Agenda packet — Ava Community Energy Board of Directors, November 20, 2024 (part 1 of 2)

Board of Directors Meeting
Wednesday, November 20, 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:
• Albany Community Center 1249 Marin Ave, Albany, CA 94706 • 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
• 33349 9th Street (back office) Union City, CA 94587
• 24027 Wilcox Ln, Hayward, CA 94541
• 1755 Harvest Landing Lane, Tracy, CA 95376
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. Welcome & Roll Call

2. Pledge of Allegiance
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CONSENT AGENDA

4. Approval of Minutes from September 18, 2024

5. Contracts Entered into (Informational Item)

6. Executive Committee Appointment Recommendation
Appoint Director Andersen to the Executive Committee

7. Treasurer’s Report
Quarterly report of Ava’s cash balance

8. Resilience Hub Technical Assistance
Authorize CEO to negotiate and execute and amendment to NV5 contract

9. SolarAPP+ Contract
Authorize CEO to negotiate and execute a contract with SolarAPP Foundation to build out heat pump water heater permit streamlining features in the existing SolarApp+ software

10. Energy Efficiency Regulatory Reporting Services
Authorize CEO to negotiate and execute a contract with Frontier Energy

11. Extension of SMUD Contract
Request to extend agreement with SMUD for CCDMS services

12. Stadium Contract Approval
Swag vendor contract

REGULAR AGENDA

13. CEO Report

14. CAC Chair Report.

15. 2024 Legislative Year in Review (Informational Item) 2024 Legislative session update

16. CMF Greenbridge PPA (Action Item)
Review of PPAs to support Critical Municipal Facilities Ava Community Energy
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17. Fiscal Year 2023-2024 Financial Audit (Informational Item) Present the findings from the fiscal year ending June 30, 2024, financial audit

18. Budget Surplus Allocations (Informational Item)
Budget to Actuals, surplus waterfall allocations, and reserve fund balance

19. Bill Credits (Action Item)
Surplus revenue bill credits

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

21. Adjourn
The next Board of Directors meeting will be held on Wednesday, December 18, 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, September 18, 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:
• Clipper Club - 5 Captain Dr. Emeryville, CA 94608
• Dublin City Hall - 100 Civic Plaza, Dublin, CA 94568
• Conference Room - Irvington Community Center 41885 Blacow Rd. Fremont, CA 94538
• 1755 Harvest Landing Lane, Tracy, CA 95376
• C. Baldwin (Lobby), Curio Collection by Hilton, 400 Dallas St, Houston, TX 77002 • 24015 Wilcox Ln, Hayward, CA 94541
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.

Igor Tregub was sworn in as the Member for the City of Berkeley.

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1. Welcome & Roll Call

Present: Members: Marquez (Alameda County), Tregub (Berkeley), Hu (Dublin), Kaur (Emeryville), Cox (Fremont), Roche (Hayward), Barrientos (Livermore), Hannon (Newark), Kalb (Oakland), Andersen (Piedmont), Gonzalez (San Leandro), Wright (Stockton), Bedolla (Tracy), Patino (Union City), CAC Vice-Chair Souza (Community Advisory Committee), Vice-Chair Tiedemann (Albany) and Chair Balch (Pleasanton) Alternate Member Hannon served as the alternate for Member Jorgens (Newark).

Not Present: Member Diallo (Lathrop)

2. Pledge of Allegiance
Member Tregub 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. (5:29) Public Comment - Barbara Stebbins from the Local Clean Energy Alliance (LCEA) clarified that LCEA did not initiate the 95-email write-in campaign opposing PG&E’s nuclear allocation. Barbara Stebbins stated that the East Bay Clean Power Alliance submitted a separate petition in opposition to the allocation.

4. Closed Session Public Comment

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

6. General Report Out of Closed Session
There were no items to report out of Closed Session.

CONSENT AGENDA

7. Approval of Minutes from July 17, 2024

8. Contracts Entered into (Informational Item)

9. EV Charging Community Investment Grant
Consider authorizing the CEO to negotiate and execute two grant agreements for the purpose of installing community-owned Electric Vehicle (“EV”) charging sites.

10. Solar and Storage Program Design Consultant
Consider contracting with consultant to support Ava’s Solar & Storage program design Ava Community Energy
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process

11. Ballot Initiative Discussion
Consider taking a position on Proposition 4

12. Hourly Pricing Pilots
Consider resolution to participate in hourly flex pricing pilots with PG&E. (1:06:47) Member Tregub noted that the Susan Silber’s name is spelled incorrectly in the July 17, 2024 minutes.
(1:07:47) Public Comment – Jim Lutz noted that the Community Advisory Committee discussed Consent Item 11 but did not vote on it.
(1:09:33) Member Kalb motioned to approve the Consent Agenda including Member Tregub’s correction to the minutes. Member Marquez seconded the motion, which was approved 15/0/0/0/2 (Yes/No/Abstain/Recuse/Not Present):

Yes: Members: Marquez, Tregub, Kaur, Cox, Roche, Barrientos, Hannon, Kalb, Andersen, Gonzalez, Wright, Bedolla, Patino, Vice-Chair Tiedemann and Chair Balch
No: none
Abstain: none
Recuse: none
Not Present: Members: Hu and Diallo

REGULAR AGENDA

13. (1:11:14) CEO Report
CEO Howard Chang provided an update on various activities and developments within the organization. He highlighted discussions from recent subcommittee meetings, including resilience initiatives and fiscal updates, and introduced a new Director of Clean Energy Structured Finance. He detailed ongoing community grant programs, a Habitat for Humanity project supporting all-electric homes, the launch of a revamped website with city-specific resources, and outreach efforts through community events. Additionally, CEO Chang noted mid-year rate adjustments that reduced generation costs while pointing out significant increases in PG&E delivery rates. (1:24:28) Public Comment: Jim Lutz shared his analysis of a decade's utility bills, noting that while Ava’s generation rates have remained stable, total electricity costs have tripled since 2018.

14. (1:22:50) CAC Chair Report
Vice-Chair Souza reported that the CAC unanimously supported the hourly pricing pilot program. Vice-Chair Souza also stated that the CAC did not take a position on Proposition 4.
(1:28:43) Public Comment – Eric Brooks spoke in opposition to Proposition 4, stating that it lacks accountability and contains language in its wildfire and forest management Ava Community Energy
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sections that could promote harmful logging practices.

15. Nuclear Allocation Decision (Action Item)
Consider Diablo Canyon Nuclear Allocation
CEO Howard Chang outlined the extension of the Diablo Canyon Nuclear Power Plant's operations to 2029/2030 and presented three scenarios for Ava Community Energy to consider: rejecting the nuclear allocation, accepting it with cost-saving adjustments, or using it to offset system power while achieving greater GHG reductions.

The Board of Directors engaged in a thorough discussion about whether to accept the nuclear allocation from Diablo Canyon.

Board members discussed:
• The potential for significant cost savings;
• Nuclear safety and waste disposal;
• Reductions in greenhouse gas emissions, and decreased reliance on fossil fuels, particularly benefiting frontline communities exposed to pollution from gas power plants;
• The potential delay in investments in local renewable energy; • Nuclear power's role as a transitional solution to meet clean energy goals; • The risk of undermining Ava’s reputation as a leader in clean, renewable energy; public opposition;
• Alignment with PCIA charges already paid by customers; • The need for transparency in the energy mix, and
• The broader environmental justice impacts on vulnerable communities.

Public comment was provided by 22 members of the public:
(2:21:43) Public Comment – Jesse Gutierrez
(2:24:06) Public Comment – Nick Pilch
(2:25:54) Public Comment – Colin Cook Miller
(2:27:37) Public Comment – Emi Yoko.
(2:29:32) Public Comment – Cynthia Landry
(2:31:25) Public Comment – Ryan Pickering
(2:33:24) Public Comment – Brenden Pittman
(2:35:12) Public Comment – Diego Juarez.
(2:36:55) Public Comment – Ayla Peters Paz
(2:38:37) Public Comment – Hernando Sanchez
(2:40:39) Public Comment – Howard Matis
(2:42:07) Public Comment – Beth Weinberger
(2:43:17) Public Comment – Eric Brooks
(2:45:03) Public Comment – James Hopf Byrne
(2:46:13) Public Comment – Imari Mars Keith
(2:47:50) Public Comment – Guido Núñez-Mujica
(2:49:24) Public Comment – Emily Ross
(2:51:04) Public Comment – Eva Byrne
(2:52:35) Public Comment – Alice Sung
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(2:54:25) Public Comment – Nia Tisdell
(2:55:57) Public Comment – Paris Ortiz-Wines
(2:57:18) Public Comment – Timothy Smith
Topics addressed in nuclear allocation decision public comment:
• Potential cost savings from accepting the nuclear allocation • Health and environmental risks
• Emissions reduction from decreased use of unspecified power; • Nuclear is not truly carbon-free – nuclear energy’s lifecycle includes carbon emissions during construction, operation and waste management • Reliability of nuclear energy
• Community opposition
• Energy portfolio transparency - by reducing reliance on out-of-state, carbon-intensive energy sources. • Shifting public support towards nuclear
• Public perception of support for PG&E’s practices
• Economic accessibility for low-income and immigrant communities • Safety concerns
• Distraction from focus on investment in local renewables Member Roche motioned to accept the nuclear allocation and Scenario Two.

Member Tiedemann seconded the motion, which was approved 10/5/0/0/2 (Yes/No/Abstain/Recuse/Not Present):

Yes: Members: Cox, Roche, Barrientos, Hannon, Andersen, Gonzalez, Wright, Patino, Vice-Chair Tiedemann and Chair Balch
No: Members: Marquez, Tregub, Kaur, Kalb and Bedolla
Abstain: none
Recuse: none
Not Present: Members Hu and Diallo

16. Board Member and Staff Announcements including requests to place items on future Board agendas
• Member Wright requested to agendize taking a position on the continued operation of Diablo Canyon.
• Chair Balch stated the October Board of Directors meeting may be canceled due to a scheduling conflict with the League of California Cities Conference. • Member Tregub requested to agendize discussions with staff about options to accelerate transition to 100% renewable energy.
• Member Kalb requested to agendize a 2024 legislative review at the October or November meeting.
• Member Kalb also requested to agendize a “sneak peek” discussion about key energy issues for CCAs in 2025, including opportunities for Ava to collaborate with key stakeholders.
• Member Barrientos thanked Ava for being a sponsor of the Livermore Lion’s Club 100th year anniversary.
• Member Barrientos also requested to follow up with staff about grant opportunities from the City of Livermore.

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• Member Tregub spoke in support of SP 1374.
• Member Gonzalez thanked Ava for its presence at San Leandro’s OkDROberfest on September 14.
• Member Marquez spoke about “Science in the Park”, a free family event at Cal State East Bay on October 5, 2024 from 9am-3pm.

17. Adjourned at 9:48pm.

The next Board of Directors meeting will be held on Wednesday, October 16, 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
Consent Item 5
Consent Item 5
To: Ava Community Energy Authority
From: Howard Chang, Chief Executive Officer
Subject: Contracts Entered Into
Date: November 20, 2024
_____________________________________________________________________

RECOMMENDATION
Accept the CEO’s report on contracts that Ava Community Energy has entered into, as required by the Administrative Procurement Policy, from September 12, 2024, through November 13, 2024;
C-2024-126 City of Piedmont First Amendment to Charging Station License Agreement, amends all references to East Bay Community Energy Authority (EBCE) deleted and replaced with Ava Community Energy (Ava), memorializes Host's appropriation of funds for the Project and ADA Improvements, and document Host's consent to and approval of Ava's sublicense of the Premises (Magnolia Ave at Highland Ave, Piedmont, CA 94611), effective August 19, 2024.

C-2024-127 Aurora Energy Research Disclosure Fee Letter, allows sharing of CAISO market forecasts through 2050 for Day-Ahead Wholesale Prices and Day-Ahead Ancillary Service Prices at hourly granularity for the following scenarios: Central, Low, High, Clean Ambition, Messy Transition, and IRP with First Principles Advisory Group, Professor Neha Patankar and Manar Jaradat PhD student (Binghamton University) for Integrated Resource Plan (IRP) filing, with a disclosure fee of $5,000, effective August 23, 2024.

C-2024-128 Kitchen on Fire (Oakland, CA) In-Person Event Contract, for cooking event to be held on September 26, 2024, for 6 people at a cost of $1,850.

Consent Item 5
C-2024-129 Sixth Dimension PMCM Inc. Amendment Letter, adds $2,152.50 for providing cleaning services by subconsultant Hernandez Janitorial effective September 1, 2024.

C-2024-130 EcoMotion First Amendment to CSA, adds $75,000 in additional compensation and extends the term through December 31, 2025.

C-2024-131 Zoom Order Form provides 36-month Zoom Workplace Business service for 125 users for a total of $38,255.80, effective September 10, 2024.

C-2024-132 MissionCTRL Third Amendment to CSA, adds $98,000 in compensation for a total amount not to exceed $394,000, extends the term of the Agreement to June 30, 2025, and updates the hourly rate of compensation.

C-2024-133 Center for Sustainable Energy Amendment #1 to Incentive Program Implementation Services Agreement, all references to East Bay Community Energy Authority and EBCE removed and replaced with Ava Community Energy Authority and Ava; 7.C Grant Agreement, 8.A Term, 11.C Notices, and 11.G Entire Agreement were removed and replaced in their entireties.

C-2024-134 BlocPower Energy Services 3 Commercial Pledge and Security Agreement, provides additional security to the Secured Party for the Loan and other obligations of the Pledgor to the Secured Party under the Loan Agreement and the Loan Documents.

C-2024-135 BlocPower Energy Services 3 Amendment #1 to the Amended and Restated Loan Agreement, makes certain clarifications regarding payment dates and corrects the maturity date to December 31, 2037.

C-2024-136 BlocPower Energy Services 3 Closing Certificates, Incumbency and Signature Certificate of BlocPower Energy Services 3, LLC and Certificate of the Borrower Pursuant to the Loan Agreement, both dated September 5, 2024 C-2024-137 BlocPower Energy Services 3 Promissory Note, BlocPower Energy Services 3, LLC promises to pay Ava the sum of $284,053.49, plus accrued interest, and other charges. September 5, 2024, Promissory Note replaces the February 28, 2022, Note in its entirety. Final Payment Date is December 31, 2037.

C-2024-138 Pivotal Talent Search Third Amendment to CSA, adds $95,000 in additional compensation for Fiscal Year 2024-2025.

C-2024-139 Empathy Services Agreement (New York, NY) Order Form provides Ava with services that help people navigate various aspects of the loss of a loved one, as well as to assist with planning for end-of-life, by way of providing products developed by Empathy for a one-year term with a flat annual fee of $4,000.

Consent Item 5
C-2024-140 Brandt Energy Strategies (Lodi, CA) Consulting Services Agreement provides for legislative policy & advocacy services through June 30, 2025, with compensation not to exceed $15,000.

C-2024-141 Energy and Environmental Economics (San Francisco, CA) Consulting Services Agreement provides technical energy and regulatory analytical services, effective April 1, 2024, through June 30, 2025, with compensation not to exceed $100,000.

C-2024-142 Sacramento Municipal Utility District (SMUD) Amendment 34 to Exhibit A, Task Order 2, updates the 4 in 1 webform for a total fee of $6,500.

C-2024-143 Pizzaiolo (Oakland, CA) Contract, event on Thursday December 5, 2024, for 120 guests, between 5:30PM to 12:00AM, with total bill including labor, food, beverages, service charge and tax, for a total due of $23,814.

C-2024-144 The Communication Protocol (Oyster Bay, New York) Online Training Program License Agreement provides license to online education program in the field of communication skills and personal development, effective October 1, 2024, for one year, with total compensation of $33,704 for 30 seats.

C-2024-145 Wavelength Automation, LLC/CapitolTrack (Sacramento, CA) Subscription Form provides subscription for legislative tracking services, effective November 1, 2024, for a one-year term, with a cost of $2,148.

C-2024-146 Keyes and Fox Joint Representation Agreement, Keyes and Fox will represent Ava, City of San Jose, CPA, MCE, PCE, SCP, and SDCP before the CPUC in Rulemaking 23-12-008.

C-2024-147 Ava, BART, CCTA, SFMTA, MTC Memorandum of Agreement, MTC and BART are primary applicants for a Climate Pollution Reduction Grant to be awarded by the Environmental Protection Agency, and this Agreement outlines how the parties will deliver the project as described in the application.

C-2024-148 Apple Valley Choice Energy, CleanPowerSF, Clean Power Alliance of Southern California, Desert Community Power, EBCE, Lancaster Choice Energy, Marin Clean Energy, Monterey Bay Community Power, Peninsula Clean Energy, Pioneer Community Energy, Pico Rivera Innovative Municipal Energy, Rancho Mirage Energy Authority, Redwood Coast Energy Authority, San Jacinto Power, San Jose Clean Energy, Silicon Valley Clean Energy, Solana Energy Alliance, Sonoma Clean Power, Valley Clean Energy, Western Community Energy, B-Proud (Baldwin Park Resident Owned Utility District) Clean Energy Alliance, Pomona Choice Energy, San Diego Community Power and the California Community Choice Association, Joint Defense and Common Interest Agreement put in place by CalCCA allows the undersigned to jointly engage counsel for litigation, Government Action, common legal issues, in the Consent Item 5
effort to reduce unnecessary duplication of effort, updated version includes only includes updates signatures, including for Ava.

C-2024-149 California First Aid and Safety (San Francisco) Consulting Services Agreement for the purchase of first aid supplies for Ava office and for first aid classes for Ava staff through June 30, 2025, with compensation not to exceed $20,000.

C-2024-150 Pacific Gas & Electric Exhibit G to Charging Station Master Site License Agreement authorizes PG&E to install the necessary infrastructure in Hayward under the Charging Station Master Site License Agreement.

C-2024-151 First Principles Advisory Amendment authorizes an additional Subconsultant.

C-2024-152 ICF Resources Consulting Services Agreement services related to the design of a solar and storage incentive program, through December 31, 2026, with compensation not to exceed $146,000.

C-2024-153 Aurora Energy Research Advisory Services Supplement No. 1 adds $10,000 to the compensation for one-time additional forecasted price data.

C-2024-154 Dakota Press Second Amendment to Consulting Services Agreement adds language regarding confidentiality.

C-2024-155 Oakstop Team Building Event Agreement 11/5/2025 event for up to 30 guests in the Manning Gallery Suite at a cost of $825.

C-2024-156 Rising Sun Center for Opportunity (Oakland, CA) Grant Agreement provides funding in the amount of $300,000 over 3 years for the purpose of funding clean energy workforce development efforts within Alameda Country and the City of Stockton
Consent Item 13
Consent Item 6
To: Ava Community Energy Authority
From: Adrian Bankhead, Clerk of the Board
Subject: Executive Committee Appointment Recommendation Date: November 20, 2024
__________________________________________________________________ Summary/Recommendation
Appoint Director Andersen to the Executive Committee by motion.

Financial Impact
N/A
Analysis and Context
Piedmont is expected to reappoint Director Andersen to represent the city. Staff recommends that Director Andersen be appointed to the Executive Committee in light of committee member turnover.

Consent Item 7
Consent Item 7
To: Ava Community Energy Authority
From: Howard Chang, Chief Executive Officer
Subject: Treasurer’s Report (Informational Item)
Date: November 20, 2024
__________________________________________________________________ Recommendation
Receive report on Ava’s cash position.

Background and Discussion
For the quarter ending September 30, 2024, Ava has maintained a positive cash balance on all Ava bank accounts. Below is a summary of account balances, cash received, and outstanding loan balances.

Account Balances as of 9/30/2024
Account Amount
Internal Operating $ 4,194,010
Operating Fund $ 126,867,223
Lockbox $ 24,761,552
US Bank $ 349,697,730
Money Market $ 79,975,245
Insured Cash Sweep Checking $ 110,296,127
Insured Cash Sweep Saving $ 44,632
Wells Fargo $ 495,357
CDARS $ 20,030,952
Total $ 716,362,828
Consent Item 7
Cash Received by Month into Lockbox Account
Outstanding Loan Balances:

Union Bank Credit Facility: $0.00
Customer Delinquency:

As of September 30, 2024
31 – 60 Days: $ 6,187,100
61 – 90 Days: $ 3,349,725
91 - 120 Days: $ 2,448,754
120+ Days: $ 44,504,775
July 2024 $ 89,763,013
Aug 2024 $ 102,027,848
Sept 2024 $ 92,597,607
Total $ 284,388,468
Consent Item 8
Consent Item 8
To: Ava Community Energy Authority
From: Feliz Ventura, Sr Manager Programs
Subject: Resilience Hub Program Management and Technical Assistance Date: November 20, 2024
__________________________________________________________________ Summary/Recommendation
Approve a Resolution authorizing the CEO to negotiate and execute an amendment (“First Amendment”) to the Consulting Services Agreement (“CSA”) with NV5 for the purposes of: (1) adding services to the scope of work for program development, management, and technical assistance support for the Community Resilience Hub Initiative (“Initiative”); (2) extend the CSA through December 2027; and (3) add $2,000,000 in compensation for a total CSA amount not-to-exceed $2,250,000.

Fiscal Impact
This First Amendment to the CSA shall increase the existing contract amount of $250,000 by $2,000,000 for a total not-to-exceed amount of $2,250,000. Of this funding, Ava has already allocated $2,000,000 in the FY 23/24 budget.

Analysis and Context
As Ava advances towards its goal to “electrify everything,” incorporating local energy resilience into planning and operations is becoming increasingly critical. Energy resilience is a growing priority for Ava’s communities, particularly due to past power outages and planned shutoffs. Ava currently operates the Critical Municipal Facilities (CMF) Program, offering technical and development support to municipal buildings.

Both Ava’s Board and members of the public have voiced the need to expand on this Consent Item 8
program to include community-owned sites. To do this, Ava will leverage experience from its CMF program to offer support to community sites interested in becoming resilience hubs – sites that can provide community energy resilience during emergencies.

To address these needs, Ava is pursuing the Initiative to identify and provide key energy-related expertise to community-based sites interested in developing resilience hubs, to be equipped with solar and storage solutions. The objectives of the Initiative are to: (1) identify potential resilience hub sites; (2) provide energy-related technical assistance to support the development of solar and storage as a local energy resource that would support the energy resilience needs of the local community; and (3) provide incentives for the installation and use of solar and storage at resilience hub sites through Ava’s soon-to-be launched Solar and Storage Incentive Program.

Ava’s support services for the Initiative will be offered through three pillars:

1. Community Outreach & Identification: Ava will collaborate with a Community Grant Partner(s) to identify a pipeline of resilience hubs sites through community outreach, education, and research efforts.

2. Technical Assistance: Ava will partner with a technical assistance engineering firm (NV5) to provide support and guidance to community-based sites, helping them transition from resilience concept plans to identification of key parameters needed for solar and storage project development.

3. Solar and storage incentives: Ava will provide community resilience hubs with solar and storage incentives for installed equipment and ongoing incentives for integration with Ava’s DERMS.

Vendor Needs and Bid Review
While the Community Grantee(s) will be selected through a Community Grant Request for Proposal, Ava separately sought a vendor to provide technical assistance services and support with overall program development and management. On July 23, 2024, Ava issued a bid specification for the following services:

Technical Assistance: Vendor to provide services to potential resilience hub sites to assist in moving a conceptual plan into a more targeted plan for energy resilience, including:
• Site review: Initial assessment of site’s ability to host solar and storage • Conceptual designs: Preliminary solar & storage designs based on site needs and constraints
• Bid reviews: Assessment of offers received by sites for the installation of Solar + Storage systems
Consent Item 8
• Grant support: Grant identification and tracking for funding opportunities for energy resilience
Program Development and Management: Vendor to provide overall coordination of the Initiative to ensure a smooth and efficient process and customer experience across one or more of the phases, including:
• Ensuring effective coordination between the Grantee(s) and Technical Assistance
• Designing and managing the application process and customer journey for accessing services
• Developing and refining eligibility criteria for Technical Assistance applicants • Providing guidance and support to applicants throughout the process Ava received six conforming bids for the Program Management and Technical Assistance services. Ava evaluated bids based on the following criteria:

1. technical services for community/energy resilience solar/storage projects and relevant work examples;

2. program management and development experience;

3. expertise of proposed team and cohesive staffing plan;

4. understanding of Ava’s use case and approach to manage the Initiative;

5. preference for vendor located in Ava’s service territory; and

6. extent of redlines to Ava’s CSA.

A summary of the selected respondent’s strengths and weaknesses are below:

Bidder Strengths Weakness
NV5 • Extensive experience with battery
energy storage system (BESS)
projects and serving private and
public sector clients
• Program Manager brings over 18
years of experience program design
experience
• Most detailed response for program
development and needs-based
categorization
• Included a base scope of services +
an enhanced scope of services
• Existing signed CSA w/ Ava and
positive working relationship
• No redlines to CSA
• Does not include a local
partner
• Does not include on-site
assessment services in
“base package”
• Weaker national program
management experience
with multiparty, multiyear
programs compared to
other respondents
• Less experience with
federal grants compared to
other respondents
Consent Item 8
Of all bids, Ava selected NV5 as they stood out as the leading bidder across five of the six criteria for the following reasons:
• Technical assistance and program management expertise: NV5 has extensive technical assistance qualifications in energy resilience feasibility and planning, community resilience, program management and technical services related to solar + storage, serving a variety of private and public sector customers, including in Northern California. (criteria 1, 2) • Cohesive staffing plan: Their proposal includes experienced, dedicated staff assigned to key areas of program design, management, and technical assistance. The assigned Project Manager brings over 18 years of experience designing and implementing energy technology programs. (criterion 3) • Flexible approach: NV5 provided comprehensive technical services with the flexibility to adapt based on needs of sites – NV5 provided both a “base” and “enhanced” scope of services. (criterion 4)
• Existing agreement: Ava has an existing contract with NV5, and staff have reported positive experiences working with them to date. (criterion 6) Importantly, NV5’s bid demonstrates a thorough understanding of the uncertainties surrounding community-site needs, and the necessity for a flexible approach. They proactively addressed these issues by offering both a “base technical service package” and an “enhanced technical service package.” This tiered approach allows us to start with essential services while also outlining potential future services that can be scaled as we get a better understanding of the requirements of community sites.

Committee Recommendation
On November 6, 2024, the Executive Committee reviewed this matter and recommended that the Board of Directors approve the contract amendment for NV5.

Attachments
A. Resolution Authorizing CEO to Negotiate and Execute First Amendment with NV5
B. Form Amendment
C. Draft Scope of Work for Resilience Hub Program Management and Technical Assistance
Attachment Consent Item 8A
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 FIRST AMENDMENT TO THE CONSULTING SERVICES AGREEMENT WITH NV5
WHEREAS, Ava Community Energy Authority (“Ava”) was formed as a community choice aggregation agency (“CCA”) on December 1, 2016, under the Joint Exercise of Powers 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 Joint Powers Agreement (“JPA”) in March of 2020. The city of Stockton was added as a member to Ava in September of 2022. The city of Lathrop was added as a member to Ava in October of 2023. San Joaquin County was added as a member to Ava in July 2024. On October 24, 2023, Ava legally adopted the name Ava Community Energy Authority, where it had previously used the name East Bay Community Energy Authority since its inception.

WHEREAS, energy resilience is of increasing concern to Ava’s communities in light of historical power outages and planned power shutoffs; WHEREAS, Ava committed $2 million to technical assistance to support energy resilience development for community sites for FY 23-24; WHEREAS, Ava issued a bid specification on July 23, 2024 for program development, management, and technical assistance support services for the Community Resilience Hub Initiative (“Initiative”);
WHEREAS, Ava received six conforming bids and selected NV5 based on their proven expertise, flexible scope of services, and positive current experience supporting Ava with technical services for EV charging;
WHEREAS, Ava wishes to contract with NV5 to enhance its capabilities to manage and provide technical assistance for the Initiative; WHEREAS, on November 15, 2023, Ava entered into a Consulting Services Agreement (“CSA”) with NV5 to provide technical services for the direct current fast charging (“DCFC”) hubs; and
WHEREAS, Ava seeks to amend the existing CSA with additional scope of services for program development, program management, and technical services for the Initiative, and to increase the amount of compensation to cover the additional services.

Attachment Consent Item 8A

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 an amendment (“First Amendment”) to the CSA with NV5 to: (1) add services to the scope of work for program development, management, and technical assistance support for the Initiative; (2) extend the CSA through December 31, 2027; and (3) add $2,000,000 in compensation for a total CSA amount not-to-exceed (“NTE”) $2,250,000.

ADOPTED AND APPROVED this 20th day of November, 2024.

Jack Balch, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
Attachment Consent Item 8B
1 [Number] Amendment to Consulting Services Agreement by and Between Ava Community Energy Authority and [Legal Name of Vendor]
This [Number] Amendment to the Agreement with [Vendor] for Consulting Services (“[Number] Amendment”) is made this [day] day of [month], [202X], by and between the Ava Community Energy Authority, a Joint Powers Agency formed under the laws of the State of California (“Ava”) and [Legal Name of Vendor] (“[Vendor]”), for the purposes of adding additional compensation, adding additional services to the scope, extending the termination date, and updating the hourly rates of compensation.

Recitals
A. Ava and [Vendor] entered into that certain Consulting Services Agreement dated [date] (“Agreement”), wherein [Vendor] agreed to provide [service] to Ava, with compensation not to exceed $[amount].

B. Ava and [Vendor] entered into that certain [Number] Amendment to the Consulting Services Agreement on [date] to add additional compensation, increasing the not-to-exceed amount by $[amount] for a total amount not to exceed $[amount], to update the scope of services, to extend the term, and to update the hourly rates of compensation.

C. Ava and [Vendor] entered into that certain [Number] Amendment to the Consulting Services Agreement on [date] to add additional compensation, increasing the not-to-exceed amount by $[amount] for a total amount not to exceed $[amount], to update the scope of services, to extend the term, and to update the hourly rates of compensation.

D. Ava and [Vendor] now desire to amend the Agreement to add additional compensation, increasing the not-to-exceed amount by $[amount], to add additional services to the scope of services [to include additional services], to extend the term, and to update the hourly rates of compensation.

E. On October 24, 2023, East Bay Community Energy Authority legally adopted the name Ava Community Energy Authority, where it had previously used the name East Bay Community Energy Authority since its inception.

Now therefore, for good and valuable consideration, the amount and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. All references to East Bay Community Energy (“EBCE”) in the Agreement are hereby amended to Ava Community Energy (“Ava”).

2. Section [#] of the Agreement (“Term”) is amended to extend the term of the Agreement through [new date].

Attachment Consent Item 8B
2 3. Section [#] of the Agreement (“Compensation and Payment”) is amended in part to increase the total compensation of the Agreement by $[amount] for a total amount not to exceed [new amount spelled out] ($[new amount]).

4. Exhibit A (“Scope of Work”) of the Agreement is replaced in its entirety by Exhibit A, attached hereto.

5. Exhibit B (“Schedule”) of the Agreement is replaced in its entirety by Exhibit B, attached hereto.

6. Exhibit E (“Compensation/Budget”) of the Agreement is replaced in its entirety by Exhibit E, attached hereto.

7. All other terms and conditions in the Agreement not otherwise modified by this [Number] Amendment will remain in full force and effect.

In witness whereof, the Parties have entered this Amendment on the date written above.

Ava Community Energy Authority,
A Joint Powers Authority
[Name]
[Title]
Date: ____________________________
Approved as to form:

Ava General Counsel
[Vendor],
A [Legal form of entity]
[Name]
[Title]
Date: ______________________________
[Name]
[Title]
Date: ______________________________
A-1
Exhibit A
Scope of Work
[Insert text here]
B-1
Exhibit B
Schedule
[Insert text here]
E-1
Exhibit E
Compensation/Budget
[Insert text here]
Attachment Consent Item 8C
Exhibit A

SCOPE OF WORK
This scope of work is for the Program Management and Technical Assistance services needed for the Ava Community Energy (Ava) Resilience Hub Initiative. Consultant will work with Ava to develop a program to support the pre-development of resilience sites.

Core elements of this scope of work include:
• Resilience Hub Initiative Development
• Initiative Program Management
• Technical Services
Task 1: Initiative Development
Consultant will support Ava with initiative development for the Resilience Hub Initiative, ensuring a clear understanding of the scope of all three pillars – Community Outreach and Site Identification, Technical Assistance, and Solar and Storage Incentives. Consultant will design an effective and streamlined process that meets stakeholder needs and allows for participants to access Ava resources efficiently. Activities will include:

1. Hold kickoff meeting with Ava to clarify and verify initiative goals, work to date, stakeholders, constraints, and preferences.

2. Utilize up to five (5) sample client profiles, conceptual designs, and financial analyses to support the program development.
a. Develop 5 sample facility load profiles based on conceptual facility types, use profiles from the Department of Energy, local environmental conditions, likely applicant profiles, proposed solar and BESS systems, construction costs, construction schedule, and project cashflow,

3. Stakeholder collaboration
a. Review and provide feedback on the Community Grant Partner(s) scope of work agreement and deliverables relevant to technical assistance b. Host program development meeting with the Community Grant Partner(s) to provide input on needs assessment and resilience hub concept plan templates.

Review what the technical support would entail and the general elements that make for a good resiliency project.
c. Conduct follow-up meetings with stakeholders to resolve program challenges. d. Collaborate with Ava and solar and storage program support team on requirements for the solar and storage incentive for resilience hubs, and Consultant will work with Ava to help identify contractors in the Solar and Attachment Consent Item 8C
Storage program to meet VPP technical requirements as well as the Site Participants’ technical needs.
e. Facilitated by Ava, the Consultant will regularly engage with Community Grant Partner(s) and/or Site Participants (s) to keep apprised of and incorporate feedback on community needs to ensure alignment with program objectives.

4. Provide input on Ava’s draft definitions of resilience, resilience hubs and energy resilience.

5. Design draft outline of Technical Assistance program, including the following:
a. General program process flow, including project categorizations, such as solar and storage feasibility, grant and incentive support, and/or third-party proposal review.
b. Requirements for participation in technical assistance and progression from one technical assistance service to another, including clear pathways and definitions for various project types or categories.
c. Standard data requirements by project category
d. Standard analysis and deliverables by project category. e. Incorporate outreach and communications plan and touchpoints as defined in the Community Grant Partner agreement.
f. Process to track the award of funding by project.
g. Process to track the disbursement of funds by project. h. Process to get feedback from program stakeholders to improve the process and update the workflow and documentation to improve the program. i. Develop working FAQ process.
j. Other components needed to facilitate technical assistance given Ava’s community grant and solar and storage incentive work.

6. Develop a manual for the Resilience Hub Initiative and associated Technical Assistance Program that documents internal and external processes, roles and responsibilities, and best practices.
a. Review draft Initiative and program documents with Ava stakeholders and incorporate feedback into Initiative and Technical Assistance program manual.

7. Draft a customer enrollment form for the Technical Assistance program, incorporating Ava’s general terms and conditions

8. Consultant will host the web-based enrollment portal and collaborate with Ava throughout the development process

9. Create a one-page program overview and language for the Ava website that details the program offering, relationship to the other Initiative pillars, benefits, and process.

10. Obtain feedback from Ava on all deliverables and incorporate feedback into those documents.

11. Consultant will use Asana, Ava’s program management tool software, to track key program development and scope-related activities.

Deliverables
A.

B. Draft requirements for participation in Technical Assistance program, NTP +2 months
Attachment Consent Item 8C
C. Resilience Hub Initiative Manual, NTP+ 3 months, or as directed by Ava D. Internal Program Operations Manual, NTP +3 months, or as directed by Ava E. One -page program overview and language for Ava website Task 2: Initiative Management
Consultant will manage and guide applicants into the technical assistance program, through the technical assistance program, and into the solar and storage program, including the following:

1. Communicate how to apply for Technical Assistance to the Community Grant Partner, enabling Community Grant Partner to guide interested sites into Technical Assistance.

2. Review applications submitted to the enrollment portal for entry into Technical Assistance and recommend acceptance or provide feedback to unsuccessful applicants on changes needed to qualify for acceptance into Technical Assistance. a. Consultant will confirm applicants are Ava customers Through process detailed in the Initiative Manual.

3. Assign sites into Technical Assistance program and provide single point of contact for program participation.

4. Guide sites through the program process. A detailed scope of work for the potential Technical Assistance program is provided below under Task 3.

5. Provide information on Solar & Storage Incentive program and potential project next steps to the program participants during their participation in the Technical Assistance Program.

6. Consultant may use their own applicant tracking software, provided that data can be easily exported for Ava’s use as needed.

Consultant will report on funds used, the results of the used funds, and a process for continuously improving the process and positive results from the use of those funds.

1. Meet with Ava and program stakeholders to discuss program metrics and goals proposed by Consultant.

2. Develop program metrics and define program success with feedback from Ava team.

3. Create a monthly, year-to-date, and annual reporting template, or other timeline preferred by Ava.

4. Report format will include the Technical Assistance program applicants and the number of projects at each stage of the process as well as the size and characterization of those projects in key metrics, such as solar and storage sizing and location, as well as participation in Community Grant Partner activities.

5. Develop a feedback process to formalize and solicit feedback from participating sites, contractors, and the Community Grant Partner.

6. Host quarterly meetings to review performance with associated stakeholders and teams.

7. Track program budget, metrics, and delivery performance compared to goals to ensure the judicious use of ratepayer funds.

Attachment Consent Item 8C
Deliverables
F. Monthly report on subtasks in Task 2.

G. Quarterly program status reports - to be developed quarterly but at a minimum reflect progress in each subtask area.

Task 3: Technical Assistance
Consultant will provide technical assistance to qualified applicants and will offer a desktop financial and technical feasibility review, conceptual designs, bid reviews, and grant tracking support. Site Participants will be responsible for providing necessary drawings and site information for the Consultant, and participants will need to manage grants, financial incentives, and bidding process, and contract with microgrid providers unless Ava requests Consultant to support those services as outlined in Task 4.

1. Solar PV and Battery Energy Storage System (BESS) Feasibility Study a. Meet with program participants to discuss feasibility scope, schedule, goals, informational needs, constraints, and preferences. Assumes virtual meeting. b. Collect historical energy consumption data (via Utility Link portal or directly from Ava) and planned changes to site usage/energy efficiency measures for each site to estimate future energy consumption.
c. Create high-level conceptual designs of solar PV and BESS, including system size and location.
d. Develop Feasibility Study memorandum. Memo to include:

1. Draft conceptual system designs.

2. High-level project schedule and critical milestones.

3. Estimate of system cost and approximate value of energy.

4. Potential project grants and incentives

5. Estimated lifetime project cost/savings under up to two financing scenarios: direct cash purchase and power purchase agreement (PPA)

6. Virtual meeting with participant to review and discuss the memo results.

2. Third-Party Bid Review
a. Meet with the program participant to discuss proposed project and background on vendor proposal.
b. Provide questions to program participant for vendor response. Develop Third-Party Bid Review memorandum. Memo to include:

1. Estimated lifetime project cost/savings under preferred financing scenario.

2. Comparison of project cost and savings.

3. Potential project grants and incentives.

4. Recommendation for next steps with project.

5. Key considerations for entering into a contract with vendor.

3. Grant and Incentive Support
Attachment Consent Item 8C
a. NV5 will research key grants and incentives available semiannually for the duration of the engagement. The general characteristics of these grants will be summarized and added to the handbook or similar documentation for use by Site Participants.

Deliverables
H. One (1) Feasibility Study memo per site
I. One (1) Third-Party Bid Review memo per site
J. Key Grant and Incentive Database updated semiannually, initial Database to be provided at NTE + 4 months
Task 4: Additional Services
At Ava’s direction, the Consultant may perform additional services for participants, contingent upon written approval from Ava.

1. Site Visits
a. Consultant will provide site visits for particularly complex sites that may include:
• Electrical service and panel review
• Interconnection approach
• Service upgrade assessment
• Essential load panel needs
• Physical siting of BESS
• Structural and roofing assessment for rooftop solar
• Setbacks and utility conflict investigation
• Documentation of findings for use by Applicant in soliciting bids

2. Vendor Qualification and Contractor Support
a. Consultant will provide contracting assistance with the contractor and the pSite Participant in addition to the bid review. Consultant will review technical elements of the contract (scope of work, schedule, performance guarantee, pricing, and exclusions for alignment with the contractor proposal and initiative requirements.

3. Site Participant Bid Financial Analysis
a. Consultant will update the financial analysis after bid review.

4. EV Charging Resiliency Evaluation
a. Consultant will evaluate the additional load of adding EV charger, their compliance with Title 24, and the corresponding project financial impacts. b. Requires Task 4.3 Site Participant Bid Financial Analysis to be completed as well.

5. Resilience hub monitoring
Attachment Consent Item 8C
a. Consultant will conduct on-site verification of Resiliency Hub operational compliance.

Deliverables
K. Site visit: Site visit form (photo log with descriptions) L. Vendor Qualification and Contractor Support: Redlined form M. Site Participant Bid Financial Analysis: Detailed financial analysis section added to the feasibility memo
N. EV Charging Resiliency Evaluation: Update feasibility memo.

O. Resilience hub monitoring
Consent Item 9
Consent Item 9
To: Ava Community Energy Authority
From: Dan Bertoldi, Electrification Program Manager
Subject: Approving a Resolution to authorize the Chief Executive Officer to Enter into a Two Year Agreement with SolarAPP+ Foundation
Date: November 20, 2024
__________________________________________________________________ Summary/Recommendation
Approve a Resolution (Attachment A) authorizing the CEO to negotiate and execute a Consulting Services Agreement with SolarAPP+ Foundation to develop and integrate automated permitting for residential heat pump hot water heaters into its existing SolarAPP+ software, and to train relevant agencies and contractors in the Ava service area on the new features, with compensation not to exceed an amount of $350,000.

Financial Impact
The proposed, not to exceed amount of the Agreement with SolarAPP Foundation is $350,000 over a two-year term. Funds previously allocated to the Local Development Programs for Building Electrification will be used for this work, so no additional allocation is required.

Analysis and Context
The Bay Area Air Quality Management District (BAAQMD) is considering phasing out the sale of fossil fuel powered hot water heaters (FFWH) for residential homes in its district in 2027.

Alameda County, which makes up a large part of Ava’s service area, is within the BAAQMD’s boundaries. While a phase out of FFWH would significantly reduce local air pollution, improve health outcomes, and reduce greenhouse gas emissions, it would increase demand on local permit center and building department resources. Currently, slow and inconsistent permitting for residential heat pump hot water heaters (HPWHs), the alternative to FFWHs, adds significant Consent Item 9
installation costs and delays, which presents a barrier to residential electrification, especially in low-income households.

Ava seeks to mitigate this challenge by building on the previous success of solar permitting streamlining to facilitate more rapid, lower cost solar permitting. The National Renewable Energy Labs (NREL) built SolarAPP+ software, in collaboration with industry and building safety stakeholders, to automate the permitting of residential rooftop solar and energy storage installs on single family homes. SolarAPP+ is currently adopted or being adopted in almost 200 cities and counties in 12 states, including 13 of 16 currently enrolled Ava member agencies. Because of SolarAPP+’s success with solar installation permit streamlining and its broad reach across Ava’s member agencies, Ava has a unique opportunity to partner with SolarAPP Foundation to address HPWH permitting barriers, both within Ava’s service area and across the State.

Contingent upon Board and General Counsel approval, Ava will partner with the SolarAPP Foundation to build out the features in the existing SolarAPP+ software to enable automated permitting for residential HPWH in single family homes. This would help provide fast, transparent, and consistent permitting for HPWH, which can benefit Authorities Having Jurisdiction (AHJs), contractors, and residents.

As part of the proposed scope of work under the Agreement, Ava member agencies who have adopted SolarAPP+, as well as contractors in Ava’s service area, will be offered the opportunity to participate in a Specification Development Working Group to define how the HPHW functionality will be structured. Furthermore, all AHJs and contractors in the service area will have an opportunity to pilot and provide feedback to the HPWH features when ready for “beta” testing.

Incorporating the work of the Specification Development Working Group and feedback gained from the beta pilot, SolarAPP Foundation will provide in-person trainings and/or webinars for applicable Ava member agency staff. Additionally, they will develop online learning modules to assist contractors and inspectors on automated permitting and inspection requirements.

Ava has begun negotiating a Consulting Service Agreement (CSA) with SolarAPP Foundation (Attachment B), including a scope of work. Contingent upon Board approval, Ava will complete negotiations and execute the CSA.

Attachments
A. Draft Resolution
B. Draft Consulting Service Agreement
Attachment Consent Item 9A
RESOLUTION NO. R-2024-XX

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY TO AUTHORIZE THE CEO TO NEGOTIATE AND EXECUTE AN AGREEMENT WITH THE SOLARAPP+

FOUNDATION TO DEVELOP AND INTEGRATE AUTOMATED PERMITTING FOR

HEAT PUMP HOT WATER HEATERS INTO ITS EXISTING SOFTWARE AND

PROVIDE RELEVANT TRAINING
WHEREAS Ava Community Energy Authority (“Ava”) was formed as a community choice aggregation agency (“CCA”) on December 1, 2016, under the Joint Exercise of Powers Act, California Government Code section 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 Joint Powers Agreement (“JPA”) in March of 2020. The city of Stockton was added as a member to Ava in September of 2022. The city of Lathrop was added as a member to Ava in October of 2023. San Joaquin County was added as a member to Ava in July 2024. On October 24, 2023, Ava legally adopted the name Ava Community Energy Authority, where it had previously used the name East Bay Community Energy Authority since its inception.

WHEREAS slow and inconsistent permitting for residential heat pump water heaters adds significant installation costs and delays, thereby presenting a significant barrier to residential electrification, especially in low-income households; and WHEREAS SolarAPP+ is a permit automation software developed by the National Renewable Energy Labs (NREL) and licensed to the non-profit SolarAPP+ Foundation; and
WHEREAS SolarAPP+ has been adopted by thirteen (13) Ava member agencies to automate permitting of residential rooftop solar and energy storage installations on single family homes; and,
WHEREAS Ava seeks to execute a Consulting Services Agreement with the SolarAPP+ Foundation to address heat pump water heater permitting barriers by building additional functionality in SolarAPP+, and to train relevant Authorities Having Jurisdiction and contractors in Ava’s service territory on how to use the new features.

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

Attachment Consent Item 9A
Section 1. The CEO is authorized to negotiate and execute a Consulting Services Agreement with SolarAPP+ Foundation with compensation not to exceed $350,000 over a term of two (2) years, subject to the approval of General Counsel.

ADOPTED AND APPROVED this 20th day of November 2024.

Jack Balch, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
1 Ava Template Updated 12/14/2023
168191570.4
Consulting Services Agreement for
Services By And Between Ava Community Energy Authority and SolarAPP Foundation
This Consulting Services Agreement (“Agreement”) is made this [xx] day of [Month], 2024 (“Effective Date”) by and between Ava Community Energy Authority, a joint powers authority formed under the laws of the State of California (“Ava”) and SolarAPP Foundation, a not-for-profit company organized under the laws of Washington, D.C. (“Consultant”) for the purpose of developing and implementing heat pump water heater permit streamlining functionality in the existing SolarAPP+ software and providing relevant training to Ava Member Agencies. Ava and Consultant are herein referred to as “Parties” or individually as a “Party.” Section 1. Recitals

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

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

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

Section 2. Term
The term of this Agreement is from the Effective Date of this Agreement through December 31, 2026, unless terminated earlier pursuant to Section 8.

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

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

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

3.3 Consultant and its sub-suppliers, affiliates, agents and any other person or entity with whom the Consultant contracts in furtherance of this Agreement Formatted: Font: Bold
Deleted: _____
Deleted: X
Deleted: Sabah, a [legal form of business, state of
formation, i.e. a California corporation]
Deleted: providing
Deleted: [brief description of services i.e. regulatory support, videography, etc]
Deleted: services to Ava
Deleted: [termination date]
Attachment Consent Item 9B
2 Ava Template Updated 12/14/2023
168191570.4
(collectively “Subconsultants”) must comply with all federal, state and local laws and regulations in performing the Work under this Agreement.

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

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

Section 5. Subconsultants

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

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

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

Section 6. Compensation and Payment

6.1 The maximum compensation under this Agreement is $350,000.00.

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

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

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

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

Deleted: and indemnifying Ava under Section 12
Commented [1]: Ava: The Foundation's
subcontractors should not be required to directly
indemnify Ava. The Foundation is responsible for the
acts of its subcontractors, which addresses Ava’s risk
here.

Deleted: [$$$$].

Deleted: ¶

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

Invoices must be submitted to Ava by the 20th of the
month following the month in which Consultant
performed the Work.¶
Deleted: 3
Deleted: If t
Deleted: 4
Deleted: .

Commented [2]: If subs are involved, I don’t think we
can remove this language.

Commented [A3R2]: Ava: We reverted to AVA’s form
language here.

Commented [DB4R2]: Thank you.

Deleted: 5
Deleted:

Formatted: Indent: Left: 0.5"
Deleted: 5
Attachment Consent Item 9B
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168191570.4

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

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

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

Section 7. Records Retention and Ownership of Work Product

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

7.2 Consultant owns all rights, including without limitation, all licenses, copyrights, service marks and patents, in and to all Work Product(s), whether written or electronic, without restriction or limitation upon their use and immediately when and as created by the Consultant, any Subconsultants, or any other person engaged directly or indirectly by the Consultant to perform under this Agreement. Consultant hereby grants to Ava a non-exclusive, non-transferable, worldwide license to use (but not distribute to third parties) the Work Products solely for the purposes described in Exhibit A. “Work Product(s)” means all writings, reports, drawings, plans, data, video, media, photographs, renderings, plans, software, models, and other similar documents and materials developed or created by Consultant or its Subconsultants on behalf of or for use by Ava under this Agreement.

Section 8. Termination

8.1 Ava may terminate this Agreement for any reason by giving Consultant written notice. The termination notice may set the date of termination, but if no such date is given, termination is effective thirty (30) days following the date of the written notice.

Deleted: 5
Deleted: 6
Deleted:

Deleted: 7
Deleted: Ava
Deleted: All Work Product(s) will be considered
“works made for hire,” and together with any and all
intellectual property rights arising from their creation will be and remain the property of Ava without
restriction or limitation upon their use, duplication or dissemination by Ava. Consultant agrees not to obtain
or attempt to obtain copyright protection in its own
name for any Work Product.

Commented [5]: Given the nature of the relationship
between parties, I am ok with these changes.

Commented [6]: I am thinking that if we agree to not
take any IP or rights over the software, that the findings or work products completed under this agreement at
the very least need to be released to Ava and/or the
public.

Commented [A7R6]: Ava: Please note that, under
Section 8.3 below, Ava may already require the
Foundation to provide any finished or unfinished Work
Product to Ava upon Termination, subject to this
license. If this does not address Ava's concerns here,
we're happy to discuss.

Commented [DB8R6]: I’m ok with that.

Deleted: seven
Deleted: 7
Attachment Consent Item 9B
4 Ava Template Updated 12/14/2023
168191570.4

8.2 Either Party may terminate this Agreement immediately upon written notice for any material breach of this Agreement by the other Party.

8.3 Upon termination for any reason, Ava has the option of requiring the Consultant to complete work up to the date of termination or to cease work immediately. Ava has the further option to require Consultant to provide Ava any finished or unfinished Work or Work Product prepared by the Consultant up to the date of termination. IN THE

EVENT CONSULTANT PROVIDES ANY SUCH UNFINISHED WORK OR WORK

PRODUCT TO AVA, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CONSULTANT PROVIDES THE WORK OR WORK PRODUCT ON AN “AS IS” AND “AS AVAILABLE” BASIS AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE.

8.4 Ava will pay Consultant the pro-rata amount for all services performed as of the effective date of termination, regardless of whether Consultant has delivered the applicable services. Ava will pay any such amounts within 45 days of termination. If Ava authorizes Consultant to continue performing the Work through the date of termination, Ava will pay Consultant the reasonable value of services satisfactorily rendered up through the date of termination, providing such services are in compliance with the Compensation/Budget in Exhibit E.

Section 9. Insurance

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

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

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

Section 10. No Discrimination or Conflict of Interest

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

Deleted: Ava
Commented [9]: I am ok with mutual termination
without cause but need to check with legal.

Deleted: Consultant or any of its Subconsultants
Deleted: If Ava terminates this Agreement for cause
and obtains the same services from another consultant
at a greater cost, the Consultant is responsible for such excess costs in addition to any other remedies
available to Ava.

Commented [11R10]: I disagree, but in this case
where no other vendor would be able to remedy based
on the proprietary nature of the work, I am ok with
removing this language.

Commented [12]: I am not sure removing this has any
substantive impact on either party, it just forces the
timing of termination. If anything, it allows Ava notify termination earlier which should benefit the Foundation.

Either way, will need to check with legal.

Commented [A13R12]: Ava: We reverted the
suggested deletion here.

Commented [DB14R12]: Thank you.

Commented [15]: Ava: The Foundation is not able to
make any guarantees about the quality of unfinished
work or work product that Ava requests..

Commented [16R15]: I am ok with this but need to
check with legal.

Deleted: reasonable value
Deleted: of
Deleted: satisfactorily rendered by the Consultant to
Ava up to the date of written notice
Commented [17]: Our policy is Net45, even under
termination procedures.

Commented [A18R17]: Ava: Change accepted.

Commented [DB19R17]: Thank you.

Deleted: 8.5  Upon termination of this Agreement,
and at no cost to Ava, Consultant, its Subconsultants
and anyone working for Ava under control of
Consultant must return all Work Product to Ava.

Consultant may only retain copies of the Work Product
by express written permission of Ava.

Deleted: ¶
Commented [23]: We won’t accept this change. It
defeats the purpose of having insurance requirements ... [1] Commented [A24R23]: Ava: We reverted our deletion
here.

Commented [DB25R23]: Thank you.

Commented [26]: Ok.

Attachment Consent Item 9B
5 Ava Template Updated 12/14/2023
168191570.4

10.2 Ava and Consultant each represent and warrant, on behalf of itself and its Subconsultants that it is familiar with local, state and federal conflict of interest laws, that in entering into this Agreement it is not violating any of the conflict of interest laws, that it will avoid any conflicts of interest during the term of this Agreement, and that it will notify the other Party immediately if it identifies any conflicts of interest. Each Party understands that violations of this Section 10 could result in immediate termination of this Agreement and disgorgement of compensation.

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

Name Position or Assignment
Section 11. Confidentiality

11.1 Either Party may disclose or make available certain Confidential Information to the other Party for use in connection with the performance of the services under this Agreement. The receiving party will not use, disclose, disseminate, or distribute any Confidential Information for any other purpose without the prior written consent of the disclosing party. The receiving party will protect all Confidential Information any unauthorized use, disclosure, copying, dissemination, or distribution. Notwithstanding the forgoing, the receiving party may disclose or produce any Confidential Information to the extent required by any discovery request, subpoena, court order, or governmental action, provided the receiving party gives the disclosing party reasonable advance notice of the same. All Work Product under this Agreement is Confidential Information of Consultant. For the purposes of this Agreement, “Confidential Information” means information or materials of a Party that are not generally available to the public, are Deleted: s
Deleted: s
Deleted: (
Deleted: ,
Deleted: Ava
Deleted: Consultant
Commented [28]: I am ok with this but need to check
with legal.

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

Attachment Consent Item 9B
6 Ava Template Updated 12/14/2023
168191570.4
disclosed to or acquired by the receiving Party prior to or during the term of this Agreement, and that the receiving party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing Party.

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

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

11.4 The Parties acknowledge that this Consulting Services Agreement, and any future agreement between the Parties, will be subject to public disclosure under the California Public Records Act, provided that disclosing Party provides the non-disclosing Party sufficient advanced notice such that the non-disclosing party has the opportunity to object to the disclosure. Ava acknowledges and agrees that, in regards to any California Public Records Act request for any Work Product or any pricing information related to this Agreement, the public interest is served by not disclosing such records and clearly outweighs the public interest served by disclosure of the records, and will thus seek to withhold the disclosure of such information under a discretionary exemption, unless otherwise mutually agreed by the Consultant and Ava in writing.

Section 12. Indemnity

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

Commented [29]: I understand protection of trade
secrets for software like this. This language is likely too broad reaching, as we are subject to CPRG. I think
modification to Ava’s language or modification to the
Foundation’s suggested language can find a way to
protect what needs protecting without violating CPRG.

Commented [A30R29]: Ava: We are happy to review
any of Ava's proposed changes to this section.

Commented [DB31R29]: I will request our legal review
this language or provide an alternative.

Commented [DB32]: Ava Legal staff: Please review
suggested language and provide alternative language
that meets their needs if protection of IP.

Commented [33]: I don’t think pricing can be non-disclosable. I would need to check with legal.

Commented [34]: Will need legal review.

Commented [DB35]: After negotiations, vendor
agreed to indemnity section as is.

Commented [36]: These edits are substantial and Ava
typically doesn’t allow modifications to this language.

Will need legal counsel to review.

Commented [A37R36]: Ava: We have walked back
some of our edits to more closely align to Ava’s original language. While we are happy to review any of Ava's
proposed changes to this section, we note that Ava’s
ability to bring a claim for breach addresses many of
the risks accounted for in the original language.

Attachment Consent Item 9B
7 Ava Template Updated 12/14/2023
168191570.4

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

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

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

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

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

Section 13. Consultant is an Independent Contractor

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

13.2 As an independent contractor, Consultant has complete control over its Subconsultants. Subject to the requirements of Section 5 of this Agreement, Consultant is solely responsible for selecting, managing and compensating its Subconsultants, and for ensuring they comply with this Agreement.

Section 14. Miscellaneous Terms and Conditions

14.1 Ava Authority.

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

14.2 Waiver.

Waiver by either party of any one or more conditions, Sections, provisions or performance of this Agreement will not be a waiver of any other provision; nor will failure to enforce a provision or Section in one instance waive the right to enforce such Commented [38]: Ava: Please note that the
Foundation is already agreeing to indemnify Ava for the Foundation's negligence and willful misconduct above.

Deleted: ¶
Attachment Consent Item 9B
8 Ava Template Updated 12/14/2023
168191570.4
provision or Section in the future. In no event will payment by Ava to Consultant constitute or be construed as a waiver by Ava of any breach or default of this Agreement, nor will such payment prejudice any of Ava’s other rights or remedies.

14.3 Governing Law.

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

14.4 Venue.

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

14.5 Audit Rights.

Consultant will make records or documents required to be kept pursuant to this Agreement available for audit at no cost to Ava, at any time during regular business hours, upon written request by Ava to the extent necessary to confirm that Consultant has properly invoiced Ava for the services provided pursuant to this Agreement. Copies of such records or documents shall be provided to Ava at Ava’s offices unless an alternative location is mutually agreed upon.

14.6 Recitals and Exhibits.

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

14.7 Notices.

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

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

AVA Attn: Dan Bertoldi
Ava Community Energy
1999 Harrison Street, Suite 2300
Oakland, CA 94612
Email: [email protected]
Phone: 510-393-0474
Deleted: All
Deleted: must be made
Deleted: [relationship owner]
Deleted: [your email]
Deleted: [your number]
Attachment Consent Item 9B
9 Ava Template Updated 12/14/2023
168191570.4
Consultant Attn: Matthew McAllister
SolarAPP Foundation
1425 K ST NW STE 1000
Washington DC, 20005
Email: [email protected]
Phone: 303-956-0100

14.8 Assignment.

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

14.9 Integrated Agreement.

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

14.10 Amendments.

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

14.11 Government Claims Act.

Nothing in this Agreement waives the requirements to comply with the California Government Claims Act (Government Code Section 810 et seq.), where applicable.

14.12 Severability.

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

14.13 Counterparts.

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

14.14 No Party Deemed Drafter.

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

Formatted: Not Highlight
Deleted: [relationship owner with vendor]
Deleted: [Vendor legal name]¶
[Vendor address]
Deleted: ¶
Formatted: Not Highlight
Deleted: [Vendor address]¶
Formatted: Not Highlight
Deleted: [vendor relationship owner email]
Formatted: Not Highlight
Deleted: [vendor relationship number]
Commented [DB39]: SolarAPP To provide
Deleted:

Attachment Consent Item 9B
10 Ava Template Updated 12/14/2023
168191570.4

14.15 Supplier Diversity.

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

Section 15. Authorized Signatories

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

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

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

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

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

Attachment Consent Item 9B
11 Ava Template Updated 12/14/2023
168191570.4
For a limited
liability company
(LLC)
Copies of the following documents should be provided to establish who has authority to bind the LLC: (1) State Forms LLC-1 and LLC-12 if the company was formed in California; and (2) the operating agreement for the LLC – whether formed in California or another state.

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

Only the individual who owns the business can sign. Either a Fictitious Business Name Statement or a Business Tax Certificate is sufficient to establish the authority of an individual to bind a sole proprietorship. [signatures on following page]
Attachment Consent Item 9B
12 Ava Template Updated 12/14/2023
168191570.4
IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed as of the date set forth above.

SOLARAPP FOUNDATION
A Washington, D.C. Not-for-Profit Company
By __________________
Title __________________
Date __________________

AVA COMMUNITY ENERGY AUTHORITY
A Joint Powers Authority
By __________________
Title __________________
Date __________________
By __________________
Title __________________
Date __________________
[*remove if chart in 15.1 confirms only one signature
is required]
APPROVED AS TO FORM:
_________________________
Ava Counsel
Deleted: [VENDOR’S LEGAL NAME]
Deleted: Legal form of business, state of formation
Attachment Consent Item 9B
13 Ava Template Updated 12/14/2023
168191570.4

LIST OF EXHIBITS
EXHIBIT A: SCOPE OF WORK
EXHIBIT B: SCHEDULE
EXHIBIT C: CONSULTANT STAFFING
EXHIBIT D: SUBCONSULTANTS
EXHIBIT E: COMPENSATION/BUDGET
EXHIBIT F: INSURANCE REQUIREMENTS
Attachment Consent Item 9B
A-1 Ava Template Updated 12/14/2023
168191570.4
Exhibit A

SCOPE OF WORK
SolarAPP+ Foundation will build out the features to enable automated permitting for heat pump hot water heaters into its existing SolarAPP+ software, and train relevant Authorities Having Jurisdiction (AHJs) and contractors in the Ava service territory on how to use the new feature.

Purpose and Objectives of Services
The Bay Area Air Quality Management District (BAAQMD) plans to phase out the sale of fossil fuel powered hot water heaters for residential homes in its district by 2027.

Much of the Ava service territory is in the BAAQMD boundaries. This phase out would significantly reduce local air pollution, improve health outcomes, and reduce greenhouse gas emissions. Currently, slow and inconsistent permitting for residential heat pump hot water heaters adds significant cost and delay to the installation of residential heat pump hot water heaters, which has a particularly pernicious effect on low income households. In addition, faced with this challenging permitting environment, many contractors chose not to pull permits which increases the risk of installs being done poorly and not being up to code.

The National Renewable Energy Labs (NREL) built SolarAPP+ software, in collaboration with industry and building safety stakeholders, to automate the permitting of residential rooftop solar and energy storage installs on single family homes. In January, 2024 NREL licensed the SolarAPP+ software to the SolarAPP+ Foundation.

SolarAPP+ is currently adopted or being adopted in almost 200 cities and counties in 12 states, including all the AHJs in the Ava service area except Alameda County and the City of Emeryville. Ava is contracting with the SolarAPP+ Foundation to build out the features in the existing SolarAPP+ software to enable automated permitting for residential heat pump hot water heaters in single family homes. This would help provide lightning fast, transparent and consistent permitting for residential heat pump hot water heaters in single family homes for most communities in the Ava service area.

Tasks and Deliverables
Task # Task Name Description of Task Deliverable
005 Start Project
Create organizational structure,
workflows, budgets, roster, file
structure
010
Building Code
Research
Phone calls, emails, and web
searches to permitting authorities
within the expected service territory
to determine the commonalities
among code enforcement, explore
Memo outlining relevant sections of
building code that need to be
incorporated into SolarAPP+ to
automate permitting for heat pump
water heaters.

Deleted: ¶
¶
Attachment Consent Item 9B
A-1 Ava Template Updated 12/14/2023
168191570.4
Task # Task Name Description of Task Deliverable
variances in requirements, and
identify barriers to permitting
015
Create and
convene Spec
Development
Working group
Recruit a team of subject matter
experts representing product
manufacturers, installation
contractors, and regulatory officials
with the knowledge and expertise to
develop the specification for
automated code compliance in the
subject area. Include regulatory
officials and installation contractors
from AVA service territory.

List of members of SME working
group
020
Develop
specification
Review model building, fire, and
electrical codes for the set of rules
used to authorize a permit.

Incorporate product safety standards,
manufacturer's instructions, and local
amendments as applicable to the
technology. Develop the specification
for automated review by identifying
the inputs, calculations, deliverables,
and supporting documentation
required to support code compliance.

Spreadsheet with details of
specification, representing
consensus interpretation of building
codes and necessary input
parameters to validate code
compliance for heat pump hot water
install.
025
3rd party validation
of specification
Evaluation of the specification by a
third-party with expertise in reviewing
building plans for accuracy and
adherence to the provisions of the
code. Feedback from third-party
evaluators is sent back to the Spec
Development working group for
inclusion into the specification.

Approval from the third-party
evaluator is required to move the
specification to the production
environment.

Confirmation from 3rd party of
specification validation
030
Software feature
development
The Software development team
creates the features requested by the
specification development working
group, including connections to
external databases, maps, and third-party software. n/a 035
3rd party software
audit
Evaluation of the production software
by a third-party with expertise in
reviewing building plans for accuracy
and adherence to the provisions of
the code. Feedback from third-party
evaluators is sent back to the Spec
Development working group for
Confirmation from 3rd party of
software audit
Attachment Consent Item 9B
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168191570.4
Task # Task Name Description of Task Deliverable
inclusion into the specification.
040 Messaging
Emails, newsletters, and other
materials to promote the use of a
new feature or technology eligible for
automated permitting. Direct and
indirect outreach to SolarAPP+
jurisdictions, and their Permit
Management System software
providers, where notification or
approval from the AHJ is required to
activate new features or
technologies. Copies of materials produced
045
Software feature
released in Beta
Deployment of the software to the
demonstration environment. Enabling
of features and technologies for
those authorized and/or eligible to
use the new features and updates.

Feature in SolarAPP+ software to
automate permitting of heat pump
water heaters (beta)
050
Feedback from
AHJs &
Contractors in Ava
Service Area
Pilot features in Beta with a
jurisdiction and select partner pilot
contractors. Discuss and incorporate
feedback from jurisdictions and
contractors as determined through a
consensus process.

Memo outlining feedback from AHJs
and Contractors and action to be
taken by SolarAPP+ in response to
feedback, where relevant.
055
Software feature
development
Deployment of the software to the
public-facing production environment.

Memo confirming software deployed
to the public-facing production
environment.
060
Software feature
released
Enabling of features and
technologies for those authorized
and/or eligible to use the new
features and updates.

Feature in SolarAPP+ software to
automate permitting of heat pump
water heaters (released)
065
Training Materials
Developed
Incorporating the work of the
specification development working
group and feedback gained from the
Beta Pilot, develop online learning
modules to assist contractors and
inspectors on automated permitting
and inspection requirements.

Through the customer service
function, develop FAQs, host a
resource library, and assist
contractors in completing their permit
applications. Copy of training materials
Attachment Consent Item 9B
A-1 Ava Template Updated 12/14/2023
168191570.4
Task # Task Name Description of Task Deliverable
070
Training for AHJs
& Contractors in
Ava Service Area
In Person training and/or webinars in
addition to the self-service LMS
portal, hosted by Interstate
Renewable Energy Council, for
contractors and inspectors.

Memo explaining trainings made
available for AHJs and Contractors
Opportunities for Ava Jurisdiction & Local Contractor Participation Cities in Ava’s service territory who have adopted SolarAPP+ will be offered the opportunity to participate in the Specification Development Working Group. All cities in AVA’s service territory will be given the opportunity to pilot the feature to automate permitting for residential heat pump hot water heaters in single family homes when the software feature is released in Beta and provide feedback.

Contractors installing residential heat pump hot water heaters in single family homes in Ava’s service territory will be offered the opportunity to participate in the Specification Development Working Group. All contractors installing residential heat pump hot water heaters in single family homes in AVA’s service territory will be given the opportunity to pilot the feature to automate permitting for residential heat pump hot water heaters in single family homes when the software feature is released in Beta and provide feedback.

Any Other Conditions
Following the end of this contract, the SolarAPP+ Foundation plans to continue to work on and improve the feature of automated permitting for heat pump hot water heaters.

The SolarAPP+ Foundation intends to provide the feature of automated permitting for heat pump hot water heaters for free to AHJs, both inside and outside Ava’s service territory. SolarAPP+ Foundation intends to charge contractors processing heat pump hot water heaters a fee, similar to how it charges contractors to possess a rooftop solar or energy storage fee.

The SolarAPP+ Foundation has a license to commercialize SolarAPP+ from NREL, attached as Schedule XYZ.

Formatted: Space Before: Auto, After: Auto
Formatted: Space Before: Auto, After: Auto, Line
spacing: single
Commented [DB40]: If we do not need this, I suggest
we take this out.

Attachment Consent Item 9B
B-1 Ava Template Updated 12/14/2023
168191570.4
Exhibit B

SCHEDULE
Task # Task Name
Duration
(days) Start* Finish
005 Start Project 0 10/01/2024 10/01/2024
010 Building Code Research 20 10/01/2024 10/21/2024
015
Create and convene Spec
Development Working group 45 10/21/2024 12/05/2024
020 Develop specification 90 12/05/2024 03/05/2025
025
3rd party validation of
specification 45 03/05/2025 4/19/2025
030
Software feature
development 30 4/19/2025 5/19/2025
035 3rd party software audit 15 5/19/2025 6/3/2025
040 Messaging 30 11/29/2024 12/26/2024
045
Software feature released in
Beta 5 6/3/2025 6/8/2025
050
Feedback from AHJs &
Contractors in Ava Service
Area 60 6/8/2025 8/7/2025
055
Software feature
development 15 6/8/2025 6/23/2025
060 Software feature released 5 8/7/2025 8/12/2025
065
Training Materials
Developed 30 6/23/2025 7/23/2025
070
Training for AHJs &
Contractors in Ava Service
Area 60 8/12/2025 10/11/2025
*Dates subject to change based on contract signing date.

Attachment Consent Item 9B
C-1 Ava Template Updated 12/14/2023
168191570.4
Exhibit C

CONSULTANT STAFFING
[Include names of all team members who will be providing Ava services.] Commented [DB41]: SolarAPP foundation to provide.

Attachment Consent Item 9B
D-1 Ava Template Updated 12/14/2023
168191570.4
Exhibit D

SUBCONSULTANTS
Subconsultants must be authorized in advance, in writing by Ava. Deleted: [If subconsultants are authorized in advance, they should be listed here, otherwise it can state either of these: “Subconsultants are not authorized under this Agreement.” or “
Formatted: Not Highlight
Deleted: ”]
Attachment Consent Item 9B
E-1 Ava Template Updated 12/14/2023
168191570.4
Exhibit E

COMPENSATION/BUDGET
Task # Task Name Deliverable
Milestone Payment
(at end of task)
005 Start Project $150,000
010 Building Code Research
Memo outlining relevant sections of
building code that need to be
incorporated into SolarAPP+ to
automate permitting for heat pump
water heaters.
015
Create and convene Spec
Development Working group
List of members of SME working
group
020 Develop specification
Spreadsheet with details of
specification, representing
consensus interpretation of building
codes and necessary input
parameters to validate code
compliance for heat pump hot water
install.
025
3rd party validation of
specification
Confirmation from 3rd party of
specification validation
030
Software feature
development n/a
035 3rd party software audit
Confirmation from 3rd party of
software audit
040 Messaging Copies of materials produced
045
Software feature released in
Beta
Feature in SolarAPP+ software to
automate permitting of heat pump
water heaters (beta)
050
Feedback from AHJs &
Contractors in Ava Service
Area
Memo outlining feedback from AHJs
and Contractors and action to be
taken by SolarAPP+ in response to
feedback, where relevant.
055
Software feature
development
Memo confirming software deployed
to the public-facing production
environment. $150,000
060 Software feature released
Feature in SolarAPP+ software to
automate permitting of heat pump
water heaters (released)
Attachment Consent Item 9B
E-1 Ava Template Updated 12/14/2023
168191570.4
065
Training Materials
Developed Copy of training materials
070
Training for AHJs &
Contractors in Ava Service
Area
Memo explaining trainings made
available for AHJs and Contractors $50,000
The maximum compensation under this Agreement is $350,000.00.

Attachment Consent Item 9B
F-1 Ava Template Updated 12/14/2022
168191570.4
Exhibit F

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

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

Attachment Consent Item 9B
F-2 Ava Template Updated 12/14/2023
168191570.4
C. Additional Insured/Additional Named Insured. The automobile liability policies must contain an endorsement naming Ava, its officers, employees, agents and volunteers as additional insureds. The commercial general liability policy must contain an endorsement naming Ava, its officers, employees, agents and volunteers as additional named insureds.

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

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

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

G. Cancellations or Modifications to Coverage. Consultant agrees not to cancel any insurance coverage during the term of this Agreement. Consultant further agrees not to reduce or otherwise modify the insurance policies required by this Agreement during the term of this Agreement, without the prior written approval of Ava.

The commercial general and automobile liability policies required under this Agreement must be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days’ prior written notice to Ava. If any insurance policy required under Agreement is canceled or reduced in coverage or limits, Consultant must, within two business days of notice from the insurer, phone and notify Ava via electronic mail and certified mail, return receipt requested, of the cancellation of or reductions to any policy.

H. Ava Remedy for Noncompliance. If Consultant does not maintain the policies of insurance required under this Agreement in full force and effect during the term of this Agreement, or in the event any of Consultant’s policies do not comply with the requirements of this Exhibit F, Ava may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, Ava may, but has no duty to, take out the necessary insurance and pay, at Consultant’s expense, the premium thereon.

Consultant must promptly reimburse Ava for any premium paid by Ava or Ava, in its sole discretion, may withhold amounts sufficient to pay the premiums from payments due to Consultant.

Attachment Consent Item 9B
F-3 Ava Template Updated 12/14/2023
168191570.4
I. Evidence of Insurance. Prior to the performance of the Work under this Agreement, Consultant must furnish Ava with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Agreement. The endorsements are subject to Ava’s approval. Ava may request, and Consultant must provide complete, certified copies of all required insurance policies to Ava Consultant must maintain current endorsements on file with Ava. Consultant must provide proof to Ava that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant must furnish such proof at least two weeks prior to the expiration of the coverages.

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

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

Attachment Consent Item 9B
Consent Item 10
Consent Item 10
To: Ava Community Energy Authority
From: Allison Lopez, Energy Efficiency Associate
Subject: Approving a Resolution authorizing the CEO to negotiate and execute a consulting services agreement (CSA) with Frontier Energy for three years with a not to exceed budget of $200,000.

Date: November 20, 2024
__________________________________________________________________ Summary/Recommendation
This memo recommends pursuing a consulting services agreement (CSA) with Frontier Energy to provide Ava with essential regulatory reporting support for its California Public Utilities Commission (“CPUC”) funded commercial energy efficiency program, ensuring compliance and management of reporting requirements.

Financial Impact
The vendor contract amount is a total NTE of $200,000 with a three-year contract term, through December 31, 2027.

Analysis and Context (with deadlines as applicable)
On September 22, 2022, the CPUC approved East Bay Community Energy’s (“EBCE”) 1 Energy
Efficiency Program Plan and Advice Letter in Resolution E-5215. The Resolution allocated EBCE with budget of $13,463,049 to administer a commercial energy efficiency program. EBCE launched this program in September of 2023.

The CPUC requires routine reporting of all program administrators of ratepayer dollars to ensure funds are used cost-effectively and programs are in compliance with all regulatory requirements. 1 Resolution was approved prior to Ava’s name transition.

Consent Item 10
These reports include monthly program costs reports, quarterly savings claims reports, and annual reports.

For the first year of the program, Frontier Energy provided these regulatory reporting services to Ava. Frontier Energy had an existing contract with Ava, and it expires October 21, 2024, after a term of 5 years and per Ava’s procurement policy, contracts expire after 5 years. Per Ava’s Administrative Procurement Policy, contracts expire after 5 years need to follow Section V.

Professional Services Procurement protocol.

Ava submitted a bid specification for the following scope of services:
1) Regulatory tracking and reporting
o Support Ava in reporting monthly program costs reports, quarterly savings claims reports, and annual reports and upload all data into CEDARS (https://cedars.sound-data.com/),
o Perform quality control (QC) on monthly CEDARS data submissions, and o Conduct pre and post technical review of submitted energy efficiency project. 2) Regulatory guidance
o Provide Ava with information related to key changes and activities within the CPUC that would impact the administration of Ava’s energy efficiency program. o Attend CPUC reporting meetings and provide detailed meeting notes and action items to Ava staff.

Ava received three bids for the scope of work, and evaluated them based off of the following criteria:

1. Ability to provide all services requested in scope of work specification

2. Cost effective budget

3. Dedicated staff with clear roles and responsibilities

4. Deep understanding of energy efficiency regulatory needs and similar work qualifications listed

5. Extent of redlines on the Consulting Services Agreement (CSA) Frontier Energy was the highest-ranked respondent for the scope of work given their cost-effective budget, prior experience working with Ava on the scope of work, and dedicated team of three staff members who are focused on delivering these services (criteria 1, 2, 3). In addition to their experience with Ava, Frontier Energy currently provides similar services to MCE, Lancaster Choice Energy, Clean Power SF, and San Jose Clean Energy, and Frontier has over 30 years of experience working on energy efficiency programs (criterion 4). Lastly, Frontier accepted Ava’s CSA without any redlines (criterion 5). Ava would like to work with Frontier to ensure our commercial energy efficiency program is compliant and achieves cost-effective savings for customers.

Attachments
A. Resolution Authorizing CEO to Negotiate and Execute Contract with Frontier Energy B. Draft Scope of Work
Attachment Consent Item 10A
RESOLUTION NO. R-2024-XX

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CEO TO

NEGOTIATE AND EXECUTE AN AMENDMENT TO THE CONSULTING SERVICES AGREEMENT WITH NV5
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 was approved for a $13.4 million ratepayer funded commercial energy efficiency program, administered under the auspices of the CPUC and subject to CPUC compliance requirements;
WHEREAS Frontier Energy provided Ava regulatory reporting services from May 2023 through October 2024;
WHEREAS Frontier Energy’s contract expires in October 2024, and Ava’s Administrative Procurement Policy requires a re-bid of services after five years; WHEREAS Ava issued a bid specification, received three conforming bids, and selected Frontier Energy, based on their proven expertise in CPUC energy efficiency reporting, cost effective budget, and positive past work experience supporting Ava’s program; and
WHEREAS Ava seeks to contract with Frontier Energy to provide regulatory reporting and guidance support for Ava’s energy efficiency program.

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 Consulting Services Agreement with Frontier Energy, to provide regulatory reporting and guidance Attachment Consent Item 10A
support for the commercial energy efficiency program, with an NTE of $200,000 for three years.

Jack Balch, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
1 Ava Template Updated 12/14/2023
Attachment Consent Item 10B
A-1 Ava Template Updated 12/14/2023
Exhibit A

SCOPE OF WORK
The Consultant will provide Ava Community Energy (Ava) with CPUC regulatory reporting support and regulatory guidance for our energy efficiency program as detailed below:

1. Regulatory and Program Tracking, Reporting, and Guidance:
a. Program Tracking:
 Develop and implement reporting protocols, templates, and schedules  Coordinate with Program Implementer (with Ava in copy) to receive monthly data submissions in CEDARS Monthly Report format and CEDARS Quarterly Report format.
 Coordinate with Ava staff to acquire monthly cost data for inclusion in CEDARS Monthly Reports
 Review and provide feedback for drafted program documents, including but not limited to program manuals, implementation plans from Program Implementer  Create and maintain a progress tracking document to support tracking program activities towards program goals
 Provide innovation / ideation support for EE program best practices and program design modifications as needed.
b. Technical Review and Reporting
 Perform quality control (QC) on monthly CEDARS data submissions  Correct data issues related to CEDARS specification when needed. Provide feedback to Program Implementer (with Ava in copy) to fix data issues in subsequent submissions.
 Upload CEDARS monthly reports to CEDARS, notify Ava staff for approval/confirmation.
 Upload CEDARS Quarterly Reports to CEDARS, notify Ava staff for approval/confirmation.
 Support true up and annual report.
 Conduct pre and post technical reviews of submitted NMEC projects Deliverables:
 CPUC reporting schedule and data collection template
 Program progress tracking document
 CEDARS monthly, quarterly, and annual reports
c. Regulatory Guidance
• Provide Ava staff with information related to key changes and activities within the CPUC that would impact the administration of Ava's energy efficiency program
Attachment Consent Item 10B
A-1 Ava Template Updated 12/14/2023
Deliverables:
• Regulatory updates, communicated via email, will include meeting agendas, summaries of changes in CPUC reporting protocols, and new funding announcements aligned with Ava’s energy efficiency program interests

2. CPUC Meetings
 Attend CPUC reporting meetings and relevant subgroup meetings on behalf of Ava
 Provide detailed meeting notes and action items to Ava staff  Advocate and raise issues identified by Ava/implementers to CPUC’s Energy Division
Deliverables:
• Notes and action item summaries from CPUC reporting meetings Attachment Consent Item 10B
B-1 Ava Template Updated 12/14/2023
Exhibit B

SCHEDULE
As directed by Ava
Attachment Consent Item 10B
C-1 Ava Template Updated 12/14/2023
Exhibit C
Consultant Staffing
Nancy Barba, Director, Project Oversight
Margaret Marchant, Program Manager, Project Manager
Jesse Farber-Eger, Program Consultant, Reporting Lead
Attachment Consent Item 10B
D-1 Ava Template Updated 12/14/2023
Exhibit D

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

Attachment Consent Item 10B
E-1 Ava Template Updated 12/14/2023
Exhibit E

COMPENSATION/BUDGET
The maximum compensation under this Agreement is $200,000.

Budget estimates by Task:

Labor rates year over year:

Attachment Consent Item 10B
F-1 Ava Template Updated 12/14/2022
Exhibit F

Attachment Consent Item 10B
F-2 Ava Template Updated 12/14/2023
C. Additional Insured/Additional Named Insured. The automobile liability policies must contain an endorsement naming Ava, its officers, employees, agents and volunteers as additional insureds. The commercial general liability policy must contain an endorsement naming Ava, its officers, employees, agents and volunteers as additional named insureds.

Consultant must promptly reimburse Ava for any premium paid by Ava or Ava, in its sole discretion, may withhold amounts sufficient to pay the premiums from payments due to Consultant.

Attachment Consent Item 10B
F-3 Ava Template Updated 12/14/2023
I. Evidence of Insurance. Prior to the performance of the Work under this Agreement, Consultant must furnish Ava with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Agreement. The endorsements are subject to Ava’s approval. Ava may request, and Consultant must provide complete, certified copies of all required insurance policies to Ava Consultant must maintain current endorsements on file with Ava. Consultant must provide proof to Ava that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant must furnish such proof at least two weeks prior to the expiration of the coverages.

Attachment Consent Item 10B
Consent Item 11
Consent Item 11
To: Ava Community Energy Authority Board of Directors
From: Kelly Brezovec, Sr. Director, Account Services
Subject: Approval of Resolution Approving Amendment 3 to the SMUD Master Services Agreement and Task Order 3
Date: November 20, 2024
__________________________________________________________________ Summary/Recommendation
Sacramento Municipal Utility District (“SMUD”) provides critical Customer Care and Data Management Services (“CCDMS”) to Ava via a contract Master Service Agreement (“MSA”) and Task Order; the Task Order details services provided and priced at a per-meter monthly service fee. The current three-year MSA and Task Order, which resulted from a competitive solicitation process, started on January 1, 2022, and ends on December 31, 2024. The proposed MSA Amendment 3 is a five-year agreement and the Task Order (“Task Order 3”) is for two years. As price and work plan is solely housed in the Task Order, this two-year agreement falls within the five-year allowance of our procurement policy prior to the need for another solicitation.

Additionally, the proposed Task Order 3 includes a price increase from $1.00 to $1.10 per meter; staff has negotiated elements of Task Order 3, such as fixed fees for common customizations and new community enrollments in 2025 and 2026, as well as a future-looking $1 million credit, should Ava enter into a three-year agreement starting January 1, 2027.

Staff seeks approval from the Board of Directors on a contract extension with SMUD for Call Center and Data Management Services for a five-year extension of the MSA, through December 31, 2029, and a two-year extension of term of the Task Order via Task Order 3, from January 1, 2025, through December 31, 2026. Task Order 3 includes price and work plan adjustments.

Consent Item 11
Financial Impact
Since 2018, when Ava first started to serve customers, Ava has worked with SMUD. The Task Order has been priced at a monthly, per- meter rate, with additional fees for new programs or enhancements.

Years Per Meter Fee
2018-2020 $1.05
2021 $1.05
2022-2024 $1.00
2025-2026 $1.10
Table 1: Historical and proposed future pricing of Ava’s Task Order with SMUD for CCDMS services.

While this 10% increase in per-meter price is a significant jump, since 2022, Ava has seen a flat rate. If inflation had been applied to the $1.00 per-meter price starting in 2022, the 2025 price would have been at $1.16 per meter, an additional 5.5% higher than the 2025 rate proposed in Task Order 3.

The total annual cost of Task Order 3 will increase with the addition of new communities.

Table 2 provides an estimate of the annual cost of the per-meter fee. In addition to the set fee, Ava should assume an additional $100-300k annually in enhancement fees, since billing is always evolving, and staff anticipates enhancing billing operations to provide benefits for Ava programs.

Meters Served, by end of Year Annual
2025
Assumes service start to
Stockton & Lathrop in April
700,500 $9.1M
2026
Assumes service start to
Unincorporated San Joaquin
County in 2026
818,600 $10.85M
Table 2: Future pricing estimates with the proposed agreement Note that Unincorporated San Joaquin County is included here, as Ava has submitted a plan to the CPUC to begin service but awaits the official certification letter. The 2025 cost would remain constant in 2026, if Ava does not begin service to Unincorporated San Joaquin County.

Term
The current three-year Task Order resulted from a public Request for Proposals (“RFP”) process in 2021; Ava’s current Administrative Procurement Policy allows for a five-year term, before issuing a new RFP.

Consent Item 11
The proposed two-year extension of the term does not require Ava to deviate from our standard purchasing protocol and provides flexibility. Over the next two years, staff may perform an assessment of the benefits of bringing some or all these services in-house. Additionally, as a collaborative vendor, who values our business, SMUD has added a $1 million credit to a future contract, should Ava sign a three-year agreement starting January 1, 2027.

Analysis and Context
Service and history
CCAs contract with third parties for data management services, and often, call center services (Call Center and Data Management Services, or CCDMS). SMUD, as Ava’s CCDMS provider, is responsible for critical operational services, including:
• Billing operations
• Data management
• Call center/customer service representatives
Sample activities:

Service Activities
Billing operations Ingest billing determinants from PG&E; Send bill-ready billing information to PG&E;
Apply payments to customer accounts.

Data management Data feed conduit between PG&E and Ava; Develop and share customer characteristic reports;
Ingest and share interval data feeds.

Call center Respond to customer inquiries via chat, email, and phone; Manage customer enrollment via web forms and IVR service; Continue to update knowledge base with information about Ava programs.

Table 3: Sample Activities of a CCDMS provider
Following a public RFP process, Ava started service with SMUD in February 2018, with an agreement that concluded December 31, 2020. This agreement was extended for another year, until December 31, 2021. In 2021, staff issued a second RFP for CCDMS services. There are currently only two organizations providing CCDMS services to California Community Choice Aggregators (“CCA”). Staff performed a rigorous evaluation of both parties; SMUD was the selected respondent. SMUD and Ava entered the three-year Task Order, starting January 1, 2022, ending December 31, 2024.

Select updates to the new agreement
While the bulk of the services SMUD provides are standard, such as providing the billing information to PG&E, there are some updated pricing and services in Task Order 3. Table 4 highlights some of these differences.

Item Current 2025-2026 Change Driver
Per-meter fee $1.00 $1.10 Inflation
Consent Item 11
Item Current 2025-2026 Change Driver
Common
enhancements and
updates
Priced uniquely by
request
Scheduled pricing,
set at current rates
Fix pricing to 2024
levels, expedite
regular requests
Enrollment of new
communities
Stockton, Lathrop
and Unincorporated
San Joaquin County
included
Planned and
proposed community
enrollments not to
incur amendment
fees for webforms
and data activities
Rate changes Included: up to six
rate changes due to
Power Charge
Indifference
Adjustment (“PCIA”)
or generation rate
changes.

Included: as many
rate changes as
needed for PCIA or
generation rate
changes.

Allows Ava to change
rates with PG&E,
planned pricing for
other rate changes.

Net Energy Metering
(“NEM”) and Solar
Billing Plan (“SBP”)
Annual fees for
webform for
monthly/annual
selection, fees to
upgrade billing for
SBP
Inclusive of SBP,
webform adjustments
SBP as standard,
monthly/annual as
standard process
Real Time Pricing,
when out of pilot
n/a Real Time Pricing:
on Ava bill,
matching PG&E
framework
Looking ahead to
implementation of a
new type of rate
Billing error liability Not applicable below
$14,000
Threshold changed to
$10,000
Increased
accountability for
SMUD
Table 4: Agreement updates
Special consideration: Customer Service Team
Customer Care is one of the major components of the agreement. Ava, and Ava’s customers, continue to benefit from the SMUD Customer Service Representative (“CSR”) team. SMUD ranked second in a J.D. Power 2022 Electric Utility Residential Customer Satisfaction Survey based on their overall CSR performance, due in large part to their award-winning trainers and 8- year average tenure in the unionized call center. 100% of all calls are recorded and are available for Ava review. In addition to managing incoming phone calls, Interactive Voice Recordings, the team also responds to online chat and emails. All interactions are linked to the billing system, which both SMUD and Ava can access for reporting, quality control, and review.

Ava is launching to Stockton and Lathrop in 2025, and potentially to Unincorporated San Joaquin County in 2026; it is important that we not disrupt the first, and potentially only, touchpoint a customer has with Ava.

The CSR team consistently receives praise from our customers and has been responsible for “retaining” over 4,300 customers, since the team started tracking this metric in April 2021. In the past 12 months, nearly 1/3 of all customers that talk with a CSR during a request to leave Ava’s Consent Item 11
service to return to PG&E, stay with Ava. In some months, over 40% of customer calls result in the customer staying with Ava, due to excellent customer service. In addition to handling customer calls about bills and service, the SMUD team can respond to inquiries about Ava programs, such as Health-e Communities, brand surveys, and surplus revenue credits. The team is prepared to add to their knowledge base, as Ava’s Local Development Team launches new offerings in 2025 and beyond.

SMUD annually posts a CSR job recruitment for their award-winning, unionized call center. To encourage local hires, Ava’s service territory has been highlighted as an area of interest for recruitment, starting in 2022. This SMUD/Ava partnership in recruiting has resulted in 84 applications from within Ava’s territory. As of October 2024, two new hires to the SMUD CSR team are from Stockton. Ava partnered with SMUD for a CSR hiring event in early November 2024. Over 100 applicants currently reside within a current or future Ava jurisdiction.

Committee Recommendation (if applicable)
The Executive Committee recommends that the Board of Directors approve the MSA Amendment 3 and Task Order 3 with SMUD for CCDMS.

Attachment
A. Resolution
B. SMUD Amendment 3 to Master Services Agreement (“MSA”) C. SMUD Task Order 3
D. PowerPoint
Attachment Consent Item 11A
RESOLUTION NO. R-2024-XX

A RESOLUTION OF THE BOARD OF DIRECTORS
OF AVA COMMUNITY ENERGY AUTHORITY APPROVING AMENDMENT 3 TO SMUD MASTER SERVICES AGREEMENT AND TASK ORDER 3 UNDER THAT

AGREEMENT
WHEREAS Ava Community Energy Authority (“Ava”) was formed as a community choice aggregation agency (“CCA”) on December 1, 2016, under the Joint Exercise of Powers 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 Joint Powers Agreement (“JPA”) in March of 2020. The city of Stockton was added as a member to Ava in September of 2022. The city of Lathrop was added as a member to Ava in October of 2023. San Joaquin County was added as a member to Ava in July 2024. On October 24, 2023, Ava legally adopted the name Ava Community Energy Authority, where it had previously used the name East Bay Community Energy Authority since its inception.

WHEREAS Call Center and Data Management Services (“CCDMS”) are fundamental to the efficient operation of Ava Community Energy as a CCA; and WHEREAS Ava, then East Bay Community Energy Authority, issued a Request for Proposals for CCDMS in March 2021 and selected the proposal from the Sacramento Municipal Utility District (“SMUD”) for further consideration and ultimately, a three-year agreement; and
WHEREAS Ava had entered into a Master Services Agreement (“MSA”) with SMUD for a term of approximately two years effective as of January 30, 2018, permitting Ava to execute Task Orders to purchase services; and WHEREAS Ava and SMUD subsequently amended the MSA effective as of December 20, 2020 to extend the term of the MSA until December 31, 2022; and WHEREAS Ava and SMUD again amended the MSA effective as of January 4, 2022 to extend the term of the MSA until December 31, 2024; and WHEREAS Ava and SMUD executed Task Order 2 effective January 1, 2021 with an expiration date of December 22, 2022; and
WHEREAS Ava and SMUD subsequently amended Task Order 2 to extend the expiration date to December 31, 2024; and
Attachment Consent Item 11A
WHEREAS Ava is wholly satisfied with SMUD’s CCDMS services to-date and desires to amend the SMUD Master Services Agreement to extend the relationship and continue services under Task Order 3, with updated scope and terms of compensation.

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

Section 1. The Board hereby authorizes the Chief Executive Officer to negotiate and execute, subject to the approval of General Counsel, Amendment 3 to the Master Services Agreement between Ava and SMUD to extend the Term until December 31, 2029.

Section 2. The Board hereby authorizes the Chief Executive Officer to negotiate and execute, subject to the approval of General Counsel, Task Order 3, for the purposes set forth above, for a term ending on December 31, 2026, and for compensation in substantial conformance with the terms set forth in the staff report associated with this resolution.

ADOPTED AND APPROVED this 20th day of November, 2024.

Jack Balch, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
AMENDMENT 3 to the Master Services Agreement
This Amendment 3 to the Master Services Agreement (“Amendment 3”) is made by and between the Sacramento Municipal Utility District (“SMUD”) and Ava Community Energy Authority (“Ava”) (formerly East Bay Community Energy Authority (“EBCE”)), on the date of last signature below. SMUD and Ava (formerly EBCE) are parties to that certain Master Services Agreement, dated January 30, 2018 (“MSA”), as amended.

Recitals
WHEREAS, the Parties entered into the MSA on January 30, 2018 to facilitate implementation and operation of a Community Choice Aggregation (CCA) program for EBCE (now Ava), pursuant to Public Utilities Code Section 366.2 et seq.; WHEREAS, on January 30, 2018, SMUD and EBCE (now Ava) entered into Amendment 1 to the MSA to clarify administrative elements of the MSA, extend the Term of the MSA and make other substantive changes to the MSA.

WHEREAS, on January 30, 2018, SMUD and EBCE (now Ava) entered into Amendment 2 to the MSA to extend the Term of the MSA and make other clarifications to certain terms of the MSA.

WHEREAS, on October 18, 2023, EBCE adopted Resolution No. R-2023-54, changing the name of East Bay Community Energy Authority to Ava Community Energy Authority.

EBCE, now Ava, further memorialized the name change by filing an “Amendment of Joint Power Agreement” form with the California Secretary of State on October 31, 2023.

WHEREAS, SMUD and Ava (formerly EBCE) now desire to update the MSA, all amendments thereto and all Task Orders issued pursuant to the MSA to reflect Ava’s October 2023 name change from EBCE.

WHEREAS, the MSA expires on December 31, 2024, and pursuant to Section 4.2 of the MSA, Ava and SMUD further desire to extend the term of the MSA for five (5) additional years; NOW THEREFORE, the Parties agree to the terms of this Amendment 3 set forth below.

1. NAME CHANGE – EBCE to Ava
All references to the “East Bay Community Energy Authority” in the MSA, all amendments thereto and all Task Orders issued pursuant to the MSA are hereby deleted and replaced by references to “Ava Community Energy Authority.” All other provisions of the MSA, all amendments thereto and all Task Orders issued pursuant to the MSA shall remain in full force and effect.
///
Attachment Consent Item 11B
EBCE-SMUD MSA Amendment 3 2

2. Section 4 TERM AND TERMINATION, is amended as follows:

Section 4.2 is struck in its entirety and replaced with the following:
“4.2 Term
This MSA shall remain in effect through December 31, 2029, unless terminated in accordance with Section 4.3 (Termination) or as otherwise agreed in writing by the Parties. Thereafter, the term shall automatically renew for successive one (1) year terms unless one party provides written notice to the other party at least one hundred eighty (180) calendar days in advance of the end of the then existing term that it does not wish to renew the term. Additionally, each Task Order will have its own term, not to exceed the term of the MSA, which may be extended by mutual agreement of the Parties.”

3. Order of Precedence; Definition of Terms. If any specific provisions of this Amendment 3 conflict with any general provisions in the MSA, Amendment 3 shall take precedence. Capitalized terms used in this Amendment 3 which are not defined in this Amendment 3 will have the respective meanings ascribed to them in the MSA. [Signature Page follows]
Attachment Consent Item 11B
EBCE-SMUD MSA Amendment 3 3

SIGNATURES
The Parties have executed this Amendment 3 to the MSA, and it is effective as of the date of last signature below.

Ava Community Energy Authority
By
Name
Title
Date
Approved As To Form
Sacramento Municipal Utility District
By
Name
Title
Date
Approved As To Form
Attachment Consent Item 11B
1 Ava SMUD Task Order 3
EXHIBIT A: SCOPE OF SERVICES
Task Order 3 – Ongoing Services
SMUD and Ava (the Parties) agree to the following services, terms and conditions described in this Task Order. The Effective Date of this Task Order 3 is January 1, 2025.

1. WHEREAS, the Parties entered into a Task Order 2, effective December 29, 2021, with expiration of the term on December 31, 2024;
WHEREAS, Task Order 2 and its amendments (collectively, “Task Order 2”) addresses data management and call center services that met the requirements of Ava ongoing operations for three years; and
WHEREAS, the Parties have agreed to extend the term of the MSA for an additional five (5) years, and the Parties wish to (1) continue many of the same ongoing operations services in this Task Order 3 that were provided in Task Order 2, and (2) add additional services, as set forth in this Task Order 3.

1. SCOPE OF WORK
As of the Effective Date, Task Order 3 supersedes and replaces Task Order 2, and no further services are provided under Task Order 2.

This Task Order covers the ongoing operations of:

2. Billing

3. Data Management

4. Contact Center

5. CRM Systems

6. Standard Reporting
The provisions of this Task Order, including exhibits, schedules and related attachments are subject to the Terms and Conditions of the MSA between the Parties. If any provisions of Task Order 3 including any exhibit schedule or related attachments conflicts or is inconsistent with any provisions in the MSA, the provisions of Task Order 3 shall take precedence unless expressly stated otherwise. Capitalized terms used in this Task Order 3, which are not defined in this Task Order 3, will have the respective meanings ascribed to them in the MSA.

SMUD will provide the following services to Ava:

1. Billing

2. Data Management

3. Contact Center

4. CRM Systems
Attachment Consent Item 11C
2 Ava SMUD Task Order 3

5. Standard Reporting
Additional or continued Services not included in this Scope of Work can be provided at any time during the Term of the MSA through a separate mutually agreed upon Task Order or amendment to this Task Order 3.

1.1. Enrollment
SMUD will continue services for of Ava’s existing customers. SMUD will set up all customers for new member territories, including Stockton, Lathrop, and unincorporated San Joaquin County, as they are enrolled, including services provided under 1.3-1.14.

1.2. Description of Appendices
Appendix A, Service Level Agreements summarizes Service Level Agreements (SLAs) referenced in this Task Order 3.

Appendix B, Work Products, summarizes the Work Products identified in this Task Order 3.

Appendix C, (SMUD Confidential) SMUD Intellectual Property

1.3. Data Management Services
SMUD will continue to provide a fully operational, SOCII Certified, Data Management System (SMUD-DMS) for the term of this Task Order including Electronic Data Exchange Services with PG&E, a Customer Information System, customer enrollment Web Forms, IVR (Interactive Voice Response) Call Center Technology, and service-based Billing System.

1.4. Electronic Data Exchange Services
SMUD will:

1.4.1. Coordinate with PG&E to continue to support Ava’s Community Choice Aggregation Program (“Program”) within PG&E’s territory including meetings and calls as needed to ensure timely set up, data transfer, and billing services.

1.4.2. Maintain electronic interfaces and communication protocols with PG&E to exchange full set of EDI files (including 810, 814, 820, 824, 867, 248 and 997), exception files, CSV files (4013), UDC Daily Payment Files, Share My Data, all future EDI files needed to provide data management and billing services in compliance with CEC and CPUC regulations (exception management of programs may be at an extra cost) ), and other non-EDI files (such as Item 16/17 Data). Unless otherwise determined, data from PG&E will be received by SMUD which will process and apply Ava rates and then generate EDI transaction files to Attachment Consent Item 11C
3 Ava SMUD Task Order 3
be sent back to PG&E for billing and enrollment services. Ava will ensure valid credentialing through PG&E.

1.4.3. Store EDI source files for the term of the MSA in AWS S3 buckets that are accessible by Ava staff.

1.4.4. Process CCASRs from/to PG&E which specify the changes to a customer’s choice of service for customer enrollment, or customer-initiated returns to bundled utility service (814 Electronic Data Interchange Files). Changes will be reflected in the CRM.

1.4. 5. Obtain customer usage data from PG&E’s Enterprise Secure File Transfer server to bill each customer according to PG&E requirements (867 Electronic Data Interchange Files). SMUD will work with PG&E to continue to transfer said customer usage data.

1.4.6. Maintain a rate table of Ava rates and apply applicable rate tariffs to calculate the amount to be billed by PG&E for services provided by Ava.

1.4.7. Update rate tables under the following conditions:
a) Launch of new PG&E rate tariff or change in component of rate tariff b) PG&E Generation Rate (price) change
c) Changes to PCIA and Franchise Fee Surcharge (FFS)

1.4.8. Update rate table up to six (6) times annually based on the following:
a) Ava Value Proposition change (fee outlined under Additional Services) b) Change in price of an existing Non-Standard Rate Agreement rate (fee outlined under Additional Services)
c) Multiple changes may be batched into singular rate tables update

1.4.9. Maintain and communicate the amounts to be billed by PG&E that cover Ava program charges (810 Electronic Data Interchange Files). SMUD will maintain a rate table of Ava rates and apply applicable rate tariffs to calculate the amount to be billed by PG&E for services provided by Ava. SMUD will transfer the billing amounts to PG&E via EDI files and requirements specified by PG&E.

1.4. 10. Receive and maintain data related to payment transactions toward Program charges from PG&E after payment is received by PG&E from Ava customers (Electronic Data Interchange Files).

1.4.11. Store data regarding payment transfers covering transactions toward Ava charges from PG&E after payment is received from customers via EDI or UDC Daily Payment files.

1.4.12. Maintain automated log files that include data such as missing files, failed loads, file reloads, file exceptions; report on transactional exceptions upon request by Ava.

1.4.13. Monitor all file transactions and promptly communicate any delays and inconsistencies to Ava.

1.4.14. Coordinate with PG&E to remedy EDI file errors or exceptions (missing or missed files).

Attachment Consent Item 11C
4 Ava SMUD Task Order 3

1.4.15 Provide to Ava staff a daily email to track and validate the inbound/outbound file transmissions with PG&E.

1.5. Customer Information System
For the Customer Information System, SMUD will:

1.5.1. Make available the SMUD-DMS to manage customer data via a Customer Relationship Management (CRM) system for the duration of this Task Order.

The CRM enables Ava and its customers to manage program enrollment options online and through the phone via Interactive Voice Response (IVR). The CRM is compatible with the billing engine and data repository for customers’ electric usage data. The SMUD-DMS stores data covering all eligible accounts. This data includes each account’s enrollment status (eligibility, opt in/out, Ava service plan selection, NEM selections, and history), rate tariff election(s) and history, payment history related to billed amount, collection status, billing history, and any customer service representative phone correspondence or transactions with the customer. The system enables call center staff to classify or group the call description to help track the call types in order to identify trends for additional FAQ updates.

1.5.2. Maintain role-based access to allow Ava staff (up to fifteen), SMUD Call Center Representatives, and SMUD’s team to view customer interactions, enter transactions (such as program election changes), edit account notes and view other information fields as necessary.

1.5.3. Obtain from PG&E and store in the CRM PG&E bills for all customers for the duration noted in Appendix E Work Products. Make available viewing access to appropriate Ava staff and billing records are maintained to support intuitive parsing and labeling.

1.5.4. Maintain a record of customers’ enrollment status and history from the launch of services for each customer. This includes customers who have been offered service but have elected to opt out or opt up, either before or after starting service. Provide status reports to Ava staff. Make this information available to Call Center Representatives and Ava staff through the CRM to support customer service calls.

1.5.5. Maintain, calculate, and communicate as needed records of Net Energy Metering (NEM) and Solar Billing Plan (SBP) credits and generation data for customers to be posted on bill and settled annually. NEM and SBP credits and billed amounts are to be aligned with Ava’s posted tariffs, including provisions for special billing circumstances, such as CARE or FERA, or municipal.

1.5.6. Maintain all customer data according to Ava’s customer privacy policy, as may be amended from time to time, and the requirements of relevant California Public Attachment Consent Item 11C
5 Ava SMUD Task Order 3
Utilities Commission Decisions including D.12-08-045, including a weekly backup process.

1.5.7. Maintain a Data Management Provider Security Breach Policy.

1.5.8. Provide as-needed user training and support for Ava staff and its designated consultants to use the CRM.

1.5.9. Provide Ava with access to central repository of up-to-date CRM training materials.

1.5.10. Maintain Customer Information System patching and upgrades.

1.5.11. Collect only the minimum Confidential Information (CI) that is directly relevant and necessary to accomplish specific authorized purpose(s) and retain CI for only as long as is necessary to fulfill the authorized purpose(s). CI that is no longer needed is destroyed in accordance with the terms of the MSA.

1.6. ShareMyData
SMUD will:

1.6.1. Provide daily downloads of processed Share My Data (SMD) to Ava.

1.6.2. Deliver two files (SMD Interval Data and SMD Customer Mapping Data) on a daily basis as data is available, additional files for SMD as necessary.

1.7. Customer Enrollment and Program Forms
For Forms, SMUD will:

1.7.1. Collaborate with Ava’s website provider to integrate customer enrollment forms to provide an easy and intuitive experience for customers.

1.7.2. Provide Ava customers with access to address check functionality via the Salesforce CRM.

1.7.3. Maintain web-based form(s) for the Ava website so that customers may change service plan or enrollment status (opt-out, down, remain on, up or in), select product options, NEM monthly/annual selection, and/or confirm current product selection prior to a default product transition with features requirements, such as the “Remain on” selection during a default service plan update.

1.8. Interactive Voice Response (IVR) Call Center Technology For the IVR, SMUD will:

1.8.1. Maintain a professional Interactive Voice Response (IVR) tool for the customer call center.

1.8.2. Maintain English and Spanish language IVR routing.

Attachment Consent Item 11C
6 Ava SMUD Task Order 3

1.8.3 Provide Cantonese and Tagalog IVR routing (mirror of English and Spanish routing) based on scripts received from Ava, Tagalog to be added by February 2025, Cantonese by the end of 2025, for a fee through the Amendment process.

1.8.4 Include custom prompts and recordings to align with the Ava customer base and needs. Make changes to IVR flow and recordings as requested, with associated third-party fees paid under an Amendment. IVR changes for TOT enrollments will not be charged an additional fee.

1.8.5. Track how many customers start and complete IVR self-service options without live-agent assistance and provide regular reports, and as needed, show the success rate of completed transactions through the IVR platform, as well as other reports related to customer usage of the IVR platform.

1.9. Billing System – PG&E “Bill-Ready Option”
The accuracy of the billing data is subject to the accuracy of data provided from PG&E. SMUD will include the following key tasks:

1.9.1. Send Ava service charges and in-line messages as separate line items to PG&E for placement on monthly bill. This could include, but is not limited to, non-electrical charges, special programs like batteries, collective billing, energy assistance programs, net energy metering, solar billing plan, and messages. Some of these have fixed charges for set up identified under Additional Services.

1.9.2. Apply PG&E account usage for each Ava customer against applicable rates to allow for customer billing. This includes net energy metering, solar billing plan, and future state mandated programs.

1.9.3. Apply Ava rates to customer bills based on usage received from PG&E or via SMD, as needed to comply with the tariff. This includes use of SMUD’s quality assurance process and audits to ensure accuracy of rate calculations.

1.9.4. Obtain from PG&E and store usage and billing data for all Ava eligible customers from the start of Ava’s customer operations for the term of this MSA.

1.9.6. Ensure successful rate migration through robust quality assurance measures.

1.9.7 Use commercially reasonable efforts along with SMUD’s billing quality assurance measures to remedy billing errors for any customer(s) in a timely manner (no more than two billing cycles from date of discovery).

1.9.8. Complete the annual settlement processes for Net Energy Metering customers by identifying eligible customers, providing accrued charges and credits, and providing a corresponding settlement and mailing list to Ava staff for review and check processing. SMUD to complete process with bill credits as appropriate.

Customers may be based on a previous selection, on an annual true-up or, or an annual cash-out with monthly true-up. Monthly or annual selection will be available for reporting in SMUD Salesforce.

Attachment Consent Item 11C
7 Ava SMUD Task Order 3

1.9.9. Provide customer mailing lists to Ava’s designated printer or to Ava staff for the following:
a) New move-in customer notices routinely within 14 days of enrollment. b) All eligible customers within new community territories for initial enrollment notice
c) All eligible customers within new community territories less customers who have opted out for second enrollment notice
d) All eligible customers within new community territories less customers who have opted out for third enrollment notice
e) All eligible customers within new community territories less customers who have opted out for fourth enrollment notice
f) All eligible NEM customers within new community territories, phased as requested by Ava

1.10. Customer Call Center
SMUD provides professional and dedicated staffing for an Ava Customer Call Center, including the option for customers to access self-service through an Interactive Voice Response (IVR) system. The Call Center provides services in both English and Spanish, and metrics are provided to Ava on a regular basis in order to maintain and track high levels of customer service. The call center also provides communication in more than 50 other languages through an interpretation vendor to meet the language needs of all customers. SMUD will:

1.10.1. Provide sufficient Customer Call Center staff during enrollment periods, high bill periods, default product transition, and after a billing error discovery, to process Ava service enrollment and answer questions related to Ava services, generation-related billing, and other Ava-related inquiries via phone, chat or email.

1.10.2. Provide sufficient Customer Call Center staff during the non-enrollment period to process Ava service enrollment and answer questions related to Program services, generation-related billing and other Ava-related inquiries via phone, chat or email.

1.10.3. Call Center staff will be available during the hours indicated in the Appendix A Service Level Agreements for the duration of the Task Order.

1.10.4. Make available a trained SMUD billing expert to manage escalated calls during the call center hours.

1.10.5. Make available bilingual staff to help Spanish-speaking customers. SMUD provides staff, and a third-party contractor (a subcontractor), to support interpretation services on an as-needed basis. The services include Spanish, as well as many other different languages, and are available during the call center hours.

Attachment Consent Item 11C
8 Ava SMUD Task Order 3

1.10.6. Provide callers with the estimated hold time, if applicable, during both the enrollment and non-enrollment period.

1.10.7. Record all inbound and outbound calls performed by SMUD CSRs and make recordings available to Ava staff upon request. Maintain an archive of such recorded calls on a WFM Platform provided by SMUD.

1.10.8 Track Call Center contact quality with criteria including:
• Use of appropriate greetings and other call center script guidelines • Courtesy and professionalism
• Capturing key customer data
• Providing customers with correct and relevant information • First-contact resolution
• Accuracy in data entry and call coding
• Grammar and spelling in email and chat communications • Request and/or confirm current email, mailing address, and phone number of customers and add to, or update, database during inbound calls as needed.

1.10.9. Collect and input into CRM information from these calls including, but not limited to name, contact information, inquiry type, and resolution, if such information is disclosed by the caller. When appropriate and directed by Ava staff, input into CRM specific call “tags” to allow for easier reporting.

1.10.10. Make available trained CSRs who respond to 100% of Ava customer inquiries; forward calls to Ava staff as may be required to serve customer needs; receive calls from customers referred to Ava by PG&E and, receive calls from customers choosing to contact Ava directly without referral from PG&E; and, “warm transfer” the customer to PG&E or Ava as needed to serve the customer needs.

1.10.11 Should Ava request some amount of calls be routed directly to Ava staff, Ava and SMUD will work collaboratively to reach a solution that may include fees or credits not currently outlined in this agreement.

1.10.12. Provide a toll-free number that will be placed on Ava’s website and PG&E invoices allowing Ava customers to contact the call center.

1.10.13. Record permission (via live calls, email request, chat, or electronic form submittal) from customers to send electronic correspondence, instead of printed mail.

1.10.14 Respond to phone inquiries from customers using training tools based on information provided by Ava. For questions not addressed within the training tools, refer inquiries back to PG&E or Ava.

1.10.15. Transfer to Ava staff escalated calls as appropriate or if a customer specifically requests to speak with Ava staff.

1.10.16. Based on materials and information provided by Ava, train Call Center staff on new programs, policies, and rate changes in a timely manner in order to best Attachment Consent Item 11C
9 Ava SMUD Task Order 3
respond to customer inquiries. Examples include, but are not limited to, incentive programs, changes to power content, and transition to time-of-use rates.

1.11. Qualified Reporting Entity QRE Services
In such cases where SMUD directly performs QRE services, as a key part of WREGIS settlement activities, SMUD will manage and coordinate Qualified Reporting Entity (QRE) services for collection, verification, and reporting of renewable resource meter data to WREGIS under certain circumstances.

Many renewable power project owners directly contract with the CAISO or another entity for QRE services for their projects; Ava will encourage project owners, as part of the Ava standard PPA language, to use one of these options. In such instances, SMUD would not separately provide QRE services.

For Ava behind the meter projects that lack CAISO meters and for which QRE services cannot be otherwise contracted out, SMUD will perform or contract for QRE services, provided that SMUD has sufficient access, facilitated by Ava and PG&E, to meter data and meter and/or telemetry troubleshooting resources. For avoidance of doubt, all meter and or telemetry troubleshooting responsibilities shall remain with the power project owner and/or PG&E.

In such cases where SMUD directly performs QRE services, SMUD will:

1.11.1. Upload data to WREGIS on a monthly basis, as required in accordance with WREGIS procedures, for the creation of Renewable Energy Certificates (RECs) for Ava power supply, and will make such data for
Ava projects available to Ava’s Wholesale Energy Services provider or scheduling coordinator for power purchase agreement settlement.

1.12. Settlement Quality Meter Data (SQMD) Services for Wholesale Load Settlement Ava (or SMUD on Ava’s behalf) obtains Ava load data from PG&E. SMUD will:

1.12.1. Ensure settled load complies with CAISO requirements for SQMD and with Ava’s SQMD plan and forward Ava load SQMD to the CAISO at the required frequency for load settlement purposes. Information may be required to be sent directly to CAISO or through another 3rd party vendor under Ava contract.

1.12.2. Perform annual review of the SQMD Plan as required by the CAISO and provide a memo confirming an annual/bi-annual self-audit of SQMD to Ava and scheduling coordinator.

1.12.3. Establish proactive measures and checks to ensure SQMD data submitted to CAISO is accurate and take commercially reasonable steps to resolve and correct Attachment Consent Item 11C
10 Ava SMUD Task Order 3
any data issues or anomalies that are within SMUD’s control ahead of final settlement deadlines.

1.12.4 SMUD will provide T+7 reporting including estimated load for missing interval data. The Parties recognize that the estimated load is an approximate amount that SMUD provides based on a reasonable prediction. However, this information is simply an estimation and SMUD does not guarantee or warranty the accuracy of this information. Ava acknowledges and agrees that any decisions made by Ava based on this estimated load information is the sole responsibility of Ava and SMUD shall not be liable for matters resulting from such decisions.

Commented [ 1]: Can be either upper or lower case but
make “party” and “parties” consistent throughout document.

Attachment Consent Item 11C
11 Ava SMUD Task Order 3

1.13. Data Feeds
SMUD provides data feeds to assist Ava in compiling various customer sales and usage statistics that may be necessary to facilitate Ava’s completion of requisite external reporting activities. Source indicates whether the files are pass through files from PG&E or generated by SMUD.

File File Name Frequency Source Format
Enrollment
997
Response
for
814
EBCE_yyyyMMddHHmmssfff.EDI997 Daily PG&E  EDI
Daily
Enrollment
Details
EBCE_DataFeed_EnrollmentExport_yyyyMMdd.csv Daily SMUD CSV Inbound
814 EBCE_yyyyMMddHHmmssfff.EDI814 Mon-Fri Inbound PG&E  EDI Outbound
814 EBCE_yyyyMMddHHmmssfff.EDI814 Mon-Fri Outbound
SMUD
EDI
Usage
Regular
867 Usage EBCE_yyyyMMddHHmmssfff.EDI867 Tue-Sat PG&E  EDI MV90 867
Usage
EBCE.yyyyMMddHHmmssfff.EDI867 Mon-Fri PG&E  EDI
Share My
Data
Interval
SMD_File_Generated_on_yyyyMMdd.csv Daily SMUD CSV
Share My
Data
Customer
Mapping
EBCE_DataFeed_SMD_SA_ID_Changes_yyyyMMdd.csv Daily SMUD CSV Attachment Consent Item 11C
12 Ava SMUD Task Order 3
Billing
248
Confirmations EBCE_yyyyMMddHHmmssfff.EDI248
Daily
(including
in
CSV
form)
PG&E  EDI
810 Billing EBCE_yyyyMMddHHmmssfff.EDI810 Mon-Fri SMUD EDI 997 Response
for
810 and 814
EBCE_yyyyMMddHHmmssfff.EDI997 Mon-Fri PG&E  EDI
Daily Billing
Details Billing_Detail_Daily_yyyyMMdd.csv Daily SMUD CSV Green-e Audit
Report Variable  Annual
Rate Details
Report Monthly SMUD CSV
SQMD
Retail Load
Data Trailing
100
EBCE Trailing 100 Retail.csv Daily SMUD CSV
Wholesale
Load Data
Trailing 100
EBCE Trailing 100 Wholesale.csv Daily SMUD CSV
Attachment Consent Item 11C
13 Ava SMUD Task Order 3
Accountin
g

Weekly
Aging
Report -
Bill Date
EBCE_Aging_Report_Weekly_BillDate_YYYYMMDD1_YYYYMMDD2_YYYYMM DD3.csv
EBCE_Aging_Report_Weekly_BillDate_20230531_20230625_064642910.csv Weekly SMU
D
CS
V
Monthly
Aging
Report -
Bill Date
EBCE_Aging_Report_Monthly_BillDate_YYYYDDMM1_YYYYDDMM2_HHMMSS. csv
EBCE_Aging_Report_Monthly_BillDate_20231031_20231108_125431643.csv Monthl
y
SMU
D
CS
V
Weekly
Aging
Report -
Due Date
EBCE_Aging_Report_Weekly_DueDate_YYYYMMDD1_YYYYMMDD2_HHMMSS. csv
EBCE_Aging_Report_Weekly_DueDate_20230302_20230306_120006420.csv Weekly SMU
D
CS
V
Monthly
Aging
Report -
Due Date
EBCE_Aging_Report_Monthly_DueDate_YYYYMMDD1_YYYYMMDD2_HHMMSS. csv
EBCE_Aging_Report_Monthly_DueDate_20230131_20230207_075722063.csv Monthl
y
SMU
D
CS
V
Invoice
Details
InvoiceDetailReportDaily_yyyyMMdd.csv /
InvoiceDetailReportWeekly_yyyyMMdd.csv     /  InvoiceDetailReport_yyyyMM.csv Weekly
,
Monthl
y
SMU
D
CS
V
Payment
Details
DailyPaymentReport_yyyyMM.csv   /
DailyPaymentReportWeekly_yyyyMMdd.csv
Weekly
,
Monthl
y
SMU
D
CS
V
Transactio
n
Summary
Transaction Summary Report yyMMdd.csv Monthl
y
SMU
D
CS
V
PG&E
UDC
Daily
Payment
File
[email protected]_udc_NNNNNNNNNyyMMddHHMI.csv Daily PG& E
CS
V
Daily
Payments
Received
Summary
for the
Previous
Day
Daily PG&ECS
V
Exception
Summary Daily SMUD
CS
V
*Note: File names are maintained as received from source. Changes to Source data file format, source, and name may be subject to additional fees.

File File Name Frequency Source Format
Attachment Consent Item 11C
14 Ava SMUD Task Order 3
Customer Interaction Data
Call Center
Interactions Interactions_CallCenter_yyyyMMddHHMISSnnn.csv Daily SMUD CSV Web
Enrollment
Forms
Interactions
Interactions_Web_yyyyMMddHHMISSnnn.csv Daily SMUD CSV
IVR
Interactions Interactions_IVR_yyyyMMddHHMISSnnn.csv Daily SMUD CSV Chat
Interactions Interactions_Chat_yyyyMMddHHMISSnnn.csv Daily SMUD CSV Enrollment
814 Transaction
Summary
Enrollment_814_yyyyMMddHHMISSnnn.csv|edi Weekly
SMUD
or
PG&E
CSV or
EDI
Customer Characteristics
New / Updated
E-mail, Phone,
Mailing
Customer_Characteristics_yyyyMMddHHMissnnn.csv Daily
SMUD
or
PG&E
CSV
Customer Enrollments and Characteristics
Ava Program
Enrollment
Transactions
AVA_ [Program_Name]_yyyyMMddHHMissnnn.csv Daily Ava CSV Email, Phone,
Mailing AVA_Cust_Characteristics_yyyyMMddHHMissnnn.csv Daily Ava CSV Ava
Customer
Marketing
Preferences
AVA_Cust_Marketing_Prefs_yyyyMMddHHMissnnn.csv Daily Ava CSV Accounting Feed
820
Transactions
(Dependent on
PG&E
Providing File
Feed)
Payments_820_yyyyMMddHHMissnnn.csv|edi Daily PG&E or
SMUD
EDI or
CSV
Additional EDI files are provided to Ava directly from PG&E, not passed through SMUD, such as the 4013.

Attachment Consent Item 11C
15 Ava SMUD Task Order 3

1.13.1. SMUD will continue to provide the following reports on the indicated frequency covered under the per meter pricing. Any changes to the current, operationalized reports will be subject to additional fees. Reports will be stored for the term of the MSA.

Report Frequency
Billing Operations Report (enrollment activity move-in/move-out tracking by month in comparison to previous calendar year, billing transactions) Weekly
Customer Center Operations Report (customer interactions through IVR, Web, CSR, chat)
Weekly
Customer Relationship Management (CRM) Reports (including custom reports and the ability to add email functionality) and Dashboard Available 24/7
Net Energy Metering (NEM) and Solar Billing Plan (SBP) True-up, Cash-out Reports
Annual (April true up) for all,
monthly for customers leaving
Ava
VIP opt-out notification report As needed
Aging report by-past due-bucket Weekly
New connect customer list Biweekly
SMD Performance Report Weekly

1.14. Operational Support Services
SMUD provides ongoing operational support including regular meetings and a Client Manager. SMUD will:

1.14.1. Provide weekly update on key metrics and projects in progress

1.14.2. Host a monthly performance review meeting which can be changed to weekly upon Ava request during enrollment and transition periods.

1.14.3. Host ad hoc executive meetings upon request at a mutually agreed upon time.

1.14.4. Annual preparation and delivery of presentation to Ava Board regarding SMUD services upon request with reasonable notice.

1.14.5. Ensure a single point of contact for day-to-day requests and communications.

Projects, such as billable enhancements, may have an additional point of contact who is the project manager and/or subject matter expert.

1.14.6. Review data sets prior to sending to Ava staff for input

1.14.7 Agree to collaborate on project management standards for future system enhancements.

1.14.8 Provide data and administrative support for Ava’s annual financial audits.

2. ADDITIONAL SERVICES AND ENHANCEMENTS
SMUD will provide these additional services according to the following fee structure. Certain services are included in the per meter pricing.

Attachment Consent Item 11C
16 Ava SMUD Task Order 3
Project/Service Fee
Real Time Pricing: on Ava bill, matching PG&E framework Included in Per Meter Fee In-line bill message change, annually Included in Per Meter Fee Monthly NEM, Annual NEM reporting, same as we provide as of 12/31/2024
Included in Per Meter Fee
NEM/SBP Monthly and Annual cash out reporting and SBP
Transitioning Customers reporting
Included in Per Meter Fee
SQMD, same service we provide as of 12/31/2024 Included in Per Meter Fee CARE/FERA NEM and SBP audits Included in Per Meter Fee
SMD, same service we provide as of 12/31/2024 Included in Per Meter Fee Phone transfer support via IVR and CSRs for Ava DCFC, as built under Task Order 2 Amendment
Included in Per Meter Fee
PIPP, same service we provide as of 12/31/2024 $1,500 per month DAC-GT, same service we provide as of 12/31/2024 $2,600 per month Real Time Pricing: shadow bill credits, using current format/label $7,500 Dividend credits, using current format/label $7,500
CARE/FERA care credits, using current format/label $7,500 Other courtesy credits, using current format/label $7,500 Other credits through 3rd parties, using current format/label $7,500 Credits support, QA, exceptions, reporting $1,500 per month Salesforce-to-Salesforce file feed integration $80,000
Non-standard rates, new $30,000
Non-standard rates, rate change $10,000
Value proposition changes, update % difference $10,000

3. ASSUMPTIONS
• Both parties acknowledge and agree to the following assumptions listed below. Deviation from these assumptions may result in delays in service or additional fees, which fees will be agreed upon by both parties. SMUD will be required to work with other contractors performing services for Ava and assumes that representatives from these contractors will be available and respond in good faith in a reasonable timeframe to requests for information and integration.
• SMUD will mirror standard PG&E billing for Ava customers, including new rates as they are released.
• Ava will provide decisions and feedback in a timely manner. Any delays of decisions or review of critical documents may result in a delay of services.

4. APPROVAL PROCESS / ACCEPTANCE
Both Parties agree to perform tasks, reviews, and approvals in a timely manner.

5. TERM AND TERMINATION
Attachment Consent Item 11C
17 Ava SMUD Task Order 3

5.1. Term of Task Order 3
The Term of Task Order 3 is from the Effective Date of Task Order 3 until December 31, 2026.

Thereafter, the term shall automatically renew for successive one (1) year terms concurrent with the Term of the MSA, unless one party provides written notice to the other party at least one hundred eighty (120) calendar days in advance of the end of the then existing term that it does not wish to renew the term.

In the event that Ava enters into a contract with SMUD in January 2027 for three or more years, SMUD will credit Ava $1,000,000 towards services to be used at any point during the contract.

Pricing in 2027 will not exceed $1.10 plus a not-to-exceed cost-of-living adjustment calculated using the U.S. Department of Commerce, Bureau of Labor Statistics, "Consumer Price Index-All Urban Consumers less food and energy" Series ID: CUUROOOOSAOLIE for the immediately prior 12- month period. An additional cost-of-living adjustment may be added each year, adjustment to be determined as part of new agreement.

5.2. Transition of Call Center
With at least ninety (90) calendar day written notice to SMUD, Ava reserves the right to transfer all Contact Center services in-house and have all communications managed by Ava customer service representatives (CSRs). Beginning on the first day of the first month following transfer of all Contact Center services in-house and all communications managed by Ava CSRs, the Per Meter Fee, per month fee set forth in Section 6.1 of this Task Order 3 shall be reduced by $.12 for each meter that is impacted. Ava will be responsible for any additional infrastructure or programming costs incurred by SMUD to facilitate this transition. SMUD will provide an estimate and receive approval from Ava for these costs prior to SMUD performing such services and incurring associated costs.

6. COMPENSATION FOR SERVICES
This section is SMUD confidential information.

6.1. Data Management and Call Center Services
Services under Section 1 will be made available at a fixed monthly fee per customer meter enrolled of $1.10 (Per Meter Fee) through December 31, 2026.

Customizations or enhancements that include an additional fee to Ava must be established with a scope of work, including a detailed fee structure.

6.2. Billing Methodology
Attachment Consent Item 11C
18 Ava SMUD Task Order 3
SMUD will use the following methodology to calculate the total number of customer meters enrolled in Program service.

1. Identify customers from the 4013 that have been entered into the CRM system and have an ‘opt in’ enrollment date range that is current

2. Filter that list to include customers that are also listed on the corresponding 814 File

3. Replace the DA_Xref with the associated SP_ID

4. Calculate the enrollment date ranges in the month

5. Use the total number of distinct SP_IDs from the date range query results to calculate the total number of customer meters enrolled in Ava Program service

7. PAYMENT TERMS
Fees incurred under this Task Order 3 will be invoiced monthly, starting January 1, 2025. For services under this Task Order 3, Ava shall pay all undisputed invoices within thirty (30) calendar days of the date of the invoice. Any disputed amounts are subject to terms of the MSA. (Signature page follows)
Attachment Consent Item 11C
19 Ava SMUD Task Order 3

9. SIGNATURES
The Parties have executed this Task Order 3, and it is effective as of the Effective Date.

Ava Community Energy Authority
By
Name
Title
Date
Approved as to Form
Sacramento Municipal Utility
District
By
Name
Title
Date
Approved as to Form
Attachment Consent Item 11C
20 Ava SMUD Task Order 3
Appendix A — Service Level Agreements
System
• DMS System availability >= 99% DMC
• Technical Support hours of 9:00AM to 5:00PM Pacific Time, Monday through Friday, excluding Ava and PG&E holidays.

Processes
Billing Issue Resolution
• SMUD-originated Billing Issues will be remedied within two (2) Bill Cycles from date of discovery.
• PG&E-originated Billing Issues will be remedied within two (2) Billing Cycles from date of discovery to extent within the control of SMUD. SMUD will continue to follow-up with PG&E through issue resolution.

Billing Error Liability
• Billing errors for which SMUD systems or processes are at fault will result in the following shared liability:
• SMUD is only liable for errors that result from SMUD systems or processes. • Errors that occurred on dates that precede the start of this task order cannot be included. • SMUD is not liable for any underbilled amount for errors that can be remedied by a rebill, the timing of which follows the rebill rules set by the CPUC (see PG&E Rule 17.1). • For underbilled amounts that cannot be remedied by a rebill:
o SMUD is not liable if the impact is less than $10,000. o SMUD is liable if the impact is more than $10,000; however, SMUD’s liability is limited to 50% of the underbilled amount or $100,000 per instance whichever is less. •
Rate Changes
• Rate Changes will be implemented by request of Ava. The standard schedule for rate change implementation is as follows but may vary based on the specific calendar of weekdays, PG&E process changes associated with TOU roll out, major file changes, or other acceptable reasons.

Sample schedule:

Action Date Example
Ava request made By end of Month 1 September 30, 2020
SMUD launches rate change By middle of Month 2 October 16, 2020 SMUD sets effective date of rate change Day 1 of Month 2 October 1, 2020 SQMD
• SMUD will be liable for CAISO late meter adjustment sanctions defined in CAISO Tariff section 37.11 when data is submitted to the CAISO past the deadline and submission timing is Attachment Consent Item 11C
21 Ava SMUD Task Order 3
within SMUD’s control, or the data submitted is erroneous resulting in a resubmittal past the deadline and the data error was the fault of SMUD.
• For clarity, SMUD will not be liable for CAISO late meter adjustment sanctions defined in CAISO Tariff 37.11 when data errors are introduced by PG&E data inaccuracies or incompleteness or for other reasons outside of SMUD’s control. • In the event that SQMD data submitted to the CAISO results in an incorrect kWh settlement due to an error that is solely within SMUD's control, and when the data can no longer be corrected with the CAISO because it is past the CAISO deadline for correction, then SMUD will be liable for 50% of any excess over-settlements incurred by Ava. When such an error is identified, SMUD will calculate the over-settled or under-settled amounts by multiplying the hourly kWh discrepancy by the FMM price for each hour affected. Instances of under-settlement will offset instances of over-settlement. Upon termination of this Task Order 3, SMUD will credit Ava with 50% of any net amounts due resulting from all such instances. The maximum daily credit will not exceed $10,000. Errors that occurred on trade dates that precede the start of this task order cannot be included. • In the event that SQMD data submitted to the CAISO results in an incorrect kWh settlement that is outside of SMUD's sole control, then SMUD will not be liable for any penalties associated with such errors.

ShareMyData
SMD Interval File Feed
• PG&E SMD Interval Files monitored daily
• 95% of meters received <= 24 hours, no action, taken, normal file processing • <= 98% of meters received in > 48 hours, PG&E notified, Ava notified, and adhoc request • <= 98% of meters received in > 48 hours, PG&E notified, Ava notified, and escalated with PG&E.

SMD Customer Retail File Feed
• PG&E SMD Customer Retail File Feed monitored daily
• Not Received, no action taken, monthly ad-hoc request made to cover gaps SMD Completeness
• Completeness is defined by total number of Service Agreement IDs with at least one interval divided by total number of Service Agreement IDs on PG&Es customer enrollment file feed • >95%, no action taken
• 90-95%, SMUD to investigate and resolve any issues found • < 90%, SMUD, Ava notified and escalated with PG&E
Data Feeds
Monitoring and Communication
• Data Feeds monitored daily
• Each Data Feed generates a file per defined schedule in Data Feeds and Data Package + Attachment Consent Item 11C
22 Ava SMUD Task Order 3
• Ava to be notified if files will not arrive per a previously defined schedule and SMUD will initiate a process to receive the files from PG&E
File Availability
• File availability is defined as generated and available on shared storage within 3 business days of schedule, except for files that were expected to be received on a daily cadence per their schedule
• No action taken for files generated within 3 days of schedule • PG&E issues not resolved with 7 days to be escalated with PG&E, except for files that are expected to be received on a daily cadence per their schedule Missing, Incomplete or Corrupted Files
• Files to be regenerated within 5 business days from discovery • Issues not resolved through regeneration to be investigated, resolved and re-generated with 10 business days
• Ava to monitor for corrupted files
• SMUD to monitor for missing files
• Ava and SMUD to monitor for incomplete data
Call Center
• Operating hours of 9:00AM to 5:00PM Pacific Time, Monday through Friday, excluding Ava and PG&E holidays.
• During enrollment periods, 60 days before the first enrollment day, and 60 days after the last enrollment day, the call center may operate from 8:00AM to 6:00PM Pacific Time, Monday through Friday, excluding Ava and PG&E holidays.
• 60 second average speed of answer with an abandon rate of no greater than 4% during non-enrollment periods • SMUD CSRs respond to 100% of Ava Customer Inquiries
• 100% of voicemail messages answered within one (1) business day. • 100% of emails receive an immediate automated acknowledgement. o 95% of emails receive a customized response within one (1) business day. o 100% of emails receive a customized response within three (3) business days. • 100% of chats receive a customized response within three (3) business days.

Attachment Consent Item 11C
23 Ava SMUD Task Order 3
Appendix B – Work Products
Work Product Fee to
Deliver
Storage Duration Latest Delivery Date
All PG&E source files, as specified
in 1.4.4.1 Data Feeds and Reporting
table, posted to AWS as received by
PG&E
None 12 months or termination of Task
Order 32, whichever is less
Termination Date of Task
Order 3
A log of all historical file
transactions, including summary
and exceptions
None 60 months total or termination of
Task Order 3, whichever is less
30 Days after Termination
Date of Task Order 3
Comprehensive extract of all Ava
data stored in CRM, including but
not limited to customer
characteristics, customer
transactions, customer usage,
customer billing, customer
exceptions, etc.

Maybe 18 months available in CRM for
non-call center interaction record
data; 18 months available in CRM
for call center interaction record
data; 42 months archived for a
maximum of 60 months total or
termination of Task Order 3,
whichever is less
30 Days after Termination
Date of Task Order 3
Provide latest enrollment form
wireframes as screen-scrapped .jpg
None N/A Termination Date of Task
Order 3
Current IVR Scripts (English and
Spanish) via email
None From date of Script approval until
termination of Task Order 3
Termination Date of Task
Order 3
Summary report documenting the
methodology for calculating the
Ava –related charges on the
PG&E bill
None N/A Termination Date of Task
Order 3
Transfer call center toll-free phone
number to Ava (as legally possible
and permissible by the Telecom
company)
None Same phone number from
beginning of Program until
termination of Task Order 3
Termination Date of Task
Order 3 (as legally and
technically possible)
Copy of up to 60 call recordings
posted to AWS
None 12 months or termination of Task
Order 3, whichever is less
60 Days after Termination
Date of Task Order 3; can
request up to 60 call
recordings between
Termination Date of Task
Order 3 and 60 days after
Termination Date
Archived excel exports from
WREGIS, if performing QRE
None None as exports are available to Ava
through WREGIS
30 Days from date of export
from WREGIS
Archived exports of submitted
SQMD data from Settlecore to AWS
None From Program inception until
termination of Task Order 3
30 Days from the submittal
date of the last trade date
that SMUD is responsible
for submitting to the CAISO
Archived historical call center and
billing operations reports posted to
AWS
None 3 months or until termination of
Task Order 3, whichever is less
Termination Date of Task
Order 3
Attachment Consent Item 11C
24 Ava SMUD Task Order 3
A fee may apply if the Work Product is required in any other format than the source format or where additional data manipulation is requested. Archived data can be retrieved and produced by SMUD within 10 business days upon request from Ava.

For Work Products that represent a significant amount of data, SMUD may provide periodic data dump transfers to Ava, and Ava will be responsible for the ongoing storage of that data.

The Work Product will continue to be SMUD’s obligation for data going forward from the time of last data dump transfer.

Attachment Consent Item 11C
25 Ava SMUD Task Order 3
Appendix C – SMUD Intellectual Property
SMUD Confidential Information
For avoidance of doubt, the following are considered SMUD Intellectual Property, and will be treated in accordance with the terms described in the MSA.

Intellectual Property
• DMS architecture, configuration and processes
• CIS/CRM architecture, configuration and processes
• Web architecture, methodology, and enrollment forms configuration and processes • IVR architecture, methodology, and configuration and processes • Billing System architecture, methodology and configuration and processes • File Processing System architecture, methodology, and configuration and processes • SQMD System architecture, methodology, and configuration and processes • Data Policy
• Training Materials
• IVR recordings
• SMUD-created IVR scripts
• Report methodology, processes, and documentation
Attachment Consent Item 11C
Agreement with SMUD for Contact
Center and Data Management
Services, 2025-2026
Board of Directors
November 20, 2024
Attachment Consent Item 11D
Summary
2 • Sacramento Municipal Utility District (SMUD) provides Customer Care and Data Management Services (CCDMS) to Ava
oThe current contract ends on December 31, 2024
oStaff seeks feedback on a new, two-year agreement
Attachment Consent Item 11D
Services Provided
3 Data Management
•Data feed conduit between PG&E
and Ava
•Develop and share customer
characteristic reports
•Ingest and share interval data
feeds
Billing Operations
•Ingest billing determinants from
PG&E
•Send bill-ready billing information
to PG&E
•Apply payments to customer
accounts
Call Center
•Respond to customer inquiries via
chat, email, and phone
•Manage customer enrollment via
web forms and IVR service
•Continue to update knowledge base
with information about Ava
programs
Attachment Consent Item 11D
Contract Updates: Fee
4 • Ava has worked with SMUD since 2018, when Ava first started to serve customers. The contract has been priced at a
monthly, per meter rate with additional fees for new
programs or enhancements.
oThe proposed new agreement sets the per meter cost at
$1.10 per meter, per month
• While this 10% increase in per-meter price is a significant jump, Ava has seen a flat rate since 2022.
oIf inflation had been applied to the $1.00 per meter price starting in 2022, the 2025 price would have been at $1.16 per meter, an additional 5.5% higher than the 2025 rate proposed in this agreement.

Meters Annual
2025 700,500 $9.1M
2026 818,600 $10.85M
Inflation
Adjusted Rate
CPI
Adjustment
2022 $ 1.00 8%
2023 $ 1.08 4%
2024 $ 1.12 3%
2025 $ 1.16
Attachment Consent Item 11D
Contract Updates: Enhancements
5 Item Current 2025-2026
Enrollment of new communities n/a Stockton, Lathrop and unincorporated San Joaquin County
included
Rate changes Included: up to six rate changes due
to PCIA or generation rate changes.

Included: as many rate changes as
needed for PCIA or generation rate
changes.

Real Time Pricing, when out of pilot n/a Real Time Pricing: on Ava bill, matching PG&E framework
Net Energy Metering (NEM) and
Solar Billing Plan (SBP)
Annual fees for webform for
monthly/annual selection, fees to
upgrade billing for SBP
Inclusive of SBP, webform
adjustments
Billing error liability Not applicable below $14,000 Threshold changed to $10,000 Common enhancements and
updates
Priced uniquely by request Scheduled pricing, set at current rates
Attachment Consent Item 11D
Financial Consideration: Term Length
6 • The current three-year agreement resulted from a public Request for Proposals (RFP) process in 2021; Ava’s current procurement policy allows for a five-year term before issuing a new RFP.
• The proposed two-year agreement does not require Ava to deviate from our standard purchasing protocol and provides flexibility. oAs a collaborative vendor who values our business, SMUD has added a $1 million credit to a future contract, should Ava sign a three-year agreement starting January 1, 2027.

Attachment Consent Item 11D
Special Consideration: Customer Service
Representatives
7 • Customer Care is one of the major components of the agreement oResponse to phone calls, online chat and emails
• SMUD credentials and benefits
oSMUD ranked second in a J.D. Power 2022 Electric Utility Residential Customer Satisfaction Survey based on their overall CSR performance,
▪ Award-winning trainers
▪ 8-year average tenure in the unionized call center
o100% of all calls are recorded and are available for Ava review oAll interactions are linked to the billing system, which both SMUD and Ava can access for reporting, quality control, and review.

Ava is launching to Stockton and
Lathrop in 2025, and potentially to San
Joaquin County in 2026; it is important
that we not disrupt the first, and
potentially only, touchpoint a customer
has with Ava.

Attachment Consent Item 11D
8 Example Customer Compliments
I was pretty upset getting a big bill from Ava on
this month's PG&E bill and then Adrian talked
me through on the phone today around 2:30pm
and I feel totally fine about it now. Anyway, I
really appreciate him walking me through
everything - he did great. - D
I just got off the phone with Gary who did a great job
explaining why my PG&E bill had charges coming from
PG&E as well as Ava Energy for electricity. Gary... was pleasant, concise and explained complicated billing
details in plain language. I so rarely have a productive and pleasant interaction with companies, so I wanted
to make sure that I highlighted this as a real positive experience with Gary. Thanks, J & C
He understood exactly what I was asking about and
went above and beyond to make sure that I got
answers to my questions...super patient and clear
when it came to showing me...the website. He said that
he would call me back the next day, and he did! The
voicemail he left was extremely clear and provided me
the answer I needed...Ava Energy is lucky to have a
person like Eric on the team. I have high standards, and he definitely exceeded them. Thanks, C
I just received outstanding service from Adrian! I
want to commend him for his knowledge,
customer service and patience! I truly believe he
is a great asset to your company, and I just
wanted him to be recognized. Kudos for having a
great person such as Adrian work for your
company, I received amazing customer service
today! And I am grateful! - K
Attachment Consent Item 11D
CSRs: Local Representatives
9 • SMUD annually posts a CSR job recruitment for their award-winning, unionized call center.
• Since 2022, Ava has partnered with SMUD to recruit new hires from within Ava's service territory
o84 applications have come from within Ava's service area oAs of October 2024, two new hires to the SMUD CSR team are from Stockton.
• November 2024 recruitment event netted over 100 applicants from within a current, or future, Ava territory
Attachment Consent Item 11D
Plans for CCDMS Services
10 • Staff will assess the state of the market and develop a strategy for 2027 and beyond
oAva-built solutions versus vendors and partnerships
oCall center services and customer experiences
Attachment Consent Item 11D
Subcommittee Recommendation and Next Steps
11 • The Executive Committee recommends that the Board of Directors approve the contract extension with SMUD for CCDMS.
• Following approval, the CEO will have authorization to enter into the agreement for services provided January 1, 2025 – December 31, 2026 • Staff to develop plans for services starting in 2027
Attachment Consent Item 11D
Thank you!
AvaEnergy.org
+1 833.699.3223
[email protected]
PoweredWithAva
Online
Phone
Email
Social
12 Attachment Consent Item 11D
Attachment Consent Item 11D
Consent Item 12
Consent Item 12
To: Ava Community Energy Authority
From: Molly Vazquez, HR Operations Manager
Subject: Approving a Resolution to negotiate and execute a contract with a new branding vendor, Stadium.

Date: November 2024
__________________________________________________________________ Summary/Recommendation
This Staff Report proposes authorizing the CEO to negotiate and execute a contract with a new branding vendor, Stadium, to support Ava’s expansion into new territories, by ensuring consistent brand identity across diverse markets and enhancing brand recognition as we grow.

Financial Impact
A not-to-exceed (“NTE”) amount of $150,000 with this vendor over the one-year term of the agreement.

Analysis and Context
Currently, Ava Energy manages branding and logo assets manually, which makes it challenging to maintain consistency across new territories and strains staff resources as our team scales.

This Staff Report proposes engaging a new branding vendor to support Ava's expansion into new territories and establishing an online store for centralized access to branding materials, ensuring a consistent brand identity and reducing administrative burdens. The vendor selection process was conducted by reaching out to all vendors we could find locally and/or nationwide that fit our budget and work with companies our size, while also meeting our business Consent Item 12
requirements. The proposed vendor, Stadium, stood out for its ability to streamline digital asset management and provide a user-friendly online store that allows teams to access approved brand assets efficiently.

This solution is targeted for implementation by the end of Q2 to support upcoming market expansions. It is not just an 'add-on' to our existing branding and promotional activities but represents a strategic shift in resource allocation, as it replaces certain vendor spending and enhances our branding processes. The selected vendor provides tools for easy access to logos, templates, and brand guidelines, enabling all departments to quickly and securely access up-to-date branding resources. This initiative will reduce time spent on repetitive branding requests, minimize errors, and improve overall brand cohesion, ultimately strengthening Ava's presence and identity in new markets.

Attachments
A. Resolution Authorizing CEO to Negotiate and Execute an Order Form with Stadium
B. Partially-Negotiated Draft Order Form
Attachment Consent Item 12A
RESOLUTION NO. R-2024-XX

A RESOLUTION OF THE BOARD OF DIRECTORS

OF AVA COMMUNITY ENERGY AUTHORITY AUTHORIZING THE CEO TO

NEGOTIATE AND EXECUTE AN AGREEMENT WITH STADIUM
WHEREAS, Ava Community Energy Authority (“Ava”) was formed as a community choice aggregation agency (“CCA”) on December 1, 2016, under the Joint Exercise of Powers 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 Joint Powers Agreement (“JPA”) in March of 2020. The city of Stockton was added as a member to Ava in September of 2022. The city of Lathrop was added as a member to Ava in October of 2023. San Joaquin County was added as a member to Ava in July 2024. On October 24, 2023, Ava 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’s recent expansion into new territories necessitates a consistent and scalable approach to branding to enhance Ava’s recognition, maintain cohesive brand standards across all jurisdictions, and streamline internal processes for accessing and managing brand assets; and
WHEREAS, Ava reviewed nine vendors, and Stadium was selected, based on their demonstrated ability to provide a robust digital asset management system and online store, enabling Ava’s staff and affiliates to access and utilize approved branding materials efficiently, while reducing administrative burden; and WHEREAS, this action is required at this time to support Ava’s ongoing expansion efforts and to establish the infrastructure necessary for maintaining brand consistency and accessibility, as new member jurisdictions are added.

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 contract with a new branding vendor, Stadium, to support Ava’s expansion into new territories by ensuring consistent brand identity across diverse markets and enhancing brand recognition as we grow, with a not-to-exceed (“NTE”) amount of $150,000 for a one-year term.

ADOPTED AND APPROVED this 20th day of November, 2024.

Attachment Consent Item 12A
Jack Balch, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
Attachment Consent Item 12B
42-33 12th Street, Long Island City, NY 11101
bystadium.com
Stadium x Ava Community Energy
Order Form
TM 20206
Created on: 10 / 09 / 2024
Valid through: 12 / 16 / 2024

Prepared by: JillHynson; [email protected]
Customer Information Billing Information
Company Legal Name: Ava Community Energy
Contact Name: Molly Vazquez
Email: [email protected]
Phone: 7073640107
Title: HR Operations Manager
Purchase Order Required:

PO Number:

Email:

Phone:

Billing Address:

Order Summary
Service Start Date:

Package Term: 12 months
Auto Renew: No
Payment Terms (USD): Due upon receipt
Billing Frequency: Annual
Cancellation Notice: 60 days
Sales Tax may be added to invoices associated with this Order Form pursuant to the requirements of the Customer’s state and/or local tax authorities.

Package Summary
Team
• Access for up to 5 admins
• Access to snack boxes, bulk swag, unlimited shops
• 3 logo designs per year (designer included)
• Access to Unlimited Shops, Peer-to-Peer Recognition Programs + reward redemptions, Bulk Swag, Snack Boxes, Swag Locker, Swag Kits, Shared Shops, Shared Swag Designs, Team Wallet, Integrations, Campaigns
• Onboarding & Training Specialist (3 months)
• Customer Service support
Package Price
Team $7,000.00
Total $7,000.00
Attachment Consent Item 12B
42-33 12th Street, Long Island City, NY 11101
bystadium.com
Order Based Pricing Fee
Sending fee for gift orders (excludes e-commerce orders and bulk swag purchases) 15% Pre Purchased Swag Kits US:

International:
$20 per kit
$120 per kit
On Demand Swag Kits Fulfilled Locally: No fee
Locker fulfilment via shops Single Item:
2+ Items:
$13
$20
Bulk orders Custom quote
Swag receiving fees Swag bought from us:

Swag sent to us:

No fee
15% of the value
Storage fees Active accounts:

Inactive accounts:

No fee
$1,500 per calendar quarter
Snack box fulfillment fee US:

International:

Included
$18
Customizations Varies
Terms and Conditions
This Order Form is governed by the Stadium Terms and Conditions found at https://www.bystadium.com/terms-of-use, unless (i) Customer has a written agreement executed by Stadium for the Service, in which case such written agreement will govern, or (ii) otherwise set forth herein.

Marketing Rights. Customer grants Stadium the right to use Customer’s name, logo and swag items for marketing purposes on the website and marketing emails during the term of the agreement. Any other use of Customer’s name and logo is only with Customer’s prior written consent.

Price cap at renewal. The parties agree that, upon renewal, all fee increases will be capped at 7%.

Onboarding will start once payment is received.

IN WITNESS WHEREOF, the parties have executed this Order Form as of the date set forth below.

Ava Community Energy Kitchen Stadium Inc.

Jill Hynson
10 / 31 / 2024
Attachment Consent Item 12B
Attachment Consent Item 12B
CEO Report Item 13
CEO Report Item 13
To: Ava Community Energy Authority
From: Howard Chang, Chief Executive Officer
Subject: CEO Report (Informational Item)
Date: November 20, 2024
________________________________________________________________________ Recommendation
Accept Chief Executive Officer (CEO) report on update items below.

Executive Committee Meeting
A meeting of the Executive Committee was held on November 6, 2024. Members received updates on the SMUD Contract Extension and on the Resilience Hub Initiative Technical Assistance program. The next Executive Committee meeting will be held on Wednesday, December 4, 2024 at 9am.

Marketing, Regulatory and Legislative Subcommittee Meeting The October 18, 2024 Marketing, Regulatory and Legislative Subcommittee Meeting was canceled. The next MRL meeting will be held on Friday, December 20, 2024 at 12pm.

Community Advisory Committee Meeting
On October 15, 2024, Ava’s Community Advisory Committee (CAC) had a productive, in-person ‘meet & greet’ and strategic planning session with Ava staff. This provided an opportunity for CAC members to 1) meet one another and Ava staff; and 2) identify key priorities that will be featured in the Committee’s updated Work Plan for 2025 and beyond. The next Community Advisory Committee meeting will be held on November 18, 2024 at 6pm.

Financial, Administrative and Procurement Meeting
The November 13, 2024 Financial, Administrative and Procurement did not achieve a quorum.

Staff presented an informational session with Director Andersen, reviewing our financial audit, budget comparison, on-bill credit distribution, and Critical Municipal Facilities Program. The next meeting of the Financial, Administrative and Procurement Subcommittee will be held on March 12, 2025 at 1pm.

CEO Report Item 13
2025 Ava Public Meetings Calendar
The 2025 Public Meetings Calendar has been published. It is available on the public meetings page at: https://avaenergy.org/wp-content/uploads/2024/11/2025-Ava-Community-Energy-Public-Meetings-Schedule.pdf Health-e Communities launch
The Health-e Communities program was launched in early October. The pilot program provides the free installation of an induction range along with air quality monitoring directly before and after installation. The goal is to install 200 induction ranges in Ava customer households for CARE/FERA or affordable housing unit residents. Outreach is being done directly to known CARE/FERA customers with early efforts already producing 70 applications. Our installation partner, Franklin Energy is performing site assessments to determine that there is adequate electrical support for the installation. Approximately 10 site assessments have been completed to date. More information can be found at https://avaenergy.org/go-electric/induction-cooking/health-e-communities/.

Fremont R100 Opt-up and R100 Cost Allocation Methodology update On July 17th, 2024, the Board approved the Fremont City Council’s request to default most customers within the City to Renewable 100 (R100). Fremont’s default rate transition is currently scheduled to be implemented as follows: 1) Residential customers in August 2025; and 2) commercial/industrial customers in August 2026. Bright Choice will remain the default option for those on customer discount programs such as CARE/FERA and Medical Baseline. Since there are no changes or impacts to the Bright Choice discount or Renewable 100 premium (the Ava Value Proposition) in our current fiscal year 2024-25, if needed the Renewable 100 Cost Allocation Methodology discussion will take place in the spring alongside the 2025-2026 Budget.

Note that we continue to see material price increases in renewable energy costs going into 2025.

CCA's have signed over 18GW of Clean Energy Resource PPAs CalCCA recently announced that CCAs in California have signed 346 long-term power purchase agreements (PPAs), securing 18,285 MW of new clean energy resources, including solar, wind, geothermal, energy storage, and demand response technologies. The agreements represent a record 4,300 MW added in the past year, the largest annual increase to date. CCAs now have 116 operational clean energy projects, over 7,900 MW in total, that serve 14 million customers in California – about 1/3 of the state's population. These projects include diverse energy sources and significant investments in energy storage and are located in 30 California counties, from Humboldt County in the north to San Diego County in the south, as well as in the states of Arizona, New Mexico, Nevada, and Utah. CCAs have committed over $37 billion to build and operate these resources, supporting more than 36,000 construction jobs. CCAs are also leveraging innovative financing tools to reduce energy costs by up to 10% through energy prepay financing structures. Ava has completed ~$3bn in energy prepays that are entirely off balance sheet to date.

CEO Report Item 13
More information can be found at https://cal-cca.org/california-ccas-secure-18-gw-in-contracts-with-new-build-clean-energy-resource/ Insights from Board and Conference Gatherings:

The fall is a very busy time of year for energy industry gatherings, where over the last month I have attended the CAISO Symposium, Bond Buyer conference, CalCCA Board retreat, CCPower board retreat, California Municipal Utilities Association (CMUA) meeting, California Energy Storage Association (CESA) dinner, Transatlantic energy infrastructure Conference in Berkeley, Direct Pay Clean Energy Incentives Conference. • The major discussion point across all conferences is on how to address affordability, while balancing reliability and our clean energy goals
• Good progress on regional coordination through Pathways Initiatives that has strong support by CAISO, CPUC, other regional PUCs and balancing authorities, CA Labor, and LSEs. More to come in the upcoming legislative session on this. • Increasing interest in CCA tax-exempt bond issuances related to energy prepays.

CCCFA is a top 5 tax-exempt issuer in the US
• Discussion of project ownership, initially through CCPower, and the most efficient financing models related to this.

Ava in the Community
To raise awareness of our service, support our community, and stay close to our customers, Ava sponsors and staffs events throughout our service territory all year long. Stop by to say hello at any of these upcoming events. All events between October 19 – the end of the year:

Date Event Location
10/19/2024 Berkeley Harvest Festival Cedar Rose Park
10/25/2024 Emeryville Movies in the Park Huichin Park
10/26/2024 Oakland Roots VS. Birmingham Legion FC CSUEB Pioneer Stadium, Hayward
11/3/2024 Oakland Dia de Los Muertos Fruitvale, Oakland 12/6/2024 It's a Wonderful Night San Leandro
CEO Report Item 13
New Employees
Dominic Faria
Dominic joined Ava’s Public Policy team on September 17, 2024 as a Senior Coordinator.

Dominic will help lead Ava’s Federal policy advocacy efforts and assist with Ava’s policy communications strategy.

Before joining Ava, Dominic spent three years working for the late Senator Dianne Feinstein in her San Francisco district office. While there, he served as a Senior Field Representative specializing in wildfire, forestry, public lands, and energy policy, and was the Senator’s primary point of contact for Lake Tahoe and the Sierra Nevada region. His work primarily consisted of stakeholder outreach and relationship-building, constituent services, and policy research and advocacy.

Dominic holds a B.A. in Political Science and Economics from the University of California, Davis and a Master’s in Journalism from Northwestern’s Medill School. He’s a life-long Bay Area resident with a deep passion for Bay Area sports.

Ben Weber
Ben joined Ava on September 24, 2024 as a Salesforce Developer. As the Salesforce Developer, he will be responsible for supporting new projects, maintaining the Salesforce org, and working with other teams within Ava to implement new solutions to their Salesforce needs.

Prior to joining Ava, Ben worked as a consultant with CloudMasonry in the Salesforce ecosystem. In that capacity, Ben worked with a variety of clients in the energy, non-profit, and banking sectors to implement and build out their Salesforce instances.

Ben has a B.S. in Computer Science from Indiana University.

Olivia Vasquez
Olivia joined Ava on October 8, 2024 as the Power Resources Data Analyst. She will support the Power Resources team’s needs for data analysis, automated infrastructure, and data visualization with dashboards.

Prior to joining Ava, Olivia worked at LevelTen Energy, where she streamlined business analytics and managed data quality for a variety of energy data streams. She also worked as a data analyst for a conservation company specializing in bioacoustics.

Olivia holds a dual B.A. in Computer Science and Environmental Studies from Oberlin College.

Ethan Yung
Ethan joined Ava on October 15th, 2024 as a Senior Data Engineer. As part of the Technology & Analytics team, he is responsible for developing and improving upon the agency's data systems, which enable insight into the grid, service area, and program implementation.

Prior to joining Ava, Ethan held a variety of data engineering and analytics roles. Most recently, he was a Research Analyst at Komodo Health, where he conducted analyses on population health outcomes in the U.S. healthcare system.

CEO Report Item 13
Ethan has a B.A. in Economics and Statistics from UC Berkeley. He is a proud Oakland resident and ebike commuter.

Molly Elizabeth Sandick
Molly joined Ava on September 17, 2024 as an Executive Assistant. She will provide high level administrative and operational support to the CEO, CCO, and future C-suite hires, maximizing leadership efficiency and effectiveness.

Prior to joining Ava, she worked as an Administrative and Executive Assistant at Google for 9 years, supporting several Senior Executives across the company.

Molly has a B.A. in Psychology from UC Berkeley and is pursuing an ALM in Management from Harvard. She has lived in in the Bay area for over a decade and currently resides in San Francisco.

Lisbeth Gallegos
Lisbeth joined Ava on October 17th, 2024 as a Marketing Associate. She will play a key role in launching local development initiatives and driving awareness and engagement for Ava’s programs.

With over seven years of marketing experience, Lisbeth has led B2B and B2C projects in digital marketing, campaigns, local outreach, and public relations. In her previous role at a marketing consultancy, she managed client accounts as lead project manager, collaborating with internal and external teams to execute diverse marketing projects and develop multi-channel strategies.

Before that, Lisbeth worked at American Airlines in Miami, organizing engagement events to strengthen customer relationships across Latin American hubs.

Lisbeth holds a dual-degree Bachelor’s of Business Administration in International Business and Marketing from Florida International University. In her free time, she enjoys traveling, learning new languages, and exploring her passion for crafts.

Staff Report Item 15
Staff Report Item 15:
2024 Legislative Year in Review
To: Ava Community Energy Authority
From: Todd Edmister, Sr. Director of Public Policy and Deputy General Counsel Kendall Downie, Regulatory Fellow
Subject: Updating the Board on 2024 Legislation
Date: November 20, 2024
__________________________________________________________________ Summary/Recommendation
This memo updates the Board as detailed below on California legislation that Ava was tracking or on which Ava took a position during the 2024 legislative session.

Analysis and Context
The Board adopted positions on pending state legislation at the Board’s regular May 15, 2024 business meeting. See https://avaenergy.org/wp-content/uploads/2024/04/Item-C6.-Legislative-Update-1.pdf The Board elected to take a “support” position on Assembly Bill (“AB”) 817 (Pacheco), AB1834 (Garcia) AB 2329 (Muratsuchi), AB 2672 (Petrie-Norris), AB 2779 (Petrie-Norris), SB 1006 (Padilla), Senate Bill (“SB”), SB 1095 (Becker), SB 1130 (Bradford), SB 1165 (Padilla), SB 1210 (Skinner), and SB 1221 (Min).

With the conclusion of the legislative session, we report in the table below on the fate of these bills. Bills now in law are highlighted.

AB 817 Pacheco Permits a member of a
subsidiary body (i.e.

Died
Staff Report Item 15
Community Advisory
Committee) to call in
remotely and not disclose
their locations.

AB 1834 Garcia The CPUC and CEC must
consider mitigating factors
(like market scarcity) when
determining Resource
Adequacy capacity payments.

Vetoed
AB 2329 Muratsuchi Establishes a Climate Equity
Trust Fund to promote
affordable electric rates.

Died
AB 2672 Petrie-Norris Creates greater access to the
CARE program for public
housing facilities by ensuring
direct benefits go to its
residents.

Signed into law by Gov
AB 2779 Petrie-Norris Directs CAISO to report on
the use of new grid enhancing
technologies in transmission
plans.

Signed into law by Gov
SB 1006 Padilla Requires IOUs to prepare
strategic plans on grid
enhancing technologies and
evaluate which lines can be
upgraded instead of replaced.

Signed into law by Gov
SB 1095 Becker Streamlines transition from
gas to all-electric in mobile
and manufactured homes.

Died
SB 1130 Bradford Expands FERA program
eligibility by eliminating the
requirement that a household
consist of 3 or more persons
Signed into law by Gov
SB 1165 Padilla Speeds up agency
transmission project
authorization by deeming
them environmental
leadership development
projects.

Died
SB 1210 Skinner Requires IOUs to post online
schedules and fees for
service connections to new
housing construction.

Signed into law by Gov
SB 1221 Min Requires IOUs to identify
potential gas distribution line
replacement projects, and
evaluate the cost-Signed into law by Gov
Staff Report Item 15
effectiveness of replacing
those projects with all-electric service.

In addition to the bills listed above, staff also reports here on AB 3264 (Petrie-Norris). AB 3264 established reporting requirements on demand-side management programs. The author amended AB 3264 late in the session to add CCAs to its scope. The Governor signed AB 3264 into law as amended to include CCAs.

Financial Impact
Of the bills that are now law:

AB 2672 may result in lower costs for Ava customers benefitting in public housing facilities.

AB 2779 is unlikely to have a fiscal impact on Ava in the near-term, but may eventually lower costs as Ava project delays are avoided and transmission bills are lowered.

AB 3264 will require additional reporting from Ava, with associated compliance costs in amounts to be determined. The CPUC is establishing detail around the reporting requirements.

SB 1006 is unlikely to have a fiscal impact on Ava in the near-term, but may eventually lower costs as Ava project delays are avoided and transmission bills are lowered.

SB 1130 may result in lower costs for Ava customers who qualify for the expanded FERA requirements, but slightly increase costs for other customers paying for the program.

SB 1210 is unlikely to have a fiscal impact on Ava.

SB 1221 may supplement funding for Ava electrification and building decarbonization programs.

Attachments
A. November 20, 2024 Legislative Update (Slideshow)
Ava 2024 Fall
Legislative Update
Attachment Staff Report Item 15A
Agenda
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Attachment Staff Report Item 15A
Key Deadlines for the 2024 Legislative
Year
Attachment Staff Report Item 15A
Legislature – 2024 State of Play
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Attachment Staff Report Item 15A
2024 Energy-related Bill
Topics
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Attachment Staff Report Item 15A
Ava’s Legislative Program
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Attachment Staff Report Item 15A
Attachment Staff Report Item 15A
Attachment Staff Report Item 15A
Attachment Staff Report Item 15A
Attachment Staff Report Item 15A
2025 Outlook
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Attachment Staff Report Item 15A
2025 Outlook
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Attachment Staff Report Item 15A
Key Deadlines for the 2025 Legislative
Year
Attachment Staff Report Item 15A
Staff Report Item 16
Staff Report Item 16
To: Ava Community Energy Authority
From: JP Ross, Vice President Local Development
Subject: Two Resolutions of the Board of Directors of Ava Community Energy Authority
Resolution 1 authorizes the CEO to negotiate and execute:
1) A Power Purchase Agreement with Greenbridge LLC for
developing, owning and operating solar and storage projects at City Critical Municipal Facilities
2) An Asset Purchase Agreement with Greenbridge LLC to transfer existing project development assets from Ava to recover expenses incurred by Ava to secure NEM2.0 and progress
projects to Notice to Proceed
Resolution 2:
1) Authorizes the CEO to negotiate and execute Power Purchase Agreements with participating Cities for Ava to sell solar energy generation and energy services purchased from Greenbridge and passed through to the benefitting Cities
2) Approves the use of the previously approved Local
Development budget of $7M to provide Solar and Storage
incentives for Critical Municipal Facilities
Date: November 20, 2024
__________________________________________________________________ Staff Report Item 16
Summary/Recommendation
Adopt resolutions authorizing the CEO to enter into Power Purchase Agreements (PPAs) with Greenbridge LLC and participating Cities to deliver solar energy and resilience services to Cities participating in the Critical Municipal Facilities Program. In addition, provide authorization for Ava to use previously approved Local Development funding as an incentive for participating solar and storage projects.

Financial Impact
The PPA would have minimal budget impact as Ava is acting as pass-through entity for PPAs, which will pay back project development costs over time. The Asset Purchase agreement will recover Ava’s development and expenses for projects reaching Notice to Proceed.

The Fiscal Year 2023 budget approved seven million ($7M) for the Critical Municipal Facilities Program, part of which would be allocated toward these projects. The current portfolio of projects and proposed incentive levels would utilize approximately $2.5M in incentives leaving funding available for future rounds of the Critical Municipal Facilities Program.

Analysis and Context
The Resilient Municipal Critical Facilities Program (“Program”) resulted from a desire by Ava to reduce barriers to solar and solar + storage deployments for local governments in our territory. Local governments often do not have the available staff time, financial resources, or technical expertise to advance these types of projects and may have relatively small facilities with commensurately small projects that cannot take advantage of bulk purchasing. Similarly, solar and storage contractors face high customer acquisition and initial project development costs, which are relatively higher for smaller facilities that cannot support larger solar deployments.

Recognizing these barriers, Ava has undertaken this Program with the following goals:
- Reduce the burden and associated costs to both local governments and developers for site identification, evaluation, and design work by EBCE conducting this initial work with the services of established solar design and engineering firms
- Reduce costs by aggregating sites into a larger portfolio for volume purchasing power
- Reduce PPA contracting costs by Ava serving as a single counterparty for all the customers and sites in the portfolio
- Comply with local government public contracting requirements with uniform contractual terms such as prevailing wage
- Reduce project drop-out risk by obtaining formal city council resolutions from Cities to execute contracts as long as Ava can provide PPA pricing that results in net financial benefits
With the goals stated above, Ava began working with its member cities in 2019 to assemble a list of hundreds of critical facilities across its service territory, ranging from Staff Report Item 16
fire stations, police stations, emergency operation centers, to libraries and community centers. An initial portfolio-level assessment examined each site’s natural hazard exposure, service to the community, and solar and battery potential, providing a set of key sites with preliminary energy resilience system sizes. This preliminary assessment identified an aggregated capacity of approximately 10 MW of solar and 25 MWh of storage across Ava’s member cities. After subsequent rounds of engagement with city leaders, facility managers and other stakeholders Ava selected four cities to develop a proof of concept pilot to confirm that Ava could deliver value as a centralized procurement entity for behind the meter solar + storage projects.

The solar and solar + storage systems are intended to be designed and operated with the following benefits in mind:

1. Provide resiliency back-up for critical loads in the event of grid outages for sites with battery storage.

2. Reduce customer energy bills through Time-of-Use (TOU) energy and demand charge reductions.

3. Manage battery discharge during TOU periods to reduce both customer bills and EBCE wholesale energy procurement requirements (i.e., resource adequacy capacity requirements).

4. Reducing reliance on existing diesel-powered generators, minimizing CO2 equivalent emissions.

Portfolio Cost Effectiveness and PPA pricing
In order to facilitate procurement of energy projects on behalf of member agencies, Ava utilized Government Code Section 4217.10 which allows for the expedited procurement of energy conservation projects by municipal agencies as long as the energy project can provide financial savings over the operating lifetime.

Therefore, Ava has a requirement that any solar + storage portfolio that we bring to a city shall not increase costs over the lifetime of the project compared to current and future projected electricity costs.

Figure 1: Project Cost Effectiveness Measure
City Cost Effectiveness Savings Calculation
Estimated site utility costs during term without projects (-) Estimated site utility costs during term with projects = Estimated City utility bill savings
(-) cumulative PPA payments for the projects
= Cumulative net energy bill savings to City
Staff Report Item 16
PPA Development
Ava determined that the best way to minimize costs for cities would be to develop a standardized ‘Ava PPA’ that Ava could sign with both the cities and the selected development and ownership counterparty. This structure, called a sleeve, allows Ava to be the buyer of energy services from a developer and a seller to our cities, while minimizing risk to Ava.

Ava developed a standard PPA in collaboration with city attorneys that was issued in a Request for Offers (RFO) so that developers would understand the terms of engaging with Ava and our member agencies in this Program.

Pre-Development Investment to Reduce Risk (and Cost)
A key to reducing risk (and cost) for developers in any solar projects is to ensure that customer will sign the agreement and projects are buildable. Ava resolved the first issue with the pre-negotiated PPA and city council resolutions confirming city participation with projects that meet Government Code Section 4217.10. The final piece was to determine which projects would be buildable. Therefore, Ava issued a solicitation in April 2021 for engineering and project development services to assist Ava in compiling the best portfolio of sites for development.

Ava contracted with engineering consulting firms ARUP and EcoMotion to work with Ava and city staff to compile all available documentation on city facilities, develop preliminary pricing estimates and complete site visits on all possible sites to determine which sites could be built. The firms then worked with Ava to develop a Request for Offers with sufficient detail so developers could provide Ava with a firm PPA price without needing to expend resources to visit all the portfolio sites. 2022 Request For Offers
Ava issued an RFO on August 26, 2022, to solicit proposals to deliver cost effective solar + storage Power Purchase Agreements (PPAs) for the Program.

The 2022 portfolio consisted of four (4) city-specific portfolios (for JPA members San Leandro, Berkeley, Hayward, and Fremont) representing 22 facilities and approximately

2.3 MW of solar photovoltaics and 1.9MWh of battery storage. Ava was able to secure $2M in Federal funding from congressionally-directed spending to support the development of these projects.

EBCE received three bids in response to the 2022 RFO for solar and storage PPAs and attempted to negotiate a PPA with Sunwealth LLC (“Sunwealth”). Ava received authorization to negotiate and execute a PPA with Sunwealth at the January 2023 Ava Board of Directors meeting. However, Ava and Sunwealth were not able to agree on the terms of the PPA.

Program Expansion and Interconnection Applications to Secure NEM2.0 Considering the strong support from participating Cities for the Program, Ava staff resolved to re-issue another RFO. Ava had reached out to staff in all remaining EBCE Staff Report Item 16
member agencies to determine when cities would have the ability to participate in the Program. The four Cities of Emeryville, Livermore, Oakland, and Pleasanton passed city council resolutions to participate in the Program. Ava worked with City staff to compile additional sites for the Program with a revised portfolio of eight Cities with 61 sites totaling over 10MW of PV and 20MWh of battery systems.

In April of 2023 California revised the Net Energy Metering (NEM) regulations for grid tied solar projects, moving from NEM 2.0 to NEM 3.0. This lowered the value of solar and storage projects to Ava’s customers by 10-30%. Considering the importance of cost effectiveness of the Program for our Cities, Ava initiated a consulting services agreement with Gridscape to submit Interconnection applications for all 61 sites that had been submitted by the eight participating Cities. Ava received approval in January 2023 from the Board to enter into a consulting services agreement with Gridscape and successfully submitted Interconnection Agreements for those sites by March 15, 2023.

Under the terms of the NEM agreements Projects will need to reach Commercial Operate by April 2026 to receive NEM2.0.
2023 Request for Offers
Ava combined the portfolios of all eight participating Cities and released a revised RFO in November of 2023. The portfolio contained 61 sites with approved NEM2.0 interconnection applications as well as an additional 48 sites that bidders had the option to bid on.

Figure 2: Portfolio sizes issued in the revised 2023 RFO for eight Cities Ava received four bids and 2 bidders were shortlisted. Shortlisted bidders were provided site level energy usage and pre-development assets from Ava in order to provide detailed designs and associated costs to develop the solar and storage projects. After reviewing bids and interviewing respondents Ava selected Greenbridge LLC (Greenbridge) as the project owner. Greenbridge has selected Gridscape as their project developer to complete engineering, procurement, construction and operation of the solar and storage projects. Greenbridge is a North Carolina based commercial and Utility Scale renewable energy financing and development platform. Greenbridge was founded in 2020 by former GE Capital leadership and has funded over $1B in projects.

Gridscape is a local developer, located in Fremont, that has extensive experience developing solar + storage microgrids for public agencies including the City of Fremont and has committed to Ava’s union wage requirements in developing these projects.

Staff Report Item 16
Pre-Development work and Asset Purchase Agreement
Considering the tight timelines associated with executing the Power Purchase Agreements and completing project construction for NEM2.0 projects prior to April of 2026 Ava decided to progress with early development activities to progress projects through to the permitting stage. This would allow Ava and our counterparties to refine project designs, achieve firm pricing and deliver permit ready designs to keep projects on schedule for April 2026 Commercial Operation. The Ava Board approved a Consulting Services Agreement with Gridscape at the July 2024 Board meeting to complete this work. Ava took on this work at risk considering the PPA had yet to be executed with Greenbridge. In order to recover the expenses associated with this work, Ava and Greenbridge have negotiated an asset purchase agreement, which will provide payment from Greenbridge to Ava for the work completed to date. Once projects achieve Notice to Proceed (“NTP”) Greenbridge will pay Ava for the development assets such as the Interconnection Applications and permit ready design sets for the associated project.

Figure 3: Structure of the Asset Purchase Agreement
Final Portfolio and Pricing Structure between NEM2.0 and NEM3.0 projects Ava has been working with City staff and Gridscape to refine the project designs and receive City design approval on the placement of the solar and storage systems. Project designs have been adjusted based on City department siting requests, such as using carports for shade structures, placement of systems and minimizing impacts to City services. These changes have impacted project complexity and pricing and Cities have Staff Report Item 16
continued to work through internal approval processes for participating in the Program.

The Cities of Emeryville and Pleasanton have decided to not participate in this round of the Program and the final list of projects has declined to 34 projects totaling 5.8MW of PV and 11.9MWh of Storage. The challenging reality of achieving Commercial Operation Date for all projects by April 2026 has resulted in a need to prioritize projects between NEM2.0 and NEM3.0 based on project complexity and the savings differentials associated with projects being on NEM2.0 versus NEM3.0.

Figure 4: Final Portfolio
Figure 5: Final Portfolio by type
In order to lock pricing for Cities that ensures cost neutrality Ava and Greenbridge have agreed to a 2-tier pricing structure between NEM2.0 and NEM3.0 projects. NEM2.0 projects have been prioritized for site visits and permit designs which confirm pricing, Staff Report Item 16
while NEM3.0 project pricing is based on conceptual designs only. Therefore, Greenbridge has committed to firm pricing on NEM2.0 projects, and a pricing cap on an adjustment to NEM3.0 pricing that may change based on confirmed final project designs. This pricing structure ensures Cities achieve cost neutrality on the projects. If NEM3.0 pricing on projects is above the pricing cap the City has the right to terminate the project to maintain portfolio savings.

Ava is pricing the PPA with Cities with a 2.5% surcharge to cover Ava administrative expenses like billing and project management, legal fees, extra-ordinary charges and a fund to cover the potential expense of removing systems at the end of the term if Greenbridge does not cover that expense.

Use of Local, Union Labor
Greenbridge and Ava have committed to developing these projects using local, union labor to the extent legally permitted and financially feasible. Greenbridge has committed to hiring contractors and sub-contractors residing in Alameda and San Joaquin counties and to paying prevailing wages in each jurisdiction. Furthermore, Greenbridge has committed to using Union Labor when Union labor can (i) use local hires, (ii) meet project delivery milestones and (iii) be priced to meet portfolio cost neutrality requirements for each City. The current pricing of projects in the portfolio assumes the use of Union Labor on these projects. In the event that the developer cannot find union labor that meets these requirements, they will provide notice to Ava and provide an alternative proposal that meets requirements (i)-(iii) above.

PPA and Asset Purchase Agreement Authorization
Ava staff is requesting authorization from the Board to complete negotiations and execute a PPA and Asset Purchase Agreement with Greenbridge that meets the obligations listed above. The structure of the PPA and associated Asset Purchase Agreement are shown below. The PPA with Greenbridge requires Ava to execute PPAs with participating Cities to become fully effective. Ava has been working with City staff and City Counsel to come to agreement on City specific provisions for each of the six Cities. Ava has structured to current version of all PPAs to manage risk to Ava between the parties.

Staff Report Item 16
Figure 6: Ava PPA Sleeve Structure
Critical Municipal Facility Program Resilience Incentive Authorization In June of 2024 the Ava Board approved $7M for the Critical Municipal Facilities Program. In addition, Ava has been developing a solar and storage incentive program for residentail customers and community resilience hubs that will launch in early 2025.

Staff has discussed the design of the upcoming incentive program at multiple Board and Executive Committee meetings (provide dates). Ava proposes the make the solar and storage incentive for Community Resilience Hubs available to City Critical Municipal Facilities, providing consistency across Ava’s solar and storage incentive programs.

The Solar and Storage incentives would be structured with an upfront incentive for NEM3.0 projects to account for the lower total bill savings that will occur under the NEM3.0 tariff and an ongoing incentive over 5 years for all projects. Projects will be monitored by Ava’s grid services management platform with Lunar energy and will be dispatched for grid services after prioritizing Resilience, Battery reserve margin and facility bill savings.

The incentives for participating projects are expected to total $2.5M dollars across all NEM2.0 and NEM3.0 projects leaving additional incentives available for future rounds of the program. These incentives are expected to be delivered through upfront and ongoing bill credit to the Cities. However, Ava is negotiating the option to utilize incentives in form of a pre-payment which would significantly increase the magnitude of bill savings to the Cities through lower PPA payments. Ava reserves the right to utilize the Pre-Payment as long as sufficient bill savings are achieved.

Staff Report Item 16
Figure 7: CMF Program Incentives
Committee Recommendation
This matter was brought to the Finance and Administrative sub-committee on November 13th as an informational item, however there was not quorum at the meeting.

Attachments
A. Resolution authorizing the CEO to negotiate and execute Power Purchase Agreements with each of the cities participating in the critical municipal facilities program and to provide incentives for the program
B. Resolution authorizing the CEO to negotiate and execute a Power Purchase Agreement and Asset Purchase Agreement with Greenbridge LLC C. Draft Ava/Greenbridge Power Purchase Agreement (PPA) D. Draft Ava/City Power Purchase Agreement (PPA)
E. Draft Ava/Greenbridge Asset Purchase Agreement (APA) F. PowerPoint Presentation
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

EACH OF THE CITIES PARTICIPATING IN THE CRITICAL MUNICIPAL

FACILITIES PROGRAM AND TO PROVIDE INCENTIVES FOR THE

PROGRAM
WHEREAS Ava Community Energy Authority (“Ava”) was formed as a community choice aggregation agency (“CCA”) on December 1, 2016, under the Joint Exercise of Powers 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 Joint Powers Agreement (“JPA”) in March of 2020. The city of Stockton was added as a member to Ava in September of 2022. The city of Lathrop was added as a member to Ava in October of 2023. San Joaquin County was added as a member to Ava in July 2024. On October 24, 2023, Ava 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 has been developing the Resilient Critical Facilities Program (“The Program”) to develop cost effective solar + storage Power Purchase Agreements (“PPAs”) on municipal critical facilities to deliver resilience and energy security to member agencies and their residents,
WHEREAS Seven member agencies; Berkeley, Fremont, Hayward, Livermore, Oakland, Pleasanton and San Leandro have all passed city council resolutions to participate in The Program as long as Ava can deliver solar + storage projects that do not cost more than cities would pay for grid supplied electricity during the course of the PPAs,
WHEREAS Ava has developed a portfolio of sites and a standard form PPA to use for solar and storage resilience projects
WHEREAS Ava issued a Request for Offers (“RFO”) on November 15, 2023, to solicit proposals to deliver cost effective solar + storage PPAs for The Program, WHEREAS Ava received a conforming bid that met Ava’s requirements for cost effectiveness, installation quality and long-term ownership capabilities from Greenbridge LLC (“Project Owner”) and Ava is in the process of negotiating the final details of the PPA
WHEREAS Ava has incorporated City specific requests on site design for the projects
Attachment Staff Report Item 16A
WHEREAS Ava has incorporated City specific terms from City Counsel on the Ava PPA’s with participating Cities
WHEREAS Timeliness is of the essence in signing the PPA with Cities to achieve project Commercial Operation date milestones
WHEREAS Ava has allocated $7M in the FY24/25 Local Development budget to support the Critical Municipal Facilities Program

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 Power Purchase Agreements with each of the Cities participating in the Program.

Section 2. Ava is approved to use the previously approved $7M budget to offer solar and storage incentives for Resilience projects participating in the Program.

ADOPTED AND APPROVED this 20th day of November, 2024.

Jack Balch, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
Attachment Staff Report 16B
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 POWER PURCHASE AGREEMENT AND

ASSET PURCHASE AGREEMENT WITH GREENBRIDGE LLC
WHEREAS Ava Community Energy Authority (“Ava”) was formed as a community choice aggregation agency (“CCA”) on December 1, 2016, under the Joint Exercise of Powers 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 Joint Powers Agreement (“JPA”) in March of 2020. The city of Stockton was added as a member to Ava in September of 2022. The city of Lathrop was added as a member to Ava in October of 2023. San Joaquin County was added as a member to Ava in July 2024. On October 24, 2023, Ava 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 has been developing the Resilient Critical Facilities Program (“The Program”) to develop cost effective solar + storage Power Purchase Agreements (“PPAs”) on municipal critical facilities to deliver resilience and energy security to member agencies and their residents,
WHEREAS Seven member agencies; Berkeley, Fremont, Hayward, Livermore, Oakland, Pleasanton and San Leandro have all passed city council resolutions to participate in The Program as long as Ava can deliver solar + storage projects that do not cost more than cities would pay for grid supplied electricity during the course of the PPAs,
WHEREAS Ava has developed a portfolio of sites and a standard form PPA to use for solar and storage resilience projects
WHEREAS Ava issued a Request for Offers (“RFO”) on November 15, 2023, to solicit proposals to deliver cost effective solar + storage PPAs for The Program, WHEREAS Ava received a conforming bid that met Ava’s requirements for cost effectiveness, installation quality and long-term ownership capabilities from Greenbridge LLC (“Project Owner”) and Ava is in the process of negotiating the final details of the PPA
WHEREAS Ava initiated pre-development work at Ava’s expense on project sites in order to secure Net Energy Metering 2.0 Interconnection Agreements with PG&E that will be re-imbursed by the Project Owner once projects achieve Notice to Proceed Attachment Staff Report 16B
WHEREAS Timeliness is of the essence in signing the PPA and Asset Transfer Agreement with the developers.

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 20 or 25 year Power Purchase Agreement with Greenbridge LLC for the development and operation of Ava’s Resilient Critical Municipal Facilities Program.

Section 2 The CEO is hereby authorized to negotiate and execute an Asset Purchase Agreement with Greenbridge, LLC to transfer existing project development assets from Ava related to the Program.

ADOPTED AND APPROVED this 20th day of November, 2024.

Jack Balch, Chair
ATTEST:

Adrian Bankhead, Clerk of the Board
Green Bridge Comments 2024/11/12
AVA COMMUNITY ENERGY – GREEN BRIDGE

POWER PURCHASE & SERVICE AGREEMENT
(CRITICAL MUNICIPAL FACILITIES)
Attachment Staff Report Item 16C
i

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

1.1 Contract Definitions ................................................................................................... 1

1.2 Rules of Interpretation ................................................................................................ 1 ARTICLE 2 CITY PORTFOLIO ADDENDA; SCOPE OF TRANSACTION ........................................ 2

2.1 City Portfolio Addenda ............................................................................................... 2

2.2 Scope of Transaction .................................................................................................. 3

2.3 Information Sharing and Shared Learning .................................................................... 3 ARTICLE 3 PURCHASE AND SALE OF PRODUCT ........................................................................ 3

3.1 Purchase and Sale of Product ...................................................................................... 3

3.2 Delivery of Project Energy .......................................................................................... 4

3.3 Environmental Benefits .............................................................................................. 4

3.4 Future Environmental Attributes ................................................................................. 4 ARTICLE 4 TERM; EARLY TERMINATION ................................................................................... 5

4.1 Effective Date; Term .................................................................................................. 5

4.2 Early Termination of Projects ..................................................................................... 5 ARTICLE 5 PROJECT DEVELOPMENT; MILESTONES .................................................................. 6

5.1 Generally ................................................................................................................... 6

5.2 Development Progress Reports .................................................................................... 6

5.3 Project Design Approval ............................................................................................. 7

5.4 Construction Start ...................................................................................................... 7

5.5 Interconnection .......................................................................................................... 8

5.6 Commercial Operation ............................................................................................... 8 ARTICLE 6 PROJECT SITE ACCESS AND MAINTENANCE ........................................................ 11

6.1 Access Rights .......................................................................................................... 11

6.2 Maintenance of the Projects ...................................................................................... 11

6.3 Role of Cities in Project Site Maintenance ................................................................. 12

6.4 Outages ................................................................................................................... 13

6.5 Health and Safety ..................................................................................................... 14 ARTICLE 7 TAXES; PROPERTY OWNERSHIP; FIXTURES .......................................................... 14

7.1 Allocation of Taxes and Charges ............................................................................... 14

7.2 Cooperation ............................................................................................................. 14

7.3 Tax Benefits ............................................................................................................ 14

7.4 Ownership of Projects .............................................................................................. 15

7.5 Covenants and Obligations Regarding Liens .............................................................. 15 ARTICLE 8 PERFORMANCE GUARANTEES; WARRANTIES ...................................................... 16

8.1 Guaranteed Energy Production .................................................................................. 16 Attachment Staff Report Item 16C
ii

8.2 Seller Performance Warranties .................................................................................. 16 ARTICLE 9 ADDITIONAL SELLER OBLIGATIONS ..................................................................... 17

9.1 WREGIS ................................................................................................................. 17

9.2 Green-e Certification ................................................................................................ 18

9.3 Subcontractors ......................................................................................................... 18

9.4 Measurement; Meter ................................................................................................ 19

9.5 Station Use .............................................................................................................. 19 ARTICLE 10 INVOICING AND PAYMENT ................................................................................... 19

10.1 Billing and Payment Terms ....................................................................................... 19

10.2 Invoicing ................................................................................................................. 21

10.3 Payment Adjustments; Billing Errors ......................................................................... 22

10.4 Billing Disputes ....................................................................................................... 22

10.5 Books and Records ................................................................................................... 22 ARTICLE 11 CHANGES IN LAW; COMPLIANCE EXPENDITURE CAP ....................................... 23

11.1 Changes in Law ....................................................................................................... 23

11.2 Compliance Expenditure Cap .................................................................................... 23 ARTICLE 12 FORCE MAJEURE; BUDGETARY NON-APPROPRIATION ..................................... 23

12.1 Definition of Force Majeure ...................................................................................... 23

12.2 No Liability if Force Majeure Occurs ........................................................................ 24

12.3 Notice of Force Majeure ........................................................................................... 24

12.4 Mitigation of Force Majeure Event ............................................................................ 24

12.5 Force Majeure Failure .............................................................................................. 25

12.6 Budgetary Non-Appropriation Event ......................................................................... 25

12.7 No-Fault Termination ............................................................................................... 25 ARTICLE 13 DEFAULTS; REMEDIES; TERMINATION ................................................................ 26

13.1 Seller Events of Default ............................................................................................ 26

13.2 Ava Events of Default .............................................................................................. 29 ARTICLE 14 SECURITY DEPOSITS; SECURITY INTEREST ........................................................ 31

14.1 Seller Development Security ..................................................................................... 31

14.2 Seller Performance Security ...................................................................................... 31

14.3 Letter of Credit Default ............................................................................................ 31

14.4 Entitled Draws on Security Deposit ........................................................................... 31

14.5 First Priority Security Interest in Cash or Cash Equivalent Collateral ........................... 32 ARTICLE 15 OPERATION OF STORAGE PROJECTS .................................................................... 32

15.1 Storage Services. ...................................................................................................... 32

15.2 Grid Services ........................................................................................................... 33

15.3 Storage Management. ............................................................................................... 34

15.4 Maintenance of the Storage Projects .......................................................................... 34

15.5 Storage Availability .................................................................................................. 34

15.6 Storage Capacity Tests ............................................................................................. 34 Attachment Staff Report Item 16C
iii

15.7 [Guaranteed Efficiency Rate] .................................................................................... 35 ARTICLE 16 POST-PROJECT TERM OBLIGATIONS .................................................................... 35

16.1 Buyout Option ......................................................................................................... 35

16.2 Relocation of a Project ............................................................................................. 36

16.3 Removal of Projects ................................................................................................. 37

16.4 Abandonment .......................................................................................................... 37

16.5 Transition Services ................................................................................................... 38 ARTICLE 17 REPRESENTATIONS, WARRANTIES, AND COVENANTS ..................................... 38

17.1 Seller Representations and Warranties ....................................................................... 38

17.2 Ava’s Representations and Warranties ....................................................................... 39

17.3 General Covenants ................................................................................................... 39

17.4 Covenants of Seller .................................................................................................. 40

17.5 Covenants of Ava ..................................................................................................... 43 ARTICLE 18 INSURANCE ............................................................................................................. 43

18.1 Required Insurance ................................................................................................... 43 ARTICLE 19 INDEMNIFICATION; LIMITATIONS OF LIABILITY ............................................... 44

19.1 Indemnity by the Parties ........................................................................................... 44

19.2 Notice and Participation in Third Party Claims ........................................................... 44

19.3 Environmental Indemnification. ................................................................................ 45

19.4 Limitations of Liability ............................................................................................. 45 ARTICLE 20 [RESERVED] ............................................................................................................. 46 ARTICLE 21 ASSIGNMENT; FINANCING ACCOMMODATIONS ................................................ 46

21.1 Prohibitions on Assignment ...................................................................................... 46

21.2 Collateral Assignment .............................................................................................. 46 ARTICLE 22 CONFIDENTIALITY ................................................................................................. 48

22.1 Definition of Confidential Information ...................................................................... 48

22.2 Duty to Maintain Confidentiality ............................................................................... 48

22.3 Irreparable Injury; Remedies ..................................................................................... 49

22.4 Disclosure to Financing Parties, etc ........................................................................... 49

22.5 Press Releases .......................................................................................................... 49 ARTICLE 23 MISCELLANEOUS .................................................................................................... 49

23.1 Notices .................................................................................................................... 49

23.2 Account Manager ..................................................................................................... 50

23.3 Entire Agreement; Integration; Exhibits ..................................................................... 50

23.4 Amendments ............................................................................................................ 50

23.5 No Waiver ............................................................................................................... 50

23.6 Governing Law; Venue ............................................................................................. 50

23.7 No Agency, Partnership, Joint Venture or Lease ......................................................... 51

23.8 Dispute Resolution ................................................................................................... 51

23.9 Survival ................................................................................................................... 51 Attachment Staff Report Item 16C
iv

23.10 Severability ............................................................................................................. 51

23.11 Mobile-Sierra ........................................................................................................... 51

23.12 No Recourse to Members of Ava ............................................................................... 52

23.13 Further Assurances ................................................................................................... 52

23.14 Service Contract ....................................................................................................... 52

23.15 Forward Contract ..................................................................................................... 52

23.16 Counterparts; Electronic Signatures ........................................................................... 52 Table of Schedules and Exhibits:

SCHEDULE I

EXHIBIT A FORM OF CITY PORTFOLIO ADDENDUM

EXHIBIT B STORAGE PROJECT ADDENDUM
EXHIBIT B-1 STORAGE CAPACITY TESTS
EXHIBIT B-2 STORAGE PROJECT AVAILABILITY
EXHIBIT B-3 OPERATING RESTRICTIONS
EXHIBIT C [RESERVED]

EXHIBIT D SUBLICENSE

EXHIBIT E PROGRESS REPORT FORM

EXHIBIT F FORM OF CONSTRUCTION START DATE CERTIFICATE

EXHIBIT G FORM OF COMMERCIAL OPERATION DATE CERTIFICATE

EXHIBIT H FORM OF INSTALLED CAPACITY CERTIFICATE

EXHIBIT I NOTICES

EXHIBIT J INSURANCE REQUIREMENTS
Attachment Staff Report Item 16C
General Terms and Conditions | 1

POWER PURCHASE & SERVICE AGREEMENT
This Power Purchase and Service Agreement (this “Agreement”) is entered into as of [____], 2024 (the “Execution Date”) between [____], a [____](“Seller”) and Ava Community Energy, a California joint powers authority (“Ava”). Seller and Ava are sometimes referred to herein individually as a “Party” and jointly as the “Parties”.

RECITALS
WHEREAS, Seller is in the business of developing, constructing, owning, operating, and maintaining renewable energy facilities;
WHEREAS, Ava wishes to engage Seller to develop, construct, own, operate, and maintain multiple photovoltaic solar facilities (each, a “Generating Project”, and collectively the “Generating Projects”) and battery energy storage facilities (each, a “Storage Project”, and collectively the “Storage Projects”) at a variety of locations, as more particularly described in one or more addenda to be attached hereto and incorporated herein (each, a “City Portfolio Addendum” or “CPA”);
WHEREAS, Seller desires to sell, and Ava desires to purchase, the Product on the terms and conditions set forth in this Agreement;
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. All capitalized terms used in this Agreement shall have the meanings ascribed to them in Schedule I to this Agreement.

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;
Attachment Staff Report Item 16C
General Terms and Conditions | 2
(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 term “including” means “including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided; (h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; (i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;
(j) references to any amount of money shall mean a reference to the amount in United States Dollars;
(k) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
(l) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

ARTICLE 2
CITY PORTFOLIO ADDENDA; SCOPE OF TRANSACTION

2.1 City Portfolio Addenda. On the Execution Date, the Parties shall populate and attach hereto a CPA substantially in the form attached hereto as Exhibit A for each of the seven (7) City Portfolios hereunder, which shall specify (i) the mutually agreed upon terms for the purchase and sale of the Product, and (ii) City-Specific Terms that are only applicable to the Projects included in the applicable City Portfolio. Each CPA shall become part of and is hereby incorporated into this Agreement. Any reference to this Agreement shall be a reference to this Agreement together with all duly executed CPAs. In the event of a conflict or inconsistency between the provisions of this Agreement and any CPA, the provisions of the CPA shall control.

Each CPA may be amended at any time upon mutual agreement of the Parties confirmed in writing.

Attachment Staff Report Item 16C
General Terms and Conditions | 3
The Parties agree that an amended CPA executed by both Parties shall supersede any prior CPA to the extent provided in such amendment and shall be effective from the date stated in the amended CPA.

2.2 Scope of Transaction. Ava and Seller acknowledge and agree that following the execution of this Agreement, Ava shall enter into seven (7) different power purchase agreements with seven (7) different Cities, under the terms of which Ava shall be the “seller” entity and the City shall be the “purchaser” entity and which shall be in form and substance similar to this Agreement (each a “City Agreement” and together, the “City Agreements”). Ava shall serve as the intermediary between this Agreement and the City Agreements, whereby each City shall be the ultimate off-taker, and the Seller shall provide the underlying Project output and other performance obligations as required under the terms of this Agreement and the applicable CPA.

Each City Portfolio shall be governed by the terms of its own CPA. In the event of an underperformance or default with respect to a single City Portfolio, such underperformance or default shall not be considered to implicate or in any way effect any other City Portfolio or the continued performance obligations of Ava and Seller, respectively, with respect to all other City Portfolios or Projects thereunder as provided under the terms of this Agreement and all relevant CPAs.

2.3 Information Sharing and Shared Learning. Seller understands and acknowledges that Ava is entering into this Agreement in part to gain operational and market information regarding the performance, efficiency, operations, maintenance, and multiple uses of energy storage and storage assets as an integral part of Ava’s portfolio of assets to meet the Cities’ needs as well as to gain an understanding of the impact of energy storage on load forecasting as a load serving entity. Throughout the Term, subject to the confidentiality requirements set forth in Article 22, upon Ava’s reasonable request, Seller agrees to share with Ava the applicable meter data for the Projects, including hourly charging and discharging data for the PPA Portfolio.

ARTICLE 3

PURCHASE AND SALE OF PRODUCT

3.1 Purchase and Sale of Product. Subject to the terms and conditions of this Agreement, during the applicable Delivery Period, Ava shall purchase all Product produced by or associated with each Project at the applicable Contract Price, and Seller shall supply and deliver to Ava all Product produced by or associated with each Project. At its sole discretion, Ava may during the Term resell or use for another purpose all or a portion of the Product, provided that no such resale shall relieve Ava of any of its obligations hereunder or modify any of Seller’s obligations hereunder. During the Term, Ava shall have the exclusive right to offer, bid or otherwise submit the Product, or any component thereof, from the Projects after the Delivery Point for resale into the market or to any third party, and retain and receive any and all related revenues.

Ava has no obligation to purchase from Seller any Project Energy that is not or cannot be delivered to the Delivery Point as a result of an Outage of the applicable Project or an event of Force Majeure.

3.2 Delivery of Project Energy. Subject to the provisions of this Agreement, with respect to each Generating Project, for the duration of the applicable Delivery Period, Seller shall supply and deliver the Product to Ava at the Delivery Point, and Ava shall take delivery of the Product at the Delivery Point in accordance with the terms of this Agreement. Seller shall be Attachment Staff Report Item 16C
General Terms and Conditions | 4
responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Project Energy to the Delivery Point. Title to and risk of loss related to the Project Energy shall pass and transfer from Seller to Ava at the Delivery Point. Throughout the term, Seller warrants that all Product delivered to Ava shall be free and clear of all liens, security interests, claims, and encumbrances of any kind.

3.3 Environmental Benefits. During the Term, Ava shall have all right, title, and interest in and to all Environmental Attributes, Energy Incentives, and all other incentives associated with the PPA Portfolio and the Project Energy (“Environmental Benefits”); provided, however, that all Tax Benefits shall remain with Seller. Seller agrees to convey and hereby conveys all such Environmental Benefits to Ava as included in the delivery of the Product from the PPA Portfolio. Seller agrees to (i) promptly provide assistance to and cooperate with Ava in all commercially reasonable respects in any applications for Environmental Benefits hereunder, (ii) promptly assign to Ava any Environmental Benefit that is initially credited or paid to Seller, and (iii) comply in all material respects with all Applicable Law relating to the acquisition and maintenance of the Environmental Benefits. Title to and risk of loss related to the Environmental Attributes transferred to Ava shall pass and transfer from Seller to Ava upon the transfer of such Environmental Attributes in accordance with WREGIS.
(a) Impairment of Environmental Benefits. Seller shall not take any action or suffer any omission outside of acts or omissions as a part of normal operations that would have the effect of materially reducing or impairing the value to Ava of the Environmental Benefits.

Seller shall promptly notify Ava of any event, action or omission of which Seller is aware that could have the effect of materially reducing or impairing the value of the Environmental Benefits.

Upon the occurrence of any such event, action or omission, Ava and Seller shall consult as necessary to prevent reduction or impairment of the value of Environmental Benefits.

3.4 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Execution Date, environmental attributes sold under this Agreement are restricted to Environmental Attributes (as such term is defined herein); however, Future Environmental Attributes may be created by a Governmental Authority after the Execution Date. Subject to this Section 3.4(a), in such event, Ava 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 Ava of Ava’s intent to claim such Future Environmental Attributes, the Parties shall determine in good faith the necessary actions and additional costs associated with such Future Environmental Attributes. Seller shall have no obligation to bear any costs, losses or liabilities, or alter any Project, unless the Parties have agreed on all necessary terms and conditions relating to such alteration and Ava has agreed to reimburse Seller for all costs, losses, and liabilities associated with such alteration. (b) If Ava elects to receive Future Environmental Attributes pursuant to Section

3.4(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 mechanism, and (ii) appropriate allocation of any additional costs to Ava, as set forth above (in Attachment Staff Report Item 16C
General Terms and Conditions | 5
any event subject to the Compliance Expenditure Cap set forth in Section 11.2); provided, that the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.

ARTICLE 4
TERM; EARLY TERMINATION

4.1 Effective Date; Term. This Agreement shall be effective upon the later of (x) the Execution Date, and (y) the date upon which at least one of the City Agreements has been executed and delivered, respectively, by Ava and a City (the “Effective Date”) and shall end upon the expiration of the final City Term (“Term”); provided, that prior to the Effective Date those rights and obligations hereunder expressly arising upon the Execution Date (including Article 20 (Indemnification), Article 23 (Confidentiality), and the defined terms in Schedule I used in the foregoing provisions) shall be effective as of the Execution Date. With respect to each City Portfolio (and Seller’s performance obligations associated therewith), this Agreement shall be effective as of the applicable City Effective Date, and shall end upon the expiration of all Project Terms for each Project contemplated under the applicable City Agreement (the “City Term”).

With respect to each Project, the Product supply period (“Delivery Period”) commences on the Commercial Operation Date of the Project and continues for, depending on the Project and as set forth in each CPA, either twenty (20) or twenty-five (25) years (the “Initial Term”), unless terminated earlier pursuant to the provisions of this Agreement. Thereafter, the term of this Agreement may be extended as it applies to such Project, upon mutual written consent, for successive five (5)-year periods (each such period a “Renewal Term”, and together with the Initial Term, the “Project Term”). No less than ninety (90) days prior to the end of the Initial Term, Ava shall provide written notice to Seller as to its desire to continue for any subsequent Renewal Term, upon which the Parties shall negotiate in good faith for sixty (60) days the revised terms, if any, applicable to such Renewal Term. If the Parties do not mutually consent to the Renewal Term after such sixty (60)-day period, then the applicable Project Term will expire at the end of the Initial Term.

4.2 Early Termination of Projects.
(a) Early Termination Events. With respect to each Project, prior to Construction Start, the applicable Party specified below shall have the right to withdraw the affected Project from the applicable City Portfolio upon the occurrence of any of the following events, so long as the terminating Party provides reasonably sufficient evidence to the other Party demonstrating the occurrence of such event (each, an “Early Termination Event”):
(i) Either Party may withdraw an affected Project from the applicable City Portfolio under this Section 4.2 if (A) the EPC Contractor encounters extraordinary subsurface conditions that were not reasonably anticipated by either Party as of the Effective Date, such as bedrock or water pipes, which have a material adverse impact on the development costs associated with such Project, and such costs cannot be adequately mitigated or eliminated by Seller using commercially reasonable efforts; (B) Seller discovers historical or cultural artifacts on the Project Site and as a result, Seller is unable to perform its obligations under this Agreement in compliance with Applicable Law; (C) Seller discovers Adverse Environmental Conditions on the Project Site and the terminating Party obtains an opinion from an independent third-party Attachment Staff Report Item 16C
General Terms and Conditions | 6
consultant (at the sole expense of the terminating Party) that such Adverse Environmental Conditions cannot be adequately mitigated or eliminated by Seller using commercially reasonable efforts; or (D) the applicable City terminates or otherwise withdraws the affected Project from the City Agreement. Notwithstanding any provisions in this Section 4.2(a)(i), (X) Ava may not withdraw, and may not allow a City to withdraw, every Project from a given City Portfolio pursuant to subclause (D) of this Section 4.2(a)(i) (provided, for the avoidance of doubt, Ava or the applicable City may withdraw all but one (1) Project from a City Portfolio pursuant to such subclause (D)), and (Y) if either Party withdraws an affected Project pursuant to subclause (D) of this Section 4.2(a)(i), Seller shall have the right to adjust the Renewable Rate in accordance with Section 10.1(d).
(ii) Only Seller may withdraw an affected Project from the applicable City Portfolio under this Section 4.2 if (A) the Local Electric Utility denies Seller’s application for interconnection or easements necessary to enable Seller to transmit Project Energy to the Delivery Point, or the Project Site is otherwise disqualified due to acts or omissions of Ava or the applicable City, despite Seller’s use of commercially reasonable efforts; (B) the AHJ rejects Seller’s application for a Governmental Approval on non-administrative or prejudicial grounds, despite Seller’s exercise of commercially reasonable efforts; (C) Seller discovers or has reasonable grounds to believe that title to the Project Site is unclear, defective or encumbered by adverse claims, restrictions or liens, and can provide evidence supporting documentation or evidence of such belief; or (D) any portion of the Project Site is damaged by fire, earthquake, flood or other casualty in a manner that has a material adverse effect on the installation or operation of the Project at the Project Site and such damage cannot be readily remedied. (b) Procedures. Upon any such withdrawal of a Project due to an Early Termination Event, the applicable Project Addendum shall be deemed withdrawn from this Agreement, and (1) neither Party shall have any liability to the other Party with respect to the withdrawn Project other than those that survive this Agreement, and (2) Ava shall have the right to deliver a Relocation Request in accordance with Section 16.2. In the case of a claim by either Party that a Project meets the qualification for an Early Termination Event, the other Party may in good faith challenge such a claim in its reasonable judgment. Any disagreement between the Parties regarding the applicability of an Early Termination Event asserted by a Party shall be subject to the dispute resolution provisions of Section 23.8.

ARTICLE 5
PROJECT DEVELOPMENT; MILESTONES

5.1 Generally. Seller shall develop, design, engineer, construct, install, and commission each Project in a timely fashion and in accordance with the terms of this Agreement, Prudent Operating Practice, and Applicable Law.

5.2 Development Progress Reports. With respect to each City Portfolio, starting on the City Effective Date until all Projects within such City Portfolio have achieved COD, Seller shall provide quarterly progress reports (a “Progress Report”) to Ava which describe Seller’s progress in achieving Construction Start and the COD Conditions Precedent for each Project therein. The form of Progress Report is set forth in Exhibit E. Seller agrees to regularly scheduled meetings between representatives of Ava and Seller to review the Progress Reports and discuss Seller’s Attachment Staff Report Item 16C
General Terms and Conditions | 7
construction progress. Seller shall also provide Ava with any reasonably requested documentation (subject to confidentiality restrictions) directly related to the achievement of Construction Start or COD for any Project within ten (10) Business Days of receipt of such request from Ava.

5.3 Project Design Approval. With respect to each Project, no later than ninety (90) days prior to the Estimated Construction Start Date, Seller shall deliver to Ava a Design Plan in accordance with the requirements set forth in Exhibit C, which shall be subject to approval by Ava in its reasonable discretion. Within sixty (60) days following the date on which the Design Plan is received by Ava, Ava shall provide written notice to Seller either (a) accepting the Design Plan, or (b) rejecting the Design Plan, along with its commercially reasonable explanation for doing so, including, but not limited to, (i) any operational issues at the applicable Project Site, or (ii) substantial revisions to the original draft design plan upon which indicative price was based.

If Ava rejects the Design Plan under clause (b) above, within thirty (30) days of receipt of Ava’s rejection, Seller shall modify the Design Plan to address Ava’s objections (such modified plan, the “Modified Design Plan”) and submit such Modified Design Plan to Ava for approval in its reasonable discretion. Within fifteen (15) days following the date on which the Modified Design Plan is received by Ava, Ava shall provide written notice to Seller indicating its acceptance or rejection of the Modified Design Plan. If Ava accepts the Modified Design Plan, such Modified Design Plan shall be deemed the applicable Design Plan for such Project. If Ava rejects the Modified Design Plan, the Parties shall resolve their differences in accordance with the dispute resolution procedures set forth in Section 23.8.

5.4 Construction Start.
(a) Construction Start. With respect to each Project, “Construction Start” shall be deemed to have occurred once Seller has (i) engaged all major contractors and ordered all major equipment and supplies as, in each case, can reasonably be considered necessary so that physical construction of such Project may begin and proceed to completion without foreseeable interruption of material duration, (ii) delivered to Ava a Design Plan which has been approved by Ava in its reasonable discretion in accordance with Section 5.3, (iii) delivered to Ava the Development Security for such City Portfolio in accordance with Section 14.1, and (iv) executed an EPC Contract and issued thereunder a notice to proceed that authorizes the EPC Contractor to mobilize the Project Site and begin physical construction of the Project at the Project Site. The date of Construction Start will be evidence by and subject to Seller’s delivery to Ava of a certificate substantially in the form attached as Exhibit F hereto, and the date certified therein shall be the “Construction Start Date”. With respect to each Project, Seller shall cause Construction Start to occur by the applicable Construction Start Deadline.
(b) Force Majeure Delay. If Seller’s timely achievement of Construction Start is impacted by an event of Force Majeure (“Force Majeure Delay”), Seller shall be entitled to extend the Construction Start Deadline on a day-for-day basis for no more than one hundred twenty (120) days (“FM Delay Cure Period”) so long as Seller provides to Ava written notice of Force Majeure in accordance with the requirements set forth in Section 12.3 on or before the Construction Start Deadline. Upon Ava’s written request, Seller shall provide reasonable documentation demonstrating to Ava’s reasonable satisfaction that the Force Majeure Delay was the result of a Force Majeure event and did not result from Seller’s actions or failure to take commercially reasonable actions. Notwithstanding anything to the contrary in this Agreement, Seller shall Attachment Staff Report Item 16C
General Terms and Conditions | 8
receive no extension under the FM Delay Cure Period if and to the extent that (i) the delay was due to Seller’s failure to take commercially reasonable actions to meet its requirements and deadlines, including the failure to perform due diligence on its suppliers consistent with Prudent Operating Practice, or does not otherwise satisfy the requirements of a Force Majeure event, (ii) Seller failed to provide the requested documentation required under the immediately preceding sentence, or (iii) Seller failed to provide written notice of such Force Majeure Delay to Ava as required under Section 12.3.
(c) Termination for Construction Delay. If Seller has not achieved Construction Start by the Construction Start Deadline (subject to any FM Delay Cure Period thereto) for any reason, Ava shall have the right to declare a Seller Event of Default in accordance with Section

13.1(a)(ii) and terminate the applicable Project.

5.5 Interconnection. With respect to each Project, Seller shall, at its own cost and expense, (a) negotiate and enter into an Interconnection Agreement with the Local Electric Utility, and any other easements or agreements necessary to enable Seller to transmit Project Energy to the Delivery Point, (b) comply with all terms and conditions contained in the Interconnection Agreement as necessary for the safe and reliable delivery of Product, (c) arrange, schedule, and be responsible for any and all electric distribution and transmission service, including any Governmental Approvals required for the foregoing, and (d) be responsible for all costs of interconnecting the Project to the Transmission System. Seller shall (x) fulfill all contractual, metering, and applicable interconnection requirements, including Electric System Upgrades and those requirements set forth in the Local Electric Utility’s applicable tariffs and the CAISO tariff, and (y) implement all applicable CAISO standards and requirements, in the case of each of (x) and (y), so as to be able to deliver the Product to Ava. Seller shall have and maintain throughout the applicable Delivery Period interconnection capacity available or allocable to the Project under the Interconnection Agreement that is no less than the Project Capacity.

5.6 Commercial Operation.
(a) Commercial Operation Deadline. With respect to each Project, Seller shall cause the Commercial Operation Date to occur by the applicable Commercial Operation Deadline. (b) Force Majeure Delay. If Seller’s timely achievement of the Commercial Operation Date is impacted by a Force Majeure Delay, Seller shall upon its provision of written notice to Ava on or before the Commercial Operation Deadline, be entitled to an FM Delay Cure Period. For the avoidance of doubt, no COD Delay Damages shall be owed during such FM Delay Cure Period. Upon Ava’s written request, Seller shall provide reasonable documentation to Ava’s reasonable satisfaction that the Force Majeure Delay was the result of a Force Majeure event and did not result from Seller’s actions or failure to take commercially reasonable actions, including the failure to perform due diligence on its suppliers consistent with Prudent Operating Practice.

Notwithstanding anything to the contrary in this Agreement, Seller shall receive no extension under the FM Delay Cure Period if and to the extent that (i) the delay was due to Seller’s failure to take commercially reasonable actions to meet its requirements and deadlines or does not otherwise satisfy the requirements of a Force Majeure event, (ii) Seller failed to provide the requested documentation required under the immediately preceding sentence or (iii) Seller failed to provide written notice of such Force Majeure Delay to Ava as required under Section 12.3.

Attachment Staff Report Item 16C
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(c) COD Delay Notice; COD Delay Cure Period. Seller shall provide Ava with advanced notice of any delay in achieving the Commercial Operation Date by the Commercial Operation Deadline, including a true and reasonably detailed explanation or the cause of such delay (“COD Delay Notice”) at least sixty (60) days in advance of the Commercial Operation Deadline (or, if Seller’s anticipation of such delay does not arise until after such advanced window, then as soon as reasonably practicable following such anticipation arising). If the Project has not achieved COD by the Commercial Operation Deadline (subject to any FM Delay Cure Period thereto), then Seller may avoid a Seller Event of Default for the duration of the COD Delay Cure Period by paying to Ava the COD Delay Damages for each day of such delay; provided, that such COD Delay Damages shall be paid to Ava in advance on a monthly basis, and a prorated amount shall be returned to Seller if the Commercial Operation Date occurs during the month for which COD Delay Damages were paid in advance. Prior to the expiration of the COD Delay Cure Period, as long as Seller has provided the COD Delay Notice to Ava and paid COD Delay Damages to Ava in accordance with this Section 5.6(c), Seller’s failure to achieve the Commercial Operation Date by the Commercial Operation Deadline shall not be deemed a Seller Event of Default. Upon (A) Seller’s failure to provide a COD Delay Notice to Ava in accordance with this Section 5.6(c), (B) Seller’s failure to timely pay COD Delay Damages in accordance with this Section 5.6(c), or (C) Seller’s failure to achieve the Commercial Operation Date prior to the expiration of the COD Delay Cure Period, in each case for any reason other than a Force Majeure Delay or Ava’s fault or negligence, Seller shall be deemed a Defaulting Party pursuant to Section 13.1(a)(iii) and Ava shall have the right to declare a Seller Event of Default and terminate the applicable Project. (i) Acknowledgement of Liquidated Damages. Each Party agrees that (A) the damages that Ava would incur due to Seller’s delay in achieving the Commercial Operation Deadline would be difficult or impossible to predict with certainty, and (B) the COD Delay Damages are an appropriate approximation of such damages. (d) COD Conditions Precedent. With respect to each Project, Seller shall take all actions and obtain all approvals necessary to meet the obligations of this Agreement, to develop the Project, and to deliver the Product to Ava pursuant to the terms of this Agreement. The following obligations of Seller are conditions precedent to the Commercial Operation Date (collectively, the “COD Conditions Precedent”) and must be satisfied and confirmed via written notice (“COD Completion Notice”) from Seller to Ava at least five (5) days prior to the Commercial Operation Date, to Ava’s reasonable satisfaction:
(i) Seller has delivered to Ava (A) a completion certificate from an officer of Seller certifying the achievement of the Commercial Operation Date substantially in the form of Exhibit G, and (B) a certificate from a Licensed Professional Engineer substantially in the form of Exhibit H setting forth the Installed Capacity as of the Commercial Operation Date; (ii) An Interconnection Agreement between Seller and the Local Electric Utility shall have been executed and delivered and be in full force and effect and a copy of the Interconnection Agreement delivered to Ava;
(iii) An O&M Contract between [Seller] and the O&M Contractor shall have been executed and delivered and be in full force and effect and a copy of the O&M Contract delivered to Ava;
Attachment Staff Report Item 16C
General Terms and Conditions | 10
(iv) Seller has provided Ava with login credentials or access to applicable Software granting access to view applicable network operations of the Project; (v) All applicable regulatory authorizations, approvals, and permits required for operation of the Project, including the final building inspection approval, 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; (vi) Seller has delivered to Ava the Performance Security for the applicable City Portfolio in accordance with Section 14.2; (vii) Insurance requirements for the Project pursuant to Section 19.1 have been met, with evidence provided in writing to Ava;
(viii) As of the Commercial Operation Date, no Seller Event of Default shall have occurred and be continuing and remain unsolved; and (ix) Seller has paid Ava all amounts owing under this Agreement, if any, including COD Delay Damages.
(e) Pre-Operational Testing. No later than five (5) Business Days prior to conducting a pre-operational test to determine the Installed Capacity of the Project in accordance with Section 5.6(d)(i)(B) (the “Pre-Operational Test”), Seller shall notify Ava of the date on which it intends to retain a Licensed Professional Engineer to perform such Pre-Operational Test.

Ava and the applicable City shall have the right to be present during any such Pre-Operational Test.
(f) Confirmation of Commercial Operation Date. Within five (5) Business Days following the date on which the COD Completion Notice is received by Ava, Ava shall either (i) provide notice to Seller accepting the COD Completion Notice, or (ii) if reasonable cause exists for doing so, notify Seller that the COD Conditions Precedent have not been achieved along with a description of the deficiencies. If Ava does not provide notice under either (i) or (ii) above, the COD Completion Notice shall be deemed accepted at the end of such five (5) Business Day period.

If the COD Conditions Precedent have not been satisfied and Ava delivers notice under clause (ii) above, Seller shall promptly perform corrective measures to achieve the deficient COD Conditions Precedent. Upon completing such corrective measures, Seller shall issue a new COD Completion Notice for Ava’s consideration. If Seller disputes Ava’s notice, the Parties shall resolve their differences in accordance with Section 23.8. For the avoidance of doubt, the COD Conditions Precedent will have been achieved either when stated in a COD Completion Notice that is accepted by Ava in its reasonable discretion or when so determined via the dispute resolution procedures in Section 23.8. On or promptly following the Commercial Operation Date (in no event later than five (5) Business Days thereafter), Ava shall provide a notice to Seller confirming the occurrence of the Commercial Operation Date.

Attachment Staff Report Item 16C
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ARTICLE 6

PROJECT SITE ACCESS AND MAINTENANCE

6.1 Access Rights. With respect to each Project, effective on the Effective Date, Ava hereby grants to Seller and its agents, employees, and contractors a Non-Exclusive Sublicense.

6.2 Maintenance of the Projects. Subject to the warranties set forth in Section 8.2, Seller covenants and agrees to the following:
(a) O&M Services. With respect to each Project, Seller shall (i) perform any and all maintenance and repair activities necessary to maintain the Projects in good operating condition, including, but not limited to (A) remedying ordinary wear and tear, to the extent such wear and tear has a material adverse effect on the functioning of the Projects, and (B) except as otherwise limited under the scope of this Agreement, all repairs for damages occurring outside of ordinary exposure and usage; (ii) respond to maintenance requests received by Ava in a timely manner; (iii) monitor the Projects via remote monitoring on an ongoing basis, and conducting any necessary maintenance tasks revealed by such monitoring; and (iv) provide regular updates to Ava regarding the state of issue resolution, scheduled maintenance, and any other information relevant to the performance of the Projects.
(b) Liability for Repairs. All maintenance and repairs, whether scheduled or unscheduled, which are required for the operation of the Projects in accordance with this Agreement shall be undertaken at Seller’s sole cost and expense; provided, however, if Ava, the applicable City, or any invitee thereof, is responsible for any damage or loss of the use of any Project outside of warrantied or normal wear and tear, then Ava shall bear sole responsibility for reasonable charges to remedy such damage to or loss of the use of the Project, the cost of which shall be included within the monthly invoice subject to Seller first receiving a written estimate of the cost of such repairs.

6.3 Role of Cities in Project Site Maintenance.
(a) Maintenance of Premises. Pursuant to the terms of the applicable City Agreement, Ava shall cause each City, at the City’s sole cost and expense, to maintain the applicable Project Sites, Property, and Improvements located in such City in good condition and repair. Ava shall use commercially reasonable efforts to cause each City to (i) maintain each Project Site’s interconnection to the Transmission System, (ii) with respect to each Project, maintain electric service with the Local Electric Utility, (iii) maintain the electrical infrastructure located on the Property, or any other electrical infrastructure located prior to the Delivery Point which is under the reasonable control of the City, including any of the City’s equipment that utilizes Project Energy, and (iv) cooperate with Seller to comply with any technical standard of the Local Electric Utility. Notwithstanding the foregoing, in no event shall Ava have any responsibility to satisfy any of the foregoing obligations if the applicable City fails to do so. (b) Alterations of Premises. To the extent Ava receives proper notice thereof from the applicable City, Ava shall provide notice to Seller no less than twenty-five (25) days in advance of such City’s performance of any alterations or repairs (or, if Ava does not receive notice from the City until after such advance window, then as soon as reasonably possible after receiving Attachment Staff Report Item 16C
General Terms and Conditions | 12
notice thereof) to any Project Site or Improvement which may adversely affect the operation and maintenance of the applicable Project. Upon Seller’s request at least ten (10) days prior to the City initiating such alterations or repairs, Ava shall promptly deliver to City any of Seller’s reasonable requests to mitigate any adverse effect of such alterations or repairs. If any alteration or repair has a permanent and material adverse effect on such Project’s ability to operate in accordance with the terms of this Agreement, Ava shall have the right to deliver a Relocation Request in accordance with Section 16.2.
(c) Insolation. The Parties agree and acknowledge that unobstructed access to sunlight (“Insolation”) is essential to Seller’s performance of its obligations hereunder. Pursuant to the terms of the City Agreement, Ava shall cause the City to agree to (i) not cause or permit any interference with each Generating Project’s Insolation, and (ii) to the extent within such City’s reasonable control, ensure that vegetation on the Property which is adjacent to a Generating Project is regularly pruned or otherwise maintained to prevent interference with the Generating Project’s Insolation. Within five (5) Business Days of the applicable Commercial Operation Date for each Project, Seller shall deliver to Ava a shade report from Suneye or a comparable entity; provided, that Ava shall use commercially reasonable efforts to cause City to deliver any necessary approvals or acknowledgements in connection with the preparation of such shade report and Seller has received any approvals or acknowledgements necessary for the preparation of such shade report.

If the Insolation of any Generating Project is materially reduced during the applicable Project Term due to new obstructions or vegetation, and the applicable City fails to remove or otherwise remedy such obstructions or vegetation within thirty (30) days of receipt of notice thereof, the Expected Project Energy shall be reduced in proportion to the reduction in Insolation.

6.4 Outages.
(a) Planned Outages. With respect to each City Portfolio, at least ninety (90) days prior to the start of the first City Contract Year, and on an annual basis thereafter, Seller shall submit to Ava a schedule of proposed Planned Outages (“Planned Outage Schedule”) for all Projects within such City Portfolio for the following City Contract Year, the form of which shall be reasonably acceptable to Ava. Within sixty (60) days following its receipt of the Planned Outage Schedule, Ava shall notify Seller in writing on any reasonable request for changes to the Planned Outage Schedule, and Seller shall accommodate Ava’s requests regarding the timing of any Planned Outage in accordance with Prudent Operating Practice. Seller may propose changes to any previously schedule Planned Outage by providing notice to Ava at least thirty (30) days prior to such Planned Outage. Ava shall review each such change and advise Seller within fifteen (15) days following Ava’s receipt thereof as to whether such change is accepted, in Ava’s reasonable discretion, or Ava may propose alternate dates for the request change. (i) Planned Outage Hours. Except as otherwise mutually agreed upon by the Parties: (A) the number of Planned Outage hours in any given City Contract Year shall not exceed one hundred twenty (120) hours, plus such additional hours as are reasonably necessary for Seller to comply with maintenance required by Applicable Law; and (B) Seller shall use commercially reasonable efforts to conduct Planned Outages during each Project’s non-peak production periods.

Attachment Staff Report Item 16C
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(b) Ava-Requested Outages. With respect to each Project, Ava may request, upon three (3) days’ advanced written notice, that Seller suspend the delivery of Project Energy from the Project to the Delivery Point for the duration specified in such notice (each such event, an “Ava-Requested Outage”); provided, however, that except as otherwise mutually agreed by the Parties, the number of Ava-Requested Outage hours for each Project in any given City Contract Year shall not exceed one-hundred twenty (120) hours (the “Ava-Requested Outage Cap”). For the avoidance of doubt, Ava shall have no obligation to pay for any Project Energy that would have been delivered during the duration of an Ava-Requested Outage, so long as such outages do not exceed the Ava-Requested Outage Cap for the applicable City Contract Year. (c) Forced Outage. Seller shall take prompt action and use commercially reasonable efforts to cure any circumstance contributing to a Forced Outage that materially reduces a Project’s ability to deliver Product hereunder. To the extent that any Forced Outage causes a shutdown of all electricity service at the Premises such that the applicable Project Site is unable to procure adequate replacement electricity from the Local Electric Utility during such Forced Outage, upon Ava’s request and at Ava’s sole cost and expense, Seller shall use commercially reasonable efforts to provide access to a generator or other temporary alternative power to the Project Site until such Forced Outage is resolved. In the event of any Forced Outage hereunder, Seller shall notify Ava as soon as reasonably practicable but in no event later than three (3) hours after such Forced Outage occurs. Such notice shall generally describe the nature of the Forced Outage, the expected duration, and any other pertinent information that assists Ava in planning for the decreased output of the affected Project as a result of the Forced Outage. Seller shall promptly inform Ava of any change in the expected duration of the Forced Outage. Seller shall return the Project to service as soon as possible, consistent with Prudent Operating Practice, after the Forced Outage ceases to exist.
(i) Communication. If either Party receives information from CAISO or the Local Electric Utility indicating that maintenance will be performed on the Transmission System which may result in a Forced Outage or otherwise have a material adverse effect on a Project, such Party shall deliver notice of such information to the other Party.

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

ARTICLE 7
TAXES; PROPERTY OWNERSHIP; FIXTURES

7.1 Allocation of Taxes and Charges. Seller shall pay or cause to be paid all taxes on or with respect to the Project or on or with respect to the sale and making available of Product to Ava that are imposed on Product prior to its delivery to Ava at the Delivery Point. Ava shall pay or cause to be paid all taxes on or with respect to the Property or on or with respect to the delivery to and purchase by Ava or Product that are imposed on Product at and after its delivery to Ava at Attachment Staff Report Item 16C
General Terms and Conditions | 14
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, Ava shall provide Seller with all necessary documentation within thirty (30) days after the Execution Date to evidence such exemption or exclusion. Nothing shall obligate or cause a Party to pay or be liable to pay any taxes for which it its exempt under Applicable Law.

7.2 Cooperation. Each Party shall use commercially 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.

7.3 Tax Benefits. During the Term, Seller shall have all right, title, and interest in and to all Tax Benefits associated with the PPA Portfolio. Seller shall use commercially reasonable efforts to maximize the value received for each Project from the ITC and applicable ITC adders that are relevant to Project pricing.

7.4 Ownership of Projects.
(a) Ownership; Personal Property. Throughout the Term, Seller shall be the legal and beneficial owner of each Project, and each Project will remain the personal property of Seller and will not attach to or be deemed part of, or fixture to, the applicable Project Site or any Improvement on which such Project is installed. Each of Seller and Ava agree that Seller is the tax owner of each Project and all tax filings and reports shall be filed in a manner consistent with this Agreement. Each Project will at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code.
(b) Notice to Ava Lienholders. Ava shall use commercially reasonable efforts to place all parties having a Lien on the applicable Project Sites or any Improvement on which a Project is installed on notice of the ownership of such Project and the legal status or classification of such Project as personal property. If any mortgage or fixture filing against any Project Site could reasonably be construed as prospectively attaching any Project as a fixture on such Project Site, Ava shall provide a disclaimer or release from such lienholder. (c) Fixture Disclaimer. With respect to each Project Site, if Ava is the fee owner of such Project Site, Ava consents to the filing of a disclaimer of any Project thereon as a fixture of the Project Site in the office where records are customarily filed in the jurisdiction where the Project Site is located. If Ava is not the fee owner, Ava shall obtain consent from the fee owner such that Seller shall have the right to file such a disclaimer in accordance with the terms thereof.

7.5 Covenants and Obligations Regarding Liens. Ava shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, step order, lien (including mechanics, labor or materialmen’s lien), charge, security interest, encumbrance or claim (each, a Attachment Staff Report Item 16C
General Terms and Conditions | 15
“Lien”) on or with respect to the Projects or any portion thereof to any Person other than a Financing Party. Seller shall not directly or indirectly cause, create, incur, assume or suffer to exist any Lien on or with respect to any equipment or property of Ava or the applicable City, other than those Liens that Seller is permitted by Applicable Law to place on Ava’s interest in a Project Site due to Ava’s non-payment of amounts due under this Agreement. If either Party breaches its obligations under this Section 7.5, such breaching Party shall (i) promptly notify the other in writing, (ii) cause any Lien within fifteen (15) days of breaching Party having received written notice thereof to be discharged and released of record without cost to the other Party, and (iii) indemnify the non-breaching Party against all claims, losses, costs, damages, and expenses, including reasonable attorneys’ fees, incurred in discharging and releasing such Lien.

ARTICLE 8
PERFORMANCE GUARANTEES; WARRANTIES

8.1 Guaranteed Energy Production.
(a) Guaranteed Energy Production. With respect to each City Porfolio, starting on the second (2nd) City Contract Year, Seller shall be required to deliver to Ava no less than eighty five percent (85%) of the Expected City Energy (which shall be based on a projected P90 value of such energy production and shall be as set forth in the applicable CPA) measured as a rolling average of three consecutive City Contract Years (“Measurement Period”), commencing on the third City Contract Year (the “Guaranteed Energy Production”). For purposes of determining whether Seller has achieved the Guaranteed Energy Production, and beginning with the fourth City Contract Year, Seller shall be deemed to have delivered to Ava the “Adjusted Energy Production”, which shall consist of (i) all Project Energy (measured in kWh) actually delivered by Seller to Ava during the Measurement Period, and (ii) any energy in the amount it could have delivered to Ava but was prevented from delivering to Ava by reason of (A) the occurrence of an event of Force Majeure (so long as such event of Force Majeure was properly declared in accordance with Section 12.3), (B) Planned Outage, (C) Ava-Requested Outage, and/or (D) Forced Outage. For each City Contract Year, Seller shall be deemed to have achieved the Guaranteed Energy Production if the Adjusted Energy Production is greater than or equal to eighty-five percent (85%) of the Expected City Energy. If Seller fails to achieve the Guaranteed Energy Production amount in any City Contract Year, Seller shall pay Ava damages calculated in accordance with Section 8.1(b).
(b) In any City Contract Year, in the event that Seller fails to achieve the Guaranteed Energy Production, and as Ava’s sole and exclusive remedy therefor, Seller shall pay Ava the Guaranteed Energy Damages accrued during such year; provided, however, that Seller shall have no obligation to pay Guaranteed Energy Damages in excess of seventy-five percent (75%) of the applicable City Generating Payment for such City Contract Year. The Parties specifically recognize that Ava’s damages associated with any Guaranteed Energy Damages will be difficult to quantify. The Guaranteed Energy Damages contemplated in this Section 8.1 are a fair and reasonable calculation of such damages, shall be deemed to constitute liquidated damages, and do not constitute a penalty.

8.2 Seller Performance Warranties.

Attachment Staff Report Item 16C
General Terms and Conditions | 16
(a) Workmanship Warranty. Seller warrants that each Project will be fit for its intended purpose and free from defects in design, materials, and workmanship for a period of three (3) years, starting on the Commercial Operation Date. If the Project (or any component or portion thereof) fails to conform to the foregoing warranty, Seller shall, at its own expense, remedy such defect in a timely manner.
(b) Roof Damage Warranty. Seller warrants that no damage will be inflicted on the roof of any Improvement on which any Project (“Project Roof”) is installed as a result of the installation or maintenance of the Project (“Roof Damage Warranty”). With respect to each Project, Seller shall provide such Roof Damage Warranty starting on the Construction Start date and ending on the date that is the later of (i) ten (10) years after Seller’s most recent performance of installation or maintenance activities on such Project Roof or (ii) the expiration of any then-effective installer warranty on the applicable Project Roof. In the event that Seller damages any Project Roof during the term of the Roof Damage Warranty, Seller shall promptly repair and remedy such damage to the reasonable satisfaction of Ava. (c) Equipment Warranty. With respect to each Project, Seller warrants that on the Commercial Operation Date, all Project Equipment will be (i) new, (ii) Error-Free, (iii) provided by a Tier 1 Supplier, and (iv) with respect to each Storage Project only, (A) benefits from a manufacturer’s warranty (including an energy retention warranty), and (B) includes all of the components, functionality, and other material features that affect performance and the user experience (i.e., data acquisition and operating controls) of a standard, high-quality storage facility. (d) No Implied Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS

AGREEMENT, SELLER MAKES NO WARRANTIES OR GUARANTEES, EXPRESS OR

IMPLIED, AND EXPLICITLY DISCLAIMS ANY WARRANTY OR GUARANTEE IMPLIED

BY LAW, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR

A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES OF CUSTOM OR USAGE.

ARTICLE 9

ADDITIONAL SELLER OBLIGATIONS

9.1 WREGIS. Seller shall take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all RECs corresponding to all Project Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Ava for Ava’s sole benefit.

Seller shall transfer the RECs to Ava. Seller shall comply with all Applicable Law, including the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Ava and Ava shall be given sole title to all such WREGIS Certifications. In addition:
(a) With respect to each Project, prior to the Commercial Operation Date, Seller shall register the Project with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the applicable Delivery Period.

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 Ava or the account(s) of a designee that Ava identifies by notice to Seller (“Ava’s WREGIS Attachment Staff Report Item 16C
General Terms and Conditions | 17
Account”). Seller shall be responsible for all expenses associated with registering each Project 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 Ava’s WREGIS Account.
(b) If (i) WREGIS changes the WREGIS Operating Rules after the Execution Date, (ii) WREGIS applies the WREGIS Operating Rules in a manner that is inconsistent with this Section 9.1 after the Execution Date, or (iii) WREGIS ceases to be in operation as of the Commercial Operation Date of any Project, the Parties shall promptly modify this Section 9.1 as reasonably required to cause and enable to Seller to transfer to Ava a quantity of WREGIS Certificates (or its equivalent, if WREGIS ceases to be in operation) for each given calendar month that corresponds to the Project Energy in the same calendar month.

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

9.3 Subcontractors. Seller may locate and procure the services of properly licensed and qualified subcontractors for the performance of any portion of Seller’s obligations under this Agreement; provided, however, that no such engagement shall relieve Seller of any of its duties, responsibilities, obligations or liabilities hereunder, and Seller shall be liable for such subcontractors to the same extent as if Seller performed the services itself. Prior to engaging any subcontractor, Seller shall ensure that such subcontractor is sufficiently qualified and experienced equal to the standard observed by a competent practitioner of the profession in which the subcontractor is engaged.
(a) Prevailing Wage Requirement. Seller shall use best efforts to ensure that all contractors, subcontractors, and employees hired or contracted by Seller which will perform construction work or otherwise provide services on any Project Site related to the construction of any Project are paid wages at rates not less than those prevailing for workers performing similar work in the locality as provided by applicable California law, if any. Nothing herein shall require Seller or its subcontractors or contractors to comply with, or assume liability created by other inapplicable provisions of any California labor laws. Ava agrees that Seller’s obligations under this Section 9.3(a) will be satisfied upon the execution of a project labor agreement related to construction of the Projects.
(b) Local Requirement. Seller shall ensure that each contractor and subcontractor hired or contracted by Seller which will perform construction work or otherwise provide services on any Project Site related to the construction of any Project (such work or services, the “On-Site Services”, and each such contractor or subcontractor, an “On-Site Contractor”) utilizes Local Hires to carry out seventy-five percent (75%) or more of the total hours spent performing On-Site Services (the “Local Requirement”). For the avoidance of doubt, the Local Requirement shall apply to each On-Site Contractor, regardless of the total number of persons performing such On-Site Services on behalf of such On-Site Contractor. (c) Union Requirement. Seller shall ensure that each On-Site Contractor utilizes union labor in the performance of On-Site Services (the “Union Requirement”).

Notwithstanding the foregoing, if Seller determines in its reasonable discretion that a Project will Attachment Staff Report Item 16C
General Terms and Conditions | 18
not achieve COD by the Commercial Operation Deadline due to its adherence to the Union Requirement, Seller shall provide written notice to Ava as soon as practicable and not less than sixty (60) days prior to the applicable Construction Start Date indicating (i) its efforts to utilize union labor, including a summary of the estimated costs and any delays associated with using union labor, and (ii) the anticipated date it would achieve COD if it were to adhere to the Union Requirement. Within five (5) Business Days of receiving such notice, Ava shall provide written confirmation to Seller indicating whether it will (a) waive the Union Requirement with respect to the applicable Project, or (b) provide an extension to the Commercial Operation Deadline. For the avoidance of doubt, if Ava waives the Union Requirement for any Project in accordance with this Section 9.3(c), Seller shall not be excused from its obligation to comply with the Local Requirement.
(d) Reporting Requirement. Within ten (10) days of Ava’s reasonable request, Seller shall provide Ava with a written report detailing its compliance with the Union Requirement and the Local Requirement.]

9.4 Measurement; Meter. Each Project’s electricity output during the Project Term shall be measured by the applicable City’s meter, which shall be a revenue grade meter that meets ANSI-C12.20 standards for accuracy (the “Meter”). The Meter shall be installed, commissioned, and operated by Seller throughout the applicable Project Term at Seller’s sole cost and expense.

Throughout the Project Term, Seller shall provide reasonable access to the Meter and measurement data associated therewith to Ava and the applicable City.

9.5 Station Use. Seller shall be responsible for procuring and paying for all Station Use. Seller shall indemnify and hold harmless Ava from any and all costs, penalties, charges or other adverse consequences that result from energy supplied for Station Use by any means other than retail service from the Local Electric Utility, and shall take any additional measures to ensure Station Use is supplied by the Local Electric Utility’s retail service if necessary to avoid any such costs, penalties, charges or other adverse consequences.

ARTICLE 10

INVOICING AND PAYMENT

10.1 Billing and Payment Terms.
(a) Prepayment. On or prior to the date upon which twenty percent (20%) of the Generating Projects in the PPA Portfolio have achieved COD (measured on the basis of Guaranteed Nameplate Capacity), Ava, in its sole discretion, shall have the right to make a prepayment of future amounts owed under this Agreement in an amount of up to Four Million Dollars ($4,000,000) (the “Prepayment”). If Ava makes the Prepayment, beginning on the three (3) month anniversary of the Prepayment Date, and for the following two hundred forty (240) months (the “Credit Period”), Seller shall receive a credit towards its Monthly Payment (such credit, the “Prepayment Credit”), which shall be reflected as a line item reduction on Seller’s monthly invoice delivered in accordance with Section 10.2. Each Prepayment Credit shall be calculated in an amount equivalent to enabling Ava to achieve an internal rate of return of eight percent (8%) on the Prepayment and associated Prepayment Credits over the Credit Period.

Attachment Staff Report Item 16C
General Terms and Conditions | 19
(i) If this Agreement is terminated prior to the expiration of the Credit Period for any reason, Seller shall owe Ava a reimbursement payment for any remaining uncredited portion of the Prepayment on a pro rata basis, which shall be measured by multiplying (A) the actual Prepayment amount made by Ava, by (B) the number of remaining months in the Credit Period, divided by the total number of months in the Credit Period as specified in Section

10.1(a) (the “Prepayment Reimbursement”).
(b) Project Savings. Throughout the Term, with respect to each City Portfolio, Seller shall provide Ava with Project Savings. The Parties acknowledge and agree that the Renewable Rates set forth in the table in Section 10.1(c) below have been calculated in a manner to ensure that each City Portfolio achieves estimated Project Savings greater than zero dollars ($0) over the Delivery Term.
(c) Calculation of Monthly Payment. On a monthly basis during the PPA Portfolio Delivery Period, Ava shall pay Seller a Monthly Payment for all Product delivered under the PPA Portfolio, which shall be calculated in accordance with the following:
(i) With respect to each City Portfolio, (A) for each Tranche A Project therein, multiply (1) all PV Energy delivered to Ava at the Delivery Point during the applicable City Contract Month (“Delivered Energy”), by (2) the applicable Tranche A PPA Rate for such City Portfolio set forth in the table below; (B) for each Tranche B Project therein, multiply (1) all Delivered Energy by (2) the applicable Tranche B PPA Rate for such City Portfolio set forth in the table below (the sum of (A) and (B) for all Projects, the “City Generating Payment”); and (C) multiply (1) the Storage Rate for such City Portfolio, as set forth in the applicable CPA, by (2) the Availability Adjustment for such month (as determined under Exhibit B) (such product, the “City Storage Payment”). The City Storage Payment constitutes the entirety of the amount due to Seller from Ava for the Storage Product. Notwithstanding the foregoing, the Parties acknowledge and agree that (X) the Renewable Rates set forth in the following table shall be subject to an annual escalator of two and one-half percent (2.50%) (the “Annual Escalator”), and (Y) other than with respect to such Annual Escalator, such Renewable Rates are to remain fixed for the duration of the Term, except as otherwise set forth in Section 10.1(d).

RENEWABLE RATES BY CITY PORTFOLIO
Berkeley Fremont Hayward San Leandro Livermore Oakland Pleasanton Tranche
A PPA
Rate
$[XX] $[XX] $[XX] $[XX] $[XX] $[XX] $[XX]
Tranche
B PPA
Rate
$[XX] $[XX] $[XX] $[XX] $[XX] $[XX] $[XX]
(ii) The sum of the City Generating Payment and the City Storage Payment shall constitute the “City Monthly Payment”, and the sum of the City Monthly Payment Attachment Staff Report Item 16C
General Terms and Conditions | 20
for all seven (7) Cities hereunder, less the Prepayment Credit, if applicable, shall constitute the “Monthly Payment”.
(d) Adjustments to Renewable Rate. With respect to both the Tranche A PPA Rate and the Tranche B PPA Rate, in the event that any Project is terminated or withdrawn from the applicable City Portfolio due to an Early Termination Event under subclause (D) of Section

4.2(a)(i), the Parties shall negotiate in good faith a revised Renewable Rate for the affected City Portfolio and execute an amendment reflecting such revised Renewable Rate in accordance with Section 23.4; provided, however, that such revised Renewable Rate shall provide the City Portfolio with estimated Project Savings greater than zero dollars ($0). (e) Adjustments to Tranche B PPA Rate. Prior to Construction Start, with respect to the Tranche B PPA Rate only, upon Seller’s delivery to Ava of a reasonably documented design change for any Tranche B Project, Seller may increase the Tranche B PPA Rate for the affected City Portfolio in an amount up to the applicable threshold set forth in the table below (the “City Price Threshold”); provided, however, in the event that Seller increases the Tranche B PPA Rate pursuant to this Section 10.1(e) in excess of the City Price Threshold, Ava may, in its reasonable discretion, terminate or withdraw such Tranche B Project from the affected City Portfolio in order to achieve estimated Project Savings greater than zero dollars ($0) over the Delivery Term at such increased Tranche B PPA Rate, upon which (i) such increased Tranche B PPA Rate shall take effect, and (ii) neither Party shall have any liability to the other Party with respect to the withdrawn Project other than those that survive this Agreement. Any adjustment to the Tranche B PPA Rate made in accordance with this Section 10.1(e) shall be reflected in an amendment executed by both Parties in accordance with Section 23.4.

CITY PRICE THRESHOLDS BY CITY PORTFOLIO
City
Portfolio
Berkeley Fremont Hayward San
Leandro
Livermore Oakland Pleasanton
Threshold [XX] [XX] [XX] [XX] [XX] [XX] [XX]

10.2 Invoicing. On a monthly basis during the PPA Portfolio Delivery Period, Seller shall deliver to Ava an invoice for the Monthly Payment and any other amounts incurred hereunder no later than thirty (30) days after the end of the applicable monthly billing period. Failure to deliver such invoice within seventy-five (75) days of the end of the applicable monthly billing period shall constitute a waiver of Ava’s obligation to compensate Seller for any Product delivered during such month. Such invoice shall include sufficient details such that Ava can reasonably confirm the accuracy of such invoice, including, among other details, (a) records of data from the Meter indicating all PV Energy, Discharging Energy, and Storage Capacity, and (b) the Monthly Payment owed, including, if applicable, any Prepayment Credit applied thereto. Subject to Section

10.3, all invoices issued by either Party pursuant to this Agreement shall be payable by the other Party within forty-five (45) days of receipt. 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 shall 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 Attachment Staff Report Item 16C
General Terms and Conditions | 21
before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement. Such late payment charge shall be calculated based on the lesser of (x) five percent (5%) or (y) the maximum amount permitted under Applicable Law (the “Interest Rate”).

10.3 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Seller or Ava discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Section 10.4 or an adjustment to an amount previously invoiced or paid is required due to a correction of data. If the required adjustment is in favor of Ava, Ava’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 to Ava’s next monthly invoice. Adjustments in favor of either Ava or Seller shall bear interest, until settled in full, in accordance with Section

10.2, accruing from the date on which the adjusted amount should have been due.

10.4 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any computational error within twelve (12) months of the date of such invoice, or adjustment to such invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 10.3 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 12-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.

10.5 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 Applicable Law. Upon ten (10) Business Days’ notice to the other Party, either Party shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated pursuant to this Agreement. Seller acknowledges that in accordance with California Government Code Section 8546.7, Seller may be subject to audit by the California State Auditor with regard to Seller’s performance of this Agreement because the compensation under this Agreement exceeds ten thousand dollars ($10,000). Unless otherwise required by Applicable Law or agreed to by the Parties in writing, an electronic copy of any record shall be deemed an original.

Attachment Staff Report Item 16C
General Terms and Conditions | 22
ARTICLE 11
CHANGES IN LAW; COMPLIANCE EXPENDITURE CAP

11.1 Changes in Law. Subject to Section 11.2 below, in the event that any Change in Law occurring after the Execution Date results in this Agreement or any provisions hereof incapable of being performed or administered, then either Party may request that Seller and Ava enter into negotiations to make the minimum changes to this Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Execution Date. Upon delivery of such a request, the Parties shall engage in such negotiations in good faith. If the Parties are unable, within sixty (60) days after delivery of such request, to agree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then either Party may submit issues pertaining to changes to this Agreement to the dispute resolution process set forth in Section 23.8. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, or constitute, or form the basis of, an event of Force Majeure, and (ii) all unaffected provisions of this Agreement shall remain in full force and effect during any period of such negotiation or dispute resolution.

11.2 Compliance Expenditure Cap. With respect to each Project, if a Change in Law has increased Seller’s known or reasonably expected costs to comply with Seller’s obligations under this Agreement or the applicable CPA (any action required to be taken by Seller to comply with such Change in Law, a “Compliance Action”), then the Parties agree that the maximum amount of costs and expenses Seller shall be required to bear during the Project Term to comply with all such obligations shall be capped at One Hundred Dollars ($100) per kW of such Project’s Guaranteed Nameplate Capacity or Storage Inverter Power, as applicable, in aggregate over the Project Term (the “Compliance Expenditure Cap”). 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 Ava of such anticipated out-of-pocket expenses.

If, within fifteen (15) Business Days after receiving Seller’s notice, Ava does not agree in writing to reimburse Seller for all costs and expenses of Compliance Actions in excess of the Compliance Expenditure Cap, Seller’s obligation to take any and all applicable Compliance Actions, and deliver any and all Product that may not be delivered in the absence of such Compliance Actions, shall be waived.

ARTICLE 12
FORCE MAJEURE; BUDGETARY NON-APPROPRIATION

12.1 Definition of Force Majeure.
(a) “Force Majeure” means an event or circumstance that prevents a Party (the “Affected Party”) from performing, in whole or in part, an obligation under this Agreement that (a) is not reasonably anticipated by the Affected Party as of the Execution Date, (b) is not within the reasonable control of the Affected Party, (c) is not the result of the negligence, fault or failure to act by the Affected Party, and (d) could not be overcome or its effects mitigated by the use of due diligence by the Affected Party. Force Majeure includes the following types of events and circumstances (but only to the extent that such events or circumstances satisfy the requirements in Attachment Staff Report Item 16C
General Terms and Conditions | 23
the preceding sentence): tornado, hurricane, lightning, tsunami, flood, earthquake or other acts of God; fire; explosion; invasion, acts of terrorism, war (declared or undeclared) or other armed conflict; riot, revolution, insurrection or similar civil disturbance; global pandemic (except as excluded below); sabotage; strikes, walkouts, lock-outs, work stoppages or other labor disputes (in each case, not attributable to the actions of Seller); and action, inaction or restraint by a Governmental Authority other than the applicable City that materially impairs the Affected Party’s ability to perform its obligations under this Agreement and does not result from the action or inaction of the Affected Party (or any affiliate thereof), provided that the Affected Party has used and continues to use its commercially reasonable efforts to timely request and diligently pursue the applicable action or inaction of such Governmental Authority. (b) Notwithstanding the foregoing, none of the following shall constitute Force Majeure: (i) Seller’s ability to sell, or Ava’s ability to purchase, energy, capacity or Environmental Attributes at a more advantageous price than what is provided under this Agreement; (ii) inability to obtain any supply of goods or services, unless due to an independent event of Force Majeure; (iii) economic hardship, including lack of money; (iv) the increased cost of electricity, materials, equipment, steel, labor services or transportation; (v) delays in customs or similar regulatory clearance, unless due to an independent event of Force Majeure; or (vi) any equipment failure unless due to an independent event of Force Majeure.

12.2 No Liability if Force Majeure Occurs. The Affected Party shall not be considered to be in default in the performance of its obligations hereunder to the extent that the failure or delay of its performance is due to an event of Force Majeure, and the other Party shall be excused from its corresponding performance obligations for the period of the Affected Party’s failure or delay of performing; provided, that the Affected Party’s excuse from performance is limited to those Projects that are affected by Force Majeure. The burden of proof for establishing the existence and consequences of Force Majeure lies with the Affected Party. With respect to each Project, if the event of Force Majeure occurs during the applicable Delivery Period and impacts the ability of such Project to deliver some or all of the Product, then the applicable Project Term shall automatically be extended on a day-for-day basis for the duration of the event of Force Majeure.

12.3 Notice of Force Majeure. Within two (2) weeks of becoming aware of the event of Force Majeure, the Affected Party shall provide the other Party with written notice describing in detail the occurrence giving rise to the event of Force Majeure, including the nature, cause, estimate date of commencement thereof, the affected Projects, and the anticipated extent of any delay or interruption in performance. Failure to provide timely notice constitutes a waiver of the event of Force Majeure. Upon written request from Ava, Seller shall provide documentation demonstrating to Ava’s reasonable satisfaction that each day of the claimed delay was the result of Force Majeure and did not result from Seller’s actions or failure to exercise due diligence or take reasonable actions. The Affected Party shall promptly notify the other Party in writing of the cessation or termination of such event of Force Majeure, all as known or estimated in good faith by the Affected Party.

12.4 Mitigation of Force Majeure Event. The suspension of a Party’s performance under this Agreement due to a claim of Force Majeure shall be limited to Projects that are materially affected by such event of Force Majeure and must be of no greater scope and of no longer duration than is required by the event of Force Majeure. The Affected Party shall take, or Attachment Staff Report Item 16C
General Terms and Conditions | 24
cause to be taken, such actions as may be necessary to void, nullify or otherwise mitigate, in all material respects, the effects of such event of Force Majeure. The Parties shall take all reasonable steps to resume normal performance under this Agreement after the cessation of any event of Force Majeure.

12.5 Force Majeure Failure. Subject to Section 12.2, with respect to each Project, during the Delivery Period, Ava shall have the right, but not the obligation, to either (x) terminate the applicable Project in accordance with Section 12.7 below or (y) relocate the applicable Project in accordance with Section 16.2, in each case, after the occurrence of the following (each, a “Force Majeure Failure”): (1) due to an event of Force Majeure, Seller is unable to meet its obligations under this Agreement for a period greater than ninety consecutive (90) days; or (2) the Project is (i) destroyed by an event of Force Majeure and Seller is unable to rebuild the Project within one (1) year, or (ii) is rendered permanently inoperable by an event of Force Majeure.

12.6 Budgetary Non-Appropriation Event. Notwithstanding anything to the contrary contained herein, the Parties acknowledge that a City may be unable to appropriate funds for the procurement of the Product hereunder for a particular fiscal year due to constitutional limitations on municipal appropriations (such occurrence, a “Budgetary Non-Appropriation Event”). If (i) a Budgetary Non-Appropriation Event occurs with respect to any City hereunder during the Delivery Period of any Projects within the applicable City Portfolio, and (ii) Ava does not otherwise have appropriated funds available to make its Monthly Payment applicable to such City Portfolio in any given month, then (x) Ava shall notify Seller of the starting date of such Budgetary Non-Appropriation Event (the “Non-Appropriation Start Date”) within forty five (45) days of its receipt of the invoice for the first month affected by such Budgetary Non-Appropriation Event, and (y) as a result, Ava shall have no obligation to accept delivery of or pay Seller for any Product delivered for the period starting on the Non-Appropriation Start Date and ending on the date on which the Budgetary Non-Appropriation Event ends (“Non-Appropriation Period”), which shall be confirmed by Ava in a writing timely delivered to Seller after the applicable City properly appropriates funds for payment hereunder. For the avoidance of doubt, during the Non-Appropriation Period, Seller shall have no obligation to deliver any Product from the applicable City Portfolio. If the Non-Appropriation Period lasts longer than one hundred eighty (180) days, and Ava does not otherwise have funds available for such purpose, Ava may, at its sole discretion, terminate the affected City Portfolio in accordance with Section 12.7. If the Non-Appropriation Period lasts longer than one (1) year, and Ava does not otherwise have funds available for such purpose, Seller may terminate the affected City Portfolio in accordance with Section 12.7.

12.7 No-Fault Termination. If either Party terminates one or more Projects (the “Affected Projects”) due to a Force Majeure Failure in accordance with Section 12.5 or a Budgetary Non-Appropriation Event in accordance with Section 12.6, then upon any such termination (1) neither Party shall have any liability to the other Party with respect to such Affected Projects other than those that survive this Agreement, and (2) Ava shall have the option to (a) deliver to Seller a Relocation Request in accordance with Section 16.2, (b) exercise the Buyout Option in accordance with Section 16.1, or (c) instruct Seller to perform the Removal Services in accordance with Section 16.3. Notwithstanding the foregoing, the occurrence and continuation of an event of Force Majeure or a Budgetary Non-Appropriation Event shall not, to the extent an Event of Default exists during the continuation of an event of Force Majeure or Non-Appropriation Attachment Staff Report Item 16C
General Terms and Conditions | 25
Period, as applicable, limit either Party’s ability to declare an Event of Default pursuant to Article 13 and receive a Termination Payment, to the extent applicable.

ARTICLE 13
DEFAULTS; REMEDIES; TERMINATION

13.1 Seller Events of Default.
(a) Seller Project Default. With respect to the affected Project only, Seller shall be deemed a Defaulting Party upon the occurrence of any of the following (each, a “Seller Project Default”):
(i) Seller refuses after notice and cure periods to execute or unreasonably conditions or delays the execution of any document required for Ava to obtain any Environmental Benefits related to the Project;
(ii) Seller fails to achieve Construction Start by the Construction Start Deadline (subject to any FM Delay Cure Period thereto); (iii) Seller fails to (A) deliver a COD Delay Notice in accordance with Section 5.6(c) or (B) achieve the Commercial Operation Date by the Commercial Operation Deadline (subject to any FM Delay Cure Period or COD Delay Cure Period thereto); (iv) A Forced Outage lasting longer than two hundred seventy (270) days occurs with respect to such Project; provided, however, that this Section 13.1(a)(iv) shall not apply to a Forced Outage caused solely by an event of Force Majeure; (v) Due to acts or omissions of Seller, a mechanics’ Lien is filed against the Project, and such Lien has not been discharged, bonded or contested by Seller in good faith by proper legal proceedings within twenty (20) days of receipt of notice thereof; (vi) Seller fails to complete the Removal Services by the applicable Removal Deadline in accordance with Section 16.3(b); or (vii) If any of the following occurs with respect to any Storage Project during the applicable Delivery Period:
(A) in any rolling two (2)-year period, the average Monthly Storage Availability over such period is less than seventy percent (70%);
(B) Seller fails to achieve an Efficiency Rate of at least seventy percent (70%) during any Storage Capacity Test, provided, Seller shall have the right to cure such failure by achieving an Efficiency Rate equal to or greater than seventy percent (70%) during a Storage Capacity Test in the immediately following six (6)-month period (such period, the “Efficiency Rate Cure Period”);
Attachment Staff Report Item 16C
General Terms and Conditions | 26
(C) Seller fails to achieve a Current Storage Capacity greater than the Guaranteed Storage Energy Capacity provided in the applicable CPA for the applicable City Contract Year, provided, Seller shall have the right to cure such failure by achieving a Current Storage Capacity equal to or greater than the Guaranteed Storage Energy Capacity provided in the
applicable CPA for the applicable City Contract Year in the immediately following six (6)-month period (such period, the “Storage Energy Capacity Cure Period”).
(b) Ava’s Remedies for Seller Project Default. If a Seller Project Default has occurred and is continuing, and following the expiration of any applicable cure period set forth therein, Ava may perform any and all of the following actions: (i) suspend performance under this Agreement with respect to such Project, (ii) accelerate all amounts owing between the Parties with respect to such Project, (iii) withhold a portion of any payments due to Seller under this Agreement in an amount attributable to such Project, (iv) terminate the Project under the applicable CPA; (v) in accordance with Section 14.4, draw upon any Security Deposit in satisfaction of any amounts payable under this Section 13.1(b); and (vi) exercise any other right or remedy available at law or in equity, including specific performance or injunction relief, except to the extent such remedies are expressly limited under this Agreement. Upon the withdrawal of any Project hereunder, Ava shall have the option to (x) require Seller to perform the Removal Services in accordance with Section 16.3 at Seller’s sole expense, or (y) exercise the Buyout Option in accordance with Section

16.1. (c) Seller City Default. With respect to the affected City Portfolio(s) only, Seller shall be deemed a Defaulting Party upon the occurrence of any of the following (each, a “Seller City Default”):
(i) The failure by Seller 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; and
(ii) Seller fails to achieve the Guaranteed Energy Production measured and calculated in accordance with Section 8.1(a) for three (3) or more consecutive City Contract Years.
(d) Ava’s Remedies for Seller City Default. If a Seller City Default has occurred and is continuing, and following the expiration of any applicable cure period set forth therein, Ava may perform any and all of the following actions: (i) suspend performance under this Agreement with respect to such City Portfolio, (ii) accelerate all amounts owing between the Parties with respect to such City Portfolio, (iii) withhold all payments due to Seller under this Agreement which are attributable to the City Portfolio, (iv) terminate the applicable CPA upon providing written notice to Seller, and, upon any such termination of the CPA, demand payment from Seller of the City Termination Payment, (v) in accordance with Section 14.4, draw upon any Security Deposit in satisfaction of any amounts payable under this Section 13.1(d), and (vi) 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.

Attachment Staff Report Item 16C
General Terms and Conditions | 27
Upon the termination of any CPA hereunder, Ava shall have the option to (a) require Seller to perform the Removal Services in accordance with Section 16.3 at Seller’s sole expense, or (b) exercise the Buyout Option in accordance with Section 16.1. (e) Seller Portfolio Default. Seller shall be deemed a Defaulting Party under this Agreement upon the occurrence of any of the following (each, a “Seller Portfolio Default”):
(i) Seller delivers to Ava, without Ava’s prior consent, energy or other product from a resource outside of the PPA Portfolio;
(ii) Any representation or warranty made by Seller 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 Seller is unable to remedy such default within such initial thirty (30) day period despite exercising commercially reasonable efforts); (iii) The failure by Seller 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 13.1), and such failure is not remedied within thirty (30) days after notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if Seller is unable to remedy such default within such initial thirty (30) day period despite exercising commercially reasonable efforts);
(iv) A Bankruptcy Event occurs with respect to Seller;
(v) Seller fails to satisfy the collateral requirements pursuant to Article 14, after notice and expiration of the cure periods set forth therein, including the failure to replenish the Security Deposit in accordance with this Agreement or the occurrence of a Letter of Credit Default;
(vi) Seller fails to maintain any insurance required pursuant to Section

19.1 of this Agreement;
(vii) Seller assigns this Agreement or any of its rights hereunder other than in compliance with Section 22.1; and
(viii) Seller 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 transferring entity fails to assume all the obligations of Seller under this Agreement to which it or its predecessor was a party by operation of law or pursuant to an agreement reasonably satisfactory to Ava. (f) Ava’s Remedies for Seller Portfolio Default. If a Seller Portfolio Default has occurred and is continuing, and following the expiration of any applicable cure period set forth therein, Ava may perform any and all of the following actions: (i) suspend performance under this Agreement, (ii) accelerate all amounts owing between the Parties, (iii) withhold all payments due to Seller under this Agreement, (iv) terminate this Agreement upon providing written notice to Seller, and, upon any such termination of the CPA, demand payment from Seller of the Portfolio Attachment Staff Report Item 16C
General Terms and Conditions | 28
Termination Payment and the Prepayment Reimbursement, if applicable, (v) in accordance with Section 14.4, draw upon any Security Deposit in satisfaction of any amounts payable under this Section 13.1(f), and (vi) 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 no termination may occur unless and until written notice has been delivered to any Financing Party for which Ava has received notice in accordance with Section 21.2. Upon any termination hereunder, Ava shall have the option to (a) require Seller to perform the Removal Services in accordance with Section 16.3 at Seller’s sole expense, or (b) exercise the Buyout Option in accordance with Section 16.1. For the avoidance of doubt, if a Seller Portfolio Default occurs which Ava nonetheless believes, in its reasonable judgment, should be reclassified as a Seller City Default instead, Ava may, in its sole discretion, deem the Seller Portfolio Default to be a Seller City Default and terminate only the affected City Portfolio and otherwise exercise the remedies available under Section 13.1(d) instead.

13.2 Ava Events of Default.
(a) Ava Project Default. With respect to the affected Project only, Ava shall be deemed a Defaulting Party upon the occurrence of any of the following (each, an “Ava Project Default”):
(i) Due to the acts or omissions of Ava, Seller indirectly loses its rights to use and enjoy the Project Site under the Non-Exclusive Sublicense, unless the Parties can agree to Relocate the Project in accordance with Section 16.2; (ii) The occurrence of any act or omission by Ava that operates to suspend, revoke or terminate any certificate, permit, franchise, approval, authorization or power necessary for Seller to lawfully conduct required operations on the Project Site; (iii) The occurrence of any act or omission by Ava or any third party under Ava’s control that materially interferes with the development, construction or operation of any Project, provided that such default is not remedied within ten (10) Business Days after notice thereof.
(b) Seller’s Remedies for Ava Project Default. If an Ava Project Default has occurred and is continuing, and following the expiration of any applicable cure period set forth therein, Seller may perform any and all of the following actions: (i) suspend performance under this Agreement with respect to such Project, (ii) accelerate all amounts owing between the Parties with respect to such Project, (iii) withhold a portion of any payments due to Ava under this Agreement in an amount attributable to such Project, (iv) withdraw the applicable Project from the applicable City Portfolio; and (v) exercise any other right or remedy available at law or in equity, including specific performance or injunction relief, except to the extent such remedies are expressly limited under this Agreement. Upon any termination hereunder, Ava shall have the option to (I) require Seller to perform the Removal Services in accordance with Section 16.3 at Ava’s sole cost and expense, or (II) exercise the Buyout Option in accordance with Section 16.1.

Attachment Staff Report Item 16C
General Terms and Conditions | 29
(c) Ava Portfolio Default. Ava shall be deemed a Defaulting Party under this Agreement upon the occurrence of any of the following (each, an “Ava Portfolio Default”):
(i) The failure by Ava 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 Ava 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 Ava is unable to remedy such default within such initial thirty (30) day period despite exercising commercially reasonable efforts); (iii) The failure by Ava 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 13.2), and such failure is not remedied within thirty (30) days after notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if Seller is unable to remedy such default within such initial thirty (30) day period despite exercising commercially reasonable efforts);
(iv) A Bankruptcy Event occurs with respect to Ava;
(v) Ava assigns this Agreement or any of its rights hereunder other than in compliance with Section 22.1;
(vi) Ava 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 transferring entity fails to assume all the obligations of Ava under this Agreement to which it or its predecessor was a party by operation of law or pursuant to an agreement reasonably satisfactory to Seller; (d) Seller’s Remedies for Ava Portfolio Default. If an Ava Portfolio Default has occurred and is continuing, and following the expiration of any applicable cure period set forth therein, Seller may perform any and all of the following actions: (i) suspend performance under this Agreement, (ii) accelerate all amounts owing between the Parties, (iii) withhold all payments due to Ava under this Agreement, (iv) terminate this Agreement upon providing written notice to Seller, and, upon any such termination of the CPA, demand payment from Ava of the Portfolio Termination Payment, and (v) 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. For the avoidance of doubt, if an Ava Portfolio Default occurs which Seller nonetheless believes, in its reasonable judgment, should be reclassified as an Ava Project Default instead, Seller may, in its sole discretion, deem the Ava Portfolio Default to be an Ava Project Default and terminate only the affected Project(s) and otherwise exercise the remedies available under Section 13.2(b) instead. In addition, upon paying the Portfolio Termination Payment pursuant to this Section 13.2(d), Ava shall have the option to (a) require Seller to perform the Removal Services in accordance with Section 16.3, the costs of which will Attachment Staff Report Item 16C
General Terms and Conditions | 30
be shared evenly between the Parties, or (b) exercise the Buyout Option in accordance with Section

16.1. ARTICLE 14
SECURITY DEPOSITS; SECURITY INTEREST

14.1 Seller Development Security. To secure its obligations under this Agreement, with respect to each City Portfolio, Seller shall deliver the Development Security to Ava within ten (10) Business Days of the applicable City Effective Date. Seller shall maintain the Development Security in full force and effect, and shall within ten (10) Business Days after any draw thereon replenish the Development Security in the event Ava collects or draws down any portion of the Development Security as a result of a Seller Event of Default under this Agreement, until the earlier of (a) Seller’s delivery of the Performance Security, or (b) the early termination of expiration of the applicable CPA. With respect to each City Portfolio, upon the earlier of (x) the first Project’s achievement of COD, or (y) sixty (60) days after the early termination or expiration of the applicable CPA, Ava shall return the Development Security to Seller, less the amounts drawn thereon in accordance with this Agreement.

14.2 Seller Performance Security. To secure its obligations under this Agreement, with respect to each Project, Seller shall deliver to Ava the Performance Security on or before the first Project’s Commercial Operation Date. Seller shall maintain the Performance Security in full force and effect, and Seller shall within ten (10) Business Days after any draw thereon replenish the Performance Security in the event Ava collects or draws down any portion of the Performance Security as the result of a Seller Event of Default under this Agreement, until a) this Agreement has been terminated or has expired in accordance with its terms, and (b) all payment and performance obligations of Seller then due and payable under this Agreement have been paid or performed in full. Following the occurrence of both (a) and (b), Ava shall promptly return to Seller the Performance Security, less any amounts drawn thereon in accordance with this Agreement.

14.3 Letter of Credit Default. If a Security Deposit is in the form of a Letter of Credit, the occurrence of any of the following events shall be deemed a “Letter of Credit Default”: (a) the issuer of such Letter of Credit ceases to be a Qualified Institution; (b) the issuer indicates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to (i) the applicable Commercial Operation Deadline (with respect to the Development Security) or ii) the expiration of the Delivery Period (with respect to the Performance Security); or (c) the issuer fails to honor Ava’s properly documented request to draw on such Letter of Credit by such issuer. Upon the occurrence of a Letter of Credit Default, Seller shall have five (5) Business Days to post or deliver a new Security Deposit that satisfies the requirements of this Article 14.

14.4 Entitled Draws on Security Deposit. At any time during the Term, upon the occurrence of a Seller Event of Default continuing after all the expiration of all applicable cure periods hereunder (or any early termination resulting therefrom), Ava may perform one or more of the following actions to satisfy any damages or other amounts owed by Seller hereunder (each such action, an “Entitled Draw”): (a) exercise any of its rights and remedies with respect to any Security Deposit issued by Seller to Ava under this Agreement; (b) draw on any outstanding Letter of Credit and retain any cash then held by Ava as a Security Deposit under any CPA with respect to any City Portfolio; and (c) liquidate any Security Deposit then held for the benefit of Ava free Attachment Staff Report Item 16C
General Terms and Conditions | 31
from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller; provided, that Ava shall apply any proceeds realized from each Entitled Draw to reduce Seller’s obligations under this Agreement, and Seller shall remain liable for any amounts owed to Ava thereafter; provided, further, that Ava shall be obligated to return any surplus proceeds in excess of the Entitled Draw after Seller’s obligations hereunder have been satisfied. For the avoidance of doubt, in performing an Entitled Draw, Ava may draw upon any Security Deposit then held for the benefit of Ava under this Agreement, regardless of the Project associated with the applicable Seller Event of Default. (a) In no event shall an Entitled Draw by Ava be deemed a waiver of any rights that Seller otherwise has to dispute such Entitled Draw, and Seller shall retain all rights and remedies it may have in that respect under this Agreement or at law to dispute any such underlying claim by Ava and to seek the return of any such funds from Ava if Seller prevails in the dispute.

To the extent the basis for the Entitled Draw by Ava is in connection with an alleged Seller Event of Default under Sections 13.1(a)(vi) or 13.1(c)(i), and such Entitled Draw satisfies the full amount of Seller’s unpaid obligations related to the alleged Seller Event of Default, and Seller replenishes the Security Deposit as required by this Agreement, the alleged Seller Event of Default shall be deemed cured and any right on the part of Ava to terminate this Agreement, in whole or in part, related to the alleged specific Seller Event of Default shall be waived and extinguished.

14.5 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 Ava a present and continuing first-priority security interest (“Security Interest”) in, and Lien on, and assignment of the Development Security, Performance Security, any other cash collateral and cash equivalent collateral posted pursuant to Sections 14.1 and 14.2 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 Ava, and Seller agrees to take all action as Ava reasonably requires in order to perfect Ava’s Security Interest in, and Lien on, such collateral and any and all proceeds resulting therefrom or from the liquidation thereof.

ARTICLE 15

OPERATION OF STORAGE PROJECTS

15.1 Storage Services.
(a) Storage Implementation; Facilities. The Parties shall collaborate in the implementation of an “Energy Management System” or “EMS” software-based solution for the provision of the Storage Services. Seller shall provide, install, maintain, repair, and replace (as necessary), at its own cost and expense, the Storage System as required to integrate the Storage Projects with the Software and perform the Storage Services on behalf of Ava. The Software shall employ a secure authorization methodology for assigning account access. Seller shall maintain policies, procedures, and audit practices around information security and privacy consistent with Prudent Operating Practice, and server site locations shall meet Prudent Operating Practice around customer data security and privacy.
(b) Scope of Storage Services. Seller shall provide the following services (the “Storage Services”): (i) ongoing, real-time remote collection and analysis of data provided Attachment Staff Report Item 16C
General Terms and Conditions | 32
through the Software and the remote management of the Storage Projects through the Monitoring App; (ii) Project Savings for Ava and the Cities through optimal deployment of the PPA Portfolio’s energy storage and distributed energy generation capacity, including Load Modification; and (iii) responsive technical support for issue resolution.
(c) Monitoring App. As part of the Storage Services, Seller shall provide Ava with access to real-time and historical data through a designated web portal or mobile application (any such portals or applications collectively, the “Monitoring App”). The Monitoring App is intended to be used for energy monitoring and visualization purposes only and does not control or otherwise influence the operation of any equipment. In addition, within (1) Business Day after the end of each calendar month, Seller shall deliver to Ava a report containing the hourly submetered or battery inverter charge and discharge data, measured in kWh, for the preceding calendar month. (d) Load Modification Dispatch Report. With respect to each Storage Project, at least thirty (30) days prior to the Commercial Operation Date, and on or before February 20 of each year of the Delivery Period thereafter, Seller shall deliver to Ava a Load Modification Dispatch Report containing the forecasted and historical data set forth in Exhibit K for such Storage Project, which shall subject to approval by Ava in its reasonable discretion.

15.2 Grid Services.
(a) Ava and Seller acknowledge that the Storage Systems are capable of generating revenue through demand response, capacity or wholesale energy (collectively, “Grid Services” and individually, a “Grid Service”).
(b) At any time during the Term, Ava shall have the right to enroll Storage Systems into a contract with a third-party distributed energy resources management provider (the “Grid Services Agreement”) for the provision of front of the meter virtual power plant optimization services or other Grid Services. Upon Ava’s execution of such an agreement with such an agreement with a service provider (the “Grid Services Provider”), Seller shall (1) negotiate in good faith the terms of an integration agreement with such Grid Services Provider, the terms of which shall be approved by Ava in its reasonable discretion, and (2) provide such Grid Services Provider with reasonable access to Storage Systems and work together in good faith to integrate the Grid Services Provider with the Storage System.

15.3 Storage Management.
(a) Seller shall at all times during the Term retain all other aspects of operation and maintenance of the Storage Projects in accordance with Prudent Operating Practice and Applicable Law and adhering to all operational data, interconnection, and telemetry requirements applicable to such Storage Project. Seller shall take any and all action necessary to deliver the Storage Product in accordance with the terms of this Agreement (including the Operating Restrictions), including maintenance, repair or replacement of equipment in Seller's possession or control used to deliver the Charging Energy from a Generating Project to the applicable Storage Project Maintenance of the Storage Projects.
(b) Seller shall not replace existing batteries (unless for critical maintenance purposes) or increase the capacity of any Storage Project without the prior written consent of Ava; Attachment Staff Report Item 16C
General Terms and Conditions | 33
provided, however, that Seller may, in accordance with Sections 8.2(c) and [17.4(f)], add or replace batteries in order to maintain the Current Storage Capacity available to Ava at the Delivery Point.

15.4 Storage Availability.
(a) During the Delivery Period, each Storage Project shall maintain a Monthly Storage Availability of no less than ninety percent (90%) (the “Guaranteed Storage Availability”), which Monthly Storage Availability shall be calculated in accordance with Exhibit B.
(b) If the Monthly Storage Availability during any month is less than the Guaranteed Storage Availability, then Ava’s Monthly Payment shall be calculated by reference to the Availability Adjustment (as determined in accordance with Exhibit B).

15.5 Storage Capacity Tests.
(a) With respect to each Storage Project, prior to the Commercial Operation Date, Seller shall schedule and complete a Storage Capacity Test in accordance with Exhibit B.

Thereafter, Seller and Ava shall have the right to additional Storage Capacity Tests in accordance with Exhibit B.
(b) Ava shall have the right to send one or more representative(s) to witness all Storage Capacity Tests. Ava shall be responsible for all costs, expenses, and fees payable or reimbursable to its representatives(s) witnessing any Storage Capacity Test. Except as otherwise specified in Exhibit B, all other costs or revenues associated with any Storage Capacity Test shall be borne by, or accrue to, Seller, as applicable.
(c) Following each Storage Capacity Test, Seller shall submit a testing report in accordance with Exhibit B. The Current Storage Capacity and Efficiency Rate determined pursuant to a Storage Capacity Test shall become the new Current Storage Capacity and/or Efficiency Rate, at the beginning of the day following the completion of the test for all purposes under this Agreement, including for purposes of determining the applicable City Storage Payment.

ARTICLE 16

POST-PROJECT TERM OBLIGATIONS

16.1 Buyout Option.
(a) Generally. Upon the occurrence of any Buyout Date with respect to any Project hereunder, Ava shall have the right, but not the obligation, to exercise its option to purchase such Project (the “Buyout Option”) for a purchase price equal to the Fair Market Value of the Project (the “Buyout Option Price”). To exercise such Buyout Option, Ava shall, not less than one hundred twenty (120) days and not more than one hundred and eighty (180) days prior to the proposed Buyout Date, provide written notice to Seller of Ava’s intent to exercise the Buyout Option with respect to the applicable Project on such Buyout Date. Within thirty (30) days of receipt of Ava’s notice, Seller shall send written notice to Ava that sets forth the Buyout Option Price for the Project, which notice shall also include Seller’s determination of Fair Market Value and reasonably detailed documentation supporting such determination. Ava shall then have a Attachment Staff Report Item 16C
General Terms and Conditions | 34
period of ninety (90) days after receipt of such notice from Seller to confirm its decision to either (a) exercise the Buyout Option, (b) decline the Buyout Option or (c) dispute Seller’s determination of Fair Market Value in accordance with Section 16.1(c) below. (b) Confirmation of Buyout Option. If Ava confirms its exercise of the Buyout Option in writing to Seller (whether without or after an appraisal rendered in accordance with Section 16.1(c) below) or upon a Transition Event, the Parties shall perform the following actions (together, the “Buyout Option Conditions Precedent”): (1) the Parties shall execute all documents necessary to (A) transfer title to the Project to Ava on the purchase date, as-is, where is, free and clear of all Liens arising by, through or under Seller, and (B) assign to Ava [the applicable O&M Contract,] any manufacturer warranties, permits, Interconnection Agreements, as-built designs, and any other documentation reasonably requested by Ava for the Projects, which are in effect as of the Buyout Date, (2) Ava shall pay the Buyout Option Price to Seller. Upon satisfaction of the Buyout Option Conditions Precedent, the applicable provisions of the CPA and corresponding Non-Exclusive Sublicense shall terminate automatically. (c) Determination of Fair Market Value. If, within thirty (30) days of receipt of the Buyout Option notice described in Section 16.1(a) above, Ava disputes Seller’s determination of Fair Market Value in writing, then each Party shall, at its own cost, select an Independent Appraiser to determine the Fair Market Value of the Project under a written valuation opinion delivered to the Parties. Such valuation opinions shall consider the price that an independent third party would be willing to pay for the Project in place and in use (but not, for clarity, including any revenues expected under this Agreement) in an arm’s length transaction, as well as the age, location, size, equipment type, and anticipated duration. The Fair Market Value of the Project shall be the simple average of the two values provided in the written valuation opinions and shall be binding on the Parties for purposes of determining the Buyout Option Price.

16.2 Relocation of a Project. With respect to each Project, at any time during the Project Term, Ava shall have the right to propose in writing the relocation of the applicable Project to a new Project Site upon the occurrence of a No-Fault Relocation Event or an Ava Fault Relocation Event (a “Relocation Request”). If such Relocation Request is practically feasible and preserves the economic value of the Agreement for Seller, as determined by Seller in its reasonable discretion, the Parties shall seek to negotiate in good faith an amendment to the applicable CPA for the relocation of such Project. Upon the successful relocation of the Project due to an Ava Fault Relocation Event, any Ava Event of Default associated with the original Project Site shall be deemed to have been cured, if applicable, and Seller shall have no right to declare an Ava Event of Default associated therewith. The costs associated with any relocation performed due to an Ava Fault Relocation Event shall be borne entirely by Ava, whereas the costs and expenses associated with any relocation performed due to a No-Fault Relocation Event shall split evenly between the Parties. If the Parties are unable to reach an agreement on the relocation of the Project within one hundred twenty (120) days of Seller’s receipt of the Relocation Request, then such Relocation Request shall be withdrawn and the applicable Project may be terminated in accordance with this Agreement.
(a) For purposes of this Section 16.2, an “Ava Fault Relocation Event” shall be deemed to have occurred if (A) the applicable City (i) terminates the City Agreement, or otherwise withdraws the Project from the City Agreement; or (B) an Ava Event of Default occurs, Attachment Staff Report Item 16C
General Terms and Conditions | 35
and such Ava Event of Default could reasonably be cured by moving the Project to a different Project Site. A “No-Fault Relocation Event” shall be deemed to have occurred if (i) an Early Termination Event occurs, or (ii) a Force Majeure Failure occurs.

16.3 Removal of Projects.
(a) Estimation of Removal Costs. Not less than one hundred fifty (150) days prior to the expiration of each Project Term (or, in the event of an early termination, as soon as reasonably practicable after receiving notice of such termination) Seller shall provide Ava with a written estimate of the cost to perform the Removal Services on the applicable Project Site. Within thirty (30) days after Ava’s receipt of such written estimate, the Parties shall meet and confer to resolve any concerns regarding such estimated costs.
(b) Performance of Removal Services. Upon instruction from Ava, and in connection with the early termination or expiration of a Project Term hereunder, Seller shall, at its own cost and expense, within ninety (90) days after the applicable termination or expiration (the “Removal Deadline”), perform the following actions to remove the Project from the Premises (the “Removal Services”): (i) remove all tangible property comprising the Project, personal property of Seller, and all other equipment, (ii) ensure that the Project Site be returned to substantially its original condition (excluding ordinary wear and tear) including by (x) removing the Project’s mounting pads or other support structures and (y) repairing and restoring the roof and the roof membrane, subject to Section 8.2(b); provided, if Ava exercises the Buyout Option, upon the satisfaction of the Buyout Option Conditions Precedent in accordance with Section 16.1(b), Ava shall have no right to instruct Seller to perform, and Seller shall have no obligation to perform, the Removal Services. Ava shall ensure that Seller is given sufficient access, space, and cooperation as reasonably necessary to facilitate the Removal Services. If Seller fails to remove or commence substantial efforts to remove a Project by the Removal Deadline, Ava may, at its option, remove the Project to a public warehouse and restore the Project Site to its original condition (other than ordinary wear and tear) at Seller’s sole expense, the costs related to which Seller shall reimburse Ava within thirty (30) days of receipt of an invoice thereof. This provision shall survive the expiration or termination of this Agreement and any CPA hereunder.

16.4 Abandonment. If Seller fails to commence the Removal Services by the applicable Removal Deadline, any property not removed from the Project Site shall be deemed abandoned by Seller, and shall become the property of the applicable City and the City may, at its option, remove the Project or Project Equipment from the Project Site and deliver it to a warehouse or otherwise dispose of such property or retain ownership thereof indefinitely, as it determines in its sole discretion. If the City removes the Project from the Project Site after the Removal Deadline, Ava shall be entitled to declare a Seller Project Default pursuant to Section 13.1(a)(vi) and, upon the request of the applicable City, make an Entitled Draw on the applicable Security Deposit in order to reimburse such City for the cost of such Removal Services within thirty (30) days of receipt of an invoice thereof. The City shall have no liability to Seller for any property deemed abandoned pursuant to this Section 16.4. This provision shall survive the expiration or termination of this Agreement and any CPA hereunder.

16.5 Transition Services. Upon the expiration or termination of this Agreement or any CPA hereunder by Ava prior to the end of the applicable Initial Term as a result of a Seller City Attachment Staff Report Item 16C
General Terms and Conditions | 36
Default or Seller Portfolio Default and written request from Ava (a “Transition Event”), Seller shall perform the following work (the “Transition Work”): (a) take commercially reasonable efforts to transition the Projects under the terminated Agreement or CPA to Ava or any other Person designated by Ava, and otherwise facilitate the prompt and orderly transition of the performance of its obligations under the Agreement from Seller to Ava or its designee until the earlier of (i) ninety (90) days after the expiration or termination of the Agreement or applicable CPA or (ii) the Transition Work is completed to the reasonable satisfaction of Ava (the “Transition Period”); and (b) continue to perform its obligations under the Agreement during the pendency of such Transition Period as requested by Ava; provided, however, that in addition to payment of the Buyout Option Price, Ava shall reimburse Seller for the costs directly incurred by Seller as result of the Transition Work, including for the avoidance of doubt any costs incurred during the Transition Period. This provision shall survive the expiration or termination of this Agreement and any CPA hereunder.

ARTICLE 17

REPRESENTATIONS, WARRANTIES, AND COVENANTS

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

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 fulfilment of and compliance by Seller with the provisions of this Agreement will not conflict with or constitute a breach of a default under any Applicable Law presently in effect having applicability to Seller, subject to any Governmental Approvals 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 part or by which any of its property is bound. (d) This Agreement has been duly executed 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.

Attachment Staff Report Item 16C
General Terms and Conditions | 37

17.2 Ava’s Representations and Warranties. As of the Execution Date, Ava represents and warrants to Seller the following:
(a) Ava 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 Ava are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with the Joint Powers Agreement and all Applicable Law.
(b) Ava 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 Ava’s performance under this Agreement. The execution, delivery and performance of this Agreement by Ava has been duly authorized by all necessary action on the part of Ava and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Ava or any other party to any other agreement with Ava.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Ava with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Applicable Law presently in effect having applicability to Ava, the documents of formation of Ava or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Ava is a party or by which any of its property is bound.
(d) This Agreement has been duly executed and delivered by Ava. This Agreement is a legal, valid and binding obligation of Ava 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) Ava is a “local public entity” as defined in Section 900.4 of the Government Code of the State of California.

17.3 General Covenants. Each Party covenants to and for the benefit of the other Party that throughout the Term:
(a) Each Party shall maintain (or obtain from time to time, as required) all Governmental Approvals necessary for it to legally perform its obligations under this Agreement. (b) Each Party shall undertake its obligations under this Agreement in compliance with:
(i) all Applicable Law, including, but not limited to, those related to workplace safety, employment discrimination, prevailing wage, non-discrimination and non-preference, and conflicts of interest; Attachment Staff Report Item 16C
General Terms and Conditions | 38
(ii) Prudent Operating Practices, and
(iii) all applicable operating policies, criteria, rules, guidelines, tariffs, and protocols of the CAISO and the Local Electric Utility, and (iv) all applicable requirements of the CPUC, CARB, FERC, NERC, and WECC (including WECC Scheduling Practices). (c) In connection with activities undertaken pursuant to this Agreement, the Parties shall comply with all applicable international trade laws and regulations, including without limitation the U.S. Export Administration Regulations (“EAR”), 15 C.F.R. Pts. 730-774, and trade and economic sanctions administered by the United States Treasury Department’s Office of Foreign Asset Controls (“OFAC Sanctions”), 31 C.F.R. Pts. 501-599 (collectively, “Trade Laws”).

17.4 Covenants of Seller. Through the Term, Seller covenants to and for the benefit of Ava that throughout the Term:
(a) Seller shall (i) acquire and maintain all permits and Governmental Approvals necessary for the construction, operation, and maintenance of the Projects consistent with this Agreement, including, without limitation, (A) environmental clearance under the California Environmental Quality Act or other environmental law, or (B) any approvals required by the AHJ where each Project Site is located, (ii) notify Ava of any material modifications or lapse in renewal of Governmental Approvals, and (iii) at Ava’s request, provide to Ava digital copies of any Governmental Approvals. For the avoidance of doubt, Ava is solely a purchaser of the Product and does not intend to be the lead agency for any Project. (b) As of the Commercial Operation Date for each Project and for the duration of the applicable Delivery Period, Seller shall obtain and maintain the O&M Contract with the applicable O&M Contractor, and shall use diligent and commercially reasonable efforts to administer and enforce the O&M Contract for each Project substantially in accordance with its terms and Prudent Operating Practices; provided, however, that (i) the obligations under this Section 17.4(b) shall be waived by Ava if the O&M Contract is assigned pursuant to Section 16.1 or Seller is unable to reasonably comply with such obligations as a result of any action or inaction by Ava and (ii) Seller may substitute, replace or modify the O&M Contract or O&M Contractor in a manner consistent with Prudent Operating Practice. (c) Seller shall deliver the Product to Ava free and clear of all liens, security interests, claims, and encumbrances or any interest therein or thereto by any Person. (d) Throughout the Term, all personnel performing operation and maintenance services for the Projects shall be licensed and in good standing, and sufficiently qualified, experienced, and trained in accordance with Prudent Operating Practices. (e) Seller shall not discriminate against any subcontractor, employee or applicant for employment, or in the provision of services provided under this Agreement because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical condition, political beliefs, organizational affiliates or marital status in the recruitment or selection for training, including apprenticeship, hiring, employment, utilization, promotion, layoff, rates of pay or other forms of compensation.

Attachment Staff Report Item 16C
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(f) None of Seller, its employees, subcontractors or agents (the “Seller Representatives”) have been suspended, barred, or excluded from, or ineligible for, receiving federal or state funds. Seller shall notify Ava if a Seller Representative is suspended, barred, excluded, or determined to be ineligible for receiving state or federal funds at any time during the Term within thirty (30) days of Seller receiving knowledge thereof. (g) If any product being offered, delivered or supplied to Ava or at any Project Site in connection with this Agreement is listed in the Hazardous Substances list of the Regulations of the Director of Industrial Relations with the California Occupational Safety and Health Standards Board, or if the product presents a physical or health hazard as defined in the California Code of Regulations, General Industry Safety Order, Section 5194 (T8CCR), Hazard Communication, the Seller shall include a Material Safety Data Sheet (“MSDS”) with delivery or shipment to the applicable Project Site. Each MSDS shall include the contract/purchase order number and identify the “Ship To Address.” Seller shall ensure all shipments and containers comply with the labeling requirements of Title 49, Code of Federal Regulations by identifying the Hazardous Substance, name and address of the manufacturer, and the appropriate hazard warning regarding potential physical safety and health hazards. (h) Seller shall implement and cause its direct and indirect contractors, subcontractors, and suppliers that are responsible for fulfilling Seller’s obligations under this Agreement to implement policies and procedures reasonably designed to ensure compliance with applicable Trade Laws.
(i) Seller shall not procure Project Equipment or otherwise use in any Project any equipment or services of any Person that is: (A) organized under the laws, ordinarily resident in, or located in a country or territory that is the subject of comprehensive OFAC Sanctions (which as of the date of this Agreement comprise Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine); (B) designated on a sanctioned parties list administered by the United States, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, Sectoral Sanctions Identification List, and the U.S. Commercial Department’s Entity List, Denied Parties List, Unverified List, and Military End-User List; or (C) owned or controlled by parties described in clause (A) or (B) of this section. (ii) Seller shall not use Modern Slavery in connection with any Project, and will not permit, and will use commercially reasonable efforts to prevent, the use of Modern Slavery by its direct and indirect contractors, subcontractors, suppliers or any other Persons involved in Seller’s supply chain for the Projects hereunder (collectively, the “Supply Chain Parties”).
(iii) Seller covenants that none of the Project Equipment or any components or materials incorporated therein are, have been or will be mined, manufactured, or produced in the Xinjiang Region of the People’s Republic of China or by any entity listed in the U.S. Department of Homeland Security’s UFLPA Entity List, available at https://www.dhs.gov/uflpa-entity-list (such entities, the “UFLPA Entities”), and that no Modern Slavery is, has been, or will be used at any stage of the process where any Project Equipment or Attachment Staff Report Item 16C
General Terms and Conditions | 40
any components or materials incorporated therein are, have been, or will be so mined, manufactured, or produced.
(iv) Seller undertakes that, with respect to all imports of Project Equipment and any components or materials incorporated therein, whether past or future, Seller shall confirm that the Supply Chain Parties are aware of the UFLPA and are maintaining documentary evidence to support the representations and covenants in this Section 17.4, including, but not limited to, the supply chain documentation referenced in the Department of Homeland Security’s Best Practices for Applicability Reviews: Importer Responsibilities, first published on February 29, 2024, and other relevant Department of Homeland Security Publications ( the “Supply Chain Documentation”). If Seller or any Supply Chain Party receives a detention notice from the Customs and Border Protection (“CBP”) for any Project Equipment or any components or materials incorporated therein, or upon Ava’s reasonable request, Seller shall procure, or shall cause the Supply Chain Parties to procure, Supply Chain Documentation that support the representations and covenants in this Section 17.4 and will provide such documentation within five (5) days of Ava’s reasonable request.
(v) If Seller or any Supply Chain Party receives a CBP detention notice for any Project Equipment or if there are any other reasonable grounds to believe that any breach of any of the requirements set forth in this Section 17.4 has occurred, or will occur, then, within ten (10) Business Days after (1) written notice from Ava, or (2) Seller becoming aware of such events, Seller will deliver a Remedial Action Plan to Ava. Seller will have thirty (30) days from the date of Ava’s written approval of the Remedial Action Plan to substantially implement such plan.
(vi) Seller shall cooperate with reasonable requests for information related to City’s periodic review of Ava’s performance or to enable Ava to furnish required information to a Governmental Authority. Such requests for information shall be made upon no less than forty-five (45) days’ advance written notice to Seller.

17.5 Covenants of Ava. Throughout the Term, Ava covenants to and for the benefit of Seller that throughout the Term:
(a) With respect to each City Portfolio, (a) Ava shall have the requisite right, power, and authority under the applicable City Agreement to grant the Non-Exclusive Sublicenses in accordance with Exhibit D, and (b) such grant of each Non-Exclusive Sublicense does not violate any Applicable Law and is not inconsistent with and with not result in a breach or default under any agreement by which Ava is bound or which affects the Project Sites. (b) No portion of the Project Energy shall be used to heat a swimming pool.

ARTICLE 18

INSURANCE

18.1 Required Insurance. At all times during the Term, the Parties shall maintain insurance policies in accordance with the following terms. No obligation provided under this Article 19 shall limit the obligations of Seller or Ava under the indemnification provisions set forth in Article 20.

Attachment Staff Report Item 16C
General Terms and Conditions | 41
(a) Seller Insurance. As of the Execution Date and throughout the Term, Seller shall obtain and maintain in full force and effect coverage in the amounts and types set forth in Exhibit J.
(b) City Insurance. Each City is a self-insured public agency. Upon Seller’s request, Ava shall use commercially reasonable efforts to request and obtain from each City certificates of insurance evidencing such City’s insurance coverage applicable to the Project Site. (c) Insurance Policy Requirements. Each policy of insurance maintained by Seller shall (1) be with insurers (i) of recognized responsibility authorized to do business in the state of California, and (ii) with an A.M. Best Rating of no less than A-VII; (2) contain endorsements providing that such policy shall not be cancelled or amended with respect to the named insured and its designees without thirty (30) days’ prior written notice; and (3) provide for waiver of subrogation rights against the other Party, and of any right of the insurers to any set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of that policy. Each Party shall, within ten (10) days of written request therefor, furnish current certificates of insurance to the other Party evidencing the insurance required hereunder. (d) No Waiver of Obligations. The provisions of this Agreement shall not be construed in a manner so as to relieve any insurer of its obligations to pay any insurance proceeds in accordance with the terms and conditions of valid and collectable insurance policies. The liabilities of each Party to the other shall not be limited by insurance.

ARTICLE 19
INDEMNIFICATION; LIMITATIONS OF LIABILITY

19.1 Indemnity by the Parties. To the fullest extent permitted by law, each Party (the “Indemnifying Party”) shall defend, indemnify, and hold harmless, with counsel of its own choosing (subject to terms of the next paragraph), the other Party, and its successors and assigns, and their elected officials, officers, directors, employees, agents, affiliates and representatives (each, an “Indemnified Party”) from and against any and all third-party claims, liability or losses (“Claims”), including but not limited to those losses arising from (a) personal injury or death, (b) damage to property, (c) taxes for which the Indemnifying Party is responsible under this Agreement, (d) fines or penalties payable by the Indemnified Party, (e) the Indemnifying Party’s violation of Applicable Law, (f) breach of the confidentiality requirements set forth in Article 22, and (g) any other actions resulting in damages, losses or liabilities to the extent such losses result from or arise out of or in any way are connected with the Indemnifying Party’s performance of this Agreement or in the case of Seller, Ava’s use of any service, technology or good provided by Seller to Ava under this Agreement infringes any patent, trademark, copyright or other intellectual property right, including trade secret rights, of a third-party, except as may arise solely from the negligence, willful misconduct or violation of Applicable Law by Ava, its officers, employees, subcontractors or agents. Notwithstanding the above, an Indemnifying Party shall not be required to defend, indemnify, and hold harmless an Indemnified Party for the Indemnified Party’s own negligent acts, omissions or willful misconduct. It is the intent of the Parties that where negligence is determined to have been joint or contributory, principles of comparative negligence will be followed, and each Party shall bear the proportionate cost of any loss damage, expense or liability attributable to that Party’s negligence.

Attachment Staff Report Item 16C
General Terms and Conditions | 42
(a) Design Professional Services. To the extent that a portion of Seller’s services under this Agreement are design professional services subject to Civil Code Section 2782.8, and to the extent that a particular claim or litigation arises from such design professional services, Seller’s obligations under this Section 19.1(a) shall be subject to any applicable limitations mandated by Civil Code Section 2782.8.

19.2 Notice and Participation in Third Party Claims. The Indemnified Party shall give the Indemnifying Party written notice with respect to any liability asserted under a Claim as soon as possible upon the receipt of information of any possible Claim or of the commencement of such Claim. The Indemnifying Party may assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnified Party may, however, select separate counsel if both Parties are defendants in the Claim and such defense or other form of participation is not reasonably available to the Indemnifying Party. The Indemnifying Party shall pay the reasonable attorneys’ fees incurred by such separate counsel until such time as the need for separate counsel expires. The Indemnified Party may also, at the sole cost and expense of the Indemnifying Party, assume the defense of any Claim if the Indemnifying Party fails to assume the defense of the Claim within a reasonable time.

Neither Party may settle any Claim covered by this Section 19.2 unless it has obtained the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.

The Indemnifying Party has no liability under this Section 19.2 for any Claim for which such notice is not provided if the failure to give notice prejudices the Indemnifying Party. All of the Parties’ obligations under this Section 19.2 are intended to apply to the fullest extent permitted by Applicable Law and shall survive the expiration or sooner termination of this Agreement.

19.3 Environmental Indemnification.
(a) Seller Indemnity. Seller shall indemnify, defend, and hold harmless each of Ava and its affiliates, contractors, agents, and employees from and against all liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance to the extent deposited, spilled or otherwise caused by Seller or its of its affiliates, contractors, agents, or employees, to the extent such liabilities do not result from the negligence or willful misconduct of Ava or a City.
(b) Ava Indemnity. With respect to each City Portfolio, Ava shall indemnify, defend, and hold harmless Seller, its affiliates, contractors, agents, and employees from and against all liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance, except to the extent deposited, spilled or otherwise caused by Ava, a City, or any of Ava or a City’s affiliates, contractors, agents or employees, to the extent such liabilities do not result from the negligence or willful misconduct of Seller. (c) Notices. Each Party shall promptly notify the other Party if it becomes aware of any Hazardous Substance on or about the Premises generally or any deposit, spill or release of any Hazardous Substance.

19.4 Limitations of Liability.

Attachment Staff Report Item 16C
General Terms and Conditions | 43
(a) Waiver of Consequential Damages. EXCEPT TO THE EXTENT PART OF (A) AN EXPRESS REMEDY OR EXPRESS MEASURE OF DAMAGES HEREIN,

INCLUDING ANY TERMINATION PAYMENT, (B) A THIRD PARTY INDEMNITY CLAIM, OR (C) RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL

MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY

SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTIAL 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 STATE, IN TORT OR IN CONTRACT.
(b) Cumulative Remedies. IF NO REMEDY OR MEASURE OF DAMAGES

IS EXPRESSLY PROVIDED, OR IF A REMEDY OR MEASURE OF DAMAGES IS

EXPRESSLY NON-EXCLUSIVE, THE NON-DEFAULTING PARTY SHALL HAVE THE

RIGHT TO EXERCISE ALL RIGHTS AND REMEDIES AVAILABLE TO IT AT LAW OR IN

EQUITY, PROVIDED, HOWEVER, THAT THE LIABILITY OF THE DEFAULTING PARTY

SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES ONLY AND ALL OTHER DAMAGES AND REMEDIES ARE WAIVED.
(c) Exclusive Remedies. FOR BREACH OF ANY PROVISION OF THIS

AGREEMENT FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS

PROVIDED IN THIS AGREEMENT, 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.
(i) TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID

HEREUNDER ARE LIQUIDATED, 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 ANTICIPATION HARM OR LOSS.

ARTICLE 20
[RESERVED]
ARTICLE 21
ASSIGNMENT; FINANCING ACCOMMODATIONS

21.1 Prohibitions on Assignment. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns. Neither Party shall have the right to assign any of its rights, duties or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The foregoing notwithstanding, either Party may, without the prior written consent of the other Party, (a) transfer, sell, pledge, encumber or assign this Agreement or the accounts, revenues or proceeds hereof in connection with any financing or other financial arrangements to any Financing Party in accordance with Section 21.2, (b) transfer or assign this Agreement to an affiliate of such Party, or (c) with respect to Ava only, transfer or assign this Agreement to any Person with an Investment Attachment Staff Report Item 16C
General Terms and Conditions | 44
Grade credit rating at the time of assignment; provided, however, that in the case of any transfer or assignment pursuant to clauses (b) or (c) above, any such transferee or assignee agrees in writing to be bound to the terms and conditions of this Agreement; provided, further, if any transfer or assignment by Seller only pursuant to clause (b) above is to a Person whose creditworthiness is lower than that of Seller as of the Execution Date, then Seller shall provide a guaranty agreement in favor of Ava, in form and substance reasonably satisfactory to Ava, guaranteeing all performance and payment obligations of such assignee or transferee under this Agreement, or shall otherwise remain jointly and severally liable for all obligations of the assignee or transferee hereunder.

21.2 Collateral Assignment. Subject to the provisions of this Section 21.2, Seller has the right to assign this Agreement, any CPA or any Non-Exclusive Sublicense as collateral for any financing or refinancing of any Projects. In connection with any financing or refinancing of any Project by Seller, Ava shall in good faith work with Seller and any Financing Party to agree upon a consent to collateral assignment of this Agreement (“Collateral Assignment Agreement”).

Each Collateral Assignment Agreement must be in form and substance agreed to by Ava, Seller, and the applicable Financing Party, such agreement not to be unreasonably withheld. Ava will not be subject to obligations under more than one Collateral Assignment Agreement at any time. Each Collateral Assignment Agreement must include, among others, the following provisions unless otherwise agreed to by Ava, Seller, and the applicable Financing Party:
(a) Ava shall give notice of a Seller Event of Default to the Person(s) to be specified by Financing Party in the Collateral Assignment Agreement before exercising its right to terminate this Agreement as a result of such Seller Event of Default; provided that such notice shall be provided to Financing Party at the time such notice is provided to Seller and any additional cure period of Financing Party agreed to in the Collateral Assignment Agreement shall not commence under Financing Party has received notice of such Seller Event of Default; (b) Financing Party will have the right to cure a Seller Event of Default if Financing Party sends a written notice to Ava before the later of (i) the expiration of any cure period, and (ii) five (5) Business Days after Financing Party’s receipt of notice of such Seller Event of Default from Ava, indicating Financing Party’s intention to cure. Financing Party must remedy or cure such Seller 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; (c) Following a Seller Event of Default, Ava may require Seller (or Financing Party, if Financing Party has provided the notice set forth in subsection (b) above) to provide to Ava a report concerning: (i) the status of efforts by Seller or Financing Party to develop a plan to cure the Seller 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 Ava may reasonably require related to the development, implementation, and timetable of the cure plan. Seller or Financing Party must provide the report to Ava within ten (10) Business Days after notice from Ava requesting the report. Ava will have no further right to require the report with respect to a particular Seller Event of Default after such Seller Event of Default has been cured; Attachment Staff Report Item 16C
General Terms and Conditions | 45
(d) Financing Party shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default; (e) Financing Party will receive prior notice of and the right to approve material amendments to this Agreement, which approval shall not be unreasonably withheld, delayed or conditioned;
(f) If this Agreement is transferred to Financing Party pursuant to subsection (b) above, Financing Party must assume all of Seller’s obligations arising under this Agreement on and after the date of such assumption;
(g) If Financing Party elects to transfer this Agreement, the Financing Party must cause the transferee to assume all of Seller’s obligations arising under this Agreement arising after the date of such assumption 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 any Financing Party’s cure of any Events of Default under this Agreement in accordance with this Section 22.2, if (i) this Agreement is rejected in Seller’s bankruptcy or otherwise terminated in connection therewith Financing Party or its designee shall have the right to elect within ninety (90) days after such rejection or termination, to enter into a replacement agreement with Ava having substantially the same terms as this Agreement for the remaining term thereof, and, promptly after Financing Party’s written request, Ava must enter into such replacement agreement with Financing Party or Financing Party’s designee, or (ii) if Financing Party or its designee, directly or indirectly, takes possession of, or title to, the Projects after any such rejection or termination of this Agreement, promptly after Ava’s written request, Financing Party must itself or must cause its designee to promptly enter into a new agreement with Ava having substantially the same terms as this Agreement for the remaining term thereof, provided that in the event a designee of Financing Party, directly or indirectly, takes possession of, or title to, the Projects (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), if such designee is not an entity that meets the definition of Permitted Transferee then such designee shall be subject to the prior written approval of Ava, such approval not to be unreasonably withheld.

ARTICLE 22

CONFIDENTIALITY

22.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written, which is delivered by Seller to Ava or by Ava to Seller, including: (a) the pricing and other commercially sensitive terms and conditions of, and proposals and negotiations related to, this Agreement, and (b) information that either Seller or Ava stamps or otherwise identifies as “confidential” or “proprietary” before disclosing it to the other.

Confidential Information does not include (i) information that was publicly available at the time of 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) Attachment Staff Report Item 16C
General Terms and Conditions | 46
information that the recipient independently developed without a violation of this Agreement.

Notwithstanding the foregoing, the Parties acknowledge and agree that Ava intends to make publicly available a version of this Agreement with certain commercially sensitive provisions removed or redacted.

22.2 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, ruling, regulatory request, accounting disclosure rule or standard or any CAISO 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. The Receiving Party is not required to defend against such request and shall be permitted to disclose such Confidential Information of the Disclosing Party, with no liability for any damages that arise from such disclosure. 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.), and Ava shall incur no liability arising out of any disclosure of such information or documentation provided in connection with this Agreement, including Confidential Information, that is subject to public disclosure under the California Public Records Act.

22.3 Irreparable Injury; Remedies. Receiving Party acknowledges that its obligations hereunder are necessary and reasonable in order to protect the 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 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.

22.4 Disclosure to Financing Parties, etc. Notwithstanding anything to the contrary in this Article 23, Confidential Information may be disclosed by Seller to any actual or potential Financing Party or investor or any of its affiliates, and Seller’s actual agents, consultants, contractors or trustees, so long as the Person to whom Confidential Information is disclosed is either (x) bound by similarly restrictive confidentiality obligations as those contained in this Agreement, or (y) agrees in writing to be bound by the confidentiality provisions of this Article 23 to the same extent as if it were a Party.

22.5 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 from disclosure under Applicable Law, press release does not Attachment Staff Report Item 16C
General Terms and Conditions | 47
include records released by Ava, including annual comprehensive financing reports; memorandums or reports to Ava’s board members; documentations submitted to regulatory agencies; disclosures related to public financings; and productions of records required by subpoena, court order or under the California Public Records Act.

ARTICLE 23

MISCELLANEOUS

23.1 Notices.
(a) Addresses for Delivery of Notices. Any notice required, permitted or contemplated hereunder shall be in writing and shall be addressed to the Party to be notified at the address set forth on Exhibit I or at such other address or addresses as a Party may designate for itself from time to time by notice hereunder.
(b) Acceptable Means of Delivering Notice. Each notice required, permitted or contemplated hereunder shall be deemed to have been validly served, given or delivered as follows: (i) if sent by United States mail with proper first class postage prepaid, three (3) Business Days following the date of the postmark on the envelope in which such notice was deposited in the United States mail; (ii) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; (iii) if sent by electronic communication (including electronic mail or other electronic means) and if concurrently with the transmittal of such electronic communication the sending Party provides a copy of such electronic notice by hand delivery or express courier, at the time indicated by the time stamp upon delivery without any bounce back or rejection; or (iv) if delivered in person, upon receipt by the receiving Party. Notwithstanding the foregoing, notices of Outages or other scheduling or dispatch information or requests, may be sent by electronic communication and shall be considered delivered upon successful completion of such transmission.

23.2 Account Manager. Seller must assign an account manager to Ava to facilitate the contractual relationship and to be fully responsible and accountable for fulfilling Ava’s requirements. Seller represents and warrants that such Person will ensure that Ava receives adequate support, problem resolution assistance, and required information on a timely basis.

23.3 Entire Agreement; Integration; Exhibits. This Agreement, together with the Schedules, CPAs, and Exhibits attached hereto constitutes the entire agreement and understanding between Seller and Ava 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 CPAs and Exhibits attached hereto are integral parts hereof and are made part of this Agreement by reference. The headings used herein are for convenience and reference purposes only. 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.

23.4 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representations of Seller and Ava; Attachment Staff Report Item 16C
General Terms and Conditions | 48
provided, that, for the avoidance of doubt, this Agreement may not be amended by electronic mail communications.

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

23.6 Governing Law; Venue. 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. 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.

23.7 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, employees or agents of Ava. Under this Agreement, Seller and Ava 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 PPA Portfolio or any business related to the PPA Portfolio. 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 Financing Party).

23.8 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 (x) thirty (30) days of initiating such discussions or (y) forty (40) days after notice of the dispute, the Parties shall submit the dispute to mediation prior to seeking any and all remedies available to it at law or in equity. The Parties shall cooperate in selecting a qualified neutral mediator selected from a panel of neutrals and in scheduling the time and place of the mediation as soon as reasonably possible, but in no event later than thirty (30) days after the request for mediation is made. The Parties agree to participate in the mediation in good faith and to share the costs of the mediation, including the mediator’s fee, equally, but such shared costs shall not include each Party’s own attorneys’ fees and costs, which shall be borne solely by such Party. If the mediation is unsuccessful, then either Party may seek any and all remedies available to it at law or in equity, subject to the limitations set forth in this Agreement.

23.9 Survival. The provisions of this Agreement that should reasonably be considered to survive termination of this Agreement, including, without limitation the provisions enumerated in this Section 23.9, will survive termination of this Agreement: (i) obligations to pay by either Party that have accrued prior to termination or expiration and (ii) Section 10.5 (Books and Records), Section 16.3 (Removal Services), Section 16.4 (Abandonment), Section 16.5 (Transition Services), Section 19.1 (Indemnification), and Article 22 (Confidential Information).

Attachment Staff Report Item 16C
General Terms and Conditions | 49

23.10 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.

23.11 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.

23.12 No Recourse to Members of Ava. Ava 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. Ava 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 action, or assert any remedies against any of Ava’s constituent members, or the employees, directors, officers, consultants or advisors of Ava or its constituent members, in connection with this Agreement.

23.13 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.

23.14 Service Contract. The Parties intend this Agreement to be a “service contract” within the meaning of Code Section 7701(e)(3). Ava shall not take the position on any tax return or in any other filings suggesting that it is anything other than a buyer of electricity from the PPA Portfolio.

23.15 Forward Contract. The Parties intend that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Ava 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 Attachment Staff Report Item 16C
General Terms and Conditions | 50
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.

23.16 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. 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.
[Remainder of Page Intentionally Left Blank]
Attachment Staff Report Item 16C
General Terms and Conditions | 1
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Execution Date.
[SELLER]
By:

Name:

Title:

Ava Community Energy Authority, a
California joint powers authority
By:

Name: Howard Chang
Title: Chief Executive Officer
APPROVED AS TO FORM:

By:

Name: Inder Khalsa
Title: General Counsel
Date:

Attachment Staff Report Item 16C
Schedule I | 1
Schedule I
Defined Terms
“Adverse Environmental Conditions” means (i) the existence or the continuation of the existence of Environmental Contamination (including, without limitation, a sudden or non-sudden accidental or non-accidental Environmental Contamination), or exposure to or release of any substance, chemical, material, pollutant, Hazardous Substance, odor or audible noise or other release or emission in, into or onto the environment at, in, by or related to the Project Site, (ii) the environmental aspect of the transportation, storage, treatment or disposal or materials in connection with the Project, or (iii) the violation, or alleged violation, of any Environmental Law, permits or licenses of, by or from any Governmental Authority relating to environmental matters connected with the applicable Project Site.
“Ancillary Services” means operating reserves, regulation, black-start capability, reactive supply, voltage control, frequency response, contingency reserves, other products associated with electric generation and Energy that a Project is capable of providing and all other beneficial attributes and outputs of such Project not required for the operation of the Project. “Anticipated COD Date” has the meaning set forth in Section 9.3(c). “Applicable Law” means all national, state, local or municipal laws, statutes, codes, acts, treaties, ordinances, orders, judgments, writs, decrees, injunctions, rules, regulations, governmental approvals, licenses, permits, directives, and requirements of all regulatory and other Governmental Authorities.
“Authority Having Jurisdiction” or “AHJ” means any agency, organization, office or Person responsible for enforcing the requirements of a statute, regulation, code or standard, or for approving equipment, materials, an installation or a procedure in relation to a Project. “Ava Event of Default” means an Ava Project Default or an Ava Portfolio Default, or any or all of the foregoing as the context may require.
“Avoided Utility Cost” means the greater of (a) the cost incurred by Ava to acquire replacement kWh in an amount equal to the Guaranteed Energy Shortfall less the applicable Renewable Rate and (b) zero (0).
“Bankruptcy Event” means with respect to any entity, the occurrence of any of the following: such entity (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it and such case filed against it is not dismissed in 60 days, (b) makes an assignment or any general arrangement for the benefit of creditors, (c) otherwise becomes bankrupt or insolvent (however evidenced), (d) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (e) is generally unable to pay its debts as they fall due.
“Business Day” means any day except a Saturday, Sunday or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a notice or payment or performing a specified action.

Attachment Staff Report Item 16C
Schedule I | 2
“Buyout Date” means, with respect to each Project, [June 1st] of each calendar year during the applicable Delivery Period.
“Buyout Option” has the meaning set forth in Section 16.1(a). “CAISO” means the California Independent System Operator or any successor entity performing similar functions.
“CAISO Tariff” means the California Independent System Operator Cooperation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time to time and approved by the Federal Energy Regulatory Commission (or any successor government agency).
“Capacity Attribute” means any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power that a Project can accept at or deliver to the applicable Delivery Point at a particular moment and that can be purchased and sold under CAISO market rules.
“CEC” means the California Energy Commission or any successor entity performing similar functions.
“Change in Law” means (i) the enactment, adoption, promulgation, modification or repeal after the Execution Date of any Applicable Law, (ii) the imposition of any material conditions on the issuance or renewal of any applicable permit after the Execution Date (notwithstanding the general requirements contained in any applicable permit at the time of application or issue to comply with future laws, ordinances, codes, rules, regulations or similar legislation) or (iii) a change in any utility rate schedule or tariff approved by any Governmental Authority. “Charging Energy” means the PV Energy and/or grid energy, net of Station Use, delivered to the Storage Project as measured by the Meter in accordance with CAISO metering requirements and Prudent Operating Practices, as such meter readings are adjusted pursuant to CAISO requirements for any applicable Electrical Losses.
“City” means either the City of Berkeley, California; the City of Fremont, California; the City of Hayward, California; the City of Livermore, California; the City of Oakland, California; the City of Pleasanton, California; and the City of San Leandro, California or any or all of the foregoing as the context may require.
“City Agreement” has the meaning set forth in Section 2.2. “City Contract Capacity” means, with respect to each City Portfolio, the sum of the Guaranteed Nameplate Capacity of each Generating Project and Storage Inverter Power of each Storage Project within such City Portfolio.
“City Contract Month” means, with respect to each City Portfolio, any calendar month during the applicable City Term, commencing on the first calendar month to occur subsequent to the Commercial Operation Date of the first Project to achieve COD and ending on the last day of such calendar month.
“City Contract Year” means, with respect to each City Portfolio, any consecutive twelve (12) month period during the applicable City Term, commencing on the Commercial Operation Attachment Staff Report Item 16C
Schedule I | 3
Date of the first Project to achieve COD and ending on the last day of such twelve (12)-month period.
“City Effective Date” means, with respect to each City Portfolio, the date that the underlying City Agreement has been executed and delivered, respectively, by Ava and the applicable City.
“City Portfolio” means, with respect to each City, all Projects located within such City, as set forth in the applicable CPA, on a collective basis. “City Price Threshold” has the meaning set forth in Section 10.1(e). “City-Specific Terms” means, with respect to each City Portfolio, those terms set forth in Attachment IV to the applicable CPA.
“City Termination Payment” has the meaning set forth in Section 4.1. “City Termination Payment” has the meaning set forth in Attachment III to the applicable CPA.
“COD Delay Cure Period” means (a) with respect to Tranche A Projects, a period of up to forty five (45) days, and (b) with respect to Tranche B Projects, a period of up to one hundred twenty (120) days.
“COD Delay Damages” means, with respect to each Project, for each day after the Commercial Operation Deadline that the applicable Project has not achieved COD, liquidated damages in an amount equal to the total Development Security required for such Project hereunder, divided by (x) for Tranche A Projects, forty-five (45), or (y) for Tranche B Projects, one hundred twenty (120), provided that the COD Delay Damages shall not exceed the Development Security for such Project hereunder.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any corresponding provision or provisions of succeeding law. “Commercial Operation Date” or “COD” means, for each Project, the date upon which Seller has confirmed that all COD Conditions Precedent have been fulfilled, subject to Ava’s reasonable satisfaction.
“Commercial Operation Deadline” has the meaning set forth in the applicable Project Addendum.
“Construction Start” has the meaning set forth in Section 5.4(a). “Construction Start Deadline” has the meaning set forth in the applicable Project Addendum.
“Contract Price” has the meaning set forth in the applicable CPA. “CPUC” means the California Public Utilities Commission or any successor agency performing similar statutory functions.
“Credit Period” shall have the meaning set forth in Section 10.1(a). “Credit Rating” means, with respect to any Person, the rating then assigned to such Person’s unsecured, senior long-term debt obligations (not supported by third party credit Attachment Staff Report Item 16C
Schedule I | 4
enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating assigned to such Person 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. “Current Storage Capacity” means, with respect to each City Portfolio, the total capacity (in kWh) of all Storage Projects thereunder, initially equal to the amount set forth in the applicable CPA, as the same may be adjusted from time to time pursuant to Exhibit B to comply with Ava’s written request or reflect the results of the most recently performed Storage Capacity Test for each Storage Project.
“Delivery Period” has the meaning set forth in Section 4.1. “Delivery Point” has the meaning set forth in the applicable CPA. “Design Plan” has the meaning set forth in Exhibit C.
“Development Security” means, with respect to each City Portfolio, (i) cash or (ii) a Letter of Credit, in each case in the amount of $100/kW of City Contract Capacity, which shall be provided on a CPA-by-CPA basis.
“Discharging Energy” means, with respect to a Storage Project, all Energy delivered to the applicable Delivery Point from the Storage Project, net of Station Use, as measured by the Meter in accordance with CAISO metering requirements and Prudent Operating Practices, adjusted pursuant to CAISO requirements for any applicable Electrical Losses. “Domestic Content Requirements” means any and all requirements for obtaining the Domestic Content Adder under Code Section 48(a)(12) or 48E(a)(3)(B), including the requirements set forth in IRS Notice 2023-38 (2023-22 I.R.B. 872), IRS Notice 2024-41 (20241- 24I.R.B. 1615) or any corresponding provision or provisions of succeeding law. “EAR” has the meaning set forth in Section 17.3(c).
“Effective Date” has the meaning set forth in Section 4.1. “Efficiency Rate” means the measured round-trip efficiency rate of the Storage Project, expressed as a percentage, calculated pursuant to a Storage Capacity Test in accordance with Exhibit B-1.
“Electrical Losses” means, with respect to any Project, all transmission or transformation losses between the Project and the applicable Delivery Point, including, as applicable, losses associated with (i) delivery of PV Energy to the Delivery Point, (ii) delivery of Charging Energy to a Storage Project, (iii) conversion of Charging Energy into Discharging Energy, and (iv) delivery of Discharging Energy to the Delivery Point.
“Electric System Upgrades” means any upgrades, including Network Upgrades, Distribution Upgrades or Interconnection Facilities (as these terms are defined in the CAISO Tariff), that are determined to be necessary by CAISO or the Local Electric Utility, as applicable, to electrically interconnect a Project to the Local Electric Utility’s electric system in accordance with this Agreement.
“Energy” means electrical energy generated by a Generating Project. “Energy Community Bonus” means the increased ITC rate available to energy property placed in service in an Energy Community.

Attachment Staff Report Item 16C
Schedule I | 5
“Energy Incentives” means any of the following: (i) a payment made by a utility or state or local Governmental Authority based in whole or in part on the cost of size of the PPA Portfolio, such as a rebate; (ii) a performance-based incentive paid as a stream of periodic payments by a utility or Governmental Authority based on the production of the PPA Portfolio; and (iii) any other attributes, commodity, revenue stream or payment in connection with the PPA Portfolio; provided, that Energy Incentives shall not include Renewable Energy Credits or any incentives, payments or revenue associated with the Self-Generation Incentive Program. “Energy Management System” or ”EMS” has the meaning set forth in Section 15.1. “Environmental Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the PPA Portfolio and its displacement of conventional energy generation. Environmental 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 Applicable 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 Environmental Attributes associated with one (1) MWh of energy.

Environmental Attributes do not include (i) any energy, capacity, reliability or other power attributes from a Project, (ii) production tax credits associated with the construction or operation of a Project and other financial incentives in the form of credits, reductions or allowances associated with a Project that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by a Project for compliance with local, state or federal operating or air quality permits. “Environmental Contamination” means the presence of a Hazardous Substance in a concentration exceeding legally allowable limits in violation of Applicable Law, including Environmental Law.
“Environmental Law” means any Applicable Law related to (a) the prevention, abatement or elimination of pollution, (b) the protection or preservation of the environment (including air, soil, land surface, subsurface strata, ground water, surface water, coastal water, and wetlands), wildlife (including endangered, threatened or protected species, migratory birds and bald or golden eagles), wildlife habitat, cultural resources, or natural resources, and (c) the use, generation, handling, treatment, storage, disposal, release, transportation or regulation of, or exposure to, Hazardous Substances.
“EPC Contract” means, with respect to each Project, one or more commercially negotiated contract(s) for the engineering, procurement, construction, and installation of the applicable Project, which shall be entered into by and between Seller and an EPC Contractor. “EPC Contractor” means [Gridscape], or any other contractor proposed by Seller and approved by Ava in its reasonable discretion.

Attachment Staff Report Item 16C
Schedule I | 6
“Error-Free” means the Project Equipment (i) is free from material defects in design, materials, and workmanship, (ii) substantially conforms to the specifications set forth in this Agreement, including the Design Plan, and (iii) functions as designed. “Estimated Construction Start Date” has the meaning set forth in the applicable CPA. “Event of Default” means an Ava Event of Default or a Seller Event of Default, as the context may require.
“Execution Date” has the meaning set forth in the Preamble. “Expected City Energy” has the meaning set forth in the applicable CPA. “Fair Market Value” means the value of a Project, as determined by an Independent Appraiser, which would be exchanged in an arms’ length transaction between an informed and willing buyer under no compulsion to buy and an informed and willing seller under no compulsion to sell; provided, however, that in such determination: (i) each Project shall be assumed to be in the condition in which it is required to be maintained and returned under this Agreement, taking in account ordinary wear and tear, and such value has not been diminished due to the existence of any damage history, which shall not include ordinary wear and tear; (ii) each Project shall be valued on an installed basis; and (iii) costs of removal of a Project from the current location shall not be a deduction from, or addition to, such valuation. “Financing Party” means any Person (i) providing senior or subordinated construction, interim, back leverage or long-term debt, or tax equity financing or refinancing for or in connection with the development, construction, purchase, installation or operation of the Projects, whether that financing or refinancing takes the form of private debt (including back-leverage debt), 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 providing financing or refinancing for the Project, 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 Projects. “Forced Outage” means the shutdown or unavailability of a Project, or a portion thereof, other than as a Planned Outage. A Forced Outage shall not include any outage that may be deferred consistent with Prudent Operating Practice and without causing safety risk or damage to equipment or material additional cost.
“Future Environmental Attributes” means any and all generation attributes (excluding Environmental Attributes, Incentives or Tax Benefits) under the RPS regulations or under any and all other Applicable Law, intergovernmental compact, 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 PPA Portfolio and its displacement of conventional energy generation. “Generating Project” means any individual solar photovoltaic generating Project listed in the applicable CPA, located at the applicable Project Site and including mechanical equipment and associated facilities and equipment required to deliver (i) PV Energy to the Delivery Point, (ii) Attachment Staff Report Item 16C
Schedule I | 7
Charging Energy to the corresponding Storage Project, and (iii) Discharging Energy to the Delivery Point.
“Governmental Approval” means all authorizations, consents, approvals, waivers, exceptions, variances, filings, permits, orders, licenses, exemptions, notices to and declarations of or with any Governmental Authority and shall include those siting and operating permits and licenses, and any of the foregoing under any applicable Environmental Law, that are required for the development, use, and operation of any Project hereunder. “Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority having jurisdiction or effective control over a Party. “Grid Services” has the meaning set forth in Section 15.2. “Guaranteed Efficiency Rate” has the meaning set forth in the applicable CPA. “Guaranteed Energy Damages” means liquidated damages in an amount equal to the product of (a) the applicable Avoided Utility Cost, multiplied by (b) the Guaranteed Energy Shortfall.
“Guaranteed Energy Production” has the meaning set forth in Section 8.1(a). “Guaranteed Energy Shortfall” means, with respect to any City Contract Year, the difference between (a) the product of (i) Expected City Energy, and (ii) 0.85; and (b) the Adjusted Energy Production.
“Guaranteed Nameplate Capacity” means, with respect to each City Portfolio, the amount of generating capacity of all Generating Projects thereunder, and the Storage Inverter Power of all Storage Projects thereunder, as measured in kW at the applicable Delivery Point, set forth on the CPA.
“Guaranteed Storage Energy Capacity” has the meaning set forth in the applicable CPA. “Hazardous Substance” means any chemical, waste or other substance (a) which now or hereafter becomes defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “pollution,” “pollutants,” “regulated substances,” or words of similar import under any laws pertaining to the environment, health, safety or welfare, (b) which is declared to be hazardous, toxic, or polluting by any Governmental Authority, (c) exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Authority, (d) the storage, use, handling, disposal or release of which is restricted or regulated by any Governmental Authority, or (e) for which remediation or cleanup is required by any Governmental Authority. “Improvements” means any buildings and other improvements on the Project Site other than the Project.
“Incentives” means (i) a payment paid by a utility or state or local Governmental Authority based in whole or in part on the cost or size of the PPA Portfolio such as a rebate, (ii) a performance-based incentive paid as a stream of periodic payments by a utility, state or Governmental Authority based on the production of the PPA Portfolio, and (iii) any other attributes, commodity, revenue stream or payment in connection with the PPA Portfolio (such as Attachment Staff Report Item 16C
Schedule I | 8
ancillary or capacity revenue), in each case of (i) through (iv) relating to the construction, ownership, use or production of energy from the PPA Portfolio, provided that Incentives shall not include RECs. Notwithstanding the foregoing, Incentives as defined herein shall not include any incentives, payments, or revenue associated with the Self-Generation Incentive Program (SGIP). “Independent Appraiser” means an individual who is a member of a national or regional accounting, engineering or energy consulting firm qualified by education, experience, and training to determine the value of renewable energy generation systems (with respect to a Generating Project) or battery energy storage systems (with respect to a Storage Project) of the size and age and with the operational characteristics of the applicable Project. Except as may be otherwise agreed by the Parties, an Independent Appraiser shall not be (or within ten (10) years before his or her appointment have been) a director, officer, or employee of, or directly or indirectly retained as consultant or adviser to, either of the Parties.
“Initial Term” has the meaning set forth in Section 4.1. “Installed Capacity” means, with respect to any Project that has achieved COD, the maximum dependable operating capability of such Project to deliver Project Energy at the Meter, and adjusted for Electrical Losses to the Delivery Point (up to but not in excess of the Project Capacity).
“Interconnection Agreement” means, with respect to a Project, the interconnection agreement entered into by Seller pursuant to which the Project will be interconnected with the Transmission System, and pursuant to which Seller’s interconnection facilities and any other interconnection facilities will be constructed, operated, and maintained during the applicable Project Term.
“Investment Grade” means the assignee has a long-term unsecured debt rating from Moody’s or S&P of at least Baa3 from Moody’s and/or at least BBB- from S&P. “IRS” means the U.S. Internal Revenue Service.
“ITC” means the investment tax credit under Section 48 or Section 48E of the Code. “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 Ava is organized as a Joint Powers Authority in accordance with the Joint Powers Act.
[“kW” means kilowatts in alternating current, unless expressly stated in terms of direct current.
“kWh” means kilowatt-hour measured in alternating current, unless expressly stated in terms of direct current.]
“Letter of Credit” means an irrevocable, standby letter of credit issued by a Qualified Institution, the form of which shall be mutually agreeable to the Parties. “Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Ava, licensed in the State of California.

Attachment Staff Report Item 16C
Schedule I | 9
“Load Modification” means the reduction of a City's aggregate peak demand forecast pursuant to applicable CEC regulations and published guidance through the use and implementation of a Load Modifying Resource.
“Load Modification Dispatch Report” means, with respect to each Storage Project, an annual plan specifying on a monthly basis the hours of the day during which Storage Project will be discharged as Discharging Energy, the form of which shall be acceptable to Ava in its reasonable discretion as described in Exhibit K.
“Load Modifying Resource” means each Storage Project that is capable of being dispatched to provide Load Modification and that is not subject to demand charge rates. “Local Electric Utility” means Pacific Gas and Electric Company, an investor-owned utility headquartered in San Francisco, California.
“Local Hires” means individuals who reside in either Alameda County or San Joaquin County.
“Local Requirement” has the meaning set forth in Section 9.3(b). “Measurement Period” has the meaning set forth in Section 8.1. “Minimum Efficiency Rate” means [__].
“Modern Slavery” means all work or service that is exacted from any person under the menace of any penalty and for which such person has not offered him or herself voluntarily, such as any form of forced labor, child labor, indentured labor, bonded labor (including debt bondage, trafficked or slave), prison labor, or trafficking in persons. “Monthly Payment” has the meaning set forth in Section 10.1(c). “Moody’s” means Moody’s Investors Service, Inc.
“MSDS” has the meaning set forth in Section 17.4(g).
“Network Upgrades” has the meaning set forth in the CAISO Tariff. “Non-Exclusive Sublicense” has the meaning set forth in Exhibit D. “O&M Contract” means, with respect to each Project, one or more commercially negotiated contract(s) for the performance of operation and maintenance services, which shall be entered into by and between Seller and an O&M Contractor. “O&M Contractor” means [Gridscape], or any successor thereto, as proposed by Seller and approved by Ava in its reasonable discretion.
“OFAC Sanctions” has the meaning set forth in Section 17.3(c). “Operating Restrictions” has the meaning set forth in Exhibit B-3. “Outage” means a Planned Outage, Ava-Requested Outage (to the extent such outages do not exceed the Ava-Requested Outage Cap for the applicable City Contract Year) or Forced Outage, or any or all of the foregoing as the context may require. “Parties” and “Party” have the meanings set forth in the Preamble.

Attachment Staff Report Item 16C
Schedule I | 10
“Performance Security” means, with respect to each City Portfolio, (i) cash or (ii) a Letter of Credit, in each case in the amount of $200/kW of City Contract Capacity, which shall be provided on a CPA-by-CPA basis.
“Permitted Transferee” means a Person that satisfies, or is controlled by another Person that satisfies, the following requirements: (i) a tangible net worth of not less than one hundred fifty million dollars ($150,000,000) or a Credit Rating of at least BBB- from S&P, BBB0 from Fitch or Baa3 from Moody’s; and (ii) at least three (3) years of experience in the ownership and operations of power generation facilities and battery energy storage facilities similar to the Projects, or has retained a third party with such experience to operate the Projects. “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” means the shutdown or unavailability of a Project, or a portion thereof, for inspection or maintenance in accordance with a Planned Outage Schedule, as set forth in Section 6.4(a).
“Portfolio Termination Payment” has the meaning set forth in Attachment III to the applicable CPA.
“PPA Portfolio” means, collectively, all Projects contemplated under this Agreement. “PPA Portfolio Delivery Period” means the period starting on the first Commercial Operation Date to occur with respect to any Project hereunder and ending upon the expiration or early termination of all City Terms hereunder.
“Premises” means all the real property and improvements within a Project Site, including without limitation, the Project Site and Project located on such Project Site. “Prepayment” shall have the meaning set forth in Section 10.1(a). “Prepayment Credit” shall have the meaning set forth in Section 10.1(a). “Prepayment Date” means the date on which Ava makes the Prepayment. “Product” means PV Energy, Storage Capacity, Environmental Attributes, Capacity Attributes, and Ancillary Services.
“Project” means any individual Generating Project or Storage Project. “Project Addendum” means any individual Attachment V to the applicable CPA. “Project Capacity” means (a) with respect to a Generating Project, the Guaranteed Nameplate Capacity of such Project, and (b) with respect to a Storage Project, the Storage Inverter Power of such Project.
“Project Energy” means, with respect to a Project, the PV Energy and Discharging Energy, as applicable, during the monthly billing period contemplated under this Agreement, net of Electrical Losses and Station Use, as measured by the Meter, which Meter will be adjusted in accordance with CAISO meter requirements and Prudent Operating Practices to account for Electrical Losses and Station Use.

Attachment Staff Report Item 16C
Schedule I | 11
“Project Equipment” means PV modules, PV inverters, PV racking, battery modules, battery inverters, charge controllers, electrical panels, electrical disconnects, electric meters, transformers, and any other supporting equipment, structures, and security features, each to the extent applicable for any given Project.
“Project Roof” shall have the meaning set forth in Section 8.2(b). “Project Savings” means the savings realized on City's utility bill(s) directly attributable to the operation of the Project.
“Project Site” means, with respect to a Project, the real property upon which such Project shall be installed, as described or depicted in the applicable CPA. “Property” has the meaning specified in the applicable CPA. “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 solar industry during the relevant time period with respect to distributed generation generating facilities with integrated storage in the Western United States or (b) any of the practices, methods, and acts that, 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 distributed generation generating facilities with integrated storage in the Western United States. Prudent Operating Practice includes compliance with Applicable Laws, applicable reliability criteria, and the criteria, rules, and standards promulgated in the National Electric Safety Code and the National Electrical Code, as they may be amended or superseded from time to time, including the criteria, rules and standards of any successor organizations. “PV Energy” means that portion of Energy that is produced by the solar photovoltaic facilities, as measured by a dedicated solar production meter. “Qualified Institution” means a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a Credit Rating of at least A- with an outlook designation of “stable” from S&P or A3 with an outlook designation of “stable” from Moody’s. “Renewable Energy Credit” or “REC” has the meaning set forth in California Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Applicable Law.
“Renewable Rate” means the Tranche A PPA Rate or the Tranche B PPA Rate, or any or all of the foregoing as the context may require.
“Renewal Term” has the meaning set forth in Section 4.1. “Roof Damage Warranty” shall have the meaning set forth in Section 8.2(b). “Round-Trip Efficiency Factor” means (a) if the Efficiency Rate is greater than or equal to the Guaranteed Efficiency Rate, one hundred percent (100%), (b) if the Efficiency Rate is less than the Guaranteed Efficiency Rate but greater than or equal to the Minimum Efficiency Rate, the Efficiency Rate, or (c) if the Efficiency Rate is less than the Minimum Efficiency Rate, zero percent (0%).

Attachment Staff Report Item 16C
Schedule I | 12
“S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of the McGraw-Hill Companies, Inc.).
“Security Deposit” means either the Development Security or the Performance Security, as applicable.
“Seller’s Delivery Equipment” means utility lines, cables, conduits, transformers, wires, meters, monitoring equipment, and other necessary appurtenances. “Seller Event of Default” means a Seller Project Default, a Seller City Default, or a Seller Portfolio Default, or any or all of the foregoing as the context may require. “Software” means any software or computer programs that are used by Seller to view, manage, control, operate or otherwise maintain the Projects. “Station Use” means, with respect to a Project, Energy (including PV Energy or Discharging Energy) that is used within such Project to power the lights, motors, cooling equipment, control systems, and other electrical loads that are necessary for operation of the Project, except, with respect to a Storage Project, during periods in which such Storage Project is charging or discharging.
“Storage Capacity” means, with respect to a Storage Project, the maximum dependable operating capability of the Storage Project to discharge electric energy (in kWh). “Storage Capacity Test” means any test or retest of the capacity of a Storage Project conducted in accordance with the testing procedures, requirement, and protocols set forth in Exhibit B-1.
“Storage Contract Output” means the total output (in MWh) of the Storage Project initially equally to the amount set forth in the applicable CPA, as the same may be adjusted from time to time pursuant to Exhibit B.
“Storage Inverter Power” means the maximum nameplate discharge power rating, in kilowatts, of a Storage System.
“Storage Product” means (a) Discharging Energy, (b) Capacity Attributes, if any, (c) Storage Capacity, and (d) Ancillary Services, if any, in each case arising from or relating to the Storage Project.
“Storage Project” means any individual energy storage system or collective of energy storage systems listed in the applicable CPA (including the operational requirements of the energy storage facility), located at the applicable Project Site and including mechanical equipment and associated facilities and equipment required to deliver Discharging Energy, as such Storage Project may be expanded or otherwise modified from time to time in accordance with the terms of this Agreement.
“Storage Project Output” means, with respect to any Storage Project, the total output (in MWh) of the Storage Project initially equal to the amount set forth in the applicable Project Addendum, as the same may be adjusted from time to time pursuant to Exhibit B. “Storage Rate” has the meaning set forth in the applicable CPA. The Storage Rate will be calculated in each CPA as the product of (a) the sum of the Storage Inverter Power of all Storage Attachment Staff Report Item 16C
Schedule I | 13
Systems to be deployed under the CPA, and (b) a per-kilowatt rate which shall begin at $[ ] and shall increase two and one-half percent (2.50%) each year. “Storage Services” has the meaning set forth in Section 15.1. “Storage System” means, collectively, the Storage Projects, the Software, and any other software or hardware utilized by Seller in the performance of the Storage Services. “Stored Energy Level” means, with respect to a Storage Project, at a particular time, the amount of electric energy in the Storage Project available to be discharged as Discharging Energy, expressed in kWh.
“Tax Benefits” means investment or production tax credits, and any other state, local and/or federal production tax credit, ITC or other investment tax credit, depreciation benefit, tax exemption, and/or tax deduction specific to the production of renewable energy and/or investments in or ownership of generating facilities or battery energy storage systems utilizing renewable energy resources; provided, however, that “Tax Benefits” shall exclude any federal grants awarded to Ava by the U.S. Department of Energy.
“Term” has the meaning set forth in Section 4.1.
“Termination Payment” has the meaning set forth in the applicable CPA. “Tier 1 Supplier” means a “Tier 1 Module Manufacturer” as listed from time to time by BloombergNEF, published on a quarterly basis, or if no longer published, a similar publication mutually agreed upon by the Parties.
“Transmission Provider” means any Person or Persons transmitting or transporting the Project Energy on behalf of Seller or Ava to or from the Delivery Point. “Trade Laws” has the meaning set forth in Section 17.3(c). “Tranche A PPA Rate” means, with respect to each City Portfolio, the applicable contract rate for Tranche A Projects set forth in Section 10.1(c). “Tranche B PPA Rate” means, with respect to each City Portfolio, the applicable contract rate for Tranche B Projects set forth in Section 10.1(c). “Transition Event” has the meaning set forth in Section 16.5. “Transition Period” has the meaning set forth in Section 16.5. “Transition Work” has the meaning set forth in Section 16.5. “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.
“Union Requirement” has the meaning set forth in Section 9.3(b). “WECC” means the Western Electricity Coordinating Council.

Attachment Staff Report Item 16C
Schedule I | 14
“WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.

Attachment Staff Report Item 16C
Exhibit A | 1

EXHIBIT A

FORM OF CITY PORTFOLIO ADDENDUM
City Portfolio Addendum [No. __]
This City Portfolio Addendum No. [__] (“CPA”) is made and entered into as of the Execution Date by and between [_____](“Seller”) and Ava Community Energy Authority, a California joint powers authority (“Ava”) pursuant to that certain Power Purchase & Service Agreement (Critical Municipal Facilities), dated as of [___], between Seller and Ava (the “PPA”).

Seller and Ava may be referred to individually as a “Party” and collectively as the “Parties”.

Capitalized terms not otherwise defined in this CPA shall have the meaning set forth in the PPA.

The following attachments are hereby incorporated into this CPA:

Attachment I CPA Summary (PDF)
Attachment II Expected City Energy Schedule (Excel Sheet) Attachment III Termination Payment Schedule (Excel Sheet) Attachment IV City-Specific Terms
Attachment V Project Addenda (PDF)
As of the Execution Date, Seller represents and warrants that, to the best of its knowledge and after conducting a reasonable investigation under the circumstances, the information and specifications regarding the Projects set forth in [__]of this CPA are accurate in all material respects. Seller acknowledges and agrees that Ava is relying on the truthfulness, completeness, and accuracy of the terms herein in entering into this CPA.

For the avoidance of doubt, this CPA and any obligations, representations, warranties, covenants or other requirements under this CPA shall only be applicable with respect to the Projects specified in Attachment [__] hereto.
[Signature Page Follows]
Attachment Staff Report Item 16C
IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions contained in this CPA and the PPA and intending to be legally bound hereby, Seller and Ava have executed this CPA as of the Execution Date.

SELLER:
[______]
By: ____________________________________
Name: [INSERT NAME]
Title: [INSERT TITLE]
AVA:

AVA COMMUNITY ENERGY AUTHORITY
By: ____________________________________
Name: Howard Chang
Title: Chief Executive Officer
Attachment Staff Report Item 16C
Attachment I
CPA Summary
[To be included in an PDF attached hereto.]
Attachment Staff Report Item 16C
Attachment II
Expected City Energy Schedule
[To be included in an Excel sheet attached hereto.]
Attachment Staff Report Item 16C
Attachment III
Termination Payment Schedule
[To be included in an Excel sheet attached hereto.]
Attachment Staff Report Item 16C
Attachment IV
City-Specific Terms
[To be provided by the applicable City.]
Attachment Staff Report Item 16C
Attachment V
Form of Project Addendum
• [To be included in an PDF attached hereto.]
Attachment Staff Report Item 16C
Attachment Staff Report Item 16C
Exhibit B | 1

EXHIBIT B

STORAGE PROJECT ADDENDUM
This Exhibit B sets forth the terms and conditions related to the operation of each Storage Project, as contemplated within the Agreement. Capitalized terms not otherwise defined herein have the meanings given such terms in the Agreement.

Exhibit B-1: Storage Capacity Tests
Exhibit B-2: Storage Project Availability
Exhibit B-3: Operating Restrictions
Attachment Staff Report Item 16C
Exhibit B-1 | 1
EXHIBIT B-1

STORAGE CAPACITY TESTS
I. Storage Capacity Test Notice and Frequency.

A. COD Storage Capacity Test. With respect to each Storage Project, upon no less than ten (10) Business Days’ prior notice to Ava, Seller shall schedule and complete a Storage Capacity Test prior to COD. Such initial Storage Capacity Test shall be performed in accordance with this Exhibit B and shall establish the initial Current Storage Capacity hereunder based on the actual capacity of the Storage Project determined by such Storage Capacity Test.

B. Subsequent Storage Capacity Tests. Following COD, once per City Contract Year, Seller shall perform a Storage Capacity Test for the Storage Project and shall give Ava ten (10) Business Days’ prior notice of such test; provided, however, during an Efficiency Rate Cure Period under Section 13.1(a)(vii)(B) or during a Storage Energy Capacity Cure Period under Section 13.1(a)(vii)(C), Seller shall be entitled to perform up to three (3) additional Storage Capacity Tests at its sole cost. At least twice per City Contract Year, Ava shall have the right to schedule and complete a Storage Capacity Test. In addition, Ava shall have the right to require a test or retest of the Storage Capacity Test at any time upon no less than ten (10) Business Days’ prior written notice to Seller if Ava provides data with such notice reasonably indicating that the Storage Capacity has varied materially from the results of the most recent Storage Capacity Test.

C. Test Results and Re-Setting of Storage Capacity and Efficiency Rate. No later than five (5) days following any Storage Capacity Test, Seller shall submit to Ava a testing report detailing results and findings of the test. The report shall include Storage Project meter readings and plant log sheets verifying the operating conditions and output of the Storage Project.

II. Storage Capacity Test Procedures.

A. GENERAL. Each Storage Capacity Test (including the initial Storage Capacity Test and all reperformances thereof) shall be conducted in accordance with Prudent Operating Practices and the provisions of this Exhibit B. For ease of reference, a Storage Capacity Test is sometimes referred to in this Exhibit B as a “SCT”. Ava or its representative may be present for the SCT and may, for informational purposes only, use its own metering equipment (at Ava’s sole cost).

B. REQUIREMENTS APPLICABLE TO ALL STORAGE CAPACITY TESTS.

1. Purpose of Test. Each SCT shall: (1) determine an updated Current Storage Capacity; (2) determine the amount of Energy required to fully charge the Storage Project; (3) determine the Storage Project charge ramp rate; (4) determine the Storage Project discharge ramp rate; and (5) determine an updated Efficiency Rate.

2. Test Elements. Each SCT shall include the following test elements:

Attachment Staff Report Item 16C
Exhibit B-1 | 2
a) The measurement of Charging Energy exclusive of Station Use and Electrical Losses, as measured by the Storage Project meter or other mutually agreed meter, that is required to charge the Storage Project up to the Maximum Stored Energy Level not to exceed the Storage Contract Output (MWh) (“Energy In”);
b) The measurement of Discharging Energy exclusive of Station Use and Electrical Losses, as measured by the Storage Project meter or other mutually agreed meter, that is discharged from the Storage Project to the Delivery Point until the Stored Energy Level reaches zero (0) MWh as indicated by the battery management system (“Energy Out”); c) Electric output at Maximum Discharging Capacity at the Storage Project meter (MW);
d) Electrical input at Maximum Charging Capacity at the Storage Project meter (MW);
e) Amount of time between the Storage Project’s electrical output going from zero (0) to Maximum Discharging Capacity;
f) Amount of time between the Storage Project’s electrical input going from zero (0) to Maximum Charging Capacity;
g) Amount of energy required to go from the Minimum Stored Energy Level to the Maximum Stored Energy Level charging at a rate equal to the Maximum Charging Capacity.

3. Parameters. During each SCT, the following parameters shall be measured and recorded simultaneously for the Storage Project, at fifteen (15)-minute intervals:
a) Discharge time (minutes);
b) Charging energy (MWh);
c) Discharging energy (MWh); and
d) Stored Energy Level (MWh).

4. Site Conditions. During each SCT, the following conditions at the Project Site shall be measured and recorded simultaneously at thirty (30)-minute intervals:
a) Relative humidity (%);
b) Barometric pressure (inches Hg) near the horizontal centerline of the Storage Project; and
c) Ambient air temperature (°F).

5. Test Showing. Each SCT must demonstrate that the Storage Project:
a) Operated for at least two (2) consecutive hours at Maximum Discharging Capacity;
b) Operated for at least two (2) consecutive hours at Maximum Charging Capacity; and
Attachment Staff Report Item 16C
Exhibit B-1 | 3
c) Has a Storage Capacity of an amount that is, at least, equal to the Maximum Stored Energy Level;

6. Test Conditions.
a) General. At all times during a SCT, the Storage Project shall be operated in compliance with Prudent Operating Practices and all operating protocols recommended, required or established by the manufacturer for operation at the Maximum Discharging Capacity and Maximum Charging Capacity.
b) Abnormal Conditions. If abnormal operating conditions that prevent the recordation of any required parameter occur during a SCT, Seller may postpone or reschedule all or part of such SCT in accordance with Section B.7 below.
c) Instrumentation and Metering. Seller shall provide all instrumentation, metering, and data collection equipment required to perform the SCT. The instrumentation, metering, and data collection equipment electrical meters shall be calibrated in accordance with Prudent Operating Practice.

7. Incomplete Test. If any SCT is not completed in accordance herewith, Ava may in its sole discretion: (i) accept the results up to the time the SCT stopped; (ii) require that the portion of the SCT not completed, be completed within a reasonable specified time period; or (iii) require that the SCT be repeated in its entirety.

Notwithstanding the foregoing, if Seller is unable to complete a SCT due to an event of Force Majeure or the actions or inactions of Ava, the applicable City, or the Transmission Provider, Seller shall be permitted to reconduct such SCT on dates and at times reasonably acceptable to the Parties.

8. Final Report. Within fifteen (15) Business Days after the completion of any SCT, Seller shall prepare and submit to Ava a written report of the results of the SCT, which report shall include:
(1) a record of the personnel present during the SCT that served in an operating, testing, monitoring or other such participatory role;
(2) the measured data for each parameter set forth in Part II. A through C, including copies of the raw data taken during the test; (3) the level of Current Storage Capacity, Energy In, Energy Out, Efficiency Rate, Maximum Charging Capacity, the current charge and discharge ramp rate, and Stored Energy Level determined by the SCT, including supporting calculations; and
(4) Seller’s statement of either Seller’s acceptance of the SCT or Seller’s rejection of the SCT results and reason(s) therefor.

Attachment Staff Report Item 16C
Exhibit B-1 | 4
Within ten (10) Business Days after receipt of such report, Ava shall notify Seller in writing of either Ava’s acceptance of the SCT results or Ava’s rejection of the SCT and reason(s) therefor.

If either Party rejects the results of any SCT, such SCT shall be repeated in accordance with Section II.B.7.

9. Supplementary Storage Capacity Test Protocol. No later than sixty (60) days prior to Construction Start, Seller shall deliver to Ava for its review and approval (such approval not to be unreasonably delayed or withheld) an updated supplement to this Exhibit B-2 with additional and supplementary details, procedures and requirements applicable to Storage Capacity Tests based on the then current design of the Storage Project (“Supplementary Storage Capacity Test Protocol”). Thereafter, from time to time, Seller may deliver to Ava for its review and approval (such approval not to be unreasonably delayed or withheld) any Seller recommended updates to the then current Supplementary Storage Capacity Test Protocol. The initial Supplementary Storage Capacity Test Protocol (and each update thereto), once approved by Ava, shall be deemed an amendment to this Exhibit B-2.

10. Adjustment to Current Storage Capacity. The total amount of Discharging Energy delivered to the Delivery Point (expressed in MWh AC) during each of the first two (2) hours of discharge, shall be the Current Storage Capacity, which shall be expressed in MWh AC, and shall be the new Current Storage Capacity until updated pursuant to a subsequent Storage Capacity Test.

11. Adjustment to Efficiency Rate. The total amount of Energy Out (as reported in Section II. B(2)(a) above) divided by the total amount of Energy In (as reported in Section II.B(2)(b) above), measured at the Storage Project meter location, exclusive of Electrical Losses to the Delivery Point and separately metered Station Use associated with battery cooling and other thermal management equipment, and expressed as a percentage, shall be the new Efficiency Rate.

C. SUPPLEMENTARY STORAGE CAPACITY TEST PROTCOL

1. Conditions Precedent to SCT
• Control System Functionality: The Storage Project control system shall be successfully configured to receive data from the battery system and to exchange DNP3 data with a Remote Terminal Unit (RTU) provided, installed, commissioned, owned, and operated by Ava.
• Communications: RTU testing should be successfully completed prior to SCT.

The interface between Ava’s RTU and the Storage Project SCADA system should be fully tested and functional prior to starting testing. This includes verification of data transmission pathway between Seller’s control system and Ava’s RTU and the ability to record SCADA data.

Attachment Staff Report Item 16C
Exhibit B-1 | 5
• Commissioning Checklist: Commissioning Checklist shall be successfully completed on all installed facility equipment, including verification that all controls, set points, and instruments of the control system are configured.

Attachment Staff Report Item 16C
Exhibit B-2 | 1
EXHIBIT B-2

STORAGE PROJECT AVAILABILITY
Monthly Storage Availability
(a) Calculation of Monthly Storage Availability. Seller shall calculate the “Monthly Storage Availability” in a given month using the formula set forth below:

Monthly Storage Availability (%) =
[MNTHHRSm - UNAVAILHRSm ]
[MNTHHRSm]
where:
m = relevant month “m” in which availability is calculated; MNTHHRSm is the total number of hours in the month;
UNAVAILHRSm, is the total number of hours in the month during which the Storage Project was unavailable to deliver Storage Product for any reason other than the occurrence of any of the following (each, an “Excused Event”): an event of Force Majeure, Storage Capacity Test, Planned Outage, Ava-Requested Outage (to the extent such outages do not exceed the Ava-Requested Outage Cap for the applicable City Contract Year), Forced Outage, or the Operating Restrictions. To be clear, hours of unavailability caused by any Excused Event will not be included in UNAVAILHRSm for such month. Any other event that results in unavailability of the Storage Project for less than a full hour will count as an equivalent percentage of the applicable hour(s) for this calculation. Additionally, if during any applicable hour the Storage Project is available, but for less than the full amount of the Storage Inverter Power, the UNAVAILHRSm for such hour shall be calculated as an equivalent percentage of such hour in proportion to the amount of available Storage Inverter Power.

Availability Adjustment
The applicable “Availability Adjustment” or “AA” is calculated as follows:
(i) If the Monthly Storage Availability is greater than or equal to the Guaranteed Storage Availability, then:
a) AA = 100%
b) If the Monthly Storage Availability is less than 90% but greater than or equal to 70%, then:

AA = 100% - [(90% - Monthly Storage Availability) x 2]
(ii) If the Monthly Storage Availability is less than 70%, then:

AA = 0
Attachment Staff Report Item 16C
Exhibit B-3 | 1
EXHIBIT B-3

OPERATING RESTRICTIONS
The Parties will develop and finalize the following limitations and restrictions on operation (the “Operating Restrictions”) for each Storage Project prior to the applicable Commercial Operation Date, provided that the Operating Restrictions (i) may not be materially more restrictive of the operation of the Storage Project than as set forth below, unless agreed to by Ava in writing, (ii) will, at a minimum, include the rules, requirements, and procedures set forth in this Exhibit B-3, and (iii) may include Storage Project Scheduling, Operating Restrictions, and Communications Protocols.

Interconnection Capacity Limit:

Maximum Stored Energy Level:

Minimum Stored Energy Level:

Maximum Charging Capacity:

Minimum Charging Capacity:

Maximum Discharging Capacity:

Minimum Discharging Capacity:

Maximum State of Charge (SOC): 100%
Minimum State of Charge (SOC): 25%
Ramp Rate:

Annual Cycle Limit: 365 cycles with no monthly cap
Daily Dispatch Limits: Charging: 2 per day
Discharging: 2 per day
Maximum Time at Minimum Stored
Energy Level:

Grid Charging of Storage Facility: Yes
Other Operating Limits: N/A
Battery Back-up Reserve: 20%
Attachment Staff Report Item 16C
Exhibit C | 1

EXHIBIT C

DESIGN PLAN COMPONENTS
In accordance with Section 5.3, Seller shall deliver to Ava each of the following items (collectively, the “Design Plan”):
• A design & construction schedule;
• All drawings, plans, and specifications for the construction of the Project, including specification sheets for all Project Equipment;
• Production estimation reports from Heliscope (or any comparable entity proposed by Seller and approved by Ava in its reasonable discretion); and • Each of the following design elements:
o Detailed Array Plan
o Electrical Site Plan (including stringing diagram)
o Lighting Plan
o BPM Plan (underground work – civil)
o DC Single Line Diagram/Three Line Diagram
o Lighting Diagram
o Trench Details
o Wiring Detail Drawings & Electrical Details
o Inverter/Transformer/BESS Elevation Details
o Conduit Entry Details
o Junction Box/Pull box details
o Grounding Line Diagram
o Grounding Layout (if applicable)
o Fence Grounding Details (if applicable)
o Power Cable & Conduit Schedule
o Voltage Drop & System Loss Analysis
o Fault Current Calculations
o Equipment PAD Structural Drawing
o Structural Drawings including PV post layout & attachment details o Structural Equipment Datasheets
o NEC Labels & Sign Details
o Bill of Quantities (PDF & Excel)
o Stamped Electrical Design
o Stamped Structural Design
Attachment Staff Report Item 16C
Exhibit D | 1

EXHIBIT D

SUBLICENSE
Project Site Sublicense
I. Non-Exclusive Site License. With respect to each Project, effective on the applicable City Effective Date, Ava hereby grants to Seller, and Seller’s agents, employees, contractors (the “Sublicensees”), and assignees a non-exclusive, non-transferable, irrevocable sublicense (each, a “Non-Exclusive Sublicense”) under and on all of the same terms and conditions of the license between Ava as licensee, and the applicable City, as licensor, from the City for access to, on, over, under, and across each applicable Project Site during the Sublicense Term (as defined below) with respect to the following:
(a) The Project Site for the limited purpose of satisfying Seller’s obligations as set forth in this Agreement;
(b) The right to use of additional space within the Premises as reasonably necessary for installation, interconnection, operation, maintenance, repair, replacement, and removal of (i) the Project on or from the Project Site, and (ii) Seller’s Delivery Equipment running between each Project and the Delivery Point; and
(c) The non-exclusive temporary license over, across and upon portions of the Property owned by the City that lie outside of the Project Site for the limited purposes [described in the applicable City Agreement].

The access rights granted hereunder shall in each instance be subject to all of the terms of the applicable City Agreement, including, without limitation, [Section 8(a)] and [Exhibit 3] thereof.

II. Sublicense Term. The term of each Non-Exclusive Sublicense shall commence on the applicable City Effective Date and shall expire on the date that is the earlier of (x) one hundred fifty (150) days after the expiration or early termination of the applicable City Term, and (y) removal of the Project in accordance with Section 16.4 (the “Sublicense Term”). [In the event [Ava’s license from the City for access to, on, over, under, and across the Project Site is terminated for any reason whatsoever, this Non-Exclusive Sublicense shall terminate simultaneously with such termination in each case subject to the terms of Section 13.2 of this Agreement.

III. Access Notification. Seller and its employees, agents, and contractors shall provide reasonable advanced notice prior to entry which shall be, at minimum, no less than twenty (20) days, to Ava (or its designee) of Seller’s intent to access the Property under the applicable Non-Exclusive Sublicense; provided, however, in the event that Seller needs to access the Property due to the occurrence of a Forced Outage, Planned Outage, or event of Force Majeure, Seller shall only be required to provide as much reasonable advance notice as is practicable under the circumstances prior to such entry. Ava may delay or deny access to Seller for good cause by providing written Attachment Staff Report Item 16C
Exhibit D | 2
notice of such delay or denial no more than ten (10) days after Ava receives notice of Seller’s intent to exercise access rights, provided, however, that Seller shall not be liable for breaches of its obligations under this Agreement resulting from such delay or denial, and further, promptly upon Seller’s written demand therefor, Ava shall reimburse Seller’s out of pocket costs incurred in connection with the delay or denial.

II. Obligations of Ava. During the Sublicense Term, Ava shall (i) use commercially reasonable efforts to preserve and protect Seller’s rights under the Non-Exclusive Sublicense, and (ii) not interfere, or permit any third parties under Ava’s control to interfere, with such rights or access.

III. Assignment. The rights and license granted to Seller hereunder do not confer to Seller the right to grant to others the right or license to assign this Non-Exclusive Sublicense other than as expressly provided in the Agreement.

Attachment Staff Report Item 16C
Exhibit E | 1

EXHIBIT E

PROGRESS REPORT FORM
Progress Reporting Form
In accordance with Section 5.2, Seller shall deliver a quarterly Progress Report for each City Portfolio until each Project within such City Portfolio has achieved COD. Each Progress Report must include the following items:
a) Description of any material planned changes to each Project and/or the corresponding Project Site.
b) With respect to each Project, a Gantt chart schedule showing progress on achieving Construction Start and COD.
c) An updated, fully populated copy of the attached Excel file titled [Exhibit E to Developer PPA - Progress Report Form.xlsx], which shall include (i) a summary of activities during the previous calendar quarter, (ii) a forecast of activities scheduled for the current calendar quarter, and (iii) with respect to each Project, 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.
d) Any other documentation reasonably requested by Ava.

Attachment Staff Report Item 16C
Exhibit F | 1

EXHIBIT F

FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification of Construction Start Date (“Certification”) is delivered by [Entity name, state of formation, type of entity] (“Seller”) to Ava Community Energy Authority, a California joint powers authority (“Ava”) in accordance with the terms of that certain Power Purchase & Services Agreement dated as of the Execution Date (the “Agreement”) by and between Seller and Ava. 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 Ava the following:

1. To the extent reasonably necessary for the physical construction of the applicable Project to begin and proceed to completion without reasonably foreseeable interruption of material duration, all major contractors have been engaged and all major equipment and supplies for such Project have been ordered;

2. Seller has delivered to Ava a Design Plan which has been approved by Ava in its reasonable discretion in accordance with Section 5.3;

3. Seller has delivered to Ava the Development Security for such City Portfolio in accordance with Section 14.1;

4. A notice to proceed under the applicable EPC Contract that authorizes the EPC Contractor to mobilize the Project Site and begin physical construction of the Project at the Project Site has been issued;

5. Construction Start (as defined in Section 5.4(a) of the Agreement and evidenced by representations 1 through 4 above) has occurred, and a copy of the notice to proceed that Seller issued to its contractor as part of Construction Start is attached hereto;

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

7. the precise Project Site on which the Project is located is, which must be within the boundaries of the previously identified Site:
___________________________________________.
[Signature page follows]
Attachment Staff Report Item 16C
Exhibit F | 2
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 G | 1

EXHIBIT G

FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification of Commercial Operation Date (“Certification”) is delivered by [Entity name, state of formation, type of entity] (“Seller”) to Ava Community Energy Authority, a California joint powers authority (“Ava”) in accordance with the terms of that certain Power Purchase & Services Agreement dated as of the Execution Date (the “Agreement”) by and between Seller and Ava. 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], Seller hereby certifies and represents to Ava the following:

1. Commercial Operation occurred on: _______ [date]

2. The Project is fully operational, reliable and interconnected, fully integrated, and synchronized with the Transmission System.

3. The Project Equipment has been installed, tested, and is capable of generating output in accordance with the manufacturer’s specifications.

4. The Project is substantially complete and capable of delivering Project Energy as described in the Agreement.

5. The Local Electric Utility has provided permission to operate the Project.

6. Seller reasonably believes that the COD Conditions Precedent set forth in Section 5.6(d)(ii) through (viii) of the Agreement have been satisfied in full.

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 H | 1

EXHIBIT H

FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity is delivered by [Licensed Professional Engineer] (“Engineer”) to Ava Community Energy, a California joint powers authority (“Ava”) in accordance with the terms of that certain Power Purchase & Services Agreement dated as of the Execution Date (the “Agreement”) by and between [Entity name, state of formation, type of entity] (“Seller”) and Ava. 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 and represent to Ava the following:
• [Seller has installed equipment for the Generating Project with a nameplate capacity of no less than one hundred percent (100%) of the Guaranteed Nameplate Capacity.

The Generating Project’s testing included a performance test demonstrating peak electrical output of no less than one hundred percent (100%) of the Guaranteed Nameplate Capacity for the Generating Project at the Delivery Point, as adjusted for ambient conditions on the date of such testing.]
• [Seller has installed equipment for the Storage Project with a nameplate capacity of no less than one hundred percent (100%) of the Current Storage Capacity.

The Storage Project is fully capable of charging, storing, and discharging energy up to no less than one hundred percent (100%) of the Current Storage Capacity and receiving instructions to charge, store, and discharging energy, all within the operational constraints and subject to the applicable Operating Restrictions.]
EXECUTED by [Licensed Professional Engineer]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL ENGINEER]
By:

Printed Name:

Title:

Attachment Staff Report Item 16C
Exhibit I | 1

EXHIBIT I

NOTICES
[Seller] Ava Community Energy Authority
All Notices:

Street:

City:

Attn:

Phone:

Email:

All Notices:

Street:

City:

Attn:

Phone:

Email: [email protected]
Reference Numbers:

Duns:

Federal Tax ID Number:

Reference Numbers:

Duns:

Federal Tax ID Number:

Invoices:

Attn:

Phone:

Email:

Invoices:

Attn:

Phone:

Email:

Payments:

Attn:

Phone:

Email:

Payments:

Attn:

Phone:

Email:

Wire Transfer:

BNK:

ABA:

ACCT:

Wire Transfer:

BNK:

ABA:

ACCT:

Credit and Collections:

Attn:

Phone:

Email:

Credit and Collections:

Attn:

Phone:

Email:

Emergency Contact:

Attn:

Phone:

Email:

Emergency Contact:

Attn:

Phone:

Email:

With additional Notices of an Event of
Default to:

Attn:

Phone:

Email:

With additional Notices of an Event of
Default to:

Attn:

Phone:

Email:

Attachment Staff Report Item 16C
Exhibit J | 1

EXHIBIT J

INSURANCE REQUIREMENTS
A. ENDORSEMENTS AND CONDITIONS APPLYING TO ALL PHASES INSURANCE Without limiting the Seller's indemnification of Ava, the Seller shall provide and maintain at its own expense, during the term of this Agreement, or phase of this Agreement if coverage is phase-specific, or as may be further required herein, the following insurance coverages and provisions.

The Parties agree that all insurance coverages required under this Exhibit and Agreement may be met by a combination of Seller and its contractor’s total insurance coverages:

1. REDUCTION OR LIMIT OF OBLIGATION: All insurance policies, including excess and umbrella insurance policies, shall include an endorsement and be primary and non-contributory and will not seek contribution from any other insurance (or self-insurance) available to Ava. The primary and non-contributory endorsement shall be at least as broad as ISO Form 20 01 04 13. Pursuant to the provisions of this Agreement insurance effected or procured by the Seller shall not reduce or limit Seller’s contractual obligation to indemnify and defend the Indemnified Parties.

2. EVIDENCE OF COVERAGE: Before commencing operations under this Agreement, Seller shall provide Certificate(s) of Insurance and applicable insurance endorsements, in form and content reasonably satisfactory to Ava, evidencing that all required insurance coverage is in effect. The required certificate(s) and endorsements must be sent as set forth in the notices.

The Seller shall not receive a notice to proceed with the work under this Agreement until it has obtained all insurance required and such insurance has been approved by Ava. This approval of insurance shall neither relieve nor decrease the liability of the Seller.

3. DURATION OF COVERAGE: All required insurance shall be maintained during the entire term of this Agreement or phase of this Agreement to which it applies. In addition, insurance policies and coverage(s) written on a claims-made basis:
• Shall be maintained during the entire term of this Agreement or phase of this Agreement to which it applies and until 5 years following the letter of termination of this Agreement/phase of this Agreement and acceptance of all work provided under this Agreement.
• The retroactive date must be before the execution date of the contract or the beginning of contract work.
• If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective, or start of work date, the Seller must purchase extended reporting period coverage for a minimum of five (5) years after completion of work.

4. ADDITIONAL INSURED: All insurance required herein with the exception of Personal Automobile Liability, Workers’ Compensation and Employers Liability, shall be Attachment Staff Report Item 16C
Exhibit J | 2
endorsed to name as additional insured: Ava or, its elected officials, officers, agents, employees, volunteers, and representatives. The Additional Insured endorsement shall be at least as broad as ISO Form Number CG 20 38 04 13.

In all cases, the additional insured endorsement shall be at least as broad as ISO Form CG 20 38 04 13.

All private property owners granting “Rights of Entry” for construction of the work shall be covered as insureds under the same coverage as provided Ava as respects their ownership of the property and the work to be done thereon.

5. INSURER FINANCIAL RATING: Insurance shall be maintained through an insurer with an A.M. Best Rating of no less than A: VII or equivalent shall be admitted to the State of California unless otherwise waived by Risk Management, and with deductible amounts acceptable to Ava. Acceptance of Seller’s insurance by Ava shall not relieve or decrease the liability of Seller hereunder. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the Seller.

6. SUBCONTRACTORS: Seller shall include all subcontractors as an insured (covered party) under its policies or shall verify that the subcontractor, under its own policies and endorsements, has complied with the insurance requirements in this Agreement, including this Exhibit 5. Additional Insured endorsement shall be at least as broad as ISO Form Number CG 20 38 04 13.

7. JOINT VENTURES: If Seller is an association, partnership or other joint business venture, required insurance shall be provided by one of the following methods:
• Separate insurance policies issued for each individual entity, with each entity included as a “Named Insured” (covered party), or at minimum named as an “Additional Insured” on the other’s policies.
• Coverage shall be at least as broad as in the ISO forms named above. Joint insurance program with the association, partnership or other joint business venture included as a “Named Insured”.

8. NOTICE OF CANCELLATION:

All coverage as required herein shall not be canceled or changed so as to no longer meet the specified Ava insurance requirements without 30 days' prior written notice of such cancellation or change being delivered to Ava or their designated agent.

9. SELF-INSURANCE:

Ava acknowledges that some insurance requirements contained in this Agreement may be fulfilled by self-insurance on the part of the Seller. However, this shall not in any way limit liabilities assumed by the Seller under this Agreement. Any self-insurance shall be approved in writing by Ava upon satisfactory evidence of financial capacity. Seller’s obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance programs Attachment Staff Report Item 16C
Exhibit J | 3
or self-insurance retentions. Ava acknowledges that some insurance requirements contained in this Agreement may be fulfilled by a combination of primary and excess liability policies.

However, this shall not in any way limit liabilities assumed by Seller under this Agreement.

B. DESIGN PHASE INSURANCE REQUIREMENTS
Insurance required during the design phase will include:

1. Commercial General Liability Insurance for bodily injury (including death) and property damage which provides limits as follows:
a. Each occurrence – $2,000,000
b. General aggregate - $2,000,000
c. Personal Injury - $2,000,000

2. General liability coverage shall include:
a. Project Sites and Operations
b. Personal Injury liability
c. Severability of interest

3. Automobile Liability Insurance
For bodily injury (including death) and property damage which provides total limits of not less than one million dollars ($1,000,000) combined single limit per occurrence applicable to all owned, non-owned and hired vehicles.

4. Workers' Compensation and Employer's Liability Insurance a. Statutory California Workers' Compensation coverage including broad form all states coverage.
b. Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence.

5. Professional Errors and Omissions Liability Insurance a. Coverage shall be in an amount of not less than two million dollars ($2,000,000) per occurrence/aggregate.

Attachment Staff Report Item 16C
Exhibit J | 4
b. If coverage contains a deductible or self-retention, it shall not be greater than two hundred fifty thousand dollars ($250,000) per occurrence/event. c. Coverage as required herein shall be maintained for a minimum of three years following termination or completion of this Agreement.

6. Claims Made Coverage
If coverage is written on a claims’ made basis, the Certificate of Insurance shall clearly state so. In addition to coverage requirements above, such policy shall provide that:
a. Policy retroactive date coincides with or precedes the consultant's start of work (including subsequent policies purchased as renewals or replacements). b. Policy allows for reporting of circumstances or incidents that might give rise to future claims.

C. CONSTRUCTION PHASE INSURANCE REQUIREMENTS
The following limits shall apply:

1. Commercial General Liability Insurance for bodily injury (including death) and property damage which provides limits as follows:
a. Each occurrence - $2,000,000
b. General aggregate - $4,000,000
c. Products/Completed Operations aggregate ** - $4,000,000 d. Personal Injury - $2,000,000
A minimum of 50% of each of the aggregate limits must remain available at all times unless coverage is project specific.

2. General liability coverage shall include:
a. Project Sites and Operations
b. **Products/Completed Operations with limits of four million dollars ($4,000,000) per aggregate to be maintained for three (3) years following acceptance of the work by Ava. c. Contractual Liability expressly including liability assumed under this Agreement. If the Seller is working within fifty (50) feet of a railroad or light rail operation, any exclusion as to performance of operations within the vicinity of any railroad bridge, trestle, track, roadbed, tunnel, underpass or crossway shall be deleted, or a railroad protective policy provided.

Attachment Staff Report Item 16C
Exhibit J | 5
d. Personal Injury liability
e. Ava’s and Seller’s protective liability
f. Severability of interest
g. Explosion, Collapse, and Underground Hazards (X, C and U) h. Broad Form Property Damage liability

3. General liability coverage shall include the following endorsements, copies of which shall be provided to Ava:
a. Contractual Liability Endorsement:

Insurance afforded by this policy shall apply to liability assumed by the insured under written contract with Ava.
b. X C & U (Explosion, Collapse and Underground) Endorsement:

Insurance afforded by this policy shall provide X, C and U Hazards coverage.

4. Automobile Liability Insurance
For bodily injury (including death) and property damage which provides total limits of not less than one million dollars ($1,000,000) combined single limit per occurrence applicable to all owned, non-owned and hired vehicles.

5. Workers' Compensation and Employer's Liability Insurance a. Statutory California Workers' Compensation coverage including broad form all states coverage.
b. Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence.

6. Property Installation floater:

The property installation floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the work, including during transit, installation and testing at the entity’s site.

The coverage shall be in the amount of the value of the completed project and materials.

D. OPERATIONS AND MAINTENANCE PHASE INSURANCE REQUIREMENTS Without limiting the Seller’s indemnification of Ava, Seller, shall at its own expense, provide and maintain the following insurance coverage in full force and effect after the Commercial Operation Date:

Attachment Staff Report Item 16C
Exhibit J | 6

1. Commercial General Liability Insurance - for bodily injury (including death) and property damage which provides limits as follows:
a. Each occurrence - $2,000,000
b. General aggregate - $4,000,000
c. Personal Injury - $2,000,000

2. General liability coverage shall include:
• Project Sites and Operations
• Personal Injury liability
• Severability of interest

4. Workers' Compensation and Employer's Liability Insurance • Statutory California Workers' Compensation coverage including broad form all-states coverage. • Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence.

Attachment Staff Report Item 16C
Exhibit J | 1

EXHIBIT K

LOAD MODIFICATION DISPATCH REPORT
In accordance with Section 15.1(d), Seller shall deliver to Ava a CSV or Excel file containing the data fields bulleted below (each, a “Load Modification Dispatch Report”) with respect to each Storage Project at the cadence described in #1-3 below:

1. Load Modification Dispatch Report – Initial Forecast At least thirty (30) days prior to the estimated Commercial Operation Date, Seller shall deliver a forecast for each Storage Project containing the rate schedule / sector, configuration, and Forecasted Values data fields detailing the expected hourly storage generation performance for the current calendar year.

2. Load Modification Dispatch Report – Subsequent Forecast On or prior to February 20 for each calendar year following the Storage Project’s Commercial Operation Date, Seller shall deliver a forecast for such Storage Project containing the rate schedule / sector, configuration, and Forecasted Values data fields detailing the expected hourly storage generation performance for the current calendar year.

3. Load Modification Dispatch Report – Annual Historicals On or prior to February 20 for each calendar year following the Storage Project’s Commercial Operation Date, Seller shall deliver a historical report for such Storage Project containing the rate schedule / sector, configuration, and Actual Values data fields detailing the actual hourly storage generation performance for the immediately preceding calendar year.

Load Modification Dispatch Report data fields
• Rate schedule / sector
• Configuration (Standalone/Paired with Solar)
• “Forecasted Values” data fields (for #1 and #2 above) o Number of units
o Aggregate energy capacity (kWh)
o Aggregate power rating (kw)
o Date & Timestamp
o Forecasted / Simulated Charge Events - Number of charge events in the interval o Forecasted / Simulated Discharge Events - Number of discharge events in the interval
o Forecasted / Simulated Energy Stored - AC kWh stored in the interval o Forecasted / Simulated Energy Discharged - AC kWh discharged in the interval o Forecasted / Simulated Metered Load (kWh)
o Forecasted / Simulated Solar output if available
o Forecasted / Simulated Energy discharged to grid (kWh) • “Actual Values” data fields (for #3 above)
o Number of units
o Aggregate energy capacity (kWh)
o Aggregate power rating (kw)
o Date & Timestamp
Attachment Staff Report Item 16C
Exhibit J | 2
o Actual Energy Stored - AC kWh stored in the interval
o Actual Energy Discharged - AC kWh discharged in the interval o Actual Metered Load (kWh)
o Actual Solar output if available
o Actual Energy discharged to grid (kWh)
Attachment Staff Report Item 16C
WSGR Draft 11.11.2024
AVA COMMUNITY ENERGY – [CITY]

POWER PURCHASE & SERVICE AGREEMENT
(CRITICAL MUNICIPAL FACILITIES)
Attachment Staff Report Item 16D
i

TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS ........................................................................................................... 1 Section 1.1 Contract Definitions ........................................................................................... 1 ARTICLE 2 SCOPE OF TRANSACTION; PROJECT SITE ADDENDA ................................... 1 Section 2.1 Scope of Transaction .......................................................................................... 1 Section 2.2 Delivery of Project Energy ................................................................................. 2 Section 2.3 Project Site Addenda .......................................................................................... 2 ARTICLE 3 TERM AND TERMINATION ................................................................................... 2 Section 3.1 Effective Date; Term .......................................................................................... 2 Section 3.2 Early Termination of Projects ............................................................................ 2 ARTICLE 4 PROJECT DEVELOPMENT; MILESTONES .......................................................... 3 Section 4.1 Generally ............................................................................................................ 3 Section 4.2 Development Progress Reports .......................................................................... 4 Section 4.3 Project Design Approval .................................................................................... 4 Section 4.4 Construction Start ............................................................................................... 4 Section 4.5 Obligation to Interconnect .................................................................................. 4 Section 4.6 Commercial Operation. ...................................................................................... 5 ARTICLE 5 INVOICING AND PAYMENT ................................................................................. 6 Section 5.1 Billing and Payment Terms ................................................................................ 6 Section 5.2 Monthly Invoices ............................................................................................... 7 Section 5.3 Payment Terms ................................................................................................... 8 Section 5.4 Payment Adjustments; Billing Errors ................................................................ 8 Section 5.5 Billing Disputes .................................................................................................. 8 Section 5.6 Pass Through ...................................................................................................... 8 Section 5.7 Books and Records. ............................................................................................ 9 Section 5.8 Taxes .................................................................................................................. 9 ARTICLE 6 PROJECT SITE ACCESS; PROPERTY OWNERSHIP ......................................... 10 Section 6.1 Access Rights ................................................................................................... 10 Section 6.2 Ownership of Projects ...................................................................................... 12 Section 6.3 Covenants and Obligations Regarding Liens ................................................... 12 ARTICLE 7 PROJECT SITE MAINTENANCE .......................................................................... 13 Section 7.1 General Covenants ........................................................................................... 13 Section 7.2 Transmission and Distribution Maintenance Information ............................... 13 Section 7.3 Use of Equipment ............................................................................................. 13 Section 7.4 Insolation .......................................................................................................... 13 Section 7.5 Maintenance of Project Site ............................................................................. 14 Section 7.6 No Alteration of Project Site ............................................................................ 14 Attachment Staff Report Item 16D
ii
Section 7.7 Project Repair and Maintenance ...................................................................... 14 Section 7.8 City-Requested Outages ................................................................................... 15 Section 7.9 Use and Payment of Contractors and Subcontractors ...................................... 15 Section 7.10 Prevailing Wages; Hiring Requirements. ......................................................... 15 Section 7.11 Notice of Hazardous Substances ...................................................................... 16 ARTICLE 8 PERFORMANCE GUARANTEES; WARRANTIES ............................................. 16 Section 8.1 Guaranteed Energy Production ........................................................................ 16 Section 8.2 Guaranteed Storage Availability. ..................................................................... 17 Section 8.3 Ava Performance Warranties ........................................................................... 17 Section 8.4 NO OTHER WARRANTY .............................................................................. 18 ARTICLE 9 RECS AND INCENTIVES; OPTIMIZATION SAVINGS ..................................... 18 Section 9.1 Renewable Energy Credits ............................................................................... 18 Section 9.2 Delivery of RECs ............................................................................................. 18 Section 9.3 Optimization Savings ....................................................................................... 19 Section 9.4 Grid Services .................................................................................................... 19 ARTICLE 10 FORCE MAJEURE; BUDGETARY NON-APPROPRIATION EVENT ............ 19 Section 10.1 Force Majeure Event ........................................................................................ 19 Section 10.2 Termination Due To Force Majeure ................................................................ 20 Section 10.3 Budgetary Non-Appropriation Event ............................................................... 20 Section 10.4 Exercise of City Permitting Authority ............................................................. 20 Section 10.5 No-Fault Termination ....................................................................................... 21 ARTICLE 11 RELOCATION AND REMOVAL UPON TERMINATION ................................ 21 Section 11.1 Relocation Requests ......................................................................................... 21 Section 11.2 Removal Services ............................................................................................. 21 Section 11.3 Abandonment ................................................................................................... 22 Section 11.4 Ava Removal Security ..................................................................................... 22 ARTICLE 12 MEASUREMENT .................................................................................................. 22 Section 12.1 Meter ................................................................................................................ 22 ARTICLE 13 DEFAULTS, REMEDIES, AND DAMAGES ...................................................... 23 Section 13.1 Ava Project Defaults ........................................................................................ 23 Section 13.2 City’s Remedies for Ava Project Default ......................................................... 23 Section 13.3 Ava Portfolio Defaults ..................................................................................... 23 Section 13.4 City’s Remedies for Ava Portfolio Default ...................................................... 24 Section 13.5 City Project Default .......................................................................................... 24 Section 13.6 Ava’s Remedies for City Project Default ......................................................... 24 Section 13.7 City Portfolio Default ....................................................................................... 25 Section 13.8 Ava’s Remedies for City Portfolio Default ...................................................... 25 ARTICLE 14 REPRESENTATIONS, WARRANTIES, AND COVENANTS ........................... 25 Attachment Staff Report Item 16D
iii
Section 14.1 Ava Representations and Warranties ............................................................... 25 Section 14.2 City’s Representations and Warranties ............................................................ 26 Section 14.3 General Covenants ........................................................................................... 26 Section 14.4 Covenants of Ava ............................................................................................. 27 ARTICLE 15 INSURANCE ......................................................................................................... 27 Section 15.1 Ava’s Insurance ................................................................................................ 27 Section 15.2 City’s Insurance ............................................................................................... 27 ARTICLE 16 INDEMNIFICATION AND LIMITATIONS OF LIABILITY ............................. 28 Section 16.1 Indemnity by the Parties ................................................................................... 28 Section 16.2 Notice and Participation in Third Party Claims ............................................... 28 Section 16.3 Environmental Indemnification ....................................................................... 29 Section 16.4 Limitations on Liability .................................................................................... 29 ARTICLE 17 CHANGE IN LAW; COMPLIANCE EXPENDITURE CAP ............................... 30 Section 17.1 Changes in Law ................................................................................................ 30 Section 17.2 Compliance Expenditure Cap .......................................................................... 30 ARTICLE 18 ASSIGNMENT AND FINANCING ...................................................................... 30 Section 18.1 Assignment ....................................................................................................... 30 Section 18.2 Financing and Collateral Assignment .............................................................. 31 Section 18.3 Termination Requires Consent ......................................................................... 31 ARTICLE 19 CONFIDENTIALITY ............................................................................................ 31 Section 19.1 Confidential Information .................................................................................. 31 Section 19.2 Permitted Disclosures ....................................................................................... 32 Section 19.3 Miscellaneous ................................................................................................... 32 Section 19.4 Goodwill and Publicity .................................................................................... 33 ARTICLE 20 GENERAL PROVISIONS ..................................................................................... 33 Section 20.1 Interpretation .................................................................................................... 33 Section 20.2 Choice of Law; Venue ..................................................................................... 33 Section 20.3 Dispute Resolution ........................................................................................... 33 Section 20.4 Notices .............................................................................................................. 34 Section 20.5 Survival ............................................................................................................ 34 Section 20.6 Compliance with All Laws ............................................................................... 35 Section 20.7 Good Faith & Fair Dealing .............................................................................. 35 Section 20.8 Cooperation ...................................................................................................... 35 Section 20.9 Construction ..................................................................................................... 35 Section 20.10 Non-Discrimination .......................................................................................... 35 Section 20.11 Non-Exclusive Contract ................................................................................... 35 Section 20.12 Further Assurances ........................................................................................... 36 Section 20.13 Waivers ............................................................................................................ 36 Section 20.14 Non-Dedication of Projects .............................................................................. 36 Attachment Staff Report Item 16D
iv
Section 20.15 Service Contract ............................................................................................... 36 Section 20.16 No Agency, Lease, Joint Venture or Partnership ............................................. 36 Section 20.17 Account Manager ............................................................................................. 37 Section 20.18 Entire Agreement, Modification, Severability ................................................. 37 Section 20.19 Forward Contract ............................................................................................. 37 Section 20.20 No Third-Party Beneficiaries ........................................................................... 37 Section 20.21 Disentanglement ............................................................................................... 37 Section 20.22 Accountability .................................................................................................. 37 Section 20.23 Cooperation with Review ................................................................................. 38 Section 20.24 Authority .......................................................................................................... 38 Section 20.25 Counterparts ..................................................................................................... 38 Table of Schedules and Exhibits
Schedule I Defined Terms
Exhibit I Expected Annual Contract Quantity
Exhibit II Form of Project Site Addendum
Exhibit III City-Specific Terms
Exhibit IV Insurance Requirements
Exhibit V Notices
Exhibit VI Ava Termination Payment Schedule
Exhibit VII City Termination Payment Schedule
Attachment Staff Report Item 16D
General Terms and Conditions | 1

RENEWABLE ENERGY & STORAGE POWER PURCHASE AGREEMENT
This Renewable Energy & Storage Power Purchase Agreement (this “Agreement”) is entered into as of [____], 2024 (the “Effective Date”) between [City], a [municipality] (“City”) and Ava Community Energy, a California joint powers authority (“Ava”). City and Ava are sometimes referred to herein individually as a “Party” and jointly as the “Parties”.

RECITALS
WHEREAS, City wishes to engage Ava, whether directly or indirectly through one or more subcontractors, to develop, construct, operate, and maintain multiple photovoltaic solar Projects (each, a “Generating Project”, and collectively, the “Generating Projects”) and battery energy storage Projects (each, a “Storage Project”, and collectively, the “Storage Projects”) on a portfolio of Project Sites owned by City, as more particularly described in one or more addenda to be attached hereto and incorporated herein (each, a “Project Site Addendum” or “PSA”); WHEREAS, Ava desires to sell, and City desires to purchase, the Product on the terms and conditions set forth in this Agreement;
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
Section 1.1 Contract Definitions. All capitalized terms used in this Agreement shall have the meanings ascribed to them in Schedule I to this Agreement.

ARTICLE 2
SCOPE OF TRANSACTION; PROJECT SITE ADDENDA
Section 2.1 Scope of Transaction. This Agreement governs the relationship between City and Ava, as detailed under this Section 2.1. At Ava’s discretion, any obligation of Ava under this Agreement may be performed by Ava’s affiliates, agents, representatives, contractors, and/or subcontractors acting on Ava’s behalf; provided, that Ava shall remain solely responsible for any work performed thereby. City and Ava acknowledge and agree that Ava has entered into that certain Power Purchase & Service Agreement, dated as of [___], 2024 with Developer (the “Developer Agreement”) pursuant to which Ava has engaged Developer to develop, construct, own, operate, and maintain the Projects hereunder on substantially similar terms to those contained herein. Ava shall serve as the intermediary under this Agreement and the Developer Agreement, whereby the City shall be the buyer and recipient of the Product, and the Developer shall perform all obligations set forth in the Developer Agreement. Subject to the terms and conditions of this Agreement and each PSA, during the Term, Ava shall supply and deliver to City all of the Product it receives from the Developer that was produced by or associated with each Project, and City shall purchase all such Product at the Contract Price.

Attachment Staff Report Item 16D
General Terms and Conditions | 2
Section 2.2 Delivery of Project Energy. Subject to the provisions of this Agreement, with respect to each Generating Project, for the duration of the applicable Delivery Period, Ava shall supply and deliver the Product to the City at the Delivery Point, and City shall accept delivery of the Product at the Delivery Point in accordance with the terms of this Agreement. Ava shall be responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Project Energy to the Delivery Point. Title to and risk of loss related to the Project Energy shall pass and transfer from Ava to City at the Delivery Point. City has no obligation to purchase from Ava any Project Energy that is not or cannot be delivered to the Delivery Point as a result of a Planned Outage, Forced Outage or a Force Majeure Event.

Section 2.3 Project Site Addenda. On the Effective Date, the Parties shall populate and attach hereto a PSA substantially in the form attached hereto as Exhibit II for each Project Site hereunder, and each PSA shall become part of and is hereby incorporated into this Agreement. The terms of each such PSA shall, in addition to the terms of this Agreement, govern the obligations of each Party with respect to the Projects thereunder. Any reference to this Agreement shall be a reference to this Agreement together with all duly executed PSAs. In the event of a conflict or inconsistency between the provisions of this Agreement and any PSA, the provisions of the PSA shall control. Each PSA may be amended at any time upon mutual agreement of the Parties confirmed in writing. The Parties agree that any PSA amended in accordance with the foregoing sentence shall supersede any prior PSA to the extent provided in such amendment and shall be effective from the date stated in the amended PSA.

ARTICLE 3

TERM AND TERMINATION
Section 3.1 Effective Date; Term. This Agreement is effective as of the Effective Date, and shall end upon the expiration of all Project Terms for each Project contemplated hereunder (“Term”). With respect to each Project, the Product supply period (“Delivery Period”) commences on the Commercial Operation Date of the Project and ends on the twenty-fifth (25th) anniversary of such Commercial Operation Date (the “Initial Term”), unless terminated earlier pursuant to the provisions of this Agreement. Thereafter, the term of this Agreement may be extended as it applies to such Project, upon mutual written consent of the Parties, for successive five (5)-year periods (each such period, a “Renewal Term”, and together with the Initial Term, the “Project Term”), up to a maximum Project Term of fifty (50) years. Between ninety (90) and one hundred eighty (180) days prior to the end of the Initial Term or any Renewal Term, City shall provide written notice to Ava as to its desire to continue for any subsequent Renewal Term, upon which the Parties shall negotiate in good faith for sixty (60) days the revised terms, if any, applicable to such Renewal Term. After such 60-day period, if the Parties have not mutually agreed upon the terms and conditions applicable to such Renewal Term, then the applicable Project Term will expire at the end of the then-current Initial Term or Renewal Term, as applicable.

Section 3.2 Early Termination of Projects
(a) Early Termination Events. With respect to each Project, prior to Construction Start, the applicable Party specified below shall have the right to withdraw the affected Project from this Agreement upon the occurrence of any of the following events, so long Attachment Staff Report Item 16D
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as the terminating Party provides reasonably sufficient evidence to the other Party demonstrating the occurrence of such event (each, an “Early Termination Event”):
(i) Either Party may withdraw an affected Project under this Section 3.2(a) if (1) the EPC Contractor encounters extraordinary subsurface conditions that were not reasonably anticipated by either Party as of the Effective Date, such as bedrock or water pipes, which have a material adverse impact on the development costs associated with such Project, and such costs cannot be adequately mitigated or eliminated by Developer using commercially reasonable efforts; (2) Developer discovers historical or cultural artifacts on the Project Site and as a result, Developer is unable to perform its obligations under the Developer Agreement in compliance with Applicable Law; or (3) Developer discovers Adverse Environmental Conditions on the Project Site and the terminating Party provides an opinion from an independent third-party consultant that such Adverse Environmental Conditions cannot be adequately mitigated or eliminated by Developer using commercially reasonable efforts. (ii) Only Ava may withdraw an affected Project under this Section 3.2(a) if (1) the Local Electric Utility denies Developer’s application for interconnection or easements necessary to enable the delivery of Project Energy to the Delivery Point, or the Project Site is otherwise disqualified due to acts or omissions of City, despite Developer’s use of commercially reasonable efforts; (2) the AHJ rejects Developer’s application for a Governmental Approval on non-administrative or prejudicial grounds, despite Developer’s exercise of commercially reasonable efforts; (3) Developer discovers or has reasonable grounds to believe that title to the Project Site is unclear, defective or encumbered by adverse claims, restrictions or Liens, and can provide evidence supporting documentation or evidence of such belief; or (4) any portion of the Project Site is damaged by fire, earthquake, flood or other casualty in a manner that has a material adverse effect on the installation or operation of the Project at the Project Site and such damage cannot be readily remedied.
(b) Procedures. Upon any such withdrawal of a Project due to an Early Termination Event, (1) the applicable PSA shall be deemed withdrawn from this Agreement, (2) neither Party shall have any liability to the other Party with respect to the withdrawn Project other than those that survive this Agreement, and (3) Ava shall have the right to (i) deliver to City a Relocation Request in accordance with Section 11.1, and/or (ii) adjust the Renewable Rate in accordance with Section 5.1(b). In the case of a claim by City that a Project meets the qualification for an Early Termination Event, Ava may in good faith challenge such a claim in its reasonable judgment. Any disagreement between the Parties regarding the applicability of an Early Termination Event asserted by City shall be subject to the dispute resolution provisions of Section 20.3.

ARTICLE 4
PROJECT DEVELOPMENT; MILESTONES
Section 4.1 Generally. Ava shall (directly or indirectly through Developer) develop, design, engineer, construct, install, and commission each Project in a timely fashion and in accordance with the terms of this Agreement, Prudent Operating Practice, and Applicable Law.

Attachment Staff Report Item 16D
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Section 4.2 Development Progress Reports. With respect to each Project, starting on the Effective Date until all Projects hereunder have achieved COD, Ava shall provide quarterly progress reports (a “Progress Report”) to City which describe Ava’s progress in achieving Construction Start and COD for each Project therein. Ava shall also provide City with any reasonably requested documentation (subject to confidentiality restrictions) directly related to the achievement of Construction Start or COD for any Project within twenty (20) Business Days of receipt of such request from City.

Section 4.3 Project Design Approval. With respect to each Project, no later than seventy-five (75) days prior to the Estimated Construction Start Date, Ava shall deliver to City (i) a design & construction schedule, (ii) all drawings, plans, and specifications for the construction of the Project, and (iii) production estimation reports from Helioscope (or any comparable entity) (the “Design Plan”), which shall be subject to approval by City in its reasonable discretion. Within thirty (30) days following the date on which the Design Plan is received by City, City shall provide written notice to Ava either (i) accepting the Design Plan, or (ii) rejecting the Design Plan, along with its commercially reasonable explanation for doing so, including, but not limited to, (x) any operational issues at the applicable Project Site, or (y) substantial revisions to the original draft design plan upon which indicative pricing was based. If City rejects the Design Plan under clause (ii) above, within thirty (30) days of receipt of City’s rejection, Ava (directly or indirectly through Developer) shall modify the Design Plan to address City’s objections (such modified plan, the “Modified Design Plan”) and submit such Modified Design Plan to City for approval in its reasonable discretion. Within fifteen (15) days following the date on which the Modified Design Plan is received by City, City shall provide written notice to Ava indicating its acceptance or rejection of the Modified Design Plan. If City accepts the Modified Design Plan, such Modified Design Plan shall be deemed the applicable Design Plan for such Project. If City rejects the Modified Design Plan, the Parties shall resolve their differences in accordance with the dispute resolution procedures set forth in Section 20.3.

Section 4.4 Construction Start.
(a) Construction Start. With respect to each Project, “Construction Start” shall be deemed to have occurred once Ava and/or Developer has (i) engaged all major contractors and ordered all major equipment and supplies as, in each case, can reasonably be considered necessary so that physical construction of such Project may begin and proceed to completion without foreseeable interruption of material duration, (ii) delivered to City a Design Plan which has been approved by City in its reasonable discretion in accordance with Section 4.3, and (iii) executed an EPC Contract and issued thereunder a notice to proceed that authorizes the applicable contractor to mobilize the Project Site and begin physical construction of the Project at the Project Site. The date of Construction Start will be evidenced by and subject to Ava’s delivery to City of written notice indicating the occurrence of Construction Start, and the date stated in such notice shall be the “Construction Start Date”.

Section 4.5 Obligation to Interconnect. Ava shall, directly or indirectly through Developer, at its own cost and expense, negotiate and enter into an Interconnection Agreement and such other agreements with the Local Electric Utility as needed to enable the transmission of Project Energy to the Delivery Points. City shall not be responsible for any costs under the Interconnection Agreement or any other agreements between Ava or Developer and the Local Attachment Staff Report Item 16D
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Electric Utility, including but not limited to the costs of any upgrades to the Transmission System associated with the interconnection of the Project. In no event shall City be required to maintain the interconnection Projects including metering Projects or for the cost and expense associated therewith.

Section 4.6 Commercial Operation.
(a) Commercial Operation Deadline. With respect to each Project, Ava shall cause the Commercial Operation Date to occur no later than ninety (90) days after the Construction Start Date (“Commercial Operation Deadline”).
(b) Force Majeure Delay. If Ava’s timely achievement of the Commercial Operation Date is impacted by a Force Majeure Event (“Force Majeure Delay”), Ava shall be entitled to extend the Commercial Operation Deadline on a day-for-day basis for no more than one-hundred twenty (120) days (“FM Delay Cure Period”) so long as Ava provides to City written notice of a Force Majeure Event in accordance with the requirements set forth in Section 10.1 on or before the Commercial Operation Deadline. For the avoidance of doubt, no COD Delay Damages shall be owed during such FM Delay Cure Period. (c) COD Delay Notice; COD Delay Cure Period. Ava shall provide City with advanced notice of any delay in achieving COD by the Commercial Operation Deadline (“COD Delay Notice”) at least forty (40) days in advance of the Commercial Operation Deadline (or, if Ava’s anticipation of such delay does not arise until after such advanced window, then as soon as reasonably practicable following such anticipation arising). If the Project has not achieved COD by the Commercial Operation Deadline (subject to any FM Delay Cure Period thereto), then Ava may avoid an Ava Event of Default for the duration of the COD Delay Cure Period by passing through to the City the COD Delay Damages received from Developer pursuant to Section 5.6.

Prior to the expiration of the COD Delay Cure Period, as long as Ava has provided the COD Delay Notice to City and passed through all COD Delay Damages received from Developer in accordance with this Section 4.6(c), Ava’s failure to achieve COD by the Commercial Operation Deadline shall not be deemed an Ava Event of Default. Upon either (A) Ava’s failure to timely pass through the COD Delay Damages, or (B) Ava’s failure to achieve COD prior to the expiration of the COD Delay Cure Period, in each case for any reason other than a Force Majeure Delay or City’s fault or negligence, Ava shall be deemed a Defaulting Party pursuant to Section 13.1(a) and City shall have the right to declare an Ava Event of Default and terminate the applicable Project. (i) Acknowledgement of Liquidated Damages. Each Party agrees that (1) the damages that City would incur due to Ava’s delay in achieving COD by the Commercial Operation Deadline would be difficult or impossible to predict with certainty, and (2) the prorated COD Delay Damages passed through pursuant to Section 5.6 are an appropriate approximation of such damages.
(d) COD Confirmation; Commissioning Tests. With respect to each Project, Ava shall (A) take all actions and obtain all approvals necessary to meet the obligations of this Agreement, to develop the Project, and to deliver the Product to City pursuant to the terms of this Agreement, and (B) use commercially reasonable efforts to cause Developer to comply with all applicable CAISO and Local Electric Utility requirements for pre-operational testing. No later than Attachment Staff Report Item 16D
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three (3) Business Days prior to conducting a pre-operational test in connection with Commercial Operation of the Project (a “Commissioning Test”), Ava shall notify City of the date on which it intends to retain a Licensed Professional Engineer to conduct such Commissioning Tests. City shall have the right to be present during any such Commissioning Test, and to receive copies of an Installed Capacity Certificate issued by the Licensed Professional Engineer thereafter. Ava may change the date for such Commissioning Tests upon three (3) days’ advanced written notice of the Commissioning Test. On or promptly following the Commercial Operation Date (but in no event later than ten (10) Business Days thereafter), Ava shall provide notice to City confirming the occurrence of the Commercial Operation Date.

ARTICLE 5

INVOICING AND PAYMENT
Section 5.1 Billing and Payment Terms.
(a) Calculation of Monthly Payment. On a monthly basis during the Delivery Period, City shall pay Ava a Monthly Payment for all Product delivered hereunder, which shall be calculated in accordance with the following:
(i) With respect to each Project, the “PV Payment” shall be determined as follows: (A) if such Project is a Tranche A Project, multiply (i) all PV Energy delivered to City at the Delivery Point during the applicable Contract Month, by (ii) $[XX] (the “Tranche A PPA Rate”); or (B) if such Project is a Tranche B Project, multiply (i) all PV Energy delivered to City at the Delivery Point during the applicable Contract Month, by (ii) $[XX] (the “Tranche B PPA Rate”). The “Storage Payment” shall be calculated by multiplying (i) $[XX]/kW (the “Storage Rate”) by (ii) the Storage Inverter Power for such Project. Notwithstanding the foregoing, the Parties acknowledge and agree that (1) the Renewable Rates and the Storage Rate set forth in this Section 5.1(a)(i) shall be subject to an annual escalation of two and one-half percent (2.50%) (the “Annual Escalator”), and (2) other than with respect to such Annual Escalator, such Renewable Rates are to remain fixed for the duration of the Term, except as otherwise set forth in Section 5.1(b) and 5.1(c).
(ii) The sum of the PV Payment and the Storage Payment shall constitute the “Project Monthly Payment”, and the sum of all Project Monthly Payments for all Projects hereunder shall constitute the “Monthly Payment”. (b) Adjustments to Renewable Rate. With respect to both the Tranche A PPA Rate and the Tranche B PPA Rate, in the event that any Project is terminated or withdrawn from this Agreement due to an Early Termination Event or a City Event of Default, then Ava may revise the applicable Renewable Rate, the amount of which shall be at its sole discretion so long as such revised Renewable Rate provides the City Portfolio with estimated Optimization Savings that result in cost neutrality. Upon Ava’s delivery of written notice to City of such revised Renewable Rate in accordance with the foregoing, such revised Renewable Rate shall take effect under this Agreement, and neither Party shall have any liability to the other with respect to the withdrawn Project(s) other than those that survive this Agreement. Any adjustment to the Renewable Rate(s) made in accordance with this Section 5.1(b) shall be reflected in an amendment executed by both Parties in accordance with Section 20.18.

Attachment Staff Report Item 16D
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(c) Adjustments to Tranche B PPA Rate. Prior to Construction Start, with respect to the Tranche B PPA Rate only, upon Ava’s delivery to City of a reasonably documented design change for any Tranche B Project, Ava may increase the Tranche B PPA Rate, the amount of which shall be at its sole discretion so long as such revised Tranche B PPA Rate provides the City Portfolio with estimated Optimization Savings that result in cost neutrality; provided, however, in the event that the revised Tranche B PPA Rate would cause estimated Optimization Savings to no longer be cost neutral, the Parties may, upon mutual agreement, terminate or withdraw one or more Tranche B Projects from the City Portfolio in order to achieve estimated Optimization Savings that result in cost neutrality over the Portfolio Delivery Period at such increased Tranche B PPA Rate, upon which such revised Tranche B PPA Rate shall take effect under this Agreement, and neither Party shall have any liability to the other with respect to the withdrawn Project(s) other than those that survive this Agreement. Any adjustment to the Tranche B PPA Rate made in accordance with this Section 5.1(c) shall be reflected in an amendment executed by both Parties in accordance with Section 20.18. (d) City Pricing Incentives.
(i) One-Time Storage Incentive. Within sixty (60) days of the date on which the final Tranche B Project achieves COD, Ava shall deliver to City a one-time incentive payment (the “Storage Incentive Payment”), which shall be calculated by multiplying (i) the cumulative Storage Contract Capacity of all Tranche B Projects in the City Portfolio, by (ii) four hundred dollars ($400)/kWh. Such Storage Incentive Payment shall be delivered from Ava to City via cash, check, or ACH payment.
(ii) Monthly Bill Credit. On a monthly basis during the first five (5) years of the Initial Term, Ava shall credit the City in the form of a monthly bill credit to City’s monthly invoice, which shall be calculated by multiplying (i) the City’s Storage Contract Capacity, by (ii) two dollars ($2)/kWh (the product of (i) and (ii), the “Monthly Bill Credit”), provided, however, that no Monthly Bill Credit shall be applied during any Contract Month during which any of the following has occurred and is ongoing for the duration of such Contract Month: (a) City Project Default, (b) City Portfolio Default; (c) Forced Outage; and/or (d) Force Majeure Event (each, a “Bill Credit Disqualifying Event”). If a Bill Credit Disqualifying Event only applies to particular Projects and not the entire City Portfolio, the Monthly Bill Credit shall be adjusted on a pro rata basis based on the Storage Contract Capacity of the affected Projects. The Monthly Bill Credit shall be delivered from Ava to City in the form of a bill credit on a monthly invoice issued hereunder which reduces the Monthly Payment owed by the City. (iii) Elimination of City Pricing Incentives. Notwithstanding the foregoing in this Section 5.1(d), at any time after the Effective Date, Ava may, at its discretion, eliminate or reduce the Storage Incentive Payment and/or the Monthly Bill Credit if it reasonably determines that such elimination or reduction will result in greater estimated Optimization Savings to City; provided, upon City’s reasonable request, Ava shall deliver to City documentation and calculations supporting its determination hereunder.

Section 5.2 Monthly Invoices. Ava shall invoice City on a monthly basis, the delivery of which shall be no later than forty-five (45) days following the end of the applicable monthly billing period. Failure to send such invoice within ninety (90) days following the end of the Attachment Staff Report Item 16D
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applicable monthly billing period shall relieve the City of any liability for payment of the Product for such month. Such monthly invoices shall provide the following information (collectively, the “Invoice Information”): (i) the records of data from the Meter indicating all PV Energy and Discharging Energy, as applicable; (ii) the Monthly Payment owed; (iii) the Monthly Bill Credit, if applicable; and (iv) any Optimization Savings accrued during the month, if any; provided, that if Ava has not received the Invoice Information from Developer within forty-five (45) days of the previous month’s end, Ava may deliver an invoice to City based on historical trends, the amount owed under any such invoice shall be adjusted upon Ava’s receipt of the Invoice Information from Developer.

Section 5.3 Payment Terms. Subject to Section 5.5, all amounts due under this Agreement are due and payable net thirty (30) days following receipt of an invoice. 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 shall be considered late and will bear interest on the unpaid balance. Any undisputed portion of the invoice amount not paid within such thirty (30)-day period shall accrue interest at the lesser of (x) an annual rate of five percent (5%) or (y) the maximum amount permitted under Applicable Law (the “Interest Rate”). All payments shall be made in U.S. dollars.

Section 5.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if City or Ava discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Section 5.5 or an adjustment to an amount previously invoiced or paid is required due to a correction of data. If the required adjustment is in favor of City, City’s next Monthly Payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Ava, Ava shall add the adjustment to City’s next monthly invoice. Adjustments in favor of either Party shall bear interest at the Interest Rate, until settled in full, accruing from the date on which the adjusted amount should have been due.

Section 5.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any computational error within twelve (12) months of the date of such invoice, or adjustment to such invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 5.5 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 (other than Developer) and such third party corrects its information after the 12-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.

Section 5.6 Pass Through Damages. To the extent that Ava receives any COD Delay Damages, Guaranteed Energy Damages, or Ava Termination Payments from the Developer pursuant to the terms of the Developer Agreement, Ava shall pass through such amounts Attachment Staff Report Item 16D
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(collectively, the “Pass-Through Damages”) to the City in full, less any reasonably incurred costs by Ava to (i) remedy the underlying default under the Developer Agreement, (ii) perform any Removal Services at the applicable Project Site, or (iii) collect such amounts from the Developer, including attorneys’ fees (such costs, the “Ava Pass-Through Costs”). Upon Ava’s delivery to the City of the applicable Pass-Through Damages, Ava’s obligation to the City with respect to such incurred COD Delay Damages, Guaranteed Energy Damages or Ava Termination Payment (as applicable) under this Agreement shall be deemed satisfied in full and any corresponding default hereunder shall be deemed remedied, regardless of the amount of Ava Pass-Through Costs; provided, however, that in no event shall the Ava Pass-Through Costs exceed the amount of Pass-Through Damages. Such Pass-Through Damages shall be passed through from Ava to the City within ninety (90) days of receipt from the Developer in the form of a bill credit on a monthly invoice issued hereunder which reduces the Monthly Payment owed by the City.

Section 5.7 Books and Records.
(a) Maintenance of Records. The Parties shall maintain any and all documents and records that demonstrate performance under this Agreement and any lease or license relating to the Projects, and all ledgers, books of account, invoices, vouchers, cancelled checks, and other documents evidencing or relating to charges for services, or expenditures and disbursements charged to the other Party for a minimum period of two (2) years, or for any longer period required by Applicable Law, from the date of final payment to Ava pursuant to this Agreement. Unless otherwise required by law or directed otherwise by Ava in writing, an electronic copy of any record shall be deemed an original.
(b) Inspection. Any documents required to be maintained pursuant to this Agreement shall be made available upon reasonable notice for inspection or audit at no cost to the requesting Party, at any time during regular business hours, upon written request by a designated representative of the requesting Party. The non-requesting Party shall provide copies of such documents to the requesting Party for inspection at a time and place that is convenient to the requesting Party.

Section 5.8 Taxes. Each Party shall be responsible for its respective portion of the taxes hereunder; provided, however, that nothing shall obligate or cause either Party to pay or be liable to pay any taxes for which it is exempt under Applicable Law. (a) City’s Taxes. City is responsible for (1) payment of or reimbursement of Ava for all taxes assessed on the generation, sale, delivery or consumption of Energy sold under this Agreement and capacity provided by the Project or the interconnection of the Project to the utility’s electricity distribution system, and (2) real property taxes for the property where the Project is located. If City is required by law or regulation to remit or pay taxes that are Ava’s responsibility hereunder, then within ninety (90) days following written notice from City of the taxes paid and applicable amounts, Ava shall reimburse City for the amount of any such paid taxes.

Nothing herein shall obligate or cause City to pay or be liable to pay any taxes for which it is exempt under Applicable Law.

Attachment Staff Report Item 16D
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(b) Ava’s Taxes. Ava is responsible for payment of or reimbursement of City for (1) income taxes or similar taxes imposed on Ava’s revenues due to the sale of electricity or capacity under this Agreement, and (2) personal property taxes imposed on the Project, if any.

ARTICLE 6
PROJECT SITE ACCESS; PROPERTY OWNERSHIP
Section 6.1 Access Rights.
(a) Non-Exclusive License. With respect to each Project Site, City hereby grants, subject to the terms of this Section 6.1, to Ava and to Ava’s affiliates, employees, and contractors (the “Licensees”), a non-exclusive, irrevocable, sub-licensable license running with the Project Site (the “Non-Exclusive License”) for access to, on, over, under, and across the Project Site from the Effective Date until the date that is one-hundred eighty (180) days after the earlier of (x) termination of the applicable PSA, or (y) the expiration of the applicable Project Term (the “License Term”), for the purposes of performing all of Ava’s obligations and enforcing all of Ava’s rights set forth in this Agreement and otherwise as required by the Licensees in order to effectuate the purposes of this Agreement (including, without limitation, subject to approval by the City in its reasonable discretion as to the specific location, the right to use additional space within the building as reasonably necessary for the installation, interconnection, operation, and maintenance of the Project Equipment, and any other necessary equipment and appurtenances running between the Project and the Delivery Point).
(b) Notification of Access. The Licensees shall provide proper notice to City and comply with City’s site safety and security requirements, as set forth in Attachment A of the applicable PSA, when on the Project Site during the License Term. The Licensees shall provide reasonable advanced notice prior to entry which shall be, at minimum, no less than fourteen (14) days, to City or his or her designee of Licensee’s intent to exercise the access rights set forth in this Section 6.1; provided, however, in the event of a Forced Outage, Force Majeure Event or other emergency, or if access is required in connection with a City-Requested Outage pursuant to Section 7.8, the Licensees shall provide as much reasonable advanced notice as is practicable under the circumstances prior to such entry. City will not charge rent for such right to access the Project Site. City may delay or deny access to Licensees for good cause by providing written notice of such delay or denial no more than ten (10) days after City receives notice of any Licensee’s intent to exercise access rights; provided, however, if City delays or denies access to Licensees for any reason during the applicable Delivery Period, and such delay or denial has a material adverse effect on Ava’s ability to satisfy the Guaranteed Energy Production and/or the Guaranteed Storage Availability, a City-Requested Outage shall be deemed to have occurred for the duration of such delay or denial.
(c) Maintenance of License. During the License Term, City shall preserve and protect the Licensees’ rights under the Non-Exclusive License and Licensees’ access to the Project Site and shall not interfere or permit any third parties under City’s control to interfere with such rights or access. Notwithstanding anything to the contrary contained herein, Ava shall have the right to assign or sublicense the Non-Exclusive License to Developer and its agents, employees, and contractors, or to any Financing Party. The Financing Parties are intended third party beneficiaries of City’s agreements in the Non-Exclusive License. Upon any rejection or earlier Attachment Staff Report Item 16D
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termination of the Agreement pursuant to any process undertaken with respect to Ava under the United States Bankruptcy Code, at the request of any Financing Party made within ninety (90) days of such termination or rejection, City shall execute a new grant of Non-Exclusive License(s) in favor of the Financing Parties (or their designees) on substantially the same terms as this Non-Exclusive License and in a manner consistent with the City-Specific Terms included as Exhibit III. City will not take any action inconsistent with the foregoing. (d) Rights of Licensees. With respect to each Project, the rights granted to the Licensees pursuant to the Non-Exclusive License for the duration of the License Term shall include the following, without limitation:
(i) To use City’s water already available and accessible to the Project Site solely for cleaning the Projects in a manner that is not wasteful, including an automatic shut-off nozzle (it being understood and agreed that the Licensees’ right to such water is non-exclusive in that City and other third parties may also access such water); (ii) To connect and use the electrical systems and internet located upon the Project Site during the installation and construction of the Project, provided however, that internet access shall be granted under commercially reasonable conditions set forth by and subject to the approval of the applicable authority for the City, which approval shall not be unreasonably withheld;
(iii) After consultation with and written consent from City on the preferred method, timing, and specific vegetation to be impacted and upon issuance of any permit as required under Applicable Law to remove, trim, prune, top or otherwise control the growth of any tree, shrub, plant or other vegetation; and
(iv) After consultation with and written consent from City on the preferred method, timing, and specific objects to be impacted and upon issuance of any permit as required by Applicable Law, remove any object on the Project Site that obstructs, interferes with or impairs the Project or its operations.
(v) In addition to the foregoing, City shall grant the Licensees a non-exclusive temporary license over, across, and upon portions of the real property owned by City that lie outside of the Project Site for the limited purposes set forth in subclauses (i)-(iv). (e) Memorandum of License. City agrees that Ava, upon request to and approval from City, may record a memorandum of the Non-Exclusive License and Ava’s rights under this Agreement, and any amendments, assignments or sublicenses thereto, in each instance in form and substance mutually acceptable to each Party in its reasonable discretion. With respect to each Project, the Parties shall finalize a form of memorandum of license prior to the applicable Commercial Operation Date that can be recorded by Ava in the public land records in the county in which the Project Site is located. Upon termination of this Agreement or any PSA hereunder, with respect to the affected Projects, the Parties shall execute and cause to be recorded a memorandum providing record notice of such termination. (f) Ground-Mounted Generating Projects. The Parties acknowledge and agree that as of the Effective Date, no Generating Project hereunder is contemplated to be ground-Attachment Staff Report Item 16D General Terms and Conditions | 12
mounted; provided, however, if, during the Term, as a result of a reasonably documented design change for any Tranche B Generating Project, such Project is redesigned by Ava to be ground-mounted and located within a secured, fenced area on the Project Site, City hereby grants to the Licensees an exclusive, sub-licensable license running with the Project Site (the “Exclusive License”, and together with the Non-Exclusive License, the “Licenses”) for purposes of the installation, operation, use, and maintenance of the Project on such exclusively licensed area of the Project Site during the License Term.

Section 6.2 Ownership of Projects.
(a) Ownership of Projects; Personal Property. Throughout the Term, Developer shall be the legal and beneficial owner of each Project, and each Project will remain the personal property of Developer and will not attach to or be deemed part of, or fixture to, the applicable Project Site or any Improvement on which such Project is installed. Each of Ava and City agree that Developer is the tax owner of each Project and all tax filings and reports shall be filed in a manner consistent with this Agreement. Each Project will at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code. Notwithstanding the foregoing, in the event that Ava purchases one or more Projects from Developer pursuant to the terms of the Developer Agreement, all references to “Developer” in this Section 6.2 shall be deemed to refer instead to “Ava.”
(b) Notice to City Lienholders. The City shall use commercially reasonable efforts to place all parties having a Lien on the applicable Project Sites or any Improvement on which a Project is installed on notice of the ownership of such Project and the legal status or classification of such Project as personal property. If any mortgage or fixture filing against any Project Site could reasonably be construed as prospectively attaching any Project as a fixture on such Project Site, the City shall provide a disclaimer or release from such lienholder. (c) Fixture Disclaimer. With respect to each Project Site, if the City is the fee owner of such Project Site, City consents to the filing of a disclaimer of any Project thereon as a fixture of the Project Site in the office where records are customarily filed in the jurisdiction where the Project Site is located. If the City is not the fee owner, the City shall obtain such consent from the applicable fee owner. For the avoidance of doubt, in either circumstance Ava shall have the right to file such disclaimer.

Section 6.3 Covenants and Obligations Regarding Liens. The City shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, step order, lien (including mechanics, labor or materialmen’s lien), charge, security interest, encumbrance or claim (each, a “Lien”) on or with respect to the Projects or any portion thereof to any Person other than a Financing Party. Ava shall not directly or indirectly cause, create, incur, assume or suffer to exist any Lien on or with respect to any equipment or property of City, other than those Liens that Ava is permitted by Applicable Law to place on the City’s interest in a Project Site due the City’s non-payment of amounts due under this Agreement. If either Party breaches its obligations under this Section 6.3, such breaching Party shall (i) promptly notify the other in writing, (ii) cause any Lien within fifteen (15) days of breaching Party having received written notice thereof to be discharged and released of record without cost to the other Party, and (iii) indemnify the non-breaching Party Attachment Staff Report Item 16D
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against all claims, losses, costs, damages, and expenses, including reasonable attorneys’ fees, incurred in discharging and releasing such Lien.

ARTICLE 7

PROJECT SITE MAINTENANCE
Section 7.1 General Covenants. Each Party covenants to and for the benefit of the other Party that throughout the Term:
(a) Each Party shall maintain (or obtain from time to time, as required) all Governmental Approvals necessary for it to legally perform its obligations under this Agreement. (b) Each Party shall undertake its obligations under this Agreement in compliance with (i) all Applicable Law (including, but not limited to, those related to workplace safety, employment discrimination, prevailing wage, non-discrimination and non-preference, and conflicts of interest); (ii) Prudent Operating Practices; (iii) all applicable operating policies, criteria, rules, guidelines, tariffs, and protocols of the CAISO and the Local Electric Utility; and (iv) all applicable requirements of the CPUC, CARB, FERC, NERC, and WECC (including WECC Scheduling Practices).

Section 7.2 Transmission and Distribution Maintenance Information. If either Party receives information through CAISO or from the Local Electric Utility regarding maintenance that will have a material adverse effect on the Generating Project or which may result in a Forced Outage, it will provide the information promptly to the other Party.

Section 7.3 Use of Equipment. Ava shall cause Developer to maintain and use its equipment in a safe and workmanlike manner at all times. Ava shall cause Developer to prevent or avoid conducting or permitting activities on, in or about the Project Site or the Improvements that have a reasonable likelihood of causing damage, impairment or otherwise adversely affecting the Project, Project Site or Improvements. Ava shall indemnify City for any loss or damage to the Project, Project Site or Improvements to the extent caused by or arising out of (i) Developer’s breach of its obligations under this Section 7.3 or (ii) the acts or omissions of Developer or its employees, agents, invitees or separate contractors following Developer’s failure to cure those actions contemplated under (i) or (ii) within sixty (60) Business Days’ receipt of City’s notice, which shall be provided no later than ten (10) Business Days from City becoming aware of such breach, act or omission.

Section 7.4 Insolation. City acknowledges that unobstructed access to sunlight (“Insolation”) is essential to Ava’s performance of its obligations and a material term of this Agreement. City shall not cause or permit any interference with the Generating Project’s Insolation and to the extent within its reasonable control shall ensure that vegetation on the Project Site adjacent to the Generating Project is regularly pruned or otherwise maintained to prevent interference with the Generating Project’s Insolation. City shall provide necessary approvals or acknowledgements to enable the delivery of a shade report from SunEye (or a comparable entity) within the five (5) Business Days prior to the Commercial Operation Date. If the Insolation of the Project is materially reduced during the Term due to new obstructions or vegetation, the Expected Annual Contract Quantity shall be reduced in proportion to the decrease in Insolation. If City Attachment Staff Report Item 16D
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discovers any activity or condition that could diminish the Insolation of the Generating Project, City shall immediately notify Ava and cooperate with Ava in preserving and restoring the Generating Project’s Insolation levels as they existed on the Effective Date and as allowed by state and local law and within the reasonable control of the City.

Section 7.5 Maintenance of Project Site. City shall, at its sole cost and expense, maintain the Project Sites, Project Site and Improvements in good condition and repair. City, to the extent within its reasonable control, (i) shall ensure that the Project Site remain interconnected to the local utility grid at all times and (ii) shall not permit cessation of electric service to the Project from the local utility. City is fully responsible for and shall properly maintain in full working order and good repair, the electrical infrastructure on the City’s side of the Delivery Point, including all of City’s equipment that utilizes the Project’s outputs. City shall cooperate with Ava and Developer to comply with any technical standard of the utility providing electrical power to the City.

Ava Community Energy Board of DirectorsNovember 20, 2024

Ava Community Energy Board of Directors
November 20, 2024