Agenda packet — Central Coast Community Energy (3CE) Executive Committee, June 26, 2024 (part 1 of 2)

Executive Committee
Wednesday, June 26, 2024
11:30 AM
Central Coast Community Energy
70 Garden Court, Suite 300
Monterey, CA 93940

REMOTE LOCATION VIA

TELECONFERENCE
Any interested parties or community members may attend, and participate in, the meeting at the following addresses where Board members may also join the meeting from:

County of Santa Cruz
701 Ocean Street,
Third Floor Training Room
Santa Cruz, CA 95060
City of Atascadero
City Hall
6500 Palma Ave, Council Chambers
Atascadero, CA 93422
County of Santa Barbara
County Administration Building
105 E. Anapamu Street
First Floor Conference Room, Suite 108
Santa Barbara, CA 93101
Public may participate through ZOOM. For ZOOM participation please join by computer audio at: https://us02web.zoom.us/j/83507087702
Or join by phone:
+1 669 900 6833 or +1 669 219 2599
Enter this Webinar ID Number: 835 0708 7702 when prompted. Please note there is no Participant Code, you will press # again after the recording prompts you.

You will be placed in the meeting as an attendee. To make a public comment:
 If joined by computer, please press the button to raise your hand  If joined by phone, please push *9 on your keypad
If you have anything that you wish to be distributed to the Board, please provide 15 copies to a member of 3CE staff or the Board Clerk, who will distribute the information to the Board members and staff.

The public may comment on the consent agenda and matters not listed on the agenda but within the Board's jurisdiction at the opening of the meeting. The Board may not take action at this meeting on any item not listed on the agenda other than to refer the matter to staff or set it for a future meeting. The public may comment on a specific item listed on this agenda when the Board considers that item. Speakers are limited to 3 minutes each.

In addition, members of the public may request and receive copies without undue delay of any documents that are distributed to the Board, unless there is a specific exemption under the Public Records Act that prevents the disclosure of the record. (Cal. Gov’t Code Section 54957.5) In compliance with Government Code Section 54957.5, non-exempt writings that are distributed to a majority or all of the Board in advance of a meeting and that relate to an agenda item will be made available at 3CE’s offices located at 70 Garden Court, Suite 300, Monterey, CA 93940 during normal business hours and are also available on the 3CE website located at: https://3cenergy.org/meetings-agendas/
REASONABLE ACCOMMODATIONS: In compliance with the Americans with Disabilities Act, any individuals who desire to request a reasonable accommodation or modification to observe or participate in the meeting may make such a request by sending an email to: [email protected] Copies of documents may be made in alternative formats, upon request. Requests for accommodations should be made no later than two (2) business days prior to the meeting to allow time for 3CE to address the request.

DISCLOSURE OF CAMPAIGN CONTRIBUTIONS: Pursuant to Government Code section 84308, members of the Board are disqualified and not able to participate in any agenda item involving 0contracts (other than competitively bid, labor, or personal employment contracts), franchises, discretionary land use permits and other entitlements if the Board member received more than $250 in campaign contributions from the applicant or contractor, an agent of the applicant or contractor, or any financially interested participant who actively supports or opposes the decision on the agenda item since January 1, 2023. Members of the Board who have received, and applicants, contractors or their agents who have made, campaign contributions totaling more than $250 to a Board member during the proceeding or for 12 months after a final decision is rendered in that proceeding, are required to disclose that fact for the official record of the subject proceeding. Disclosures must include the amount of the campaign contribution and identify the recipient Board member and may be made either in writing to the Clerk of the Board prior to the subject hearing or by verbal disclosure at the time of the hearing.

Welcome & Roll Call
Pledge of Allegiance
Corrections or Additions
The Clerk will announce agenda corrections or proposed additions of emergency, urgency, or continued items, which will be acted on by the Board as provided in Section 54954.2 of the California Government Code.

Public Comment on Items on the Consent Calendar and Items Not listed on the Agenda The public may address the Committee on the Consent Calendar and any matter within the jurisdiction of the Committee but not on the agenda.

CONSENT CALENDAR

1. Approve minutes from the February 21, 2024, meeting of the Executive Committee

REGULAR AGENDA

2. Consider and provide direction regarding CPUC approved Bioenergy Market Adjusting Tariff (BioMAT) Program

CLOSED SESSION

3. Closed Session under Government Code 54950 relating to the following items a. Pursuant to Government Code section 54956.9(d)(1), the Board will confer with legal counsel regarding one item of existing litigation.

1. CCCE et. al. v. BigBeau Solar (Santa Clara Superior Court case no. 22CV398156 b. Conference with Legal Counsel Re Potential Litigation - Significant Exposure to Litigation & Initiation Litigation – Government Code Section 54956.9(d)(2)&(4) Angiola East LLC, parent company SB Energy
Adjournment
Executive Committee
February 21, 2024
11:30AM
Central Coast Community Energy
70 Garden Court, Suite 300
Monterey, CA 93940
Capitola
City Hall
420 Capitola Ave
Capitola, CA 95010
San Luis Obispo
City Hall 990 Palm Street
San Luis Obispo, CA 93401
County of Santa Barbara
Administration Building
105 E Anapamu Street
Suite 406, CEO Conference Room
Santa Barbara, CA 93101

MINUTES
The meeting was called to order at 11:30 AM with 7 members attending from 4 locations and a quorum established.

Members Present: Monterey Headquarters: Adams
City of Capitola: Goldstein, McPherson
City of San Luis Obispo: Vice Chair Johnson
County of Santa Barbara: Miyasato, Chair Williams

Members Absent: Brooks

CONSENT CALENDAR
The Chair opened the public comment period.

There were no public comments.

The Chair closed the public comment period.

MOTION: Moved by Member Adams Seconded by Member Miyasato to approve.

ACTION: Substitute Motion carried: 6/0/1
AYES: Adams, Goldstein, McPherson
NOES: None
ABSENT: Brooks

Page 1 of 164 ends

1. Approved Minutes from the October 18, 2023 Meeting of the Executive Committee

2. Adopted a Regular Meeting Schedule of the 3CE Executive Committee

CLOSED SESSION

3. Closed session under Government Code 54950 et. seq. relating to the following items:
a. Conference with Legal Counsel Existing Litigation – Government Code Section 54956.9(d)(1) CCCE & SVCE v. BIGBEAU Solar, Santa Clara Superior Court Case No. 2CV398156
b. Conference with Legal Counsel Anticipated Litigation - One Matter - Significant Exposure to Litigation & Initiation Litigation – Government Code Section 54956.9(d)(2)&(4) Angiola East LLC, parent company SBenergy
c. Public Employee Evaluation of Performance - Chief Executive Officer - Government Code Section 54957
General Counsel announced that no reportable action will be taken, and the meeting would adjourn out of closed session.

The Chair opened the public comment period.

There were no public comments.

The Chair closed the public comment period.

Recessed to closed session at 11:33AM
Adjourned at 12:25PM

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Staff Report Item 2
TO: 3CE Operations Board of Directors
FROM: Robert M. Shaw, CEO
PREPARED BY: Nick Dominguez, Director of Power Supply
Jerri Strickland, Manager of Energy Policy
SUBJECT: Consider and provide direction regarding CPUC approved Bioenergy Market Adjusting Tariff (BioMAT) Program
DATE: June 26, 2024
RECOMMENDATION:

Consider and provide direction regarding CPUC approved Bioenergy Market Adjusting Tariff (BioMAT) Program.

BACKGROUND:

BioMAT is a CPUC procurement program initiated in 2015 to encourage the development of small bioenergy projects in California. The program is unique in that it allows load serving entities (LSEs) contracting with these projects to recover the costs from all California electricity users through the Public Purpose Programs (PPP) charge. The PPP is a non-bypassable distribution rate component that all California ratepayers, bundled and unbundled, pay. However, initially the BioMAT program was only available to the Investor-Owned Utilities, creating a disparity between bundled and unbundled customers.

In 2021, 3CE and other CCAs successfully lobbied legislators to reverse the exclusion of CCAs from BioMAT with the passage of AB 843. AB 843 was the first time CCAs gained access to PPP funding, setting a valuable policy precedent. The CPUC began implementation of AB 843 in October 2022 by opening of a new proceeding to work through the details of CCA participation.

In order to ensure 3CE maintained the option of participating in the program, a coalition of CCAs, including 3CE, have actively been assisting CalCCA in organizing the necessary programmatic documents and required CPUC approved tariffs for potential participation in the BioMAT program.

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Programmatic documents include:
 CPUC approved BioMAT Pro-Forma Tariff (Attachment A)
 CPUC approved CCA BioMAT PPA (Attachment B)
 CPUC approved CCA BioMAT PPR (Attachment C)
 CPUC Approved BioMAT CCA Balancing Account (Attachment D)  CPUC Approved CCA BioMAT Initial Fuel Attestation Form (Attachment E) With the CPUC’s approval of all the necessary programmatic documents and willingness to include CCAs. 3CE is bringing BioMAT to the Executive Committee as an informational item with the intent of bringing it to the August Operations Board meeting for approval of participation.

DISCUSSION/ANALYSIS:

BioMAT is a feed-in tariff program for small bioenergy renewable generators less than 5MW in nameplate (3MW contract capacity). A feed-in tariff (FIT) is a contracting mechanism for small renewable generators to sell power at predefined terms and conditions (no contract negotiations).

Small-scale bioenergy projects can be procured in 3 categories:

1. Biogas from wastewater treatment, municipal organic waste diversion, food processing, and co-digestion.

2. Dairy and other agricultural bioenergy.

3. Bioenergy using byproducts of sustainable forest management.

Bioenergy is electricity, fuel, heat, or energy storage generated from organic waste, such as food, yard, dairy, agricultural, wastewater, forest, or wood waste. Unlike other renewable energy sources like solar and wind, bioenergy is not intermittent or variable; it can be available 24/7.

Bioenergy resources offer a range of benefits beyond their energy production capabilities. One significant advantage is their ability to reduce landfill waste. In California alone, over half of all landfill waste, amounting to approximately 22 million tons annually, consists of organic materials that could instead be utilized for energy generation. Moreover, the development of bioenergy creates employment opportunities and stimulates economic growth, particularly in areas where these resources are abundant. Additionally, bioenergy plays a crucial role in safeguarding disadvantaged communities by mitigating power plant emissions, minimizing odors, and reducing other harmful pollutants.

Furthermore, bioenergy presents a viable pathway for assisting member agencies in meeting compliance with SB 1383, which mandates the reduction of short-lived climate pollutants like methane and black carbon, thus contributing to overall environmental sustainability efforts.

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3CE’s participation in the BioMAT program allows local bioenergy projects to contribute towards 3CE meeting its board directed goal of serving customers with 100% clean and renewable energy by 2030.

PROGRAMMATIC PROCESS:

BioMAT Allocations:

The state allocated 250 MW across three categories of procurement for the BioMAT program: (1) Various Biogas, (2) Dairy & Other Agriculture, and (3) Fire Management. The statewide allocations for the categories were divided further into buckets for each of the IOUs. The more recent legislation allowing CCAs to participate required that the CCA participate within the allocation given to the IOU who shares their service area. As 3CE spans two IOU service areas, 3CE is eligible to participate in allocations for eligible generators located in both SCE and PG&E’s shared service area. See Attachment F for criteria of Eligible Generators.

The total remaining capacity for each category as of June 5, 2024:

Product Type Statewide
Allocation
SCE Remaining
Capacity
PG&E Remaining
Capacity
3CE Max Potential
Category 1 110 MW 45.5 MW 28.1 MW 73.6 MW
Category 2 90 MW 55.7 MW 9.3 MW 65 MW
Category 3 50 MW 2.5 MW 32.9 MW 35.4 MW
3CE BioMAT Queue and PPA Award:

If an eligible generator wishes to participate in BioMAT with 3CE, they will be able to apply directly with a Program Participation Request (PPR) to a 3CE specific queue via the BioMAT online portal. The creation and maintenance of the BioMAT portal is included in the program and at no cost to 3CE. Upon Operations Board Approval, an eligible Applicant may submit a PPR at any point. Once submitted, 3CE must review the PPR within 20 business days. The Applicant would have 10 days to cure any missing information required by the pro-forma tariff. Once 3CE identifies a PPR as complete, the applicant receives a BioMAT queue number based on the date and time that the PPR was initially received. Once deemed complete, a PPR is eligible to participate in Program Periods within its Fuel Resource Category.

The Program Periods relate to when a PPA is awarded. Every two months for category 1 and 2, and every month for category 3, the LSE can award up to its “available allocation” which is 6MW per IOU service area for 3CE. If the contract capacity of the next PPR that accepts the price is larger than the available allocation, 3CE will be “Deemed Fully Subscribed”. Once the PPA is awarded at the price for that period, the applicants have ten business days to accept or reject the available contract price. LSEs award the PPAs to PPRs in their respective queues by the BioMAT Queue number and price acceptance.

In short, if 3CE deems a PPR complete and the applicant accepts the contract price a PPA will be awarded.

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FISCAL IMPACT:

Any power purchase agreements entered into by 3CE will have maximum contract capacity of 3 MW.

Based on the BioMAT’s current contractual payment rates, the estimated maximum contract cost would be between $3.2M and $5.2M per year for each executed contract. 3CE will invoice the IOUs for reimbursement on a quarterly basis for a significant portion of these contract costs through the public purpose programs non-bypassable charge.
3CE must follow a CPUC prescribed method for cost recovery. Annually, by February 1, 3CE will submit an Advice Letter to the CPUC regarding forecasted BioMAT costs for the upcoming calendar year. These costs will be integrated into the IOU’s Energy Resource Recovery Account (ERRA) forecast applications in their October Update pending approval by December of that year. Once the CPUC has approved the IOUs to integrate programmatic costs into their distribution rates, the CCAs may invoice the IOUs quarterly.

CONCLUSION:

The Executive Committee’s consideration and feedback will inform staff’s future recommendation to seek Operations Board’s approvals and delegation of authority to the CEO to execute eligible PPAs with the goal of supporting 3CE’s goal to serving customers with 100% clean and renewable energy by 2030, as well as assisting Member Agencies in meeting their state mandated waste diversion goals.

ATTACHMENT(S):
 CPUC approved BioMAT Pro-Forma Tariff (Attachment A)
 CPUC approved CCA BioMAT PPA (Attachment B)
 CPUC approved CCA BioMAT PPR (Attachment C)
 CPUC Approved BioMAT CCA Balancing Account (Attachment D)  CPUC Approved CCA BioMAT Initial Fuel Attestation Form (Attachment E)

Page 6 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 1
Advice Letter: [Insert CCA
Advice Letter #]
Decision: D.23-11-084
Issued by
[Insert name and title of individual at CCA
authorized to legally obligate it]
Submitted: January 29, 2024
(Revised 2-26-24)
Effective: March 18, 2024
[INSERT CCA NAME]
Schedule BioMAT

BIOENERGY MARKET ADJUSTING TARIFF
A. APPLICABILITY
The Bioenergy Market Adjusting Tariff schedule (BioMAT or this Schedule) implements the renewable bioenergy resource feed-in tariff program pursuant to California Public Utilities Code (PUC) Section 399.20 and California Public Utilities Commission (CPUC) Decisions (D.) 14-12-081, D.15-09-004, D.16-10-025, D.20-08-043, and D.23-11-084. The Schedule is available, on a first-come, first-served basis, to applicants (Applicants) that own or control a Facility (or Project), meet the eligibility criteria below, and submit a complete Program Participation Request (PPR).
[INSERT CCA’S FULL (AND ABBREVIATED NAME)], a Community Choice Aggregator (CCA), operates within [APPLICABLE INVESTOR-OWNED UTILITY [IOU]] territory. Under the BioMAT program, the maximum combined Contract Capacities of participating Facilities within [IOU]’s service territory is [INSERT APPLICABLE IOU PROGRAM CAPACITY] (MW) (Program Capacity), which represents [IOU]’s allocated share of the total statewide program cap of 250 MW, as provided for in PUC Section 399.20 and CPUC D.14-12-081. In accordance with Assembly Bill 843 and CPUC D.23-11-084, CCAs in California may offer their own BioMAT program, with the Program Capacity being equal to the Program Capacity of the IOU in whose territory the CCA operates. The Contract Capacities of participating Facilities under CCA BioMAT programs in [IOU’]s service territory shall be attributed toward [IOU]’s Program Capacity. Please see the [IOU’S] BioMAT Tariff and website for additional detail on [IOU] BioMAT programs.

This BioMAT Tariff is only applicable to [CCA]’s BioMAT program.

B. EFFECTIVE DATE
The Effective Date of BioMAT is November 18, 2015, as determined in CPUC D.15-09- 004.

C. TERRITORY
[IOU]’s electric service territory.

D. ELIGIBILITY
An Applicant for BioMAT must own or control the Project and the Applicant’s proposed Project must meet the following eligibility criteria for BioMAT (Eligibility Criteria):

Page 7 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 2

ELECTRIC SCHEDULE BIOMAT

1. Territory: The Project must be physically located within [IOU]’s electric service territory and must be interconnected to [IOU]’s electric distribution system or an Existing Transmission Line.

2. Eligible Renewable Energy Resource: The Project must be an Eligible Renewable Energy Resource as defined in PUC Section 399.12.

3. Qualifying Facility: The Project must be a Qualifying Facility (QF), as defined by the Federal Energy Regulatory Commission (FERC). See 16 U.S.C. § 824a-3(b); 18 C.F.R. § 292.304(a)(2).

4. Contract Capacity: The Contract Capacity for the Project cannot exceed three (3.0) MW.

5. Nameplate Capacity: The Nameplate Capacity for the Project cannot exceed five (5.0) MW.

6. Interconnection Study/Strategically Located: An Applicant must have passed the Fast Track screens, passed Supplemental Review, completed a [IOU] System Impact Study in the Independent Study Process, completed a [IOU] Distribution Group Study Phase 1 Interconnection Study in the Distribution Group Study Process, or completed a [IOU] Phase 1 Study in the Cluster Study Process for its Project, or completed a CAISO Cluster Study, Independent Study or Fast Track Study, or or make use of an existing interconnection agreement to the extent permitted by [IOU]’s or CAISO’s tariff (Interconnection Study).
a. An Applicant’s Interconnection Study must have an active interconnection queue number in [IOU]’s public wholesale distribution queue or the public CAISO interconnection queue (Active Interconnection Study) in order for the Applicant to be eligible to participate and remain in the BioMAT queue, with the exception of Applicants with Category 3 Projects. Provided all other requirements are met, Category 3 Projects that no longer have an Active Interconnection Study shall remain eligible to participate in the BioMAT queue, provided the Applicant has provided a cash deposit as described in Section E.2(b) of this Schedule. b. The Project must be interconnected to [IOU]’s electric system via a Distribution Line or an Existing [IOU] Transmission Line, and the Project’s most recent Interconnection Study or Interconnection Agreement must affirmatively support

Page 8 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 3

ELECTRIC SCHEDULE BIOMAT

7. Site Control: The Applicant must provide to [CCA] an attestation that it has 100% site control for the Project through: (a) direct ownership; (b) lease; or (c) an option to lease or purchase that may be exercised upon execution of the BioMAT PPA. The Applicant is required to submit a map showing the boundary of the Site for which the Applicant has control as part of the PPR. [CCA] reserves the right to request additional information.

8. Developer Experience: The Applicant must provide to [CCA] an attestation that at least one member of its development team has: (a) completed the development of at least one project of similar technology and capacity; or (b) begun construction of at least one other project of similar technology and capacity. A project less than one (1) MW will be deemed to be a project with similar capacity to a Project with a Contract Capacity of up to one (1) MW. A project between one (1) MW to three (3) MW will be deemed to be a project with similar capacity to a Project with a Contract Capacity

Page 9 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 4

ELECTRIC SCHEDULE BIOMAT

9. Daisy Chaining: The Applicant must provide to [CCA] an attestation that either the Project is the only exporting project being developed or owned or controlled by the Applicant on any single or contiguous pieces of property or, if more than one exporting project is being developed or owned or controlled by the Applicant on any single or contiguous pieces of property, the total aggregated installed Contract Capacity of the projects does not exceed three (3) MW. [CCA] may, in its sole discretion, determine that the Applicant does not satisfy this Eligibility Criteria if the Project appears to be part of an installation in the same general location that has been or is being developed by the Applicant or the Applicant’s Affiliates and the total aggregated installed Contract Capacity of the installation is greater than three (3) MW.

10. Other Incentives: A Project that previously received incentives under the Self-Generation Incentive Program (SGIP) is ineligible for BioMAT if the incentives were received within ten (10) years or less of the date that Applicant submits a PPR for BioMAT for such Project. An Applicant for a Project that previously received incentive payments under SGIP must provide an attestation to [CCA] stating that, as of the date the Applicant submits the PPR: (a) the Project has been operating for at least ten (10) years from the date the Applicant first received ratepayer-funded incentive payments under SGIP, for the Project; and (b) to the extent the CPUC requires reimbursement of any ratepayer-funded incentive, the Applicant can demonstrate that the Project’s owner has provided the applicable administrator with any required refunds of incentives.

11. Net Energy Metering: An Applicant that is a net energy metering (NEM) customer can only participate in BioMAT if the Applicant terminates its participation in the NEM program for the Project prior to the BioMAT PPA’s Execution Date.

12. Renewable Market Adjusting Tariff: An Applicant may not submit a PPR or maintain a position in the queue for the same Project in both the Renewable Market Adjusting Tariff (ReMAT) program and the BioMAT program. For the purposes of this Section D.12 only, projects that are eligible for ReMAT or BioMAT and that share, utilize, or are based on the same interconnection request, study, or agreement will be considered the same Project.

Page 10 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 5

ELECTRIC SCHEDULE BIOMAT

13. Fuel Resource Requirements: Other than for fuel used for Station Use, the Project’s fuel resource(s) must be eligible for the Renewables Portfolio Standard (RPS) in accordance with the California Energy Commission’s (CEC) RPS eligibility requirements and must comply with the Fuel Resource Category definitions provided in Section N.3 of this Schedule. At the time of PPR submittal, the Applicant must provide to [CCA] an attestation that specifies the Fuel Resource Category of fuel that the Applicant will use for the Project. The Applicant may only select one (1) Fuel Resource Category. For Category 2, Applicant must select either (i) Category 2 (Dairy), or (ii) Category 2 (Other Agriculture). The fuel requirements by Fuel Resource Category are as follows:
a. Category 1: On an annual basis, at least 80% of the fuel resource(s) used by the Project must be eligible for Fuel Resource Category 1; up to 20% may be fuel resource(s) that are eligible for Fuel Resource Categories 1, 2, and 3; or b. Category 2:
(1) Dairy: 100% of the fuel resource(s) used by the Project must be eligible for Fuel Resource Category 2 (Dairy); or
(2) Other Agriculture: On an annual basis, at least 80% of the fuel resource(s) used by the Project must be eligible for Fuel Resource Category 2 (Other Agriculture); up to 20% may be fuel resource(s) that are eligible for Fuel Resource Categories 1, 2, and 3; or c. Category 3: On an annual basis, at least 80% of the fuel resource(s) used by the Project must be eligible for Fuel Resource Category 3; up to 20% may be fuel resource(s) that are eligible for Fuel Resource Categories 1, 2, and 3.

14. Commercial Operations: The Project must have commenced commercial operations on or after June 1, 2013, based on the definition of “commercial operations date” in the CEC’s Renewables Portfolio Standard Eligibility Guidebook.

15. Project Application: An Applicant may only submit one PPR per Project to BioMAT and may not submit a PPR or maintain a position in the queue for the same Project in multiple BioMAT programs. For example, an Applicant may not submit a PPR for the same Project to both a CCA BioMAT program and the [IOU] BioMAT program. For

Page 11 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 6

ELECTRIC SCHEDULE BIOMAT

E. QUEUE MANAGEMENT AND PROGRAM PARTICIPATION REQUEST (PPR) The queue management process, PPR requirements, and PPR review process are described below.

1. As set forth in Section H of this Schedule, BioMAT Contract Prices are determined on a statewide basis by the Third-Party Administrator for BioMAT. The Third-Party Administrator will also determine the Projects in the queue to receive BioMAT PPAs in each IOU service territory for all CCA and IOU BioMAT programs according to Section I of this Schedule. The Applicant will submit a PPR for a Project to the IOU or CCA in whose territory the Project is located, and execution of a BioMAT PPA will result in the Contract Capacity of that Project being attributed to the Contract Capacity target for the IOU in whose service territory the Project is located, subject to Section G.4 of this schedule. Category 2 (Dairy) and Category 2 (Other Agriculture) are maintained in the same Category 2 queue. However, an Applicant with a Category 2 Project must indicate in its PPR whether its Project is (i) Category 2 (Dairy), or (ii) Category 2 (Other Agriculture), for the purposes of establishing a Contract Price as set forth in Section H of this Schedule and establishing the Project’s fuel resource requirements as set forth in the BioMAT PPA and Section D.13 of this Schedule.

2. To be eligible for [CCA]’s BioMAT program and obtain a position in the applicable Fuel Resource Category queue, an Applicant must submit a complete PPR to [CCA].

Information on how to submit the PPR will be available on [CCA]’s website and/or online platform. A PPR must include:
a. PPR Fee: Applicant must pay to [CCA] a non-refundable application fee as part of each PPR submission calculated as follows: $2 per kilowatt (kW) multiplied by the Project’s Contract Capacity. The PPR fee will not be applicable towards the Collateral Requirement under a BioMAT PPA. The manner and form of payment will be specified by [CCA] on its website and/or online platform. For projects applying to IOU BioMAT programs, all PPR fees and deposits shall be handled by the respective IOU.

Page 12 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 7

ELECTRIC SCHEDULE BIOMAT

BIOENERGY MARKET ADJUSTING TARIFF PROGAM
(Continued)
(Continued)
Advice Letter: [Insert CCA
Advice Letter #]
Decision: D.23-11-084
Issued by
[Insert name and title of individual at CCA
authorized to legally obligate it]
Submitted: January 29, 2024
(Revised 2-26-24)
Effective: March 18, 2024
b. Category 3 Deposit: Applicants submitting PPRs to [CCA] that are either (i) Category 3 Projects connected to a Distribution Line; or (ii) Category 3 Projects connected to an existing [IOU] Transmission Line and have passed the CAISO Fast Track screens, and without an Active Interconnection Study as described in Section D.6(a), or those who subsequently withdraw their Active Interconnection Study from [IOU]’s public wholesale distribution queue or the public CAISO Controlled Generation Queue after submitting a PPR, must pay a deposit equal to three times the System Impact Study’s Detailed Study Deposit amount as described in [IOU]’s Electric Rule No. 21 Tariff. A p p l i c a n t s s u b m i t t i n g a PPR for transmission-interconnected projects that received an interconnection study pursuant to the CAISO’s Independent Study Process (“CAISO ISP”) or CAISO Cluster Study Process must pay a deposit equal to the CAISO deposit among for the CAISO ISP or CAISO Cluster Study Process. In the event the Applicant’s PPR for projects connected to a Distribution Line is withdrawn or rejected, the deposit shall be refunded to the Applicant less an administrative fee of 10% of the System Impact Study’s Detailed Study Deposit amount as described in [IOU]’s Electric Rule No. 21 Tariff. In the event the Applicant’s PPR for projects connected to any existing [IOU] Transmission Line is withdrawn or rejected, the deposit shall be refunded to the Applicant less an administrative fee of $1,000/MW of facility capacity. In the event the executes a PPA for the Project, the deposit shall be refunded in its entirety upon the execution of the BioMAT PPA. For projects applying to IOU BioMAT programs, all PPR fees and deposits shall be handled by the respective IOU. c. PPR Form: Applicant must submit the PPR form to [CCA] in a manner and form specified by [CCA].
d. Supporting Documentation: Supporting documentation, including but not limited to the items below, must be submitted to [CCA]:
(1) Copy of the most recent Interconnection Study for the Project. Any new or amended Interconnection Study or Interconnection Agreement must be submitted to [CCA] within five (5) business days of receipt of the study or agreement.
(2) A completed Cover Sheet for the BioMAT PPA, including (but not limited to) a description of the Project, a Facility drawing, a single line

Page 13 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 8

ELECTRIC SCHEDULE BIOMAT

BIOENERGY MARKET ADJUSTING TARIFF PROGAM
(Continued)
(Continued)
Advice Letter: [Insert CCA
Advice Letter #]
Decision: D.23-11-084
Issued by
[Insert name and title of individual at CCA
authorized to legally obligate it]
Submitted: January 29, 2024
(Revised 2-26-24)
Effective: March 18, 2024
diagram and a site map clearly outlining the border of the Project site for which site control exists.
(3) An attestation that includes the percentage ownership that the Applicant and Applicant’s Affiliates have in each Project and/or Seller entity for which a BioMAT PPR has been submitted. The determination of the percentage of ownership that an Applicant holds in a Project will be made by the Applicant, based on accounting standards and/or project financing conventions. [CCA] will not have an obligation to review materials or documents related to an Applicant’s ownership or financing of a Project and will not have an obligation to advise an Applicant on the percentage ownership that an Applicant has in a Project. [CCA] shall have the right to request and review the Applicant’s ownership calculations and supporting documentation. The Applicant must submit an updated attestation within five (5) business days if changes occur. (4) The attestations required in this Schedule.
(5) A Geographic Information System file of the Project boundary information.
(6) Climate Risk: For Applicants seeking a PPA with a term of fifteen (15) years or longer an acknowledgment that the Applicant has considered long-term climate risk and, if available, provide a facility climate risk safety plan as an attachment, listing potential climate risks that could affect the Project, including, without limitation, the risks described in Ordering Paragraph 9(11)(a)-(e) of CPUC Decision 20-08-046. If an Applicant does not have a climate risk safety plan, the Applicant must provide an explanation and describe their plans to consider potential climate risks, including, without limitation, the risks described in Ordering Paragraph 9(11)(a)-(e) of CPUC Decision 20-08-046. (7) Such other information and documentation that [CCA] may request to verify compliance with the Eligibility Criteria.
e. Review Period and BioMAT Queue Number Assignment: Within twenty (20) business days of receiving a PPR, [CCA], in its sole discretion, will confirm

Page 14 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 9

ELECTRIC SCHEDULE BIOMAT

BIOENERGY MARKET ADJUSTING TARIFF PROGAM
(Continued)
(Continued)
Advice Letter: [Insert CCA
Advice Letter #]
Decision: D.23-11-084
Issued by
[Insert name and title of individual at CCA
authorized to legally obligate it]
Submitted: January 29, 2024
(Revised 2-26-24)
Effective: March 18, 2024
whether the Applicant’s PPR is deemed complete and satisfies the Eligibility Criteria. Applicants will be assigned a program position (BioMAT Queue Number) by the Third-Party Administrator once the PPR is deemed complete by the CCA. If the PPR is deemed complete, the BioMAT Queue Number assignment provided by the Third-Party Administrator will be based on the date and time that the PPR was received by [CCA].
f. PPR Rejection: If an Applicant’s PPR is deemed incomplete, or the Applicant is otherwise ineligible for a BioMAT PPA, [CCA] will notify the Applicant that the PPR has been rejected (i.e., the PPR is null and void). If rejected, the Applicant will be required to submit a new, correct and complete PPR demonstrating the Applicant’s eligibility. The Applicant’s BioMAT Queue Number will be based on the date and time of the re- submitted, correct and complete PPR.
g. Cure Period: [CCA], in its sole discretion, may permit the Applicant to cure minor deficiencies, as determined by [CCA], by re-submitting the PPR (or a subset thereof) within ten (10) business days of notice from [CCA] of the deficiency. To be permitted to cure the deficiencies identified by [CCA], the Applicant’s original PPR must demonstrate that the Applicant’s Project was eligible at the time of submittal. Applicants whose PPRs contain material substantive issues with program eligibility will be deemed incomplete and rejected. [CCA] will review a re-submitted PPR within twenty (20) business days of receipt of the re-submitted PPR. If the re-submitted PPR is deemed complete after the second review, the BioMAT Queue Number assignment by the Third-Party Administrator will be based on the date that the PPR was initially received by [CCA]. Failure to re-submit the PPR within ten (10) business days of notice from [CCA] to correct the minor deficiency shall result in the PPR being rejected, as described in Section E.2.f of this Schedule.
h. Eligibility Attestation: An Applicant and/or Project must attest at the start of each Period (as defined in Section F.2 of this Schedule) that they still meet the eligibility criteria. If an Applicant fails to attest at the start of a Period, [CCA] will have the Third-Party Administrator remove the Applicant’s Project from the BioMAT Queue and the Applicant will have relinquished their BioMAT Queue Number for the applicable PPR. The PPR will be deemed to be rejected, as described in Section E.2.f of this Schedule.

Page 15 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 10

ELECTRIC SCHEDULE BIOMAT

3. Modification: Once an Applicant has a BioMAT Queue Number for its proposed Project, the information provided in the PPR regarding the Project may not be modified, unless permitted or approved by [CCA], and shall be used for the completion of the BioMAT PPA. [CCA] will indicate what information, if any, in the PPR can be modified in its BioMAT program materials and/or online platform.

4. Eligibility Complaints: An Applicant may contest a determination of ineligibility through the CPUC’s standard complaint procedure set forth in Article 4, Complaints, of the CPUC’s Rules of Practice and Procedure.

5. [IOU] BioMAT Program: To apply to an IOU’s BioMAT program, please refer to the BioMAT Tariff and website of the IOU. [CCA] cannot accept PPRs from applicants for any IOU BioMAT program and all questions regarding an IOU’s BioMAT program should be directed to the IOU. All PPR fees and deposits from IOU applicants should be directed to the respective IOU.

Page 16 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 11

ELECTRIC SCHEDULE BIOMAT

1. Initial PPR Submission Date: Applicants will be able to submit a PPR for a Project beginning at 9:00 a.m. PT on December 1, 2015 (Initial PPR Submission Date).

2. Program Periods: The Program shall be divided into bi-monthly program periods (Periods). Period 1 will begin on February 1, 2016 (Period 1 Start Date). Each subsequent Period shall be numbered sequentially (e.g., Period 2, Period 3, etc.) and shall occur on the first business day of the second month following the beginning of the previous Period. Commencing on February 1, 2017, [IOU] shall administer monthly Periods for Category 3 Projects. Category 3 Periods shall resume on a bi-monthly schedule that coincides with Category 1 and Category 2 Periods upon the earlier of (1) the Emergency Proclamation no longer being in effect, or (2) the Category 3 BioMAT Contract Price adjusting downward due to 100% subscription of the MW offered.

3. Final Period: The final Period (Final Period) is the Period which ends on December 31, 2025. At the close of the Final Period, this Schedule will close for all new Applicants.

Any Projects remaining in a Fuel Resource Category queue will be permitted to execute a BioMAT PPA within the ninety (90) day period immediately following the close of the Final Period, subject to the following conditions:
a. The Contract Price for each Statewide Pricing Category will not adjust pursuant to Section H.4 of this Schedule and will remain the same as in the Final Period. b. Any Projects remaining in a Fuel Resource Category queue will have ninety (90) days following the close of the Final Period to accept the applicable Contract Price as provided in Section F.3.a of this Schedule. Following that ninety (90) day period, BioMAT PPAs will be awarded in BioMAT Queue Number order. c. For each Fuel Resource Category, [CCA]’s obligation to accept BioMAT PPAs is only up to the lesser of: (i) [applicable IOU]’s total capacity remaining in the applicable Fuel Resource Category or (ii) twelve (12) MW.

G. [CCA] may, in its sole discretion, continue to offer the BioMAT to new Applicants after the Final Period.

H. CAPACITY ALLOCATION

Page 17 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 12

ELECTRIC SCHEDULE BIOMAT

1. On the Effective Date of BioMAT, the following capacity information will be published on [IOU]’s website and/or online platform:
a. [IOU]’s Total Program Capacity: [IOU’s Capacity Allocation] MW b. PG&E[IOU]’s Capacity Allocation by Fuel Resource Category:
(1) Category 1: [IOU’s Capacity Allocation] MW
(2) Category 2: [IOU’s Capacity Allocation] MW
(3) Category 3: [IOU’s Capacity Allocation] MW

2. The amount of capacity available (Available Allocation) for subscription for each Fuel Resource Category for any Period throughout the program will be 6 MW (unless the remaining capacity for such Fuel Resource Category is less than 6 MW, in which case the amount of capacity available for subscription for such Period shall be the total remaining capacity for such Fuel Resource Category, except as set forth in Section F.3 of this Schedule). Category 2 (Dairy) and Category 2 (Other Agriculture) will have one Category 2 Available Allocation for any Period.

3. On the Effective Date of BioMAT and by the first business day of each Period, the following capacity information will be posted on [CCA]’s website and/or online platform, or as otherwise determine by the Third-Party Administrator in BioMAT:
a. Available Allocation for each Fuel Resource Category b. Total remaining Program Capacity
c. Total remaining capacity in each Fuel Resource Category

4. Any Contract Capacity associated with BioMAT PPAs that are terminated prior to the delivery of any electricity to [CCA] will be allocated by [the Third-Party Administrator for BioMAT] to the Fuel Resource Category corresponding to the Fuel Resource Category of the terminated BioMAT PPA and will not be attributed to the total capacity target for [IOU]. Any Contract Capacity associated with BioMAT PPAs that are terminated after the

Page 18 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 13

ELECTRIC SCHEDULE BIOMAT

I. PRICE
The Contract Price for BioMAT PPAs will be determined as follows:

1. The Third-Party Administrator for BioMAT will administer a pricing mechanism to establish a statewide price for the four (4) following Statewide Pricing Categories:

Category 1, Category 2 (Dairy), Category 2 (Other Agriculture), and Category 3.

2. The Contract Price for each Statewide Pricing Category, as determined by the Third-Party Administrator for BioMAT, will be published on [CCA]’s website and/or online platform by the first business day of every Period.

3. The initial BioMAT Contract Price offered for each Statewide Pricing Category in Period 1 will equal $127.72/megawatt-hour (MWh), pre-time of delivery adjusted. See the BioMAT PPA for contractual terms related to Contract Price.

4. After Period 1 (except as set forth in Section F.3.a of this Schedule), the Contract Price for each Statewide Pricing Category may adjust independently in each subsequent Period. The conditions for a Contract Price adjustment will be based on the subscription rate in each Statewide Pricing Queue as follows:
a. Market Depth for Initial Contract Price Adjustment: Until at least one Project in a Statewide Pricing Queue accepts the Contract Price, a Contract Price adjustment may occur in a subsequent Period for that Statewide Pricing Category only if at the beginning of the prior Period there are at least three (3) eligible Projects from three (3) different Applicants (including Applicant’s Affiliates) with BioMAT Queue Numbers for the applicable Statewide Pricing Queue, in which case the Contract Price for that Statewide Pricing Category may increase or decrease in the next Period based on the criteria described below in SectionsH.4.d and H.4.f of this Schedule. If an Applicant or its Affiliates have any ownership interest (based on the information provided by and attested to by the Applicant as described in Section E.2.d.3 of this Schedule) in a Project, the

Page 19 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 14

ELECTRIC SCHEDULE BIOMAT

BIOENERGY MARKET ADJUSTING TARIFF PROGAM
(Continued)
(Continued)
Advice Letter: [Insert CCA
Advice Letter #]
Decision: D.23-11-084
Issued by
[Insert name and title of individual at CCA
authorized to legally obligate it]
Submitted: January 29, 2024
(Revised 2-26-24)
Effective: March 18, 2024
Project will be attributed to the Applicant(s) for purposes of this provision. If there are fewer than three (3) eligible Projects from three (3) different Applicants in the applicable Statewide Pricing Queue at the beginning of any Period, then the Contract Price for that Statewide Pricing Category will remain the same in the next Period.
b. Market Depth for Subsequent Contract Price Adjustments: After at least one (1) Project in a Statewide Pricing Queue accepts the Contract Price, a Contract Price adjustment may occur in a subsequent Period for that Statewide Pricing Category only if at the beginning of the prior Period there are at least five (5) eligible Projects from five (5) different Applicants (including Applicant’s Affiliates) with BioMAT Queue Numbers for the applicable Statewide Pricing Queue, in which case the Contract Price for that Statewide Pricing Category may increase or decrease in the next Period based on the criteria described below in Sections H.4.d and H.4.f of this Schedule. If an Applicant or its Affiliates have any ownership interest (based on the information provided by and attested to by the Applicant as described in Section E.2.d.3 of this Schedule) in a Project, the Project will be attributed to the Applicant(s) for purposes of this provision. If there are fewer than five (5) eligible Projects from five (5) different Applicants in the applicable Statewide Pricing Queue at the beginning of any Period, then the Contract Price for that Statewide Pricing Category will remain the same in the next Period.
c. Category 2 Price Screen: Although there is one queue and capacity allocation for all Category 2 Projects, the Contract Prices for Category 2 (Dairy) and Category 2 (Other Agricultural) will adjust independently from each other as described herein according to Statewide Subscription from its respective Statewide Pricing Queues. d. Price Increase: If the Statewide Subscription Rate for a Period is less than 20% for that Statewide Pricing Category, the Contract Price for that Statewide Pricing Category for the next Period will be increased by the following amounts as long as the criteria in Section H.4.a or H.4.b of this Schedule, as applicable, are satisfied, in an uninterrupted series of increases:
(1) First increase in a series: +$4/MWh
(2) Second increase in a series: +$8/MWh

Page 20 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 15

ELECTRIC SCHEDULE BIOMAT

5. Payment Allocation Factors: Contract Prices will be adjusted by the Payment Allocation Factors included in the BioMAT PPA in accordance with the terms of the BioMAT PPA.

The Payment Allocation Factors are based on time-of-delivery periods and whether the Project is an energy-only facility or has Full Capacity Deliverability Status. The BioMAT PPA provides further detail regarding monthly payment calculations and the Payment Allocation Factors.

Page 21 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 16

ELECTRIC SCHEDULE BIOMAT

6. Price Review: The Director of the CPUC’s Energy Division (Energy Division) is required to initiate an investigation of the BioMAT program at any time when the Contract Price for a Statewide Pricing Category reaches or exceeds $197/MWh for two (2) consecutive Periods. Energy Division has the discretion to temporarily suspend the awarding of BioMAT PPAs for the relevant Statewide Pricing Category during its review period.

7. Category 3 Contract Price Suspension: The Contract Price for Category 3 will adjust pursuant to Section H of this Schedule however, pursuant to Section H.7 of this schedule and Energy Division’s letter from November 28, 2017 titled “Bioenergy Market Adjusting Tariff (BioMAT) Category 3 Temporary Partial Price Cap and Program Review”, the Contract Price for Category 3 is capped at $199.72/MWh for Projects that do not commit to the High Hazard Fuel Requirement.

I. SUBSCRIPTION

1. Within ten (10) business days after the first business day of each Period, Applicants must: (i) provide [CCA] with notice indicating whether or not the Applicant is willing to execute a BioMAT PPA based on the applicable Contract Price (accept the Contract Price or reject the Contract Price); and (ii) attest that the Applicant and the Project continue to satisfy the Eligibility Criteria. [CCA]’s website, information technology systems, or materials shall specify how Applicant shall provide written notice to [CCA].

2. Failure to provide [CCA] with written notice by 5:00 p.m. PT on the tenth business day after the first business day of a Period will be deemed to be notice that the Applicant rejects the Contract Price for that Period.

3. In accordance with CPUC D.23-11-084, CCA BioMAT programs in [IOU]’s service territory will be utilizing [IOU]’s Available Allocation for the Fuel Resource Category in each Period. [CCA] will review applications submitted to its BioMAT program and determine which applications meet the Eligibility Criteria. Once [IOU] or the CCA has deemed the applications complete in each of their respective BioMAT programs, the Third-Party Administrator will identify the applicant(s) next in line for PPA award based on price acceptance and BioMAT Queue Number order until the Available Allocation for the Fuel Resource Category is met or Deemed Fully Subscribed in each Period. [CCA] will provide written notice to Applicants that are awarded a BioMAT PPA, within ten (10) business days following the deadline for Applicants to accept or reject the Contract Price. If the next Project that has provided notice to [CCA] within

Page 22 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 17

ELECTRIC SCHEDULE BIOMAT

4. Upon notification of PPA award, [CCA] will review the PPR within twenty (20) business days and will notifv the Applicant of any deficiencies. The Applicant must cure the deficiencies and resubmit the PPR within ten (10) business days of notice from [CCA] of the deficiency. [CCA] will review the PPR within ten (10) business days of receipt of the resubmitted PPR. If no deficiencies remain, [CCA] will notify the Applicant. [CCA] will offer an executable PPA to the Applicant within twenty (20) business days of notice that no deficiencies remain.

5. Applicants who reject or accept the Contract Price but are not awarded a BioMAT PPA will retain their BioMAT Queue Number, except as otherwise specified in this Schedule.

6. Applicants that are awarded a BioMAT PPA for a Period must submit an executed BioMAT PPA to [CCA] within twenty (20) business days of receiving an executable BioMAT PPA from [CCA]. If the Applicant fails to return an executed BioMAT PPA to [CCA] within twenty (20) business days of receiving an executable BioMAT PPA from [CCA], the Applicant will be deemed to have rejected the BioMAT PPA and the Applicant’s BioMAT Queue Number will be revoked. The Contract Capacity associated with the Applicant’s Project will be allocated per SectionG.4 of this Schedule.

7. The Project may not have an existing PPA or other contract for energy and/or capacity deliveries to [CCA], or any other counterparty, from the same Project at the time of execution of the BioMAT PPA or, if allowed per the terms of the existing contract, the Seller must provide documentation demonstrating that the existing contract will be terminated on a date certain that is within the COD timing allowed in the BioMAT PPA prior to the execution of the BioMAT PPA. Notwithstanding the foregoing, to the extent

Page 23 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 18

ELECTRIC SCHEDULE BIOMAT

8. Within ten (10) business days of the execution of the BioMAT PPA by both the Applicant and [CCA], [CCA] shall provide on its website information regarding the executed BioMAT PPA as required by the CPUC.

J. BIOMAT PPA
The BioMAT PPA will be completed by [CCA] for execution by the Applicant and shall include the information submitted in the PPR, which includes, but is not limited to, the information listed below:

1. Seller Name: Must be a legal entity

2. Project Name

3. Facility Street Address (or nearest intersection) (or coordinates if no intersection or street address)

4. Type of Facility: Category 1, 2, or 3

5. Fuel Resource Category (including proportions if using multiple fuel sources within the selected Fuel Source Category)

6. Interconnection Queue Position

7. Interconnection Point

8. Service Voltage

9. Delivery Point

10. Expected COD: No later than thirty-six (36) months from execution date of the BioMAT PPA, or within thirty-six (36) months of the Interconnection Study Completion Date for Category 3 Projects that do not have an Active Interconnection Study at the time the BioMAT PPA is executed, as described in Section D.6(b).

Page 24 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 19

ELECTRIC SCHEDULE BIOMAT

11. Contract Capacity

12. Nameplate Capacity

13. Delivery Term: 10, 15, or 20 years

14. Transaction: Full Buy/Sell or Excess Sale

15. Contract Quantity: Provide estimates in MWh/year, net of Station Use and Site Host Load for each year of the Delivery Term
K. METERING
Projects must be electrically independent and separately metered. Metering requirements are described in the BioMAT PPA.

L. SPECIAL CONDITIONS
The following special conditions apply to the BioMAT program:

1. COD Extension Policy: The COD for the BioMAT PPA may only be extended pursuant to the terms in the BioMAT PPA. The BioMAT PPA requires that the Project achieve its COD within thirty-six (36) months after the Execution Date of the BioMAT PPA or within thirty-six (36) months of the Interconnection Study for eligible Category 3 Projects, as described in Section D.6(b) of this Schedule, with the possibility of one six (6) month extension for Permitted Extensions as set forth in the BioMAT PPA.

2. Termination of Service: Unless terminated earlier pursuant to the BioMAT PPA, the BioMAT PPA automatically terminates immediately following the last day of the Delivery Term.

3. BioMAT Suspension: [CCA] may file a motion with the CPUC to suspend BioMAT when evidence of market manipulation or malfunction exists. The motion must be filed on the applicable CPUC service list. The motion shall identify the portion of the program suspended, the specific behavior and reasons for the suspension, and [CCA]’s proposal for resolving the problem. Any requested suspension will be implemented by [CCA] immediately upon filing and shall not be modified or changed unless directed by the CPUC.

Page 25 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 20

ELECTRIC SCHEDULE BIOMAT

1. The Project does not meet the requirements of PUC Section 399.20 or any applicable CPUC decision.

2. The transmission or distribution grid that would serve as the point of interconnection is inadequate.

3. The Project does not meet all applicable state and local laws and building standards, and interconnection requirements.

4. The aggregate of all electric generation facilities on a distribution circuit would adversely impact utility operation and load restoration efforts of [CCA]’s electric system.

5. The Project appears to be part of a larger overall installation by the same company or consortium in the same general location.

6. There exist any outstanding obligations owed to [CCA] by the Applicant under a previously executed BioMAT PPA or other agreement related to the sale of energy, capacity, renewable energy credits, or other related products, in each case, that relates to either any portion of the site or the interconnection queue position to be utilized by the Project seeking BioMAT program participation.

7. The Applicant does not otherwise meet the requirements of this Schedule.

Upon receipt of a notice of denial from [CCA], the Applicant may appeal the decision to the CPUC.

N. DEFINITIONS
Capitalized terms in this Schedule shall have the same meaning as the defined term in the BioMAT PPA , unless the term is otherwise defined in this Schedule.

Page 26 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 21

ELECTRIC SCHEDULE BIOMAT

1. Available Allocation: The allocation of available Program Capacity in the IOU’s territory for which CCA operates for each Fuel Resource Category in each Period as described in Section G.2 of this Schedule.

2. Emergency Proclamation: The Proclamation of a State of Emergency issued by Governor Edmund G. Brown, Jr. on October 30, 2015 to address the impacts of extensive tree mortality due to the extended drought in California and resulting epidemic infestation of mountain forests by bark beetles.

3. Fuel Resource Categories: The following categories and subcategories defined according to the bioenergy feedstock utilized at the Facility:
i. Category 1: Biogas, including digester gas and any gas derived from a biomass feedstock eligible under the California RPS that is derived from one or more of the following sources:

1. Biogas that is derived from a wastewater treatment facility that is (1) owned by a state, local, or federal agency and used in the treatment or reclamation of sewage or industrial wastes; (2) privately owned and used in the treatment or reclamation of sewage or industrial wastes, and regulated by the CPUC pursuant to Sections 216 and 230.6 of, and Chapter 4 (commencing with Section 701) of Part 1 of Division 1 of, the PUC; or (3) privately owned and used primarily in the treatment or reclamation of sewage for which the state board or a regional board has issued waste discharge requirements (“wastewater treatment”).

2. Biogas that is derived from a diversion of organic solid wastes, in accordance with all applicable federal, state and local requirements, from disposal at solid waste landfills or transformation facilities; and (1) where the organic solid wastes originated from living organisms and their metabolic waste products which contain naturally produced organic compounds, and which are biologically decomposable by microbial and fungal action into the constituent compounds of water, carbon dioxide, and other simpler organic compounds; and (2) where the organic solid wastes were generated by residential, commercial, and industrial sources, or were

Page 27 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 22

ELECTRIC SCHEDULE BIOMAT

3. Biogas that is derived from waste, residue or by-products of food processing or manufacturing facilities, consistent with activities described as “food manufacturing” in Title 311 of the North American Industry Classification System (NAICS). Food
processing and manufacturing includes, but is not limited to canning, cooking, roasting, chopping, slicing, cutting, peeling, juicing, milling, fermenting or other processing or manufacturing that changes the form of raw agricultural ingredients into food, or of food into other forms (“food processing”).

4. Biogas that is derived from the anaerobic digestion of multiple biodegradable substrates or feedstocks, including but not limited to biosolids, wastewater, animal waste, food scraps, fats, oils, and grease (FOG) or any other suitable organic material (“codigestion”). ii. Category 2:

1. Dairy: Biogas derived solely from the anaerobic digestion of dairy waste.

2. Other Agriculture: Biogas or biomass derived from a facility that utilizes the waste, residue or by-products of growing crops, raising livestock or growing horticultural products, consistent with activities described as “crop production” and “animal production” in Titles 111 and 112 of the North American Industry Classification System (NAICS). Agricultural wastes include, but are not limited to, agricultural crop residues; fruits and vegetables; orchard and vineyard removal; and crop tree and vineyard prunings.

Agricultural waste also includes waste, residues and by-products from agricultural drying, hulling, shelling and ginning operations as well as fresh fruit and vegetable packing operations.

Page 28 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 23

ELECTRIC SCHEDULE BIOMAT

1. Biomass feedstock from fuel reduction activities identified in a fire plan approved by the California Department of Forestry and Fire Protection (CAL FIRE) or other appropriate state, local or federal agency and categorical exclusions on federal lands approved under 36 C.F.R. 220.6(e)(6)ii and (12) thru (14) (“fire threat reduction”).

2. Biomass feedstock from fuel reduction activities conducted to comply with Public Resources Code Sections 4290 and 4291. This would include biomass feedstocks from timber operations conducted in conformance with 14 CCR 1038(c) (150' Fuel Reduction Exemption) as well as projects that fall under 14 CCR 1052.4 (Emergency for Fuel Hazard Reduction), 14 CCR 1051.3- 1051.7 (Modified THP [timber harvest plan] for Fuel Hazard Reduction), and 14 CCR 1038(i) (Forest Fire Prevention
Exemption), and categorical exclusions on federal lands approved under 36 CFR 220.6(e)(6)ii and (12)-(14) (“fire safe clearance activities”).

3. Biomass feedstock from (1) fuel reduction activities undertaken by or on behalf of a utility or local, state or federal agency for the purposes of protecting infrastructure, including but not limited to:
power lines, poles, towers, substations, switch yards, material storage areas, construction camps, roads, railways; or (2) all utility right-of-way fuel reduction activities undertaken for the purpose of protecting infrastructure, including water conveyance systems (canals, penstocks, flumes, tunnels etc.), gas lines, and telecommunication lines (“infrastructure clearance projects”).

4. Biogas or biomass that is the byproduct of other sustainable forest management practices not covered in any of Section N.3.iii1, 2, 3 or 5 of this Schedule, but which are considered “other sustainable forest management” fuel resources as indicated in a fully completed, executed and certified “Category 3 Other Sustainable Forest Management Eligibility Form” in the form of Appendix A to the

Page 29 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 24

ELECTRIC SCHEDULE BIOMAT

5. High Hazard Fuel.

4. CCA: Refers to a Community Choice Aggregator that elects to participate in the BioMAT program, that adopts CPUC standard CCA BioMAT program documentation as required by D.23-11-084 and approved by the CPUC, and that offers the BioMAT program using its own BioMAT Tariffs and website.

5. Distribution Line: For the purposes of this Schedule and the BioMAT PPA, a distribution line is a non-CAISO controlled electric circuit within [IOU]’s electric service territory, regardless of line voltage.

6. Existing [IOU] Transmission Line: For the purposes of this Schedule and the BioMAT PPA, an existing transmission line must be a [IOU] owned network circuit with a line voltage of 60 kV – 500 kV, controlled by the CAISO, and must have been built and operational as of the submittal date of an applicant’s PPR.

7. High Hazard Fuel: Forest biomass sourced from within the geographic boundary of High Hazard Zones.

8. High Hazard Fuel Requirement: Has the meaning set forth in Section 4.4.2 of the BioMAT PPA.

9. High Hazard Zones: For the purposes of this Schedule, areas designated as Tier 1 or Tier 2 high hazard zones for wildfire and falling trees by the California Department of Forestry and Fire Protection, the California Natural Resources Agency, the California Department of Transportation, the California Energy Commission, or other designated agency as reflected in the Tree Mortality Viewer on the Cal Fire website (http:efis.fire.ca.gov/TreeMortalityViewer/).

10. IOU: Refers to each of the large investor-owned electric utilities in California: Pacific Gas and Electric Company, Southern California Edison Company, or San Diego Gas and Electric Company, and together they are the “IOUs.”

Page 30 of 164 ends

[INSERT CCA NAME]
[INSERT CCA ADDRESS]
Cal P.U.C. Sheet No. 25

ELECTRIC SCHEDULE BIOMAT

11. Statewide Available Allocation: For determining Statewide Subscription Rate under this Schedule only, Statewide Available Allocation for each Statewide Pricing Category is defined as the cumulative total of each IOU’s Available Allocation for the applicable Period, except that the Statewide Available Allocation for Category 2 (Dairy) and Category 2 (Other Agriculture) are each defined as one-half of the cumulative total of each IOU’s Available Allocation for Category 2 for the applicable Period.

12. Statewide Pricing Category: Has the meaning set forth in Section H.1 of this Schedule.

13. Statewide Pricing Queue: The cumulative queue in each IOU service territory by Statewide Pricing Category.

14. Statewide Subscription: For the purposes of this Schedule, Statewide Subscription is defined as the total Contract Capacity of Projects for which Applicants accept the Contract Price in a Period for each applicable Statewide Pricing Queue.

15. Statewide Subscription Rate: For the purpose of this Schedule, the percentage as calculated in a given Period equal to the Statewide Subscription for the Statewide Pricing Category divided by the lesser of (i) the Statewide Available Allocation for that Statewide Pricing Category, or (ii) the total capacity in the Statewide Pricing Queue for that Statewide Pricing Category.

16. Third Party Administrator: For the purposes of this Schedule, an independent third party contracted by the IOUs and CCAs to manage BioMAT program pricing and BioMAT subscription management and other necessary related program responsibilities needed to independently administer the BioMAT program queue central to the pricing and allocation mechanisms as required by D.23-11-084.

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[This contract has been approved by the California Public Utilities Commission in a letter dated April 29, 204.

Modification of the terms and conditions of this contract will result in the need to obtain additional Commission approval of the contract.]
[The contract approved by _______________includes terms and conditions that “may not be modified” pursuant to prior Commission decisions, including Decision 07-11-025, Decision 08-08- 028 and Decision 10- 03-021, as modified by Decision 11-01-025, and Decision 23-11-084, and these terms and conditions are shown in shaded text.]

AMENDED BIOENERGY MARKET ADJUSTING TARIFF

POWER PURCHASE AGREEMENT

BETWEEN
[CCA]
AND
[Name of Seller]

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TABLE OF CONTENTS
PAGE
COVER SHEET.............................................................................................................................................................4 PREAMBLE ............................................................................................................................................................... 12 GENERAL TERMS AND CONDITIONS ................................................................................................................. 12

1. COMMERCIAL OPERATION DATE .................................................................................................................. 12

2. CONTRACT CAPACITY AND QUANTITY; TERM; CONTRACT PRICE; BILLING..................................... 13

3. BIOMETHANE TRANSACTIONS; RESOURCE ADEQUACY BENEFITS; ERR REQUIREMENTS; QUALIFYING FACILITY STATUS ......................................................................................................................... 19

4. REPRESENTATION AND WARRANTIES; COVENANTS ............................................................................... 23

5. GENERAL CONDITIONS .................................................................................................................................... 28

6. INDEMNITY.......................................................................................................................................................... 35

7. LIMITATION OF DAMAGES .............................................................................................................................. 36

8. NOTICES ............................................................................................................................................................... 36

9. INSURANCE ......................................................................................................................................................... 37

10. FORCE MAJEURE.............................................................................................................................................. 39

11. GUARANTEED ENERGY PRODUCTION ....................................................................................................... 39

12. CREDIT AND COLLATERAL REQUIREMENTS............................................................................................ 40

13. EVENTS OF DEFAULT AND TERMINATION................................................................................................ 42

14. SCHEDULING COORDINATOR; FORECASTING PENALTIES; CAISO CHARGES; GOVERNMENTAL CHARGES.................................................................................................................................................................. 48

15. RELEASE OF INFORMATION AND RECORDING CONVERSATION......................................................... 49

16. ASSIGNMENT .................................................................................................................................................... 49

17. GOVERNING LAW ............................................................................................................................................ 50

18. DISPUTE RESOLUTION.................................................................................................................................... 50

19. MISCELLANEOUS............................................................................................................................................. 52

APPENDICES
APPENDIX A – DEFINITIONS................................................................................................................................. 54 APPENDIX B – COMMERCIAL OPERATION DATE CONFIRMATION LETTER............................................. 69 APPENDIX C – TIME OF DELIVERY PERIODS AND PAYMENT ALLOCATION FACTORS......................... 70 APPENDIX D – FORECASTING AND OUTAGE NOTIFICATION REQUIREMENTS ....................................... 71 APPENDIX E – TELEMETRY REQUIREMENTS................................................................................................... 75 APPENDIX F – GUARANTEED ENERGY PRODUCTION DAMAGES............................................................... 76 APPENDIX G – FORM OF LETTER OF CREDIT................................................................................................... 77 APPENDIX H – FORM OF GENERAL CONSENT TO ASSIGNMENT................................................................. 81 APPENDIX I – FORM OF FINANCING CONSENT TO ASSIGNMENT............................................................... 87

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APPENDIX J – PROCEDURE FOR DEMONSTRATION OF CONTRACT CAPACITY [FOR ALL FACILITIES EXCEPT FOR FACILITIES WITH A NAMEPLATE CAPACITY GREATER THAN THREE MEGAWATTS] .................................................................................................................................................................................... 94 APPENDIX J – PROCEDURE FOR DEMONSTRATION OF CONTRACT CAPACITY AND NAMEPLATE CAPACITY [ONLY FOR FACILITIES WITH A NAMEPLATE CAPACITY GREATER THAN THREE MEGAWATTS].......................................................................................................................................................... 95 APPENDIX K-1 – QF EFFICIENCY MONITORING PROGRAM – COGENERATION DATA REPORTING FORM......................................................................................................................................................................... 97 APPENDIX K-2 – FUEL USE STANDARDS – SMALL POWER PRODUCER DATA REPORTING FORM 98 APPENDIX K-3 – FUEL USE STANDARDS – MULTI-FUEL MONTHLY DATA REPORTING FORM............ 99 APPENDIX L – FORM OF FUEL ATTESTATION [FOR ALL PROJECTS EXCEPT THOSE WITH HHZ REQUIREMENT].................................................................................................................................................... 101 APPENDIX L – FORM OF FUEL ATTESTATION [ONLY FOR PROJECTS WITH HHZ REQUIREMENT] 103
APPENDIX M – FUEL RESOURCE FAILURE CURE REQUIREMENTS........................................................... 107 APPENDIX N – FORM LOW-VOLTAGE SIDE METERING ATTESTATION [ONLY FOR PROJECTS UTILIZING LOW-VOLTAGE SIDE METERING ............................................................................................... 108

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COVER SHEET
[CCA] [a Community Choice Aggregator formed [describe CCA] (“Buyer” or “[CCA]”), and (“Seller”), a [Seller’s form of business entity and state of organization], hereby enter into this Power Purchase Agreement (“Agreement”) made and effective as of the Execution Date. Seller and Buyer are sometimes referred to in this Agreement jointly as “Parties” or individually as “Party.” In consideration of the mutual promises and obligations stated in this Agreement and its appendices, the Parties agree as follows:

A. Fuel Resource Category and Transaction Type
(i) Project’s Fuel Resource Category (please indicate whether any of the Project’s Fuel Resource Category fuel will be Eligible Directed Biogas):
(ii) Seller elects the following transaction type pursuant to Section 2.3 of the Agreement:
[Choose one]
□ Full Buy/Sell
□ Excess Sale
(iii) Seller elects the following Delivery Term pursuant to Section 2.5 of the Agreement:
[Choose one]
□ ten (10) Contract Years
□ fifteen (15) Contract Years
□ twenty (20) Contract Years
B. Facility and Site Description
(i) Facility name:
(ii) Facility physical address (or nearest intersection and direction):
(iii) Latitude and longitude of the centroid of the Site:
(iv) Parcel numbers that are part of the Site:
(v) Existing land use:
(vi) Interconnection Point (and Service Voltage):
(vii) Delivery Point (the point of interconnection with the CAISO grid):
(viii) Contract Capacity (in MW):
(ix) Nameplate Capacity (in MW):
(x) The Project is committed to, and shall satisfy, the High Hazard Fuel Requirement throughout the Delivery Term:
□ Yes

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□ No
(xi) Fuel Use Description (brief explanation of any Fuel Use from Fuel Resource Categories per the Fuel Resource Requirements), including whether any such fuel will be Eligible Directed Biogas:
(xii) The Project will use fuel for Station Use that is not from a Fuel Resource Category:
□ Yes
□ No
(xiii) Facility type:
□ “small power production facility,” as described in 18 CFR §292.203(a), 292.203(c) and 292.204
□ “topping-cycle cogeneration facility,” as defined in 18 CFR §292.202(d) □ “bottoming-cycle cogeneration facility,” as defined in 18 CFR §292.202(e) (xiv) The date on which the Commercial Operation Date of the Project is expected under this Agreement (must be no later than the Guaranteed Commercial Operation Date):
(xv) The Project is an:
□ existing Project
□ new Project
(xvi) The Project utilizes:
□ High-voltage Side Metering
□ Low-voltage Side Metering
Pursuant to Section 5.2.1., a Project that utilizes Low-voltage Side Metering shall not share a transformer with any other generator or load.
(xvii) The Interconnection Queue Position number is: [#] [For Category 3 Projects that do not have an Active Interconnection Study prior to the Execution Date: the number provided to the Project upon submission of a new Interconnection Study application pursuant to Section 4.3.14] (xviii) Table of major components with technical descriptions:

Biogas
Equipment Description
Digester Lagoon Size (gallons or acres)
Engine Number, type, manufacturer, model
Generators Type, manufacturer, capacity
Transformer Capacity, voltage levels
(other)

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Biomass
Equipment Description
Boiler Type, manufacturer, model, capacity
Turbine Type, manufacturer, model, capacity
Generator Type, manufacturer, capacity
Transformer Capacity, voltage levels
(other)
(xix) [Insert Facility or Equipment Layout Drawing] (may overlay Site Map) illustrating the general layout of the facility:
□ A clearly labeled perimeter of the Project Site (i.e. site control boundary). □ The relative positions of the project’s major components. □ The voltage related to interconnection and the point of the interconnection. (xx) Legal description of the site (including APNs) and [Insert Site Map] (may overlay with Facility Drawing), illustrating the following:
□ A clearly labeled perimeter of the Project Site (i.e. site control boundary). □ A parcel map including an outline of the Project Site. □ Clearly labeled nearby roads, including the nearest intersection. □ If the primary site map is too close to display the nearest intersection, a supplementary map at a larger scale so that nearby roads and landmarks can be seen. (xxi) [Insert Single Line Diagram] illustrating internal equipment and connections as well as the components for interconnection of the Facility to IOU’s electric system via Distribution Line or Existing IOU Transmission Line. At minimum, please include information for the following components:
□ Name and address of the facility.
□ Electrical system components, cabling and connections with associated labeling (voltage levels, overhead or underground, etc.).
□ Generators and/or inverters (including capacity and voltage designations). □ Transformers – for generation system and/or interconnection and station power (A station service transformer is for the generating facility’s station use and must be on the project’s side of the meter).
□ Metering (e.g., CAISO revenue meters and/or Utility meters). □ Fuses and Breaker.
□ Disconnects and/or switches.
□ All other switchgear.
(xxii) [For cogeneration Facilities]:
□ Forecast of useful thermal energy output (MMBtu/month).

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□ Dedicated Use(s) of the Facility’s Useful Thermal Energy Output.

C. Contract Price
The price for Delivered Energy (the “Contract Price”) is [Dollar amount in words] dollars ($ [Number]) per MWh. [Contract Price determined by BioMAT Tariff pricing methodology.]
D. Delivery Term Contract Quantity Schedule
Contract Year Contract Quantity
(MWh/year)
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
E. Collateral Requirement
[The Collateral Requirement is equal to twenty thousand dollars ($20,000.00) for each megawatt of the Contract Capacity for a total of [Dollar amount in words] ($ .00).] [For all Projects except Projects with a High Hazard Fuel Requirement]
OR
[The Collateral Requirement is equal to the greater of (i) an amount equal to (a) the Contract Price minus $199.72/MWh, multiplied by (b) 1.5, multiplied by (c) the highest annual Contract Quantity(MWh/yr) committed in the Delivery Term Contract Quantity Schedule set forth in the Cover Sheet Section D, for a total of [Dollar amount in words] ($ .00)]; or (ii) twenty thousand dollars ($20,000) for each megawatt of the Contract Capacity for a total of [Dollar amount in words] ($ .00).] [For all Projects with a High Hazard Fuel Requirement] F. Curtailment Orders
Operational characteristics of the Project for Curtailment Orders pursuant to Section 5.8(c) are listed below. Buyer, as Scheduling Coordinator, may request that CAISO modify the Master File

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for the Project to reflect the findings of a CAISO audit of the Project. In addition, Seller agrees to coordinate with Buyer or Third-Party SC, as applicable, to ensure all information provided to the CAISO regarding the operational and technical constraints in the Master File for the Project are accurate and are based on the true physical characteristics of the resource. (i) Minimum operating capacity: MW
(ii) Ramp Rate: MW/Minute
(iii) Maximum number of Curtailment Orders per calendar day (if any such operational limitations exist):
(iv) Maximum number of Start-ups per calendar day (if any such operational limitations exist):
(v) Advance notification required for a Curtailment Order: Minutes Other Requirements:
• Start-Up Time (if applicable): Minutes
• Minimum Run Time after Start-Up (if applicable): Minutes • Minimum Down Time after Shut-Down (if applicable): Minutes • Other-Specify:

Note: Sellers should enter the maximum flexibility the Project can offer given the operational constraints of the technology.

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G. Seller Milestone Schedule
No. Date Milestones
1 Submits interconnection application. [For Category 3 Projects that do not have an Active Interconnection Study prior to the Execution Date: The anticipated date for submitting a new Interconnection Study application].
2 Files any land applications.
3 Files construction permit application(s).
4 Files a CEC Pre-Certification application.
5 Files material permit applications.
6 Receives a completed IOU Initial or Supplemental Review, System Impact Study or Phase I Interconnection Study, or a CAISO Cluster Study, Independent Study or Fast Track Study. 7 Obtains control of all lands and rights-of-way comprising the Site. 8 Receives a completed interconnection IOU Facility Study or Phase II Interconnection Study (if applicable).
9 Executes an interconnection agreement and transmission/distribution service agreement, as applicable.
10 Receives FERC acceptance of interconnection and transmission agreements. 11 Receives construction permit.
12 Receives material permits.
13 Receives CEC Pre-Certification.
14 Receives FERC docket number assigned to Seller’s filing of FERC Form 556. 15 Executes an Engineering, Procurement and Construction (“EPC”) contract. 16 Procures the [applicable electrical
generating equipment] for the Facility.
17 Completes financing, including construction financing. 18 Begins construction of the Facility.
19 Begins startup activities.
20 Initial Synchronization Date.
21 Demonstrates the Contract Capacity [and the Nameplate Capacity]. [Bracketed language only for Facilities with a Nameplate Capacity greater than three megawatts] 22 Commercial Operation Date.
23 Receives Final CEC Certification.

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H. Notices List
Name: [Seller’s Name], a [include place of Name: [CCA], a formation and business type] (“Seller”) [describe CCA] (“Buyer” or “[CCA]”) All Notices: [Seller to complete] All Notices: [CCA to complete] Delivery Address: Delivery Address:

Street:

City: State: Zip:

Mail Address: (if different from above) Mail Address:

Attn: Attn:

Phone: Phone:

Email: Email:

Invoices: Invoices:

Attn: Attn: \
\
Phone: Phone: \
Email: Email: \
Scheduling: Scheduling:

Attn: Attn: \
Phone: Phone: \
Email: Email: \
Payments: Payments:

Attn: Attn: \
\
Phone: Phone: \
Email: Email: \
Credit and Collections: Credit and Collections:

Attn: Attn: \
Phone:

Facsimile: \
Email: Email: \
With additional Notices of an Event of Contract Manager:

Default to Contract Manager:

Attn: Attn: \
\
Phone: Phone: \
Email: Email: \

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\

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PREAMBLE
This Agreement, together with the Cover Sheet and the Appendices attached hereto, is made and entered into between [CCA] and Seller as of the Execution Date. This Agreement governs Buyer’s purchase of the Product from the electrical generating facility (hereinafter referred to as the “Facility” or “Project”) as described in the Cover Sheet. Buyer and Seller hereby agree to the following:

GENERAL TERMS AND CONDITIONS

1. COMMERCIAL OPERATION DATE

1.1. Expected Commercial Operation Date; Guaranteed Commercial Operation Date.

1.1.1. If not already capable of delivering Product on the Execution Date, the Facility’s expected Commercial Operation Date is the date specified in the Cover Sheet, which may, subject to the terms of the Agreement, be modified by Seller from time to time after the Execution Date. Seller shall provide Notice to Buyer of the latest expected Commercial Operation Date of the Facility no later than sixty (60) days before such date.

1.1.2. Seller shall have demonstrated Commercial Operation by the “Guaranteed Commercial Operation Date,” which date shall be no later than the date that is thirty-six (36) months after the [Execution Date] [For Category 3 Projects that do not have an Active Interconnection Study prior to the Execution Date: Interconnection Study Completion Date]; provided that the Guaranteed Commercial Operation Date may be extended to no later than the date that is forty-two (42) months after the [Execution Date] [For Category 3 Projects that do not have an Active Interconnection Study prior to the Execution Date: Interconnection Study Completion Date] for the following reasons (“Permitted Extensions”):

Subject to Section 1.1.4, if Seller has taken all commercially reasonable actions (including but not limited to Seller’s timely filing of required documents and payment of all applicable fees) to obtain permits necessary for the construction and operation of the Project, but is unable to obtain such permits due to delays beyond Seller’s reasonable control (“Permitting Delay”), then the Guaranteed Commercial Operation Date shall be extended six (6) months;
Subject to Section 1.1.4, if Seller has taken all commercially reasonable actions (including but not limited to Seller’s timely filing of required documents and payment of all applicable fees, and completion of all Electric System Upgrades needed, if any) to have the Project physically interconnected to the Transmission/Distribution Owner’s electric system via Distribution Line or Existing Transmission/Distribution Owner Line, but fails to secure any necessary commitments from CAISO or the Transmission/Distribution Owner for such interconnection and upgrades due to delays beyond Seller’s reasonable control (“Transmission Delay”), then the Guaranteed Commercial Operation Date shall be extended six (6) months;
In the event of Force Majeure without regard to Transmission Delay or Permitting Delay (“Force Majeure Delay”), the Guaranteed Commercial Operation Date shall be extended on a day-to-day basis for a cumulative period of not more than six (6) months; provided that Seller complies with Section 10; or
If Seller pays to Buyer damages in an amount equal to two percent (2%) of the Collateral Requirement per day for each day (or portion thereof) the Guaranteed

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Commercial Operation Date is extended (“Daily Delay Liquidated Damages”), then the Guaranteed Commercial Operation Date shall be extended on a day-to-day basis corresponding to the number of days for which Seller has paid Daily Delay Liquidated Damages for a cumulative period of not more than six (6) months. Daily Delay Liquidated Damages payments applicable to days included in any Guaranteed Commercial Operation Date extension are nonrefundable and are in addition to, and not a part of, the Collateral Requirement; provided that Seller will be entitled to a refund (without interest) of any estimated Daily Delay Liquidated Damages payments paid by Seller to Buyer which exceed the amount required to cover the number of days by which the Guaranteed Commercial Operation Date was actually extended.

1.1.3. All Permitted Extensions taken shall be concurrent, rather than cumulative, during any overlapping days.

1.1.4. Upon request from Buyer, Seller shall provide documentation demonstrating to Buyer’s reasonable satisfaction that the Permitted Extensions described in Section 1.1.2.1 or

1.1.2.2 (as applicable), did not result from Seller’s action or failure to take action as described in Section 1.1.2.1 or 1.1.2.2 (as applicable).

1.2. Notice of Permitted Extension.

1.2.1. In order to request a Permitting Delay or Transmission Delay (individually and collectively, “Delay”), Seller shall provide Buyer with Notice of the requested Delay by the earlier of (a) the date that is thirty-four (34) months after the [Execution Date] [For Category 3 Projects that do not have an Active Interconnection Study prior to the Execution Date: Interconnection Study Completion Date] and (b) within three (3) Business Days of the date that Seller becomes aware of, or reasonably should have become aware of, the circumstances giving rise for the applicable Delay, which Notice must clearly identify the Delay being requested and include information necessary for Buyer to verify the qualification of the Delay, including any information requested pursuant to Section 1.1.4 Buyer shall use reasonable discretion to grant or deny the requested extension, and shall provide Seller Notice of its decision within ten (10) Business Days of Notice from Seller.

1.2.2. In the case of a Force Majeure Delay, Seller shall provide Notice as specified in Section 10.2.

1.2.3. In the case of an extension of the Guaranteed Commercial Operation Date by the payment of Daily Delay Liquidated Damages, Seller must, at the earliest possible time, but no later than five (5) Business Days before the commencement of the proposed Guaranteed Commercial Operation Date extension, provide Buyer with Notice of its election to extend the Guaranteed Commercial Operation Date along with Seller’s estimate of the duration of the extension and its payment of Daily Delay Liquidated Damages for the full estimated Guaranteed Commercial Operation Date extension period.

1.2.4. Notwithstanding anything to the contrary herein, Seller shall provide Notice to Buyer of the latest expected Commercial Operation Date of the Facility no later than sixty (60) days before the Commercial Operation Date.

2. CONTRACT CAPACITY AND QUANTITY; TERM; CONTRACT PRICE; BILLING

2.1. Contract Capacity and Nameplate Capacity. The Contract Capacity is specified in the Cover Sheet.

The Contract Capacity shall not exceed 3,000 kW. The Contract Capacity is subject to

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adjustment based on the Demonstrated Contract Capacity. The Nameplate Capacity is specified in the Cover Sheet. The Nameplate Capacity shall not exceed 5,000 kW.

2.2. Contract Quantity. The “Contract Quantity” during each Contract Year is the amount set forth for the applicable Contract Year in the “Delivery Term Contract Quantity Schedule”, set forth in the Cover Sheet, which amount is net of Station Use, and, for Excess Sale arrangements, Site Host Load.

2.2.1. One-Time and Annual Option to Decrease Contract Quantity. Seller shall have the option to decrease the Contract Quantity for any or all future Contract Years as provided herein: (a) one (1) time during the Delivery Term if the Contract Capacity is adjusted based on the Demonstrated Contract Capacity by providing Notice to Buyer of such decrease within ten (10) Business Days of Buyer’s Notice of such adjustment to the Contract Capacity or the date of the Engineer Report, as applicable; and (b) one (1) time each Contract Year by providing Notice to the Buyer of such decrease at least ninety (90) days prior to the start of the Contract Year for which the decrease applies. The adjusted amount shall thereafter be deemed to be the “Contract Quantity” for the applicable Contract Year(s) in the Delivery Term Contract Quantity Schedule.

2.2.2. One-Time Option to Increase Contract Quantity. Seller shall have a one (1) time option to be exercised only during either Contract Year 1 or Contract Year 2 of the Delivery Term to increase the Contract Quantity for any or all future Contract Years by providing Notice to Buyer of such increase at least ninety (90) days prior to the start of the Contract Year for which the increase applies. The adjusted amount shall thereafter be deemed to be the “Contract Quantity” for the applicable Contract Year(s) in the Delivery Term Contract Quantity Schedule.

Such Seller Notices with respect to the decrease or increase in the Contract Quantity pursuant to Section

2.2.1 or 2.2.2 shall contain an updated Delivery Term Contract Quantity Schedule and confirmation that Seller shall take action to update its forecasting Schedules pursuant to Appendix D.

2.3. Transaction. During the Delivery Term, Seller shall sell and deliver, or cause to be delivered, and Buyer shall purchase, the Product from the Facility at the Delivery Point, pursuant to Seller’s election in the Cover Sheet of a Full Buy/Sell or Excess Sale arrangement as described in paragraphs 2.3.1 and 2.3.2 below.:

2.3.1. Full Buy/Sell. If “Full Buy/Sell” is selected on the Cover Sheet, Seller agrees to sell to Buyer the Project’s gross output of Product, net of Station Use and transformer and transmission losses, at the Delivery Point. Seller shall purchase all Energy required to serve the Project’s Site Host Load, net of Station Use, from Buyer or applicable retail service provider pursuant to its applicable retail rate schedule. Seller agrees to convey to Buyer all attributes and benefits associated with or attributable to the Product sold to Buyer.

2.3.2. Excess Sale. If “Excess Sale” is selected on the Cover Sheet, Seller agrees to sell to Buyer the Project’s gross output of Product, net of Station Use, Site Host Load and transformer and transmission losses, at the Delivery Point. Seller agrees to convey to Buyer all attributes and benefits associated with or attributable to the Product sold to Buyer.

In no event shall Seller have the right to procure the Product from sources other than the Facility for sale or delivery to Buyer under this Agreement or substitute such Product.

Buyer shall have no obligation to receive or purchase the Product from Seller prior to the Commercial Operation Date or after the end of the Delivery Term.

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2.4. Term of Agreement; Survival of Rights and Obligations.

2.4.1. The term shall commence upon the Execution Date of this Agreement and shall remain in effect until the conclusion of the Delivery Term unless terminated sooner pursuant to Sections 10.4 or 13 of this Agreement (the “Term”).

2.4.2. Notwithstanding anything to the contrary in this Agreement, the rights and obligations that are intended to survive a termination of this Agreement are all of those rights and obligations that this Agreement expressly provides survive any such termination and those that arise from Seller’s or Buyer’s covenants, agreements, representations, and warranties applicable to, or to be performed, at or during any time before or as a result of the termination of this Agreement, including: (a) all obligations to pay in full amounts due, including under Sections 2.6, 11, 12.3, 13 and 14, (b) all obligations to post, maintain, return and release the Collateral Requirement under Section 12, (c) Seller’s obligations under Sections 3.1, 3.2, 3.3 and 5.11, (d) all rights and obligations under Sections

5.4, 6, 9.2.7, and 13.8.4, and any other indemnity rights, (e) the limitations on liability set forth in Section 7, (f) all rights and obligations under Section 15, (g) all rights and obligations under Section

13.8, (h) the governing law set forth in Section 17, and (i) the dispute resolution provisions set forth in Section 18.

2.5. Delivery Term. The Seller shall deliver the Product from the Facility to Buyer for the period of Contract Years specified in the Cover Sheet (“Delivery Term”), which shall commence on the Commercial Operation Date under this Agreement and continue until the end of the last Contract Year unless terminated by the terms of this Agreement. The Commercial Operation Date shall occur only when all of the following conditions precedent have been satisfied:

2.5.1. the Facility’s status as an Eligible Renewable Energy Resource is demonstrated by Seller’s receipt of pre-certification from the CEC;

2.5.2. if required pursuant to Section 3.7, the Facility’s status as a Qualifying Facility is demonstrated by Seller’s receipt of a docket number assigned to Seller’s filing of FERC Form 556;

2.5.3. as evidence of the Commercial Operation Date, the Parties shall execute and exchange the “Commercial Operation Date Confirmation Letter” attached as Appendix B;

2.5.4. Seller has provided to Buyer the Collateral Requirement specified in Section 12;

2.5.5. Seller has provided to Buyer all documents which demonstrate that Seller has satisfied all of the CAISO agreement, interconnection agreement, and metering requirements in Sections 5.1 and 5.2 and has enabled Buyer to schedule the Facility with the CAISO for the Facility’s full unrestricted output;

2.5.6. Seller has furnished to Buyer all insurance documents required under Section 9;

2.5.7. Seller has delivered to Buyer the first report required under Section 5.12.4;

2.5.8. Seller has satisfied all of the telemetry requirements required to be satisfied by the Commercial Operation Date under Section 5.10 and Appendix E;

2.5.9. the Demonstrated Contract Capacity has been determined in accordance with Appendix J;

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2.5.10. [the Demonstrated Nameplate Capacity has been determined in accordance with Appendix J; ] [Only for Facilities with a Nameplate Capacity greater than three megawatts]

2.5.11. Seller has provided sixty (60) days Notice prior to the Commercial Operation Date as required under Section 1.1.1;

2.5.12. Seller has delivered to Buyer any currently operative filings at FERC, including any rulings, orders or other pleadings or papers filed by FERC, concerning the qualification of the Facility as a Qualifying Facility.

2.6. Contract Price.

2.6.1. The price for Delivered Energy (the “Contract Price”) is specified in the Cover Sheet.

2.6.2. [In no event shall Buyer be obligated to receive or pay for, in any hour, any Delivered Energy that exceeds one hundred ten percent (110%) of the Contract Capacity and the Contract Price for such Delivered Energy in excess of such one hundred ten percent (110%) of the Contract Capacity (“Surplus Delivered Energy”) shall be adjusted to be zero dollars ($0) per kWh.] [For all Facilities except those with a Nameplate Capacity greater than three megawatts] [In no event shall Buyer have any liability for, or be obligated to receive or pay for, in any hour, any Delivered Energy that exceeds the lesser of (a) one hundred ten percent (110%) of the Contract Capacity or (b) 3 MW (the “Payment Limit”). If during any Settlement Interval, Delivered Energy exceeds the Payment Limit for that Settlement Interval (“Surplus Delivered Energy”), then the Contract Price for any Surplus Delivered Energy in excess of the Payment Limit shall be adjusted to be zero dollars ($0) per kWh for that Settlement Interval, and if there is Negative LMP during such Settlement Interval, Seller shall pay to Buyer an amount equal to the absolute value of the Negative LMP times such Surplus Delivered Energy (“Negative LMP Costs”).] [Only for Facilities with a Nameplate Capacity greater than three megawatts]

2.6.3. In any Contract Year, if the amount of Delivered Energy and Paid Curtailed Product exceeds one hundred twenty percent (120%) of the annual Contract Quantity the Contract Price for such Delivered Energy in excess of such one hundred twenty percent (120%) shall be adjusted to be seventy-five percent (75%) of the applicable Contract Price.

2.7. Billing.

2.7.1. The amount of Product purchased by Buyer from Seller under this Agreement at the Delivery Point is determined by the meter specified in Section 5.2.1 or Check Meter, as applicable. Throughout the Delivery Term and subject to and in accordance with the terms of this Agreement, Buyer shall pay the Contract Price to Seller for the Product; provided that Buyer has no obligation to purchase from Seller any Product that is not or cannot be delivered to the Delivery Point as a result of any circumstance, including: (a) an outage of the Facility; (b) a Force Majeure under Section 10; or (c) a reduction or curtailment of deliveries in accordance with Sections 5.8.1(a) or (b). Buyer will not be obligated to pay Seller for any Product that Seller delivers in violation of Section 5.8, including any Product Seller delivers in excess of the amount specified in any Curtailment Order. [For Projects utilizing Eligible Directed Biogas] [Buyer will not be obligated to pay Seller for any Product generated or created with natural gas delivered by Seller

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through a Common Carrier Pipeline that is not Eligible Directed Biogas. If Seller withdraws more natural gas from the Common Carrier Pipeline than Eligible Directed Biogas is injected to the Common Carrier Pipeline on Seller’s behalf, the excess will be considered natural gas.

If, for any month during the Delivery Term, the amount of natural gas withdrawn from the pipeline is greater than the amount of Eligible Directed Biogas injected to the Common Carrier Pipeline, the monthly payment will be decreased, as set forth in Section 2.7.3, as a Reduction for Nonuse of Fuel Resource Category Fuel. If, following receipt of the CEC Common Carrier Pipeline Report, Buyer determines that Buyer paid for Product generated or created with fuel not from a Fuel Resource Category, then the amount(s) paid by Buyer for such Product will be considered an overpayment to Seller and will be deducted by Buyer from Seller’s subsequent invoice(s) in accordance with Section 2.7.6. If Buyer determines that there has been such an overpayment to Seller (a) in Seller’s final invoice or (b) in an amount that exceeds the amount due in Seller’s final invoice, then such overpayment will be deducted by Buyer from the collateral posted by Seller.] [For Projects using fuel for Station Use that is not from a Fuel Resource Category] [Buyer will not be obligated to pay Seller for any Product generated or created with fuel that is not from a Fuel Resource Category. If, for any month during the Delivery Term, the Project utilizes fuel that is not from a Fuel Resource Category, the monthly payment will be decreased, as set forth in Section 2.7.3, as a Reduction for Nonuse of Fuel Resource Category Fuel. If, following receipt of the [Quarterly Fuel Attestation or] [For all Projects with a High Hazard Fuel Requirement] the Annual Fuel Attestation Report, Buyer determines that Buyer paid for Product generated or created with fuel not from a Fuel Resource Category, then the amount(s) paid by Buyer for such Product will be considered an overpayment to Seller and will be deducted by Buyer from Seller’s subsequent invoice(s) in accordance with Section

2.7.6. If Buyer determines that there has been such an overpayment to Seller (a) in Seller’s final invoice or (b) in an amount that exceeds the amount due in Seller’s final invoice, then such overpayment will be deducted by Buyer from the collateral posted by Seller.]

2.7.2. For the purpose of calculating monthly payments under this Agreement, the amount recorded by the meter specified in Section 5.2.1 or Check Meter, as applicable, will be time- differentiated according to the time period and season of the receipt of the Product by Buyer from Seller, as set forth in Appendix C, and the pricing will be weighted by the Payment Allocation Factors.

2.7.3. The monthly payment will equal the sum of the monthly TOD Period payments for all TOD Periods in the month, [minus (b) the Negative LMP Costs] [Only for Facilities with a Nameplate Capacity greater than three megawatts] (“Monthly TOD Payment”). Each Monthly TOD Payment will be calculated pursuant to the following formula, where “n” is the TOD Period being calculated:

TOD PERIODn PAYMENT = A × B × (C + D - E)
Where:

A = The then applicable Contract Price, in $/MWh.

B = The Payment Allocation Factor for the TOD Period being calculated.

C = The sum of Energy recorded by the meter specified in Section

5.2.1 or Check Meter, as applicable, in all hours for the TOD Period being calculated, in MWh.

D = Paid Curtailed Product

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E = Any Energy produced by the Facility for which Buyer is not obligated to pay Seller as set forth in Section 2.7.1.
[For Projects utilizing Eligible Directed Biogas or For Projects using fuel for Station Use that is not from a Fuel Resource Category] [The monthly payment will equal the difference between (a) and (b) (calculated as (a) minus (b)), where (a) is the Monthly TOD Payment calculated using the equation shown above and (b) is the proportion of Energy generated for a month that can be attributed to Fuel Use that is not from a Fuel Resource Category against the total Energy Input for the month as set forth in Appendix K-3 (this item
(b) is hereby designated as the “Reduction for Nonuse of Fuel Resource Category Fuel” and is represented by the equation below). Each monthly Reduction for Nonuse of Fuel Resource Category Fuel shall be calculated as follows:

Reduction for Nonuse of Fuel Resource Category Fuel = Monthly TOD Payment x (F/G) Where:

F = Fuel Use for the month not from a Fuel Resource Category in MMBTUs as attested to in the Multi-Fuel Report.

G = Total Energy Input for the month in MMBTUs as attested to in the Multi-Fuel Report.]

2.7.4. On or before the last Business Day of the calendar month immediately following each calendar month of the Delivery Term, Seller shall determine the amount of Product received by Buyer pursuant to this Agreement for each monthly period and issue an invoice showing the calculation of the payment due. Seller shall also provide to Buyer: (a) records of metered data, including CAISO metering and transaction data sufficient to document and verify the generation of Product by the Facility for any CAISO settlement time interval during the preceding months; (b) access to any records, including invoices or settlement data from the CAISO; and (c) an invoice, in the format specified by Buyer. [The invoices for the calendar months of March, June, September, and December of each Calendar Year shall include the Quarterly Fuel Attestation. Failure to include the applicable Quarterly Fuel Attestation with the respective monthly invoice shall render the invoice incomplete and not payable by Buyer.] [For all Projects with a High Hazard Fuel Requirement]

2.7.5. Buyer shall make payment of each invoice, adjusted by any amounts owed by or to Seller under this Agreement, on or before the later of the last Business Day of the month in which Buyer receives an invoice from Seller, or the tenth (10th) Business Day after receipt of the invoice; provided that Buyer shall have the right, but is not obligated, to apply any amounts due to Buyer from Seller for any charges incurred under this Agreement, for past due bills for electric service or for Buyer services, towards any amount owed to Seller under this Agreement. In the event Buyer applies any amounts due to Buyer from Seller towards an invoice issued by Seller, Buyer shall provide an explanation of the amounts Buyer has applied towards Seller’s invoice.

2.7.6. 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, with Notice of the objection given to the other Party. 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. In the event adjustments to payments are required as a result of inaccurate meter(s), Buyer shall determine the correct amount of Product received under this Agreement during any period of inaccuracy and recompute the amount due from Buyer to Seller for the Product delivered during the period of inaccuracy. The Parties agree to use

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good faith efforts to resolve the dispute or identify the adjustment as soon as possible. Upon resolution of the dispute or calculation of the adjustment, any required payment shall be made within thirty (30) days of such resolution along with simple interest accrued at the Interest Rate from and including the due date, but excluding the date paid. Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from subsequent payments, with simple interest accrued at the Interest Rate from and including the date of such overpayment, but excluding the date repaid or deducted by the Party receiving such overpayment. Any dispute with respect to an invoice is waived unless the other Party is notified in accordance with this Section 2.7.6 within twelve (12) months after the invoice is rendered or any specific adjustment to the invoice is made [,except for invoice disputes under Section 3.3 which are waived unless the other Party is notified in accordance with this Section 2.7.6 within twenty-four (24) months after the invoice is rendered or any specific adjustment to the invoice is made] [bracketed provision for Facilities (1) 0.5 MW or greater and (2) eligible for a CAISO revenue meter.]. If an invoice is not rendered by Seller within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.

2.7.7. Notwithstanding anything to the contrary in Section 2.7.5, Buyer may issue an invoice to Seller for any amount due under this Agreement. Unless explicitly stated otherwise, payment of such invoice shall be made within thirty (30) days of receipt of such invoice.

2.7.8. Unless otherwise agreed to in writing by the Parties, any payment due under this Agreement will be satisfied by issuance of a check, via Automated Clearing House transfer or via wire transfer.

Notwithstanding anything to the contrary set forth in this Agreement, neither Party is obligated to make payment on any invoice until the cumulative amount due exceeds fifty dollars ($50.00), except that both Parties shall pay all amounts due pursuant to this Agreement at least once per calendar year no later than thirty (30) days after the end of the calendar year.

2.7.9. All interest paid or payable under this Agreement shall be computed as simple interest using the Interest Rate and, unless specified otherwise in this Agreement, shall be paid concurrently with the payment or refund of the underlying amount on which such interest is payable.

2.8. Title and Risk of Loss. Title to and risk of loss related to the Product from the Facility shall transfer from Seller to Buyer from the Delivery Point. Seller warrants that it will deliver to Buyer the Product from the Facility free and clear of all liens, security interests, claims and encumbrances or any interest therein or thereto by any person arising prior to the Delivery Point.

3. BIOMETHANE TRANSACTIONS; RESOURCE ADEQUACY BENEFITS; ERR REQUIREMENTS; QUALIFYING FACILITY STATUS

3.1. Biomethane Transactions

3.1.1. For all electric generation using Biomethane as fuel, Seller shall transfer to Buyer sufficient renewable and environmental attributes of Biomethane production and capture to ensure that there are zero (0) net emissions associated with the production of electricity from the generating facility using the Biomethane.

3.1.2. For all electric generation using Biomethane as fuel, neither Buyer nor Seller may make a marketing, regulatory, or retail claim that asserts that a procurement contract to which that entity was a party resulted, or will result, in greenhouse gas reductions related to the destruction of methane if the capture and destruction is required by Law. If the capture and

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destruction of the Biomethane is not required by Law, neither Buyer nor Seller may make a marketing, regulatory, or retail claim that asserts that a procurement contract to which that entity was a party resulted, or will result, in greenhouse gas reductions related to the destruction of methane, unless the environmental attributes associated with the capture and destruction of the Biomethane pursuant to that contract are transferred to Buyer and retired on behalf of the retail customers consuming the electricity associated with the use of that Biomethane, or unless Seller's procurement contract with the source of Biomethane prohibits the source of Biomethane from separately marketing the environmental attributes associated with the capture and destruction of the Biomethane sold pursuant to that contract, and such attributes have been retired.

3.2. Conveyance of Product. Throughout the Delivery Term, Seller shall provide and convey the Product to Buyer in accordance with the terms of this Agreement, and Buyer shall have the exclusive right to the Product. Seller shall, at its own cost, take all actions and execute all documents or instruments that are reasonable and necessary to effectuate the use of the Renewable Energy Credits, Resource Adequacy Benefits, if any, and Capacity Attributes, if any, for Buyer’s benefit throughout the Delivery Term.

3.3. WREGIS. [WREGIS Requirements for Facilities (1) 0.5 MW or greater; and (2) eligible for a CAISO revenue meter] Seller shall, at its sole expense take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Energy produced by the Facility are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefit. Seller shall comply with all Laws, including, without limitation, the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. Seller shall be deemed to have satisfied the warranty in Section 3.3.9; provided that Seller fulfills its obligations under Sections

3.3.1 through 3.3.7 below.

3.3.1. Within thirty (30) days of 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 Delivery Term. Seller shall transfer the WREGIS Certificates using “Forward Certificate Transfers” (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the 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 Buyer’s WREGIS Account.

3.3.2. Seller shall cause Forward Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules. Since WREGIS Certificates will only be created for whole MWh amounts of Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate.

3.3.3. Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Delivered Energy for such calendar month as evidenced by the Project’s metered data.

3.3.4. Due to the ninety (90) day delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 2.7, Buyer shall pay an invoice payment for a given month in accordance with Section 2.7 before the WREGIS Certificates for such month are

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formally transferred to Buyer in accordance with the WREGIS Operating Rules and this Section 3.3.

Notwithstanding this delay, Buyer shall have all right and title to all such WREGIS Certificates upon payment to Seller in accordance with Section 2.7.

3.3.5. A “WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Delivered Energy for the same calendar month (“Deficient Month”). If any WREGIS Certificate Deficit is caused, or the result of any action or inaction, by Seller, then the amount of Delivered Energy in the Deficient Month shall be reduced by the amount of the WREGIS Certificate Deficit for the purposes of calculating Buyer’s payment(s) to Seller under Section 2.7 and the Guaranteed Energy Production for the applicable Performance Measurement Period. Any amount owed by Seller to Buyer because of a WREGIS Certificate Deficit shall be made as an adjustment to Seller’s invoice to Buyer in accordance with Section 2.7, and Buyer shall net such amount against Buyer’s subsequent payment(s) to Seller.

3.3.6. Without limiting Seller’s obligations under this Section 3.3, if a WREGIS Certificate Deficit is caused solely by an error or omission of WREGIS, the Parties shall cooperate in good faith to cause WREGIS to correct its error or omission.

3.3.7. If WREGIS changes the WREGIS Operating Rules after the Execution Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 3.3 after the Execution Date, the Parties promptly shall modify this Section 3.3 as reasonably required to cause and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Delivered Energy in the same calendar month.

3.3.8. Buyer, at its sole discretion, shall have the right to direct Seller to cause and allow Buyer to be the “Qualified Reporting Entity” and “Account Holder” (as such terms are defined by WREGIS) for the Facility.

3.3.9. Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable Energy Generation Information System will be taken prior to the first delivery under the contract. [Standard term and condition that “may not be modified” pursuant to prior Commission decisions, including Decision 07-11- 025, Decision 08-08-028 and Decision 10-03-021, as modified by Decision 11-01-025]

3.3 WREGIS. [WREGIS Requirements for Facilities that are (1) less than 1 MW and (2) ineligible for a CAISO revenue meter.] With respect to WREGIS, Seller shall cause and allow Buyer to be the “Qualified Reporting Entity” and “Account Holder” (as such terms are defined by WREGIS) for the Facility within thirty (30) days after the Commercial Operation Date. [CCA] to use either this version of Section 3.3 or the longer version of 3.3, depending on the facility]

3.4. Resource Adequacy Benefits.

3.4.1. During the Delivery Term, Seller grants, pledges, assigns and otherwise commits to Buyer all of the Contract Capacity, including Capacity Attributes, if any, from the Project to enable Buyer to meet its Resource Adequacy or successor program requirements, as the CPUC, CAISO or other regional entity may prescribe (“Resource Adequacy Requirements”).

3.4.2. If providing any Resource Adequacy, Seller shall comply with the Resource Adequacy requirements set forth in the CAISO Tariff, including Section 40 thereof, as may be changed from time to time.

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3.4.3. Notwithstanding Section 3.4.4, Seller shall have the option but not the obligation to obtain Full Capacity Deliverability Status for the Project. If the Project achieves Full Capacity Deliverability Status, Seller, at its option, may make a one-time, irrevocable election to utilize the full capacity deliverability payment allocation factors set forth in Appendix C by providing Notice to Buyer of such election within sixty (60) days of achieving Full Capacity Deliverability Status (the “Full Capacity Option Notice”), which election shall be effective as specified in the definition of “Payment Allocation Factors.” For avoidance of doubt, Interim Deliverability Status and Partial Capacity Deliverability Status do not qualify for Full Capacity Deliverability Status.

3.4.4. Seller shall cooperate in good faith with, and comply with unburdensome requests of, Buyer and the CAISO to enable Buyer and/or the CAISO to obtain Resource Adequacy and assign Capacity Attributes and Resource Adequacy Benefits to the Facility.

3.5. Eligible Renewable Resource. Seller shall take all actions necessary to achieve and maintain status as an Eligible Renewable Energy Resource or ERR. Within thirty (30) days after the Commercial Operation Date, Seller shall file an application or other appropriate request with the CEC for CEC Certification for the Facility. Seller shall expeditiously seek CEC Certification, including promptly responding to any requests for information from the requesting authority.

3.6. Compliance Expenditure Cap. If Seller establishes to Buyer’s reasonable satisfaction that a change in Laws occurring after the Execution Date has increased Seller’s cost above the cost that could reasonably have been contemplated as of the Execution Date to take all actions to comply with Seller’s obligations under the Agreement with respect to obtaining and maintaining CEC Pre-Certification, CEC Certification or CEC Verification, then Seller’s required out-of-pocket expenses are limited to Twenty-Five Thousand dollars ($25,000.00) in the aggregate each year of the Term (“Compliance Expenditure Cap”) between the Execution Date and the last day of the Term.

3.6.1. Any actions required for Seller to comply with its obligations set forth in Section 3.6, the cost of which will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “Compliance Actions.”

3.6.2. 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 promptly provide Notice to Buyer and documentation to demonstrate the expenses incurred up to the Compliance Expenditure Cap and such anticipated out-of-pocket expenses.

3.6.3. Buyer will have ninety (90) days to evaluate such Notice and documentation (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (a) agree to reimburse Seller for all or some portion of the costs that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs, the “Accepted Compliance Costs”), or (b) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller. Notwithstanding the foregoing, if Buyer, in its sole discretion, elects to seek CPUC approval before Buyer agrees to reimburse anticipated out-of-pocket expenses that exceed the Compliance Expenditure Cap or waive Seller’s obligation to take such Compliance Actions, Buyer may seek CPUC approval, during which time period Seller is not obligated to take any Compliance Actions described in the Notice.

3.6.4. If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall reimburse Seller for Seller’s actual costs to effect the Compliance Actions, not to exceed the Accepted Compliance Costs.

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3.7. FERC Qualifying Facility Status. Seller shall take all actions, including making or supporting timely filings with the FERC necessary to obtain or maintain the Qualifying Facility status of the Facility throughout the Term; provided, however, that this obligation does not apply to the extent Seller is unable to maintain Qualifying Facility status using commercially reasonable efforts because of (a) a change in PURPA or in regulations of the FERC implementing PURPA occurring after the Execution Date, or (b) a change in Laws directly impacting the Qualifying Facility status of the Facility occurring after the Execution Date; and provided further that Seller shall not be obligated under this Section 3.7 to take any actions or make any filings to the extent that no action or filing is required by FERC to obtain, or maintain the Qualifying Facility status of the Facility.

4. REPRESENTATION AND WARRANTIES; COVENANTS

4.1. Representations and Warranties. On the Execution Date, each Party represents and warrants to the other Party that:

4.1.1. it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation;

4.1.2. the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, or any contracts to which it is a party;

4.1.3. this Agreement and each other document executed and delivered in accordance with this Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms;

4.1.4. it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt;

4.1.5. there is not pending or, to its knowledge, threatened against it or any of its Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; and

4.1.6. it is a “forward contract merchant” within the meaning of Title 11 of the United States Code (as in effect as of the Execution Date of this Agreement).

4.2. General Covenants. Each Party covenants that throughout the Term of this Agreement:

4.2.1. it shall continue to be duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation;

4.2.2. it shall maintain (or obtain from time to time as required, including through renewal, as applicable) all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and

4.2.3. it shall perform its obligations under this Agreement in a manner that does not violate any of the terms and conditions in its governing documents, or any contracts to which it is a party.

4.3. Seller’s Representations, Warranties and Covenants. In addition to the representations, warranties and covenants specified in Sections 4.1 and 4.2, Seller makes the following additional representations, warranties and covenants to Buyer, as of the Execution Date:

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4.3.1. Seller has not participated in the Self-Generation Incentive Program (as defined in CPUC Decision 01-03-073) and/or other similar California ratepayer subsidized program relating to energy production (other than grants from the Electric Program Investment Charge) or rebated capacity costs with respect to the Facility and Seller does not maintain a Program Participation Request for the Project in the Renewable Market Adjusting Tariff program (as established by CPUC Decision 13-05-034);

4.3.2. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Project qualifies and is certified by the CEC as an Eligible Renewable Energy Resource (“ERR”) as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law; [Standard term and condition that “may not be modified” pursuant to prior Commission decisions, including Decision 07-11-025, Decision 08-08-028 and Decision 10-03-021, as modified by Decision 11-01-025]

4.3.3. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law; [Standard term and condition that “may not be modified” pursuant to prior Commission decisions, including Decision 07-11-025, Decision 08-08-028 and Decision 10-03-021, as modified by Decision 11-01-025]

4.3.4. The term “commercially reasonable efforts” as used in Section 4.3.2 and 4.3.3 means efforts consistent with and subject to Section 3.6;

4.3.5. Subject to Section 3.7, throughout the Term of this Agreement, the Facility shall qualify as a Qualifying Facility.

4.3.6. Throughout the Term, Seller shall: (a) own and operate the Facility; (b) deliver the Product to Buyer to the Delivery Point free and clear of all liens, security interests, claims and encumbrances or any interest therein or thereto by any individual or entity; and (c) hold the rights to all of the Product;

4.3.7. Seller is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the Buyer in so doing, and is capable of assessing the merits of, and understands and accepts, the terms, conditions and risks of this Agreement;

4.3.8. Throughout the Delivery Term: (a) Seller will not convey, transfer, allocate, designate, award, report or otherwise provide any or all of the Product, or any portion thereof, or any benefits derived therefrom, to any party other than Buyer; and (b) Seller will not start-up or operate the Facility per instruction of or for the benefit of any third party, except as required by other Laws or, in the case of Excess Sale arrangements, to serve any Site Host Load;

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4.3.9. Seller has not relied on any promises, representations, statements or information of any kind that are not contained in this Agreement in deciding to enter into this Agreement;

4.3.10. The construction of the Facility shall comply with all Laws, including applicable state and local laws, building standards, and interconnection requirements;

4.3.11. No other person or entity, including any other generating facility has any rights in connection with Seller’s interconnection agreement or Seller’s Interconnection Facilities and no other persons or entities shall have any such rights during the Term;

4.3.12. During the Term, Seller shall not allow any other person or entity, including any other generating facility, to use Seller’s Interconnection Facilities; and

4.3.13. [Seller has considered long-term climate risk with respect to the Project, consistent with CPUC Decision 20-08-046] [Only for Agreements with a Delivery Term of fifteen or more Contract Years, as specified in Section A(i) of the Cover Sheet. [Add “.” or “;” as applicable]

4.3.14. [For Projects utilizing Eligible Directed Biogas and Biomethane delivered by dedicated pipeline] [The Eligible Directed Biogas or Biomethane purchased for use at Seller’s Facility complies with all applicable pipeline tariff rules, including, if any, quality specifications.] [Add “.” or “;” as applicable]

4.3.15. [For Category 3 Projects that have a completed but not effective Active Interconnection Study by the Execution Date] [An Interconnection Study has been completed for the Project prior to the Execution Date, but such Interconnection Study is not effective as of the Execution Date, and such Interconnection Study resulted in a determination that, with the identified interconnection upgrades:
(a) the transmission or distribution grid that would serve as the Interconnection Point is adequate; (b) the Project meets all applicable state and local laws, building standards, and Transmission/Distribution Owner’s interconnection requirements; and (c) the aggregate of all electric generating facilities on the distribution circuit would not adversely impact Transmission/Distribution Owner’s operation and load restoration efforts of the electric system.] [For Category 3 Projects that do not have an Active Interconnection Study by the Execution Date] [Seller shall submit a new Interconnection Study application for the Project no later than thirty (30) days from the Execution Date and Seller shall Notify [CCA] of: (a) the interconnection queue position number within five (5) Business Days from receipt of such number, and (b) the Interconnection Study Completion Date no later than five (5) Business Days from the Interconnection Study Completion Date.]

4.4. Seller’s Fuel Resource Category Representations, Warranties and Covenants.

4.4.1. Seller hereby represents, warrants and covenants to Buyer that the fuel used to generate electricity and if applicable, Useful Thermal Energy Output from the Facility to serve Site Host Load, Station Use and generate Energy for sale to Buyer (“Fuel Use”) conforms and, throughout the Delivery Term, will conform to the definition of the Fuel Resource Category selected in Section A(i) of the Cover Sheet, subject to the Fuel Resource Requirements [Add the following bracketed language for Projects with a High Hazard Fuel Requirement: [and the High Hazard Fuel Requirement]] outlined in Section 4.4.2 [Add the following bracketed language for Projects using fuel for Station Use that is not from a Fuel Resource Category: [; provided that, Seller shall not be in breach of this Section

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4.4.1 if the Project uses fuel that is not from a Fuel Resource Category solely for Station Use.]]

4.4.2. [For all Projects except Projects with a High Hazard Fuel Requirement] [All fuel used by the Facility [Add the following bracketed language for Projects using fuel for Station Use that is not from a Fuel Resource Category: [,except for fuel used for Station Use,]] shall meet the definition of a Fuel Resource Category as defined in this Agreement (the “Fuel Resource Requirements”). Seller hereby represents, warrants, and covenants to Buyer that, on an annual basis throughout the Delivery Term, at least eighty percent (80%) of Fuel Use, measured in mmBTU, during each Contract Year shall be from the Fuel Resource Category identified in Section A(i) of the Cover Sheet, and no more than twenty percent (20%) of such Fuel Use shall be from one of the other Fuel Resource Categories; provided that, if Seller has elected to use Category 2 (Dairy) as the Facility’s fuel resource, Seller shall not use any other Fuel Resource Category at the Facility [Add the following bracketed language for Projects using fuel for Station Use that is not from a Fuel Resource Category: [,except for fuel used for Station Use]]. [Add the following bracketed language for Projects utilizing Eligible Directed Biogas: [Seller further represents, warrants and covenants that Fuel Use shall not include natural gas or Common Carrier Pipeline Biomethane that is not Eligible Directed Biogas] [Add the following bracketed language for Projects using fuel for Station Use that is not from a Fuel Resource Category: [, except for fuel used for Station Use]]. Seller shall operate the Facility in compliance with the Fuel Resource Requirements during each Contract Year.] [For all Projects with a High Hazard Fuel Requirement] [Seller hereby represents, warrants, and covenants to Buyer that, throughout the Delivery Term, at least eighty percent (80%) of Fuel Use, measured in Bone Dry Tons, that is delivered to the Facility and used by the Facility during each Calendar Year shall be from Fuel Resource Category 3 as identified in Section A(i) of the Cover Sheet, and no more than twenty percent (20%) of the remaining Fuel Use shall be from one of the other Fuel Resource Categories[Add the following bracketed language for Projects using fuel for Station Use that is not from a Fuel Resource Category: [; provided further that all fuel used by the Facility[, except for fuel used for Station Use,]] shall meet the definition of a Fuel Resource Category as defined in this Agreement (“Fuel Resource Requirements”), as measured pursuant to Appendix L.

Sixty percent (60%) of Fuel Use, measured in Bone Dry Tons, that is delivered to the Facility and used by the Facility during each Calendar Year, shall be from High Hazard Fuel, as measured pursuant to Appendix L (“High Hazard Fuel Requirement”). Seller shall operate the Facility in compliance with both the Fuel Resource Requirements and the High Hazard Fuel Requirement during each Calendar Year.]

4.4.3. [For all Projects except Projects with a High Hazard Fuel Requirement] [Seller hereby represents, warrants, and covenants that no later than thirty (30) days after the last day of each Contract Year (“Annual Fuel Attestation Due Date”), Seller shall provide an attestation of the Project’s compliance with the Fuel Resource Requirements for such Contract Year in the form of Appendix L (“Fuel Attestation”). For each two week period (or portion thereof) after the Annual Fuel Attestation Due Date that Seller fails to deliver to Buyer the Annual Fuel Attestation, Seller shall pay to Buyer, as liquidated damages and not as a penalty, one thousand dollars ($1,000); provided that Seller shall pay such liquidated damages for a period not to exceed one-hundred twenty (120) days after the Annual Fuel Attestation Due Date (“Annual Fuel Attestation Deadline”). The Parties acknowledge that the damages sustained by Buyer associated with Seller’s failure to deliver the Annual Fuel Attestation by the Annual Fuel Attestation Due Date would be difficult or impossible to determine, or that obtaining an adequate remedy would be unreasonably time consuming or expensive, and therefore agree that Seller shall pay Buyer as liquidated damages the bi-weekly amount

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specified in the preceding sentence which is intended to compensate Buyer for Seller’s failure to perform.]
[For all Projects with a High Hazard Fuel Requirement] [Seller shall prove to Buyer that the Project has satisfied the Fuel Resource Requirements and High Hazard Fuel Requirement for each Calendar Year. Seller shall submit to Buyer an Annual Fuel Attestation for each Calendar Year no later than January 31st of the next Calendar Year (“Annual High Hazard Fuel Attestation Deadline”) in the form of Appendix L, including the Annual Fuel Usage Log in the format provided by the Buyer (collectively, “Annual Fuel Attestation”), setting forth, among other things, the specific designated High Hazard Zones(s) from which its High Hazard Fuel was harvested and the percentage of total High Hazard Fuel delivered to the Project that came from each referenced High Hazard Zone(s). Seller shall submit to Buyer’s designated recipient its Annual Fuel Attestation no later than the Annual High Hazard Fuel Attestation Deadline. Each Annual Fuel Attestation must be complete, not materially modified, and signed by an officer of the Seller. No later than the Annual High Hazard Fuel Attestation Deadline, Seller shall also obtain and provide, at Seller’s sole expense, a verification from a Registered Professional Forester who shall, by his or her signature, attest to the accuracy of the source and volume of High Hazard Fuel delivered as set forth in Seller’s Annual Fuel Attestation in the form of Appendix L-1 (“Verification of Fuel Source and Delivery”).

Failure to Submit

4.4.3.1.1. If Seller has not submitted the Annual Fuel Attestation and Verification of Fuel Source and Delivery by the Annual High Hazard Fuel Attestation Deadline, Seller shall be deemed to have failed the Fuel Resource Requirement and the High Hazard Fuel Requirement during such Calendar Year and Seller shall be subject to an Event of Default pursuant to Section 13.2.2.15.

Buyer’s Audit Rights. Buyer may reasonably rely on Seller’s properly completed and timely submitted Annual Fuel Attestations as evidence of Seller’s compliance with the applicable High Hazard Fuel Requirement and Fuel Resource Requirements. However, Buyer shall have the right to audit Seller’s records and conduct any on-site visit to confirm Seller’s compliance. Seller shall pay all reasonable expenses of Buyer in conducting such audit.

Buyer shall have the right to deduct and offset the costs of conducting such audit from Seller’s monthly invoices. Buyer’s audit shall include, but not be limited to, Buyer’s receipt and review of electronic copies of Seller’s invoices for purchased fuel, including the location from which the fuel was harvested, and the records of the Registered Professional Forester who signed the Verification of Fuel Source and Delivery.]

4.4.4. [For Category 3 Projects that utilize High Hazard Fuel to meet the Fuel Resource Requirements except Projects with a High Hazard Fuel Requirement] [Seller hereby represents, warrants, and covenants that no later than thirty (30) days after the last day of each Contract Quarter (“Quarterly Fuel Attestation Deadline”), Seller shall provide a Fuel Attestation for such Contract Quarter].
[For all Projects with a High Hazard Fuel Requirement] [Seller hereby represents, warrants, and covenants that, no later than three (3) Business Days before the twenty-fifth (25th) day of the month following the last month of each Calendar Quarter (“Quarterly High Hazard Fuel Attestation Deadline”), Seller shall provide a Quarterly Fuel Attestation in the Form of Appendix L, including the Quarterly Fuel Usage Log in the format provided by the Buyer (collectively, “Quarterly Fuel Attestation”) for each such Calendar Quarter.

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Failure to Submit

4.4.4.1.1. If Buyer does not receive Seller’s Quarterly Fuel Attestation with the applicable monthly invoice for March, June, September and/or December of each the Calendar Year, such month’s invoice shall be deemed incomplete and Buyer shall not be required to pay that invoice until the Quarterly Fuel Attestation is received. Upon receipt, Seller’s invoice shall be paid in the following monthly invoice cycle subject to Section

2.7.]

4.4.5. Seller hereby covenants that the information contained in its Annual Fuel Attestation shall be true, complete and correct. Buyer shall have the right to request and review documentation upon which Seller’s Annual Fuel Attestation is based. [Add the following bracketed language for Projects utilizing Eligible Directed Biogas] [With respect to Eligible Directed Biogas, such documentation includes: (a) copies of the Facility’s CEC Common Carrier Pipeline Report covering any portion of the applicable Contract Year, (b) fuel purchase agreements(s) for such Eligible Directed Biogas, which agreements may be redacted to omit confidential pricing information, (c) nomination records for verification of fuel input into Common Carrier Pipelines, and (d) meter data for the predominant fuel source and each Eligible Directed Biogas fuel source, and actual burn data, for verification of fuel output allocation set forth in the WREGIS Operating Rules, Section “Measuring and Verifying Output Allocation,” as amended from time to time.]

4.4.6. [For Projects utilizing Eligible Directed Biogas] [No later than April 1 st of each Contract Year,
Seller hereby covenants to deliver to Buyer a copy of the CEC Common Carrier Pipeline Report for the Facility for the preceding Contract Year. At Buyer’s election, Buyer may request from Seller copies of any confirmations, notices, requests for information, documentation, or any other written communications between the CEC and the Seller relating to or supporting any CEC Common Carrier Pipeline Report for the Facility (collectively, the “CCP Communications”).

Seller promptly shall comply with any such request made by Buyer.]

5. GENERAL CONDITIONS

5.1. CAISO Agreements; Interconnection Agreements; Scheduling. During the Delivery Term, Seller shall operate the Facility in compliance with the Transmission/Distribution Owner tariffs, the CAISO Tariff, and all Laws. Seller shall secure and maintain in full force all of the CAISO agreements, certifications and approvals required in order for the Facility to comply with the CAISO Tariff, including executing and maintaining, as applicable, a Participating Generator Agreement, Meter Service Agreement, interconnection agreement, and/or any other agreement necessary to deliver the Product to Buyer. Seller shall also comply with any modifications, amendments or additions to the applicable tariffs, protocols and Laws; provided that Seller shall be required to enter into a Participating Generator Agreement with the CAISO only if the Facility’s net capacity is 0.5 MW or greater or if the CAISO Tariff requires or provides Seller the option to enter into such an agreement. Seller shall arrange and pay independently for any and all necessary costs under a Participating Generator Agreement, Meter Service Agreement, interconnection agreement, and/or any other agreement necessary to deliver the Product to Buyer. Ninety (90) days prior to the Commercial Operation Date, Seller must provide Buyer with all operating information, consistent with manufacturers specifications, needed for the Buyer to register the Facility with the CAISO and for Buyer to serve as Scheduling Coordinator.

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5.2. Metering Requirements.

5.2.1. All output from the Project must be delivered through a single CAISO revenue meter. [For Projects utilizing Low-voltage Side Metering] [Subject to the provisions herein,] The CAISO revenue meter shall be located on the high-voltage side of the Project’s final step-up transformer nearest to the Interconnection Point (“High-voltage Side Metering”), and that meter must be dedicated exclusively to the Project; provided that, if the CAISO does not permit a revenue meter for the Facility, the Buyer shall specify a revenue quality meter for the Facility. [For Projects utilizing Low-voltage Side Metering] [As designated on the Cover Sheet, the Project will utilize Low-voltage Side Metering. All output from the Project shall be delivered through a single CAISO revenue meter located on the low-voltage side of the Project’s final step-up transformer nearest to the Interconnection Point (“Low-Voltage Side Metering”), and that meter must be dedicated exclusively to the Project. In addition,
(a) the Project shall not share a transformer with any other generator or load and (b) the Project’s CAISO revenue meter shall have the capability to be adjusted for the Transformer and Line Loss Correction Factor (as such term is defined by the CAISO Tariff), as required by the CAISO Tariff and CAISO Business Practice Manual for Metering.] All Product purchased under this Agreement must be measured by the Project’s CAISO revenue meter, or the revenue quality meter specified by Buyer, to be eligible for payment under this Agreement. Seller shall bear all costs relating to all metering equipment installed to accommodate the Project. [For Projects utilizing Low-voltage Side Metering] [Seller shall install and maintain throughout the Delivery Term all required metering arrangements, including obtaining and maintaining the CAISO approval for Low-voltage Side Metering, all at Seller’s sole cost.]
[For Projects utilizing Low-voltage Side Metering] [Seller shall, in accordance with Section 2.5.5, provide documentation to Buyer of the CAISO approval for the Project’s Low-voltage Side Metering, as a condition precedent to the Commercial Operation Date.] [For Projects utilizing Low-voltage Side Metering] [For the duration of each Contract Year, the CAISO revenue meter for the Project shall operate in accordance with the Applicable Standards and shall be programmed to properly apply, and shall properly apply, the Transformer and Line Loss Factor in accordance with the Applicable Standards.] [For Projects utilizing Low-voltage Side Metering] [No later than thirty (30) days after the last day of each Contract Year (“Annual Low-voltage Side Metering Attestation Deadline”), Seller shall provide an attestation in the form of Appendix N attesting that the CAISO revenue meter has been properly programmed to account for the Transformer and Line Loss Correction Factor and certifying to Buyer that the CAISO revenue meter for the Project has complied with the foregoing requirements in Section 5.2.1.2 above for such Contract Year (“Annual Low-voltage Side Metering Attestation”). At Buyer’s request, Seller shall provide to Buyer the applicable documentation upon which Seller’s Annual Low-voltage Side Metering Attestation is based.]

5.2.2. Buyer may, at its sole cost, furnish and install one Check Meter at the interconnection associated with the Facility at a location provided by Seller that is compliant with Buyer’s electric service requirements. The Check Meter must be interconnected with Buyer’s communication network to permit (a) periodic, remote collection of revenue quality meter data, and (b) back-up real time transmission of operating-quality meter data through the Telemetering System. In the event that Buyer elects to install a Check Meter, Buyer may compare the Check Meter data to the CAISO meter data. If the deviation between the

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CAISO meter data and the Check Meter data for any comparison is greater than 0.3%, Buyer may provide Notice to Seller of such deviation and the Parties shall mutually arrange for a meter check or recertification of the Check Meter or CAISO meter, as applicable.

Each Party shall bear its own costs for any meter check or recertification. Testing procedures and standards for the Check Meter will be the same as for a comparable Buyer- owned meter. Seller shall have the right to have representatives present during all such tests. The Check Meter, if Buyer elects to install a Check Meter, is intended to be used for back-up purposes in the event of a failure or other malfunction of the CAISO meter, and Check Meter data shall only be used to validate the CAISO meter data and, in the event of a failure or other malfunction of the CAISO meter, in place of the CAISO meter until such time that the CAISO meter is recertified.

5.2.3. In the case of Excess Sale arrangements, Buyer may, at its sole cost, furnish and install a net generation output meter at a location provided by Seller that is compliant with Buyer’s electric service requirements. Such meter must be interconnected with Buyer’s communication network to permit (a) periodic, remote collection of revenue quality meter data, and (b) back-up real time transmission of operating-quality meter data through the Telemetering System.

5.3. Meter Data. Seller hereby agrees to provide all meter data to Buyer in a form acceptable to Buyer, and consents to Buyer obtaining from the CAISO the CAISO meter data applicable to the Project and all inspection, testing and calibration data and reports. Seller shall grant Buyer the right to retrieve the meter readings from the CAISO Operational Meter Analysis and Reporting website and directly from the meter(s) at the Site.

5.4. Standard of Care. Seller shall: (a) maintain and operate the Facility and Interconnection Facilities, except facilities installed by Buyer, in conformance with all Laws and in accordance with Prudent Electrical Practices; (b) obtain any governmental authorizations and permits required for the construction and operation thereof; and (c) generate, schedule and perform transmission services in compliance with all applicable operating policies, criteria, rules, guidelines and tariffs and Prudent Electrical Practices. Seller shall reimburse Buyer for any and all losses, damages, claims, penalties, or liability Buyer incurs as a result of Seller’s failure to obtain or maintain any governmental authorizations and permits required for construction and operation of the Facility throughout the Term of this Agreement.

5.5. Access Rights.

5.5.1. Operations Logs. Seller shall maintain a complete and accurate log of all material operations and maintenance information on a daily basis. Such log shall include, but not be limited to, information on power production, fuel consumption, efficiency, availability, maintenance performed, outages, results of inspections, manufacturer recommended services, replacements, electrical characteristics of the generators, control settings or adjustments of equipment, protective devices, information and documentation related to Fuel Use and the Fuel Resource Requirements, and any other pertinent information that affects plant operations. Seller shall provide this information electronically to Buyer within twenty (20) days of Buyer’s request. With respect to Fuel Use and the Fuel Resource Requirements, Buyer shall have the right to request all supporting documentation reasonably necessary to determine the accuracy and completeness of any Fuel Attestation submitted by Seller to Buyer.

5.5.2. Access Rights. Buyer, its authorized agents, employees and inspectors may, on reasonable advance notice under the circumstances, visit the Project during normal business hours for purposes reasonably connected with this Agreement or the exercise of any and all rights secured to Buyer by Law, its tariff schedules, and rules on file with the

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CPUC. Buyer, its authorized agents, employees and inspectors must (a) at all times adhere to all safety and security procedures as may be required by Seller; and (b) not interfere with the operation of the Project. Buyer shall make reasonable efforts to coordinate its emergency activities with the Safety and Security Departments, if any, of the Project operator. Seller shall keep Buyer advised of current procedures for contacting the Project operator’s Safety and Security Departments.

5.6. Protection of Property. Each Party shall be responsible for protecting its own facilities from possible damage resulting from electrical disturbances or faults caused by the operation, faulty operation, or non-operation of the other Party’s facilities and such other Party shall not be liable for any such damages so caused; provided that nothing in this Section 5.6 shall modify any other agreement between the Parties or applicable Law.

5.7. Performance Excuses.

5.7.1. Seller Excuses. Seller shall be excused from achieving the Guaranteed Energy Production during Seller Excuse Hours, as provided in Section 11.1.

5.7.2. Buyer Excuses. The obligation of Buyer to receive and/or pay for the Product shall be excused only (a) during periods of Force Majeure, (b) by Seller’s failure to perform, or (c) as provided with respect to curtailment in Section 5.8.

5.8. Seller Curtailment.

5.8.1. Seller shall curtail the production of the Facility after receipt of: (a) direction from the CAISO directly, or from Buyer that Buyer has been instructed by the CAISO or the Transmission/Distribution Owner, to curtail Energy deliveries; (b) direction that Seller has been given a curtailment order or similar instruction in order to respond to an Emergency; (c) a Curtailment Order issued by Buyer.

5.8.2. Buyer shall have no obligation to pay Seller for any Product delivered in violation of Section

5.8 or for any Product that Seller would have been able to deliver but for the fact of a curtailment pursuant to Section 5.8.1(a) or (b). Seller shall assume all liability and reimburse Buyer for any and all costs and charges incurred by Buyer, including but not limited to CAISO Penalties, as a result of Seller delivering Energy in violation of Section 5.8.

5.8.3. Buyer shall have the right, but not the obligation, to issue to Seller a Curtailment Order. Buyer shall pay Seller the Contract Price for the Product Seller would have been able to deliver but for the fact that Buyer issued a Curtailment Order (“Paid Curtailed Product”); provided, Buyer shall have no obligation to pay Seller the Contract Price for any Product that, if delivered would have been Surplus Delivered Energy, and any such Product shall not be Paid Curtailed Product.

5.8.4. Buyer shall estimate the amount of Product the Facility would have been able to deliver under Section 5.8.3 by reference to the most recent Notice of forecasted Expected Generation Output Buyer has received from Seller at the time of the Curtailment Order. In the event this forecast is not representative of past performance of the Facility, Buyer shall apply accepted industry standards in making such an estimate and take into consideration past performance of the Facility and any other relevant information. Seller shall cooperate with Buyer’s requests for information associated with any estimate made hereunder.

5.9. Forecasting and Outage Notifications. Seller shall comply with the forecasting and outage notifications in Appendix D.

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5.10. Telemetry Requirements. Seller shall comply with the telemetry requirements in Appendix E.

5.11. Greenhouse Gas Emissions. Seller acknowledges that a Governmental Authority may require Buyer to take certain actions with respect to greenhouse gas emissions attributable to the generation of Energy, including, but not limited to, reporting, registering, tracking, allocating for or accounting for such emissions. Promptly following Buyer’s written request, Seller agrees to take all commercially reasonable actions and execute or provide any and all documents, information or instruments with respect to generation by the Facility reasonably necessary to permit Buyer to comply with such requirements, if any.

5.12. Reporting and Record Retention.

5.12.1. Seller shall use commercially reasonable efforts to meet the Seller Milestone Schedule set forth in the Cover Sheet and avoid or minimize any delays in meeting such schedule. Seller shall provide Project development status reports in a format and a frequency, which shall not exceed one (1) report per month, specified by the Buyer. The report shall describe Seller’s progress relative to the development, construction, and startup of the Facility, as well as a Notice of any anticipated change to the Commercial Operation Date and whether Seller is on schedule to meet the Guaranteed Commercial Operation Date.

5.12.2. Seller shall within ten (10) Business Days of receipt thereof provide to Buyer copies of any Interconnection Study or the interconnection agreement tendered to Seller by the CAISO or the Transmission/Distribution Owner and all other material reports, studies and analyses furnished by the CAISO or any Transmission/Distribution Owner, and any correspondence with the CAISO or Transmission/Distribution Owner related thereto, concerning the interconnection of the Facility to the Transmission/Distribution Owner’s electric system or the transmission of Energy on the Transmission/Distribution Owners’ electric system. Concurrently with the provision of any Interconnection Study or the interconnection agreement tendered to Seller by the CAISO or the Transmission/Distribution Owner that may give rise to a termination right of Buyer under Section

13.9.1, Seller shall provide Buyer a Notice of its irrevocable election to exercise or not exercise its rights under Section 13.9.2, with a failure to provide such an election deemed to be an election not to exercise such rights.

5.12.3. No later than twenty (20) days after each semi-annual period ending on June 30th or December 31st, Seller shall provide a report listing all WMDVBEs that supplied goods or services to Seller during such period, including any certifications or other documentation of such WMDVBEs’ status as such and the aggregate amount paid to WMDVBEs during such period.

5.12.4. Seller shall provide to Buyer on the Commercial Operation Date, and within thirty (30) days after the completion of each Contract Year thereafter during the Delivery Term, an inspection and maintenance report regarding the Facility. Buyer shall provide to the Seller a form inspection and maintenance report before the Commercial Operation Date and Seller shall complete the form inspection and maintenance report. Buyer, at its sole discretion, may modify the form inspection and maintenance report to be used in subsequent Contract Years during the Delivery Term.

5.12.5. Seller shall keep all operating records required of a Qualifying Facility by any applicable CPUC order as well as any additional information that may be required of a Qualifying Facility in order to demonstrate compliance with all applicable standards which have been adopted by the CPUC.

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5.12.6. If the Facility is a “qualifying cogeneration facility” as contemplated in 18 CFR Section 292.205, then within thirty (30) days following the end of each calendar year, and within thirty (30) days following the end of the Delivery Term, Seller shall provide to Buyer:

A copy of a FERC order waiving for the Facility, the applicable operating and efficiency standards for qualifying cogeneration facilities for the applicable year; or A completed copy of Buyer’s “QF Efficiency Monitoring Program – Cogeneration Data Reporting Form,” substantially in the form of Appendix K-1, with calculations and verifiable supporting data, which demonstrates the compliance of the Facility with cogeneration Qualifying Facility operating and efficiency standards set forth in 18 CFR Section 292.205 “Criteria for Qualifying Cogeneration Facilities,” for the applicable year.

5.12.7. If the Facility is a “qualifying small power production facility” as contemplated in 18 CFR Sections 292.203(a), 292.203(c) and 292.204, then within thirty (30) days following the end of each year, and within thirty (30) days following the end of the Delivery Term, Seller shall provide to Buyer:

A copy of a FERC order waiving for the Facility, the applicable operating and fuel use standards for qualifying small power production facilities for the applicable year; or A completed copy of Buyer’s “Fuel Use Standards – Small Power Producer Data Reporting Form,” substantially in the form of Appendix K-2, with calculations and verifiable supporting data, which demonstrates the compliance of the Facility with small power producer Qualifying Facility fuel use standards set forth in 18 CFR Section 292.204 “Criteria for Qualifying Small Power Production Facilities,” for the applicable year.

5.12.8. [For Projects utilizing Eligible Directed Biogas] [No later than the tenth (10th) day of each month during the Delivery Term (“Monthly Multi-Fuel Report Deadline”), Seller shall complete and provide the “Fuel Use Standards – Multi-Fuel Monthly Data Reporting Form” in the form of Appendix K-3 (“Multi-Fuel Report”) with supporting documentation, in a format acceptable to Buyer. This supporting documentation shall include (a) fuel purchase agreements(s) for such Eligible Directed Biogas, which agreements may be redacted to omit confidential pricing information, (b) nomination records and records of delivery for verification of fuel input into Common Carrier Pipelines and used by the Facility, and (c) meter data for the predominant fuel source and each Eligible Directed Biogas fuel source, and actual burn data, for verification of fuel output allocation set forth in the WREGIS Operating Rules, Section “Measuring and Verifying Output Allocation,” as amended from time to time. Seller hereby covenants that the information contained in each of its Multi-Fuel Reports shall be true, complete, and correct.

Seller shall provide to Buyer within twenty (20) days of Buyer’s request, any additional supporting documentation reasonably necessary, in a format acceptable to Buyer, to determine the accuracy and completeness of any Multi-Fuel Report submitted to Buyer at any time within the prior eight months, or to permit Buyer to submit to WREGIS accurate fuel split percentages for the Facility.

Failure to Submit

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5.12.8.2.1. If, for any month during the Delivery Term, Buyer does not receive Seller’s Multi-Fuel Report and supporting documentation by the Monthly Multi- Fuel Report Deadline, such month’s invoice shall be deemed incomplete and Buyer shall not be required to pay, and no amount shall be due or owing under, that incomplete invoice.

Upon Buyer’s receipt of Seller’s Multi-Fuel Report, the previously deemed incomplete invoice shall be paid in the following monthly invoice cycle subject to and in accordance with Section 2.7.

Buyer’s Audit Rights. Buyer may reasonably rely on Seller’s properly completed and timely submitted Multi-Fuel Report as evidence of Seller’s compliance with the requirements for Eligible Directed Biogas. Buyer shall have the right to audit Seller’s records and conduct any on-site visit to confirm Seller’s compliance. Seller shall comply with any such audit and shall pay all reasonable expenses of Buyer in conducting such audit.

Buyer shall have the right to deduct and offset the costs of conducting any such audit from Seller’s monthly invoices. Buyer’s audit shall include, but not be limited to, Buyer’s receipt and review of electronic copies of Seller’s supporting documentation.]

5.12.9. [For Projects using fuel for Station Use that is not from a Fuel Resource Category] [No later than the tenth (10th) day of each month during the Delivery Term (“Monthly Multi- Fuel Report Deadline”), Seller shall complete and provide the “Fuel Use Standards – Multi- Fuel Monthly Data Reporting Form” in the form of Appendix K-3 (“Multi-Fuel Report”). For the avoidance of doubt, if in any month during the Delivery Term Seller does not use any fuel for Station Use that is not from a Fuel Resource Category, then Seller shall report the amount of such fuel as zero in that month’s Multi-Fuel Report to be provided to Buyer.

Seller shall provide to Buyer within twenty (20) days of Buyer’s request, any supporting documentation reasonably necessary, in a format acceptable to Buyer, in order for Buyer to (a) determine the accuracy and completeness of any Multi-Fuel Report submitted to Buyer at any time within the preceding eight (8) month period, or (b) submit to WREGIS accurate fuel split percentages for the Facility. Seller covenants throughout the Delivery Term that all information contained in each of its Multi-Fuel Reports shall be true, complete, and correct.

Failure to Submit

5.12.9.2.1. If, for any month during the Delivery Term, Buyer does not receive Seller’s Multi-Fuel Report by the Monthly Multi-Fuel Report Deadline, such month’s invoice shall be deemed incomplete and Buyer shall not be required to pay, and no amount shall be due or owing under, that incomplete invoice. Upon Buyer’s receipt of Seller’s Multi-Fuel Report, the previously deemed incomplete invoice shall be paid in the following monthly invoice cycle subject to and in accordance with Section 2.7.

Buyer’s Audit Rights. Buyer may reasonably rely on Seller’s properly completed and timely submitted Multi-Fuel Report as evidence of Seller’s compliance with the requirements for utilizing fuel for Station Use that is not from a Fuel Resource Category. Buyer shall have the right to audit Seller’s records and conduct any on-site visit to confirm Seller’s compliance.

Seller shall comply with any such audit and shall pay all reasonable expenses incurred by Buyer to conduct such audit. Buyer shall have the right to deduct and offset the costs of conducting any such audit from Seller’s monthly invoices.]

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5.13. Tax Withholding Documentation. Upon Buyer’s request, Seller shall promptly provide to Buyer Internal Revenue Service tax Form W-9 and California tax Form 590 (or their equivalent), completed with Seller’s information, and any other documentation necessary for Buyer to comply with its tax reporting or withholding obligations with respect to Seller.

5.14. Modifications to Facility. From the Execution Date and throughout the Delivery Term, Seller shall not repower or materially modify or alter the Facility without the written consent of Buyer, which written consent is at Buyer’s sole discretion. Material modifications or alterations include, but are not limited to, (a) movement of the Site, (b) changes that may increase or decrease the expected output of the Facility (other than the following, each as provided in Section 2.2 above, the one (1) time decrease to Contract Quantity if the Contract Capacity is adjusted based on the Demonstrated Contract Capacity, the one (1) time increase to Contract Quantity, and the annual option to decrease Contract Quantity), (c) changes that may affect the generation profile of the Facility, (d) changes that may affect the ability to accurately measure the output of Product from the Facility, (e) changes to the Fuel Use description provided in Section B(xi) of the Cover Sheet, or a change to the selection as to whether the Facility will use fuel for Station Use that is not from a Fuel Resource Category provided in Section B(xii) of the Cover Sheet, and (f) changes that conflict with elections, information or requirements specified elsewhere in this Agreement (other than, to the extent not covered by clauses (a) through (e) in this Section 5.14, as specified in the Cover Sheet). Material modifications or alterations do not include maintenance and repairs performed in accordance with Prudent Electrical Practices. Seller shall provide to Buyer Notice not less than ninety (90) days before any proposed repowering, modification or alteration occurs describing the repowering, modification or alteration to Buyer’s reasonable satisfaction and, if subject to Buyer’s consent pursuant to this Section 5.14, seeking Buyer’s written consent.

5.15. No Additional Incentives. Seller agrees that during the Term of this Agreement it shall not seek additional compensation or other benefits pursuant to the Self-Generation Incentive Program, as defined in CPUC Decision 01-03-073, Buyer’s net energy metering tariff, or other similar California ratepayer subsidized program relating to energy production with respect to the Facility (other than grants from the Electric Program Investment Charge).

5.16. Site Control. Seller shall have Site Control as of the earlier of: (a) the Commercial Operation Date; or (b) any date before the Commercial Operation Date to the extent necessary for the Seller to perform its obligations under this Agreement and, in each case, Seller shall maintain Site Control throughout the Term. Seller shall promptly provide Buyer with Notice if there is any change in the status of Seller’s Site Control.

5.17. Safety Plan. Seller shall provide to Buyer, prior to commencement of any construction activities on the Site, a report from an independent engineer (acceptable to both Buyer and Seller) certifying that Seller has a written plan for the safe construction and operation of the Facility in accordance with Prudent Electrical Practices.

6. INDEMNITY

6.1. Each Party as indemnitor shall defend, save harmless and indemnify the other Party and the directors, officers, and employees of such other Party against and from any and all loss and liability (including reasonable attorneys’ fees) for injuries to persons, including employees of either Party, and physical damage to property, including property of either Party, resulting from or arising out of: (a) the engineering, design, construction, maintenance, or operation of the indemnitor’s facilities; (b) the installation of replacements, additions, or betterments to the

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indemnitor’s facilities; or (c) the negligence or willful misconduct of the indemnitor relating to its obligation under this Agreement. This indemnity and save harmless provision shall apply notwithstanding the active or passive negligence of the indemnitee. Neither Party shall be indemnified for liability or loss, resulting from its sole negligence or willful misconduct. The indemnitor shall, on the other Party’s request, defend any suit asserting a claim covered by this indemnity and shall pay all costs, including reasonable attorneys’ fees that may be incurred by the other Party in enforcing this indemnity.

6.2. Each Party shall defend, save harmless and indemnify the other Party, its directors, officers, employees, and agents, assigns, and successors in interest, for and against any penalty imposed upon the Party to the extent caused by the other Party’s failure to fulfill its obligations under this Agreement.

6.3. Each Party releases and shall defend, save harmless and indemnify the other Party from any and all loss and liability (including reasonable attorneys’ fees) in connection with any breach made by the indemnifying Party of its representations, warranties and covenants in this Agreement.

7. LIMITATION OF DAMAGES

EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT THERE IS NO WARRANTY OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. LIABILITY SHALL BE LIMITED TO DIRECT

ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND

EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED UNLESS EXPRESSLY HEREIN PROVIDED. NEITHER PARTY

SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR

INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES,

BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. UNLESS EXPRESSLY HEREIN PROVIDED, AND SUBJECT TO THE PROVISIONS OF SECTION 6 (INDEMNITY), IT IS THE INTENT OF THE PARTIES THAT

THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES

BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING

THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.

8. NOTICES
Notices (other than forecasts, scheduling requests and curtailment (or equivalent) instructions) shall, unless otherwise specified herein, be in writing and may be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail). Notices of curtailment (or equivalent orders) may be oral, written or electronic and must be made in accordance with accepted industry practices for such notices. A notice sent by facsimile transmission or e-mail will be recognized and shall be deemed received on the Business Day on which such notice was transmitted if received before 5 p.m. Pacific prevailing time (and if received after 5 p.m., on the next Business Day) and a notice by overnight mail or courier shall be deemed to have been received on the next Business Day after such Notice is sent or such earlier time as is confirmed by the receiving Party unless it confirms a prior oral communication, in which case any such notice shall be deemed received on the day sent. A Party may change its addresses by providing notice of same in accordance with this provision. All Notices, requests, invoices, statements or payments for this Facility must reference this Agreements identification number.

Notices shall be provided as indicated in the Cover Sheet.

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9. INSURANCE

9.1. Insurance Coverage. Seller shall, at its own expense, starting on the Execution Date and until the end of the Term, and for such additional periods as may be specified below, provide and maintain in effect the following insurance policies and minimum limits of coverage as specified below, and such additional coverage as may be required by Law, with insurance companies authorized to do business in the state in which the services are to be performed, with an A.M. Best’s Insurance Rating of not less than A- :VII.

9.1.1. Commercial general liability insurance, written on an occurrence, not claims-made basis, covering all operations by or on behalf of Seller arising out of or connected with this Agreement, including coverage for bodily injury, broad form property damage, personal and advertising injury, products/completed operations, contractual liability, premises-operations, owners and contractors protective, hazard, explosion, collapse and underground. Such insurance must bear a combined single limit per occurrence and annual aggregate of not less than one million dollars ($1,000,000.00), exclusive of defense costs, for all coverages. Such insurance must contain standard cross-liability and severability of interest provisions. If Seller elects, with Buyer’s written concurrence, to use a “claims made” form of commercial general liability insurance, then the following additional requirements apply: (a) the retroactive date of the policy must be prior to the Execution Date; and (b) either the coverage must be maintained for a period of not less than four (4) years after this Agreement terminates, or the policy must provide for a supplemental extended reporting period of not less than four (4) years after this Agreement terminates. Governmental agencies which have an established record of self-insurance may provide the required coverage through self-insurance.

9.1.2. Workers’ compensation insurance with statutory limits, as required by the state having jurisdiction over Seller’s employees, and employer’s liability insurance with limits of not less than: (a) bodily injury by accident - one million dollars ($1,000,000.00) each accident; (b) bodily injury by disease - one million dollars ($1,000,000.00) policy limit; and (c) bodily injury by disease - one million dollars ($1,000,000.00) each employee.

9.1.3. Commercial automobile liability insurance covering bodily injury and property damage with a combined single limit of not less than one million dollars ($1,000,000.00) per occurrence. Such insurance must cover liability arising out of Seller’s use of all owned, non-owned and hired automobiles in the performance of the Agreement.

9.1.4. Umbrella/excess liability insurance, written on an occurrence, not claims-made basis, providing coverage excess of the underlying employer’s liability, commercial general liability, and commercial automobile liability insurance, on terms at least as broad as the underlying coverage, with limits of not less than four million dollars ($4,000,000.00) per occurrence and in the annual aggregate.

9.2. Additional Insurance Provisions.

9.2.1. On or before the later of (a) sixty (60) days after the Execution Date and (b) the date immediately preceding commencement of construction of the Facility, and again within a reasonable time after coverage is renewed or replaced, Seller shall furnish to Buyer certificates of insurance evidencing the coverage required above, written on forms and with deductibles reasonably acceptable to Buyer.

Notwithstanding the foregoing sentence, Seller shall in no event furnish Buyer certificates of insurance evidencing required coverage later than the Commercial Operation Date. All deductibles, co-insurance and self-insured retentions applicable to the insurance above must be paid by Seller.

All certificates of

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insurance must note that the insurers issuing coverage must endeavor to provide Buyer with at least thirty (30) days’ prior written notice in the event of cancellation of coverage. Buyer’s receipt of certificates that do not comply with the requirements stated in this Section 9.2.1, or Seller’s failure to provide such certificates, do not limit or relieve Seller of the duties and responsibility of maintaining insurance in compliance with the requirements in this Section 9 and do not constitute a waiver of any of the requirements of Section 9.

9.2.2. Insurance coverage described above in Section 9.1 shall provide for thirty (30) days written Notice to Buyer prior to cancellation, termination, alteration, or material change of such insurance.

9.2.3. Evidence of coverage described above in Section 9.1 shall state that coverage provided is primary and is not excess to or contributing with any insurance or self-insurance maintained by Buyer.

9.2.4. Buyer shall have the right to inspect or obtain a copy of the original policy(ies) of insurance.

9.2.5. All insurance certificates, endorsements, cancellations, terminations, alterations, and material changes of such insurance must be issued, clearly labeled with this Agreement’s identification number and submitted in accordance with Section 8 and the Cover Sheet.

9.2.6. The insurance requirements set forth in Section 9.1 will apply as primary insurance to, without a right of contribution from, any other insurance maintained by or afforded to Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, and employees, regardless of any conflicting provision in Seller's policies to the contrary.

To the extent permitted by Law, Seller and its insurers shall be required to waive all rights of recovery from or subrogation against Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, employees and insurers. The commercial general liability insurance required in Section 9.1.1 and the umbrella/excess liability insurance required in Section

9.1.4 must name Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents and employees, as additional insureds for liability arising out of Seller’s construction, use or ownership of the Facility.

9.2.7. Seller shall remain liable for all acts, omissions or default of any subcontractor or subsupplier and shall indemnify, defend and hold harmless Buyer for any and all loss or damages, as well as all costs, charges and expenses which Buyer may suffer, incur, or bear as a result of any acts, omissions or default by or on behalf of any subcontractor or subsupplier.

9.2.8. If Seller fails to comply with any of the provisions of this Section 9, Seller, among other things and without restricting Buyer’s remedies under Law or otherwise, shall, at its own cost, act as an insurer and provide insurance in accordance with the terms and conditions of this Section 9. With respect to the required commercial general liability insurance set forth in Section 9.1.1, umbrella/excess liability insurance set forth in Section 9.1.4, and commercial automobile liability insurance set forth in Section 9.1.3, Seller shall provide a current, full and complete defense to Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, employees, assigns, and successors in interest, in response to a third party claim in the same manner that an insurer with an A.M. Best’s Insurance Rating of A-:VII would have, had the insurance been maintained in accordance with the terms and conditions set forth in this Section 9 and given the required additional insured wording in the commercial general liability insurance and umbrella/excess liability insurance, and standard “Who is an Insured” provision in commercial automobile liability form.

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10. FORCE MAJEURE

10.1. No Default for Force Majeure. Neither Party shall be in default in the performance of any of its obligations set forth in this Agreement, except for obligations to pay money, when and to the extent failure of performance is caused by Force Majeure. Nothing in this Section 10 shall relieve the Seller of the obligation to achieve Commercial Operation on or before the Guaranteed Commercial Operation Date, as may be extended pursuant to Section 1.1.

10.2. Requirements Applicable to Claiming Party. If a Party, because of Force Majeure, is rendered wholly or partly unable to perform its obligations when due under this Agreement, such Party (the “Claiming Party”) shall be excused from whatever performance is affected by the Force Majeure to the extent so affected. In order to be excused from its performance obligations under this Agreement by reason of Force Majeure:

10.2.1. The Claiming Party, on or before the fourteenth (14th) day after the initial occurrence of the claimed Force Majeure, must give the other Party Notice describing the particulars of the occurrence; and

10.2.2. The Claiming Party must provide timely evidence reasonably sufficient to establish that the occurrence constitutes Force Majeure as defined in this Agreement.

10.3. Limitations. The suspension of the Claiming Party’s performance due to Force Majeure may not be greater in scope or longer in duration than is required by such Force Majeure. In addition, the Claiming Party shall use diligent efforts to remedy its inability to perform. When the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall give the other Party prompt Notice to that effect.

10.4. Termination. The non-Claiming Party may terminate this Agreement on at least five (5) Business Days’ prior Notice, in the event of Force Majeure which materially interferes with the Claiming Party’s ability to perform its obligations under this Agreement and which (a) extends for more than 365 consecutive days, (b) extends for more than a total of 365 days in any consecutive 540-day period, or (c) causes the Commercial Operation Date to fail to be demonstrated by the Guaranteed Commercial Operation Date.

11. GUARANTEED ENERGY PRODUCTION

11.1. General. Throughout the Delivery Term, Seller shall be required to deliver to Buyer no less than the Guaranteed Energy Production over two (2) consecutive Contract Years during the Delivery Term (“Performance Measurement Period”). “Guaranteed Energy Production” means an amount of Delivered Energy (including, for purposes of this Section 11, Paid Curtailed Product), as measured in MWh, equal to the product of (x) and (y), where (x) is one hundred eighty percent (180%) of the average of the Contract Quantity over the Performance Measurement Period and (y) is the difference between (I) and (II), with the resulting difference divided by (I), where (I) is the number of hours in the applicable Performance Measurement Period and (II) is the aggregate number of Seller Excuse Hours in the applicable Performance Measurement Period. Guaranteed Energy Production is described by the following formula:

Guaranteed Energy Production = 180% × average of the Contract Quantity over the Performance Measurement Period in MWh) × [(Hours in Performance Measurement Period - Seller Excuse Hours) / Hours in Performance Measurement Period]

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Notwithstanding the foregoing, for the first two (2) consecutive Contract Years of the Delivery Term, the Guaranteed Energy Production shall be calculated by replacing “one hundred eighty percent (180%)” with “one hundred forty percent (140%)” and “180%” with “140%” in this Section 11.1.

For the avoidance of doubt, the second Performance Measurement Period (Contract Year 2 and 3) and subsequent Performance Measurement Periods for the remainder of the Delivery Term, the Guaranteed Energy Production shall be calculated by the following formula:

11.2. GEP Failures. If Seller has a GEP Failure, then within ninety (90) days after the last day of the last month of such Performance Measurement Period, Buyer shall notify Seller of such failure. Seller shall cure the GEP Failure by delivering to Buyer GEP Damages, calculated pursuant to Appendix F, within thirty (30) days of receipt of the Notice.

11.3. GEP Damages. The Parties agree that the damages sustained by Buyer associated with Seller’s failure to achieve the Guaranteed Energy Production requirement would be difficult or impossible to determine, or that obtaining an adequate remedy would be unreasonably time consuming or expensive and therefore agree that Seller shall pay the GEP Damages to Buyer as liquidated damages. In no event shall Buyer be obligated to pay GEP Damages.

12. CREDIT AND COLLATERAL REQUIREMENTS

12.1. Collateral Requirement. On or before the thirtieth (30th) day following the Execution Date, Seller shall post and thereafter maintain a collateral requirement (the “Collateral Requirement”) as designated in the Cover Sheet. The Collateral Requirement will be held by Buyer and must be in the form of either a cash deposit or Letter of Credit.

12.2. Maintenance of Collateral Requirement. The Collateral Requirement shall be posted to Buyer and maintained at all times from the thirtieth (30th) day following the Execution Date through the end of the Term and thereafter until such time as Seller has satisfied all monetary obligations which survive any termination of this Agreement, not to exceed one year following the end of the Term. In the event that Buyer draws on the Collateral Requirement pursuant to this Agreement, Seller shall promptly replenish such Collateral Requirement to the amount specified in Section 12.1, as may be adjusted pursuant to Section 12.3.

12.3. Forfeiture Based on Capacity. If, on the earlier of the Commercial Operation Date or the Guaranteed Commercial Operation Date, Seller:

12.3.1. is not capable of delivering any of the Contract Capacity to the Delivery Point, as determined by Buyer in its reasonable discretion, Seller shall forfeit, and Buyer shall be entitled to, the entire Collateral Requirement and Buyer may terminate this Agreement; or

12.3.2. is only capable of delivering a portion of the Contract Capacity to the Delivery Point, based on the Demonstrated Contract Capacity, Seller shall forfeit, and Buyer shall have the right to retain, a portion of the Collateral Requirement equal to the product of (a) twenty thousand dollars ($20,000.00), multiplied by (b) the Contract Capacity set forth in Section

2.1 less the Demonstrated Contract Capacity.

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12.4. Grant of Security Interest/Remedies. To secure its obligations under this Agreement and to the extent Seller delivers the Collateral Requirement, as applicable, hereunder, Seller hereby grants to Buyer, as the secured party, a first priority security interest in, and lien on (and right of setoff against), and assignment of, all such Collateral Requirement posted with Buyer in the form of cash or Letter of Credit and any and all proceeds resulting therefrom or the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of, Buyer. Within thirty (30) days of the delivery of the Collateral Requirement, Seller agrees to take such action as Buyer reasonably requires in order to perfect a first-priority security interest in, and lien on (and right of setoff against), such Collateral Requirement and any and all proceeds resulting therefrom or from the liquidation thereof. Upon or any time after the occurrence of an Event of Default, an Early Termination Date or an occasion provided for in this Agreement where Buyer is authorized to retain all or a portion of the Collateral Requirement, Buyer may do any one or more of the following: (a) exercise any of the rights and remedies of a secured party with respect to the Collateral Requirement, as applicable, including any such rights and remedies under Law then in effect; (b) exercise its rights of setoff against any and all property of Seller in the possession of the Buyer or Buyer’s agent; (c) draw on any outstanding Letter of Credit issued for its benefit or retain any cash deposit; and (d) liquidate the Collateral Requirement then held by or for the benefit of Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller.

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

12.5. Use of Collateral Requirement. Buyer shall be entitled to draw upon the Collateral Requirement for any damages arising upon Buyer’s declaration of an Early Termination Date or as set forth in Sections 12.3.1 and 12.3.2. If Buyer terminates this Agreement and is entitled to draw upon the Collateral Requirement, any amount of Collateral Requirement that Seller has not yet posted with Buyer will be immediately due and payable by Seller to Buyer.

12.5.1. Return of Collateral Requirement. Buyer shall return the unused portion of the Collateral Requirement, including the payment of any interest due thereon to Seller promptly after the following has occurred: (a) the Term of the Agreement has ended, or an Early Termination Date has occurred, as applicable; and (b) all payment obligations of the Seller arising under this Agreement, including but not limited to payments pursuant to the Settlement Amount, indemnification payments, or other damages are paid in full (whether directly or indirectly such as through set-off or netting).

12.5.2. Full Return of Collateral Requirement. Notwithstanding the foregoing, the full Collateral Requirement will be returned to Seller if this Agreement is terminated in accordance with Section

10.4 or 13.10; provided that a termination under Section 10.4 only entitles Seller to a return of the full Collateral Requirement if the termination is based on a Force Majeure that prevents the Commercial Operation Date from occurring on or before the Guaranteed Commercial Operation Date or prevents Seller from demonstrating full Contract Capacity in accordance with Appendix J.

12.5.3. Payment of Interest. Buyer shall pay simple interest on cash held to satisfy the Collateral Requirements at the rate and in the manner set forth in Section 2.7.9.

12.6. Letter of Credit.

12.6.1. If Seller has provided a Letter of Credit to satisfy the Collateral Requirement, then Seller shall renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and in accordance with this Agreement. In the

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event the issuer of such Letter of Credit (a) fails to maintain a Credit Rating of at least (i) an A3 by Moody’s with a stable designation and at least an A- by S&P with a stable designation, if the issuer is rated by both Moody’s and S&P, or (ii) an A3 by Moody’s with a stable designation or an A- by S&P with a stable designation, if the issuer is rated by either Moody’s or S&P but not both, (b) indicates its intent not to renew such Letter of Credit or has not renewed such Letter of Credit at least twenty-five (25) Business Days prior to its expiration, or (c) fails to honor Buyer’s properly documented request to draw on an outstanding Letter of Credit by such issuer, Seller shall cure such default by complying with either Section 12.6.1.1 or 12.6.1.2 below in an amount equal to the Collateral Requirement, and by completing the action within three (3) Business Days of the applicable event (all of which is considered the “Cure”):
providing a substitute Letter of Credit that is issued by a qualified bank acceptable to Buyer, other than the bank failing to honor the outstanding Letter of Credit, or posting cash.

If Seller fails to Cure or if such Letter of Credit expires or terminates without a full draw thereon by Buyer, or fails or ceases to be in full force and effect at any time that such Letter of Credit is required pursuant to the terms of this Agreement, then Seller shall have failed to meet the Collateral Requirements of Section 12. If a Letter of Credit has not been renewed at least twenty (20) Business Days prior to its scheduled expiration, Buyer may draw on the Letter of Credit for the full amount of the Collateral Requirement.

12.6.2. In all cases, the costs and expenses of establishing, renewing, substituting, canceling, increasing, reducing, or otherwise administering the Letter of Credit shall be borne by Seller.

13. EVENTS OF DEFAULT AND TERMINATION

13.1. Termination. Unless terminated earlier pursuant to Section 10.4 or this Section 13, this Agreement automatically terminates immediately following the last day of the Delivery Term.

13.2. Events of Default. An “Event of Default” means, with respect to a Party, the occurrence of any of the following:

13.2.1. With respect to either Party:

A Party becomes Bankrupt;
Except for an obligation to make payment when due, if there is a failure of a Party to perform any material covenant or obligation set forth in this Agreement (except to the extent such failure provides a separate termination right for the non- breaching Party or to the extent excused by Force Majeure), if such failure is not remedied within thirty (30) days after Notice thereof from the non-breaching Party to the breaching Party; A Party fails to make any payment due and owing under this Agreement, if such failure is not cured within five (5) Business Days after Notice from the non-breaching Party to the breaching Party; or

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Any representation or warranty made by a Party (a) is false or misleading in any material respect when made or (b) becomes false or misleading in any material respect during the Term; provided that the representations and warranties made by Seller in Sections 4.3.2 or 4.3.3 shall be subject to Section 4.3.4.

13.2.2. With respect to Seller:

Seller fails to take all corrective actions specified in any Buyer Notice, within the time frame set forth in such Notice, that the Facility is out of compliance with any term of this Agreement; provided that if such corrective action falls under a specific termination right under Section 13.2.2, then the time frame, if any, set forth for such right shall apply; The Facility has not achieved Commercial Operation by the Guaranteed Commercial Operation Date;
Subject to Section 10, Seller has not sold or delivered Product greater than 10% of the applicable Contract Quantity from the Facility to Buyer for a period of twelve (12) consecutive months;
Subject to Section 3.6, Seller fails to maintain its status as an ERR as set forth in Section

3.5 of the Agreement;
Subject to Section 3.7, the Facility fails to maintain its status as a Qualifying Facility;
Seller fails to post and maintain the Collateral Requirements pursuant to Section 12 and such failure is not cured within any applicable cure period; Seller abandons the Facility;
Seller installs generating equipment at the Facility that exceeds the Contract Capacity and such excess generating capacity is not removed within five (5) Business Days after Notice from Buyer;
Seller delivers or attempts to deliver to the Delivery Point for sale under this Agreement Product that was not generated by the Facility; Seller fails to install any of the equipment or devices necessary for the Facility to satisfy the Contract Capacity of the Facility, as set forth in Section 12.3.1; An unauthorized assignment of the Agreement, as set forth in Section 16; Seller fails to reimburse Buyer any amounts due under this Agreement; Seller breaches the requirements in Section 5.15 regarding incentives. [For all Projects except Projects with a High Hazard Fuel Requirement] [Seller breaches any of the representations, warranties and/or covenants contained in Section 4.4 or otherwise fails to comply with the Fuel Resource Requirements (“Fuel Resource Failure”) in any Contract Year as determined by Buyer, based on:
(a) the Annual Fuel Attestation and supporting documentation therefor, requested and received by Buyer, if any, (b) Buyer’s inspection of the Facility, or (c) Buyer’s

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reasonable determination that the information contained in any Annual Fuel Attestation does not reflect the actual Fuel Use at the Facility for the prior Contract Year; provided, that Seller may cure such Event of Default according to the requirements set forth in Appendix M of this Agreement; provided, further, that if such Event of Default occurs three times during the Delivery Term, Buyer shall have the right to declare an Event of Default and terminate this Agreement upon the third occurrence of such Event of Default, and Seller shall not have the ability to cure as described in Appendix M. For the avoidance of doubt, Category 2 (Dairy) Facilities do not have an opportunity to cure Fuel Resource Failures;] [For all Projects with a High Hazard Fuel Requirement] [Seller breaches any of the representations, warranties and/or covenants contained in Section 4.4 or otherwise fails to comply with the Fuel Resource Requirements or High Hazard Fuel Requirement (“Fuel Resource Failure”) in any Calendar Year, as determined by Buyer, based on (a) the Annual Fuel Attestation, the Verification of Fuel Source and Delivery and supporting documentation therefor, requested and received by Buyer,
(b) Buyer’s inspection or audit of the Facility, or (c) Buyer’s reasonable determination that the information contained in any Annual Fuel Attestation does not reflect the actual Fuel Use at the Facility for the applicable Calendar Year pursuant to Section

4.4.2. In the event of such a breach, Seller shall be subject to a Termination Payment pursuant to Sections 13.3 and 13.5.]
[For all Projects except Projects with a High Hazard Fuel Requirement] [Seller fails to submit to Buyer the Annual Fuel Attestation on or before the Annual Fuel Attestation Deadline;] [For all Projects with a High Hazard Fuel Requirement] Seller fails to submit to Buyer the Annual Fuel Attestation and the Verification of Fuel Source and Delivery on or before the Annual High Hazard Fuel Attestation Deadline. In the event of such a breach, Seller shall be subject to a Termination Payment pursuant to Sections 13.3 and 13.5.] Seller uses a fuel resource to generate electricity and if applicable, Useful Thermal Energy Output from the Facility that is not one of the Fuel Resource Categories[, other than for Station Use] [For Projects using fuel for Station Use that is not from a Fuel Resource Category].
[For Category 3 Projects that do not have an effective Active Interconnection Study prior to the Execution Date] [Seller fails to submit a new Interconnection Study application for the Project pursuant to Section 4.3.14.]
[For Category 3 Projects that do not have an Active Interconnection Study prior to the Execution Date] [Seller’s Interconnection Study for the Project has determined that, with the identified interconnection upgrades: (a) the transmission or distribution grid that would serve as the Interconnection Point is inadequate; (b) the Project does not meet all applicable state and local laws, building standards, and Transmission/Distribution Owner’s interconnection requirements; or (c) the aggregate of all electric generating facilities on the distribution circuit would adversely impact Transmission/Distribution Owner’s operation and load restoration efforts of the electric system.]
[For Projects with a Nameplate Capacity greater than three megawatts][The Facility’s Demonstrated Nameplate Capacity is greater than the lesser of (a) the Nameplate Capacity and (b) five thousand (5,000) kW.]

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[For Projects utilizing Eligible Directed Biogas or For Projects using fuel for Station Use that is not from a Fuel Resource Category] [Seller fails to submit to Buyer the Multi-Fuel Report and supporting documentation required by Section

5.12.8 and/or 5.12.9 on or before the Multi-Fuel Report Deadline and such failure to submit is not cured within fifteen (15) Business Days after Notice from [CCA].] [For all Projects utilizing Low-voltage Side Metering] [Seller fails to (a) submit to Buyer the Annual Low-voltage Side Metering Attestation on or before the Annual Low-voltage Side Metering Attestation Deadline and such failure to submit is not cured within fifteen (15) Business Days after Notice from [CCA] or (b) meet any of the requirements of Section 5.2.1 for its CAISO revenue meter.]

13.3. Declaration of an Event of Default. [For all Projects except Projects with a High Hazard Fuel Requirement] [Except as otherwise set forth in Section 13.2.2.14 above, if an Event of Default has occurred, the non-defaulting Party shall have the right to: (a) send Notice, designating a day, no earlier than five (5) days after such Notice and no later than twenty (20) days after such Notice, as an early termination date of this Agreement (“Early Termination Date”); (b) accelerate all amounts owing between the Parties; (c) terminate this Agreement and end the Delivery Term effective as of the Early Termination Date; (d) collect any Settlement Amount under Section 13.5; and (e) if the defaulting party is the Seller and Buyer terminates the Agreement prior to the start of the Commercial Operation Date, Buyer shall have the right to retain (or if the Collateral Requirement has not been provided, collect) the entire Collateral Requirement.]
[For all Projects with a High Hazard Fuel Requirement] [If an Event of Default has occurred, the non-defaulting Party shall have the right to: (a) send Notice, designating a day, no earlier than five (5) days after such Notice and no later than twenty (20) days after such Notice, as an early termination date of this Agreement (“Early Termination Date”); (b) accelerate all amounts owing between the Parties; (c) terminate this Agreement and end the Delivery Term effective as of the Early Termination Date; (d) collect any Termination Payment under Section 13.5; and (e) if the defaulting party is the Seller and Buyer terminates the Agreement prior to the start of the Commercial Operation Date, Buyer shall have the right to retain (or if the Collateral Requirement has not been provided, collect) the entire Collateral Requirement.]

13.4. Release of Liability for Termination.

13.4.1. Upon termination of this Agreement, neither Party shall be under any further obligation or subject to liability hereunder, except as provided in Section 2.4.2.

13.4.2. If an Event of Default shall have occurred, the non-defaulting Party has the right to immediately suspend performance under this Agreement and pursue all remedies available at Law or in equity against the defaulting Party (including monetary damages), except to the extent that such remedies are limited by the terms of this Agreement.

13.5. Calculation of Settlement Amount [and Termination Payment] [For all Projects with a High Hazard Fuel Requirement].

13.5.1. [For all Projects except Projects with a High Hazard Fuel Requirement] [If either Party exercises a termination right under Section 13 after the Commercial Operation Date, the non-defaulting Party shall calculate a Settlement Amount determined as of the Early Termination Date.

Prior to the Commercial Operation Date, the Settlement Amount shall be Zero dollars ($0).]

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[For all Projects with a High Hazard Fuel Requirement] [If either Party exercises a termination right under Section 13 after the Commercial Operation Date, the non-defaulting Party shall calculate a termination payment in US dollars equal to the sum of (a) and (b), and, if Seller is the defaulting party, (c) (“Termination Payment”), where (a) equals the Settlement Amount, (b) equals the sum of all amounts owed by the defaulting Party to the non-defaulting Party under this Agreement, less any amounts owed by the non-defaulting Party to the defaulting Party determined as of the Early Termination Date, and (c) equals the Fuel Use Default Payment as described in Section 13.5.1.1, determined as of the Early Termination Date. Prior to the Commercial Operation Date, the Termination Payment shall be zero dollars ($0).

Fuel Use Default Payment. If Seller is the defaulting Party, then Seller shall pay Buyer an amount that compensates Buyer for Buyer’s overpayment for Product resulting from the Seller’s failure to meet the High Hazard Fuel Requirement or Fuel Resource Requirements during the applicable Calendar Year(s) (“Fuel Use Default Payment”). The Fuel Use Default Payment is calculated by the number of MWhs of Delivered Energy and Paid Curtailed Product provided by the Seller to Buyer from January 1 of the applicable Calendar Year(s) to the Early Termination Date multiplied by the difference between (a) $199.72/MWh adjusted for TOD Factors and (b) the Contract Price adjusted for TOD Factors. In the event Seller fails to pay the Fuel Use Default Payment when due, Buyer may deduct and offset the Fuel Use Default Payment from the posted Collateral Requirement.]

13.5.2. If the non-defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, determined as of the Early Termination Date, the Settlement Amount shall be Zero dollars ($0).

13.5.3. The Buyer shall not have to enter into replacement transactions to establish a Settlement Amount.

13.6. Rights and Remedies Are Cumulative. The rights and remedies of the Parties pursuant to this Section 13 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

13.7. Duty to Mitigate. Buyer and Seller shall each have a duty to mitigate damages pursuant to this Agreement, and each shall use reasonable efforts to minimize any damages it may incur as a result of the other Party’s non-performance of this Agreement, including with respect to termination of this Agreement.

13.8. Right of First Refusal.

13.8.1. If Seller terminates this Agreement, as provided in Sections 13.10 or 10.4 (based on a Force Majeure as to which Seller is the Claiming Party), or if Buyer terminates this Agreement as provided in Sections 13.2.2.2 and 12.3.1, or due to an Event of Default of Seller prior to the Guaranteed Commercial Operation Date, neither Seller nor Seller’s Affiliates may sell, or enter into a contract to sell, Energy, Renewable Energy Credits, Capacity Attributes, or Resource Adequacy Benefits, generated by, associated with or attributable to a generating facility installed at the Site to a party other than Buyer for a period of two (2) years following the effective date of such termination (“Restricted Period”).

13.8.2. This prohibition on contracting and sale will not apply if, before entering into such contract or making a sale to a party other than Buyer, Seller or Seller’s Affiliate provides Buyer with a written offer to sell the Energy, Renewable Energy Credits, Capacity Attributes and Resource Adequacy Benefits to Buyer at the Contract Price and on other terms and

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conditions materially similar to the terms and conditions contained in this Agreement and Buyer fails to accept such offer within forty-five (45) days after Buyer’s receipt thereof.

13.8.3. Neither Seller nor Seller’s Affiliates may sell or transfer the Facility, or any part thereof, or land rights or interests in the Site of the proposed Facility (including the interconnection queue position identified in the Cover Sheet) during the Restricted Period so long as the limitations contained in this Section 13.8 apply, unless the transferee agrees to be bound by the terms set forth in this Section 13.8 pursuant to a written agreement reasonably approved by Buyer.

13.8.4. Seller shall indemnify and hold Buyer harmless from all benefits lost and other damages sustained by Buyer as a result of any breach of the covenants contained within this Section 13.8.

13.9. Transmission Costs Termination Right.

13.9.1. Subject to Section 13.9.2, Buyer has the right to terminate this Agreement on Notice, which will be effective five (5) Business Days after such Notice is given to Seller, on or before the date that is sixty (60) days after Seller provides to Buyer the results of any Interconnection Study or the interconnection agreement tendered to Seller by the CAISO or the Transmission/Distribution Owner if:

Such study or agreement as of the date of the termination Notice estimates, includes, indicates, specifies or reflects that the maximum total cost of transmission upgrades or new transmission facilities to any Transmission/Distribution Owner, including costs reimbursed by any Transmission/Distribution Owner to Seller (“Aggregate Network Upgrade Costs”), may in the aggregate exceed Three Hundred Thousand dollars ($300,000.00) (“Network Upgrades Cap”), irrespective of any subsequent amendment of such study or agreement or any contingencies or assumptions upon which such study or agreement is based; or Buyer must procure transmission service from any other Transmission/Distribution Owner to allow Buyer to Schedule Energy from the Facility and the cost of such transmission service is not reimbursed or paid by Seller.

13.9.2. Notwithstanding Section 13.9.1.1, Buyer shall have no right to terminate this Agreement under Section 13.9.1, if Seller (a) concurrently with its provision of the relevant Interconnection Study or interconnection agreement pursuant to Section 5.12.2, irrevocably agrees, as applicable, to pay to Buyer for (i) the amount which Aggregate Network Upgrade Costs exceed the Network Upgrades Cap (“Excess Network Upgrade Costs”), such payment to be made, at Buyer’s election, either directly to the Transmission/Distribution Owner on behalf of Seller or to Buyer for transfer to the Transmission/Distribution Owner at the time due, and (ii) any costs for transmission services specified in Section 13.9.1.2, and
(b) enters into an interconnection agreement agreed to by [CCA] that contains language requiring Seller to pay, without reimbursement from Buyer or any other Transmission/Distribution Owner, all Excess Network Upgrade Costs; provided that Buyer shall have a separate right to terminate this Agreement on Notice, which will be effective five (5) Business Days after such Notice is given to Seller, on or before the date that is ninety (90) days after FERC, CAISO, or any Transmission/Distribution Owner, as applicable, rejects Seller’s interconnection agreement, in whole or in part, or modifies Seller’s interconnection agreement, in any such case, in a manner that would make Seller unable to comply with the terms of Section 13.9.2(b). If Seller elects to pay, without reimbursement, for any Excess Network Upgrade Costs pursuant to this Section 13.9.2, in no event shall Seller have any interest in or rights or title to any Network Upgrades or

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Congestion Revenue Rights (as defined in the CAISO Tariff) in connection with the development of the Facility or the delivery of Product to Buyer pursuant to this Agreement.

13.10. Permit Termination Right. Either Party has the right to terminate this Agreement on Notice, which will be effective five (5) Business Days after such Notice is given, if Seller has not obtained permits necessary for the construction and operation of the Project within thirty-four (34) months after the [Execution Date] [For Category 3 Projects that do not have an Active Interconnection Study prior to the Execution Date: Interconnection Study Completion Date] and a Notice of termination is given on or before the end of the thirty-fifth (35th) month after the [Execution Date] [For Category 3 Projects that do not have an Active Interconnection Study prior to the Execution Date: Interconnection Study Completion Date]; provided that prior to any termination by Seller under this Section 13.10, Seller must have taken all commercially reasonable actions (including but not limited to Seller’s timely filing of required documents and payment of all applicable fees) to obtain such permits.

14. SCHEDULING COORDINATOR; FORECASTING PENALTIES; CAISO CHARGES; GOVERNMENTAL CHARGES

14.1. Scheduling Coordinator. Buyer shall be Seller’s designated Scheduling Coordinator (as defined by CAISO Tariff). Seller shall comply with all forecasting and outage notification requirements in Appendix D. Buyer shall be responsible for all costs and charges assessed by the CAISO with respect to Scheduling and imbalances except as provided in Sections 5.8.2,

14.2 and 14.3. Throughout the Delivery Term, Buyer shall be entitled to all CAISO revenues and credits associated with the Project.

14.2. Forecasting Penalties and CAISO Penalties. Seller is liable for Forecasting Penalties and CAISO Penalties under the following circumstances:

14.2.1. Determining Seller’s Liability for Forecasting Penalties. If in any hour of any month in the Delivery Term Seller fails to comply with the requirements in Appendix D of this Agreement with respect to Seller’s Expected Generation Output forecasting, and the sum of Energy Deviations for each of the Settlement Intervals in that hour exceed the Performance Tolerance Band described in Section 14.2.2, then Seller is liable for a forecasting penalty (“Forecasting Penalty”) equal to one hundred fifty percent (150%) of the Contract Price for each MWh of electric Energy Deviation, or any portion thereof, in that hour. Notwithstanding the foregoing sentence, the Seller shall not be liable for the Forecasting Penalty during Contract Year 1.

14.2.2. Performance Tolerance Band. The “Performance Tolerance Band,” in MWh, is equal to:
(a) three percent (3%) times; (b) Contract Capacity times; (c) one (1) hour.

14.2.3. Seller’s Liability for CAISO Penalties. Seller shall assume all liability and reimburse Buyer for any and all CAISO Penalties incurred by Buyer because of Seller’s failure to adhere to its obligations under the CAISO Tariff or any CAISO directive or to perform any covenant or obligation set forth in this Agreement.

14.2.4. Availability Charges. If the Facility is subject to the terms of the Availability Standards, Non-Availability Charges, and Availability Incentive Payments as contemplated under Section 40.9 of the CAISO Tariff, any Availability Incentive Payments will be for the benefit of Seller and for Seller’s account and any Non-Availability Charges will be the responsibility of Seller and for Seller’s account.

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14.2.5. Governmental Charges. Seller shall pay or cause to be paid all taxes imposed by any Governmental Authority (“Governmental Charges”) on or with respect to the Product or the Transaction arising at the Delivery Point, including, but not limited to, ad valorem taxes and other taxes attributable to the Project, land, land rights or interests in land for the Project. Buyer shall pay or cause to be paid all Governmental Charges on or with respect to the Product or the Transaction from the Delivery Point. In the event Seller is required by Law or regulation to remit or pay Governmental Charges which are Buyer’s responsibility hereunder, Buyer shall reimburse Seller for such Governmental Charges within thirty (30) days of Notice by Seller. If Buyer is required by Law or regulation to remit or pay Governmental Charges which are Seller’s responsibility hereunder, Buyer may deduct such amounts from payments to Seller with respect to payments under the Agreement; if Buyer elects not to deduct such amounts from Seller’s payments, Seller shall reimburse Buyer for such amounts within thirty (30) days of Notice from Buyer. Nothing shall obligate or cause a Party to pay or be liable to pay any Governmental Charges for which it is exempt under the Law. A Party that is exempt at any time and for any reason from one or more Governmental Charges bears the risk that such exemption shall be lost or the benefit of such exemption reduced; and thus, in the event a Party’s exemption is lost or reduced, each Party’s responsibility with respect to such Governmental Charge shall be in accordance with the first four sentences of this Section.

15. RELEASE OF INFORMATION AND RECORDING CONVERSATION

15.1. Release of Information. Seller authorizes Buyer to release to the FERC, CEC, the CPUC and/or other Governmental Authority information regarding the Facility, including the Seller’s name and location, and the size, location and operational characteristics of the Facility, the Term, the ERR type, the Commercial Operation Date, greenhouse gas emissions data and the net power rating of the Facility, as requested from time to time pursuant to the CEC’s, CPUC’s or applicable Governmental Authority’s rules and regulations.

15.2. Recording. Unless a Party expressly objects to a recording at the beginning of a telephone conversation, each Party consents to the creation of a tape or electronic recording of all telephone conversations between Buyer’s employees or representatives performing a Scheduling Coordinator function as provided in Section 14.1 and any representative of Seller. The Parties agree that any such recordings will be retained in confidence, secured from improper access, and may be submitted in evidence in any proceeding or action relating to this Agreement. Each Party waives any further notice of such monitoring or recording, and agrees to notify its officers and employees of such monitoring or recording and to obtain any necessary consent of such officers and employees.

16. ASSIGNMENT

16.1. General Assignment. Except as provided in Sections 16.2 and 16.3, neither Party shall assign this Agreement or its rights hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld so long as among other things (a) the assignee assumes the transferring Party’s payment and performance obligations under this Agreement, (b) the assignee agrees in writing to be bound by the terms and conditions hereof,
(c) the transferring Party delivers evidence satisfactory to the non-transferring Party of the proposed assignee’s technical and financial capability to meet or exceed such characteristics in the assigning Party’s obligations hereunder and (d) the transferring Party delivers such tax and enforceability assurance as the other Party may reasonably request. Notwithstanding the foregoing and except as provided in Section 16.2, consent shall not be required for an assignment of this Agreement where the assigning Party remains subject to liability or obligation under this Agreement; provided that (i) the assignee assumes the assigning Party’s payment

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and performance obligations under this Agreement, (ii) the assignee agrees in writing to be bound by the terms and conditions hereof, and (iii) the assigning Party provides the other Party with at least thirty (30) days’ prior written Notice of the assignment. Appendix H is the General Consent to Assignment form that shall be used for this Section 16.1.

16.2. Assignment to Financing Providers. Seller shall be permitted to assign this Agreement as collateral for any financing or refinancing of the Project (including any tax equity or lease financing) with the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Parties agree that, the consent provided to Buyer in accordance with this Section 16.2 shall be in a form substantially similar to the Form of Financing Consent attached hereto as Appendix I; provided that (a) Buyer shall not be required to consent to any additional terms or conditions beyond those contained in Appendix I, including extension of any cure periods or additional remedies for financing providers, and (b) Seller shall be responsible at Buyer’s request for Buyer’s reasonable costs and attorneys’ fees associated with the review, negotiation, execution and delivery of documents in connection with such assignment.

16.3. Notice of Change in Control. Except in connection with public market transactions of the equity interests or capital stock of Seller or Seller’s Affiliates, Seller shall provide Buyer notice of any direct change of control of Seller (whether voluntary or by operation of Law).

17. GOVERNING LAW
This agreement and the rights and duties of the parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of law. To the extent enforceable at such time, each party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this agreement. [Standard term and condition that “may not be modified” pursuant to prior Commission decisions, including Decision 07- 11-025, Decision 08-08-028 and Decision 10-03-021, as modified by Decision 11-01-025]

18. DISPUTE RESOLUTION

18.1. Intent of the Parties. The sole procedure to resolve any claim arising out of or relating to this Agreement is the dispute resolution procedure set forth in this Section 18, except that either Party may seek an injunction in Superior Court in [[CCA] specific location], California if such action is necessary to prevent irreparable harm, in which case both Parties nonetheless will continue to pursue resolution of all other aspects of the dispute by means of this procedure.

18.2. Management Negotiations.

18.2.1. The Parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement by prompt negotiations between each Party’s authorized representative, or such other person designated in writing as a representative of the Party (each a “Manager”).

Either Manager may request a meeting to, be held in person or telephonically, to initiate negotiations to be held within ten (10) Business Days of the other Party’s receipt of such request, at a mutually agreed time and place.

18.2.2. All communication and writing exchanged between the Parties in connection with these negotiations shall be deemed confidential and shall be inadmissible as evidence such that it cannot be used or referred to in any subsequent judicial or arbitration process between the Parties, whether with respect to this dispute or any other.

18.2.3. If the matter is not resolved within forty-five (45) days of commencement of negotiations under Section 18.2.1, or if the Party receiving the written request to meet refuses or does

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not meet within the ten (10) Business Day period specified in Section 18.2.1, either Party may initiate arbitration of the controversy or claim according to the terms of Section 18.3.

18.3. Arbitration Initiation. If the dispute cannot be resolved by negotiation as set forth in Section 18.2 above, then the Parties shall resolve such controversy through arbitration (“Arbitration”). The Arbitration shall be adjudicated by one retired judge or justice from the JAMS panel. The Arbitration shall take place in San Francisco, California, and shall be administered by and in accordance with JAMS’ Commercial Arbitration Rules. If the Parties cannot mutually agree on the arbitrator who will adjudicate the dispute, then JAMS shall provide the Parties with an arbitrator pursuant to its then-applicable Commercial Arbitration Rules.

The arbitrator shall have no affiliation with, financial or other interest in, or prior employment with either Party and shall be knowledgeable in the field of the dispute. Either Party may initiate Arbitration by filing with the JAMS a notice of intent to arbitrate at any time following the unsuccessful conclusion of the management negotiations provided for in Section 18.2.

18.4. Arbitration Process. The arbitrator shall have the discretion to order depositions of witnesses to the extent the arbitrator deems such discovery relevant and appropriate. Depositions shall be limited to a maximum of three (3) per Party and shall be held within thirty (30) days of the making of a request for depositions. Additional depositions may be scheduled only with the permission of the arbitrator, and for good cause shown. Each deposition shall be limited to a maximum of six (6) hours duration unless otherwise permitted by the arbitrator for good cause shown.

All objections are reserved for the Arbitration hearing except for objections based on privilege and proprietary and confidential information. The arbitrator shall also have discretion to order the Parties to exchange relevant documents. The arbitrator shall also have discretion to order the Parties to answer interrogatories, upon good cause shown.

18.4.1. Each of the Parties shall submit to the arbitrator, in accordance with a schedule set by the arbitrator, offers in the form of the award it considers the arbitrator should make. If the arbitrator requires the Parties to submit more than one such offer, the arbitrator shall designate a deadline by which time the Parties shall submit their last and best offer. In such proceedings the arbitrator shall be limited to awarding only one of the two “last and best” offers submitted, and shall not determine an alternative or compromise remedy.

18.4.2. The arbitrator shall have no authority to award punitive or exemplary damages or any other damages other than direct and actual damages and the other remedies contemplated by this Agreement.

18.4.3. The arbitrator’s award shall be made within nine (9) months of the notice of intention to arbitrate and the arbitrator shall agree to comply with this schedule before accepting appointment.

However, this time limit may be extended by agreement of the Parties or by the arbitrator, if necessary. At the conclusion of the Arbitration, the arbitrator shall prepare in writing and provide to each Party a decision setting forth factual findings, legal analysis, and the reasons on which the arbitrator’s decision is based.

18.4.4. The arbitrator shall not have the power to commit errors of law or fact, or to commit any abuse of discretion, that would constitute reversible error had the decision been rendered by a California superior court. The arbitrator’s decision may be vacated or corrected on appeal to a California court of competent jurisdiction for such error.

18.4.5. The California Superior Court of the City and County of San Francisco may enter judgment upon any award rendered by the arbitrator. The Parties are aware of the decision in Advanced Micro Devices, Inc. v. Intel Corp., 9 Cal. 4th 362 (1994) and, except as modified by this Agreement, intend to limit the power of the arbitrator to that of a Superior Court judge enforcing California Law.

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18.4.6. The prevailing Party in this dispute resolution process is entitled to recover its costs and reasonable attorneys’ fees.

18.4.7. The arbitrator shall have the authority to grant dispositive motions prior to the commencement of or following the completion of discovery if the arbitrator concludes that there is no material issue of fact pending before him or her.

18.4.8. Unless otherwise agreed to by the Parties, all proceedings before the arbitrator shall be reported and transcribed by a certified court reporter, with each Party bearing one-half of the court reporter’s fees.

18.4.9. Except as may be required by Law, neither a Party nor an arbitrator may disclose the existence, content, or results of any Arbitration hereunder without the prior written consent of both Parties.

19. MISCELLANEOUS

19.1. Severability. If any provision in this Agreement is determined to be invalid, void or unenforceable by the CPUC or any court having jurisdiction, such determination shall not invalidate, void, or make unenforceable any other provision, agreement or covenant of this Agreement. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

19.2. Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original and all of which shall be deemed one and the same Agreement. Delivery of an executed counterpart of this Agreement by facsimile or PDF transmission will be deemed as effective as delivery of an originally executed counterpart. Each Party delivering an executed counterpart of this Agreement by facsimile or PDF transmission may also deliver an originally executed counterpart, but the failure of any Party to deliver an originally executed counterpart of this Agreement will not affect the validity or effectiveness of this Agreement.

19.3. General. This Agreement has been approved by the CPUC and modification of the terms and conditions of this Agreement, other than administrative amendments that do not impact the CPUC approved standard terms and conditions of this Agreement, will result in the need to obtain additional CPUC approval of the amended Agreement. In addition to the foregoing, no amendment to or modification of this Agreement shall be enforceable unless reduced to writing and executed by both Parties. This Agreement shall not impart any rights enforceable by any third party other than a permitted successor or assignee bound to this Agreement. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default. The term “including” when used in this Agreement shall be by way of example only and shall not be considered in any way to be in limitation. The headings used herein are for convenience and reference purposes only.

19.4. Interpretation. Whenever this Agreement specifically refers to any Law, tariff, Governmental Authority, regional reliability council, Transmission/Distribution Owner, or credit rating agency, the Parties hereby agree that the references also refers to any successor to such Law, tariff or organization.

19.5. Construction. The Parties acknowledge and agree that this Agreement has been approved by the CPUC and that the Agreement will not be construed against any Party as a result of the preparation, substitution, or other event of negotiation, drafting or execution thereof.

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IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed by its authorized representative as of the date of last signature provided below. [CCA]
(Seller) (Buyer)
(Signature) (Signature)
(Type/Print Name) (Type/Print Name)
(Title) (Title)
(Date) (Date)

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APPENDIX A -- DEFINITIONS
APPENDIX A – DEFINITIONS
“Accepted Compliance Costs” has the meaning set forth in Section 3.6.3. “Active Interconnection Study” has the meaning set forth in Section 4.6(a) of the BioMAT Tariff. “Affiliate” means, with respect to a Party, any entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with that Party. “Aggregate Network Upgrade Costs” has the meaning set forth in Section 13.9.1.1. “Agreement” means this Power Purchase Agreement between Buyer and Seller, including the Cover Sheet and all appendices,schedules and exhibits attached hereto. For purposes of Section 17, the word “agreement” shall have the meaning set forth in this definition. For purposes of Section 3.3.9, the word “contract” shall have the meaning set forth in this definition.
“Annual Fuel Attestation” means the yearly attestation of the Project’s compliance with the Fuel Resource Requirements for the applicable Contract Year in the form of Appendix L. [For all Projects except Projects with a High Hazard Fuel Requirement]
“Annual Fuel Attestation” has the meaning set forth in Section 4.4.3. [For all Projects with a High Hazard Fuel Requirement]
“Annual Fuel Attestation Deadline” has the meaning set forth in Section 4.4.3. [For all Projects except Projects with a High Hazard Fuel Requirement]
“Annual High Hazard Fuel Attestation Deadline” has the meaning set forth in Section 4.4.3. [For all Projects with a High Hazard Fuel Requirement]
“Annual Fuel Attestation Due Date” has the meaning set forth in Section 4.4.3. [For all Projects except Projects with a High Hazard Fuel Requirement]
"Annual Low-voltage Side Metering Attestation” has the meaning set forth in Section 5.2.1.3. [For Projects utilizing Low-voltage Side Metering]
“Annual Low-voltage Side Metering Attestation Deadline” has the meaning set forth in Section

5.2.1.3. [For Projects utilizing Low-voltage Side Metering] “Applicable Standards” means, collectively, the requirements in this Agreement, the CAISO Tariff and the CAISO Business Practice Manual for Metering that are applicable to the Project’s CAISO revenue meter. “Arbitration” has the meaning set forth in Section 18.3. “Availability Standards” means the program set forth in Section 40.9 of the CAISO Tariff, as it may be amended, supplemented or replaced (in whole or in part) from time to time, setting forth certain standards regarding the desired level of availability for Resource Adequacy resources and possible charges and incentive payments for performance thereunder.
“Bankrupt” means with respect to any entity, such entity:

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APPENDIX A -- DEFINITIONS
(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; (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 such entity or any substantial portion of its property or assets; or (e) Is generally unable to pay its debts as they fall due. “Biogas” includes digester gas, landfill gas, and any gas derived from a feedstock eligible under the Eligibility Guidebook.
“BioMAT Program” means Buyer’s bioenergy market adjusting tariff program described in Buyer’s Schedule BioMAT, implemented by Buyer in accordance with CPUC Decisions 14-12-081, 15-09-004, and 23-11- 084.
“BioMAT Tariff” means Buyer’s Schedule BioMAT implemented by Buyer in accordance with CPUC Decisions 14-12-081, 15-09-004, 16-10-025, and 23-11-084. “Biomethane” means landfill gas or digester gas, consistent with California Public Resources Code Section 25741 and California Public Utilities Code Section 399.12.6, subdivision (g). “Bone Dry Ton” or “BDT” means a unit of weight equal to 2,000 pounds of woody material at zero percent (0%) moisture content.
“Business Day” means any day except a Saturday, Sunday, a Federal Reserve Bank holiday, or the Friday following Thanksgiving during the hours of 8:00 a.m. and 5:00 p.m. local time for the relevant Party’s principal place of business where the relevant Party in each instance shall be the Party from whom the notice, payment or delivery is being sent.
“Business Practice Manual for Metering” means the CAISO Business Practice Manual for Metering, Version 19, as amended from time to time.
“Buyer” has the meaning set forth in the Cover Sheet.
“Buyer’s WREGIS Account” has the meaning set forth in Section 3.3.1. [For Facilities (1) 0.5 MW or greater and (2) eligible for a CAISO revenue meter.]
“CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
“CAISO Grid” means the system of transmission lines and associated facilities that have been placed under the CAISO’s operational control.
“CAISO Penalties” means any fees, liabilities, assessments, or similar charges assessed by the CAISO for (a) violation of the CAISO Tariff and all applicable protocols, WECC rules or CAISO operating instructions or orders or (b) as a result of Seller’s failure to follow Prudent Electrical Practices. “CAISO Penalties” do not include the costs and charges related to Scheduling and imbalances as addressed in Section 14.1 of this Agreement.

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“CAISO Tariff” means the CAISO FERC Electric Tariff, Fifth Replacement Volume No. 1, as amended from time to time.
“California Renewables Portfolio Standard” means the renewable energy program and policies codified in California Public Utilities Code Sections 399.11 through 399.31 and California Public Resources Code Sections 25740 through 25751, as such provisions may be amended or supplemented from time to time. “Calendar Quarter” refers to one of the following time periods, as applicable: January 1 through March 31; April 1 through June 30; July 1 through September 30; or October 1 through December 31. [For all Projects with a High Hazard Fuel Requirement]
“Calendar Year” means the time period January 1 through December 31 for the applicable year. “Capacity Attributes” means any current or future defined characteristic, certificate, tag, credit, or ancillary service attribute, whether general in nature or specific as to the location or any other attribute of the Project, intended to value any aspect of the capacity of the Project to produce Energy or ancillary services, including, but not limited to, any accounting construct so that the full Contract Capacity of the Project may be counted toward a Resource Adequacy Requirement or any other measure by the CPUC, the CAISO, the FERC, or any other entity invested with the authority under federal or state Law, to require Buyer to procure, or to procure at Buyer’s expense, Resource Adequacy or other such products. “Category 1” has the meaning set forth in Section 14 of the BioMAT Tariff. “Category 2 (Dairy)” has the meaning set forth in Section 14 of the BioMAT Tariff. “Category 2 (Other Agriculture)” has the meaning set forth in Section 14 of the BioMAT Tariff. “Category 3” has the meaning set forth in Section 14 of the BioMAT Tariff. “CCP Communications” has the meaning set forth in Section 4.4.6. [For Projects utilizing Eligible Directed Biogas]
“CEC” means the California Energy Commission or its successor agency. “CEC Certification” means certification by the CEC that the Facility is an ERR and that all Energy produced by the Facility qualifies as generation from an ERR. “CEC Common Carrier Pipeline Report” shall mean the Annual Facility Report filed each year by a certified facility using Common Carrier Pipeline Biomethane during the previous calendar year, as described in Chapter 6 of the Eligibility Guidebook. [For Projects utilizing Eligible Directed Biogas] “CEC Pre Certification” means provisional certification of the proposed Facility as an ERR by the CEC upon submission by a facility of a complete CEC-RPS-1B application and required supplemental information. “CEC Verification” means verification by the CEC based on ongoing reporting by Seller that the Facility is an ERR and that all Energy produced by the Facility qualifies as generation from an ERR. “Check Meter” means the Buyer revenue-quality meter section(s) or meter(s), which Buyer may require at its discretion, and which will include those devices normally supplied by Buyer or Seller under the applicable utility electric service requirements.

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“Claiming Party” has the meaning set forth in Section 10.2. “Collateral Requirement” has the meaning set forth in Section 12.1. “Commercial Operation” means the Facility is operating and able to produce and deliver the Product to Buyer pursuant to the terms of this Agreement.
“Commercial Operation Date” means the date on which the Facility achieves Commercial Operation pursuant to the terms of this Agreement.
“Common Carrier Pipeline” means a gas conveyance pipeline that is owned or operated by a utility or gas corporation, excluding a dedicated pipeline, and which meets the applicable standards set forth in the Eligibility Guidebook and BioMAT Program. [For Projects utilizing Eligible Directed Biogas] “Compliance Action” has the meaning set forth in Section 3.6.1. “Compliance Expenditure Cap” has the meaning set forth in Section 3.6. “Contract Capacity” means the lesser of: (a) [the of Nameplate Capacity [For all Facilities except those with a Nameplate Capacity greater than three megawatts] [that portion of the Nameplate Capacity which is specified as the Contract Capacity in the Cover Sheet] [Only for Facilities with a Nameplate Capacity greater than three megawatts] and (b) the Demonstrated Contract Capacity. “Contract Price” has the meaning set forth in Section 2.6. “Contract Quantity” has the meaning set forth in Section 2.2.
“Contract Quarter” means a period of three (3) consecutive months with the first Contract Quarter commencing on the Commercial Operation Date and each subsequent Contract Quarter commencing on the date that is every three months thereafter. [For Category 3 Projects utilizing High Hazard Fuel except Projects with a High Hazard Fuel Requirement]
“Contract Year” means a period of twelve (12) consecutive months with the first Contract Year commencing on the Commercial Operation Date and each subsequent Contract Year commencing on the anniversary of the Commercial Operation Date.
“Costs” means (a) brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred either in terminating any arrangement pursuant to which it has hedged its obligations or in entering into new arrangements which replace the Transaction; and (b) all reasonable attorneys’ fees and expenses incurred in connection with the termination of the Transaction. “Cover Sheet” means the cover sheet to this Agreement.
“CPUC” means the California Public Utilities Commission, or successor entity. “Credit Rating” means, with respect to any entity, (a) the rating then assigned to such entity’s unsecured senior long-term debt obligations (not supported by third party credit enhancements), or (b) if such entity does not have a rating for its unsecured senior long-term debt obligations, then the rating assigned to such entity as an issuer rating by S&P and/or Moody’s. If the entity is rated by both S&P and Moody’s and such ratings are not equivalent, the lower of the two ratings shall determine the Credit Rating. If the entity is rated by either S&P or Moody’s, but not both, then the available rating shall determine the Credit Rating.

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“Cure” has the meaning set forth in Section 12.6.
“Curtailment Order” means any instruction from Buyer to Seller to reduce the delivery of Energy from the Facility for any reason other than as set forth in Sections 5.8.1(a) or (b). “Daily Delay Liquidated Damages” has the meaning set forth in Section 1.1.2.4. “Day-Ahead” has the meaning set forth in the CAISO Tariff. “Deficient Month” has the meaning set forth in Section 3.3.5. [For Facilities (1) 0.5 MW or greater and (2) eligible for a CAISO revenue meter.]
“Delay” has the meaning set forth in Section 1.2.1.
“Deliverability Upgrades” means all Network Upgrades necessary for the Facility to receive Full Capacity Deliverability Status.
“Delivered Energy” means all Energy produced from the Project, expressed in MWh, as recorded by the meter specified in Section 5.2.1 or the Check Meter, as applicable. “Delivery Point” means the point of interconnection to the CAISO Grid and, for payment purposes, the corresponding PNode.
“Delivery Term” has the meaning set forth in Section 2.5. “Delivery Term Contract Quantity Schedule” has the meaning set forth in the Cover Sheet. “Demonstrated Contract Capacity” means the Facility’s total rated electric alternating current energy generating capacity which will equal the sum of the metered amounts for the Demonstration Hour, as determined in accordance with Appendix J.
“Demonstrated Nameplate Capacity” means the Facility’s total rated electric alternating current generating capacity, which will equal the lesser of (a) the sum of the manufacturer’s nameplate rating of all installed generators (kW), and (b) the sum of the manufacturer’s nameplate power rating of all installed primer movers (kW), as determined in accordance with Appendix J. [For Facilities with a Nameplate Capacity greater than three megawatts]
“Demonstrated Date” has the meaning set forth in Appendix J. [For Facilities with a Nameplate Capacity greater than three megawatts]
“Demonstration Hour” has the meaning set forth in Appendix J “Distribution Line” has the meaning set forth in Section 14 of the BioMAT Tariff. “Distribution Upgrades” has the meaning set forth in the CAISO Tariff. “Early Termination Date” has the meaning set forth in Section 13.3. “Electric System Upgrades” means any Network Upgrades, Distribution Upgrades, Deliverability Upgrades, or Interconnection Facilities that are determined to be necessary by the CAISO or Transmission/Distribution Owner, as applicable, to physically and electrically interconnect the Project to the Transmission/Distribution Owner’s electric system for receipt of Energy at the Point of Interconnection

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(as defined in the CAISO Tariff) if connecting to the CAISO Grid, or the Interconnection Point, if the Transmission/Distribution Owner’s electric system is not part of the CAISO Grid. “Eligible Directed Biogas” shall mean Common Carrier Pipeline Biomethane that (a) meets the applicable requirements established in the Eligibility Guidebook; (b) is from a fuel stock that is an eligible Fuel Resource Category within the BioMAT program; and (c) meets the following conditions: (i) a corresponding amount of eligible fuel delivered through the Common Carrier Pipeline is nominated to the Facility, (ii) the eligible fuel that is nominated and delivered to the Facility has been injected into the Common Carrier Pipeline within the same calendar year, (iii) such eligible fuel has not been resold or double-sold by Seller or any of Seller’s direct or indirect suppliers, and (iv) any renewable and environmental attributes associated with such eligible fuel have not been sold to a person other than Seller and have not been used by Seller or any other person to satisfy any obligation other than the Project’s compliance with this Agreement. [For Projects utilizing Eligible Directed Biogas.]
“Eligible Renewable Energy Resource” or “ERR” has the meaning set forth in Public Utilities Code Sections 399.12 and California Public Resources Code Section 25741, as either code provision may be amended or supplemented from time to time.
“Eligibility Guidebook” means the CEC’s Renewables Portfolio Standard – Eligibility Guidebook (Seventh Edition, California Energy Commission, Efficiency and Renewable Energy Division, Publication Number: CEC-300-2013-005-EDF-CMF-REV), as amended from time to time, or its successor publication. “Emergency” means (a) an actual or imminent condition or situation which jeopardizes the integrity of the electric system or the integrity of any other systems to which the electric system is connected or any condition so defined and declared by the CAISO; or (b) an emergency condition as defined under an interconnection agreement and any abnormal interconnection or system condition that requires automatic or immediate manual action to prevent or limit loss of load or generation supply, that could adversely affect the reliability of the electric system or generation supply, that could adversely affect the reliability of any interconnected system, or that could otherwise pose a threat to public safety.
“Energy” means three-phase, 60-cycle alternating current electric energy measured in MWh, net of Station Use and, in the case of Excess Sales arrangements, any Site Host Load. “Energy Deviation(s)” means the absolute value of the difference, in MWh, in any Settlement Interval between (a) the final accepted Bid (as defined in the CAISO Tariff) submitted for the Project for the hour of the Settlement Interval divided by the number of Settlement Intervals in the hour; and (b) Delivered Energy for the Settlement Interval.
“Engineer Report” has the meaning set forth in Appendix J. “Event of Default” has the meaning set forth in Section 13.2.
“Excess Network Upgrade Costs” has the meaning set forth in Section 13.9.2. “Excess Sale” means the type of transaction described in Section 2.3.2. “Execution Date” means the latest signature date found at the end of the Agreement. “Existing [IOU] Transmission Line” has the meaning set forth in the BioMAT Tariff. “Expected Generation Output” means the amount of power output from the Facility, expressed in megawatts, that is expected to generate Product in a given time period.

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“Facility” has the meaning set forth in the Preamble. The terms “Facility” or “Project” as used in this Agreement are interchangeable.
“FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Forced Outage” means any unplanned reduction or suspension of the electrical output from the Facility resulting in the unavailability of the Facility, in whole or in part, in response to a mechanical, electrical, or hydraulic control system trip or operator-initiated trip in response to an alarm or equipment malfunction and any other unavailability of the Facility for operation, in whole or in part, for maintenance or repair that is not a scheduled maintenance outage and not the result of Force Majeure. “Force Majeure” means any occurrence that was not anticipated as of the Execution Date that:
(a) In whole or in part:
(i) Delays a Party’s performance under this Agreement;
(ii) Causes a Party to be unable to perform its obligations; or (iii) Prevents a Party from complying with or satisfying the conditions of this Agreement;
(b) Is not within the control of that Party; and
(c) The Party has been unable to overcome by the exercise of due diligence, including an act of God, flood, drought, earthquake, storm, fire, pestilence, lightning and other natural catastrophes, epidemic, war, riot, civil disturbance or disobedience, terrorism, sabotage, strike or labor dispute
Force Majeure does not include:
(d) Seller’s inability to obtain sufficient fuel, power or materials to operate the Project, except if Seller's inability to obtain sufficient fuel, power or materials is caused solely by an event of Force Majeure of the specific type described in (a) through (c) above (e) Reductions in generation from the Facility resulting from ordinary wear and tear, deferred maintenance or operator error;
(f) Any delay in providing, or cancellation of, interconnection service by a Transmission/Distribution Owner or the CAISO, except to the extent such delay or cancellation is the result of a force majeure claimed by the Transmission/Distribution Owner or the CAISO.
(g) [Any invalidation of, or change to, the CAISO approval for Low-voltage Side Metering or failure to comply with the CAISO Tariff due to the Low-voltage Side Metering.] [For Projects utilizing Low-voltage Side Metering]
“Force Majeure Delay” has the meaning set forth in Section 1.1.2.3 “Forecasting Penalty” has the meaning set forth in Section 14.2.1. “Fuel Attestation” has the meaning set forth in Section 4.4.3.

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“Fuel Performance Measurement Period” has the meaning set forth in Appendix M. “Fuel Resource Category” means any of Category 1, Category 2 (Dairy), Category 2 (Other Agriculture) or Category 3 fuel resources as defined in the BioMAT Tariff. “Fuel Resource Cure Period” has the meaning set forth in Appendix M. “Fuel Resource Failure” has the meaning set forth in 13.2.2.14. “Fuel Resource Requirements” has the meaning set forth in Section 4.4.2. “Fuel Use” has the meaning set forth in Section 4.4.1.
“Fuel Use Default Payment” has the meaning set forth in Section 13.5.1.1 “Full Buy/Sell” is the type of transaction described in Section 2.3.1. “Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff. “Full Capacity Option Notice” has the meaning set forth in Section 3.4.3. “Gains” means with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of the Transaction, determined in a commercially reasonable manner, subject to Section 13.5. Factors used in determining economic benefit may include, without limitation, reference to information either available to it internally or supplied by one or more third parties, including, without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, market price referent, market prices for a comparable transaction, forward price curves based on economic analysis of the relevant markets, settlement prices for a comp arable transaction at liquid trading platforms (e.g., NYMEX), all of which should be calculated for the remaining Delivery Term to determine the value of the Product. “GEP Damages” has the meaning set forth in Appendix F.
“GEP Failure” means Seller’s failure to produce Delivered Energy in an amount equal to or greater than the Guaranteed Energy Production amount for the applicable Performance Measurement Period. “Governmental Authority” means any federal, state, local or municipal government, governmental department, commission, board, bureau, agency, or instrumentality, or any judicial, regulatory or administrative body, having jurisdiction as to the matter in question. “Governmental Charges” has the meaning set forth in Section 14.4. “Guaranteed Commercial Operation Date” has the meaning set forth in Section 1.1.2. “Guaranteed Energy Production” or “GEP” has the meaning set forth in Section 11.1. “High Hazard Fuel Requirement” has the meaning set forth in Section 4.4.2. [For all Projects with a High Hazard Fuel Requirement]
"High Hazard Fuel Use" means High Hazard Fuel that is delivered to the Project for Fuel Use. [For all Projects with a High Hazard Fuel Requirement]

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“High Hazard Fuel” has the meaning set forth in Section 14 of the BioMAT Tariff. “IFM” has the meaning set forth in the CAISO Tariff.
"High-voltage Side Metering” has the meaning set forth in Section 5.2.1. “Interconnection Facilities” has the meaning set forth in the tariff applicable to the Seller’s interconnection agreement.
“Interconnection Point” means the location where the Facility first interconnects with the existing electrical system via Distribution Line or Existing Transmission Line as identified in the Cover Sheet. “Interconnection Study” means any of the studies defined in the CAISO Tariff or any Transmission/Distribution Owner’s tariff that reflect methodology and costs to interconnect the Facility to the Transmission/Distribution Owner’s electric grid, by which either CAISO or the Transmission/Distribution Owner evaluates the impacts of a proposed interconnection to the electric grid, and assigns mitigations to offset the identified impacts. Types of study processes include the IOU System Impact Study in the Independent Study Process, a completed IOU Distribution Group Study Phase 1 Interconnection Study in the Distribution Group Study Process, a completed IOU Phase 1 Study in the Cluster Study Process or a completed CAISO Cluster Study, Independent Study or Fast Track Study, or make use of an existing interconnection agreement to the extent permitted by IOU’s or CAISO’s tariff.
“Interconnection Study Completion Date” means the date Seller receives an Active Interconnection Study, which shall be the date Seller receives a tendered interconnection agreement from Transmission/Distribution Owner. [For Category 3 Projects that do not have an Active Interconnection Study prior to the Execution Date] “Interest Rate” means the rate per annum equal to the “Monthly” Federal Funds Rate (as reset on a monthly basis based on the latest month for which such rate is available) as reported in Federal Reserve Bank Publication H.15-519, or its successor publication.
“Interim Deliverability Status” has the meaning set forth in the CAISO Tariff. “JAMS” means JAMS, Inc. or its successor entity, a judicial arbitration and mediation service. “kW” means kilowatt.
“kWh” means kilowatt-hour.
“Law” means any statute, law, treaty, rule, regulation, ordinance, code, permit, enactment, injunction, order, writ, decision, authorization, judgment, decree or other legal or regulatory determination or restriction by a court or Governmental Authority of competent jurisdiction, including any of the foregoing that are enacted, amended, or issued after the Execution Date, and which becomes effective during the Delivery Term; or any binding interpretation of the foregoing.
“Letter(s) of Credit” means an irrevocable, non-transferable standby letter of credit issued either by (a) a U.S. commercial bank, or (b) a U.S. branch of a foreign commercial bank, acceptable to Buyer, with either such bank having a Credit Rating of at least: (i) an A- from S&P with a stable designation and an A3 from Moody’s with a stable designation, if such bank is rated by both S&P and Moody’s; or (ii) an A- from S&P with a stable designation or an A3 from Moody’s with a stable designation, if such bank is

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rated by either S&P or Moody’s, but not both, even if such bank was rated by both S&P and Moody’s as of the date of issuance of the Letter of Credit but ceases to be rated by either, but not both of those ratings agencies. The Letter of Credit must be substantially in the form as contained in Appendix G to this Agreement; provided that if the Letter of Credit is issued by a branch of a foreign bank, Buyer may require changes to such form. “Licensed Professional Engineer” means a person acceptable to Buyer in its reasonable judgment who (a) is licensed to practice engineering in California, (b) has training and experience in the power industry specific to the technology of the Project, (c) has no economic relationship, association, or nexus with Seller or Buyer, other than to meet the obligations of Seller pursuant to this Agreement, (d) is not a representative of a consultant, engineer, contractor, designer or other individual involved in the development of the Project or of a manufacturer or supplier of any equipment installed at the Project, and
(e) is licensed in an appropriate engineering discipline for the required certification being made. “Losses” means, with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from the termination of the Transaction, determined in a commercially reasonable manner, subject to Section 13.5. Factors used in determining the loss of economic benefit may include, without limitation, reference to information either available to it internally or supplied by one or more third parties including, without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, market price referent, market prices for a comparable transaction, forward price curves based on economic analysis of the relevant markets, settlement prices for a comparable transaction at liquid trading platforms (e.g. NYMEX), all of which should be calculated for the remaining term of the Transaction to determine the value of the Product. "Low-voltage Side Metering” has the meaning set forth in Section 5.2.1. “Manager” has the meaning set forth in Section 18.2.1.
“mmBTU” means one million British thermal units
“Meter Service Agreement” has the meaning set forth in the CAISO Tariff. “Monthly Multi-Fuel Report Deadline” has the meaning set forth in Section 5.12. [For Projects utilizing Eligible Directed Biogas or For Projects using fuel for Station Use that is not from a Fuel Resource Category.] “Monthly Period” has the meaning set forth in Appendix C. “Monthly TOD Payment” has the meaning set forth in Section 2.7.3. “MW” means megawatt.
“Multi-Fuel Report” has the meaning set forth in Section 5.12. [For Projects utilizing Eligible Directed Biogas or For Projects using fuel for Station Use that is not from a Fuel Resource Category.] “MWh” means megawatt-hour.
“Nameplate Capacity” means the lesser of the total alternating current real power rating of the generator nameplate(s) (kW) and the nameplate power rating of the prime movers (kW), as set forth in Section 2.1

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“Negative LMP” means in any Settlement Interval, the locational marginal price, as defined in the CAISO Tariff, at the PNode associated with the Facility’s Delivery Point that is lessthan zero dollars($0). [Only for Facilities with a Nameplate Capacity greater than three megawatts] “Negative LMP Costs” has the meaning set forth in Section 2.6.2. [Only for Facilities with a Nameplate Capacity greater than three megawatts]
“Network Upgrades” has the meaning set forth in the CAISO Tariff. “Network Upgrades Cap” has the meaning set forth in Section 13.9.1.1. “Notice,” unless otherwise specified in the Agreement, means written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail). “Paid Curtailed Product” has the meaning set forth in Section 5.8.3. The amount of “Paid Curtailed Product” shall be determined as set forth in Section 5.8.4. “Partial Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff. “Participating Generator Agreement” has the meaning set forth in the CAISO Tariff. “Party” means the Buyer or Seller individually, and “Parties” means both collectively. For purposes of Section 17 (Governing Law) the word “party” or “parties” shall have the meaning set forth in this definition.
“Payment Allocation Factors” shall initially mean the energy-only payment allocation factors set forth in Appendix C. Effective with respect to payments for periods beginning on or after the first day of the calendar month following receipt of a valid Full Capacity Option Notice, “Payment Allocation Factors” shall mean, with respect to such periods, the full capacity deliverability payment allocation factors set forth in Appendix C. “Payment Limit” has the meaning set forth in Section 2.6.2.[Only for Facilities with a Nameplate Capacity greater than three megawatts]
“Performance Measurement Period” has the meaning set forth in Section 11.1. “Performance Tolerance Band” shall be calculated as set forth in Section 14.2.2. “Permitting Delay” has the meaning set forth in Section 1.1.2.1. “Permitted Extensions” has the meaning set forth in Section 1.1.2. “Planned Outage” means the removal of equipment from service availability for inspection and/or general overhaul of one or more major equipment groups. To qualify as a Planned Outage, the maintenance (a) must actually be conducted during the Planned Outage, and in Seller’s sole discretion must be of the type that is necessary to reliably maintain the Project, (b) cannot be reasonably conducted during Project operations, and (c) causes the generation level of the Project to be reduced by at least ten percent (10%) of the Contract Capacity. “PNode” has the meaning set forth in the CAISO Tariff.

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“Product” means all electric energy produced by the Facility throughout the Delivery Term, net of Station Use, electrical losses from the Facility to the Delivery Point, and, in the case of Excess Sale arrangements, any Site Host Load; all Renewable Energy Credits; all Capacity Attributes, if any; and all Resource Adequacy Benefits, if any; generated by, associated with or attributable to the Facility throughout the Delivery Term. “Program Participation Request” or “PPR” means that certain Program Participation Request submitted by Seller to Buyer as part of Seller’s application to participate in the BioMAT Program. “Project” has the meaning set forth in the Preamble. The terms “Facility” and “Project” as used in this Agreement are interchangeable.
“Prudent Electrical Practices” means those practices, methods and acts that would be implemented and followed by prudent operators of electric energy generating facilities in the Western United States, similar to the Facility, during the relevant time period, which practices, methods and acts, in the exercise of prudent and responsible professional judgment in the light of the facts known at the time the decision was made, could reasonably have been expected to accomplish the desired result consistent with good business practices, reliability and safety. Prudent Electrical Practices shall include, at a minimum, those professionally responsible practices, methods and acts described in the preceding sentence that comply with manufacturers’ warranties, restrictions in this Agreement, and the requirements of Governmental Authorities, WECC standards, the CAISO and Laws. Prudent Electrical Practices also includes taking reasonable steps to ensure that:
(a) Equipment, materials, resources, and supplies, including spare parts inventories, are available to meet the Facility’s needs;
(b) Sufficient operating personnel are available at all times and are adequately experienced and trained and licensed as necessary to operate the Facility properly and efficiently, and are capable of responding to reasonably foreseeable emergency conditions at the Facility and Emergencies whether caused by events on or off the Site;
(c) Preventive, routine, and non-routine maintenance and repairs are performed on a basis that ensures reliable, long term and safe operation of the Facility, and are performed by knowledgeable, trained, and experienced personnel utilizing proper equipment and tools; (d) Appropriate monitoring and testing are performed to ensure equipment is functioning as designed;
(e) Equipment is not operated in a reckless manner, in violation of manufacturer’s guidelines or in a manner unsafe to workers, the general public, or the Transmission/Distribution Owner’s electric system or contrary to environmental laws, permits or regulations or without regard to defined limitations such as, flood conditions, safety inspection requirements, operating voltage, current, volt ampere reactive (VAR) loading, frequency, rotational speed, polarity, synchronization, and control system limits; and
(f) Equipment and components are designed and manufactured to meet or exceed the standard of durability that is generally used for electric energy generating facilities operating in the Western United States and will function properly over the full range of ambient temperature and weather conditions reasonably expected to occur at the Site and under both normal and emergency conditions.

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“PURPA” means the Public Utility Regulatory Policies Act of 1978, Public Law, 95 617, as amended from time to time.
“Qualifying Facility” means an electric energy generating facility that complies with the qualifying facility definition established by PURPA and any FERC rules as amended from time to time (18 Code of Federal Regulations Part 292, Section 292.203 et seq.) implementing PURPA and, to the extent required to obtain or maintain Qualifying Facility status, is self-certified as a Qualifying Facility or is certified as a Qualified Facility by the FERC.
“Quarterly Fuel Attestation” has the meaning set forth in Section 4.4.4. [For all Projects with a High Hazard Fuel Requirement]
“Quarterly Fuel Attestation Deadline” has the meaning set forth in Section 4.4.4. [For all Projects with a High Hazard Fuel Requirement]
“Quarterly High Hazard Fuel Attestation Deadline” has the meaning set forth in Section 4.4.4.[For all Projects with a High Hazard Fuel Requirement]
“Reduction for Nonuse of Fuel Resource Category Fuel” has the meaning set forth in Section

2.7.3. [For Projects utilizing Eligible Directed Biogas or For Projects using fuel for Station Use that is not from a Fuel Resource Category.]
“Registered Professional Forester” means a professional forester registered as such through the State of California’s Office of Professional Foresters Registration at the time of the Annual Fuel Attestation and the Verification of Fuel Source and Delivery submittal. [For all Projects with a High Hazard Fuel Requirement] “Renewable Energy Credit” has the meaning set forth in Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Law. “Resource Adequacy” means the procurement obligation of load serving entities, including Buyer, as such obligations are described in CPUC Decisions D.04-10-035 and D.05-10-042 and subsequent CPUC decisions addressing Resource Adequacy issues, as those obligations may be altered from time to time in the CPUC Resource Adequacy Rulemakings (R.) 04-04-003 and (R.) 05-12-013 or by any successor proceeding, and all other Resource Adequacy obligations established by any other entity, including the CAISO. “Resource Adequacy Benefits” means the rights and privileges attached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and shall include any local, zonal or otherwise locational attributes associated with the Facility. “Resource Adequacy Requirements” has the meaning set forth in Section 3.4.1. “Resource Adequacy Rulings” means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-06- 064, 06-07-031, 07-06-029, 08-06-031, 09-06-028, 10-06-018, 10-06-036, 10-12-038, 11-06-022, 12-06- 025, 13-06-024, 14-06-050 and any subsequent CPUC ruling or decision, or any other resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time- to-time during the Delivery Term.
“Restricted Period” has the meaning set forth in Section 13.8.1.

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Central Coast Community Energy (3CE) Executive CommitteeJune 26, 2024

Central Coast Community Energy (3CE) Executive Committee
June 26, 2024