers 3,600,000
Total liabilities 126,897,693
Rate Stabilization Fund 53,014,000
Net investment in capital assets 9,692,969
Unrestricted 459,309,444
Total net position 469,002,413 $

NET POSITION

AVA COMMUNITY ENERGY

STATEMENT OF NET POSITION
As of December 31, 2023
ASSETS

LIABILITIES

DEFERRED INFLOWS OF RESOURCES
See accountants' compilation report. 2
Attachment Consent Item 11
Quarter Year-to-Date

OPERATING REVENUES
Electricity sales, net 204,950,105 $ $ 473,602,735
Liquidated damages 5,387,857 5,441,770
Grant revenue 612,562 668,793
Other operating revenues 123,921 288,760
Total operating revenues 211,074,445 480,002,058

OPERATING EXPENSES
Cost of electricity 166,176,901 358,828,204
Contract services 4,370,378 8,778,404
Staff compensation 3,695,401 7,665,384
Other operating expenses 1,974,914 2,896,989
Depreciation and amortization 211,229 238,966
Total operating expenses 176,428,823 378,407,947
Operating income (loss) 34,645,622 101,594,111

NONOPERATING REVENUES (EXPENSES)
Investment income 3,087,672 4,983,728
Financing costs (128,569) (231,702)
Nonoperating revenues (expenses), net 2,959,103 4,752,026 CHANGE IN NET POSITION 37,604,725 106,346,137
Net position at beginning of period 431,397,688 362,656,276 Net position at end of period $ 469,002,413 $ 469,002,413

AVA COMMUNITY ENERGY

STATEMENT OF REVENUES, EXPENSES

AND CHANGE IN NET POSITION
Six Months Ended December 31, 2023
See accountants' compilation report. 3
Attachment Consent Item 11
Quarter Year-to-Date

CASH FLOWS FROM OPERATING ACTIVITIES
Receipts from customers 245,011,629 $ 494,242,986 $
Other operating receipts 5,859,390 6,159,374
Receipts of supplier security deposits 5,109,360 5,970,360 Payments to suppliers for electricity (171,145,993) (314,765,615) Payments for other goods and services (6,298,685) (12,467,342) Payments of staff compensation (3,504,229) (7,415,978)
Deposits and collateral paid (6,929,262) (7,216,883)
Tax and surcharge payments to other governments (9,498,037) (18,390,759) Net cash provided (used) by operating activities 58,604,173 146,116,143

CASH FLOWS FROM NON-CAPITAL

FINANCING ACTIVITIES
Payments of financing costs - (103,134)

CASH FLOWS FROM CAPITAL AND RELATED

FINANCING ACTIVITIES
Payments of lease liability (118,304) (118,304)
Payments to acquire capital assets (85,603) (178,302)
Net cash (used) by capital and related financing activities (203,907) (296,606)

CASH FLOWS FROM INVESTING ACTIVITIES
Principal payments received of loan receivable 5,562 11,049 Investment income received 2,886,733 4,627,961
Net cash provided (used) by investing activities 2,892,295 4,639,010 Net change in cash and cash equivalents 61,292,561 150,355,413 Cash and cash equivalents at beginning of period 434,112,085 345,049,233 Cash and cash equivalents at end of period $ 495,404,646 $ 495,404,646 Reconciliation to the Statement of Net Position
Unrestricted cash and cash equivalents (current) $ 442,390,646 $ 442,390,646 Unrestricted cash and cash equivalents (noncurrent) 53,014,000 53,014,000 Cash and cash equivalents $ 495,404,646 $ 495,404,646
Six Months Ended December 31, 2023

STATEMENT OF CASH FLOWS

AVA COMMUNITY ENERGY
See accountants' compilation report. 4
Attachment Consent Item 11
Quarter Year-to-Date
Operating income (loss) $ 34,645,622 $ 101,594,111
Adjustments to reconcile operating income to net
cash provided (used) by operating activities
Depreciation and amortization expense 211,229 238,966
(Increase) decrease in:

Accounts receivable 28,902,980 7,344,301
Market settlements receivable - 807,102
Other receivables (2,495,935) (3,316,161)
Accrued revenue 2,669,819 (4,839,581)
Prepaid expenses (399,724) 15,454,888
Deposits (6,873,069) (7,157,390)
Increase (decrease) in:

Accrued cost of electricity 768,662 35,221,181
Accounts payable 388,826 (1,654,157)
Other accrued liabilities 241,781 266,587
Deferred revenue (58,466) 633,769
User taxes due to other governments (1,009,312) (255,233) Security deposits from energy suppliers 1,611,760 1,777,760 Net cash provided (used) by operating activities 58,604,173 $ $ 146,116,143

RECONCILIATION OF OPERATING INCOME TO NET

CASH PROVIDED (USED) BY OPERATING ACTIVITIES
Six Months Ended December 31, 2023
STATEMENT OF CASH FLOWS (Continued)

AVA COMMUNITY ENERGY
See accountants' compilation report. 5
Attachment Consent Item 11
Consent Item 12
Consent Item 12
TO: Ava Community Energy Board of Directors
FROM: Lori Bilella, Director, Clean Energy Services
SUBJECT: Approve Resolution Authorizing Ava CEO to Negotiate and Execute an Amendment to the Agreement with Arup to Provide Grant Writing Support and General Technical Consulting Services
DATE: February 21, 2024
__________________________________________________________________ Recommendation
Approve a Resolution authorizing Ava CEO to negotiate and execute an Amendment (”Amendment”) to the Consulting Services Agreement (“Agreement”) with Arup North America, LTD (“Arup”) dated May 19, 2021, and amended March 16, 2023, to expand the scope to provide grant writing support to five (5) member jurisdictions, Berkeley, Oakland, Livermore, Hayward, and Alameda County, enabling each jurisdiction to submit a proposal to the California Energy Commission (CEC) for funding support to deploy transportation electrification infrastructure, and to increase the compensation to Arup by $300,000, for a total amount not to exceed $880,000 through December 31, 2024.

Background and Discussion
The CEC is offering a grant that will provide funding to jurisdictions for support in the deployment of transportation electrification infrastructure. Ava has conducted Electric Vehicles (EV) fleet evaluations of five (5) jurisdictions that meet the requirements of the CEC grant.

The grant requires a jurisdiction to be the lead applicant on the grant. Therefore, Ava is unable to apply for the grant on behalf of these jurisdictions. In speaking with our member jurisdictions, they expressed interest in participating in the grant, but have bandwidth constraints in being able to prepare a grant submission in the timeline Consent Item 12
required. Applications for the grant are due in April 2024. Jurisdictions confirmed that if Ava engaged a consultant on their behalf to prepare the grant submission, the jurisdictions would be able to provide the necessary information to the consultant for their respective grant submission. As a result of this feedback, Ava desires to engage Arup for the grant writing and grant submission preparation on behalf of each of the five (5) jurisdictions.

If awarded, this grant funding will help subsidize the cost of deployment transportation electrification, and it will more easily enable Ava to provide cost effective Charging as a Service (Caas) offerings to each of these jurisdictions. As a result, each jurisdiction will have more funds available for the purchase of EVs to utilize the charging infrastructure that Ava could assist in deploying.

Additionally, and separately, Ava has an existing scope of work in place with Arup to provide technical consulting services to support the Critical Municipal Facilities (CMF) RFO. Ava seeks additional budget for the continued support by Arup in this work as we move into the bid review process. Ava will need technical support to review proposals and select a partner for this work.

Arup has the necessary skillset to support the work of both initiatives and Ava seeks to amend the existing Agreement to amend the scope of work and increase the budget to support the additional scope of work.

Grant Writing Support
Ava has completed EV fleet assessments for the majority of our jurisdictions. The CEC has an open grant solicitation to provide funds to jurisdictions that want to deploy transportation electrification infrastructure. Of the EV fleet reports Ava has completed, five (5) of our member jurisdictions meet the necessary requirements of the open CEC grant: Berkely, Oakland, Livermore, Hayward, and Alameda County.

Due to bandwidth constraints of each of the five (5) jurisdictions, Ava plans to engage Arup to prepare the grant applications on behalf of these five (5) jurisdictions. If the funds are secured, Ava can assist in the development and operation of EV charging through our Charging as a Service (CaaS), reducing the cost of cities and the County to convert their gas power fleet vehicles to electric. This will expedite the adoption of EV fleets across these five (5) jurisdictions.

Technical Consulting Services for Critical Municipal Facilities (CMF) Arup has been supporting Ava on the CMF project for several years. Ava has now entered a new phase of the program as we select a development partner to build and operate the Resilience Hubs. Ava requires the continued support of Arup in evaluating bid responses and assisting Ava in the selection of a partner. Arup is already contracted for this scope of work in the existing CSA but needs additional budget for the work.

Consent Item 12
In turn, staff is seeking authorization for the CEO to negotiate and execute an Amendment to the Agreement to expand the Scope of Work to include additional Grant Writing Support for the five (5) jurisdictions and increase the compensation by $300,000.

Fiscal Impact
This Amendment will be funded with $300,000 from the previously approved Local Development Budget.

Attachments
A) Resolution of the Board of Directors of Ava Community Energy Authority Authorizing the CEO to Amend the Consulting Services Agreement with ARUP North America, LTD.

Attachment Consent Item 12A
RESOLUTION NO. R-2024-xx

A RESOLUTION OF THE BOARD OF DIRECTORS

OF THE AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CEO TO AMEND THE CONSULTING SERVICES AGREEMENT WITH ARUP NORTH AMERICA, LTD.

WHEREAS The Ava Community Energy Authority (“Ava”) 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. The city of Stockton, located in San Joaquin County was added as a member of Ava and party to the JPA in September of 2022.

WHEREAS On July 18, 2018, the Board approved the Local Development Business Plan (“LDBP”) and budget. The LDBP identifies a series of local development early actions, outlines a series of policy principles, and defines a set of metrics to measure the impact on Alameda County, and
WHEREAS Ava issued a competitive Request for Proposal solicitation in April 2021 to select vendors to provide engineering and project development services that will support solar, battery energy storage system and DCFC deployment, and WHEREAS Ava executed an agreement with Arup North America, Ltd. (“Arup”) dated May 19, 2021, (“Agreement”) to complete a solar and battery energy storage feasibility assessment on critical municipal facilities designated to serve the community in time of emergency, and
WHEREAS On March 16, 2023, Ava executed a certain First Amendment to the Agreement with Arup for the purposes of expanding the Agreement’s Scope of Work and adding additional compensation for a total compensation amount not to exceed five-hundred eighty thousand dollars ($580,000), and
WHEREAS Ava desires to expand the Scope of Work to include Arup providing support to the member jurisdictions of Berkeley, Oakland, Livermore, Hayward, and Alameda County to apply for a CEC grant that will provide funding to jurisdictions for support in the deployment of transportation electrification infrastructure; WHEREAS Ava desires to increase the budget of the Agreement to allow Arup to continue to support the Critical Municipal Facilities (CMF) RFO; and Attachment Consent Item 12A
WHEREAS Arup is a firm with extensive experience supporting grant writing submission preparation and Ava wishes to utilize these services in addition to the CMF RFO support services already underway.

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

Section 1. The CEO is hereby authorized to negotiate and execute an Amendment to the Agreement, in consultation with staff and General Counsel, to expand the Scope of Work to provide grant writing support to five jurisdictions, which will facilitate deployment of transportation electrification infrastructure, and increase the total compensation by $300,000; with total compensation not to exceed $880,000. The CEO is further authorized to execute any additional clarifying or clerical changes to the Agreement, which must be approved by General Counsel.

ADOPTED AND APPROVED this 21st day of February 2024.

Elisa Márquez, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
CEO Report Item 13
CEO Report Item 13
TO: Ava Community Energy Board of Directors
FROM: Nick Chaset, Chief Executive Officer
SUBJECT: CEO Report (Informational Item)
DATE: February 21, 2024
________________________________________________________________________ Recommendation
Accept Chief Executive Officer (CEO) report on update items below.

Executive Committee Meeting
An Executive Committee Meeting was held on Wednesday, February 7, 2024. There were no open session items on the agenda for that meeting. The next Executive Committee meeting will be held on Wednesday, March 6, 2024 at 9 am.

Marketing Regulatory and Legislative Subcommittee Meeting A Marketing Regulatory and Legislative Subcommittee Meeting was held on Friday, February 16, 2024. Members received updates about legislative priorities and the Ava brand awareness campaign. Members also received feedback about the Ava website refresh. The next Marketing, Regulatory and Legislative Subcommittee meeting will be held on Friday, April 19, 2024 at 12 pm.

Staff Report Item 16
Staff Report Item 16
TO: Ava Community Energy Authority
FROM: Karen Lee, Power Resources Manager
SUBJECT: Intersect Easley (IP Easley, LLC and IP Easley II, LLC) Contracts Approval (Action Item)
DATE: February 21, 2024
__________________________________________________________________ Recommendation
Adopt a Resolution authorizing the Chief Executive Officer to negotiate and execute ten-year power purchase agreements with contracting entities IP Easley, LLC and IP Easley II, LLC, each for a 75 megawatt (MW) solar project in Riverside County, California, developed by Intersect Power.

Background and Discussion
The 2023 Long-Term Resource Request for Offers (RFO) was Ava’s fourth long-term contract solicitation. The RFO was launched in March 2023. The RFO sought several hundred MWs of contracts with renewable energy and battery storage projects with a preference for projects located in California, and more preferentially, those located in Alameda or San Joaquin County. Ava’s objective was to drive investments in new renewable and energy storage projects within our jurisdiction and throughout California, while securing affordable resources to manage future power price risk. Ava received a very healthy response to its RFO both in volume and quality of projects and proposals. Ava administered the RFO and completed robust analytics using internal tools and the cQuant.io valuation platform to calculate the net present value of proposed projects and determine the optimal portfolio to meet its objectives.

Each contract is a 10-year agreement for renewable energy and environmental attributes from a 75 MW solar project. The IP Easley, LLC contract is for 75 MW from a 175 MW solar project paired with a 100 MW/400 megawatt hour (MWh) Lithium-Ion Staff Report Item 16
battery located in Riverside County, California. Similarly, the IP Easley II, LLC contract is for 75 MW from a 175 MW solar project paired with a 100 MW/400 MWh Lithium-Ion battery located in the same project complex in Riverside County, California. The projects have a planned commercial operation date of March 31, 2027, developed by Intersect Power. Intersect Power is an experienced developer with a focus on the development and operation of utility-scale solar and battery storage energy projects in California and Texas. It has successfully brought online 2.2 gigawatts (GW) of solar projects and 1.4 gigawatt hour (GWh) of co-located storage. The contracting entities are limited liability companies established by Intersect Power for its internal financial purposes: IP Easley, LLC and IP Easley II, LLC.

Attachments
A. Resolution Authorizing the CEO to Negotiate and Execute Power Purchase Agreements with IP Easley, LLC and IP Easley II, LLC
B. PowerPoint Presentation
C. Redacted draft of contract with IP Easley, LLC
D. Redacted draft of contract with IP Easley II, LLC
Attachment Staff Report Item 16A
RESOLUTION NO. R-2024-XX

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CEO TO

NEGOTIATE AND EXECUTE POWER PURCHASE AGREEMENTS WITH IP

EASLEY, LLC AND IP EASLEY II, LLC
WHEREAS The Ava Community Energy Authority (“Ava”) 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 Ava and parties to the JPA in March of 2020. The city of Stockton, located in San Joaquin County was added as a member of Ava and party to the JPA in September of 2022. The city of Lathrop, located in San Joaquin County, was added as a member to Ava and party to the JPA in October of 2023. On October 24, 2023, the Authority legally adopted the name Ava Community Energy Authority, where it had previously used the name East Bay Community Energy Authority since its inception.

WHEREAS IP Easley, LLC and IP Easley II, LLC, limited liability companies established by Intersect Power for its internal financial purposes, each proposed 75 megawatts (MW) of renewable energy and environmental attributes from a 175 MW solar photovoltaic and 100 MW/400 megawatt hour (MWh) battery project in Riverside County, CA developed by Intersect Power;
WHEREAS the projects are expected to be operational by March 31, 2027 and will deliver renewable energy and environmental attributes for a term of ten years; and WHEREAS Ava staff considers Intersect Power’s proposal a competitive proposal based on submissions to the 2023 Long-Term Resources Request for Offers (RFO).

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

Section 1. The CEO is hereby authorized, in consultation with staff and legal counsel, to negotiate and execute a ten-year agreement with IP Easley, LLC for a 75 MW solar project in Riverside County, CA. The final agreement shall include the key terms outlined in the Staff Report associated with this resolution.

Section 2. The CEO is hereby authorized, in consultation with staff and legal counsel, to negotiate and execute a ten-year agreement with IP Easley II, LLC for a 75 Attachment Staff Report Item 16A
MW solar project in Riverside County, CA. The final agreement shall include the key terms outlined in the Staff Report associated with this resolution.

ADOPTED AND APPROVED this 21st day of February, 2024.

Elisa Márquez, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
2023 Long-Term
Resource RFO
Overview & Update
February 21, 2024
Attachment Staff Report Item 16B
Agenda
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Solicitation Overview
Attachment Staff Report Item 16B
Solicitation Overview – Eligible Products
Attachment Staff Report Item 16B
Evaluation Process
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Challenges in the Marketplace
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Overview of Planned Procurement
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Status of Negotiations
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Intersect Power – Company Overview
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Intersect Power –Solar Project Details
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Attachment Staff Report Item 16B
Portfolio Summary
Attachment Staff Report Item 16B
Attachment Staff Report Item 16B
FEBRUARY 12, 2024

SELLER DRAFT
1 RENEWABLE POWER PURCHASE AGREEMENT

COVER SHEET
Seller: IP Easley, LLC (“Seller”)
Buyer: Ava Community Energy Authority, a California joint powers authority (“Buyer”) Description of Facility: A 75 MW solar photovoltaic renewable energy generating facility located in Riverside County, in the State of California, and as further described in Exhibit A.

Milestones:

Milestones Date for
Completion
Evidence of Site Control
Executed Interconnection Agreement
CEC Pre-Certification Obtained
Obtain Federal and State Discretionary Permits
Network Upgrades Completed
Procure Major Equipment
Expected Construction Start Date
Initial Synchronization 02/28/2027
Expected Commercial Operation Date 03/31/2027
Full Capacity Deliverability Status Obtained
Delivery Term: The period for Product delivery will be for ten (10) Contract Years.

Expected Energy:

Contract Years Expected Energy
1 2
3 4
Attachment Staff Report Item 16C
2 Contract Years Expected Energy
5 6
7 8
9 10
Guaranteed Capacity: 75 MW
Contract Price: The Contract Price of the Product shall be:

Contract Years Contract Price
1 – 10
Metering Arrangement: SC Metered Entity
Delivery Point:

Product:
☒ Facility Energy
☒ Green Attributes (Portfolio Content Category 1) associated with Facility Energy ☐ Ancillary Services
Scheduling Coordinator: Seller or Seller Third Party
Development Security and Performance Security:

Development Security:

Performance Security:

Attachment Staff Report Item 16C

TABLE OF CONTENTS
Page
i
ARTICLE 1 DEFINITIONS ......................................................................................................1

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

1.2 RULES OF INTERPRETATION................................................................................ 16 ARTICLE 2 TERM; CONDITIONS PRECEDENT................................................................. 17

2.1 CONTRACT TERM............................................................................................... 17

2.2 CONDITIONS PRECEDENT ................................................................................... 18

2.3 DEVELOPMENT; CONSTRUCTION; PROGRESS REPORTS ........................................ 19

2.4 REMEDIAL ACTION PLAN ................................................................................... 19 ARTICLE 3 PURCHASE AND SALE .................................................................................... 19

3.1 PURCHASE AND SALE OF PRODUCT..................................................................... 19

3.2 SALE OF GREEN ATTRIBUTES ............................................................................. 20

3.3 IMBALANCE ENERGY ......................................................................................... 20

3.4 OWNERSHIP OF RENEWABLE ENERGY INCENTIVES.............................................. 20

3.5 FUTURE ENVIRONMENTAL ATTRIBUTES.............................................................. 20

3.6 TEST ENERGY .................................................................................................... 21

3.7 RESERVED ......................................................................................................... 21

3.8 RESERVED ......................................................................................................... 21

3.9 CEC CERTIFICATION AND VERIFICATION............................................................ 21

3.10 RESERVED ......................................................................................................... 21

3.11 NON-MODIFIABLE STANDARD TERMS AND CONDITIONS..................................... 21

3.12 COMPLIANCE EXPENDITURE CAP........................................................................ 22 ARTICLE 4 OBLIGATIONS AND DELIVERIES.................................................................. 23

4.1 DELIVERY.......................................................................................................... 23

4.2 TITLE AND RISK OF LOSS.................................................................................... 23

4.3 FORECASTING.................................................................................................... 24

4.4 RESERVED ......................................................................................................... 25

4.5 STATION USE..................................................................................................... 25

4.6 REDUCTION IN DELIVERY OBLIGATION............................................................... 25

4.7 4.8 WREGIS........................................................................................................... 26

4.9 GREEN-E CERTIFICATION ................................................................................... 27

4.10 INTERCONNECTION CAPACITY............................................................................ 27 ARTICLE 5 TAXES................................................................................................................ 27

5.1 ALLOCATION OF TAXES AND CHARGES............................................................... 27

5.2 COOPERATION ................................................................................................... 28 ARTICLE 6 MAINTENANCE OF THE FACILITY ............................................................... 28

6.1 MAINTENANCE OF THE FACILITY........................................................................ 28

6.2 MAINTENANCE OF HEALTH AND SAFETY ............................................................ 28

6.3 SHARED FACILITIES ........................................................................................... 28 ARTICLE 7 METERING......................................................................................................... 28

7.1 METERING......................................................................................................... 28

7.2 METER VERIFICATION........................................................................................ 29 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ........................................................... 29

8.1 INVOICING......................................................................................................... 29 Attachment Staff Report Item 16C

TABLE OF CONTENTS
(continued)
Page
ii

8.2 PAYMENT .......................................................................................................... 29

8.3 BOOKS AND RECORDS........................................................................................ 30

8.4 PAYMENT ADJUSTMENTS; BILLING ERRORS........................................................ 30

8.5 BILLING DISPUTES ............................................................................................. 30

8.6 NETTING OF PAYMENTS ..................................................................................... 31

8.7 8.8

8.9 FIRST PRIORITY SECURITY INTEREST IN CASH OR CASH EQUIVALENT COLLATERAL..................................................................................................... 32 ARTICLE 9 NOTICES ............................................................................................................ 32

9.1 ADDRESSES FOR THE DELIVERY OF NOTICES....................................................... 32

9.2 ACCEPTABLE MEANS OF DELIVERING NOTICE .................................................... 33 ARTICLE 10 FORCE MAJEURE ........................................................................................... 33

10.1 DEFINITION........................................................................................................ 33

10.2 10.3 NOTICE.............................................................................................................. 34

10.4 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION..................................................... 35

11.1 EVENTS OF DEFAULT ......................................................................................... 35

11.2 REMEDIES; DECLARATION OF EARLY TERMINATION DATE.................................. 36

11.3 TERMINATION PAYMENT.................................................................................... 37

11.4 NOTICE OF PAYMENT OF TERMINATION PAYMENT .............................................. 38

11.5 DISPUTES WITH RESPECT TO TERMINATION PAYMENT........................................ 38

11.6 RIGHTS AND REMEDIES ARE CUMULATIVE......................................................... 38

11.7 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES.......... 38

12.1 NO CONSEQUENTIAL DAMAGES ......................................................................... 38

12.2 WAIVER AND EXCLUSION OF OTHER DAMAGES .................................................. 38 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY........................... 39

13.1 SELLER’S REPRESENTATIONS AND WARRANTIES ................................................ 39

13.2 SELLER COVENANTS .......................................................................................... 40

13.3 BUYER’S REPRESENTATIONS AND WARRANTIES ................................................. 40

13.4 GENERAL COVENANTS....................................................................................... 41

13.5 PREVAILING WAGE............................................................................................ 42

13.6 WORKFORCE DEVELOPMENT.............................................................................. 42

13.7 COMMUNITY INVESTMENT ................................................................................. 42 ARTICLE 14 ASSIGNMENT.................................................................................................. 42

14.1 GENERAL PROHIBITION ON ASSIGNMENTS .......................................................... 42

14.2 COLLATERAL ASSIGNMENT................................................................................ 42

14.3 BUYER LIMITED ASSIGNMENT RIGHT ................................................................. 44

14.4 PERMITTED ASSIGNMENT BY SELLER.................................................................. 45 ARTICLE 15 DISPUTE RESOLUTION.................................................................................. 45

15.1 GOVERNING LAW............................................................................................... 45

15.2 DISPUTE RESOLUTION........................................................................................ 45 Attachment Staff Report Item 16C

TABLE OF CONTENTS
(continued)
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ARTICLE 16 INDEMNIFICATION........................................................................................ 46

16.1 INDEMNIFICATION.............................................................................................. 46

16.2 NOTICE OF CLAIM.............................................................................................. 47

16.3 FAILURE TO PROVIDE NOTICE ............................................................................ 47

16.4 DEFENSE OF CLAIMS.......................................................................................... 47

16.5 AMOUNTS OWED ............................................................................................... 48

16.6 SUBROGATION OF RIGHTS .................................................................................. 48

16.7 RIGHTS AND REMEDIES ARE CUMULATIVE.......................................................... 48 ARTICLE 17 INSURANCE .................................................................................................... 48

17.1 INSURANCE. ....................................................................................................... 48 ARTICLE 18 CONFIDENTIAL INFORMATION .................................................................. 50

18.1 DEFINITION OF CONFIDENTIAL INFORMATION..................................................... 50

18.2 DUTY TO MAINTAIN CONFIDENTIALITY.............................................................. 50

18.3 IRREPARABLE INJURY; REMEDIES....................................................................... 50

18.4 DISCLOSURE TO LENDERS, ETC. ......................................................................... 51

18.5 PRESS RELEASES................................................................................................ 51 ARTICLE 19 MISCELLANEOUS .......................................................................................... 51

19.1 ENTIRE AGREEMENT; INTEGRATION; EXHIBITS ................................................... 51

19.2 AMENDMENTS ................................................................................................... 51

19.3 NO WAIVER....................................................................................................... 51

19.4 NO AGENCY, PARTNERSHIP, JOINT VENTURE OR LEASE...................................... 51

19.5 SEVERABILITY ................................................................................................... 52

19.6 MOBILE-SIERRA ................................................................................................ 52

19.7 COUNTERPARTS; ELECTRONIC SIGNATURES........................................................ 52

19.8 ELECTRONIC DELIVERY ..................................................................................... 52

19.9 BINDING EFFECT................................................................................................ 52

19.10 NO RECOURSE TO MEMBERS OF BUYER.............................................................. 52

19.11 FORWARD CONTRACT........................................................................................ 53

19.12 FURTHER ASSURANCES...................................................................................... 53 Exhibits:

Exhibit A Facility Description
Exhibit B Facility Construction 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
Attachment Staff Report Item 16C

TABLE OF CONTENTS
(continued)
Page
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Exhibit L [Reserved]
Exhibit M [Reserved]
Exhibit N Notices
Exhibit O Operating Restrictions
Exhibit P Metering Diagram
Exhibit Q Community Investment
Exhibit R Workforce Development
Exhibit S Form of Limited Assignment Agreement
Attachment Staff Report Item 16C
1 RENEWABLE POWER PURCHASE AGREEMENT
This Renewable Power Purchase Agreement (“Agreement”) is entered into as of the last dated signature on the signature page hereto (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:
“AC” means alternating current.
“Accepted Compliance Costs” has the meaning set forth in Section 3.12. “Adjusted Energy Production” has the meaning set forth in Exhibit G. “Affiliate” means, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition and the definition of “Permitted Transferee” and “control” (including, with correlative meanings, the terms, “controlled by”, and “under common control with”), as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person. “Agreement” has the meaning set forth in the Preamble and includes any Exhibits, schedules and any written supplements hereto, the Cover Sheet, and any designated collateral, credit support or similar arrangement between the Parties. “Ancillary Services” means all ancillary services, products and other attributes, if any, associated with the Facility.

Attachment Staff Report Item 16C
2 “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 meaning set forth in the CAISO Tariff.
“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a Notice, or payment, or performing a specified action. “Buyer” means Ava Community Energy Authority, a California joint powers authority. “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, or any successor entity performing similar functions.
“CAISO Approved Meter” means a CAISO approved revenue quality meter or meters, CAISO approved data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services 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 Instruction or Dispatch Instruction as defined in the CAISO Tariff.
“CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures (as such term in defined in Appendix A to the CAISO Tariff), including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC; provided that if there is a conflict between the BPMs, the CAISO Operating Agreement or the Operating Procedures (as such term in defined in Appendix A to the CAISO Tariff), on the one hand, and the CAISO Tariff, on the other hand, the CAISO Tariff will control.

Attachment Staff Report Item 16C
3 “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 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, at least 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 at least fifty percent (50%) of the outstanding equity interests in each such intermediate entity; and (b) ownership interests in Seller owned directly or indirectly by any Lender (including any cash equity or tax equity provider) or assignee or transferee thereof shall be excluded from the total outstanding equity interests in Seller.
“Claim” has the meaning set forth in Section 16.2.
“COD Certificate” has the meaning set forth in Exhibit B. “Commercial Operation” has the meaning set forth in Exhibit B.

Attachment Staff Report Item 16C
4 “Commercial Operation Date” or “COD” has the meaning set forth in Exhibit B. “Compliance Actions” has the meaning set forth in Section 3.12. “Compliance Costs” has the meaning set forth in Section 3.12. “Compliance Expenditure Cap” has the meaning set forth in Section 3.12. “Confidential Information” has the meaning set forth in Section 18.1. “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. “Contract Term” has the meaning set forth in Section 2.1(a). “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commercial Operation Date and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred by such Non-Defaulting Party either in terminating any arrangement pursuant to which it has hedged or financed its obligations or entering into new arrangements which replace this Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating and replacing this Agreement.
“Cover Sheet” means the cover sheet to this Agreement, which is incorporated into this Agreement.
“CPUC” means the California Public Utilities Commission or any successor agency performing similar statutory functions.
“Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by S&P, Fitch or Moody’s. “Curtailment Order” means any of the following:
(a) CAISO orders, directs, alerts, or provides notice to a Party, including a CAISO Operating Order, to curtail deliveries of Facility Energy for the following reasons: (i) any System Attachment Staff Report Item 16C
5 Emergency, or (ii) any warning of an anticipated System Emergency, or (iii) any 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. “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.
“DA Price Floor” means or such lesser amount as
specified by Buyer to Seller in writing, provided that such lesser amount be specified by Buyer at least 75 minutes prior to midnight of the operating day. For the avoidance of doubt, unless otherwise specified by Buyer, the DA Price Floor will be a single value that applies for each day of the month.
“Damage Payment” means the dollar amount equal to the amount of the Development Security set forth on the Cover Sheet.
“Day-Ahead Forecast” has the meaning set forth in Section 4.3(c). “Day-Ahead Market” has the meaning set forth in the CAISO Tariff. “Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff.

Attachment Staff Report Item 16C
6 “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”
“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.
“Disclosing Party” has the meaning set forth in Section 18.2. “Early Termination Date” has the meaning set forth in Section 11.2(a). “Effective Date” has the meaning set forth on the Preamble. “EIRP Forecast” means the current CAISO forecast for intermittent resources using relevant Facility availability, weather, historical and other pertinent data for the applicable period of time.
“Electrical Losses” means all transmission or transformation losses between the Facility and the Delivery Point, including losses associated with delivery of Facility Energy to the Delivery Point, calculated in accordance with CAISO approved methodologies applicable to revenue metering.
“Eligible Intermittent Resource Protocol” or “EIRP” has the meaning set forth in the CAISO Tariff or a successor CAISO program for intermittent resources. “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. “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” means the execution of the Interconnection Agreement by Seller and the PTO.
“Expected Commercial Operation Date” is the date set forth on the Cover Sheet by which Seller reasonably expects to achieve Commercial Operation.

Attachment Staff Report Item 16C
7 “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 Contract Year in the quantity specified on the Cover Sheet. “Facility” means the renewable energy 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 Facility Energy to the Delivery Point. “Facility Energy” means the energy generated by the Facility during any Settlement Interval or Settlement Period and delivered to the Delivery Point, which is net of Electrical Losses and Station Use, as measured by the Facility Meter in accordance with CAISO metering requirements and Prudent Operating Practices.
“Facility Meter” means the CAISO Approved Meter that will measure all electric energy generated by Facility.
“FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Fitch” means Fitch Ratings Inc., or its successor.
“Force Majeure Event” has the meaning set forth in Section 10.1. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility that prevents Seller from generating Facility Energy or making Facility Energy available at the Delivery Point and that is not the result of a Force Majeure Event. “Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff. “Future Environmental Attributes” shall mean any and all generation attributes other than Green Attributes, Ancillary Services 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 and its displacement of conventional energy generation. Future Environmental Attributes do not include Tax Credits or other financial benefits or incentives in the form of credits, reductions, transfers, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation. “Gains” means, with respect to any 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.

Factors used in determining the economic benefit to a Non-Defaulting Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Attachment Staff Report Item 16C
8 Affiliates of the Non-Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, settlement prices for comparable transactions at liquid trading hubs (e.g., SP-15), all of which should be calculated for the remaining Contract Term, and include the value of Green Attributes.
“Governmental Authority” means any federal, state, provincial, local or municipal government, any political subdivision thereof or any other governmental, congressional or parliamentary, regulatory, or judicial instrumentality, authority, body, agency, department, bureau, or entity with authority to bind a Party at law, including CAISO; provided, however, that “Governmental Authority” shall not in any event include any Party hereto. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation of electrical energy 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; and (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) Tax Credits 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. “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”
“Guaranteed Commercial Operation Date” or “Guaranteed COD” has the meaning set forth in Exhibit B.
“Guaranteed Construction Start Date” has the meaning set forth in Exhibit B.

Attachment Staff Report Item 16C
9 “Guaranteed Energy Production”
“Imbalance Energy” means the amount of energy in MWh, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy.
“Indemnifiable Loss(es)” has the meaning set forth in Section 16.1. “Initial Synchronization” means the initial delivery of Facility Energy to the Delivery Point.
“Installed Capacity” means the actual generating capacity of the Facility, not to exceed the Guaranteed Capacity, as measured in MW(AC) at the Delivery Point, that achieves Commercial Operation, adjusted for ambient conditions on the date of the performance test, and as evidenced by a certificate substantially in the form attached as Exhibit I hereto. “Interconnection Agreement”
“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.
“Interconnection Point” has the meaning set forth in Exhibit A. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “Interest Rate” has the meaning set forth in Section 8.2. “Interim Deliverability Status” has the meaning set forth in the CAISO Tariff. “Investment Grade Credit Rating” means a Credit Rating of or higher by S&P or Fitch or Baa3 or higher by Moody’s.
“Investment Tax Credit” or “ITC” means the energy credit established pursuant to Section 48 of the Internal Revenue Code of 1986, as amended, as in effect from time-to-time throughout the Delivery Term or any successor or other provision providing for a federal tax credit determined by reference to energy property placed in service for which Seller, as the owner of the Facility, is eligible.
“JAMS” has the meaning set forth in Section 15.2.

Attachment Staff Report Item 16C
10 “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 a letter of credit, bond or other credit support, senior or subordinated development, construction, interim, back leverage or long-term debt, working capital, equity, cash equity or tax equity financing, or any refinancing of any of the foregoing 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 or portfolio financing), equity (including cash equity or 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 Person 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
“Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Buyer, licensed in the State of California. “Limited Assignee” has the meaning set forth in Section 14.3. “Locational Marginal Price” or “LMP” has the meaning set forth in the CAISO Tariff. “Losses” means, with respect to any 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.

Factors used in determining economic loss to a Non-Defaulting Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on Attachment Staff Report Item 16C
11 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, as applicable, and must include the value of Green Attributes and Renewable Energy Incentives. “Lost Output” has the meaning set forth in Section 4.7. “Market Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces generation of Facility Energy during a Settlement Period or Settlement Interval in which the LMP for the Day-Ahead Market at the Settlement Point for such Settlement Interval or Settlement Period is less than the DA Price Floor; provided that the Market Curtailment Period shall also include the time required for the Facility to ramp down to implement such curtailment and ramp up following such curtailment in accordance with the Operating Restrictions.
“Master File” has the meaning set forth in the CAISO Tariff. “Milestones” means the Milestones set forth on the Cover Sheet. “Monthly Delivery Forecast” has the meaning set forth in Section 4.3(b). “Monthly Settlement Amount” has the meaning set forth in Exhibit C. “Moody’s” means Moody’s Investors Service, Inc., or its successors. “MW” means megawatts in alternating current, unless expressly stated in terms of direct current.
“MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Negative LMP” means, in any Settlement Period or Settlement Interval, the Day-Ahead Market or Real-Time Market at the Facility’s PNode is less than “NERC” means the North American Electric Reliability Corporation or any successor entity performing similar functions.
“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 hand delivery, United States mail, overnight courier service, or electronic messaging (e-mail).
“Notice of Claim” has the meaning set forth in Section 16.2. “Operating Restrictions” means those rules, requirements, and procedures set forth on Exhibit O.

Attachment Staff Report Item 16C
12 “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 (i.e., Contract Years 1 and 2 shall comprise the first such period, Contract Years 2 and 3 shall comprise the second such period, etc.) during the Delivery Term, provided, however, that in no event shall any Performance Measurement Period be less than twenty-four (24) months.
“Performance Security” means (i) cash or (ii) a Letter of Credit in the amount set forth on the Cover Sheet.
“Permitted Transferee” means (i) an entity that satisfies, or is controlled by another Person that satisfies, the following requirements:
(a)
(b)
“Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
“Planned Outage” has the meaning set forth in Section 4.6(a). “PNode” has the meaning set forth in the CAISO Tariff.
“Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1) and California Public Utilities Commission Decision 11-12-052, as may be amended from time to time or as further defined or supplemented by Law.
“Prevailing Wage Requirement” has the meaning set forth in Section 13.5. “Product” has the meaning set forth on the Cover Sheet.

Attachment Staff Report Item 16C
13 “Production Tax Credit” or “PTC” means the production tax credit pursuant to Section 45 of the Internal Revenue Code of 1986, as amended, as in effect from time-to-time throughout the Delivery Term or any successor or other provision providing for a federal tax credit determined by reference to renewable electric energy produced from wind or other renewable energy resources for which Seller, as the owner of the Facility, is eligible. “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 applicable reliability criteria, and the standard of care, skill and diligence engaged in or approved by a significant portion of the electric utility and independent power producer industry during the relevant time period with respect to grid-interconnected, utility-scale 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 results consistent with applicable Law, 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 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.
“Real-Time Market” has the meaning set forth in the CAISO Tariff. “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.
“Renewable Energy Incentives” means: (a) all Tax Credits and other federal, state, or local Tax credits or other Tax benefits associated with the construction, ownership, or production of electricity from the Facility (including PTCs, ITCs, and other credits under Sections 38, 45, 46, 48, 45Y, and 48E 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 benefit or incentive, including any transfers of certain credits pursuant to Section 6418 of Internal Revenue Code of 1986, as amended, relating in any way to the Facility that is not a Green Attribute or a Future Environmental Attribute.
“S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of S&P Global Inc.) or its successor.
“SC Metered Entity” has the meaning of a “Scheduling Coordinator Metered Entity” as defined in the CAISO Tariff.

Attachment Staff Report Item 16C
14 “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 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 Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff. “Settlement Point” means the Facility PNode.
“Settlement Price” has the meaning set forth in Exhibit C. “Shared Facilities” means the gen-tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of energy from the Facility (which is excluded from Shared Facilities) to the point of interconnection, including the Interconnection Agreement itself, that are used in common with third parties.
“Site” means the real property on which the Facility is or will be located, as further described in Exhibit A.

Attachment Staff Report Item 16C
15 “Site Control” means that Seller (or, with respect to periods prior to the commencement of the Delivery Term, Seller or its Affiliate): (a) owns or has the option to purchase the Site, including through an ownership interest in an Affiliate that owns the Site; (b) is the lessee or has the option to lease the Site; (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; (d) with respect to periods prior to the commencement of the Delivery Term, is the holder of a serialized, first-in-line SF-299 application for a right-of-way grant with the United States Bureau of Land Management; or (e) has rights through ownership, lease, right-of-way grant or similar instrument, as the managing partner or other entity authorized to act in all manners relating to the control and operation of the Site. “Station Use” means:
“System Emergency” means any condition that requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) preserve Transmission System reliability. “Tax” or “Taxes” means all United States federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by any Governmental Authority, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Tax Credits” means PTCs, ITCs, and any other state, local or federal production or other tax credit, including any applicable successor tax credits, depreciation benefits, tax deductions or investment tax credits specific to the production, sale or storage of renewable energy from, or the operation or the ownership of, the Facility or any part thereof. “Terminated Transaction” has the meaning set forth in Section 11.2(a). “Termination Payment” has the meaning set forth in Section 11.3. “Test Energy” means Facility Energy delivered (a) commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Facility Energy to the CAISO and (ii) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to parallel and (b) ending upon the occurrence of the Commercial Operation Date. “Test Energy Rate” has the meaning set forth in Section 3.6. “Transformer Failure” means failure of all or part of the main power transformer that results in the Facility being unable to generate, deliver or provide energy during such failure, and Attachment Staff Report Item 16C
16 such failure was not caused by Seller and could not have been avoided through the exercise of Prudent Operating Practice.
“Transmission Provider” means any entity or entities transmitting or transporting the Facility Energy on behalf of Seller or Buyer to or from the Delivery Point. “Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service within the CAISO grid from the Delivery Point.
“Ultimate Parent”
“Variable Energy Resource” or “VER” has the meaning set forth in the CAISO Tariff. “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
“WREGIS Certificate Deficit” has the meaning set forth in Section 4.8(e). “WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of October 2022, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.

1.2 Rules of Interpretation. In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:
(a) headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement; (b) words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders; (c) the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Article, Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified;
(e) a reference to a document or agreement, including this Agreement means such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, Attachment Staff Report Item 16C
17 supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement;
(f) a reference to a Person includes that Person’s successors and permitted assigns;
(g) the term “including” (or similar words) means “including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided; (h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; (i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;
(j) references to any amount of money shall mean a reference to the amount in United States Dollars;
(k) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
(l) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

ARTICLE 2
TERM; CONDITIONS PRECEDENT

2.1 Contract Term.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions set forth herein (“Contract Term”); provided, however, that subject to Buyer’s obligations in Section 3.6, Buyer’s obligations to pay for or accept any Product are subject to Seller’s completion of the conditions precedent pursuant to Section 2.2. (b) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality Attachment Staff Report Item 16C
18 obligations of the Parties under Article 18 and all indemnity and audit rights shall remain in full force and effect for two (2) years following the termination of this Agreement.

2.2 Conditions Precedent. Subject to Exhibit B, the Delivery Term shall not commence until Seller completes each of the following conditions:
(a) Seller has delivered to Buyer (i) a completion certificate from a Licensed Professional Engineer substantially in the form of Exhibit H and (ii) a certificate from a Licensed Professional Engineer substantially in the form of Exhibit I setting forth the Installed Capacity on the Commercial Operation Date;
(b) A Participating Generator Agreement and a Meter Service Agreement between Seller and CAISO shall have been executed and delivered and be in full force and effect, and a copy of each such agreement delivered to Buyer;
(c) An Interconnection Agreement among Seller (or Seller’s Affiliate), the CAISO, and the PTO shall have been executed and delivered and be in full force and effect and a copy of the Interconnection Agreement delivered to Buyer; (d) Copies of executed agreements demonstrating Site Control shall have been delivered to Buyer; provided Seller will be permitted to redact any confidential information contained therein;
(e) Insurance requirements for the Facility pursuant to Article 17 have been met, with evidence provided in writing to Buyer;
(f)
(g) Seller has certified in writing to Buyer that Seller has complied with the Prevailing Wage Requirement set forth in Section 13.5, and provided reasonably requested documentation demonstrating such compliance;
(h) Seller has certified in writing to Buyer that Seller has satisfied the obligations related to workforce development set forth in Exhibit R, and provided reasonably requested documentation demonstrating such compliance;
(i) Seller has certified in writing to Buyer that Seller has satisfied the community benefit-related obligations set forth in Exhibit Q, and provided reasonably requested documentation demonstrating such compliance;
(j) Seller has delivered the Performance Security to Buyer in accordance with Section 8.8; and
Attachment Staff Report Item 16C
19 (k) Seller has paid Buyer for all amounts owing under this Agreement as of the Commercial Operation Date, if any, including Construction Delay Damages and COD Delay Damages.

2.3 Development; Construction; Progress Reports. Within fifteen (15) days after the close of (i) each calendar quarter from the first calendar quarter following the Effective Date until the Expected Construction Start Date, and (ii) each calendar month thereafter, Seller shall provide a Progress Report until the Commercial Operation Date to Buyer that (a) describes the progress towards meeting the Milestones; (b) identifies any missed Milestones, including the cause of the delay; and (c) provides a detailed description of Seller’s corrective actions to achieve the missed Milestones and all subsequent Milestones by the Guaranteed Commercial Operation Date.

The form of the Progress Report is set forth in Exhibit E. Seller agrees to regularly scheduled meetings between representatives of Buyer and Seller to review the Progress Reports and discuss Seller’s construction progress. Seller shall also provide Buyer with any reasonably requested documentation (subject to confidentiality restrictions) directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request from Buyer. For the avoidance of doubt, as between Seller and Buyer, Seller is solely responsible for the design and construction of the Facility, including the location of the Site, obtaining all permits and approvals to build the Facility, the Facility layout, and the selection and procurement of the equipment comprising the Facility.

2.4 Remedial Action Plan.

ARTICLE 3

PURCHASE AND SALE

3.1 Purchase and Sale of Product. Subject to the terms and conditions of this Agreement, during the Delivery Term, Seller shall deliver to the Delivery Point all Facility Energy and Green Attributes associated with the Facility, and Buyer shall receive and accept at the Delivery Point and pay for such Product in accordance with Exhibit C; provided, however, that At its sole discretion, Buyer
may during the Delivery Term resell or use for another purpose all or a portion of the Product, provided that no such resale or use shall relieve Buyer of any obligations hereunder or modify any Attachment Staff Report Item 16C
20 of Seller’s obligations hereunder. During the Delivery Term, Buyer will have exclusive rights to offer, bid, or otherwise submit the Product, or any component thereof, from the Facility after the Delivery Point for resale into the market or to any third party, and retain and receive any and all related revenues. Subject to Section 3.6, Seller will retain title to, and is entitled, in its sole discretion, to sell, assign or transfer to any third party, and retain any revenues with respect to, any or all Products generated by or associated with the Facility prior to and following the Delivery Term.

Subject to Buyer’s obligation to purchase Product in accordance with this Section 3.1 and Exhibit C, Buyer has no obligation to purchase from Seller, and Seller has no obligation to supply and deliver to Buyer, any Facility Energy that is not or cannot be delivered to the Delivery Point as a result of a Force Majeure Event affecting Seller or the Facility, a System Emergency, a Curtailment Order, or any other permitted reduction set forth in Section 4.6.

3.2 Sale of Green Attributes. During the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase from Seller, all Green Attributes associated with the Facility Energy generated by the Facility.

3.3 Imbalance Energy. Buyer and Seller recognize that in any given Settlement Period there may be Imbalance Energy. To the extent there is any Imbalance Energy, any payments or charges related to such Imbalance Energy shall be for the account of Seller.

3.4 Ownership of Renewable Energy Incentives. Seller shall have all right, title and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives, or values representing the same, are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to same to be assigned or transferred to Seller without delay. Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives.

3.5 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Effective Date, environmental attributes sold under this Agreement are restricted to Green Attributes; however, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Subject to the final sentence of this Section 3.5(a), and Sections 3.5(b) and 3.12, in such event, Buyer shall bear all costs and risks associated with the transfer, qualification, verification, registration and ongoing compliance for such Future Environmental Attributes, but there shall be no increase in the Contract Price. Upon Seller’s receipt of Notice from Buyer of Buyer’s intent to claim such Future Environmental Attributes, the Parties shall determine the necessary actions and additional costs associated with such Future Environmental Attributes. Seller shall have no obligation to take any action or bear any costs, losses or liabilities, or alter the Facility or operation of the Facility, unless the Parties have agreed on all necessary terms and conditions relating to such alteration or change in operation and Buyer has agreed to reimburse Seller for all costs, losses, and liabilities associated with such alteration or change in operation on terms acceptable to Seller.

Attachment Staff Report Item 16C
21 (b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.5(a), the Parties agree to negotiate in good faith with respect to the development of further agreements and documentation necessary to effectuate the transfer of such Future Environmental Attributes, including agreement with respect to (i) appropriate transfer, delivery and risk of loss mechanisms, and (ii) appropriate allocation of any additional costs to Buyer, as set forth above (in any event subject to Section 3.12); provided, that the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.

3.6 Test Energy.

3.7 Reserved.

3.8 Reserved.

3.9 CEC Certification and Verification. Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Certification and Verification for the Facility throughout the Delivery Term, including compliance with all applicable requirements for certified facilities set forth in the current version of the RPS Eligibility Guidebook (or its successor). Seller shall obtain CEC Precertification by the Commercial Operation Date. Within thirty (30) days after the Commercial Operation Date, Seller shall apply with the CEC for final CEC Certification and Verification.

Within one hundred eighty (180) days after the Commercial Operation Date, Seller shall obtain and maintain throughout the remainder of the Delivery Term the final CEC Certification and Verification. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s application for CEC Certification and Verification for the Facility.

3.10 Reserved.

3.11 Non-Modifiable Standard Terms and Conditions.
(a) Tracking of RECs in WREGIS. Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable Energy Generation Information System will be taken prior to the first delivery under the contract. [STC REC-2].
(b) Transfer of Renewable Energy Credits. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement, the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be Attachment Staff Report Item 16C
22 materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. [STC REC-1]. (c) Eligibility. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Project qualifies and is certified by the CEC as an Eligible Renewable Energy Resource (“ERR”) as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. [STC 6]. (d) With respect to the immediately preceding paragraphs, (i) the reference in Section 3.11(a) to “first delivery under the contract” has the same meaning as “first delivery of Facility Energy under this Agreement”, (ii) the references in Section 3.11(c) to “Project” have the same meaning as “Facility”, (iii) the reference in Section 3.11(c)(ii) to “the Project’s output” has the same meaning as “Facility Energy”, and (iv) each reference in the last sentences of Section 3.11(b) and Section 3.11(c) to “commercially reasonable efforts” means efforts consistent with and subject to Section 3.12 below.
(e) Governing Law. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement. [STC 17].

3.12 Compliance Expenditure Cap.
(a)

(b) Any actions required for Seller to comply with its obligations set forth in the immediately preceding paragraph, the Compliance Costs of which will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “Compliance Actions.” Attachment Staff Report Item 16C
23 (c) If Seller reasonably anticipates the need to incur Compliance Costs in excess of the Compliance Expenditure Cap in order to take any Compliance Action, Seller shall provide Notice to Buyer of such anticipated Compliance Costs. (d) Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all or some portion of the Compliance Costs that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs, the “Accepted Compliance Costs”), or (2) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller. (e) If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall pay Seller in advance for Seller to effect the Compliance Actions, not to exceed the Accepted Compliance Costs, within sixty (60) days from the time that Buyer receives an invoice and documentation of such costs from Seller. (f) If (x) Buyer does not respond to a Notice given by Seller under this Section 3.12 within the time required by this Section 3.12, (y) Buyer does not pay, or refuses to pay, the Compliance Costs in excess of the Compliance Expenditure Cap, or (z) it is not possible for Seller to achieve compliance with its obligations hereunder, or a change in Law, as applicable, through the payment or incurrence of costs, then in each case (i) Seller shall be excused from the corresponding Compliance Actions under this Agreement, and (ii) Seller shall not be subject to a reduction in payments under this Agreement to the extent arising from the failure to comply with such Compliance Actions.

ARTICLE 4

OBLIGATIONS AND DELIVERIES

4.1 Delivery.
(a) Energy. Subject to the provisions of this Agreement, commencing on the first day of the Delivery Term and through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Point, and Buyer shall take delivery of the Product at the Delivery Point in accordance with the terms of this Agreement. Seller will be responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Facility Energy to the Delivery Point, including without limitation, Station Use, Electrical Losses, and any operation and maintenance charges imposed on Seller by the Transmission Provider directly relating to the Facility’s operations. The Facility Energy will be scheduled with the CAISO by Seller (or Seller’s designated Scheduling Coordinator) in accordance with Exhibit D. (b) Green Attributes. All Green Attributes associated with the Facility Energy during the Delivery Term are exclusively dedicated to and will be vested in Buyer. Seller represents and warrants that Seller holds the rights to all Green Attributes associated with the Facility Energy, and Seller agrees to convey and hereby conveys all such Green Attributes to Buyer as included in the delivery of the Product from the Facility.

4.2 Title and Risk of Loss.

Attachment Staff Report Item 16C
24 (a) Energy. Title to and risk of loss related to the Facility Energy, shall pass and transfer from Seller to Buyer at the Delivery Point. Seller warrants that all Product delivered to Buyer is free and clear of all liens, security interests, claims and encumbrances of any kind. (b) Green Attributes. Title to and risk of loss related to the Green Attributes shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS.

4.3 Forecasting. Seller shall provide the forecasts described below at its sole expense and in a format reasonably acceptable to Buyer. Seller shall use reasonable efforts to provide forecasts that are accurate and, to the extent not inconsistent with the requirements of this Agreement, shall prepare such forecasts, or cause such forecasts to be prepared, in accordance with Prudent Operating Practices.
(a) Annual Forecast of Energy. No less than forty-five (45) days before (i) the first day of the first Contract Year of the Delivery Term and (ii) at the beginning of each calendar year for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer and the SC (if applicable) a non-binding forecast of each month’s average-day expected Facility Energy, by hour, for the following calendar year in a form substantially similar to the table found in Exhibit F-1, or as reasonably requested by Buyer.
(b) Monthly Forecast of Energy and Available Generating Capacity. No less than thirty (30) days before the Commercial Operation Date, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of the hourly expected Facility Energy, Available Generating Capacity for each day of the following month in a form substantially similar to the table found in Exhibit F-2 (“Monthly Delivery Forecast”).
(c) Day-Ahead Forecast. By 5:30 AM Pacific Prevailing Time on the Business Day immediately preceding the date of delivery, or as otherwise specified by Buyer consistent with Prudent Operating Practice, Seller shall provide Buyer with a forecast of (i) Available Generating Capacity and (ii) hourly expected Facility Energy, in each case, for each hour of the immediately succeeding day (“Day-Ahead Forecast”). A Day-Ahead Forecast provided in a day prior to any non-Business Day(s) shall include forecasts for the immediate day, each succeeding non-Business Day and the next Business Day. Each Day-Ahead Forecast shall clearly identify, for each hour, Seller’s best estimate of (i) the Available Generating Capacity and (ii) the hourly expected Facility Energy. Except as otherwise agreed, Seller shall provide the Day-Ahead Forecast in the form of a CSV file or other mutually agreed file format delivered to Buyer and Buyer’s File Transfer Protocol (FTP) site as set forth in Exhibit N. (d) CAISO Tariff Requirements. Seller shall comply with all applicable CAISO Tariff requirements, procedures, protocols, rules and testing as necessary for Seller to submit Bids for the electric energy generated by the Facility. In addition, to the extent such obligations are applicable to the Facility, Seller will comply with all applicable obligations for Variable Energy Resources under the CAISO Tariff and the Eligible Intermittent Resource Protocol, including providing appropriate operational data and meteorological data, and will fully cooperate with CAISO, in providing all data, information, and authorizations required thereunder.

Attachment Staff Report Item 16C
25 4.4 Reserved.

4.5 Station Use. Seller will be responsible for procuring and paying for all Station Use.

4.6 Reduction in Delivery Obligation. For the avoidance of doubt, and in no way limiting Section 3.1 or Exhibit G:
(a)
(b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage.
(c) System Emergencies and other Interconnection Events. Seller shall be permitted to reduce deliveries of Product during any period of System Emergency, or upon Notice of a Curtailment Order pursuant to the terms of this Agreement, the Interconnection Agreement or applicable tariff.
(d) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event.
(e) Buyer Default. Seller shall be permitted to reduce deliveries of Product during any period in which there is Buyer Default.
(f) Market Curtailment Periods. Seller has the right, in its sole discretion, to curtail deliveries of Facility Energy during Market Curtailment Periods. (g) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2.

4.7 Attachment Staff Report Item 16C
26 4.8 WREGIS. Seller shall, take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Facility Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefit. Seller shall transfer the Renewable Energy Credits to Buyer.

Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. In addition:
(a) Prior to the Commercial Operation Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using “Recurring Certificate Transfers” (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the Facility with WREGIS, establishing and maintaining Seller’s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account.
(b) Seller shall cause Recurring Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules.

Since WREGIS Certificates will only be created for whole MWh amounts of Facility Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate. (c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Facility Energy for such calendar month as evidenced by the Facility’s metered data.
(d) Due to the delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 8.2, Buyer shall make an invoice payment for a given month in accordance with the timing of Section 8.2 notwithstanding that the WREGIS Certificates for such month may not have been formally transferred to Buyer in accordance with the WREGIS Operating Rules and this Section 4.8. Notwithstanding this delay, Buyer shall have all right and title to all such WREGIS Certificates upon payment to Seller in accordance with Section 8.2.

Attachment Staff Report Item 16C
27 (e) A “WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Facility Energy for the same calendar month (“Deficient Month”) caused by an error or omission of Seller. (f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.8 after the Effective Date, the Parties promptly shall modify this Section 4.8 as reasonably required to cause and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Facility Energy in the same calendar month.

4.9 Green-e Certification. Seller shall execute all documents or instruments reasonably required by Buyer in order for the Facility to be eligible for Green-E certification.

4.10 Interconnection Capacity. Seller shall ensure that throughout the Delivery Term (a) the Facility will have an Interconnection Agreement providing for interconnection capacity available or allocable to the Facility that is no less than the Guaranteed Capacity and (b) Seller shall have sufficient interconnection capacity and rights under or through the Interconnection Agreement to interconnect the Facility with the CAISO Controlled Grid at a level that is no less than the Guaranteed Capacity, and to fulfill Seller’s obligations under this Agreement.

ARTICLE 5
TAXES

5.1 Allocation of Taxes and Charges. Seller shall pay or cause to be paid all Taxes on or with respect to the Facility or on or with respect to the sale and making available of Product to Buyer, that are imposed on Product prior to its delivery to Buyer at the Delivery Point. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and after its delivery to Buyer at the Delivery Point (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees), if any. If a Party is required to remit or pay Taxes that are the other Party’s responsibility hereunder, such Party shall promptly pay the Taxes due and then seek and receive reimbursement from the other for such Taxes. In the event any sale of Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation within thirty (30) days after the Effective Date to evidence such exemption or exclusion. If Buyer does not provide such documentation, then Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes from which Buyer claims it is exempt.

Attachment Staff Report Item 16C
28 5.2 Cooperation. Each Party shall use reasonable efforts to implement the provisions of and administer this Agreement in accordance with the intent of the Parties to minimize all Taxes, so long as no Party is materially adversely affected by such efforts. The Parties shall cooperate to minimize Tax exposure; provided, however, that neither Party shall be obligated to incur any financial or operational burden to reduce Taxes for which the other Party is responsible hereunder without receiving due compensation therefor from the other Party. All Facility Energy delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Facility Energy.

ARTICLE 6

MAINTENANCE OF THE FACILITY

6.1 Maintenance of the Facility. Seller shall comply with Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product.

6.2 Maintenance of Health and Safety. Seller shall take reasonable safety precautions with respect to the operation, maintenance, repair and replacement of the Facility. If Seller becomes aware of any circumstances relating to the Facility that create an imminent risk of damage or injury to any Person or any Person’s property, Seller shall take prompt, reasonable action to prevent such damage or injury and shall give Notice to Buyer’s emergency contact identified on Exhibit N of such condition. Such action may include, to the extent reasonably necessary, disconnecting and removing all or a portion of the Facility, or suspending the supply of Facility Energy to Buyer.

6.3 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities and Interconnection Facilities (including a transformer, substation and associated equipment and real property), and Seller’s rights and obligations under the Interconnection Agreement, may be subject to certain shared facilities or co-tenancy agreements (“Shared Facilities Agreements”) to be entered into among Seller, the Participating Transmission Owner, Seller’s Affiliates, or third parties pursuant to which certain Interconnection Facilities may be subject to joint ownership and shared maintenance and operation arrangements; provided that such Shared Facilities Agreements (i) shall permit Seller to perform or satisfy, and shall not purport to limit, its obligations hereunder, including providing interconnection capacity in accordance with Section 4.10, (ii) continue to provide for separate metering and a separate resource ID for the Facility, and (iii) subject to customary qualifications, shall not allow any Affiliate of Seller or third party to use such interconnection capacity if such use would have an adverse impact on Buyer’s rights under this Agreement. Seller shall hold Buyer harmless from any penalties, imbalance energy charges, or other costs or losses from CAISO or under the Agreement resulting from a third party’s use of such interconnection capacity.

ARTICLE 7

METERING

7.1 Metering. Seller shall measure the amount of Facility Energy using the Facility Meter and associated infrastructure, which will be subject to adjustment in accordance with applicable CAISO meter requirements and Prudent Operating Practice, including to account for Attachment Staff Report Item 16C
29 Electrical Losses and Station Use. All meters will be operated pursuant to applicable CAISO-approved calculation methodologies and maintained as Seller’s cost. Subject to meeting any applicable CAISO requirements, the Facility Meter or associated infrastructure as outlined in the CAISO-approved Settlement Quality Metering Data (SQMD) design basis document shall be programmed to adjust for Electrical Losses and Station Use from the Facility to the Delivery Point in a manner subject to Buyer’s prior written approval, not to be unreasonably withheld. Metering will be consistent with the Metering Diagram to be set forth as Exhibit P, an updated version of which shall be provided by Seller to Buyer at least thirty (30) days prior to Commercial Operation.

Each meter shall be kept under seal, such seals to be broken only when the meters are to be tested, adjusted, modified or relocated. In the event Seller breaks a seal, Seller shall notify Buyer as soon as practicable. In addition, Seller hereby agrees to provide all meter data to Buyer in a form reasonably acceptable to Buyer, and consents to Buyer obtaining from CAISO the Facility Meter data directly relating to the Facility and all inspection, testing and calibration data and reports.

Seller or Seller’s Scheduling Coordinator shall cooperate to allow Buyer to retrieve the meter reads from the CAISO Market Results Interface – Settlements (MRI-S) (or its successor) or directly from the Facility Meter(s) at the Facility. Seller shall obtain and maintain a single CAISO resource ID dedicated exclusively to the Facility. Seller shall not obtain additional CAISO resource IDs for the Facility without the prior written consent of Buyer.

7.2 Meter Verification. Annually, if Seller has reason to believe there may be a meter malfunction, or upon Buyer’s reasonable request, Seller shall test the meter. The tests shall be conducted by independent third parties qualified to conduct such tests. Buyer shall be notified seven (7) days in advance of such tests and have a right to be present during such tests. If a meter is inaccurate it shall be promptly repaired or replaced.

ARTICLE 8
INVOICING AND PAYMENT; CREDIT

8.1 Invoicing. Seller shall make good faith efforts to deliver an invoice to Buyer for Product within after, but not prior to, the end of each month of the Delivery Term. Each invoice shall reflect (a) records of metered data, including CAISO metering and transaction data sufficient to document and verify the amount of Product delivered by the Facility for any Settlement Period during the preceding month, including the amount of Facility Energy produced by the Facility as read by the Facility Meter, the calculation of Facility Energy, , Lost Output, and Adjusted Energy Production, the LMP prices at the Delivery Point for each Settlement Interval, and the Settlement Price and Monthly Settlement Amount applicable to such Product in accordance with Exhibit C; and (b) be in a format reasonably specified by Buyer, covering the services provided in the preceding month determined in accordance with the applicable provisions of this Agreement. Seller shall, and shall cause its Scheduling Coordinator to, provide Buyer with all reasonable access to any records, including invoices, real time data, settlement data from the CAISO, forecast data and other information, all as may be necessary from time to time for Buyer to review and verify the accuracy of all invoices.

The invoice shall be delivered by email in accordance with Exhibit N.

8.2 Payment. Buyer or Seller, as applicable, shall make payment of the Monthly Settlement Amount to the other Party for the Product by wire transfer or ACH payment to the bank account designated in Exhibit N, which may be updated by Notice hereunder; provided, however, Attachment Staff Report Item 16C
30 that changes to the invoices, payment, and wire transfer information set forth in Exhibit N must be made in writing and delivered via email, and shall include contact information for an authorized person who is available by telephone to verify the authenticity of such requested changes.

Undisputed invoice amounts shall be paid within after receipt of the invoice, or the end of the prior monthly billing period, whichever is later. If such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. Payments made after the due date will be considered late and will bear interest on the unpaid balance. If the amount due is not paid on or before the due date or if any other payment that is due and owing from one Party to another is not paid on or before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement.

8.3 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years or as otherwise required by Law. Upon ten (10) Business Days’ Notice to the other Party, either Party shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated or payments made pursuant to this Agreement. Seller acknowledges that in accordance with California Government Code Section 8546.7, Seller may be subject to audit by the California State Auditor with regard to Seller’s performance of this Agreement because the compensation under this Agreement exceeds $10,000.

8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing or payment that are not otherwise disputed under Section 8.5 or an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO or there have been meter inaccuracies; provided, however, that there shall be no adjustments to prior invoices based upon meter inaccuracies. If the required adjustment is in favor of Buyer, Buyer’s next monthly payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller, Seller shall add the adjustment amount to Buyer’s next monthly invoice. Adjustments in favor of either Buyer or Seller shall bear interest, until settled in full, in accordance with Section 8.2, accruing from the date on which the adjusted amount should have been due. Unless otherwise agreed by the Parties, no adjustment of invoices shall be permitted after twenty-four (24) months from the date of the invoice.

8.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice, payment or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any arithmetic or computational error within twelve (12) months of the date the invoice, payment or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice or payment dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution Attachment Staff Report Item 16C
31 along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Inadvertent overpayments shall be returned via adjustments in accordance with Section 8.4. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 8.5 within twelve (12) months after the invoice is rendered or subsequently adjusted, except to the extent any misinformation was from a third party not affiliated with any Party and such third party corrects its information after the twelve-month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.

8.6 Netting of Payments. The Parties hereby agree that they may discharge undisputed mutual debts and payment obligations due and owing to each other on the same date through netting, in which case all amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement or otherwise arising out of this Agreement, including any related damages calculated pursuant to Exhibit B and Exhibit G, interest, and payments or credits, shall be netted so that only the excess amount remaining due after netting any such undisputed amount shall be paid by the Party who owes it.

8.7 8.8
Attachment Staff Report Item 16C
32 8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral. To secure its obligations under this Agreement, and until released as provided herein, Seller hereby grants to Buyer a present and continuing first-priority security interest (“Security Interest”) in, and lien on (and right to net against), and assignment of the Development Security or Performance Security, to the extent provided in the form of cash, and any other cash collateral and cash equivalent collateral posted pursuant to Sections 8.7 and 8.8 and any and all interest thereon or proceeds resulting therefrom or from the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of Buyer, and Seller agrees to take all action as Buyer reasonably requires in order to perfect Buyer’s Security Interest in, and lien on (and right to net against), such collateral and any and all proceeds resulting therefrom or from the liquidation thereof.

Upon or any time after the occurrence and continuation of an Event of Default caused by Seller, an Early Termination Date resulting from an Event of Default caused by Seller, or an occasion provided for in this Agreement where Buyer is authorized to retain all or a portion of the Development Security or Performance Security, Buyer may do any one or more of the following (in each case subject to the final sentence of this Section 8.9):
(a) Exercise any of its rights and remedies with respect to the Development Security and Performance Security, including any such rights and remedies under Law then in effect;
(b) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held by Buyer as Development Security or Performance Security; and (c) Liquidate all Development Security or Performance Security (as applicable) then held by or for the benefit of Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller.

Buyer shall apply the proceeds of the collateral realized upon the exercise of any such rights or remedies to reduce Seller’s obligations under this Agreement (Seller remains liable for any amounts owing to Buyer after such application), subject to Buyer’s obligation to return any surplus proceeds remaining after these obligations are satisfied in full.

ARTICLE 9

NOTICES

9.1 Addresses for the Delivery of Notices. Any Notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the address set forth on Exhibit N or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder.

Attachment Staff Report Item 16C
33 9.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered if sent by email, at the time indicated by the time stamp upon delivery without any bounce back or rejection, except that if received after 5:00 PM Pacific Prevailing Time, it shall be deemed received on the next Business Day. Notwithstanding the foregoing, Notices of outages or other scheduling or dispatch information or requests, may be sent by email and shall be considered delivered upon successful completion of such transmission. Notices sent pursuant to Article 11 (Defaults; Remedies; Termination), Article 15 (Dispute Resolution), and Article 16 (Indemnification) must concurrently be sent by hand delivery or overnight carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees.

ARTICLE 10

FORCE MAJEURE

10.1 Definition.
(a) “Force Majeure Event” means any act or event occurring after the Effective Date that delays or prevents a Party from timely performing all or a portion of its obligations under this Agreement or from complying with all or a portion of the conditions under this Agreement if such act or event, despite the exercise of commercially reasonable efforts, cannot be avoided by and is beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance.
(b) Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance and otherwise satisfy the requirements of a Force Majeure Event as defined above, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; epidemic, or pandemic; quarantine; landslide; mudslide; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; or strikes or other labor difficulties caused or suffered by a Party or any third party except as set forth below. (c) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions that render a Party’s performance of this Agreement at the Contract Price unprofitable or otherwise uneconomic (including an increase in component costs for any reason, including foreign or domestic tariffs, Buyer’s ability to buy electric energy at a lower price, or Seller’s ability to sell the Product, or any component thereof, at a higher price, than under this Agreement); (ii) Seller’s inability to obtain permits or approvals of any type for the construction, operation, or maintenance of the Facility, except to the extent such inability is caused by a Force Majeure Event; (iii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above; (iv) a Curtailment Order, except to the extent caused by a Force Majeure Event; (v) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility except to the extent such inability is caused by a Force Attachment Staff Report Item 16C
34 Majeure Event; or (vi) any equipment failure except if such equipment failure is caused by a Force Majeure Event.

10.2 10.3 Notice. Within after the non-performing Party becomes aware of the impact of a Force Majeure Event, the non-performing Party shall provide the other Party with oral notice of the Force Majeure Event, and within after the non-performing Party becomes aware of the impact of a Force Majeure Event the non-performing Party shall provide the other Party with Notice in the form of a letter describing in detail the particulars of the occurrence giving rise to the Force Majeure Event claim. Failure to provide timely Notice as described in the preceding sentence constitutes a waiver of the Force Majeure Event claim. The suspension of performance due to a claim of Force Majeure Event must be of no greater scope and of no longer duration than is required by the Force Majeure Event.

10.4 Attachment Staff Report Item 16C
35 ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION

11.1 Events of Default. An “Event of Default” shall mean, (a) with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following:
(i) the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof;
(ii) any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite exercising commercially reasonable efforts); (iii) the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default set forth in this Section 11.1), and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite exercising commercially reasonable efforts);
(iv) such Party becomes Bankrupt;
(v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Article 14; or
(vi) such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. (b) with respect to Seller as the Defaulting Party, the occurrence of any of the following:
(i)
(ii)
(iii)
Attachment Staff Report Item 16C
36 (iv)
(v) if at any time during the Delivery Term, Seller delivers or attempts to deliver electric energy to the Delivery Point for sale under this Agreement that was not generated by the Facility;
(vi)
(vii) with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events:
(A) the issuer of the outstanding Letter of Credit shall fail to maintain a Credit Rating of at least by Fitch, by S&P or by Moody’s;
(B) the issuer of such Letter of Credit becomes Bankrupt; (C) the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; (D) the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit;
(E) such Letter of Credit fails or ceases to be in full force and effect at any time; or
(F) Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than prior to the expiration of the outstanding Letter of Credit.

11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (“Non-Defaulting Party”) shall have the following rights:

Attachment Staff Report Item 16C
37 (a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“Early Termination Date”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date;
(b) to accelerate all amounts owing between the Parties, and to collect as liquidated damages (i) the Damage Payment (in the case of an Event of Default by Seller occurring before the Commercial Operation Date, including an Event of Default under Section 11.1(b)(i) or Section 11.1(b)(ii)), or (ii) the Termination Payment calculated in accordance with Section 11.3 below (in the case of any other Event of Default by either Party); (c) to withhold any payments due to the Defaulting Party under this Agreement; (d) to suspend performance; or
(e) to exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief, except to the extent such remedies are expressly limited under this Agreement;
provided, that payment by the Defaulting Party of the Damage Payment or Termination Payment, as applicable, shall constitute liquidated damages and the Non-Defaulting Party’s sole and exclusive remedy for the Terminated Transaction and the Event of Default related thereto.

11.3 Termination Payment. The termination payment (“Termination Payment”) for a Terminated Transaction shall be the aggregate of all Settlement Amounts plus any or all other amounts due to or from the Non-Defaulting Party (as of the Early Termination Date) netted into a single amount. If the Non-Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the net Settlement Amount shall be zero. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. Third parties supplying information for purposes of the calculation of Gains or Losses may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information. The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (a) the actual damages that the Non-Defaulting Party would incur in connection with a Terminated Transaction would be difficult or impossible to predict with certainty, (b) the Damage Payment or Termination Payment described in Section 11.2 or this Section 11.3 (as applicable) is a reasonable and appropriate approximation of such damages, and (c) the Damage Payment or Termination Payment described in Section 11.2 or this Section 11.3 (as applicable) is the exclusive remedy of the Non-Defaulting Party in connection with a Terminated Transaction but shall not otherwise act to limit any of the Non-Defaulting Party’s rights or remedies if the Non-Defaulting Party does not elect a Terminated Transaction as its remedy for an Event of Default by the Defaulting Party.

Attachment Staff Report Item 16C
38 11.4 Notice of Payment of Termination Payment. As soon as practicable after a Terminated Transaction, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Damage Payment or Termination Payment, as applicable, and whether, in the case of a Termination Payment, the Termination Payment is due to or from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount and the sources for such calculation. The Termination Payment shall be made to or from the Non-Defaulting Party, as applicable, within ten (10) Business Days after such Notice is effective.

11.5 Disputes With Respect to Termination Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within five (5) Business Days of receipt of the Non-Defaulting Party’s calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding the Termination Payment shall be determined in accordance with Article 15.

11.6 Rights And Remedies Are Cumulative. Except where an express and exclusive remedy or measure of liquidated damages is provided, the rights and remedies of a Party pursuant to this Article 11 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

11.7 ARTICLE 12

LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES

12.1 No Consequential Damages. EXCEPT TO THE EXTENT PART OF AN

EXPRESS REMEDY OR MEASURE OF DAMAGES HEREIN, OR PART OF AN ARTICLE 16 INDEMNITY CLAIM, OR INCLUDED IN A LIQUIDATED DAMAGES

CALCULATION, OR ARISING FROM FRAUD OR INTENTIONAL

MISREPRESENTATION, OR RELATING TO OR CONSTITUTING LOST OR FOREGONE

TAX CREDITS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ITS

INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR

CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE OR

LOST PROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, BY STATUTE, IN TORT OR CONTRACT.

12.2 Waiver and Exclusion of Other Damages. EXCEPT AS EXPRESSLY SET

FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR

A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE Attachment Staff Report Item 16C
39 DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND

MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN

THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO SELLER’S LIMITATION OF LIABILITY AND THE PARTIES’ WAIVER OF

CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES FOR BREACH OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE.

FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE

REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR

MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO

REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY.

TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING UNDER SECTIONS 4.7, 4.8, 11.2, 11.3, AND AS PROVIDED IN EXHIBIT B AND EXHIBIT G. THE PARTIES ACKNOWLEDGE THAT THE DAMAGES

ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT OTHERWISE OBTAINING AN

ADEQUATE REMEDY IS INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES

CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED

ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE

CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY

PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS AS AN UNREASONABLE PENALTY.

THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE

EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE

BREACH BY THE OTHER OF THE TERMS OF THIS AGREEMENT, AND EACH PARTY

WAIVES ANY RIGHT IT MAY HAVE TO SPECIFIC PERFORMANCE WITH RESPECT TO ANY OBLIGATION OF THE OTHER PARTY UNDER THIS AGREEMENT.

ARTICLE 13
REPRESENTATIONS AND WARRANTIES; AUTHORITY

13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and is qualified to conduct business in the State of California and each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Seller.

Attachment Staff Report Item 16C
40 (b) Seller has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller’s performance under this Agreement. The execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary limited liability company action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller. (c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Seller, subject to any permits that have not yet been obtained by Seller, the documents of formation of Seller or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Seller is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Seller. This Agreement is a legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity.

13.2 Seller Covenants.
(a) Seller shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals, including, without limitation those related to employment discrimination and prevailing wage, non-discrimination and non-preference, and conflict of interest. (b) Seller shall maintain Site Control throughout the Delivery Term. (c) Seller shall obtain any and all applicable permits and approvals, including without limitation, environmental clearance under CEQA, if applicable, or other environmental law, necessary to construct and operate the Facility. Seller acknowledges that Buyer is purchasing the Product under this Agreement and does not intend to be the lead agency for the Facility.

13.3 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a joint powers authority and a validly existing community choice aggregator, duly organized, validly existing and in good standing under the laws of the State of California and the rules, regulations and orders of the California Public Utilities Commission, and is qualified to conduct business in each jurisdiction of the Joint Powers Agreement members. All Persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with the Joint Powers Agreement and other Law.

Attachment Staff Report Item 16C
41 (b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Buyer’s performance under this Agreement. The execution, delivery and performance of this Agreement by Buyer has been duly authorized by all necessary action on the part of Buyer and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Buyer or any other party to any other agreement with Buyer.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Buyer, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Buyer is a party or by which any of its property is bound.
(d) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (1) suit, (2) jurisdiction of court (provided that such court is located within a venue permitted by Law and under the Agreement), (3) relief by way of injunction, order for specific performance or recovery of property, (4) attachment of assets, or (5) execution or enforcement of any judgment; provided, however that nothing in this Agreement shall waive the obligations or rights set forth in the California Tort Claims Act (Government Code Section 810 et seq.).
(f) Buyer is a “local public entity” as defined in Section 900.4 of the Government Code of the State of California.
(g) Buyer cannot assert sovereign immunity as a defense to the enforcement of its obligations under this Agreement.

13.4 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term:
(a) It shall continue to be duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation and to be qualified to conduct business in California and each jurisdiction where the failure to so qualify would have a material adverse effect on its business or financial condition;
(b) It shall maintain (or obtain from time to time as required) all regulatory authorizations, approvals, and permits necessary to legally perform its obligations under this Agreement; and
Attachment Staff Report Item 16C
42 (c) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and in material compliance with any Law.

13.5 Prevailing Wage. Seller shall ensure that all employees hired by Seller, and its contractors and subcontractors, that will perform construction work or provide services at the Site related to construction of the Facility are paid wages at rates not less than those prevailing for workers performing similar work in the locality in which the Facility is located in accordance with the prevailing wage requirements for eligibility for increased tax credits under Sections 45(b)(6)- (7) or Sections 48(a)(9)-(10), as applicable, of the United States Internal Revenue Code of 1986, or any successor statute (“Prevailing Wage Requirement”). To the extent applicable to the construction of the Facility, Seller shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations, and orders and decrees of any courts or administrative bodies or tribunals, including without limitation employment discrimination laws and prevailing wage laws. Seller or its construction contractor for the Facility shall either (i) execute a project labor agreement with the appropriate building or construction trade unions for construction of the Facility or (ii) award the contract for construction to a union signatory entity which will employ a union workforce governed by that entity’s existing labor agreements.

13.6 Workforce Development. Seller shall perform the obligations related to workforce development set forth in Exhibit R.

13.7 Community Investment. Seller shall perform the obligations related to community investment set forth in Exhibit Q.

ARTICLE 14

ASSIGNMENT

14.1 General Prohibition on Assignments. Except as provided in this Article 14, neither Party may voluntarily assign this Agreement or its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Except as provided in this Article 14, any Change of Control of Seller or direct or indirect change of control of Buyer (whether voluntary or by operation of law) will be deemed an assignment and will require the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided that a Change of Control of Seller shall not require Buyer’s consent if the assignee or transferee is an Affiliate. Any assignment made in violation of the conditions to assignment set out in this Article 14 shall be null and void. Buyer shall have no obligation to provide any consent, or enter into any agreement, that materially and adversely affects any of Buyer’s rights, benefits, risks or obligations under this Agreement. Seller shall be responsible for Buyer’s reasonable third party costs associated with the preparation, review, execution and delivery of documents in connection with any assignment of this Agreement by Seller, including without limitation reasonable attorneys’ fees.

14.2 Collateral Assignment. Subject to the provisions of this Section 14.2, Seller has the right to assign this Agreement or any part of its ownership interests in the Facility as collateral for any financing or refinancing of the Facility. In connection with any financing or refinancing of the Facility by Seller, Buyer shall in good faith work with Seller and Lenders to agree upon a consent to collateral assignment of this Agreement (“Collateral Assignment Agreement”), and, Attachment Staff Report Item 16C
43 if requested by Seller in connection with any financing or refinancing by a Lender, one or more estoppel certificates or similar instrument with substantially similar provisions as reasonably requested by Seller or any such Lender. Each Collateral Assignment Agreement must be in form and substance agreed to by Buyer, Seller and the applicable Lender, such agreement not to be unreasonably withheld. Each Collateral Assignment Agreement must include, among others, the following provisions (with such changes as may be reasonably requested by a Lender and that are reasonably acceptable to Buyer) unless otherwise agreed to by Buyer, Seller and the applicable Lender:
(a) Buyer shall give notice of an Event of Default by Seller to the Person(s) to be specified by Lender in the Collateral Assignment Agreement before exercising its right to terminate this Agreement as a result of such Event of Default; provided that such notice shall be provided to Lender at the time such notice is provided to Seller and any cure periods of Lender shall not commence until Lender has received notice of such Event of Default; (b) Lender will have the right to cure an Event of Default on behalf of Seller if Lender sends a written notice to Buyer before the later of (i) the expiration of any cure period, and (ii) ten (10) Business Days after Lender’s receipt of notice of such Event of Default from Buyer, indicating Lender’s intention to cure. Lender must remedy or cure such Event of Default within the cure period under this Agreement and any additional cure periods agreed in the Collateral Assignment Agreement up to a maximum of ninety (90) days (or, in the event of a bankruptcy of Seller or any foreclosure or similar proceeding if required by Lender to cure any Event of Default, an additional reasonable period of time to complete such proceedings and effect such cure not to exceed one hundred eighty (180) days without the written consent of Buyer, which consent shall not be unreasonably withheld), provided that if Lender is prohibited by any court order or bankruptcy or insolvency proceedings from curing the Event of Default or from commencing or prosecuting foreclosure proceedings, the foregoing time periods shall be extended by the period of such prohibition;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller (or Lender, if Lender has provided the notice set forth in subsection (b) above) to provide to Buyer a report concerning:
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default;
(ii) Impediments to the cure plan or its development;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan.

Seller (or Lender, if Lender has provided the notice set forth in subsection (b) above) must provide the report to Buyer within ten (10) Business Days after Notice from Buyer Attachment Staff Report Item 16C
44 requesting the report. Buyer will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; (d) Lender will have the right to consent before any termination of this Agreement which does not arise out of an Event of Default; (e) Lender will receive prior notice of and the right to approve material amendments to this Agreement, which approval will not be unreasonably withheld, delayed or conditioned;
(f) If Lender or its assignee or transferee takes possession of, or title to the Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), Lender or its assignee or transferee must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, before such assumption, if Buyer advises Lender that Buyer will require that Lender cure (or cause to be cured) any Event of Default existing as of the possession date in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Event of Default, then Lender at its option, and in its sole discretion, may elect to either:
(i) Cause such Event of Default to be cured (other than any Events of Default which relate to Seller’s bankruptcy or similar insolvency proceedings, to representations and warranties made by Seller or to Seller’s failure to perform obligations under other agreements, or which are otherwise personal to Seller or are not reasonably capable of cure) or (ii) Not assume this Agreement.
(g) If Lender or its assignee or transferee elects to sell or transfer the Facility (after Lender or its assignee or transferee directly or indirectly, takes possession of, or title to the Facility), or sale of the Facility occurs through the actions of Lender (for example, a foreclosure sale where a third party is the buyer, or otherwise), then Lender shall cause the transferee or buyer to assume all of Seller’s remaining obligations arising under this Agreement and all related agreements as a condition of the sale or transfer. Such sale or transfer may be made only to an entity that meets the definition of Permitted Transferee; and (h) Subject to Lender’s cure of any Events of Defaults under this Agreement in accordance with Section 14.2(f), if this Agreement is rejected in Seller’s bankruptcy proceedings or is otherwise terminated in connection therewith Lender shall have the right to elect within forty-five (45) days after such rejection or termination, to cause Buyer to enter into a replacement agreement with Seller having substantially the same terms as this Agreement for the remaining term thereof.

14.3 Buyer Limited Assignment Right. Notwithstanding anything to the contrary, Buyer may make a limited assignment in connection with a municipal prepayment financing transaction to an entity (“Limited Assignee”) that has an Investment Grade Credit Rating or that provides a parent guaranty, in form and substance reasonably acceptable to Seller from an entity with an Investment Grade Credit Rating, of Buyer’s right to receive Product (which shall not be for retail sale) and its obligation to make payments to Seller in accordance with this Section 14.3.

Attachment Staff Report Item 16C
45 This limited assignment shall be expressly subject to Limited Assignee’s timely payment of amounts due under this Agreement. Buyer may make such assignment by delivering a written request for assignment to Seller no less than thirty (30) days’ prior to the proposed effective date of such assignment, which written request must include a proposed assignment agreement substantially in the form attached to this Agreement as Exhibit S. Provided that Buyer delivers a proposed assignment agreement complying with the previous sentence, Seller agrees to (i) comply with Limited Assignee’s reasonable requests for know-your-customer and similar account opening information and documentation with respect to Seller, including but not limited to information related to forecasted generation, credit rating, and compliance with anti-money laundering rules, the Dodd-Frank Act, the Commodity Exchange Act, the Patriot Act and similar rules, regulations, requirements and corresponding policies, and (ii) promptly execute such assignment agreement and implement such assignment as contemplated thereby, subject only to the countersignature of Limited Assignee and Buyer’s and Seller’s ability to make the representations and warranties contained therein. Upon written request from Seller, Buyer shall provide Seller with reasonable information and documentation with respect to Limited Assignee and the proposed municipal prepayment financing transaction. Buyer shall comply with all reasonable requests received from any Lender in connection with such limited assignment, including providing any requested acknowledgments in any Collateral Assignment Agreement.

14.4 Permitted Assignment by Seller. Except as may be precluded by, or would cause Buyer to be in violation of the Political Reform Act (Cal. Gov. Code section 81000 et seq.,) or the regulations thereto, Cal. Government Code section 1090, Buyer’s Conflict of Interest Code/Policy or any other conflict of interest Law, Seller may, without the prior written consent of Buyer, transfer or assign this Agreement, including through a Change of Control, to an Affiliate of Seller or as described in Section 14.2.

ARTICLE 15

DISPUTE RESOLUTION

15.1 Governing Law. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of Law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement. [STC 17] The Parties agree that any suit, action or other legal proceeding by or against any party (or its affiliates or designees) with respect to or arising out of this Agreement shall be brought in the federal courts of the United States or the courts of the State of California sitting in Alameda County, California.

15.2 Dispute Resolution. In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a written Notice from either Party identifying such dispute, the Parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within the earlier of either thirty (30) days of initiating such discussions, or within forty (40) days after Notice of the dispute, the Parties shall submit the dispute to final and binding arbitration conducted in San Francisco, California, administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures:

Attachment Staff Report Item 16C
46 (a) No arbitrator shall have any affiliation with, financial or other interest in, or prior employment with either Party and shall be knowledgeable in the field of the dispute. The Parties shall cooperate with one another in selecting the arbitrator within thirty (30) days after notice of the demand for arbitration. If, notwithstanding their good faith efforts, the Parties are unable to agree upon a mutually-acceptable arbitrator, the arbitrator shall be appointed by JAMS. (b) At the request of a Party, the arbitrator shall have the discretion to order depositions of witnesses to the extent the arbitrator deems such discovery relevant and appropriate.

Depositions shall be limited to a maximum of three (3) per Party and shall be held within thirty (30) days of the making of a request. Additional depositions may be scheduled only with the permission of the arbitrator, and for good cause shown. Each deposition shall be limited to a maximum of six (6) hours duration unless otherwise permitted by the arbitrator for good cause shown. All objections are reserved for the arbitration hearing except for objections based on privilege and proprietary and confidential information. The arbitrator shall also have discretion to order the Parties to exchange relevant documents and to answer interrogatories. (c) Except to the extent expressly permitted under this Agreement, the arbitrator shall have no authority to award consequential, punitive or exemplary damages or any other damages other than the remedies contemplated by this Agreement. (d) The arbitrator shall prepare in writing and provide to the Parties an award including factual findings and the reasons on which their decision is based. (e) During the pendency of dispute resolution proceedings as provided in this Section 15.2, the Parties shall continue to perform under this Agreement in accordance with its provisions.
(f) The terms of this Agreement requiring arbitration are self-executing. It is unnecessary for either Party to petition a court to compel arbitration in order to initiate arbitration.

The Parties agree that any issues regarding the jurisdiction of the arbitrator, the agreement to arbitrate, and the arbitrability of any claims or disputes arising under, relating to, or in connection with this Agreement are issues solely for arbitrator, not a court, to decide. Each of the Parties expressly waives any right it may have to seek in court, including in enforcement proceedings, a determination on the jurisdiction of the arbitrator, the agreement to arbitrate, or the arbitrability of any claims or disputes; provided, however, that either Party may petition a court of appropriate jurisdiction, as described in Section 15.1, to enforce the mandatory arbitration provisions as described in this Section 15.2.

ARTICLE 16

INDEMNIFICATION

16.1 Indemnification. To the maximum extent permitted by applicable Law, each Party (the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other Party, its directors, officers, agents, attorneys, consultants, employees and representatives (each an “Indemnified Party”) from and against all third party claims, demands, losses, liabilities, penalties, and expenses, including reasonable attorneys’ and expert witness fees, for personal injury or death to Persons and damage to each other’s physical property or facilities or the property Attachment Staff Report Item 16C
47 of any third party to the extent arising out of, resulting from, or caused by the negligent or intentional and wrongful acts, error, or omissions of the Indemnifying Party, its Affiliates, its directors, officers, employees or agents (collectively, “Indemnifiable Losses”). Nothing in this Section shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. This indemnification obligation shall apply notwithstanding any negligent or intentional acts, errors or omissions of an Indemnified Party but the Indemnified Party’s liability to pay Indemnifiable Losses to the Indemnified Party shall be reduced in proportion to the percentage by which the indemnitees’ negligent or intentional acts, errors or omissions caused the Indemnifiable Losses. Neither Party shall be indemnified for its Indemnifiable Losses resulting from its sole negligence or willful misconduct. These indemnity provisions shall not be construed to relieve any insurer of its obligations to pay claims consistent with the provisions of a valid insurance policy. In those circumstances in which Buyer acts as the Indemnifying Party, the Indemnifying Party agrees to defend, indemnify and hold harmless the Indemnified Party from and against Indemnifiable Losses arising out of or relating to or in any way connected with Buyer’s receipt of energy after the Delivery Point.

16.2 Notice of Claim. Subject to the terms of this Agreement and upon obtaining knowledge of an Indemnifiable Loss for which it is entitled to indemnity under this Article 16, the Indemnified Party will promptly provide Notice to the Indemnifying Party in writing of any damage, claim, loss, liability or expense which the Indemnified Party has determined has given or could give rise to an Indemnifiable Loss under Section 16.1 (“Claim”). The Notice is referred to as a “Notice of Claim”. A Notice of Claim will specify, in reasonable detail, the facts known to the Indemnified Party regarding the Indemnifiable Loss.

16.3 Failure to Provide Notice. A failure to give timely Notice or to include any specified information in any Notice as provided in this Section 16.3 will not affect the rights or obligations of any Party hereunder except and only to the extent that, as a result of such failure, any Party which was entitled to receive such Notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise materially damaged as a direct result of such failure.

16.4 Defense of Claims. If, within thirty (30) Business Days after giving a Notice of Claim regarding a Claim to the Indemnifying Party pursuant to Section 16.2, the Indemnified Party receives Notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Claim, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Claim within thirty (30) Business Days after receiving Notice from the Indemnified Party that the Indemnified Party believes the Indemnifying Party has failed to take such steps, or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all Indemnifiable Losses relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses, including attorneys’ fees, paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; provided, however, that the Indemnifying Party may accept any settlement without the consent of the Attachment Staff Report Item 16C
48 Indemnified Party if such settlement provides a full release to the Indemnified Party and no requirement that the Indemnified Party acknowledge fault or culpability. If a firm offer is made to settle a Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agrees to such offer, the Indemnifying Party will give Notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within thirty (30) calendar days after its receipt of such Notice, the Indemnified Party may continue to contest or defend such Claim and, in such event, the maximum liability of the Indemnifying Party to such Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnified Party up to the date of such Notice.

16.5 Amounts Owed. Except as otherwise provided in this Article 16, in the event that a Party is obligated to indemnify and hold the other Party harmless under this Article 16, the amount owing to the Indemnified Party will be the amount of the Indemnified Party’s actual loss net of any insurance proceeds received by the Indemnified Party following a commercially reasonable effort by the Indemnified Party to obtain such insurance proceeds.

16.6 Subrogation of Rights. Upon making any indemnity payment, the Indemnifying Party will, to the extent of such indemnity payment, be subrogated to all rights of the Indemnified Party against any third party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided that until the Indemnified Party recovers full payment of its Indemnifiable Loss, any and all claims of the Indemnifying Party against any such third party on account of said indemnity payment are hereby made expressly subordinated and subjected in right of payment to the Indemnified Party’s rights against such third party. Without limiting the generality or effect of any other provision hereof, Buyer and Seller shall execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.

16.7 Rights and Remedies are Cumulative. Except for express remedies already provided in this Agreement, the rights and remedies of a Party pursuant to this Article 16 are cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

ARTICLE 17

INSURANCE

17.1 Insurance.
(a) General Liability. Seller shall maintain, or cause to be maintained at its sole expense, (i) commercial general liability insurance, including sudden and accidental pollution coverage, products and completed operations and personal injury insurance, with a minimum amount of per occurrence, and an annual aggregate of not less than endorsed to provide contractual liability in said amount, specifically covering Seller’s obligations under this Agreement and including Buyer as an additional insured but only to the extent of the liabilities assumed hereunder by Seller; and (ii) an umbrella insurance policy in a minimum amount of liability of Defense costs shall be provided as an additional benefit and not included with the limits of liability.

Attachment Staff Report Item 16C
49 Such insurance shall contain standard cross-liability and severability of interest provisions.

Insurance may be evidenced through primary and excess policies. (b) Employer’s Liability Insurance. Employers’ Liability insurance shall be for injury or death occurring as a result of each accident. With regard to bodily injury by disease, the policy limit will apply to each employee.
(c) Workers Compensation Insurance. Seller, if it has employees, shall also maintain at all times during the Contract Term workers’ compensation and employers’ liability insurance coverage in accordance with applicable requirements of California Law. (d) Business Auto Insurance. Seller shall maintain at all times during the Contract Term business auto insurance for bodily injury and property damage with limits of per occurrence. Such insurance shall cover liability arising out of Seller’s use of all owned (if any), non-owned and hired vehicles, including trailers or semi-trailers in the performance of the Agreement.
(e) Construction All-Risk Insurance. Seller shall maintain or cause to be maintained during the construction of the Facility, construction all-risk form property insurance covering the Facility during such construction periods, and naming Seller (and Lender if any) as the loss payee.
(f) Contractor’s Pollution Liability. Seller shall maintain or cause to be maintained during the construction of the Facility prior to the Commercial Operation Date, Pollution Legal Liability Insurance in the amount of per occurrence and in the aggregate, naming Seller (and Lender if any) as additional named insured. (g) Subcontractor Insurance. Seller shall require all of its subcontractors to carry a minimum of general liability and/or umbrella liability insurance, and the same levels of insurance as Seller in Section 17.1(b)-(d). All subcontractors shall include Seller as an additional insured to (i) comprehensive general liability insurance; (ii) workers’ compensation insurance and employers’ liability coverage; and (iii) business auto insurance for bodily injury and property damage. All subcontractors shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 17.1(g).
(h) Evidence of Insurance. Within sixty (60) days of the Effective Date and upon annual renewal of required insurance coverage thereafter, Seller shall deliver to Buyer certificates of insurance evidencing such coverage as is required to be in effect at the times specified above. These certificates shall specify that Buyer shall be given at least thirty (30) days prior Notice by Seller in the event of any material modification, cancellation or termination of coverage. Such insurance shall be primary coverage without right of contribution from any insurance of Buyer. Any other insurance maintained by Seller is for the exclusive benefit of Seller and shall not in any manner inure to the benefit of Buyer.

Attachment Staff Report Item 16C
50 ARTICLE 18

CONFIDENTIAL INFORMATION

18.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written which is delivered by Seller to Buyer or by Buyer to Seller including: (a) the pricing and other commercially sensitive terms and conditions of, and proposals and negotiations related to, this Agreement, (b) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” before disclosing it to the other, and (c) information that would, under the circumstances, appear to a reasonable Person to be confidential or proprietary. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of the delivery; (iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement. Notwithstanding the foregoing, the Parties acknowledge and agree that Buyer intends to make publicly available a version of this Agreement with certain commercially sensitive provisions removed or redacted.

18.2 Duty to Maintain Confidentiality. Confidential Information will retain its character as Confidential Information but may be disclosed by the recipient (the “Receiving Party”) if and to the extent such disclosure is required (a) to be made by any requirements of Law, (b) pursuant to an order of a court or (c) in order to enforce this Agreement. If the Receiving Party becomes legally compelled (by interrogatories, requests for information or documents, subpoenas, summons, civil investigative demands, or similar processes or otherwise in connection with any litigation or to comply with any applicable law, order, regulation, ruling, regulatory request, accounting disclosure rule or standard or any exchange, control area or independent system operator rule) to disclose any Confidential Information of the disclosing Party (the “Disclosing Party”), Receiving Party shall provide Disclosing Party with prompt notice so that Disclosing Party, at its sole expense, may seek an appropriate protective order or other appropriate remedy.

In the event that the Disclosing Party is unable to obtain a protective order or other appropriate remedy, or if it so directs the Receiving Party, the Receiving Party or its representatives shall furnish only that portion of the Confidential Information that the Receiving Party is advised by its counsel is required by Law to be furnished by it. The Parties acknowledge and agree that this Agreement, and information and documentation provided in connection with this Agreement, including Confidential Information, may be subject to the California Public Records Act (Government Code Section 7920 et seq.).

18.3 Irreparable Injury; Remedies. Receiving Party acknowledges that its obligations hereunder are necessary and reasonable in order to protect Disclosing Party and the business of Disclosing Party, and expressly acknowledges that monetary damages would be inadequate to compensate Disclosing Party for any breach or threatened breach by Receiving Party of any covenants and agreements set forth herein. Accordingly, Receiving Party acknowledges that any such breach or threatened breach will cause irreparable injury to Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Disclosing Attachment Staff Report Item 16C
51 Party will be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.

18.4 Disclosure to Lenders, Etc.. Notwithstanding anything to the contrary in this Article 18, Confidential Information may be disclosed by Seller to any actual or potential Lender or investor or any of its Affiliates, and Seller’s actual or potential agents, consultants, contractors, or trustees, or by Buyer to any actual or potential Limited Assignee, so long as the Person to whom Confidential Information is disclosed either is bound by similarly restrictive confidentiality obligations as those contained in this Agreement, or agrees in writing to be bound by the confidentiality provisions of this Article 18 to the same extent as if it were a Party.

18.5 Press Releases. Neither Party shall issue (or cause its Affiliates to issue) a press release regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such public statement. For the purposes of this section and to the extent the information is not prohibited by law from disclosure, press release does not include records released by Buyer, including annual comprehensive financial reports; memorandums or reports to Buyer’s city council; documentations submitted to regulatory agencies; disclosures related to public financings; and production of records required by subpoena, court order, or under the California Public Records Act (Government Code Section 7920 et seq.).

ARTICLE 19

MISCELLANEOUS

19.1 Entire Agreement; Integration; Exhibits. This Agreement, together with the Cover Sheet and Exhibits attached hereto constitutes the entire agreement and understanding between Seller and Buyer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by reference. The headings used herein are for convenience and reference purposes only. In the event of a conflict between the provisions of this Agreement and those of the Cover Sheet or any Exhibit, the provisions of first the Cover Sheet, and then this Agreement shall prevail, and such Exhibit shall be corrected accordingly. This Agreement shall be considered for all purposes as prepared through the joint efforts of the Parties and shall not be construed against one Party or the other Party as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof.

19.2 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Buyer; provided, that, for the avoidance of doubt, this Agreement may not be amended by electronic mail communications.

19.3 No Waiver. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default.

19.4 No Agency, Partnership, Joint Venture or Lease. Seller and the agents and employees of Seller shall, in the performance of this Agreement, act in an independent capacity and not as officers or employees or agents of Buyer. Under this Agreement, Seller and Buyer Attachment Staff Report Item 16C
52 intend to act as energy seller and energy purchaser, respectively, and do not intend to be treated as, and shall not act as, partners in, co-venturers in or lessor/lessee with respect to the Facility or any business related to the Facility. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement or, to the extent set forth herein, any Lender or Indemnified Party).

19.5 Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal or unenforceable provision(s) with legally acceptable clauses which correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as a whole.

19.6 Mobile-Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms or conditions of service of this Agreement proposed by a Party shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable law.

19.7 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument and each of which shall be deemed an original. The Parties may rely on electronic or scanned signatures as originals.

19.8 Electronic Delivery. Delivery of an executed signature page of this Agreement by electronic format (including portable document format (.pdf)) shall be the same as delivery of an original executed signature page.

19.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

19.10 No Recourse to Members of Buyer. Buyer is organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) pursuant to its Joint Powers Agreement and is a public entity separate from its constituent members. Buyer shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Seller shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Buyer’s constituent members, or the employees, directors, officers, consultants or advisors of Buyer or its constituent members, in connection with this Agreement. Seller shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Buyer shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Seller’s Attachment Staff Report Item 16C
53 members, Affiliates, equity holders, or the employees, directors, officers, consultants or advisors of Seller or its members, Affiliates or equity holders, in connection with this Agreement.

19.11 Forward Contract. The Parties intend that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and Seller are “forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. § 366 in any bankruptcy proceeding wherein such Party is a debtor.

In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. § 366 or another provision of 11 U.S.C. § 101-1532.

19.12 Further Assurances. Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.
[Signatures on following page]
Attachment Staff Report Item 16C
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.

IP EASLEY, LLC AVA COMMUNITY ENERGY
AUTHORITY, a California joint powers
authority
By: By:

Name: Name:

Title: Title:

Date: Date:

Attachment Staff Report Item 16C
Exhibit A - 1

EXHIBIT A

FACILITY DESCRIPTION
The Facility consists of a 75 MW, as measured at the Delivery Point, The Facility will be comprised of solar panels, inverters, collection lines and step-up transformers, switchyard, and approximately to reach its point of
interconnection (including Shared Facilities), but will not include the Additional Easley Facility or the Energy Storage Facility.

Site Name:

Site includes all or some of the following APNs:

Attachment Staff Report Item 16C
2 County: Riverside County, California
CEQA Lead Agency: Riverside County
Type of Facility: Solar photovoltaic electricity generating facility Operating Characteristics of Facility:

Guaranteed Capacity: 75 MW
Delivery Point:

Facility Meter Locations: See Exhibit P
Facility Interconnection Point:

Facility PNode:

Participating Transmission Owner:

Attachment Staff Report Item 16C
Exhibit B - 1

EXHIBIT B

FACILITY CONSTRUCTION AND COMMERCIAL OPERATION

1. Construction of the Facility.
(a) “Construction Start” will occur once Seller has acquired all applicable regulatory authorizations, approvals and permits for the commencement of construction of the Facility, executed an engineering, procurement, and construction contract, or equipment supply agreement for solar modules and a balance of plant contract, or reasonably comparable contractual arrangements, and issued thereunder a full notice to proceed that authorizes the contractor to mobilize to Site and to begin physical construction (including, at a minimum, excavation for foundations or installation or erection of improvements) of the Facility at the Site, and provided evidence of the Prevailing Wage requirements set forth in Section 13.5. The date of Construction Start will be evidenced by and subject to Seller’s delivery to Buyer of a certificate substantially in the form attached as Exhibit J hereto, and the date certified therein shall be the “Construction Start Date.” Seller shall cause Construction Start to occur no later than the Guaranteed Construction Start Date. (b) The “Guaranteed Construction Start Date” means the Expected Construction Start Date, subject to extensions on a day-for-day basis for the Development Cure Period.
(c)

2. Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”), (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. The “Commercial Operation Date” shall be the date on Attachment Staff Report Item 16C
Exhibit B - 2
which Commercial Operation is achieved or the dispute resolution process has resulted in a determination that the Commercial Operation Date has been achieved; provided that Buyer must acknowledge to Seller in writing that Commercial Operation has been achieved, or provide written notice describing why Buyer does not agree that Commercial Operation has been achieved, within five (5) Business Days of receiving Seller’s notice that Commercial Operation has been achieved. If Buyer fails to acknowledge or provide written notice disputing Commercial Operation within such five (5)-Business Day period, Buyer’s right to acknowledge Commercial Operation shall be waived and Commercial Operation shall be deemed to have occurred as of the last day of such five (5)-Business Day period; provided that the Commercial Operation Date shall occur no earlier than September 30, 2026.
(a) Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”).

Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. (b)
(c)

3. 4. Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall both, subject to notice and documentation requirements set forth below, be extended on a day-for-day basis due to Attachment Staff Report Item 16C
Exhibit B - 3

5. Attachment Staff Report Item 16C
Exhibit C - 1

EXHIBIT C

COMPENSATION
Buyer shall compensate Seller for the Product in accordance with this Exhibit C. (a) Settlement Price. “Settlement Price” shall have the following meaning:
(i)
(ii)
(iii)
(b) Monthly Settlement Amount. For each calendar month of the Delivery Term, subject to Section (e) of this Exhibit C, Seller shall calculate the “Monthly Settlement Amount,” which shall be a single amount due from Buyer to Seller, or from Seller to Buyer, as appropriate.

The Monthly Settlement Amount shall equal the sum of:
(i)
(ii)
(c)
(d) Reserved.

Attachment Staff Report Item 16C
Exhibit C - 2
(e)
(f)
(g)
(h) Tax Credits. The Parties agree that the neither the Contract Price nor the Test Energy Rate are subject to adjustment or amendment if Seller fails to receive any Tax Credits, or if any Tax Credits expire, are repealed or otherwise cease to apply to Seller or the Facility in whole or in part, or Seller or its investors are unable to benefit from any Tax Credits. Seller shall bear all risks, financial and otherwise, throughout the Contract Term, associated with Seller’s or the Facility’s eligibility to receive Tax Credits or to qualify for accelerated depreciation for Seller’s accounting, reporting or Tax purposes. The obligations of the Parties hereunder, including those obligations set forth herein regarding the purchase price for and Seller’s obligation to deliver Product, shall be effective regardless of whether the sale of Product is eligible for, or receives Tax Credits during the Contract Term.

Attachment Staff Report Item 16C
Exhibit D - 1

EXHIBIT D

SCHEDULING COORDINATOR RESPONSIBILITIES
(a) Seller as Scheduling Coordinator for the Facility. Upon Initial Synchronization of the Facility to the CAISO Grid, Seller shall be the Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for the delivery of the Product at the Delivery Point. Seller (as the Facility’s SC) shall submit Bids to the CAISO in accordance with this Agreement and the applicable CAISO Tariff, protocols and Scheduling practices for Product on a day-ahead, hour-ahead, fifteen-minute market, real time or other market basis that may develop after the Effective Date, as determined by Seller. (b) CAISO Costs and Revenues. Seller (as Scheduling Coordinator for the Facility) shall be responsible for CAISO costs (including penalties, Imbalance Energy costs or revenues, and other charges) and shall be entitled to all CAISO revenues (including credits, Imbalance Energy costs or revenues, and other payments), including revenues associated with CAISO dispatches, bid cost recovery, Inter-SC Trade credits, or other credits in respect of the Product Scheduled or delivered from the Facility. Seller shall be responsible for all CAISO penalties resulting from any failure by Seller to abide by the CAISO Tariff or the outage notification requirements set forth in this Agreement. The Parties agree that any Availability Incentive Payments (as defined in the CAISO Tariff) are for the benefit of Seller and for Seller’s account and that any Non-Availability Charges (as defined in the CAISO Tariff) are the responsibility of Seller and for Seller’s account. In addition, if during the Delivery Term, the CAISO implements or has implemented any sanction or penalty related to scheduling, outage reporting, or generator operation, and any such sanctions or penalties are imposed upon the Facility due to failure by Seller to abide by the CAISO Tariff or the outage notification requirements set forth in this Agreement, the cost of the sanctions or penalties shall be Seller’s responsibility. (c) CAISO Settlements. Seller (as the Facility’s SC) shall be responsible for all settlement functions with the CAISO related to the Facility. (d) Master Data File and Resource Data Template. Seller shall provide the data to the CAISO (and to Buyer) that is required for the CAISO’s Master Data File and Resource Data Template (or successor data systems) for the Facility consistent with this Agreement. At least once per Contract Year, Seller shall review and confirm that the data provided for the CAISO’s Master Data File and Resource Data Template (or successor data systems) for the Facility remains consistent with the actual operating characteristics of the Facility and update such data as appropriate.

Attachment Staff Report Item 16C
Exhibit E - 1

EXHIBIT E

PROGRESS REPORTING FORM
Each Progress Report must include the following items:

1. Executive Summary.

2. Facility description.

3. Site plan of the Facility.

4. Description of any material planned changes to the Facility or the site.

5. Gantt chart schedule showing progress on achieving each of the Milestones.

6. Summary of activities during the previous calendar quarter, including any OSHA labor hour reports.

7. Forecast of activities scheduled for the current calendar quarter or month as applicable.

8. Written description about the progress relative to Seller’s Milestones, including whether Seller has met or is on target to meet the Milestones.

9. List of issues that are likely to potentially affect Seller’s Milestones.

10. A status report of start-up activities including a forecast of activities ongoing and after start-up, a report on Facility performance including performance projections for the next twelve (12) months.

11. The utilization of union labor by Seller’s principal EPC contractor.

12. Progress and schedule of all major agreements, contracts, permits, approvals, technical studies, financing agreements and major equipment purchase orders showing the start dates, completion dates, and completion percentages.

13. Pictures, in sufficient quantity and of appropriate detail, in order to document construction and startup progress of the Facility, the interconnection into the Transmission System and all other interconnection utility services.

14. Any other documentation reasonably requested by Buyer.

Attachment Staff Report Item 16C
Exhibit F-1 - 1
EXHIBIT F-1

FORM OF AVERAGE EXPECTED ENERGY REPORT
Average Expected Energy (in MWh)
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
NOV
DEC
The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.

Attachment Staff Report Item 16C
Exhibit F-2 - 1
EXHIBIT F-2

FORM OF MONTHLY AVAILABLE CAPACITY FORECAST
Available Generating Capacity (in MWh) – [Insert Month] 1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 Day 1
Day 2
Day 3
Day 4
Day 5
[insert a
Day
29 Day
30 Day
31 The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.

Attachment Staff Report Item 16C
Exhibit G - 1

EXHIBIT G

GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION
Attachment Staff Report Item 16C
2 Attachment Staff Report Item 16C
Exhibit H - 1

EXHIBIT H

FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by [Licensed Professional Engineer] (“Engineer”) to Ava Community Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated [Date] (“Agreement”) by and between IP Easley, LLC (“Seller”) and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

As of [Date], Engineer hereby certifies and represents to Buyer the following:

1. The Facility is fully operational, reliable and interconnected, fully integrated and synchronized with the Transmission System.

2. Seller has installed equipment for the Facility with a nameplate capacity of no less than ninety-five percent (95%) of the Guaranteed Capacity measured at the Delivery Point.

3. Seller has commissioned substantially all equipment comprising the Facility in accordance with its respective manufacturer’s specifications.

4. The Facility’s testing included a performance test demonstrating peak electrical output of no less than ninety-five percent (95%) of the Guaranteed Capacity for the Facility at the Delivery Point, as adjusted for ambient conditions on the date of the Facility testing.

5. Seller has demonstrated functionality of the Facility’s communication systems and automatic generation control (AGC) interface to operate the Facility as necessary to respond and follow instructions, including an electronic signal conveying real time and intra-day instructions, directed by the Buyer in accordance with the Agreement and/or the CAISO.

6. Authorization to parallel the Facility was obtained by the Participating Transmission Provider on [date].

7. The Transmission Provider has provided documentation supporting full unrestricted release for Commercial Operation on [date].

8. The CAISO has provided notification supporting Commercial Operation, in accordance with the CAISO Tariff on [date].

9. Seller shall have caused the Facility to be included in the Full Network Model and has the ability to offer Bids into the CAISO Day-Ahead Market and Real-Time Market in respect of the Facility.

EXECUTED by [Licensed Professional Engineer]
this ________ day of _____________, 20__.

Attachment Staff Report Item 16C
Exhibit H - 2
[LICENSED PROFESSIONAL ENGINEER]
By:

Printed Name:

Title:

Attachment Staff Report Item 16C
Exhibit I - 1

EXHIBIT I

FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity is delivered by [Licensed Professional Engineer] (“Engineer”) to Ava Community Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated [Date] (“Agreement”) by and between IP Easley, LLC (“Seller”) and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

I hereby certify that the performance test for the Facility demonstrated peak electrical output of __ MW AC at the Delivery Point, as adjusted for ambient conditions on the date of the performance test (“Installed Capacity”).

EXECUTED by [Licensed Professional Engineer]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL ENGINEER]
By:

Printed Name:

Title:

Attachment Staff Report Item 16C
Exhibit J - 1

EXHIBIT J

FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification of Construction Start Date (“Certification”) is delivered by IP Easley, LLC (“Seller”) to Ava Community Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated [Date] (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

Seller hereby certifies and represents to Buyer the following:

1. Construction Start (as defined in Exhibit B of the Agreement) has occurred, and a copy of the notice to proceed that Seller issued to its contractor as part of Construction Start is attached hereto;

2. the Construction Start Date occurred on [Date] (the “Construction Start Date”); and

3. the precise Site on which the Facility is located is, which must be within the boundaries of the previously identified Site: ___________________________________________.

IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller this ________ day of _____________, 20__.
[_______________________________]
By:

Printed Name:

Title:

Attachment Staff Report Item 16C
Exhibit K - 1

EXHIBIT K

FORM OF LETTER OF CREDIT
[Issuing Bank Letterhead and Address]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX]
Date: _____________________
Bank Ref.: _________________
Amount: US$_______________
Expiration Date: ____________
Beneficiary:

Ava Community Energy Authority, a California joint powers authority Ladies and Gentlemen:

By the order of __________ (“Applicant”), we, [insert bank name and address] (“Issuer”) hereby issue our Irrevocable Standby Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) in favor of Ava Community Energy Authority, a California joint powers authority (“Beneficiary”), for an amount not to exceed the aggregate sum of U.S. $[XXXXXX] (United States Dollars [XXXXX] and 00/100), pursuant to that certain Renewable Power Purchase Agreement dated as of _____ and as amended (the “Agreement”) between Applicant and Beneficiary. This Letter of Credit shall become effective immediately and shall expire on [Insert Date] which is one year after the issue date of this Letter of Credit, or any expiration date extended in accordance with the terms hereof (the “Expiration Date”).

Funds under this Letter of Credit are available to Beneficiary by valid presentation on or before the Expiration Date of a dated statement purportedly signed by your duly authorized representative, in the form attached hereto as Exhibit A, containing one of the two alternative paragraphs set forth in paragraph 2 therein, referencing our Letter of Credit No. [XXXXXXX] (“Drawing Certificate”).

The Drawing Certificate may be presented by (a) physical delivery, (b) as a PDF attachment to an email to [bank email address] or (c) facsimile to [bank fax number] confirmed by [email to [bank email address]]. Transmittal by facsimile or email shall be deemed delivered when received.

The original of this Letter of Credit (and all amendments, if any) is not required to be presented in connection with any presentment of a Drawing Certificate by Beneficiary hereunder in order to receive payment.

We hereby agree with the Beneficiary that all documents presented under and in compliance with the terms of this Letter of Credit, that such drafts will be duly honored upon presentation to the Issuer on or before the Expiration Date. All payments made under this Letter of Credit shall be made with Issuer’s own immediately available funds by means of wire transfer in immediately Attachment Staff Report Item 16C
available United States dollars to Beneficiary’s account as indicated by Beneficiary in its Drawing Certificate or in a communication accompanying its Drawing Certificate.

Partial draws are permitted under this Letter of Credit, and this Letter of Credit shall remain in full force and effect with respect to any continuing balance.

It is a condition of this Letter of Credit that the Expiration Date shall be deemed automatically extended without an amendment for a one year period beginning on the present Expiration Date hereof and upon each anniversary for such date, unless at least one hundred twenty (120) days prior to any such Expiration Date we have sent to you written notice by overnight courier service that we elect not to extend this Letter of Credit, in which case it will expire on the Expiration Date.

No presentation made under this Letter of Credit after such Expiration Date will be honored.

Notwithstanding any reference in this Letter of Credit to any other documents, instruments or agreements, this Letter of Credit contains the entire agreement between Beneficiary and Issuer relating to the obligations of Issuer hereunder.

This Letter of Credit is issued subject to the rules of the ‘International Standby Practices 1998’, International Chamber of Commerce Publication No. 590 (“ISP98”) and, as to matters not addressed by ISP98, shall be governed and construed in accordance with the laws of the State of California.

Please address all correspondence regarding this Letter of Credit to the attention of the Letter of Credit Department at [insert bank address information], referring specifically to Issuer’s Letter of Credit No. [XXXXXXX]. For telephone assistance, please contact Issuer’s Standby Letter of Credit Department at [XXX-XXX-XXXX] and have this Letter of Credit available.

All notices to Beneficiary shall be in writing and are required to be sent by certified letter, overnight courier, or delivered in person to: Ava Community Energy Authority, [Address]. Only notices to Beneficiary meeting the requirements of this paragraph shall be considered valid. Any notice to Beneficiary which is not in accordance with this paragraph shall be void and of no force or effect. [Bank Name]
[Insert officer name]
[Insert officer title]
Attachment Staff Report Item 16C
Exhibit A: (DRAW REQUEST SHOULD BE ON BENEFICIARY’S LETTERHEAD) Drawing Certificate
[Insert Bank Name and Address]
Ladies and Gentlemen:

The undersigned, a duly authorized representative of Ava Community Energy Authority, a California joint powers authority as beneficiary (the “Beneficiary”) of the Irrevocable Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) issued by [insert bank name] (the “Bank”) by order of __________ (the “Applicant”), hereby certifies to the Bank as follows:

1. Applicant and Beneficiary are party to that certain Renewable Power Purchase Agreement dated as of ___________, 20__ (the “Agreement”).

2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________ because a Seller Event of Default (as such term is defined in the Agreement) has occurred or other occasion provided for in the Agreement where Beneficiary is authorized to draw on the Letter of Credit has occurred.

OR
Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________, which equals the full available amount under the Letter of Credit, because Applicant is required to maintain the Letter of Credit in force and effect beyond the Expiration Date of the Letter of Credit but has failed to provide Beneficiary with a replacement Letter of Credit or other acceptable instrument within thirty (30) days prior to such Expiration Date.

3. The undersigned is a duly authorized representative of Ava Community Energy Authority and is authorized to execute and deliver this Drawing Certificate on behalf of Beneficiary.

You are hereby directed to make payment of the requested amount to Ava Community Energy Authority by wire transfer in immediately available funds to the following account: [Specify account information]
Ava Community Energy Authority
Name and Title of Authorized Representative
Date___________________________
Attachment Staff Report Item 16C
Exhibit L - 1

EXHIBIT L
[RESERVED]
Attachment Staff Report Item 16C
Exhibit M - 1

EXHIBIT M
[RESERVED]
Attachment Staff Report Item 16C
Exhibit N - 1

EXHIBIT N

NOTICES
IP Easley, LLC Ava Community Energy Authority
All Notices: All Notices:
1999 Harrison Street, Suite 2300
Oakland, CA 94612
Attn: Power Resources
Phone: (510) 809-7458
Email: [email protected];
[email protected]
Reference Numbers: Reference Numbers:

Duns: 08-110-3072
Federal Tax ID Number: 82-2262960
Invoices: Invoices:

Attn: Jason Bartlett, Finance Manager
Phone: 510-650-7584
Email: [email protected];
[email protected];
[email protected]
Scheduling: Scheduling:

Attn: NCPA c/o Ken Goeke, Manager, Portfolio
and Pool Administration
Phone: (916) 781-4290
Email: [email protected]
Confirmations: Confirmations:

Attn: Power Resources
Phone: (510) 361-6247
Email: [email protected];
[email protected];
[email protected]
Payments: Payments:

Attn: Jason Bartlett, Finance Manager
Phone: 510-650-7584
Email: [email protected]
Wire Transfer: Wire Transfer:

BNK: River City Bank
2485 Natomas Park Drive, Suite 100, Sacramento,
CA 95833
ABA: 121133416
ACCT: xxxxxx7551
Attachment Staff Report Item 16C
Exhibit N - 2
IP Easley, LLC Ava Community Energy Authority
Credit and Collections: Credit and Collections:

Attn: Howard Chang, Chief Operating Officer
Phone: (510) 809-7458
Email: [email protected];
[email protected]
With additional Notices of an Event of
Default to:

With an additional copy to:

With additional Notices of an Event of Default
to:

Attn: Power Resources
1999 Harrison Street, Suite 2300
Oakland, CA 94612
Phone: (510) 809-7458
Email: [email protected];
[email protected]
With an additional copy to:

Hall Energy Law PC
Attn: Stephen Hall
Phone: (503) 313-0755
Email: [email protected]
Attachment Staff Report Item 16C
Exhibit O - 1

EXHIBIT O

OPERATING RESTRICTIONS
• Nameplate capacity of the Facility: 75 MW
• Minimum capacity:
• Ramp rate:

Attachment Staff Report Item 16C
Exhibit P - 1

EXHIBIT P
Attachment Staff Report Item 16C
Exhibit Q - 1

EXHIBIT Q

COMMUNITY INVESTMENT
Attachment Staff Report Item 16C
Exhibit R - 1

EXHIBIT R

WORKFORCE DEVELOPMENT
Seller shall use good faith efforts in connection with the following workforce objectives related to the construction of the Facility:
(a) Utilization of apprentices at the same ratio of apprentice hours to journeyperson hours as required for public works projects. Generally this is one apprentice hour per every 5 hours of journeywork per craft.
(b) Demonstrated commitment to Local Hires and a Targeted Hire Program, including utilization of a multi-craft core curriculum (MC3) pre-apprenticeship program, or equivalent industry and state-recognized pre-apprenticeship certification, for outreach, preparation, support and referral of Targeted Hires.
(c) Demonstrated commitment to subcontracting with Small, Local, or Emerging Businesses.
“Local Hire” means a resident within 125 miles of the Facility. Such radius will target a distance that is within reasonable daily commuting distance; or a resident within the county where the project is being constructed;
“Targeted Hire Program” means a pipeline program which: (a) Partners with a Multi-Craft Core Curriculum (MC3) pre-apprenticeship program or programs, or equivalent industry and state-recognized certificated career training and placement program that recruits, supports, and places Equity Priority Workers in skilled construction trades; and (b) Creates opportunities for an Equity Priority Worker to enter registered apprenticeship programs and/or obtain work hours needed to successfully complete their apprenticeship; or (c) Recruits and places income-qualified journeypersons.

“Equity Priority Worker” means a jobseeker who, at the time of hiring or within the last twelve months, satisfies at least one of the following categories:
a. Currently unhoused or at risk of homelessness
b. Being a custodial single parent
c. Currently receiving public assistance
d. Lacking a GED or high school diploma
e. Having been continuously unemployed or underemployed for the past 6 months f. Having been emancipated from the foster care system
g. Being a veteran of the United States Military
h. Being a member of a tribal community associated with indigenous people i. Having a previous incarcerated or justice involvement history j. At-Risk Youth: a person 18-24 years old who is disconnected from school and/or work k. Low income (household income is below the current HUD threshold for Low Income Households in their county of residence)

“Small, Local, or Emerging Business” means a business that is considered small, local, or emerging under the following requirements:

Attachment Staff Report Item 16C
2 a. Local Business - A business having a fixed office with a street address in Riverside County or Ava’s service territory, and having a valid business license issued by a jurisdiction within Riverside County or Ava’s service territory for at least 6 months. b. Small Business - A business which has been certified to meet the U.S. Small Business Administration (SBA) size standards for its classification. c. Emerging Business - A business which has been certified to meet less than one half the U.S. SBA size standards for its classification and has been in business less than 5 years.

Attachment Staff Report Item 16C
Exhibit S - 1

EXHIBIT S
Attachment Staff Report Item 16C
Exhibit S - 2
Attachment Staff Report Item 16C
Exhibit S - 3
Attachment Staff Report Item 16C
Exhibit S - 4
Attachment Staff Report Item 16C
Exhibit S - 5
Attachment Staff Report Item 16C
Exhibit S - 6
Attachment Staff Report Item 16C
FEBRUARY 12, 2024

SELLER DRAFT
1 RENEWABLE POWER PURCHASE AGREEMENT

COVER SHEET
Seller: IP Easley II, LLC (“Seller”)
Buyer: Ava Community Energy Authority, a California joint powers authority (“Buyer”) Description of Facility: A 75 MW solar photovoltaic renewable energy generating facility located in Riverside County, in the State of California, and as further described in Exhibit A.

Milestones:

Milestones Date for
Completion
Evidence of Site Control
Executed Interconnection Agreement
CEC Pre-Certification Obtained
Obtain Federal and State Discretionary Permits
Network Upgrades Completed
Procure Major Equipment
Expected Construction Start Date
Initial Synchronization 02/28/2027
Expected Commercial Operation Date 03/31/2027
Full Capacity Deliverability Status Obtained
Delivery Term: The period for Product delivery will be for ten (10) Contract Years.

Expected Energy:

Contract Years Expected Energy
1 2
3 4
Attachment Staff Report Item 16D
2 Contract Years Expected Energy
5 6
7 8
9 10
Guaranteed Capacity: 75 MW
Contract Price: The Contract Price of the Product shall be:

Contract Years Contract Price
1 – 10
Metering Arrangement: SC Metered Entity
Delivery Point:

Product:
☒ Facility Energy
☒ Green Attributes (Portfolio Content Category 1) associated with Facility Energy ☐ Ancillary Services
Scheduling Coordinator: Seller or Seller Third Party
Development Security and Performance Security:

Development Security:

Performance Security:

Attachment Staff Report Item 16D

TABLE OF CONTENTS
Page
i
ARTICLE 1 DEFINITIONS .......................................................................................................... 1

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

1.2 RULES OF INTERPRETATION .................................................................................. 16 ARTICLE 2 TERM; CONDITIONS PRECEDENT ................................................................... 17

2.1 CONTRACT TERM .................................................................................................. 17

2.2 CONDITIONS PRECEDENT ...................................................................................... 18

2.3 DEVELOPMENT; CONSTRUCTION; PROGRESS REPORTS ......................................... 19

2.4 REMEDIAL ACTION PLAN ...................................................................................... 19 ARTICLE 3 PURCHASE AND SALE ....................................................................................... 19

3.1 PURCHASE AND SALE OF PRODUCT ....................................................................... 19

3.2 SALE OF GREEN ATTRIBUTES ................................................................................ 20

3.3 IMBALANCE ENERGY ............................................................................................ 20

3.4 OWNERSHIP OF RENEWABLE ENERGY INCENTIVES ............................................... 20

3.5 FUTURE ENVIRONMENTAL ATTRIBUTES ............................................................... 20

3.6 TEST ENERGY ....................................................................................................... 21

3.7 RESERVED ............................................................................................................. 21

3.8 RESERVED ............................................................................................................. 21

3.9 CEC CERTIFICATION AND VERIFICATION ............................................................. 21

3.10 RESERVED ............................................................................................................. 21

3.11 NON-MODIFIABLE STANDARD TERMS AND CONDITIONS ...................................... 21

3.12 COMPLIANCE EXPENDITURE CAP .......................................................................... 22 ARTICLE 4 OBLIGATIONS AND DELIVERIES .................................................................... 23

4.1 DELIVERY ............................................................................................................. 23

4.2 TITLE AND RISK OF LOSS ...................................................................................... 23

4.3 FORECASTING ....................................................................................................... 24

4.4 RESERVED ............................................................................................................. 25

4.5 STATION USE ........................................................................................................ 25

4.6 REDUCTION IN DELIVERY OBLIGATION ................................................................ 25

4.7 4.8 WREGIS .............................................................................................................. 26

4.9 GREEN-E CERTIFICATION ...................................................................................... 27

4.10 INTERCONNECTION CAPACITY .............................................................................. 27 ARTICLE 5 TAXES .................................................................................................................... 27

5.1 ALLOCATION OF TAXES AND CHARGES ................................................................ 27

5.2 COOPERATION ....................................................................................................... 28 ARTICLE 6 MAINTENANCE OF THE FACILITY ................................................................. 28

6.1 MAINTENANCE OF THE FACILITY .......................................................................... 28

6.2 MAINTENANCE OF HEALTH AND SAFETY .............................................................. 28

6.3 SHARED FACILITIES .............................................................................................. 28 ARTICLE 7 METERING ............................................................................................................ 28

7.1 METERING ............................................................................................................ 28

7.2 METER VERIFICATION .......................................................................................... 29 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ............................................................. 29

8.1 INVOICING ............................................................................................................. 29 Attachment Staff Report Item 16D

TABLE OF CONTENTS
(continued)
Page
ii

8.2 PAYMENT .............................................................................................................. 29

8.3 BOOKS AND RECORDS ........................................................................................... 30

8.4 PAYMENT ADJUSTMENTS; BILLING ERRORS ......................................................... 30

8.5 BILLING DISPUTES ................................................................................................ 30

8.6 NETTING OF PAYMENTS ........................................................................................ 31

8.7 8.8

8.9 FIRST PRIORITY SECURITY INTEREST IN CASH OR CASH EQUIVALENT COLLATERAL ........................................................................................................ 32 ARTICLE 9 NOTICES ................................................................................................................ 32

9.1 ADDRESSES FOR THE DELIVERY OF NOTICES ........................................................ 32

9.2 ACCEPTABLE MEANS OF DELIVERING NOTICE ..................................................... 33 ARTICLE 10 FORCE MAJEURE .............................................................................................. 33

10.1 DEFINITION ........................................................................................................... 33

10.2 10.3

10.4 ............................................ 34
ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ...................................................... 35

11.1 EVENTS OF DEFAULT ............................................................................................ 35

11.2 REMEDIES; DECLARATION OF EARLY TERMINATION DATE .................................. 36

11.3 TERMINATION PAYMENT ...................................................................................... 37

11.4 NOTICE OF PAYMENT OF TERMINATION PAYMENT ............................................... 38

11.5 DISPUTES WITH RESPECT TO TERMINATION PAYMENT......................................... 38

11.6 RIGHTS AND REMEDIES ARE CUMULATIVE .......................................................... 38

11.7 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES .......... 38

12.1 NO CONSEQUENTIAL DAMAGES ............................................................................ 38

12.2 WAIVER AND EXCLUSION OF OTHER DAMAGES ................................................... 38 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY ........................... 39

13.1 SELLER’S REPRESENTATIONS AND WARRANTIES .................................................. 39

13.2 SELLER COVENANTS ............................................................................................. 40

13.3 BUYER’S REPRESENTATIONS AND WARRANTIES .................................................. 40

13.4 GENERAL COVENANTS .......................................................................................... 41

13.5 PREVAILING WAGE ............................................................................................... 42

13.6 WORKFORCE DEVELOPMENT ................................................................................ 42

13.7 COMMUNITY INVESTMENT .................................................................................... 42 ARTICLE 14 ASSIGNMENT ..................................................................................................... 42

14.1 GENERAL PROHIBITION ON ASSIGNMENTS ............................................................ 42

14.2 COLLATERAL ASSIGNMENT .................................................................................. 42

14.3 BUYER LIMITED ASSIGNMENT RIGHT ................................................................... 44

14.4 PERMITTED ASSIGNMENT BY SELLER ................................................................... 45 ARTICLE 15 DISPUTE RESOLUTION .................................................................................... 45

15.1 GOVERNING LAW .................................................................................................. 45

15.2 DISPUTE RESOLUTION ........................................................................................... 45 Attachment Staff Report Item 16D

TABLE OF CONTENTS
(continued)
Page
iii
ARTICLE 16 INDEMNIFICATION ........................................................................................... 46

16.1 INDEMNIFICATION ................................................................................................. 46

16.2 NOTICE OF CLAIM ................................................................................................. 47

16.3 FAILURE TO PROVIDE NOTICE ............................................................................... 47

16.4 DEFENSE OF CLAIMS ............................................................................................. 47

16.5 AMOUNTS OWED .................................................................................................. 48

16.6 SUBROGATION OF RIGHTS ..................................................................................... 48

16.7 RIGHTS AND REMEDIES ARE CUMULATIVE ........................................................... 48 ARTICLE 17 INSURANCE ........................................................................................................ 48

17.1 INSURANCE. .......................................................................................................... 48 ARTICLE 18 CONFIDENTIAL INFORMATION .................................................................... 50

18.1 DEFINITION OF CONFIDENTIAL INFORMATION ...................................................... 50

18.2 DUTY TO MAINTAIN CONFIDENTIALITY ................................................................ 50

18.3 IRREPARABLE INJURY; REMEDIES ......................................................................... 50

18.4 DISCLOSURE TO LENDERS, ETC. ............................................................................ 51

18.5 PRESS RELEASES ................................................................................................... 51 ARTICLE 19 MISCELLANEOUS ............................................................................................. 51

19.1 ENTIRE AGREEMENT; INTEGRATION; EXHIBITS .................................................... 51

19.2 AMENDMENTS ....................................................................................................... 51

19.3 NO WAIVER .......................................................................................................... 51

19.4 NO AGENCY, PARTNERSHIP, JOINT VENTURE OR LEASE ....................................... 51

19.5 SEVERABILITY ...................................................................................................... 52

19.6 MOBILE-SIERRA .................................................................................................... 52

19.7 COUNTERPARTS; ELECTRONIC SIGNATURES ......................................................... 52

19.8 ELECTRONIC DELIVERY ........................................................................................ 52

19.9 BINDING EFFECT ................................................................................................... 52

19.10 NO RECOURSE TO MEMBERS OF BUYER................................................................ 52

19.11 FORWARD CONTRACT ........................................................................................... 53

19.12 FURTHER ASSURANCES ......................................................................................... 53 Exhibits:

Exhibit A Facility Description
Exhibit B Facility Construction 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
Attachment Staff Report Item 16D

TABLE OF CONTENTS
(continued)
Page
iv
Exhibit L [Reserved]
Exhibit M [Reserved]
Exhibit N Notices
Exhibit O Operating Restrictions
Exhibit P Metering Diagram
Exhibit Q Community Investment
Exhibit R Workforce Development
Exhibit S Form of Limited Assignment Agreement
Attachment Staff Report Item 16D
1 RENEWABLE POWER PURCHASE AGREEMENT
This Renewable Power Purchase Agreement (“Agreement”) is entered into as of the last dated signature on the signature page hereto (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:
“AC” means alternating current.
“Accepted Compliance Costs” has the meaning set forth in Section 3.12. “Adjusted Energy Production” has the meaning set forth in Exhibit G. “Affiliate” means, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition and the definition of “Permitted Transferee” and “control” (including, with correlative meanings, the terms, “controlled by”, and “under common control with”), as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person. “Agreement” has the meaning set forth in the Preamble and includes any Exhibits, schedules and any written supplements hereto, the Cover Sheet, and any designated collateral, credit support or similar arrangement between the Parties. “Ancillary Services” means all ancillary services, products and other attributes, if any, associated with the Facility.

Attachment Staff Report Item 16D
2 “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 meaning set forth in the CAISO Tariff.
“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a Notice, or payment, or performing a specified action. “Buyer” means Ava Community Energy Authority, a California joint powers authority. “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, or any successor entity performing similar functions.
“CAISO Approved Meter” means a CAISO approved revenue quality meter or meters, CAISO approved data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services 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 Instruction or Dispatch Instruction as defined in the CAISO Tariff.
“CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures (as such term in defined in Appendix A to the CAISO Tariff), including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC; provided that if there is a conflict between the BPMs, the CAISO Operating Agreement or the Operating Procedures (as such term in defined in Appendix A to the CAISO Tariff), on the one hand, and the CAISO Tariff, on the other hand, the CAISO Tariff will control.

Attachment Staff Report Item 16D
3 “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 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, at least 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 at least fifty percent (50%) of the outstanding equity interests in each such intermediate entity; and (b) ownership interests in Seller owned directly or indirectly by any Lender (including any cash equity or tax equity provider) or assignee or transferee thereof shall be excluded from the total outstanding equity interests in Seller.
“Claim” has the meaning set forth in Section 16.2.
“COD Certificate” has the meaning set forth in Exhibit B. “Commercial Operation” has the meaning set forth in Exhibit B.

Attachment Staff Report Item 16D
4 “Commercial Operation Date” or “COD” has the meaning set forth in Exhibit B. “Compliance Actions” has the meaning set forth in Section 3.12. “Compliance Costs” has the meaning set forth in Section 3.12. “Compliance Expenditure Cap” has the meaning set forth in Section 3.12. “Confidential Information” has the meaning set forth in Section 18.1. “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. “Contract Term” has the meaning set forth in Section 2.1(a). “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commercial Operation Date and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred by such Non-Defaulting Party either in terminating any arrangement pursuant to which it has hedged or financed its obligations or entering into new arrangements which replace this Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating and replacing this Agreement.
“Cover Sheet” means the cover sheet to this Agreement, which is incorporated into this Agreement.
“CPUC” means the California Public Utilities Commission or any successor agency performing similar statutory functions.
“Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by S&P, Fitch or Moody’s. “Curtailment Order” means any of the following:
(a) CAISO orders, directs, alerts, or provides notice to a Party, including a CAISO Operating Order, to curtail deliveries of Facility Energy for the following reasons: (i) any System Attachment Staff Report Item 16D
5 Emergency, or (ii) any warning of an anticipated System Emergency, or (iii) any 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. “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.
“DA Price Floor” means or such lesser amount as
specified by Buyer to Seller in writing, provided that such lesser amount be specified by Buyer at least 75 minutes prior to midnight of the operating day. For the avoidance of doubt, unless otherwise specified by Buyer, the DA Price Floor will be a single value that applies for each day of the month.
“Damage Payment” means the dollar amount equal to the amount of the Development Security set forth on the Cover Sheet.
“Day-Ahead Forecast” has the meaning set forth in Section 4.3(c). “Day-Ahead Market” has the meaning set forth in the CAISO Tariff. “Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff.

Attachment Staff Report Item 16D
6 “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”
“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.
“Disclosing Party” has the meaning set forth in Section 18.2. “Early Termination Date” has the meaning set forth in Section 11.2(a). “Effective Date” has the meaning set forth on the Preamble. “EIRP Forecast” means the current CAISO forecast for intermittent resources using relevant Facility availability, weather, historical and other pertinent data for the applicable period of time.
“Electrical Losses” means all transmission or transformation losses between the Facility and the Delivery Point, including losses associated with delivery of Facility Energy to the Delivery Point, calculated in accordance with CAISO approved methodologies applicable to revenue metering.
“Eligible Intermittent Resource Protocol” or “EIRP” has the meaning set forth in the CAISO Tariff or a successor CAISO program for intermittent resources. “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. “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” means the execution of the Interconnection Agreement by Seller and the PTO.
“Expected Commercial Operation Date” is the date set forth on the Cover Sheet by which Seller reasonably expects to achieve Commercial Operation.

Attachment Staff Report Item 16D
7 “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 Contract Year in the quantity specified on the Cover Sheet. “Facility” means the renewable energy 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 Facility Energy to the Delivery Point. “Facility Energy” means the energy generated by the Facility during any Settlement Interval or Settlement Period and delivered to the Delivery Point, which is net of Electrical Losses and Station Use, as measured by the Facility Meter in accordance with CAISO metering requirements and Prudent Operating Practices.
“Facility Meter” means the CAISO Approved Meter that will measure all electric energy generated by Facility.
“FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Fitch” means Fitch Ratings Inc., or its successor.
“Force Majeure Event” has the meaning set forth in Section 10.1. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility that prevents Seller from generating Facility Energy or making Facility Energy available at the Delivery Point and that is not the result of a Force Majeure Event. “Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff. “Future Environmental Attributes” shall mean any and all generation attributes other than Green Attributes, Ancillary Services 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 and its displacement of conventional energy generation. Future Environmental Attributes do not include Tax Credits or other financial benefits or incentives in the form of credits, reductions, transfers, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation. “Gains” means, with respect to any 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.

Factors used in determining the economic benefit to a Non-Defaulting Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Attachment Staff Report Item 16D
8 Affiliates of the Non-Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, settlement prices for comparable transactions at liquid trading hubs (e.g., SP-15), all of which should be calculated for the remaining Contract Term, and include the value of Green Attributes.
“Governmental Authority” means any federal, state, provincial, local or municipal government, any political subdivision thereof or any other governmental, congressional or parliamentary, regulatory, or judicial instrumentality, authority, body, agency, department, bureau, or entity with authority to bind a Party at law, including CAISO; provided, however, that “Governmental Authority” shall not in any event include any Party hereto. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation of electrical energy 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; and (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) Tax Credits 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. “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”
“Guaranteed Commercial Operation Date” or “Guaranteed COD” has the meaning set forth in Exhibit B.
“Guaranteed Construction Start Date” has the meaning set forth in Exhibit B.

Attachment Staff Report Item 16D
9 “Guaranteed Energy Production”
“Imbalance Energy” means the amount of energy in MWh, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy.
“Indemnifiable Loss(es)” has the meaning set forth in Section 16.1. “Initial Synchronization” means the initial delivery of Facility Energy to the Delivery Point.
“Installed Capacity” means the actual generating capacity of the Facility, not to exceed the Guaranteed Capacity, as measured in MW(AC) at the Delivery Point, that achieves Commercial Operation, adjusted for ambient conditions on the date of the performance test, and as evidenced by a certificate substantially in the form attached as Exhibit I hereto. “Interconnection Agreement”
“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.
“Interconnection Point” has the meaning set forth in Exhibit A. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “Interest Rate” has the meaning set forth in Section 8.2. “Interim Deliverability Status” has the meaning set forth in the CAISO Tariff. “Investment Grade Credit Rating” means a Credit Rating of by S&P or Fitch or Baa3 or higher by Moody’s.
“Investment Tax Credit” or “ITC” means the energy credit established pursuant to Section 48 of the Internal Revenue Code of 1986, as amended, as in effect from time-to-time throughout the Delivery Term or any successor or other provision providing for a federal tax credit determined by reference to energy property placed in service for which Seller, as the owner of the Facility, is eligible.
“JAMS” has the meaning set forth in Section 15.2.

Attachment Staff Report Item 16D
10 “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 a letter of credit, bond or other credit support, senior or subordinated development, construction, interim, back leverage or long-term debt, working capital, equity, cash equity or tax equity financing, or any refinancing of any of the foregoing 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 or portfolio financing), equity (including cash equity or 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 Person 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
“Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Buyer, licensed in the State of California. “Limited Assignee” has the meaning set forth in Section 14.3. “Locational Marginal Price” or “LMP” has the meaning set forth in the CAISO Tariff. “Losses” means, with respect to any 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.

Factors used in determining economic loss to a Non-Defaulting Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on Attachment Staff Report Item 16D
11 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, as applicable, and must include the value of Green Attributes and Renewable Energy Incentives. “Lost Output” has the meaning set forth in Section 4.7. “Market Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces generation of Facility Energy during a Settlement Period or Settlement Interval in which the LMP for the Day-Ahead Market at the Settlement Point for such Settlement Interval or Settlement Period is less than the DA Price Floor; provided that the Market Curtailment Period shall also include the time required for the Facility to ramp down to implement such curtailment and ramp up following such curtailment in accordance with the Operating Restrictions.
“Master File” has the meaning set forth in the CAISO Tariff. “Milestones” means the Milestones set forth on the Cover Sheet. “Monthly Delivery Forecast” has the meaning set forth in Section 4.3(b). “Monthly Settlement Amount” has the meaning set forth in Exhibit C. “Moody’s” means Moody’s Investors Service, Inc., or its successors. “MW” means megawatts in alternating current, unless expressly stated in terms of direct current.
“MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Negative LMP” means, in any Settlement Period or Settlement Interval, the Day-Ahead Market or Real-Time Market at the Facility’s PNode is less than “NERC” means the North American Electric Reliability Corporation or any successor entity performing similar functions.
“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 hand delivery, United States mail, overnight courier service, or electronic messaging (e-mail).
“Notice of Claim” has the meaning set forth in Section 16.2. “Operating Restrictions” means those rules, requirements, and procedures set forth on Exhibit O.

Attachment Staff Report Item 16D
12 “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 (i.e., Contract Years 1 and 2 shall comprise the first such period, Contract Years 2 and 3 shall comprise the second such period, etc.) during the Delivery Term, provided, however, that in no event shall any Performance Measurement Period be less than twenty-four (24) months.
“Performance Security” means (i) cash or (ii) a Letter of Credit in the amount set forth on the Cover Sheet.
“Permitted Transferee” means (i) an entity that satisfies, or is controlled by another Person that satisfies, the following requirements:
(a)
(b)
“Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
“Planned Outage” has the meaning set forth in Section 4.6(a). “PNode” has the meaning set forth in the CAISO Tariff.
“Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1) and California Public Utilities Commission Decision 11-12-052, as may be amended from time to time or as further defined or supplemented by Law.
“Prevailing Wage Requirement” has the meaning set forth in Section 13.5. “Product” has the meaning set forth on the Cover Sheet.

Attachment Staff Report Item 16D
13 “Production Tax Credit” or “PTC” means the production tax credit pursuant to Section 45 of the Internal Revenue Code of 1986, as amended, as in effect from time-to-time throughout the Delivery Term or any successor or other provision providing for a federal tax credit determined by reference to renewable electric energy produced from wind or other renewable energy resources for which Seller, as the owner of the Facility, is eligible. “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 applicable reliability criteria, and the standard of care, skill and diligence engaged in or approved by a significant portion of the electric utility and independent power producer industry during the relevant time period with respect to grid-interconnected, utility-scale 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 results consistent with applicable Law, 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 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.
“Real-Time Market” has the meaning set forth in the CAISO Tariff. “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.
“Renewable Energy Incentives” means: (a) all Tax Credits and other federal, state, or local Tax credits or other Tax benefits associated with the construction, ownership, or production of electricity from the Facility (including PTCs, ITCs, and other credits under Sections 38, 45, 46, 48, 45Y, and 48E 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 benefit or incentive, including any transfers of certain credits pursuant to Section 6418 of Internal Revenue Code of 1986, as amended, relating in any way to the Facility that is not a Green Attribute or a Future Environmental Attribute.
“S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of S&P Global Inc.) or its successor.
“SC Metered Entity” has the meaning of a “Scheduling Coordinator Metered Entity” as defined in the CAISO Tariff.

Attachment Staff Report Item 16D
14 “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 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 Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff. “Settlement Point” means the Facility PNode.
“Settlement Price” has the meaning set forth in Exhibit C. “Shared Facilities” means the gen-tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of energy from the Facility (which is excluded from Shared Facilities) to the point of interconnection, including the Interconnection Agreement itself, that are used in common with third parties.
“Site” means the real property on which the Facility is or will be located, as further described in Exhibit A.

Attachment Staff Report Item 16D
15 “Site Control” means that Seller (or, with respect to periods prior to the commencement of the Delivery Term, Seller or its Affiliate): (a) owns or has the option to purchase the Site, including through an ownership interest in an Affiliate that owns the Site; (b) is the lessee or has the option to lease the Site; (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; (d) with respect to periods prior to the commencement of the Delivery Term, is the holder of a serialized, first-in-line SF-299 application for a right-of-way grant with the United States Bureau of Land Management; or (e) has rights through ownership, lease, right-of-way grant or similar instrument, as the managing partner or other entity authorized to act in all manners relating to the control and operation of the Site. “Station Use” means:
“System Emergency” means any condition that requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) preserve Transmission System reliability. “Tax” or “Taxes” means all United States federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by any Governmental Authority, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Tax Credits” means PTCs, ITCs, and any other state, local or federal production or other tax credit, including any applicable successor tax credits, depreciation benefits, tax deductions or investment tax credits specific to the production, sale or storage of renewable energy from, or the operation or the ownership of, the Facility or any part thereof. “Terminated Transaction” has the meaning set forth in Section 11.2(a). “Termination Payment” has the meaning set forth in Section 11.3. “Test Energy” means Facility Energy delivered (a) commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Facility Energy to the CAISO and (ii) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to parallel and (b) ending upon the occurrence of the Commercial Operation Date. “Test Energy Rate” has the meaning set forth in Section 3.6. “Transformer Failure” means failure of all or part of the main power transformer that results in the Facility being unable to generate, deliver or provide energy during such failure, and Attachment Staff Report Item 16D
16 such failure was not caused by Seller and could not have been avoided through the exercise of Prudent Operating Practice.
“Transmission Provider” means any entity or entities transmitting or transporting the Facility Energy on behalf of Seller or Buyer to or from the Delivery Point. “Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service within the CAISO grid from the Delivery Point.
“Ultimate Parent”
“Variable Energy Resource” or “VER” has the meaning set forth in the CAISO Tariff. “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
“WREGIS Certificate Deficit” has the meaning set forth in Section 4.8(e). “WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of October 2022, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.

1.2 Rules of Interpretation. In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:
(a) headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement; (b) words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders; (c) the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Article, Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified;
(e) a reference to a document or agreement, including this Agreement means such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, Attachment Staff Report Item 16D
17 supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement;
(f) a reference to a Person includes that Person’s successors and permitted assigns;
(g) the term “including” (or similar words) means “including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided; (h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; (i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;
(j) references to any amount of money shall mean a reference to the amount in United States Dollars;
(k) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
(l) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

ARTICLE 2
TERM; CONDITIONS PRECEDENT

2.1 Contract Term.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions set forth herein (“Contract Term”); provided, however, that subject to Buyer’s obligations in Section 3.6, Buyer’s obligations to pay for or accept any Product are subject to Seller’s completion of the conditions precedent pursuant to Section 2.2. (b) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality Attachment Staff Report Item 16D
18 obligations of the Parties under Article 18 and all indemnity and audit rights shall remain in full force and effect for two (2) years following the termination of this Agreement.

2.2 Conditions Precedent. Subject to Exhibit B, the Delivery Term shall not commence until Seller completes each of the following conditions:
(a) Seller has delivered to Buyer (i) a completion certificate from a Licensed Professional Engineer substantially in the form of Exhibit H and (ii) a certificate from a Licensed Professional Engineer substantially in the form of Exhibit I setting forth the Installed Capacity on the Commercial Operation Date;
(b) A Participating Generator Agreement and a Meter Service Agreement between Seller and CAISO shall have been executed and delivered and be in full force and effect, and a copy of each such agreement delivered to Buyer;
(c) An Interconnection Agreement among Seller (or Seller’s Affiliate), the CAISO, and the PTO shall have been executed and delivered and be in full force and effect and a copy of the Interconnection Agreement delivered to Buyer; (d) Copies of executed agreements demonstrating Site Control shall have been delivered to Buyer; provided Seller will be permitted to redact any confidential information contained therein;
(e) Insurance requirements for the Facility pursuant to Article 17 have been met, with evidence provided in writing to Buyer;
(f)
(g) Seller has certified in writing to Buyer that Seller has complied with the Prevailing Wage Requirement set forth in Section 13.5, and provided reasonably requested documentation demonstrating such compliance;
(h) Seller has certified in writing to Buyer that Seller has satisfied the obligations related to workforce development set forth in Exhibit R, and provided reasonably requested documentation demonstrating such compliance;
(i) Seller has certified in writing to Buyer that Seller has satisfied the community benefit-related obligations set forth in Exhibit Q, and provided reasonably requested documentation demonstrating such compliance;
(j) Seller has delivered the Performance Security to Buyer in accordance with Section 8.8; and
Attachment Staff Report Item 16D
19 (k) Seller has paid Buyer for all amounts owing under this Agreement as of the Commercial Operation Date, if any, including Construction Delay Damages and COD Delay Damages.

2.3 Development; Construction; Progress Reports. Within fifteen (15) days after the close of (i) each calendar quarter from the first calendar quarter following the Effective Date until the Expected Construction Start Date, and (ii) each calendar month thereafter, Seller shall provide a Progress Report until the Commercial Operation Date to Buyer that (a) describes the progress towards meeting the Milestones; (b) identifies any missed Milestones, including the cause of the delay; and (c) provides a detailed description of Seller’s corrective actions to achieve the missed Milestones and all subsequent Milestones by the Guaranteed Commercial Operation Date.

The form of the Progress Report is set forth in Exhibit E. Seller agrees to regularly scheduled meetings between representatives of Buyer and Seller to review the Progress Reports and discuss Seller’s construction progress. Seller shall also provide Buyer with any reasonably requested documentation (subject to confidentiality restrictions) directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request from Buyer. For the avoidance of doubt, as between Seller and Buyer, Seller is solely responsible for the design and construction of the Facility, including the location of the Site, obtaining all permits and approvals to build the Facility, the Facility layout, and the selection and procurement of the equipment comprising the Facility.

2.4 Remedial Action Plan.

ARTICLE 3

PURCHASE AND SALE

3.1 Purchase and Sale of Product. Subject to the terms and conditions of this Agreement, during the Delivery Term, Seller shall deliver to the Delivery Point all Facility Energy and Green Attributes associated with the Facility, and Buyer shall receive and accept at the Delivery Point and pay for such Product in accordance with Exhibit C; provided, however, that At its sole discretion, Buyer
may during the Delivery Term resell or use for another purpose all or a portion of the Product, provided that no such resale or use shall relieve Buyer of any obligations hereunder or modify any Attachment Staff Report Item 16D
20 of Seller’s obligations hereunder. During the Delivery Term, Buyer will have exclusive rights to offer, bid, or otherwise submit the Product, or any component thereof, from the Facility after the Delivery Point for resale into the market or to any third party, and retain and receive any and all related revenues. Subject to Section 3.6, Seller will retain title to, and is entitled, in its sole discretion, to sell, assign or transfer to any third party, and retain any revenues with respect to, any or all Products generated by or associated with the Facility prior to and following the Delivery Term.

Subject to Buyer’s obligation to purchase Product in accordance with this Section 3.1 and Exhibit C, Buyer has no obligation to purchase from Seller, and Seller has no obligation to supply and deliver to Buyer, any Facility Energy that is not or cannot be delivered to the Delivery Point as a result of a Force Majeure Event affecting Seller or the Facility, a System Emergency, a Curtailment Order, or any other permitted reduction set forth in Section 4.6.

3.2 Sale of Green Attributes. During the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase from Seller, all Green Attributes associated with the Facility Energy generated by the Facility.

3.3 Imbalance Energy. Buyer and Seller recognize that in any given Settlement Period there may be Imbalance Energy. To the extent there is any Imbalance Energy, any payments or charges related to such Imbalance Energy shall be for the account of Seller.

3.4 Ownership of Renewable Energy Incentives. Seller shall have all right, title and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives, or values representing the same, are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to same to be assigned or transferred to Seller without delay. Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives.

3.5 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Effective Date, environmental attributes sold under this Agreement are restricted to Green Attributes; however, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Subject to the final sentence of this Section 3.5(a), and Sections 3.5(b) and 3.12, in such event, Buyer shall bear all costs and risks associated with the transfer, qualification, verification, registration and ongoing compliance for such Future Environmental Attributes, but there shall be no increase in the Contract Price. Upon Seller’s receipt of Notice from Buyer of Buyer’s intent to claim such Future Environmental Attributes, the Parties shall determine the necessary actions and additional costs associated with such Future Environmental Attributes. Seller shall have no obligation to take any action or bear any costs, losses or liabilities, or alter the Facility or operation of the Facility, unless the Parties have agreed on all necessary terms and conditions relating to such alteration or change in operation and Buyer has agreed to reimburse Seller for all costs, losses, and liabilities associated with such alteration or change in operation on terms acceptable to Seller.

Attachment Staff Report Item 16D
21 (b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.5(a), the Parties agree to negotiate in good faith with respect to the development of further agreements and documentation necessary to effectuate the transfer of such Future Environmental Attributes, including agreement with respect to (i) appropriate transfer, delivery and risk of loss mechanisms, and (ii) appropriate allocation of any additional costs to Buyer, as set forth above (in any event subject to Section 3.12); provided, that the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.

3.6 Test Energy.

3.7 Reserved.

3.8 Reserved.

3.9 CEC Certification and Verification. Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Certification and Verification for the Facility throughout the Delivery Term, including compliance with all applicable requirements for certified facilities set forth in the current version of the RPS Eligibility Guidebook (or its successor). Seller shall obtain CEC Precertification by the Commercial Operation Date. Within thirty (30) days after the Commercial Operation Date, Seller shall apply with the CEC for final CEC Certification and Verification.

Within one hundred eighty (180) days after the Commercial Operation Date, Seller shall obtain and maintain throughout the remainder of the Delivery Term the final CEC Certification and Verification. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s application for CEC Certification and Verification for the Facility.

3.10 Reserved.

3.11 Non-Modifiable Standard Terms and Conditions.
(a) Tracking of RECs in WREGIS. Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable Energy Generation Information System will be taken prior to the first delivery under the contract. [STC REC-2].
(b) Transfer of Renewable Energy Credits. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement, the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be Attachment Staff Report Item 16D
22 materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. [STC REC-1]. (c) Eligibility. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Project qualifies and is certified by the CEC as an Eligible Renewable Energy Resource (“ERR”) as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. [STC 6]. (d) With respect to the immediately preceding paragraphs, (i) the reference in Section 3.11(a) to “first delivery under the contract” has the same meaning as “first delivery of Facility Energy under this Agreement”, (ii) the references in Section 3.11(c) to “Project” have the same meaning as “Facility”, (iii) the reference in Section 3.11(c)(ii) to “the Project’s output” has the same meaning as “Facility Energy”, and (iv) each reference in the last sentences of Section 3.11(b) and Section 3.11(c) to “commercially reasonable efforts” means efforts consistent with and subject to Section 3.12 below.
(e) Governing Law. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement. [STC 17].

3.12 Compliance Expenditure Cap.
(a)

(b) Any actions required for Seller to comply with its obligations set forth in the immediately preceding paragraph, the Compliance Costs of which will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “Compliance Actions.” Attachment Staff Report Item 16D
23 (c) If Seller reasonably anticipates the need to incur Compliance Costs in excess of the Compliance Expenditure Cap in order to take any Compliance Action, Seller shall provide Notice to Buyer of such anticipated Compliance Costs. (d) Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all or some portion of the Compliance Costs that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs, the “Accepted Compliance Costs”), or (2) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller. (e) If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall pay Seller in advance for Seller to effect the Compliance Actions, not to exceed the Accepted Compliance Costs, within sixty (60) days from the time that Buyer receives an invoice and documentation of such costs from Seller. (f) If (x) Buyer does not respond to a Notice given by Seller under this Section 3.12 within the time required by this Section 3.12, (y) Buyer does not pay, or refuses to pay, the Compliance Costs in excess of the Compliance Expenditure Cap, or (z) it is not possible for Seller to achieve compliance with its obligations hereunder, or a change in Law, as applicable, through the payment or incurrence of costs, then in each case (i) Seller shall be excused from the corresponding Compliance Actions under this Agreement, and (ii) Seller shall not be subject to a reduction in payments under this Agreement to the extent arising from the failure to comply with such Compliance Actions.

ARTICLE 4

OBLIGATIONS AND DELIVERIES

4.1 Delivery.
(a) Energy. Subject to the provisions of this Agreement, commencing on the first day of the Delivery Term and through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Point, and Buyer shall take delivery of the Product at the Delivery Point in accordance with the terms of this Agreement. Seller will be responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Facility Energy to the Delivery Point, including without limitation, Station Use, Electrical Losses, and any operation and maintenance charges imposed on Seller by the Transmission Provider directly relating to the Facility’s operations. The Facility Energy will be scheduled with the CAISO by Seller (or Seller’s designated Scheduling Coordinator) in accordance with Exhibit D. (b) Green Attributes. All Green Attributes associated with the Facility Energy during the Delivery Term are exclusively dedicated to and will be vested in Buyer. Seller represents and warrants that Seller holds the rights to all Green Attributes associated with the Facility Energy, and Seller agrees to convey and hereby conveys all such Green Attributes to Buyer as included in the delivery of the Product from the Facility.

4.2 Title and Risk of Loss.

Attachment Staff Report Item 16D
24 (a) Energy. Title to and risk of loss related to the Facility Energy, shall pass and transfer from Seller to Buyer at the Delivery Point. Seller warrants that all Product delivered to Buyer is free and clear of all liens, security interests, claims and encumbrances of any kind. (b) Green Attributes. Title to and risk of loss related to the Green Attributes shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS.

4.3 Forecasting. Seller shall provide the forecasts described below at its sole expense and in a format reasonably acceptable to Buyer. Seller shall use reasonable efforts to provide forecasts that are accurate and, to the extent not inconsistent with the requirements of this Agreement, shall prepare such forecasts, or cause such forecasts to be prepared, in accordance with Prudent Operating Practices.
(a) Annual Forecast of Energy. No less than forty-five (45) days before (i) the first day of the first Contract Year of the Delivery Term and (ii) at the beginning of each calendar year for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer and the SC (if applicable) a non-binding forecast of each month’s average-day expected Facility Energy, by hour, for the following calendar year in a form substantially similar to the table found in Exhibit F-1, or as reasonably requested by Buyer.
(b) Monthly Forecast of Energy and Available Generating Capacity. No less than thirty (30) days before the Commercial Operation Date, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of the hourly expected Facility Energy, Available Generating Capacity for each day of the following month in a form substantially similar to the table found in Exhibit F-2 (“Monthly Delivery Forecast”).
(c) Day-Ahead Forecast. By 5:30 AM Pacific Prevailing Time on the Business Day immediately preceding the date of delivery, or as otherwise specified by Buyer consistent with Prudent Operating Practice, Seller shall provide Buyer with a forecast of (i) Available Generating Capacity and (ii) hourly expected Facility Energy, in each case, for each hour of the immediately succeeding day (“Day-Ahead Forecast”). A Day-Ahead Forecast provided in a day prior to any non-Business Day(s) shall include forecasts for the immediate day, each succeeding non-Business Day and the next Business Day. Each Day-Ahead Forecast shall clearly identify, for each hour, Seller’s best estimate of (i) the Available Generating Capacity and (ii) the hourly expected Facility Energy. Except as otherwise agreed, Seller shall provide the Day-Ahead Forecast in the form of a CSV file or other mutually agreed file format delivered to Buyer and Buyer’s File Transfer Protocol (FTP) site as set forth in Exhibit N. (d) CAISO Tariff Requirements. Seller shall comply with all applicable CAISO Tariff requirements, procedures, protocols, rules and testing as necessary for Seller to submit Bids for the electric energy generated by the Facility. In addition, to the extent such obligations are applicable to the Facility, Seller will comply with all applicable obligations for Variable Energy Resources under the CAISO Tariff and the Eligible Intermittent Resource Protocol, including providing appropriate operational data and meteorological data, and will fully cooperate with CAISO, in providing all data, information, and authorizations required thereunder.

Attachment Staff Report Item 16D
25 4.4 Reserved.

4.5 Station Use. Seller will be responsible for procuring and paying for all Station Use.

4.6 Reduction in Delivery Obligation. For the avoidance of doubt, and in no way limiting Section 3.1 or Exhibit G:
(a)
(b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage.
(c) System Emergencies and other Interconnection Events. Seller shall be permitted to reduce deliveries of Product during any period of System Emergency, or upon Notice of a Curtailment Order pursuant to the terms of this Agreement, the Interconnection Agreement or applicable tariff.
(d) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event.
(e) Buyer Default. Seller shall be permitted to reduce deliveries of Product during any period in which there is Buyer Default.
(f) Market Curtailment Periods. Seller has the right, in its sole discretion, to curtail deliveries of Facility Energy during Market Curtailment Periods. (g) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2.

4.7 Attachment Staff Report Item 16D
26 4.8 WREGIS. Seller shall, take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Facility Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefit. Seller shall transfer the Renewable Energy Credits to Buyer.

Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. In addition:
(a) Prior to the Commercial Operation Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using “Recurring Certificate Transfers” (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the Facility with WREGIS, establishing and maintaining Seller’s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account.
(b) Seller shall cause Recurring Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules.

Since WREGIS Certificates will only be created for whole MWh amounts of Facility Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate. (c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Facility Energy for such calendar month as evidenced by the Facility’s metered data.
(d) Due to the delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 8.2, Buyer shall make an invoice payment for a given month in accordance with the timing of Section 8.2 notwithstanding that the WREGIS Certificates for such month may not have been formally transferred to Buyer in accordance with the WREGIS Operating Rules and this Section 4.8. Notwithstanding this delay, Buyer shall have all right and title to all such WREGIS Certificates upon payment to Seller in accordance with Section 8.2.

Attachment Staff Report Item 16D
27 (e) A “WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Facility Energy for the same calendar month (“Deficient Month”) caused by an error or omission of Seller. (f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.8 after the Effective Date, the Parties promptly shall modify this Section 4.8 as reasonably required to cause and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Facility Energy in the same calendar month.

4.9 Green-e Certification. Seller shall execute all documents or instruments reasonably required by Buyer in order for the Facility to be eligible for Green-E certification.

4.10 Interconnection Capacity. Seller shall ensure that throughout the Delivery Term (a) the Facility will have an Interconnection Agreement providing for interconnection capacity available or allocable to the Facility that is no less than the Guaranteed Capacity and (b) Seller shall have sufficient interconnection capacity and rights under or through the Interconnection Agreement to interconnect the Facility with the CAISO Controlled Grid at a level that is no less than the Guaranteed Capacity, and to fulfill Seller’s obligations under this Agreement.

ARTICLE 5
TAXES

5.1 Allocation of Taxes and Charges. Seller shall pay or cause to be paid all Taxes on or with respect to the Facility or on or with respect to the sale and making available of Product to Buyer, that are imposed on Product prior to its delivery to Buyer at the Delivery Point. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and after its delivery to Buyer at the Delivery Point (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees), if any. If a Party is required to remit or pay Taxes that are the other Party’s responsibility hereunder, such Party shall promptly pay the Taxes due and then seek and receive reimbursement from the other for such Taxes. In the event any sale of Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation within thirty (30) days after the Effective Date to evidence such exemption or exclusion. If Buyer does not provide such documentation, then Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes from which Buyer claims it is exempt.

Attachment Staff Report Item 16D
28 5.2 Cooperation. Each Party shall use reasonable efforts to implement the provisions of and administer this Agreement in accordance with the intent of the Parties to minimize all Taxes, so long as no Party is materially adversely affected by such efforts. The Parties shall cooperate to minimize Tax exposure; provided, however, that neither Party shall be obligated to incur any financial or operational burden to reduce Taxes for which the other Party is responsible hereunder without receiving due compensation therefor from the other Party. All Facility Energy delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Facility Energy.

ARTICLE 6

MAINTENANCE OF THE FACILITY

6.1 Maintenance of the Facility. Seller shall comply with Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product.

6.2 Maintenance of Health and Safety. Seller shall take reasonable safety precautions with respect to the operation, maintenance, repair and replacement of the Facility. If Seller becomes aware of any circumstances relating to the Facility that create an imminent risk of damage or injury to any Person or any Person’s property, Seller shall take prompt, reasonable action to prevent such damage or injury and shall give Notice to Buyer’s emergency contact identified on Exhibit N of such condition. Such action may include, to the extent reasonably necessary, disconnecting and removing all or a portion of the Facility, or suspending the supply of Facility Energy to Buyer.

6.3 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities and Interconnection Facilities (including a transformer, substation and associated equipment and real property), and Seller’s rights and obligations under the Interconnection Agreement, may be subject to certain shared facilities or co-tenancy agreements (“Shared Facilities Agreements”) to be entered into among Seller, the Participating Transmission Owner, Seller’s Affiliates, or third parties pursuant to which certain Interconnection Facilities may be subject to joint ownership and shared maintenance and operation arrangements; provided that such Shared Facilities Agreements (i) shall permit Seller to perform or satisfy, and shall not purport to limit, its obligations hereunder, including providing interconnection capacity in accordance with Section 4.10, (ii) continue to provide for separate metering and a separate resource ID for the Facility, and (iii) subject to customary qualifications, shall not allow any Affiliate of Seller or third party to use such interconnection capacity if such use would have an adverse impact on Buyer’s rights under this Agreement. Seller shall hold Buyer harmless from any penalties, imbalance energy charges, or other costs or losses from CAISO or under the Agreement resulting from a third party’s use of such interconnection capacity.

ARTICLE 7

METERING

7.1 Metering. Seller shall measure the amount of Facility Energy using the Facility Meter and associated infrastructure, which will be subject to adjustment in accordance with applicable CAISO meter requirements and Prudent Operating Practice, including to account for Attachment Staff Report Item 16D
29 Electrical Losses and Station Use. All meters will be operated pursuant to applicable CAISO-approved calculation methodologies and maintained as Seller’s cost. Subject to meeting any applicable CAISO requirements, the Facility Meter or associated infrastructure as outlined in the CAISO-approved Settlement Quality Metering Data (SQMD) design basis document shall be programmed to adjust for Electrical Losses and Station Use from the Facility to the Delivery Point in a manner subject to Buyer’s prior written approval, not to be unreasonably withheld. Metering will be consistent with the Metering Diagram to be set forth as Exhibit P, an updated version of which shall be provided by Seller to Buyer at least thirty (30) days prior to Commercial Operation.

Each meter shall be kept under seal, such seals to be broken only when the meters are to be tested, adjusted, modified or relocated. In the event Seller breaks a seal, Seller shall notify Buyer as soon as practicable. In addition, Seller hereby agrees to provide all meter data to Buyer in a form reasonably acceptable to Buyer, and consents to Buyer obtaining from CAISO the Facility Meter data directly relating to the Facility and all inspection, testing and calibration data and reports.

Seller or Seller’s Scheduling Coordinator shall cooperate to allow Buyer to retrieve the meter reads from the CAISO Market Results Interface – Settlements (MRI-S) (or its successor) or directly from the Facility Meter(s) at the Facility. Seller shall obtain and maintain a single CAISO resource ID dedicated exclusively to the Facility. Seller shall not obtain additional CAISO resource IDs for the Facility without the prior written consent of Buyer.

7.2 Meter Verification. Annually, if Seller has reason to believe there may be a meter malfunction, or upon Buyer’s reasonable request, Seller shall test the meter. The tests shall be conducted by independent third parties qualified to conduct such tests. Buyer shall be notified seven (7) days in advance of such tests and have a right to be present during such tests. If a meter is inaccurate it shall be promptly repaired or replaced.

ARTICLE 8
INVOICING AND PAYMENT; CREDIT

8.1 Invoicing. Seller shall make good faith efforts to deliver an invoice to Buyer for Product within after, but not prior to, the end of each month of the Delivery Term. Each invoice shall reflect (a) records of metered data, including CAISO metering and transaction data sufficient to document and verify the amount of Product delivered by the Facility for any Settlement Period during the preceding month, including the amount of Facility Energy produced by the Facility as read by the Facility Meter, the calculation of Facility Energy, , Lost Output, and Adjusted Energy Production, the LMP prices at the Delivery Point for each Settlement Interval, and the Settlement Price and Monthly Settlement Amount applicable to such Product in accordance with Exhibit C; and (b) be in a format reasonably specified by Buyer, covering the services provided in the preceding month determined in accordance with the applicable provisions of this Agreement. Seller shall, and shall cause its Scheduling Coordinator to, provide Buyer with all reasonable access to any records, including invoices, real time data, settlement data from the CAISO, forecast data and other information, all as may be necessary from time to time for Buyer to review and verify the accuracy of all invoices.

The invoice shall be delivered by email in accordance with Exhibit N.

8.2 Payment. Buyer or Seller, as applicable, shall make payment of the Monthly Settlement Amount to the other Party for the Product by wire transfer or ACH payment to the bank account designated in Exhibit N, which may be updated by Notice hereunder; provided, however, Attachment Staff Report Item 16D
30 that changes to the invoices, payment, and wire transfer information set forth in Exhibit N must be made in writing and delivered via email, and shall include contact information for an authorized person who is available by telephone to verify the authenticity of such requested changes.

Undisputed invoice amounts shall be paid within after receipt of the invoice, or the end of the prior monthly billing period, whichever is later. If such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. Payments made after the due date will be considered late and will bear interest on the unpaid balance. If the amount due is not paid on or before the due date or if any other payment that is due and owing from one Party to another is not paid on or before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement.

8.3 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years or as otherwise required by Law. Upon ten (10) Business Days’ Notice to the other Party, either Party shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated or payments made pursuant to this Agreement. Seller acknowledges that in accordance with California Government Code Section 8546.7, Seller may be subject to audit by the California State Auditor with regard to Seller’s performance of this Agreement because the compensation under this Agreement exceeds $10,000.

8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing or payment that are not otherwise disputed under Section 8.5 or an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO or there have been meter inaccuracies; provided, however, that there shall be no adjustments to prior invoices based upon meter inaccuracies. If the required adjustment is in favor of Buyer, Buyer’s next monthly payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller, Seller shall add the adjustment amount to Buyer’s next monthly invoice. Adjustments in favor of either Buyer or Seller shall bear interest, until settled in full, in accordance with Section 8.2, accruing from the date on which the adjusted amount should have been due. Unless otherwise agreed by the Parties, no adjustment of invoices shall be permitted after twenty-four (24) months from the date of the invoice.

8.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice, payment or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any arithmetic or computational error within twelve (12) months of the date the invoice, payment or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice or payment dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution Attachment Staff Report Item 16D
31 along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Inadvertent overpayments shall be returned via adjustments in accordance with Section 8.4. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 8.5 within twelve (12) months after the invoice is rendered or subsequently adjusted, except to the extent any misinformation was from a third party not affiliated with any Party and such third party corrects its information after the twelve-month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.

8.6 Netting of Payments. The Parties hereby agree that they may discharge undisputed mutual debts and payment obligations due and owing to each other on the same date through netting, in which case all amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement or otherwise arising out of this Agreement, including any related damages calculated pursuant to Exhibit B and Exhibit G, interest, and payments or credits, shall be netted so that only the excess amount remaining due after netting any such undisputed amount shall be paid by the Party who owes it.

8.7 8.8
Attachment Staff Report Item 16D
32 8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral. To secure its obligations under this Agreement, and until released as provided herein, Seller hereby grants to Buyer a present and continuing first-priority security interest (“Security Interest”) in, and lien on (and right to net against), and assignment of the Development Security or Performance Security, to the extent provided in the form of cash, and any other cash collateral and cash equivalent collateral posted pursuant to Sections 8.7 and 8.8 and any and all interest thereon or proceeds resulting therefrom or from the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of Buyer, and Seller agrees to take all action as Buyer reasonably requires in order to perfect Buyer’s Security Interest in, and lien on (and right to net against), such collateral and any and all proceeds resulting therefrom or from the liquidation thereof.

Upon or any time after the occurrence and continuation of an Event of Default caused by Seller, an Early Termination Date resulting from an Event of Default caused by Seller, or an occasion provided for in this Agreement where Buyer is authorized to retain all or a portion of the Development Security or Performance Security, Buyer may do any one or more of the following (in each case subject to the final sentence of this Section 8.9):
(a) Exercise any of its rights and remedies with respect to the Development Security and Performance Security, including any such rights and remedies under Law then in effect;
(b) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held by Buyer as Development Security or Performance Security; and (c) Liquidate all Development Security or Performance Security (as applicable) then held by or for the benefit of Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller.

Buyer shall apply the proceeds of the collateral realized upon the exercise of any such rights or remedies to reduce Seller’s obligations under this Agreement (Seller remains liable for any amounts owing to Buyer after such application), subject to Buyer’s obligation to return any surplus proceeds remaining after these obligations are satisfied in full.

ARTICLE 9

NOTICES

9.1 Addresses for the Delivery of Notices. Any Notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the address set forth on Exhibit N or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder.

Attachment Staff Report Item 16D
33 9.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered if sent by email, at the time indicated by the time stamp upon delivery without any bounce back or rejection, except that if received after 5:00 PM Pacific Prevailing Time, it shall be deemed received on the next Business Day. Notwithstanding the foregoing, Notices of outages or other scheduling or dispatch information or requests, may be sent by email and shall be considered delivered upon successful completion of such transmission. Notices sent pursuant to Article 11 (Defaults; Remedies; Termination), Article 15 (Dispute Resolution), and Article 16 (Indemnification) must concurrently be sent by hand delivery or overnight carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees.

ARTICLE 10

FORCE MAJEURE

10.1 Definition.
(a) “Force Majeure Event” means any act or event occurring after the Effective Date that delays or prevents a Party from timely performing all or a portion of its obligations under this Agreement or from complying with all or a portion of the conditions under this Agreement if such act or event, despite the exercise of commercially reasonable efforts, cannot be avoided by and is beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance.
(b) Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance and otherwise satisfy the requirements of a Force Majeure Event as defined above, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; epidemic, or pandemic; quarantine; landslide; mudslide; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; or strikes or other labor difficulties caused or suffered by a Party or any third party except as set forth below. (c) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions that render a Party’s performance of this Agreement at the Contract Price unprofitable or otherwise uneconomic (including an increase in component costs for any reason, including foreign or domestic tariffs, Buyer’s ability to buy electric energy at a lower price, or Seller’s ability to sell the Product, or any component thereof, at a higher price, than under this Agreement); (ii) Seller’s inability to obtain permits or approvals of any type for the construction, operation, or maintenance of the Facility, except to the extent such inability is caused by a Force Majeure Event; (iii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above; (iv) a Curtailment Order, except to the extent caused by a Force Majeure Event; (v) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility except to the extent such inability is caused by a Force Attachment Staff Report Item 16D
34 Majeure Event; or (vi) any equipment failure except if such equipment failure is caused by a Force Majeure Event.

10.2 10.3 Notice. Within after the non-performing Party becomes aware of the impact of a Force Majeure Event, the non-performing Party shall provide the other Party with oral notice of the Force Majeure Event, and within after the non-performing Party becomes aware of the impact of a Force Majeure Event the non-performing Party shall provide the other Party with Notice in the form of a letter describing in detail the particulars of the occurrence giving rise to the Force Majeure Event claim. Failure to provide timely Notice as described in the preceding sentence constitutes a waiver of the Force Majeure Event claim. The suspension of performance due to a claim of Force Majeure Event must be of no greater scope and of no longer duration than is required by the Force Majeure Event.

10.4 Attachment Staff Report Item 16D
35 ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION

11.1 Events of Default. An “Event of Default” shall mean, (a) with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following:
(i) the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof;
(ii) any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite exercising commercially reasonable efforts); (iii) the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default set forth in this Section 11.1), and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite exercising commercially reasonable efforts);
(iv) such Party becomes Bankrupt;
(v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Article 14; or
(vi) such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. (b) with respect to Seller as the Defaulting Party, the occurrence of any of the following:
(i)
(ii)
(iii)
Attachment Staff Report Item 16D
36 (iv)
(v) if at any time during the Delivery Term, Seller delivers or attempts to deliver electric energy to the Delivery Point for sale under this Agreement that was not generated by the Facility;
(vi)
(vii) with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events:
(A) the issuer of the outstanding Letter of Credit shall fail to maintain a Credit Rating of at least by Fitch, by S&P or by Moody’s;
(B) the issuer of such Letter of Credit becomes Bankrupt; (C) the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; (D) the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit;
(E) such Letter of Credit fails or ceases to be in full force and effect at any time; or
(F) Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than prior to the expiration of the outstanding Letter of Credit.

11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (“Non-Defaulting Party”) shall have the following rights:

Attachment Staff Report Item 16D
37 (a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“Early Termination Date”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date;
(b) to accelerate all amounts owing between the Parties, and to collect as liquidated damages (i) the Damage Payment (in the case of an Event of Default by Seller occurring before the Commercial Operation Date, including an Event of Default under Section 11.1(b)(i) or Section 11.1(b)(ii)), or (ii) the Termination Payment calculated in accordance with Section 11.3 below (in the case of any other Event of Default by either Party); (c) to withhold any payments due to the Defaulting Party under this Agreement; (d) to suspend performance; or
(e) to exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief, except to the extent such remedies are expressly limited under this Agreement;
provided, that payment by the Defaulting Party of the Damage Payment or Termination Payment, as applicable, shall constitute liquidated damages and the Non-Defaulting Party’s sole and exclusive remedy for the Terminated Transaction and the Event of Default related thereto.

11.3 Termination Payment. The termination payment (“Termination Payment”) for a Terminated Transaction shall be the aggregate of all Settlement Amounts plus any or all other amounts due to or from the Non-Defaulting Party (as of the Early Termination Date) netted into a single amount. If the Non-Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the net Settlement Amount shall be zero. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. Third parties supplying information for purposes of the calculation of Gains or Losses may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information. The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (a) the actual damages that the Non-Defaulting Party would incur in connection with a Terminated Transaction would be difficult or impossible to predict with certainty, (b) the Damage Payment or Termination Payment described in Section 11.2 or this Section 11.3 (as applicable) is a reasonable and appropriate approximation of such damages, and (c) the Damage Payment or Termination Payment described in Section 11.2 or this Section 11.3 (as applicable) is the exclusive remedy of the Non-Defaulting Party in connection with a Terminated Transaction but shall not otherwise act to limit any of the Non-Defaulting Party’s rights or remedies if the Non-Defaulting Party does not elect a Terminated Transaction as its remedy for an Event of Default by the Defaulting Party.

Attachment Staff Report Item 16D
38 11.4 Notice of Payment of Termination Payment. As soon as practicable after a Terminated Transaction, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Damage Payment or Termination Payment, as applicable, and whether, in the case of a Termination Payment, the Termination Payment is due to or from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount and the sources for such calculation. The Termination Payment shall be made to or from the Non-Defaulting Party, as applicable, within ten (10) Business Days after such Notice is effective.

11.5 Disputes With Respect to Termination Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within five (5) Business Days of receipt of the Non-Defaulting Party’s calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding the Termination Payment shall be determined in accordance with Article 15.

11.6 Rights And Remedies Are Cumulative. Except where an express and exclusive remedy or measure of liquidated damages is provided, the rights and remedies of a Party pursuant to this Article 11 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

11.7 ARTICLE 12

LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES

12.1 No Consequential Damages. EXCEPT TO THE EXTENT PART OF AN

EXPRESS REMEDY OR MEASURE OF DAMAGES HEREIN, OR PART OF AN ARTICLE 16 INDEMNITY CLAIM, OR INCLUDED IN A LIQUIDATED DAMAGES

CALCULATION, OR ARISING FROM FRAUD OR INTENTIONAL

MISREPRESENTATION, OR RELATING TO OR CONSTITUTING LOST OR FOREGONE

TAX CREDITS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ITS

INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR

CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE OR

LOST PROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, BY STATUTE, IN TORT OR CONTRACT.

12.2 Waiver and Exclusion of Other Damages. EXCEPT AS EXPRESSLY SET

FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR

A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE Attachment Staff Report Item 16D
39 DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND

MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN

THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO SELLER’S LIMITATION OF LIABILITY AND THE PARTIES’ WAIVER OF

CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES FOR BREACH OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE.

FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE

REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR

MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO

REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY.

TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING UNDER SECTIONS 4.7, 4.8, 11.2, 11.3, AND AS PROVIDED IN EXHIBIT B AND EXHIBIT G. THE PARTIES ACKNOWLEDGE THAT THE DAMAGES

ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT OTHERWISE OBTAINING AN

ADEQUATE REMEDY IS INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES

CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED

ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE

CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY

PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS AS AN UNREASONABLE PENALTY.

THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE

EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE

BREACH BY THE OTHER OF THE TERMS OF THIS AGREEMENT, AND EACH PARTY

WAIVES ANY RIGHT IT MAY HAVE TO SPECIFIC PERFORMANCE WITH RESPECT TO ANY OBLIGATION OF THE OTHER PARTY UNDER THIS AGREEMENT.

ARTICLE 13
REPRESENTATIONS AND WARRANTIES; AUTHORITY

13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and is qualified to conduct business in the State of California and each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Seller.

Attachment Staff Report Item 16D
40 (b) Seller has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller’s performance under this Agreement. The execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary limited liability company action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller. (c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Seller, subject to any permits that have not yet been obtained by Seller, the documents of formation of Seller or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Seller is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Seller. This Agreement is a legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity.

13.2 Seller Covenants.
(a) Seller shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals, including, without limitation those related to employment discrimination and prevailing wage, non-discrimination and non-preference, and conflict of interest. (b) Seller shall maintain Site Control throughout the Delivery Term. (c) Seller shall obtain any and all applicable permits and approvals, including without limitation, environmental clearance under CEQA, if applicable, or other environmental law, necessary to construct and operate the Facility. Seller acknowledges that Buyer is purchasing the Product under this Agreement and does not intend to be the lead agency for the Facility.

13.3 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a joint powers authority and a validly existing community choice aggregator, duly organized, validly existing and in good standing under the laws of the State of California and the rules, regulations and orders of the California Public Utilities Commission, and is qualified to conduct business in each jurisdiction of the Joint Powers Agreement members. All Persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with the Joint Powers Agreement and other Law.

Attachment Staff Report Item 16D
41 (b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Buyer’s performance under this Agreement. The execution, delivery and performance of this Agreement by Buyer has been duly authorized by all necessary action on the part of Buyer and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Buyer or any other party to any other agreement with Buyer.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Buyer, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Buyer is a party or by which any of its property is bound.
(d) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (1) suit, (2) jurisdiction of court (provided that such court is located within a venue permitted by Law and under the Agreement), (3) relief by way of injunction, order for specific performance or recovery of property, (4) attachment of assets, or (5) execution or enforcement of any judgment; provided, however that nothing in this Agreement shall waive the obligations or rights set forth in the California Tort Claims Act (Government Code Section 810 et seq.).
(f) Buyer is a “local public entity” as defined in Section 900.4 of the Government Code of the State of California.
(g) Buyer cannot assert sovereign immunity as a defense to the enforcement of its obligations under this Agreement.

13.4 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term:
(a) It shall continue to be duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation and to be qualified to conduct business in California and each jurisdiction where the failure to so qualify would have a material adverse effect on its business or financial condition;
(b) It shall maintain (or obtain from time to time as required) all regulatory authorizations, approvals, and permits necessary to legally perform its obligations under this Agreement; and
Attachment Staff Report Item 16D
42 (c) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and in material compliance with any Law.

13.5 Prevailing Wage. Seller shall ensure that all employees hired by Seller, and its contractors and subcontractors, that will perform construction work or provide services at the Site related to construction of the Facility are paid wages at rates not less than those prevailing for workers performing similar work in the locality in which the Facility is located in accordance with the prevailing wage requirements for eligibility for increased tax credits under Sections 45(b)(6)- (7) or Sections 48(a)(9)-(10), as applicable, of the United States Internal Revenue Code of 1986, or any successor statute (“Prevailing Wage Requirement”). To the extent applicable to the construction of the Facility, Seller shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations, and orders and decrees of any courts or administrative bodies or tribunals, including without limitation employment discrimination laws and prevailing wage laws. Seller or its construction contractor for the Facility shall either (i) execute a project labor agreement with the appropriate building or construction trade unions for construction of the Facility or (ii) award the contract for construction to a union signatory entity which will employ a union workforce governed by that entity’s existing labor agreements.

13.6 Workforce Development. Seller shall perform the obligations related to workforce development set forth in Exhibit R.

13.7 Community Investment. Seller shall perform the obligations related to community investment set forth in Exhibit Q.

ARTICLE 14

ASSIGNMENT

14.1 General Prohibition on Assignments. Except as provided in this Article 14, neither Party may voluntarily assign this Agreement or its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Except as provided in this Article 14, any Change of Control of Seller or direct or indirect change of control of Buyer (whether voluntary or by operation of law) will be deemed an assignment and will require the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided that a Change of Control of Seller shall not require Buyer’s consent if the assignee or transferee is an Affiliate. Any assignment made in violation of the conditions to assignment set out in this Article 14 shall be null and void. Buyer shall have no obligation to provide any consent, or enter into any agreement, that materially and adversely affects any of Buyer’s rights, benefits, risks or obligations under this Agreement. Seller shall be responsible for Buyer’s reasonable third party costs associated with the preparation, review, execution and delivery of documents in connection with any assignment of this Agreement by Seller, including without limitation reasonable attorneys’ fees.

14.2 Collateral Assignment. Subject to the provisions of this Section 14.2, Seller has the right to assign this Agreement or any part of its ownership interests in the Facility as collateral for any financing or refinancing of the Facility. In connection with any financing or refinancing of the Facility by Seller, Buyer shall in good faith work with Seller and Lenders to agree upon a consent to collateral assignment of this Agreement (“Collateral Assignment Agreement”), and, Attachment Staff Report Item 16D
43 if requested by Seller in connection with any financing or refinancing by a Lender, one or more estoppel certificates or similar instrument with substantially similar provisions as reasonably requested by Seller or any such Lender. Each Collateral Assignment Agreement must be in form and substance agreed to by Buyer, Seller and the applicable Lender, such agreement not to be unreasonably withheld. Each Collateral Assignment Agreement must include, among others, the following provisions (with such changes as may be reasonably requested by a Lender and that are reasonably acceptable to Buyer) unless otherwise agreed to by Buyer, Seller and the applicable Lender:
(a) Buyer shall give notice of an Event of Default by Seller to the Person(s) to be specified by Lender in the Collateral Assignment Agreement before exercising its right to terminate this Agreement as a result of such Event of Default; provided that such notice shall be provided to Lender at the time such notice is provided to Seller and any cure periods of Lender shall not commence until Lender has received notice of such Event of Default; (b) Lender will have the right to cure an Event of Default on behalf of Seller if Lender sends a written notice to Buyer before the later of (i) the expiration of any cure period, and (ii) ten (10) Business Days after Lender’s receipt of notice of such Event of Default from Buyer, indicating Lender’s intention to cure. Lender must remedy or cure such Event of Default within the cure period under this Agreement and any additional cure periods agreed in the Collateral Assignment Agreement up to a maximum of ninety (90) days (or, in the event of a bankruptcy of Seller or any foreclosure or similar proceeding if required by Lender to cure any Event of Default, an additional reasonable period of time to complete such proceedings and effect such cure not to exceed one hundred eighty (180) days without the written consent of Buyer, which consent shall not be unreasonably withheld), provided that if Lender is prohibited by any court order or bankruptcy or insolvency proceedings from curing the Event of Default or from commencing or prosecuting foreclosure proceedings, the foregoing time periods shall be extended by the period of such prohibition;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller (or Lender, if Lender has provided the notice set forth in subsection (b) above) to provide to Buyer a report concerning:
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default;
(ii) Impediments to the cure plan or its development;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan.

Seller (or Lender, if Lender has provided the notice set forth in subsection (b) above) must provide the report to Buyer within ten (10) Business Days after Notice from Buyer Attachment Staff Report Item 16D
44 requesting the report. Buyer will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; (d) Lender will have the right to consent before any termination of this Agreement which does not arise out of an Event of Default; (e) Lender will receive prior notice of and the right to approve material amendments to this Agreement, which approval will not be unreasonably withheld, delayed or conditioned;
(f) If Lender or its assignee or transferee takes possession of, or title to the Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), Lender or its assignee or transferee must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, before such assumption, if Buyer advises Lender that Buyer will require that Lender cure (or cause to be cured) any Event of Default existing as of the possession date in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Event of Default, then Lender at its option, and in its sole discretion, may elect to either:
(i) Cause such Event of Default to be cured (other than any Events of Default which relate to Seller’s bankruptcy or similar insolvency proceedings, to representations and warranties made by Seller or to Seller’s failure to perform obligations under other agreements, or which are otherwise personal to Seller or are not reasonably capable of cure) or (ii) Not assume this Agreement.
(g) If Lender or its assignee or transferee elects to sell or transfer the Facility (after Lender or its assignee or transferee directly or indirectly, takes possession of, or title to the Facility), or sale of the Facility occurs through the actions of Lender (for example, a foreclosure sale where a third party is the buyer, or otherwise), then Lender shall cause the transferee or buyer to assume all of Seller’s remaining obligations arising under this Agreement and all related agreements as a condition of the sale or transfer. Such sale or transfer may be made only to an entity that meets the definition of Permitted Transferee; and (h) Subject to Lender’s cure of any Events of Defaults under this Agreement in accordance with Section 14.2(f), if this Agreement is rejected in Seller’s bankruptcy proceedings or is otherwise terminated in connection therewith Lender shall have the right to elect within forty-five (45) days after such rejection or termination, to cause Buyer to enter into a replacement agreement with Seller having substantially the same terms as this Agreement for the remaining term thereof.

14.3 Buyer Limited Assignment Right. Notwithstanding anything to the contrary, Buyer may make a limited assignment in connection with a municipal prepayment financing transaction to an entity (“Limited Assignee”) that has an Investment Grade Credit Rating or that provides a parent guaranty, in form and substance reasonably acceptable to Seller from an entity with an Investment Grade Credit Rating, of Buyer’s right to receive Product (which shall not be for retail sale) and its obligation to make payments to Seller in accordance with this Section 14.3.

Attachment Staff Report Item 16D
45 This limited assignment shall be expressly subject to Limited Assignee’s timely payment of amounts due under this Agreement. Buyer may make such assignment by delivering a written request for assignment to Seller no less than thirty (30) days’ prior to the proposed effective date of such assignment, which written request must include a proposed assignment agreement substantially in the form attached to this Agreement as Exhibit S. Provided that Buyer delivers a proposed assignment agreement complying with the previous sentence, Seller agrees to (i) comply with Limited Assignee’s reasonable requests for know-your-customer and similar account opening information and documentation with respect to Seller, including but not limited to information related to forecasted generation, credit rating, and compliance with anti-money laundering rules, the Dodd-Frank Act, the Commodity Exchange Act, the Patriot Act and similar rules, regulations, requirements and corresponding policies, and (ii) promptly execute such assignment agreement and implement such assignment as contemplated thereby, subject only to the countersignature of Limited Assignee and Buyer’s and Seller’s ability to make the representations and warranties contained therein. Upon written request from Seller, Buyer shall provide Seller with reasonable information and documentation with respect to Limited Assignee and the proposed municipal prepayment financing transaction. Buyer shall comply with all reasonable requests received from any Lender in connection with such limited assignment, including providing any requested acknowledgments in any Collateral Assignment Agreement.

14.4 Permitted Assignment by Seller. Except as may be precluded by, or would cause Buyer to be in violation of the Political Reform Act (Cal. Gov. Code section 81000 et seq.,) or the regulations thereto, Cal. Government Code section 1090, Buyer’s Conflict of Interest Code/Policy or any other conflict of interest Law, Seller may, without the prior written consent of Buyer, transfer or assign this Agreement, including through a Change of Control, to an Affiliate of Seller or as described in Section 14.2.

ARTICLE 15

DISPUTE RESOLUTION

15.1 Governing Law. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of Law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement. [STC 17] The Parties agree that any suit, action or other legal proceeding by or against any party (or its affiliates or designees) with respect to or arising out of this Agreement shall be brought in the federal courts of the United States or the courts of the State of California sitting in Alameda County, California.

15.2 Dispute Resolution. In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a written Notice from either Party identifying such dispute, the Parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within the earlier of either thirty (30) days of initiating such discussions, or within forty (40) days after Notice of the dispute, the Parties shall submit the dispute to final and binding arbitration conducted in San Francisco, California, administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures:

Attachment Staff Report Item 16D
46 (a) No arbitrator shall have any affiliation with, financial or other interest in, or prior employment with either Party and shall be knowledgeable in the field of the dispute. The Parties shall cooperate with one another in selecting the arbitrator within thirty (30) days after notice of the demand for arbitration. If, notwithstanding their good faith efforts, the Parties are unable to agree upon a mutually-acceptable arbitrator, the arbitrator shall be appointed by JAMS. (b) At the request of a Party, the arbitrator shall have the discretion to order depositions of witnesses to the extent the arbitrator deems such discovery relevant and appropriate.

Depositions shall be limited to a maximum of three (3) per Party and shall be held within thirty (30) days of the making of a request. Additional depositions may be scheduled only with the permission of the arbitrator, and for good cause shown. Each deposition shall be limited to a maximum of six (6) hours duration unless otherwise permitted by the arbitrator for good cause shown. All objections are reserved for the arbitration hearing except for objections based on privilege and proprietary and confidential information. The arbitrator shall also have discretion to order the Parties to exchange relevant documents and to answer interrogatories. (c) Except to the extent expressly permitted under this Agreement, the arbitrator shall have no authority to award consequential, punitive or exemplary damages or any other damages other than the remedies contemplated by this Agreement. (d) The arbitrator shall prepare in writing and provide to the Parties an award including factual findings and the reasons on which their decision is based. (e) During the pendency of dispute resolution proceedings as provided in this Section 15.2, the Parties shall continue to perform under this Agreement in accordance with its provisions.
(f) The terms of this Agreement requiring arbitration are self-executing. It is unnecessary for either Party to petition a court to compel arbitration in order to initiate arbitration.

The Parties agree that any issues regarding the jurisdiction of the arbitrator, the agreement to arbitrate, and the arbitrability of any claims or disputes arising under, relating to, or in connection with this Agreement are issues solely for arbitrator, not a court, to decide. Each of the Parties expressly waives any right it may have to seek in court, including in enforcement proceedings, a determination on the jurisdiction of the arbitrator, the agreement to arbitrate, or the arbitrability of any claims or disputes; provided, however, that either Party may petition a court of appropriate jurisdiction, as described in Section 15.1, to enforce the mandatory arbitration provisions as described in this Section 15.2.

ARTICLE 16

INDEMNIFICATION

16.1 Indemnification. To the maximum extent permitted by applicable Law, each Party (the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other Party, its directors, officers, agents, attorneys, consultants, employees and representatives (each an “Indemnified Party”) from and against all third party claims, demands, losses, liabilities, penalties, and expenses, including reasonable attorneys’ and expert witness fees, for personal injury or death to Persons and damage to each other’s physical property or facilities or the property Attachment Staff Report Item 16D
47 of any third party to the extent arising out of, resulting from, or caused by the negligent or intentional and wrongful acts, error, or omissions of the Indemnifying Party, its Affiliates, its directors, officers, employees or agents (collectively, “Indemnifiable Losses”). Nothing in this Section shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. This indemnification obligation shall apply notwithstanding any negligent or intentional acts, errors or omissions of an Indemnified Party but the Indemnified Party’s liability to pay Indemnifiable Losses to the Indemnified Party shall be reduced in proportion to the percentage by which the indemnitees’ negligent or intentional acts, errors or omissions caused the Indemnifiable Losses. Neither Party shall be indemnified for its Indemnifiable Losses resulting from its sole negligence or willful misconduct. These indemnity provisions shall not be construed to relieve any insurer of its obligations to pay claims consistent with the provisions of a valid insurance policy. In those circumstances in which Buyer acts as the Indemnifying Party, the Indemnifying Party agrees to defend, indemnify and hold harmless the Indemnified Party from and against Indemnifiable Losses arising out of or relating to or in any way connected with Buyer’s receipt of energy after the Delivery Point.

16.2 Notice of Claim. Subject to the terms of this Agreement and upon obtaining knowledge of an Indemnifiable Loss for which it is entitled to indemnity under this Article 16, the Indemnified Party will promptly provide Notice to the Indemnifying Party in writing of any damage, claim, loss, liability or expense which the Indemnified Party has determined has given or could give rise to an Indemnifiable Loss under Section 16.1 (“Claim”). The Notice is referred to as a “Notice of Claim”. A Notice of Claim will specify, in reasonable detail, the facts known to the Indemnified Party regarding the Indemnifiable Loss.

16.3 Failure to Provide Notice. A failure to give timely Notice or to include any specified information in any Notice as provided in this Section 16.3 will not affect the rights or obligations of any Party hereunder except and only to the extent that, as a result of such failure, any Party which was entitled to receive such Notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise materially damaged as a direct result of such failure.

16.4 Defense of Claims. If, within thirty (30) Business Days after giving a Notice of Claim regarding a Claim to the Indemnifying Party pursuant to Section 16.2, the Indemnified Party receives Notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Claim, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Claim within thirty (30) Business Days after receiving Notice from the Indemnified Party that the Indemnified Party believes the Indemnifying Party has failed to take such steps, or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all Indemnifiable Losses relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses, including attorneys’ fees, paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; provided, however, that the Indemnifying Party may accept any settlement without the consent of the Attachment Staff Report Item 16D
48 Indemnified Party if such settlement provides a full release to the Indemnified Party and no requirement that the Indemnified Party acknowledge fault or culpability. If a firm offer is made to settle a Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agrees to such offer, the Indemnifying Party will give Notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within thirty (30) calendar days after its receipt of such Notice, the Indemnified Party may continue to contest or defend such Claim and, in such event, the maximum liability of the Indemnifying Party to such Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnified Party up to the date of such Notice.

16.5 Amounts Owed. Except as otherwise provided in this Article 16, in the event that a Party is obligated to indemnify and hold the other Party harmless under this Article 16, the amount owing to the Indemnified Party will be the amount of the Indemnified Party’s actual loss net of any insurance proceeds received by the Indemnified Party following a commercially reasonable effort by the Indemnified Party to obtain such insurance proceeds.

16.6 Subrogation of Rights. Upon making any indemnity payment, the Indemnifying Party will, to the extent of such indemnity payment, be subrogated to all rights of the Indemnified Party against any third party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided that until the Indemnified Party recovers full payment of its Indemnifiable Loss, any and all claims of the Indemnifying Party against any such third party on account of said indemnity payment are hereby made expressly subordinated and subjected in right of payment to the Indemnified Party’s rights against such third party. Without limiting the generality or effect of any other provision hereof, Buyer and Seller shall execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.

16.7 Rights and Remedies are Cumulative. Except for express remedies already provided in this Agreement, the rights and remedies of a Party pursuant to this Article 16 are cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

ARTICLE 17

INSURANCE

17.1 Insurance.
(a) General Liability. Seller shall maintain, or cause to be maintained at its sole expense, (i) commercial general liability insurance, including sudden and accidental pollution coverage, products and completed operations and personal injury insurance, with a minimum amount of per occurrence, and an annual aggregate of not less than endorsed to provide contractual liability in said amount, specifically covering Seller’s obligations under this Agreement and including Buyer as an additional insured but only to the extent of the liabilities assumed hereunder by Seller; and (ii) an umbrella insurance policy in a minimum amount of liability of Defense costs shall be provided as an additional benefit and not included with the limits of liability.

Attachment Staff Report Item 16D
49 Such insurance shall contain standard cross-liability and severability of interest provisions.

Insurance may be evidenced through primary and excess policies. (b) Employer’s Liability Insurance. Employers’ Liability insurance shall be for injury or death occurring as a result of each accident. With regard to bodily injury by disease, the policy limit will apply to each employee.
(c) Workers Compensation Insurance. Seller, if it has employees, shall also maintain at all times during the Contract Term workers’ compensation and employers’ liability insurance coverage in accordance with applicable requirements of California Law. (d) Business Auto Insurance. Seller shall maintain at all times during the Contract Term business auto insurance for bodily injury and property damage with limits of per occurrence. Such insurance shall cover liability arising out of Seller’s use of all owned (if any), non-owned and hired vehicles, including trailers or semi-trailers in the performance of the Agreement.
(e) Construction All-Risk Insurance. Seller shall maintain or cause to be maintained during the construction of the Facility, construction all-risk form property insurance covering the Facility during such construction periods, and naming Seller (and Lender if any) as the loss payee.
(f) Contractor’s Pollution Liability. Seller shall maintain or cause to be maintained during the construction of the Facility prior to the Commercial Operation Date, Pollution Legal Liability Insurance in the amount of per occurrence and in the aggregate, naming Seller (and Lender if any) as additional named insured. (g) Subcontractor Insurance. Seller shall require all of its subcontractors to carry a minimum of general liability and/or umbrella liability insurance, and the same levels of insurance as Seller in Section 17.1(b)-(d). All subcontractors shall include Seller as an additional insured to (i) comprehensive general liability insurance; (ii) workers’ compensation insurance and employers’ liability coverage; and (iii) business auto insurance for bodily injury and property damage. All subcontractors shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 17.1(g).
(h) Evidence of Insurance. Within sixty (60) days of the Effective Date and upon annual renewal of required insurance coverage thereafter, Seller shall deliver to Buyer certificates of insurance evidencing such coverage as is required to be in effect at the times specified above. These certificates shall specify that Buyer shall be given at least thirty (30) days prior Notice by Seller in the event of any material modification, cancellation or termination of coverage. Such insurance shall be primary coverage without right of contribution from any insurance of Buyer. Any other insurance maintained by Seller is for the exclusive benefit of Seller and shall not in any manner inure to the benefit of Buyer.

Attachment Staff Report Item 16D
50 ARTICLE 18

CONFIDENTIAL INFORMATION

18.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written which is delivered by Seller to Buyer or by Buyer to Seller including: (a) the pricing and other commercially sensitive terms and conditions of, and proposals and negotiations related to, this Agreement, (b) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” before disclosing it to the other, and (c) information that would, under the circumstances, appear to a reasonable Person to be confidential or proprietary. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of the delivery; (iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement. Notwithstanding the foregoing, the Parties acknowledge and agree that Buyer intends to make publicly available a version of this Agreement with certain commercially sensitive provisions removed or redacted.

18.2 Duty to Maintain Confidentiality. Confidential Information will retain its character as Confidential Information but may be disclosed by the recipient (the “Receiving Party”) if and to the extent such disclosure is required (a) to be made by any requirements of Law, (b) pursuant to an order of a court or (c) in order to enforce this Agreement. If the Receiving Party becomes legally compelled (by interrogatories, requests for information or documents, subpoenas, summons, civil investigative demands, or similar processes or otherwise in connection with any litigation or to comply with any applicable law, order, regulation, ruling, regulatory request, accounting disclosure rule or standard or any exchange, control area or independent system operator rule) to disclose any Confidential Information of the disclosing Party (the “Disclosing Party”), Receiving Party shall provide Disclosing Party with prompt notice so that Disclosing Party, at its sole expense, may seek an appropriate protective order or other appropriate remedy.

In the event that the Disclosing Party is unable to obtain a protective order or other appropriate remedy, or if it so directs the Receiving Party, the Receiving Party or its representatives shall furnish only that portion of the Confidential Information that the Receiving Party is advised by its counsel is required by Law to be furnished by it. The Parties acknowledge and agree that this Agreement, and information and documentation provided in connection with this Agreement, including Confidential Information, may be subject to the California Public Records Act (Government Code Section 7920 et seq.).

18.3 Irreparable Injury; Remedies. Receiving Party acknowledges that its obligations hereunder are necessary and reasonable in order to protect Disclosing Party and the business of Disclosing Party, and expressly acknowledges that monetary damages would be inadequate to compensate Disclosing Party for any breach or threatened breach by Receiving Party of any covenants and agreements set forth herein. Accordingly, Receiving Party acknowledges that any such breach or threatened breach will cause irreparable injury to Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Disclosing Attachment Staff Report Item 16D
51 Party will be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.

18.4 Disclosure to Lenders, Etc.. Notwithstanding anything to the contrary in this Article 18, Confidential Information may be disclosed by Seller to any actual or potential Lender or investor or any of its Affiliates, and Seller’s actual or potential agents, consultants, contractors, or trustees, or by Buyer to any actual or potential Limited Assignee, so long as the Person to whom Confidential Information is disclosed either is bound by similarly restrictive confidentiality obligations as those contained in this Agreement, or agrees in writing to be bound by the confidentiality provisions of this Article 18 to the same extent as if it were a Party.

18.5 Press Releases. Neither Party shall issue (or cause its Affiliates to issue) a press release regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such public statement. For the purposes of this section and to the extent the information is not prohibited by law from disclosure, press release does not include records released by Buyer, including annual comprehensive financial reports; memorandums or reports to Buyer’s city council; documentations submitted to regulatory agencies; disclosures related to public financings; and production of records required by subpoena, court order, or under the California Public Records Act (Government Code Section 7920 et seq.).

ARTICLE 19

MISCELLANEOUS

19.1 Entire Agreement; Integration; Exhibits. This Agreement, together with the Cover Sheet and Exhibits attached hereto constitutes the entire agreement and understanding between Seller and Buyer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by reference. The headings used herein are for convenience and reference purposes only. In the event of a conflict between the provisions of this Agreement and those of the Cover Sheet or any Exhibit, the provisions of first the Cover Sheet, and then this Agreement shall prevail, and such Exhibit shall be corrected accordingly. This Agreement shall be considered for all purposes as prepared through the joint efforts of the Parties and shall not be construed against one Party or the other Party as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof.

19.2 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Buyer; provided, that, for the avoidance of doubt, this Agreement may not be amended by electronic mail communications.

19.3 No Waiver. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default.

19.4 No Agency, Partnership, Joint Venture or Lease. Seller and the agents and employees of Seller shall, in the performance of this Agreement, act in an independent capacity and not as officers or employees or agents of Buyer. Under this Agreement, Seller and Buyer Attachment Staff Report Item 16D
52 intend to act as energy seller and energy purchaser, respectively, and do not intend to be treated as, and shall not act as, partners in, co-venturers in or lessor/lessee with respect to the Facility or any business related to the Facility. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement or, to the extent set forth herein, any Lender or Indemnified Party).

19.5 Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal or unenforceable provision(s) with legally acceptable clauses which correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as a whole.

19.6 Mobile-Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms or conditions of service of this Agreement proposed by a Party shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable law.

19.7 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument and each of which shall be deemed an original. The Parties may rely on electronic or scanned signatures as originals.

19.8 Electronic Delivery. Delivery of an executed signature page of this Agreement by electronic format (including portable document format (.pdf)) shall be the same as delivery of an original executed signature page.

19.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

19.10 No Recourse to Members of Buyer. Buyer is organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) pursuant to its Joint Powers Agreement and is a public entity separate from its constituent members. Buyer shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Seller shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Buyer’s constituent members, or the employees, directors, officers, consultants or advisors of Buyer or its constituent members, in connection with this Agreement. Seller shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Buyer shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Seller’s Attachment Staff Report Item 16D
53 members, Affiliates, equity holders, or the employees, directors, officers, consultants or advisors of Seller or its members, Affiliates or equity holders, in connection with this Agreement.

19.11 Forward Contract. The Parties intend that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and Seller are “forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. § 366 in any bankruptcy proceeding wherein such Party is a debtor.

In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. § 366 or another provision of 11 U.S.C. § 101-1532.

19.12 Further Assurances. Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.
[Signatures on following page]
Attachment Staff Report Item 16D
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.

IP EASLEY II, LLC AVA COMMUNITY ENERGY
AUTHORITY, a California joint powers
authority
By: By:

Name: Name:

Title: Title:

Date: Date:

Attachment Staff Report Item 16D
Exhibit A - 1

EXHIBIT A

FACILITY DESCRIPTION
The Facility consists of a 75 MW, as measured at the Delivery Point, The Facility will be comprised of solar panels, inverters, collection lines and step-up transformers, switchyard, and approximately to reach its point of
interconnection (including Shared Facilities), but will not include the Additional Easley Facility or the Energy Storage Facility.

Site Name:

Site includes all or some of the following APNs:

Attachment Staff Report Item 16D
2 County: Riverside County, California
CEQA Lead Agency: Riverside County
Type of Facility: Solar photovoltaic electricity generating facility Operating Characteristics of Facility:

Guaranteed Capacity: 75 MW
Delivery Point:

Facility Meter Locations: See Exhibit P
Facility Interconnection Point:

Facility PNode:

Participating Transmission Owner:

Attachment Staff Report Item 16D
Exhibit B - 1

EXHIBIT B

FACILITY CONSTRUCTION AND COMMERCIAL OPERATION

1. Construction of the Facility.
(a) “Construction Start” will occur once Seller has acquired all applicable regulatory authorizations, approvals and permits for the commencement of construction of the Facility, executed an engineering, procurement, and construction contract, or equipment supply agreement for solar modules and a balance of plant contract, or reasonably comparable contractual arrangements, and issued thereunder a full notice to proceed that authorizes the contractor to mobilize to Site and to begin physical construction (including, at a minimum, excavation for foundations or installation or erection of improvements) of the Facility at the Site, and provided evidence of the Prevailing Wage requirements set forth in Section 13.5. The date of Construction Start will be evidenced by and subject to Seller’s delivery to Buyer of a certificate substantially in the form attached as Exhibit J hereto, and the date certified therein shall be the “Construction Start Date.” Seller shall cause Construction Start to occur no later than the Guaranteed Construction Start Date. (b) The “Guaranteed Construction Start Date” means the Expected Construction Start Date, subject to extensions on a day-for-day basis for the Development Cure Period.
(c)

2. Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”), (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. The “Commercial Operation Date” shall be the date on Attachment Staff Report Item 16D
Exhibit B - 2
which Commercial Operation is achieved or the dispute resolution process has resulted in a determination that the Commercial Operation Date has been achieved; provided that Buyer must acknowledge to Seller in writing that Commercial Operation has been achieved, or provide written notice describing why Buyer does not agree that Commercial Operation has been achieved, within five (5) Business Days of receiving Seller’s notice that Commercial Operation has been achieved. If Buyer fails to acknowledge or provide written notice disputing Commercial Operation within such five (5)-Business Day period, Buyer’s right to acknowledge Commercial Operation shall be waived and Commercial Operation shall be deemed to have occurred as of the last day of such five (5)-Business Day period; provided that the Commercial Operation Date shall occur no earlier than September 30, 2026.
(a) Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”).

Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. (b)
(c)

3. 4. Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall both, subject to notice and documentation requirements set forth below, be extended on a day-for-day basis due to Attachment Staff Report Item 16D
Exhibit B - 3

5. Attachment Staff Report Item 16D
Exhibit C - 1

EXHIBIT C

COMPENSATION
Buyer shall compensate Seller for the Product in accordance with this Exhibit C. (a) Settlement Price. “Settlement Price” shall have the following meaning:
(i)
(ii)
(iii)
(b) Monthly Settlement Amount. For each calendar month of the Delivery Term, subject to Section (e) of this Exhibit C, Seller shall calculate the “Monthly Settlement Amount,” which shall be a single amount due from Buyer to Seller, or from Seller to Buyer, as appropriate.

The Monthly Settlement Amount shall equal the sum of:
(i)
(ii)
(c)
(d) Reserved.

Attachment Staff Report Item 16D
Exhibit C - 2
(e)
(f)
(g)
(h) Tax Credits. The Parties agree that the neither the Contract Price nor the Test Energy Rate are subject to adjustment or amendment if Seller fails to receive any Tax Credits, or if any Tax Credits expire, are repealed or otherwise cease to apply to Seller or the Facility in whole or in part, or Seller or its investors are unable to benefit from any Tax Credits. Seller shall bear all risks, financial and otherwise, throughout the Contract Term, associated with Seller’s or the Facility’s eligibility to receive Tax Credits or to qualify for accelerated depreciation for Seller’s accounting, reporting or Tax purposes. The obligations of the Parties hereunder, including those obligations set forth herein regarding the purchase price for and Seller’s obligation to deliver Product, shall be effective regardless of whether the sale of Product is eligible for, or receives Tax Credits during the Contract Term.

Attachment Staff Report Item 16D
Exhibit D - 1

EXHIBIT D

SCHEDULING COORDINATOR RESPONSIBILITIES
(a) Seller as Scheduling Coordinator for the Facility. Upon Initial Synchronization of the Facility to the CAISO Grid, Seller shall be the Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for the delivery of the Product at the Delivery Point. Seller (as the Facility’s SC) shall submit Bids to the CAISO in accordance with this Agreement and the applicable CAISO Tariff, protocols and Scheduling practices for Product on a day-ahead, hour-ahead, fifteen-minute market, real time or other market basis that may develop after the Effective Date, as determined by Seller. (b) CAISO Costs and Revenues. Seller (as Scheduling Coordinator for the Facility) shall be responsible for CAISO costs (including penalties, Imbalance Energy costs or revenues, and other charges) and shall be entitled to all CAISO revenues (including credits, Imbalance Energy costs or revenues, and other payments), including revenues associated with CAISO dispatches, bid cost recovery, Inter-SC Trade credits, or other credits in respect of the Product Scheduled or delivered from the Facility. Seller shall be responsible for all CAISO penalties resulting from any failure by Seller to abide by the CAISO Tariff or the outage notification requirements set forth in this Agreement. The Parties agree that any Availability Incentive Payments (as defined in the CAISO Tariff) are for the benefit of Seller and for Seller’s account and that any Non-Availability Charges (as defined in the CAISO Tariff) are the responsibility of Seller and for Seller’s account. In addition, if during the Delivery Term, the CAISO implements or has implemented any sanction or penalty related to scheduling, outage reporting, or generator operation, and any such sanctions or penalties are imposed upon the Facility due to failure by Seller to abide by the CAISO Tariff or the outage notification requirements set forth in this Agreement, the cost of the sanctions or penalties shall be Seller’s responsibility. (c) CAISO Settlements. Seller (as the Facility’s SC) shall be responsible for all settlement functions with the CAISO related to the Facility. (d) Master Data File and Resource Data Template. Seller shall provide the data to the CAISO (and to Buyer) that is required for the CAISO’s Master Data File and Resource Data Template (or successor data systems) for the Facility consistent with this Agreement. At least once per Contract Year, Seller shall review and confirm that the data provided for the CAISO’s Master Data File and Resource Data Template (or successor data systems) for the Facility remains consistent with the actual operating characteristics of the Facility and update such data as appropriate.

Attachment Staff Report Item 16D
Exhibit E - 1

EXHIBIT E

PROGRESS REPORTING FORM
Each Progress Report must include the following items:

1. Executive Summary.

2. Facility description.

3. Site plan of the Facility.

4. Description of any material planned changes to the Facility or the site.

5. Gantt chart schedule showing progress on achieving each of the Milestones.

6. Summary of activities during the previous calendar quarter, including any OSHA labor hour reports.

7. Forecast of activities scheduled for the current calendar quarter or month as applicable.

8. Written description about the progress relative to Seller’s Milestones, including whether Seller has met or is on target to meet the Milestones.

9. List of issues that are likely to potentially affect Seller’s Milestones.

10. A status report of start-up activities including a forecast of activities ongoing and after start-up, a report on Facility performance including performance projections for the next twelve (12) months.

11. The utilization of union labor by Seller’s principal EPC contractor.

12. Progress and schedule of all major agreements, contracts, permits, approvals, technical studies, financing agreements and major equipment purchase orders showing the start dates, completion dates, and completion percentages.

13. Pictures, in sufficient quantity and of appropriate detail, in order to document construction and startup progress of the Facility, the interconnection into the Transmission System and all other interconnection utility services.

14. Any other documentation reasonably requested by Buyer.

Attachment Staff Report Item 16D
Exhibit F-1 - 1
EXHIBIT F-1

FORM OF AVERAGE EXPECTED ENERGY REPORT
Average Expected Energy (in MWh)
1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
NOV
DEC
The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.

Attachment Staff Report Item 16D
Exhibit F-2 - 1
EXHIBIT F-2

FORM OF MONTHLY AVAILABLE CAPACITY FORECAST
Available Generating Capacity (in MWh) – [Insert Month] 1:00 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 Day 1
Day 2
Day 3
Day 4
Day 5
[insert a
Day
29 Day
30 Day
31 The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.

Attachment Staff Report Item 16D
Exhibit G - 1

EXHIBIT G

GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION
Attachment Staff Report Item 16D
2 Attachment Staff Report Item 16D
Exhibit H - 1

EXHIBIT H

FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by [Licensed Professional Engineer] (“Engineer”) to Ava Community Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated [Date] (“Agreement”) by and between IP Easley II, LLC (“Seller”) and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

As of [Date], Engineer hereby certifies and represents to Buyer the following:

1. The Facility is fully operational, reliable and interconnected, fully integrated and synchronized with the Transmission System.

2. Seller has installed equipment for the Facility with a nameplate capacity of no less than ninety-five percent (95%) of the Guaranteed Capacity measured at the Delivery Point.

3. Seller has commissioned substantially all equipment comprising the Facility in accordance with its respective manufacturer’s specifications.

4. The Facility’s testing included a performance test demonstrating peak electrical output of no less than ninety-five percent (95%) of the Guaranteed Capacity for the Facility at the Delivery Point, as adjusted for ambient conditions on the date of the Facility testing.

5. Seller has demonstrated functionality of the Facility’s communication systems and automatic generation control (AGC) interface to operate the Facility as necessary to respond and follow instructions, including an electronic signal conveying real time and intra-day instructions, directed by the Buyer in accordance with the Agreement and/or the CAISO.

6. Authorization to parallel the Facility was obtained by the Participating Transmission Provider on [date].

7. The Transmission Provider has provided documentation supporting full unrestricted release for Commercial Operation on [date].

8. The CAISO has provided notification supporting Commercial Operation, in accordance with the CAISO Tariff on [date].

9. Seller shall have caused the Facility to be included in the Full Network Model and has the ability to offer Bids into the CAISO Day-Ahead Market and Real-Time Market in respect of the Facility.

EXECUTED by [Licensed Professional Engineer]
this ________ day of _____________, 20__.

Attachment Staff Report Item 16D
Exhibit H - 2
[LICENSED PROFESSIONAL ENGINEER]
By:

Printed Name:

Title:

Attachment Staff Report Item 16D
Exhibit I - 1

EXHIBIT I

FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity is delivered by [Licensed Professional Engineer] (“Engineer”) to Ava Community Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated [Date] (“Agreement”) by and between IP Easley II, LLC (“Seller”) and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

I hereby certify that the performance test for the Facility demonstrated peak electrical output of __ MW AC at the Delivery Point, as adjusted for ambient conditions on the date of the performance test (“Installed Capacity”).

EXECUTED by [Licensed Professional Engineer]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL ENGINEER]
By:

Printed Name:

Title:

Attachment Staff Report Item 16D
Exhibit J - 1

EXHIBIT J

FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification of Construction Start Date (“Certification”) is delivered by IP Easley II, LLC (“Seller”) to Ava Community Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated [Date] (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

Seller hereby certifies and represents to Buyer the following:

1. Construction Start (as defined in Exhibit B of the Agreement) has occurred, and a copy of the notice to proceed that Seller issued to its contractor as part of Construction Start is attached hereto;

2. the Construction Start Date occurred on [Date] (the “Construction Start Date”); and

3. the precise Site on which the Facility is located is, which must be within the boundaries of the previously identified Site: ___________________________________________.

IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller this ________ day of _____________, 20__.
[_______________________________]
By:

Printed Name:

Title:

Attachment Staff Report Item 16D
Exhibit K - 1

EXHIBIT K

FORM OF LETTER OF CREDIT
[Issuing Bank Letterhead and Address]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX]
Date: _____________________
Bank Ref.: _________________
Amount: US$_______________
Expiration Date: ____________
Beneficiary:

Ava Community Energy Authority, a California joint powers authority Ladies and Gentlemen:

By the order of __________ (“Applicant”), we, [insert bank name and address] (“Issuer”) hereby issue our Irrevocable Standby Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) in favor of Ava Community Energy Authority, a California joint powers authority (“Beneficiary”), for an amount not to exceed the aggregate sum of U.S. $[XXXXXX] (United States Dollars [XXXXX] and 00/100), pursuant to that certain Renewable Power Purchase Agreement dated as of _____ and as amended (the “Agreement”) between Applicant and Beneficiary. This Letter of Credit shall become effective immediately and shall expire on [Insert Date] which is one year after the issue date of this Letter of Credit, or any expiration date extended in accordance with the terms hereof (the “Expiration Date”).

Funds under this Letter of Credit are available to Beneficiary by valid presentation on or before the Expiration Date of a dated statement purportedly signed by your duly authorized representative, in the form attached hereto as Exhibit A, containing one of the two alternative paragraphs set forth in paragraph 2 therein, referencing our Letter of Credit No. [XXXXXXX] (“Drawing Certificate”).

The Drawing Certificate may be presented by (a) physical delivery, (b) as a PDF attachment to an email to [bank email address] or (c) facsimile to [bank fax number] confirmed by [email to [bank email address]]. Transmittal by facsimile or email shall be deemed delivered when received.

The original of this Letter of Credit (and all amendments, if any) is not required to be presented in connection with any presentment of a Drawing Certificate by Beneficiary hereunder in order to receive payment.

We hereby agree with the Beneficiary that all documents presented under and in compliance with the terms of this Letter of Credit, that such drafts will be duly honored upon presentation to the Issuer on or before the Expiration Date. All payments made under this Letter of Credit shall be made with Issuer’s own immediately available funds by means of wire transfer in immediately Attachment Staff Report Item 16D
available United States dollars to Beneficiary’s account as indicated by Beneficiary in its Drawing Certificate or in a communication accompanying its Drawing Certificate.

Partial draws are permitted under this Letter of Credit, and this Letter of Credit shall remain in full force and effect with respect to any continuing balance.

It is a condition of this Letter of Credit that the Expiration Date shall be deemed automatically extended without an amendment for a one year period beginning on the present Expiration Date hereof and upon each anniversary for such date, unless at least one hundred twenty (120) days prior to any such Expiration Date we have sent to you written notice by overnight courier service that we elect not to extend this Letter of Credit, in which case it will expire on the Expiration Date.

No presentation made under this Letter of Credit after such Expiration Date will be honored.

Notwithstanding any reference in this Letter of Credit to any other documents, instruments or agreements, this Letter of Credit contains the entire agreement between Beneficiary and Issuer relating to the obligations of Issuer hereunder.

This Letter of Credit is issued subject to the rules of the ‘International Standby Practices 1998’, International Chamber of Commerce Publication No. 590 (“ISP98”) and, as to matters not addressed by ISP98, shall be governed and construed in accordance with the laws of the State of California.

Please address all correspondence regarding this Letter of Credit to the attention of the Letter of Credit Department at [insert bank address information], referring specifically to Issuer’s Letter of Credit No. [XXXXXXX]. For telephone assistance, please contact Issuer’s Standby Letter of Credit Department at [XXX-XXX-XXXX] and have this Letter of Credit available.

All notices to Beneficiary shall be in writing and are required to be sent by certified letter, overnight courier, or delivered in person to: Ava Community Energy Authority, [Address]. Only notices to Beneficiary meeting the requirements of this paragraph shall be considered valid. Any notice to Beneficiary which is not in accordance with this paragraph shall be void and of no force or effect. [Bank Name]
[Insert officer name]
[Insert officer title]
Attachment Staff Report Item 16D
Exhibit A: (DRAW REQUEST SHOULD BE ON BENEFICIARY’S LETTERHEAD) Drawing Certificate
[Insert Bank Name and Address]
Ladies and Gentlemen:

The undersigned, a duly authorized representative of Ava Community Energy Authority, a California joint powers authority as beneficiary (the “Beneficiary”) of the Irrevocable Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) issued by [insert bank name] (the “Bank”) by order of __________ (the “Applicant”), hereby certifies to the Bank as follows:

1. Applicant and Beneficiary are party to that certain Renewable Power Purchase Agreement dated as of ___________, 20__ (the “Agreement”).

2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________ because a Seller Event of Default (as such term is defined in the Agreement) has occurred or other occasion provided for in the Agreement where Beneficiary is authorized to draw on the Letter of Credit has occurred.

OR
Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________, which equals the full available amount under the Letter of Credit, because Applicant is required to maintain the Letter of Credit in force and effect beyond the Expiration Date of the Letter of Credit but has failed to provide Beneficiary with a replacement Letter of Credit or other acceptable instrument within thirty (30) days prior to such Expiration Date.

3. The undersigned is a duly authorized representative of Ava Community Energy Authority and is authorized to execute and deliver this Drawing Certificate on behalf of Beneficiary.

You are hereby directed to make payment of the requested amount to Ava Community Energy Authority by wire transfer in immediately available funds to the following account: [Specify account information]
Ava Community Energy Authority
Name and Title of Authorized Representative
Date___________________________
Attachment Staff Report Item 16D
Exhibit L - 1

EXHIBIT L
[RESERVED]
Attachment Staff Report Item 16D
Exhibit M - 1

EXHIBIT M
[RESERVED]
Attachment Staff Report Item 16D
Exhibit N - 1

EXHIBIT N

NOTICES
IP Easley II, LLC Ava Community Energy Authority
All Notices: All Notices:
1999 Harrison Street, Suite 2300
Oakland, CA 94612
Attn: Power Resources
Phone: (510) 809-7458
Email: [email protected];
[email protected]
Reference Numbers: Reference Numbers:

Duns: 08-110-3072
Federal Tax ID Number: 82-2262960
Invoices: Invoices:

Attn: Jason Bartlett, Finance Manager
Phone: 510-650-7584
Email: [email protected];
[email protected];
[email protected]
Scheduling: Scheduling:

Attn: NCPA c/o Ken Goeke, Manager, Portfolio
and Pool Administration
Phone: (916) 781-4290
Email: [email protected]
Confirmations: Confirmations:

Attn: Power Resources
Phone: (510) 361-6247
Email: [email protected];
[email protected];
[email protected]
Payments: Payments:

Attn: Jason Bartlett, Finance Manager
Phone: 510-650-7584
Email: [email protected]
Wire Transfer: Wire Transfer:

BNK: River City Bank
2485 Natomas Park Drive, Suite 100, Sacramento,
CA 95833
ABA: 121133416
ACCT: xxxxxx7551
Attachment Staff Report Item 16D
Exhibit N - 2
IP Easley II, LLC Ava Community Energy Authority
Credit and Collections: Credit and Collections:

Attn: Howard Chang, Chief Operating Officer
Phone: (510) 809-7458
Email: [email protected];
[email protected]
With additional Notices of an Event of
Default to:

With an additional copy to:

With additional Notices of an Event of Default
to:

Attn: Power Resources
1999 Harrison Street, Suite 2300
Oakland, CA 94612
Phone: (510) 809-7458
Email: [email protected];
[email protected]
With an additional copy to:

Hall Energy Law PC
Attn: Stephen Hall
Phone: (503) 313-0755
Email: [email protected]
Attachment Staff Report Item 16D
Exhibit O - 1

EXHIBIT O

OPERATING RESTRICTIONS
• Nameplate capacity of the Facility: 75 MW
• Minimum capacity:
• Ramp rate:

Attachment Staff Report Item 16D
Exhibit P - 1

EXHIBIT P
Attachment Staff Report Item 16D
Exhibit Q - 1

EXHIBIT Q

COMMUNITY INVESTMENT
.

Attachment Staff Report Item 16D
Exhibit R - 1

EXHIBIT R

WORKFORCE DEVELOPMENT
Seller shall use good faith efforts in connection with the following workforce objectives related to the construction of the Facility:
(a) Utilization of apprentices at the same ratio of apprentice hours to journeyperson hours as required for public works projects. Generally this is one apprentice hour per every 5 hours of journeywork per craft.
(b) Demonstrated commitment to Local Hires and a Targeted Hire Program, including utilization of a multi-craft core curriculum (MC3) pre-apprenticeship program, or equivalent industry and state-recognized pre-apprenticeship certification, for outreach, preparation, support and referral of Targeted Hires.
(c) Demonstrated commitment to subcontracting with Small, Local, or Emerging Businesses.
“Local Hire” means a resident within 125 miles of the Facility. Such radius will target a distance that is within reasonable daily commuting distance; or a resident within the county where the project is being constructed;
“Targeted Hire Program” means a pipeline program which: (a) Partners with a Multi-Craft Core Curriculum (MC3) pre-apprenticeship program or programs, or equivalent industry and state-recognized certificated career training and placement program that recruits, supports, and places Equity Priority Workers in skilled construction trades; and (b) Creates opportunities for an Equity Priority Worker to enter registered apprenticeship programs and/or obtain work hours needed to successfully complete their apprenticeship; or (c) Recruits and places income-qualified journeypersons.

“Equity Priority Worker” means a jobseeker who, at the time of hiring or within the last twelve months, satisfies at least one of the following categories:
a. Currently unhoused or at risk of homelessness
b. Being a custodial single parent
c. Currently receiving public assistance
d. Lacking a GED or high school diploma
e. Having been continuously unemployed or underemployed for the past 6 months f. Having been emancipated from the foster care system
g. Being a veteran of the United States Military
h. Being a member of a tribal community associated with indigenous people i. Having a previous incarcerated or justice involvement history j. At-Risk Youth: a person 18-24 years old who is disconnected from school and/or work k. Low income (household income is below the current HUD threshold for Low Income Households in their county of residence)

“Small, Local, or Emerging Business” means a business that is considered small, local, or emerging under the following requirements:

Attachment Staff Report Item 16D
2 a. Local Business - A business having a fixed office with a street address in Riverside County or Ava’s service territory, and having a valid business license issued by a jurisdiction within Riverside County or Ava’s service territory for at least 6 months. b. Small Business - A business which has been certified to meet the U.S. Small Business Administration (SBA) size standards for its classification. c. Emerging Business - A business which has been certified to meet less than one half the U.S. SBA size standards for its classification and has been in business less than 5 years.

Attachment Staff Report Item 16D
Exhibit S - 1

EXHIBIT S
Attachment Staff Report Item 16D
Exhibit S - 2
Attachment Staff Report Item 16D
Exhibit S - 3
Attachment Staff Report Item 16D
Exhibit S - 4
Attachment Staff Report Item 16D
Exhibit S - 5
Attachment Staff Report Item 16D
Exhibit S - 6
Attachment Staff Report Item 16D
Staff Report Item 17
Staff Report Item 17
TO: Ava Community Energy Board of Directors
FROM: Eleanor Smith – Account Rates and Equity Manager
Shannon Rivers - Virtual Power Plant Senior Manager
SUBJECT: Authorization of Chief Executive Officer to Negotiate and Execute Agreements for five solar projects for the Disadvantaged Communities Green Tariff (DAC-GT) and Community Solar Green Tariff (CSGT) programs (Action Item) DATE: February 21, 2024
__________________________________________________________________ Recommendation
Adopt five Resolutions authorizing the Chief Executive Officer to negotiate and execute Agreements for five projects awarded short listing through the 2022 Disadvantaged Communities Green Tariff and Community Solar Green Tariff Request for Offers (RFO): 2 solar projects located in Tracy and 3 solar projects located in Oakland, San Leandro, and Hayward.

All five projects will be developed by Prologis. These projects will deliver renewable energy and Renewable Energy Credits (RECs):
a. ESCA-PLD-TRACY9/Prologis Project (DAC-GT): 20-year, 3.0 mega-watts (MW) solar project in Tracy, expected to be operational in June 2026, contingent on California Public Utilities Commission (“CPUC”) approval of the fully executed contract. b. ESCA-PLD-TRACY16/Prologis Project (DAC-GT): 20-year, 2.0 MW solar project in Tracy, expected to be operational in June 2026, contingent on CPUC approval of the fully executed contract.
c. ESCA-PLD-OAKLAND2/Prologis Project (DAC-GT): 20-year, 0.72 MW solar project in Oakland, expected to be operational in December 2025, contingent on CPUC approval of the fully executed contract.
d. ESCA-PLD-SANLEANDRO1/Prologis Project (CSGT): 20-year, 1.0 MW solar project in San Leandro, expected to be operational in April 2025, contingent on CPUC approval of the fully executed contract.
e. ESCA-PLD-HAYWARD1/Prologis Project (CSGT): 20-year, 0.56 MW solar project in Hayward, expected to be operational in April 2025, contingent on CPUC approval of the fully executed contract.

Staff Report Item 17
Background
In 2018, the California Public Utilities Commission (CPUC) adopted Decision 18-06-027 (D.18- 06-027), creating two CPUC funded programs: the Disadvantaged Communities Green Tariff (DAC-GT) and Community Solar Green Tariff (CSGT). Both programs promote the development of renewable generation within a disadvantaged community (“DAC”)1 and offer primarily CARE/FERA customers living in a DAC access to 100% renewable energy supply and a 20% discount on their electricity bills. The below table provides an overview of the two programs.

Table 1: DAC-GT and CSGT Program Overview
Specifics DAC-GT CSGT
Ava Branded
Program Name
Ava Solar Discount Program Ava Community Solar Program
Program
Offering
100% Renewable Energy to eligible
customers at a 20% discount
100% Renewable Energy to eligible
customers at a 20% discount
Program Size 5.72 MW
~2,900 customers

1.56 MW
~800 customers
Ava Program
Status
• Launched in September 2021
with an interim solar resource
• Eligible customers were auto
enrolled
• Solicitation for new resource
completed
• In development
• Solicitation for new resource
completed
• Customer enrollment will occur
upon project completion
Customer and
Project
Requirements
Residential customers who:
• Are CARE/FERA enrolled
• Live in a DAC
• 50% or more of participants
must be residential customers
who are CARE/ FERA enrolled
and must be subscribed before
non-CARE/FERA customers are
able to participate
• Customers located within 5
miles of site and live in a DAC
• Community Sponsor2
1 For the purposes of DAC-GT and CSGT, the CPUC categorizes a “disadvantaged community” as a community that appears among the top 25% of census tracts identified by CalEnviroScreen 3.0 or CalEnviroScreen 4.0. CalEnviroScreen is an analytical tool created by the California Environmental Agency (CalEPA) that measures a combination of economic, health, and environmental factors by census tract.
2 CPUC Decision 18-06-027 states that “community involvement must be demonstrated by a non-profit community-based organization or local government ‘sponsoring’ a project on behalf of residents.

Developers [are] required to obtain a letter of commitment from sponsors in order to bid for projects.” Staff Report Item 17
RFO and Proposed Contracts
Ava issued a request for offers (RFO) in December 2022 to procure up to 5.726 MW of solar and storage for DAC-GT and up to 1.5625 MW of solar and storage for CSGT. Ava’s capacity allocation is pursuant to CPUC Resolution E-5124. Bidders of the RFO were required to meet certain minimum requirements relating to project location, resource type, project size, commercial operation date, and community sponsorship (CSGT only). Additionally, bidders were evaluated based on each project’s economics, workforce development plan, and development status and experience. Ava staff evaluated the above criteria and reviewed combinations of projects that optimized programs goals including volume, pricing, and geographic targets.

Ava staff selected a portfolio of five solar projects with developer Prologis. The portfolio includes two solar projects in Tracy and one solar project in Oakland for DAC-GT and two solar projects in Hayward and San Leandro for CSGT. The community sponsors for the selected CSGT projects are the City of Hayward and City of San Leandro. Both community sponsors provided letters of commitment attesting to their community’s interest in these projects.

The procurement of these projects, shown below in Table 2, allows Ava to fill its allotted capacity for both programs and service the maximum number of customers with the program bill discount. The selection offers wide geographic coverage within Ava’s service territory.

Table 2: Project Portfolio
Develope
r
Contracting Entity Program Project Location Nameplate
Solar
COD Contract
Term
Prologis ESCA-PLD-TRACY9, LLCDAC-GT Tracy 12 Tracy 3 MW 6/1/2026 20 years Prologis ESCA-PLD-TRACY16, LLCDAC-GT Tracy 2
West
Tracy 2 MW 6/1/2026 20 years
Prologis ESCA-PLD-OAKLAND2, LLCDAC-GT Oakland 1 Oakland 0.72 MW 12/31/2025 20 years Prologis ESCA-PLD-SANLEANDRO1,
LLC
CSGT San
Leandro 10
San
Leandro
1 MW 4/1/2026 20 years
Prologis ESCA-PLD-HAYWARD1, LLCCSGT Hayward
Commerce
Hayward 0.56 MW 4/1/2026 20 years
Ava also considered pursuing solar and storage as outlined in the RFO, but was unable to come to commercially acceptable terms with Prologis for the paired storage resources.

Staff Report Item 17
CPUC Requirements and Cost Recovery
Per CPUC Resolution E-5124, Ava must submit a Tier 2 Advice Letter with executed DAC-GT and CSGT Power Purchase Agreements for approval by the CPUC. Full execution of the projects is contingent on this CPUC approval.

DAC-GT and CSGT program costs, including above market generation costs, are eligible for reimbursement from the CPUC. To receive cost recovery from the CPUC, Ava follows the annual budget process set forth in CPUC Resolution E-4999. Each February, Ava submits a Tier 1 Advice Letter with the annual program budget numbers including detailed workpapers on how costs are calculated. The CPUC previously approved Ava’s requested cost recovery for DAC-GT and CSGT actual costs for program years 2021 through 2022. Ava is in the process of seeking cost recovery for program year 2023.

Attachments
A. Resolution Authorizing the CEO to Negotiate and Execute a Twenty-Year Solar Energy Agreement in Tracy with ESCA-PLD-TRACY9, LLC for Tracy 12 B. Resolution Authorizing the CEO to Negotiate and Execute a Twenty-Year Solar Energy Agreement in Tracy with ESCA-PLD-TRACY16, LLC for Tracy 2 West C. Resolution Authorizing the CEO to Negotiate and Execute a Twenty-Year Solar Energy Agreement in Oakland with ESCA-PLD-OAKLAND2, LLC for Oakland 1 D. Resolution Authorizing the CEO to Negotiate and Execute a Twenty-Year Solar Energy Agreement in San Leandro with ESCA-PLD-SANLEANDRO1, LLC for San Leandro 10 E. Resolution Authorizing the CEO to Negotiate and Execute a Twenty-Year Solar Energy Agreement in Hayward with ESCA-PLD-HAYWARD1, LLC for Hayward Commerce F. Redacted draft contract with Prologis*
G. PowerPoint Presentation
*Only one redacted draft contract is attached, because all contracts have identical language except for project location, size (MW), and price.

Attachment Staff Report Item 17A
RESOLUTION NO. R-2024-xx

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CHIEF

EXECUTIVE OFFICER TO NEGOTIATE AND EXECUTE AGREEMENT WITH CONTRACTING ENTITY ESCA-PLD-TRACY9, LLC
WHEREAS on October 24, 2023, the East Bay Community Energy Authority legally adopted the name Ava Community Energy Authority (“Ava”); WHEREAS Ava 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 Ava and parties to the JPA in March of 2020. The City of Stockton, located in San Joaquin County was added as a member of Ava and party to the JPA in September of 2022. The City of Lathrop, located in San Joaquin County, was added as a member to Ava and party to the JPA in October of 2023;
WHEREAS Ava issued the 2022 Disadvantaged Communities Green Tariff and Community Solar Green Tariff RFO in December 2022;
WHEREAS ESCA-PLD-TRACY9, LLC proposed a 3.0 mega-watts (MW) solar project in Tracy to be developed by Prologis; and
WHEREAS the project is expected to be operational by June 2026 and will provide renewable solar energy and associated environmental attributes for a term of twenty years.

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

Section 1. The CEO is hereby authorized to negotiate and execute a twenty-year solar energy agreement with ESCA-PLD-TRACY9, LLC for a 3.0 MW solar project in Tracy, expected to be operational in June 2026, contingent on California Public Utilities Commission approval of the fully executed contract.

Attachment Staff Report Item 17A
ADOPTED AND APPROVED this 21st day of February, 2024.
___________________________________________
Elisa Márquez, Chair
ATTEST:
_______________________________
Adrian Bankhead, Clerk of the Board
Attachment Staff Report Item 17B
RESOLUTION NO. R-2024-xx

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CHIEF

EXECUTIVE OFFICER TO NEGOTIATE AND EXECUTE AGREEMENT WITH CONTRACTING ENTITY ESCA-PLD-TRACY16, LLC
WHEREAS on October 24, 2023, the East Bay Community Energy Authority legally adopted the name Ava Community Energy Authority (“Ava”); WHEREAS Ava 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 Ava and parties to the JPA in March of 2020. The City of Stockton, located in San Joaquin County was added as a member of Ava and party to the JPA in September of 2022. The City of Lathrop, located in San Joaquin County, was added as a member to Ava and party to the JPA in October of 2023;
WHEREAS Ava issued the 2022 Disadvantaged Communities Green Tariff and Community Solar Green Tariff RFO in December 2022;
WHEREAS ESCA-PLD-TRACY16, LLC proposed a 2.0 mega-watts (MW) solar project in Tracy to be developed by Prologis; and
WHEREAS the project is expected to be operational by June 2026 and will provide renewable solar energy and associated environmental attributes for a term of twenty years.

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

Section 1. The CEO is hereby authorized to negotiate and execute a twenty-year solar energy agreement with ESCA-PLD-TRACY16, LLC for a 2.0 MW solar project in Tracy, expected to be operational in June 2026, contingent on California Public Utilities Commission approval of the fully executed contract.

Attachment Staff Report Item 17B
ADOPTED AND APPROVED this 21st day of February, 2024.
___________________________________________
Elisa Márquez, Chair
ATTEST:
_______________________________
Adrian Bankhead, Clerk of the Board
Attachment Staff Report Item 17C
RESOLUTION NO. R-2024-xx

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CHIEF

EXECUTIVE OFFICER TO NEGOTIATE AND EXECUTE AGREEMENT WITH CONTRACTING ENTITY ESCA-PLD-OAKLAND2, LLC
WHEREAS on October 24, 2023, the East Bay Community Energy Authority legally adopted the name Ava Community Energy Authority (“Ava”); WHEREAS Ava 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 Ava and parties to the JPA in March of 2020. The City of Stockton, located in San Joaquin County was added as a member of Ava and party to the JPA in September of 2022. The City of Lathrop, located in San Joaquin County, was added as a member to Ava and party to the JPA in October of 2023;
WHEREAS Ava issued the 2022 Disadvantaged Communities Green Tariff and Community Solar Green Tariff RFO in December 2022;
WHEREAS ESCA-PLD-OAKLAND2, LLC proposed a 0.72 mega-watts (MW) solar project in Oakland to be developed by Prologis; and WHEREAS the project is expected to be operational by December 2025 and will provide renewable solar energy and associated environmental attributes for a term of twenty years.

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

Section 1. The CEO is hereby authorized to negotiate and execute a twenty-year solar energy agreement with ESCA-PLD-OAKLAND2, LLC for a 0.72 MW solar project in Oakland, expected to be operational in December 2025, contingent on California Public Utilities Commission approval of the fully executed contract.

Attachment Staff Report Item 17C
ADOPTED AND APPROVED this 21st day of February, 2024.
___________________________________________
Elisa Márquez, Chair
ATTEST:
_______________________________
Adrian Bankhead, Clerk of the Board
Attachment Staff Report 17D
RESOLUTION NO. R-2024-xx

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CHIEF

EXECUTIVE OFFICER TO NEGOTIATE AND EXECUTE AGREEMENT WITH CONTRACTING ENTITY ESCA-PLD-SANLEANDRO1, LLC
WHEREAS on October 24, 2023, the East Bay Community Energy Authority legally adopted the name Ava Community Energy Authority (“Ava”); WHEREAS Ava 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 Ava and parties to the JPA in March of 2020. The City of Stockton, located in San Joaquin County was added as a member of Ava and party to the JPA in September of 2022. The City of Lathrop, located in San Joaquin County, was added as a member to Ava and party to the JPA in October of 2023;
WHEREAS Ava issued the 2022 Disadvantaged Communities Green Tariff and Community Solar Green Tariff RFO in December 2022;
WHEREAS ESCA-PLD-SANLEANDRO1, LLC proposed a 1.0 mega-watts (MW) solar project in San Leandro to be developed by Prologis; and WHEREAS the project is expected to be operational by April 2026 and will provide renewable solar energy and associated environmental attributes for a term of twenty years.

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

Section 1. The CEO is hereby authorized to negotiate and execute a twenty-year solar energy agreement with ESCA-PLD-SANLEANDRO1, LLC for a 1.0 MW solar project in San Leandro, expected to be operational in April 2026, contingent on California Public Utilities Commission approval of the fully executed contract.

Attachment Staff Report 17D
ADOPTED AND APPROVED this 21st day of February, 2024.
___________________________________________
Elisa Márquez, Chair
ATTEST:
_______________________________
Adrian Bankhead, Clerk of the Board
Attachment Staff Report Item 17E
RESOLUTION NO. R-2024-xx

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CHIEF EXECUTIVE

OFFICER TO NEGOTIATE AND EXECUTE AGREEMENT WITH CONTRACTING ENTITY ESCA-PLD-HAYWARD1, LLC
WHEREAS on October 24, 2023, the East Bay Community Energy Authority legally adopted the name Ava Community Energy Authority (“Ava”); WHEREAS Ava 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 Ava and parties to the JPA in March of 2020. The City of Stockton, located in San Joaquin County was added as a member of Ava and party to the JPA in September of 2022. The City of Lathrop, located in San Joaquin County, was added as a member to Ava and party to the JPA in October of 2023;
WHEREAS Ava issued the 2022 Disadvantaged Communities Green Tariff and Community Solar Green Tariff RFO in December 2022;
WHEREAS ESCA-PLD-HAYWARD1, LLC proposed a 0.56 mega-watts (MW) solar project in Hayward to be developed by Prologis; and
WHEREAS the project is expected to be operational by April 2026 and will provide renewable solar energy and associated environmental attributes for a term of twenty years.

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

Section 1. The CEO is hereby authorized to negotiate and execute a twenty-year solar energy agreement with ESCA-PLD-HAYWARD1, LLC for a 0.56 MW solar project in Hayward, expected to be operational in April 2026, contingent on California Public Utilities Commission approval of the fully executed contract.

Attachment Staff Report Item 17E
ADOPTED AND APPROVED this 21st day of February, 2024.
______________________________________________
Elisa Márquez, Chair
ATTEST:
_______________________________
Adrian Bankhead, Clerk of the Board
1 DISADVANTAGED COMMUNITIES GREEN TARIFF (DAC-GT) RENEWABLE

POWER PURCHASE AGREEMENT

COVER SHEET
Seller: ESCA-PLD-OAKLAND2, LLC, a Delaware limited liability company (“Seller”) Buyer: Ava Community Energy Authority, a California joint powers authority (“Buyer”) Description of Facility: A 0.72 MW solar photovoltaic project (the “Facility”) located in a DAC (as defined herein) within PG&E’s distribution service territory, as further described in Exhibit A.

Milestones:

Milestone Date for
Completion
Evidence of Site Control
CEC Pre-Certification Obtained
Documentation of Conditional Use Permit if required:
[] CEQA, [X] 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
Procure Major Equipment
Financial Close
Expected Construction Start Date
Initial Synchronization 8/30/2025
Network Upgrades completed
Expected Commercial Operation Date 12/31/2025
Delivery Term: Twenty (20) Contract Years
Attachment Staff Report Item 17F
2 Expected Energy:

Contract Year Expected Energy (MWh)
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
Guaranteed Capacity: 0.72 MW
Contract Price: The Contract Price of the Product shall be:

Contract Year Contract Price
1 - 20
Attachment Staff Report Item 17F
3 Metering Arrangement: CAISO Metered Entity
Delivery Point:

Product:
☒ Facility Energy
☒ Green Attributes (Portfolio Content Category 1)
 Capacity Attributes (select options below as applicable) ☐ Energy Only Status
 Full Capacity Deliverability Status
 Ancillary Services
Scheduling Coordinator: Ava Community Energy
Development Security and Performance Security
Facility Type Development Security or Pre-Delivery Term Security Delivery Term Performance
Security
DAC-GT Facilities with
Contract Capacity less than or
equal to three (3) MW
Attachment Staff Report Item 17F

TABLE OF CONTENTS
Page
i
ARTICLE 1 DEFINITIONS .......................................................................................................1

1.1 Contract Definitions............................................................................................. 1

1.2 Rules of Interpretation........................................................................................ 18 ARTICLE 2 TERM; CONDITIONS PRECEDENT.................................................................. 19

2.1 Contract Term.................................................................................................... 19

2.2 Binding Nature................................................................................................... 19

2.3 2.4 Survival ............................................................................................................. 19

2.5 Conditions Precedent ......................................................................................... 19

2.6 Development; Construction; Progress Reports.................................................... 20

2.7 Remedial Action Plan ........................................................................................ 21 ARTICLE 3 PURCHASE AND SALE ..................................................................................... 21

3.1 Purchase and Sale of Product ............................................................................. 21

3.2 Sale of Green Attributes..................................................................................... 21

3.3 Imbalance Energy .............................................................................................. 21

3.4 Ownership of Renewable Energy Incentives ...................................................... 22

3.5 Future Environmental Attributes........................................................................ 22

3.6 Test Energy........................................................................................................ 22

3.7 CEC Certification and Verification .................................................................... 22

3.8 Eligibility........................................................................................................... 23

3.9 California Renewables Portfolio Standard.......................................................... 23

3.10 Compliance Expenditure Cap............................................................................. 23 ARTICLE 4 OBLIGATIONS AND DELIVERIES................................................................... 25

4.1 Delivery............................................................................................................. 25

4.2 Title and Risk of Loss........................................................................................ 25

4.3 Forecasting ........................................................................................................ 25

4.4 Dispatch Down/Curtailment............................................................................... 27

4.5 Reduction in Delivery Obligation....................................................................... 28

4.6 Guaranteed Energy Production........................................................................... 29

4.7 4.8 WREGIS............................................................................................................ 29

4.9 Interconnection Capacity.................................................................................... 30

4.10 Green-E Certification......................................................................................... 30 ARTICLE 5 TAXES................................................................................................................. 30

5.1 Allocation of Taxes and Charges........................................................................ 30

5.2 Cooperation ....................................................................................................... 31

5.3 Ownership.......................................................................................................... 31 ARTICLE 6 MAINTENANCE OF THE FACILITY ................................................................ 31

6.1 Maintenance of the Facility................................................................................ 31

6.2 Maintenance of Health and Safety...................................................................... 31 Attachment Staff Report Item 17F
ii

6.3 Shared Facilities................................................................................................. 31 ARTICLE 7 METERING.......................................................................................................... 32

7.1 Metering ............................................................................................................ 32

7.2 Meter Verification.............................................................................................. 32 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ............................................................ 32

8.1 Invoicing ............................................................................................................ 32

8.2 Payment............................................................................................................. 33

8.3 Books and Records ............................................................................................ 33

8.4 Invoice Adjustments .......................................................................................... 33

8.5 Billing Disputes................................................................................................. 33

8.6 Netting of Payments........................................................................................... 34

8.7 8.8

8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral ................. 35 ARTICLE 9 NOTICES ............................................................................................................. 35

9.1 Addresses for the Delivery of Notices................................................................ 35

9.2 Acceptable Means of Delivering Notice ............................................................. 36 ARTICLE 10 FORCE MAJEURE ............................................................................................ 36

10.1 Definition........................................................................................................... 36

10.2 10.3 Notice for Force Majeure ................................................................................... 37 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION...................................................... 38

11.1 Events of Default ............................................................................................... 38

11.2 Remedies; Declaration of Early Termination Date.............................................. 40

11.3 Termination Payment......................................................................................... 41

11.4 Notice of Payment of Termination Payment....................................................... 41

11.5 Disputes With Respect to Termination Payment................................................. 41

11.6 Rights And Remedies Are Cumulative ............................................................... 41

11.7 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES........... 42

12.1 No Consequential Damages ............................................................................... 42

12.2 Waiver and Exclusion of Other Damages........................................................... 42 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY............................ 43

13.1 Seller’s Representations and Warranties............................................................. 43

13.2 Buyer’s Representations and Warranties ............................................................ 44

13.3 General Covenants............................................................................................. 44

13.4 Workforce Development.................................................................................... 45 ARTICLE 14 ASSIGNMENT .................................................................................................. 45

14.1 General Prohibition on Assignments.................................................................. 45 Attachment Staff Report Item 17F
iii

14.2 Collateral Assignment........................................................................................ 45 ARTICLE 15 DISPUTE RESOLUTION................................................................................... 47

15.1 Governing Law .................................................................................................. 47

15.2 Dispute Resolution............................................................................................. 47 ARTICLE 16 INDEMNIFICATION......................................................................................... 48

16.1 Indemnity ........................................................................................................... 48

16.2 Notice of Claim.................................................................................................. 48

16.3 Failure to Provide Notice ................................................................................... 48

16.4 Defense of Claims.............................................................................................. 48

16.5 Subrogation of Rights ........................................................................................ 49

16.6 Rights and Remedies are Cumulative ................................................................. 49 ARTICLE 17 INSURANCE ..................................................................................................... 49

17.1 Insurance ........................................................................................................... 49 ARTICLE 18 CONFIDENTIAL INFORMATION ................................................................... 50

18.1 Definition of Confidential Information............................................................... 50

18.2 Duty to Maintain Confidentiality........................................................................ 51

18.3 Irreparable Injury; Remedies.............................................................................. 51

18.4 Disclosure to Lenders, Etc.................................................................................. 51

18.5 Press Releases.................................................................................................... 51 ARTICLE 19 MISCELLANEOUS ........................................................................................... 52

19.1 Entire Agreement; Integration; Exhibits............................................................. 52

19.2 Amendments ...................................................................................................... 52

19.3 No Waiver ......................................................................................................... 52

19.4 No Agency, Partnership, Joint Venture or Lease ................................................ 52

19.5 Severability........................................................................................................ 52

19.6 Mobile-Sierra..................................................................................................... 52

19.7 Counterparts....................................................................................................... 53

19.8 Electronic Delivery ............................................................................................ 53

19.9 Binding Effect.................................................................................................... 53

19.10 No Recourse to Members of Buyer .................................................................... 53

19.11 Forward Contract ............................................................................................... 53

19.12 Further Assurances............................................................................................. 53 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
Attachment Staff Report Item 17F
iv
Exhibit F-1 Form of Average Expected Energy Report
Exhibit F-2 Form of Monthly Available Generating Capacity Report Exhibit G Guaranteed Energy Production Damages Calculation Exhibit H 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 Reserved
Exhibit M Reserved
Exhibit N Notices
Exhibit O Reserved
Exhibit P Reserved
Exhibit Q Reserved
Exhibit R Metering Diagram
Exhibit S Workforce Development
Attachment Staff Report Item 17F
1 RENEWABLE POWER PURCHASE AGREEMENT
This Renewable Power Purchase Agreement (“Agreement”) is entered into as of February 22, 2024 (the “Execution 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 Section 1.1.

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 3.10(d). “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. “Alternative Site” has the meaning set forth in Section 2(b) of Exhibit B. “Ancillary Services” has the meaning set forth in the CAISO Tariff.

Attachment Staff Report Item 17F
2 “Approval Condition Precedent” has the meaning set forth in Section 2.3. “Approved Forecast Vendor” means (x) any of 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(c)(ii).
“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 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 (PPT) for the Party sending a Notice, or payment, or performing a specified action. “Buyer” has the meaning set forth on the Cover Sheet.
“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; and
(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, as applicable, including where the 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 or discharged 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 Attachment Staff Report Item 17F
3 Deemed Delivered Energy during such period shall not include any Facility Energy that was not 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, 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, (b) a Buyer Curtailment Order or (c) a Buyer Default; 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 a failure by Buyer (or its agents) to perform Buyer’s obligations hereunder, and includes an Event of Default of Buyer.
“Buyer’s WREGIS Account” has the meaning set forth in Section 4.8(a). “CAISO” means the California Independent System Operator Corporation. “CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
“CAISO Operating Order” means “Operating Instruction” or “Dispatch Instruction” as defined in the CAISO Tariff.
“CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff (the “Tariff”), Business Practice Manuals (“BPMs”), CAISO Operating Agreement, 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. “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 Attachment Staff Report Item 17F
4 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. “COD Delay Damages” means liquidated damages in an amount equal to (a) the total Development Security amount required hereunder, divided by (b) “Commercial Operation” has the meaning set forth in Exhibit B. “Commercial Operation Date” has the meaning set forth in Exhibit B. “Compliance Action” has the meaning set forth in Section 3.10(b). “Compliance Expenditure Cap” has the meaning set forth in Section 3.10(b). “Confidential Information” has the meaning set forth in Section 18.1. “Construction Delay Damages” means liquidated damages in an amount equal to (a) the total Development Security amount required hereunder, divided by (b) “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.

Attachment Staff Report Item 17F
5 “Contract Term” has the meaning set forth in Section 2.1(a). “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. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace the Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating the Agreement. “Cover Sheet” means the cover sheet to this Agreement, which is incorporated into this Agreement.
“CPUC” means the California Public Utilities Commission or any successor agency performing similar statutory functions.
“CPUC Approval” means a final and non-appealable order of the CPUC, on terms and conditions satisfactory to Buyer in its sole discretion, which (a) approves of this Agreement in its entirely, including payments to be made by Buyer, subject to CPUC review of Buyer’s administration of this Agreement; and (b) provides full cost recovery to Buyer for its payments made under this Agreement. CPUC Approval will be deemed to have occurred on the date that a CPUC decision containing such findings becomes final and non-appealable. “CPUC Approval Date” means the date upon which the Approval Condition Precedent has been obtained or waived in writing by both Parties. “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.
“CS-GT” means the Community Solar – Green Tariff (CS-GT) program approved by the CPUC.
“Curtailment Cap” is the yearly quantity per Contract Year, in MWh, equal to by the Guaranteed Capacity.
“Curtailment Order” means any of the following:
(a) CAISO orders, directs, alerts, or provides notice to a Party, including 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;
Attachment Staff Report Item 17F
6 (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. “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.
“DAC” means a disadvantaged community, as identified by the California Environmental Protection Agency’s CalEnviroScreen 3.0 (or the latest version) tool in effective as of the Execution Date.
“DAC-GT” means the Disadvantaged Communities – Green Tariff (DAC-GT) program approved by the CPUC.
“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(c). “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 Facility Energy expressed in MWh that the Facility would have produced and delivered to the Delivery Point, but that is not produced by the Facility during a Buyer Curtailment Period, which amount shall be calculated using the VER Forecast or an industry-standard methodology agreed to by Buyer and Seller that utilizes meteorological conditions on Site as input for the period of time during such Buyer Curtailment Period, less the amount of Facility Energy delivered to the Delivery Point during the Buyer Curtailment Period (or other relevant 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).

Attachment Staff Report Item 17F
7 “Deficient Month” has the meaning set forth in Section 4.8(e). “Delivery Point” has the meaning
“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.
“Disclosing Party” has the meaning set forth in Section 18.2. “Early Termination Date” has the meaning set forth in Section 11.2(a). “Electrical Losses” means all distribution, transmission or transformation losses between the Facility and the Delivery Point, including losses associated with delivery of Facility Energy to the Delivery Point.
“Eligible Intermittent Resource Protocol” or “EIRP” means CAISO’s intermittent resource program established pursuant to the CAISO Tariff, as it may be amended from time to time.
“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 AC electrical energy measured in MWh.
“Energy Supply Bid” has the meaning set forth in the CAISO Tariff. “Event of Default” has the meaning set forth in Section 11.1. “Excess MWh” has the meaning set forth in Exhibit C.
“Execution Date” has the meaning set forth in the Preamble. “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.

Attachment Staff Report Item 17F
8 “Expected Energy” means the quantity of Facility Energy that Seller expects to be able to deliver to Buyer from the Facility during each Contract Year. “Facility” means the renewable energy 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 Facility Energy to the Delivery Point. “Facility Energy” means all Energy that is delivered from the Facility as measured at the Facility Metering Point by the Facility Meter, as such meter readings are adjusted by CAISO for any applicable Electrical Losses or
“Facility Meter” means the CAISO-approved revenue quality meter or meters (with a 0.3 accuracy class), along with a compatible data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, the amount of Facility Energy delivered to the Facility Metering Point for the purpose of invoicing in accordance with Section 8.1. For clarity, the Facility may contain multiple measurement devices that will make up the Facility Meter, and, unless otherwise indicated, references to the Facility Meter shall mean all such measurement devices and the aggregated data of all such measurement devices, taken together. “Facility Metering Point” means the location or locations of the Facility Meter shown on Exhibit R.
“Fast Track Process” has the meaning set forth in Electric Rule 21, as approved by the CPUC.
“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 demonstrate the Facility’s eligibility for the ITC.
“Force Majeure Event” has the meaning set forth in Section 10.1. “Force Majeure Delay” has the meaning set forth in Exhibit B. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility that prevents Seller from generating Energy or making Facility Energy available at the Delivery Point and that is not the result of a Force Majeure Event. “Forecasting Penalty”
Attachment Staff Report Item 17F
9 “Forward Certificate Transfers” has the meaning set forth in Section 4.8(a). “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 does not include 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, (a) if Buyer is the Non-Defaulting Party, the positive 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 and (b) if Seller is the Non-Defaulting Party, the positive difference between the present value of the payments that would be required to be made under any transaction(s) replacing this Agreement and the present value of the payments required to be made during the remaining Contract Term of 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., NP-15), all of which should be calculated for the remaining Contract Term, and include the value of Green Attributes.
“Governmental Authority” means any federal, state, provincial, local or municipal government, any political subdivision thereof or any other governmental, congressional or parliamentary, regulatory, or judicial instrumentality, authority, body, agency, department, bureau, or entity with authority to bind a Party at law, including CAISO; provided, however, that “Governmental Authority” shall not in any event include any Party. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Facility and its displacement of conventional energy generation. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, Attachment Staff Report Item 17F
10 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) 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.
“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, as the same may be adjusted from time to time pursuant to Section 6 of Exhibit B.
“Guaranteed Commercial Operation Date” has the meaning set forth in Section 3(a) of Exhibit B.
“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 Energy, as measured in MWh, equal to the total aggregate Expected Energy for the applicable Performance Measurement Period multiplied by
“Guaranteed Energy Production Damages” has the meaning set forth in Exhibit G. “IA Execution Date” means the date upon which the Interconnection Agreement is executed between Seller and the PTO.
“Imbalance Energy” means the amount of Energy measured in MWh, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy.
“Indemnifiable Loss(es)” has the meaning set forth in Section 16.1. “Initial Synchronization” means the initial delivery of Facility Energy to the Delivery Point.

Attachment Staff Report Item 17F
11 “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 substantially in the form attached as Exhibit I hereto. “Interconnection Agreement” means the interconnection agreement or agreements entered into by Seller or its Affiliate 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 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 Delay” has the meaning set forth in Section 5 of Exhibit B. “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. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “Investment Grade Credit Rating” means a Credit Rating of or higher by S&P or 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 Attachment Staff Report Item 17F
12 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

“Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Buyer, licensed in the State of California. “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 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. “Low-Income Solar Policy Guide” means the Low-Income Solar Policy Guide prepared by GRID Alternatives, as it may be amended from time to time. “Major Subcontractors” means any first-tier subcontractor of Seller with which Seller has an agreement having an aggregate value in excess of 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).

Attachment Staff Report Item 17F
13 “Moody’s” means Moody’s Investors Service, Inc.
“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 Real-Time Market LMP at the Facility’s PNode is less than
“Negative LMP Costs” has the meaning set forth in Exhibit C. “NERC” means the North American Electric Reliability Corporation or any successor entity performing similar functions.
“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 e-mail.
“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 Procedures” has the meaning in the CAISO Tariff. “Pacific Prevailing Time” means the prevailing standard time or daylight savings time, as applicable, in the Pacific time zone.
“Participating Generator Agreement” has the meaning set forth in the CAISO Tariff. “Participating Transmission Owner” or “PTO” means an entity that owns, operates and maintains transmission or distribution lines and 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.
“Performance Security” means (i) cash or (ii) a Letter of Credit in the amount set forth on the Cover Sheet.

Attachment Staff Report Item 17F
14 “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)
(b)
“Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
“Planned Outage” has the meaning set forth in Section 4.5(a). “PNode” has the meaning set forth in the CAISO Tariff.
“Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law.
“Product” has the meaning set forth on the Cover Sheet. “Progress Report” means a progress report including the items set forth in Exhibit E. “Project Labor Agreement” means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project.
“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 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.

Attachment Staff Report Item 17F
15 “PTC” means the production tax credit established pursuant to Section 45 of the United States Internal Revenue Code of 1986.
“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(ii). “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. “Receiving Party” has the meaning set forth in the Section 18.2. “Remedial Action Plan” has the meaning in Section 2.7.
“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.
“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. “Resource ID” has the meaning set forth in the CAISO Tariff. “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 functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time.

Attachment Staff Report Item 17F
16 “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
“Settlement Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff. “Settlement Point” has the meaning set forth in the Exhibit A. “Shared Facilities” means the gen-tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of Energy from the Facility (which is excluded from Shared Facilities) to the point of interconnection, including the Interconnection Agreement itself, that are used in common with third parties.
“Site” means the 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.
“System Emergency” means any condition that requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (a) prevent or limit harm to or loss of life or property, (b) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (c) to preserve Transmission System reliability. “Tax” or “Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Attachment Staff Report Item 17F
17 Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Tax Credits” means the PTC, ITC and any other state, local or federal production tax credit, depreciation benefit, tax deduction or investment tax credit specific to the production of renewable energy or investments in renewable energy facilities. “Terminated Transaction” has the meaning set forth in Section 11.2(a). “Termination Payment” has the meaning set forth in Section 11.3. “Test Energy” means Facility Energy delivered (a) commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Facility Energy to the CAISO and (ii) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to parallel and (b) ending upon the occurrence of the Commercial Operation Date. “Test Energy Rate” has the meaning set forth in Section 3.6. “Transmission Provider” means any entity or entities transmitting or transporting the Facility Energy on behalf of Seller or Buyer to or from the Delivery Point. “Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service downstream from the Delivery Point.
“Ultimate Parent”
“Variable Energy Resource” or “VER” has the meaning set forth in the CAISO Tariff. “VER Forecast” means, for a given period, the forecast of Energy to be produced by the Facility in accordance with the requirements of the CAISO Tariff applicable to Variable Energy Resources.
“WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
“WREGIS Certificate Deficit” has the meaning set forth in Section 4.8(e). “WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of October 2022, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.

Attachment Staff Report Item 17F
18 1.2 Rules of Interpretation. In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:
(a) headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement; (b) words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders; (c) the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified;
(e) a reference to a document or agreement, including this Agreement means such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement;
(f) a reference to a Person includes that Person’s successors and permitted assigns;
(g) the terms “include” and “including” or similar words shall be deemed to be followed by the words “without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided;
(h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; (i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;
(j) references to any amount of money shall mean a reference to the amount in United States Dollars;
(k) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings;
Attachment Staff Report Item 17F
19 (l) “or” is not necessarily exclusive; and
(m) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

ARTICLE 2
TERM; CONDITIONS PRECEDENT

2.1 Contract Term.
(a) The term of this Agreement shall commence on the Execution Date and shall continue until the conclusion of the Delivery Term, subject to any early termination provisions and any contract term extension provisions set forth herein (“Contract Term”); provided, however, that subject to Buyer’s obligations in Section 3.6, Buyer’s obligations to pay for or accept any Product are subject to Seller’s completion of the conditions precedent pursuant to Section 2.5.

2.2 Binding Nature.
(a) Upon Execution Date. This Agreement will be in full force and effect, enforceable and binding in all respects, as of the Execution Date. Unless otherwise specified, all obligations of the Parties are binding through the Delivery Term.

2.3 2.4 Survival. Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality obligations of the Parties under ARTICLE 18 and all indemnity and audit rights shall remain in full force and effect for five (5) years following the termination of this Agreement.

2.5 Conditions Precedent. The Delivery Term shall not commence until Seller completes each of the following conditions:
(a) The Approval Condition Precedent has been satisfied in accordance with Section 2.3;
(b) Seller has delivered to Buyer (i) a certificate from a Licensed Professional Engineer substantially in the form of Exhibit H and (ii) a certificate from a Licensed Professional Attachment Staff Report Item 17F
20 Engineer substantially in the form of Exhibit I setting forth the Installed Capacity on the Commercial Operation Date;
(c) A Participating Generator Agreement and a Meter Service Agreement between Seller and CAISO shall have been executed and delivered and be in full force and effect, and a copy of each such agreement delivered to Buyer;
(d) An Interconnection Agreement between Seller and the PTO shall have been executed and delivered and be in full force and effect and a copy of the Interconnection Agreement delivered to Buyer;
(e) All applicable regulatory authorizations, approvals and permits for operation of the Facility have been obtained
and all conditions thereof that are capable of being
satisfied on the Commercial Operation Date have been satisfied and shall be in full force and effect, and Seller has delivered to Buyer an attestation certificate from an officer of Seller certifying to the satisfaction of this condition;
(f) Seller has received CEC Precertification of the Facility (g) Seller (with the reasonable participation of Buyer) shall have completed all applicable WREGIS registration requirements, including the completion and submittal of all applicable registration forms and supporting documentation, which may include applicable interconnection agreements, informational surveys related to the Facility, QRE service agreements, and other appropriate documentation required to effect Facility registration with WREGIS and to enable Renewable Energy Credit transfers related to the Facility within the WREGIS system;
(h) Seller has delivered the to Buyer in accordance with Section 8.8;
(i) Seller has paid Buyer for all amounts owing under this Agreement, if any, including Construction Delay Damages and COD Delay Damages; and (j) The Facility meets the eligibility criteria for a DAC Green Tariff (“DAC-GT”) project pursuant to CPUC D.18-06-027, D.18-10-007, and Resolution E-4999 in effect as of the Execution Date.

2.6 Development; Construction; Progress Reports. Within fifteen (15) days after the close of (i) each calendar quarter from the first calendar quarter following the Execution Date until the Construction Start Date, and (ii) each calendar month from the first calendar month following the Construction Start Date until the Commercial Operation Date, Seller shall provide to Buyer a Progress Report and agree to regularly scheduled meetings between representatives of Buyer and Seller to review such monthly reports and discuss Seller’s construction progress.

Details regarding the form and content of the Progress Report are set forth in Exhibit E. Seller shall also provide Buyer with any reasonable requested documentation (subject to confidentiality Attachment Staff Report Item 17F
21 restrictions) directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request by Seller. For the avoidance of doubt, Seller is solely responsible for the design and construction of the Facility, including the location of the Site, obtaining all permits and approvals to build the Facility, the Facility layout, and the selection and procurement of the equipment comprising the Facility.

2.7 Remedial Action Plan. If Seller misses Milestones, or misses any by more than , except as the result of Force Majeure Event or Event of Default, Seller shall submit to Buyer, within of such missed Milestone completion date, a remedial action plan (“Remedial Action Plan”), which will describe in detail any delays (actual or anticipated) beyond the scheduled Milestone dates, including the cause of the delay (e.g., governmental approvals, financing, property acquisition, design activities, equipment procurement, project construction, interconnection, or any other factor), Seller’s detailed description of its proposed course of action to achieve the missed Milestones and all subsequent Milestones by the Guaranteed Commercial Operation Date; provided, that delivery of any Remedial Action Plan shall not relieve Seller of its obligation to provide Remedial Action Plans with respect to any subsequent Milestones and to achieve the Guaranteed Commercial Operation Date in accordance with the terms of this Agreement.

ARTICLE 3

PURCHASE AND SALE

3.1 Purchase and Sale of Product.
(a) Subject to the terms and conditions of this Agreement, during the Delivery Term, Buyer will purchase all the Product produced by or associated with the Facility at the Contract Price and in accordance with Exhibit C, and Seller shall supply and deliver to Buyer all the Product produced by or associated with the Facility. At its sole discretion, Buyer may during the Delivery Term re-sell or use for another purpose all or a portion of the Product, provided that no such re-sale or use shall relieve Buyer of any obligations hereunder. During the Delivery Term, Buyer will have exclusive rights to offer, bid, or otherwise submit the Product from the Facility after the Delivery Point for resale in the market, and retain and receive any and all related revenues.

Buyer has no obligation to purchase from Seller any Product for which the associated Facility Energy is not or cannot be delivered to the Delivery Point as a result of an outage of the Facility, a Force Majeure Event, a Curtailment Order, or, if applicable, the curtailment of any transmission required to deliver the Product to the Delivery Point.

3.2 Sale of Green Attributes. During the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase from Seller, all Green Attributes attributable to the Facility Energy generated by the Facility.

3.3 Imbalance Energy. Buyer and Seller recognize that in any given Settlement Period the amount of Facility Energy may deviate from the amount of Energy scheduled with the CAISO.

To the extent there are such deviations, any costs or revenues from such imbalances shall be allocated to the Buyer.

Attachment Staff Report Item 17F
22 3.4 Ownership of Renewable Energy Incentives. Seller shall have all right, title and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives, or values representing the same, are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to same to be assigned or transferred to Seller without delay. Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives.

3.5 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Execution Date, environmental attributes sold under this Agreement are restricted to Green Attributes; however, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Execution Date. Subject to the final sentence of this Section 3.5(a), and Sections

3.5(b) and 3.10, in such event, Buyer shall bear all costs and risks associated with the transfer, qualification, verification, registration and ongoing compliance for such Future Environmental Attributes, but there shall be no increase in the Contract Price. Upon Seller’s receipt of Notice from Buyer of Buyer’s intent to claim such Future Environmental Attributes, the Parties shall determine the necessary actions and additional costs associated with such Future Environmental Attributes. Seller shall have no obligation to alter the Facility, unless the Parties have agreed on all necessary terms and conditions relating to such alteration and Buyer has agreed to reimburse Seller for all costs, losses, and liabilities associated with such alteration. (b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.5(a), the Parties agree to negotiate in good faith with respect to the development of further agreements and documentation necessary to effectuate the transfer of such Future Environmental Attributes, including agreement with respect to (i) appropriate transfer, delivery and risk of loss mechanisms, and (ii) appropriate allocation of any additional costs to Buyer, as set forth above; provided, that the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.

3.6 Test Energy. If and to the extent the Facility generates Test Energy, Seller shall sell and Buyer shall purchase from Seller all Test Energy and any associated Products on an as-available basis. As compensation for such Test Energy and any associated Products, Buyer shall pay Seller an amount equal to received by Buyer
for the Facility Energy and any associated Products (the “Test Energy Rate”). For the avoidance of doubt, the conditions precedent in Section 2.5 are not applicable to the Parties’ obligations under this Section 3.6.

3.7 CEC Certification and Verification. Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Certification and Verification for the Facility throughout the Delivery Term, including compliance with all applicable requirements for certified facilities set forth in the current version of the RPS Eligibility Guidebook (or its successor). Seller shall obtain CEC Precertification by the Commercial Operation Date. Within thirty (30) days after the Commercial Operation Date, Seller shall apply with the CEC for final CEC Certification and Verification. Within one hundred Attachment Staff Report Item 17F
23 eighty (180) days after the Commercial Operation Date, Seller shall obtain and maintain throughout the remainder of the Delivery Term the final CEC Certification and Verification. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s application for CEC Certification and Verification for the Facility.

3.8 Eligibility. Subject to Section 3.10 and the timing requirements of Section 3.7, Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Facility qualifies and is pre-certified or certified by the CEC as an Eligible Renewable Energy Resource as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Facility’s electrical energy output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. The term “commercially reasonable efforts” as used in this Section 3.8 means efforts consistent with and subject to Section 3.10.

3.9 California Renewables Portfolio Standard.
(a) Eligibility. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Facility qualifies and is certified by the CEC as an Eligible Renewable Energy Resource as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Facility’s electrical energy output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. The term “commercially reasonable efforts” as used in this Section 3.9 means efforts consistent with and subject to Section 3.10. [STC 6].
(b) Transfer of Renewable Energy Credits. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. [STC REC-1]. (c) Tracking of RECs in WREGIS. Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable Energy Generation Information System will be taken prior to the first delivery under the Contract. [STC REC-2].

3.10 Compliance Expenditure Cap.

Attachment Staff Report Item 17F
24 (a) The Parties acknowledge that an essential purpose of this Agreement is to provide renewable generation that meets the requirements of the California Renewables Portfolio Standard and that Governmental Authorities, including the CEC, CPUC, CAISO and WREGIS, may undertake actions to implement changes in Law. Seller agree to use commercially reasonable efforts to cooperate with respect to any future changes to this Agreement needed to satisfy requirements of Governmental Authorities associated with changes in Law to maximize benefits to Buyer, including: (i) modification of the description of Green Attributes, as may be required, including updating the Agreement to reflect any mandatory contractual language required by Governmental Authorities; (ii) submission of any reports, data, or other information required by Governmental Authorities; or (iii) all other actions that may be required to assure that this Agreement or the Facility is eligible. as an ERR and other benefits under the California Renewables Portfolio Standard; provided that Seller shall have no obligation to modify this Agreement, or take other actions not required under this Agreement, if such modifications or actions would materially adversely affect, or could reasonably be expected to have or result in a material adverse effect on, any of Seller’s rights, benefits, risks and/or obligations under this Agreement.
(b) If a change in Laws occurring after the Execution Date has increased Seller’s known or reasonably expected costs to comply with Seller’s obligations under this Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of (as applicable) any Product pursuant to
then
the Parties agree that the maximum aggregate amount of costs and expenses Seller shall be required to bear during the Delivery Term to comply with all of such obligations shall be capped at of Guaranteed Capacity in aggregate over the
Contract Term (the “Compliance Expenditure Cap”).
(c) If Seller reasonably anticipates the need to incur out-of-pocket expenses in excess of the Compliance Expenditure Cap in order to take any Compliance Action, Seller shall provide Notice to Buyer of such anticipated out-of-pocket expenses. (d) Buyer will have sixty (60) Days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all of the costs that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs (including lost production, if any), the “Accepted Compliance Costs”), or (2) waive Seller’s obligation to take such Compliance Actions. If Buyer does not respond to a Notice given by Seller under this Section 3.10 within sixty (60) days after Buyer’s receipt of same, Buyer shall be deemed to have waived its rights to require Seller to take the Compliance Actions for the Compliance Action(s) described in the Notice. (e) If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall pay Seller in advance to effect the Compliance Actions.

Under no circumstances shall Seller be obligated to expend more than the Accepted Compliance Costs. When the Compliance Actions are completed, if the Seller’s actual costs are less than the Accepted Compliance Costs, Seller shall refund the excess to Buyer.

Attachment Staff Report Item 17F
25 Any change in the value of any attributes provided by Seller to Buyer resulting from any change in Law shall not affect the Contract Price or Buyer’s obligation to pay Seller for any attributes delivered.

ARTICLE 4

OBLIGATIONS AND DELIVERIES

4.1 Delivery.
(a) Energy. Subject to the provisions of this Agreement, commencing on the Commercial Operation Date through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Point, and Buyer shall take delivery of the Product at the Delivery Point in accordance with the terms of this Agreement. Seller will be responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Facility Energy to the Delivery Point, including without limitation, any operation and maintenance charges imposed by the Transmission Provider directly relating to the Facility’s operations. Buyer shall be responsible for all costs, charges and penalties, if any, imposed in connection with the delivery of Facility Energy at and after the Delivery Point, including without limitation transmission costs and transmission line losses and imbalance charges. The Facility Energy will be scheduled to the CAISO by Buyer (or Buyer’s designated Scheduling Coordinator) in accordance with Exhibit D.
(b) Green Attributes. All Green Attributes associated with the Facility during the Delivery Term are exclusively dedicated to and vested in Buyer. Seller represents and warrants that Seller holds the rights to all Green Attributes from the Facility, and Seller agrees to convey and hereby conveys all such Green Attributes to Buyer as included in the delivery of the Product from the Facility.

4.2 Title and Risk of Loss.
(a) Energy. Title to and risk of loss related to the Facility Energy, shall pass and transfer from Seller to Buyer at the Delivery Point. Seller warrants that all Product delivered to Buyer is free and clear of all liens, security interests, claims and encumbrances of any kind. (b) Green Attributes. Title to and risk of loss related to the Green Attributes shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS. Seller shall cooperate reasonably with Buyer, at Buyer’s expense, in order for Buyer to register, hold, and manage such Green Attributes in Buyer’s own name and to Buyer’s accounts.

4.3 Forecasting. Seller shall provide the forecasts described below at its sole expense and in a format acceptable to Buyer (or Buyer’s designee). Seller shall use reasonable efforts to provide forecasts that are accurate and, to the extent not inconsistent with the requirements of this Agreement, shall prepare such forecasts, or cause such forecasts to be prepared, in accordance with Prudent Operating Practices.
(a) Annual Forecast of Energy. No less than forty-five (45) days before (i) the first day of the first Contract Year of the Delivery Term and (ii) at the beginning of each calendar Attachment Staff Report Item 17F
26 year for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer and the SC (if applicable) a non-binding forecast of each month’s average-day expected Facility Energy, by hour, for the following calendar year in a form substantially similar to the table found in Exhibit F-1, or as reasonably requested by Buyer.
(b) Monthly Forecast of Energy and Available Generating Capacity. No less than thirty (30) days before the beginning of Commercial Operation, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer and the SC (if applicable) a non-binding forecast of the hourly expected Energy and Available Generating Capacity for each day of the following month in a form substantially similar to the table found in Exhibit F-2 (“Monthly Delivery Forecast”). (c) EIRP; VER Forecast. From the commencement of the Delivery Term until the Facility obtains EIRP certification, Seller shall provide a VER Forecast in accordance with the requirements set forth in the CAISO Tariff. In the event that EIRP and/or any protocols relating thereto are terminated or are otherwise not applicable to the Facility, Seller shall thereafter be responsible for providing Buyer with Day-Ahead Forecasts and Real-Time Forecasts in accordance with the following:
(i) Day-Ahead Forecast. If forecasts are required in accordance with Section 4.3(c), by 5:30 AM Pacific Prevailing Time on the Business Day immediately preceding the date of delivery, or as otherwise specified by Buyer consistent with Prudent Operating Practice, Seller shall provide Buyer with a non-binding forecast of (A) Available Generating Capacity and (B) hourly expected Energy, in each case, for each hour of the immediately succeeding day (“Day-Ahead Forecast”). A Day-Ahead Forecast provided in a day prior to any non-Business Day(s) shall include non-binding forecasts for the immediate day, each succeeding non-Business Day and the next Business Day. Each Day-Ahead Forecast shall clearly identify, for each hour, Seller’s best estimate of (X) the Available Generating Capacity and (Y) the hourly expected Energy. These Day-Ahead Forecasts shall be sent to Buyer’s on-duty Scheduling Coordinator. If Seller fails to provide Buyer with a Day-Ahead Forecast as required herein for any period, then for such unscheduled delivery period only Buyer shall rely on any Real-Time Forecast provided in accordance with Section 4.3(c)(ii) or the Monthly Delivery Forecast or Buyer’s best estimate based on information reasonably available to Buyer.
(ii) Real-Time Forecasts. If Real-Time Forecasts are required in accordance with the foregoing, Seller shall notify Buyer of any changes from the Day-Ahead Forecast of one (1) MW or more in (i) Available Generating Capacity or (ii) hourly expected Energy, in each case, whether due to Forced Facility Outage, Force Majeure Event or other cause, as soon as reasonably possible, but no later than one (1) hour prior to the deadline for submitting Schedules to the CAISO in accordance with the rules for participation in the Real-Time Market.

If the Available Generating Capacity or hourly expected Energy changes by at least one (1) MW as of a time that is less than one (1) hour prior to the Real-Time Market deadline, but before such deadline, then Seller must notify Buyer as soon as reasonably possible. Such Real-Time Forecasts of Energy shall be provided by an Approved Forecast Vendor and shall contain information regarding the beginning date and time of the event resulting in the change in Available Generating Capacity or hourly expected Energy, as applicable, the expected end date and time of such event, and any other information required by the CAISO or reasonably requested by Buyer. With respect Attachment Staff Report Item 17F
27 to any Forced Facility Outage, Seller shall use best efforts to notify Buyer of such outage within ten (10) minutes of the commencement of the Forced Facility Outage. Seller shall inform Buyer of any developments that will affect either the duration of such outage or the availability of the Facility during or after the end of such outage. These Real-Time Forecasts shall be communicated in a method reasonably acceptable to Buyer; provided that Buyer specifies the method no later than five (5) Business Days prior to the effective date of such requirement. In the event Buyer fails to provide Notice of an acceptable method for communications under this Section 4.3(c)(ii), then Seller shall send such communications by telephone and email to Buyer. (d) Forced Facility Outages. Notwithstanding anything to the contrary herein, Seller shall promptly notify Buyer’s on-duty Scheduling Coordinator of Forced Facility Outages and Seller shall keep Buyer informed of any developments that will affect either the duration of the outage or the availability of the Facility during or after the end of the outage. (e)
(f) CAISO Tariff Requirements. Subject to the limitations expressly set forth in Section 3.10, to the extent such obligations are applicable to the Facility, Seller will comply with all applicable obligations for Variable Energy Resources under the CAISO Tariff and the Eligible Intermittent Resource Protocol, including providing appropriate operational data and meteorological data, and will fully cooperate with Buyer, Buyer’s SC, and CAISO, in providing all data, information, and authorizations required thereunder.

4.4 Dispatch Down/Curtailment.
(a) General. Seller agrees to reduce the amount of Facility Energy produced by the Facility, by the amount and for the period set forth in any Curtailment Order, Buyer Curtailment Order, or notice received from CAISO in respect of a Buyer Bid Curtailment. (b) Buyer Curtailment. Buyer shall have the right to order Seller to curtail deliveries of Facility Energy through Buyer Curtailment Orders, provided that Buyer shall pay Seller for all Deemed Delivered Energy associated with a Buyer Curtailment Period in excess of the Curtailment Cap at the Contract Price in accordance with Exhibit C. (c) Failure to Comply. If Seller fails to comply with a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, then,
Attachment Staff Report Item 17F
28 (d) Seller Equipment Required for Curtailment Instruction Communications.

Seller shall acquire, install, and maintain such facilities, communications links and other equipment, and implement such protocols and practices, as necessary to respond and follow instructions, including an electronic signal conveying real time and intra-day instructions, to operate the Facility as directed by the Buyer in accordance with this Agreement or a Governmental Authority, including to implement a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order in accordance with the then-current methodology used to transmit such instructions as it may change from time to time. If at any time during the Delivery Term Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with then-current methodologies, Seller shall take the steps necessary to become compliant as soon as reasonably possible. Seller shall be liable pursuant to Section 4.4(c) for failure to comply with a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, during the time that Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with then-current methodologies. For the avoidance of doubt, a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order communication via such systems and facilities shall have the same force and effect on Seller as any other form of communication.

4.5 Reduction in Delivery Obligation. For the avoidance of doubt, and in no way limiting Section 3.1 or Exhibit G:
(a)
(b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage.
(c) System Emergencies; Curtailment. Seller shall be permitted to reduce deliveries of Product during any period of System Emergency, Buyer Curtailment Period or upon Notice of a Curtailment Order pursuant to the terms of this Agreement, the Interconnection Agreement or applicable tariff.
(d) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event.
(e) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2.

Attachment Staff Report Item 17F
29 4.6 Guaranteed Energy Production. Seller shall be required to deliver to Buyer no less than the Guaranteed Energy Production in each Performance Measurement Period. For purposes of determining whether Seller has achieved the Guaranteed Energy Production, Seller shall be deemed to have delivered to Buyer all (1) Deemed Delivered Energy and (2) Lost Output from the Performance Measurement Period. If Seller fails to achieve the Guaranteed Energy Production amount in any Performance Measurement Period, Seller shall pay Buyer the Guaranteed Energy Production Damages calculated in accordance with Exhibit G.

4.7 4.8 WREGIS. Seller shall, at its sole expense, take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Facility Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefit. Seller shall transfer the Renewable Energy Credits to Buyer. Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. Seller shall be deemed to have satisfied the warranty in Section 3.9(c), provided that Seller fulfills its obligations under Sections 4.8(a) through (f) below. In addition:
(a) Prior to the Commercial Operation Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using “Forward Certificate Transfers” (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the Facility with WREGIS, establishing and maintaining Seller’s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account.
(b) Seller shall cause Forward Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules. Since WREGIS Certificates will only be created for whole MWh amounts of Facility Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate.
(c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Facility Energy for such calendar month. (d) Due to the ninety (90) day delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 8.2, Buyer shall make an invoice payment for a given month in accordance with Section 8.2 before the WREGIS Certificates for such month are formally transferred to Buyer in accordance with the WREGIS Operating Rules and this Attachment Staff Report Item 17F
30 Section 4.8. Notwithstanding this delay, Buyer shall have all right and title to all such WREGIS Certificates upon payment to Seller in accordance with Section 8.2. (e) A “WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Facility Energy for the same calendar month (“Deficient Month”) caused by an error or omission of Seller. (f) If WREGIS changes the WREGIS Operating Rules after the Execution Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.8 after the Execution Date, the Parties promptly shall modify this Section 4.8 as reasonably required to cause and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Facility Energy in the same calendar month.