CEA executed a term sheet and has negotiated an ESRAA with Circle City Energy Storage LLC for this project. Staff recommends the Board adopt Resolution No. 2025-037 authorizing the Chief Executive Officer to execute the final ESRAA, subject to CEA’s Transactions Attorney approval of the form and any changes.
FISCAL IMPACT:
There will be no cost to CEA associated with this Agreement until construction is completed, with the project reaching operations starting in June 2026. Contract costs will be included in the financial pro-forma and starting with CEA’s FY26/27 budget. The competitive energy pricing of the ESRAA is confidential, but the long-term purchase of this capacity will provide CEA with MTR and RA value over the term of the agreement.
Submitted for Board consideration:
___________________________________
Gregory Wade
Chief Executive Officer
ATTACHMENTS:
A. Resolution No. 2025-037, approving of 10-Year Energy Storage Resource Adequacy Agreement (ESRAA) with Circle City Energy Storage LLC and Authorizing Execution of the ESRAA B. Redacted Energy Storage Resource Adequacy Agreement with Circle City Energy Storage LLC
CLEAN ENERGY ALLIANCE
RESOLUTION NO. 2025-037
A RESOLUTION OF THE BOARD OF DIRECTORS OF CLEAN ENERGY ALLIANCE
APPROVING A TEN-YEAR ENERGY STORAGE RESOURCE ADEQUACY AGREEMENT
WITH CIRCLE CITY ENERGY STORAGE LLC AND AUTHORIZING EXECUTION OF THE
AGREEMENT
WHEREAS, Clean Energy Alliance (CEA) is a joint powers authority established on November 4, 2019, and organized under the Joint Exercise of Powers Act (Government Code Section 6500 et seq.); and
WHEREAS, California Public Utilities Commission (CPUC) Decisions 21-06-035 and 23-02- 040 require all load serving entities, including community choice aggregators, to procure additional resources to ensure sufficient resources are available for reliability as older non-renewable resources (Diablo Canyon, among others), which decisions are commonly and collectively referred to as a load serving entity’s Midterm Reliability requirement; and WHEREAS, CEA joined with California Choice Energy Authority in issuing a joint solicitation in January 2024 for proposals to meet Midterm Reliability requirements; and WHEREAS, one of the shortlisted projects was proposed by Engie for the Circle City project that includes 28 MW of capacity from a 4-hour lithium-ion battery, which meets CPUC Midterm Reliability Procurement requirements and CPUC Resource Adequacy requirements; and WHEREAS, CEA has negotiated an Energy Storage Resource Adequacy Agreement (ESRAA) with Circle City Energy Storage LLC for the aforementioned project, which was considered by the Board of Directors of Clean Energy Alliance at its July 31, 2025 regular meeting.
NOW, THEREFORE, BE IT RESOLVED the Board of Directors of Clean Energy Alliance hereby finds, determines and resolves as follows:
Section 1. The foregoing recitals are true and correct and incorporated fully herein.
Section 2. A ten-year Energy Storage Resource Adequacy Agreement (ESRAA) with Circle City Energy Storage LLC for a project totaling 28 MW of 4-hour battery storage to begin delivering June 1, 2026 is hereby approved.
Section 3. The Chief Executive Officer is hereby authorized and directed to execute such ESRAA with Circle City Energy Storage LLC in a form substantially similar to that presented to the Board on July 31, 2025 with any changes approved by CEA’s Transactions Attorney. The Chief Executive Officer is hereby further authorized and directed to execute such other documents and Attachment A
CEA Resolution No. 2025-037
Circle City ESRAA
take such other and further actions as may be necessary and proper to accomplish the purposes of this resolution.
The foregoing Resolution was passed and adopted this 31st day of July, 2025, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
________________________________________
Katie Melendez, Board Chair
ATTEST:
_______________________________
Ana Marie Alarcon, Clerk to the Board
Attachment B
2 Scheduling Coordinator: Seller or Seller’s designee
Seller Credit Requirements:
Development Security: /kW of Storage Contract Capacity
Performance Security: /kW of Storage Contract Capacity, subject to a reduction (i.e., /kW of Storage Contract Capacity) each year on the anniversary of COD beginning on the third such anniversary.
TABLE OF CONTENTS
Page
i
ARTICLE 1 DEFINITIONS ........................................................................................................ 1
1.1 Contract Definitions ............................................................................................... 1
1.2 Rules of Interpretation ......................................................................................... 13 ARTICLE 2 TERM; CONDITIONS PRECEDENT.................................................................. 14
2.1 Contract Term. ..................................................................................................... 14
2.2 Conditions Precedent ........................................................................................... 14
2.3 Development; Construction; Progress Reports .................................................... 15
2.4 Remedial Action Plan .......................................................................................... 15
2.5 CPUC Mid-Term Reliability Requirements ........................................................ 15 ARTICLE 3 PURCHASE AND SALE ...................................................................................... 16
3.1 Purchase and Sale of Product ............................................................................... 16
3.2 Full Capacity Deliverability Status. ..................................................................... 17
3.3 Resource Adequacy Failure ................................................................................. 18
3.4 Compliance Expenditure Cap. ............................................................................. 19 ARTICLE 4 OBLIGATIONS AND DELIVERIES ................................................................... 20
4.1 Transfer of Resource Adequacy Benefits. ........................................................... 20
4.2 Seller’s Option To Provide Alternate Capacity. .................................................. 20
4.3 Buyer’s Re-Sale of RA Product. .......................................................................... 21
4.4 Hold-Back and Substitute Capacity ..................................................................... 22
4.5 Charging and Discharging Energy ....................................................................... 23
4.6 Reduction in Product Delivery Obligation .......................................................... 23
4.7 Facility Testing .................................................................................................... 24 ARTICLE 5 TAXES .................................................................................................................. 24
5.1 Allocation of Taxes and Charges. ........................................................................ 24
5.2 Cooperation. ......................................................................................................... 25 ARTICLE 6 MAINTENANCE OF THE STORAGE FACILITY ............................................ 25
6.1 Maintenance of the Facility. ................................................................................ 25
6.2 Maintenance of Health and Safety. ...................................................................... 25
6.3 Dedicated Interconnection Capacity. ................................................................... 25
6.4 Shared Facilities. .................................................................................................. 25 ARTICLE 7 METERING ........................................................................................................... 25
7.1 Metering. .............................................................................................................. 25 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ............................................................ 26
8.1 Invoicing. ............................................................................................................. 26
8.2 Payment................................................................................................................ 26
8.3 Books and Records. ............................................................................................. 26
8.4 Payment Adjustments; Billing Errors. ................................................................. 26
8.5 Billing Disputes. .................................................................................................. 27
8.6 Netting of Payments. ............................................................................................ 27 ii
8.7 Seller’s Development Security. ........................................................................... 27
8.8 Seller’s Performance Security.............................................................................. 27
8.9 Reserved. .............................................................................................................. 28
8.10 First Priority Security Interest in Cash or Cash Equivalent Collateral ................ 28 ARTICLE 9 NOTICES .............................................................................................................. 28
9.1 Addresses for the Delivery of Notices ................................................................. 28
9.2 Acceptable Means of Delivering Notice .............................................................. 29 ARTICLE 10 FORCE MAJEURE ............................................................................................. 29
10.1 Definition ............................................................................................................. 29
10.2 No Liability If a Force Majeure Event Occurs .................................................... 30
10.3 Notice ................................................................................................................... 30
10.4 Termination Following Force Majeure Event...................................................... 30 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ..................................................... 31
11.1 Events of Default ................................................................................................. 31
11.2 Remedies; Declaration of Early Termination Date. ............................................. 33
11.3 Damage Payment; Termination Payment ............................................................ 34
11.4 Notice of Payment of Termination Payment or Damage Payment ...................... 34
11.5 Disputes With Respect to Termination Payment or Damage Payment ............... 35
11.6 Rights And Remedies Are Cumulative ................................................................ 35
11.7 Mitigation ............................................................................................................. 35
11.8 35
ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES ........ 35
12.1 No Consequential Damages. ................................................................................ 35
12.2 Waiver and Exclusion of Other Damages. ........................................................... 35 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; ADDITIONAL
COVENANTS ............................................................................................... 36
13.1 Seller’s Representations and Warranties. ............................................................ 36
13.2 Buyer’s Representations and Warranties. ............................................................ 37
13.3 General Covenants. .............................................................................................. 38
13.4 Additional Seller Commitments. ......................................................................... 38
13.5 Additional Buyer Commitments. ......................................................................... 38 ARTICLE 14 ASSIGNMENT.................................................................................................... 39
14.1 General Prohibition on Assignments. .................................................................. 39
14.2 Collateral Assignment .......................................................................................... 39
14.3 Permitted Assignment by Seller........................................................................... 39 ARTICLE 15 DISPUTE RESOLUTION ................................................................................... 39
15.1 Governing Law. ................................................................................................... 39
15.2 Dispute Resolution. .............................................................................................. 39
15.3 Attorneys’ Fees. ................................................................................................... 39
15.4 Venue. .................................................................................................................. 40 iii
ARTICLE 16 INDEMNIFICATION ......................................................................................... 40
16.1 Indemnification. ................................................................................................... 40
16.2 Claims. ................................................................................................................. 40 ARTICLE 17 INSURANCE ...................................................................................................... 41
17.1 Insurance .............................................................................................................. 41 ARTICLE 18 CONFIDENTIAL INFORMATION ................................................................... 42
18.1 Definition of Confidential Information. ............................................................... 42
18.2 Duty to Maintain Confidentiality. ........................................................................ 42
18.3 Irreparable Injury; Remedies. .............................................................................. 43
18.4 Further Permitted Disclosure. .............................................................................. 43
18.5 Press Releases ...................................................................................................... 43 ARTICLE 19 MISCELLANEOUS ............................................................................................ 44
19.1 Entire Agreement; Integration; Exhibits. ............................................................. 44
19.2 Amendments. ....................................................................................................... 44
19.3 No Waiver. ........................................................................................................... 44
19.4 No Agency, Partnership, Joint Venture or Lease. ................................................ 44
19.5 Severability. ......................................................................................................... 44
19.6 Mobile-Sierra. ...................................................................................................... 44
19.7 Counterparts. ........................................................................................................ 45
19.8 Electronic Delivery. ............................................................................................. 45
19.9 Binding Effect. ..................................................................................................... 45
19.10 No Recourse to Members of Buyer ..................................................................... 45
19.11 Forward Contract. ................................................................................................ 45
19.12 Change in Electric Market Design. ...................................................................... 45
19.13 Further Assurances............................................................................................... 46 iv
Exhibits:
Exhibit A Facility Description
Exhibit B Facility Construction and Commercial Operation Exhibit C Compensation
Exhibit D Progress Reporting Form
Exhibit E Form of Commercial Operation Date Certificate Exhibit F Form of Installed Capacity Certificate
Exhibit G RESERVED
Exhibit H Form of Construction Start Date Certificate
Exhibit I Form of Letter of Credit
Exhibit J Form of Replacement RA Notice
Exhibit K Notices
Exhibit L Storage Capacity Tests
Exhibit M Metering Diagram
Exhibit N Form of Guaranty
2 “Agreement” has the meaning set forth in the Preamble and includes the Cover Sheet; and any Exhibits, schedules, and written supplements hereto. “Availability Standards” has the meaning set forth in the CAISO Tariff. “Bankrupt” or “Bankruptcy” means with respect to any entity, such entity (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, (b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, (c) makes an assignment or any general arrangement for the benefit of creditors, (d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due.
“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a Notice or payment or performing a specified action. “Buyer” has the meaning set forth on the Cover Sheet.
“Buyer’s Indemnified Parties” has the meaning set forth in Section 18.2. “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
“CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
“CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time to time and approved by FERC; provided that if there is a conflict between the BPMs, the CAISO Operating Agreement or the Operating Procedures, on the one hand, and the Tariff, on the other hand, the Tariff will control.
“Capacity Attribute” means any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power that the Facility can discharge to the Delivery Point, at a particular moment and that can be purchased, sold or conveyed under CAISO or CPUC market rules, including Resource Adequacy Benefits. “Change of Control” means, except in connection with public market transactions of equity interests or capital stock of Seller’s Ultimate Parent, any circumstance in which Ultimate Parent ceases to own, directly or indirectly through one or more intermediate entities, more than fifty percent (50%) of the outstanding equity interests in Seller; provided that in calculating ownership percentages for all purposes of the foregoing:
3 (a) any ownership interest in Seller held by Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards Ultimate Parent’s ownership interest in Seller unless Ultimate Parent directly or indirectly owns more than fifty percent (50%) of the outstanding equity interests in each such intermediate entity; and (b) ownership interests in Seller owned directly or indirectly by any Lender (including any tax equity provider) shall be excluded from the total outstanding equity interests in Seller. “Change in Law” means the occurrence, after the Effective Date, of any of the following:
(a) the adoption or taking effect of any Law; (b) any change in any Law or in the administration, interpretation or application of any Law by any Governmental Authority; (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; (d) any change to a Resource Adequacy Ruling; (e) any order, decision, resolution, rule, regulation, guidance document, or other determination of the CPUC, or (f) any change in the CAISO Tariff or any document included in the definition thereof whether or not approved by FERC.
“Charging Energy” means all Energy delivered to the Facility, as measured at the Facility Metering Point by the Facility Meter, as such meter readings are adjusted by the CAISO for any applicable Electrical Losses or Station Use.
“COD Certificate” has the meaning set forth in Exhibit B. “Commercial Operation” has the meaning set forth in Exhibit B. “Commercial Operation Date” means the first day of the first Showing Month for which Seller delivers Product to Buyer hereunder after Commercial Operation is achieved. “Commercial Operation Storage Capacity Test” means the Storage Capacity Test conducted in connection with Commercial Operation of the Facility. “Compliance Actions” has the meaning set forth in Section 3.4(a). “Compliance Expenditure Cap” has the meaning set forth in Section 3.4. “Compliance Showings” means the (a) the Resource Adequacy Resource requirements compliance or advisory showings (or similar or successor showings), and (b) if applicable, the Local RAR compliance or advisory showings (or similar or successor showings) that Buyer is required to make to the CPUC (and, to the extent authorized by the CPUC, to the CAISO), pursuant to the Resource Adequacy Rulings, to the CAISO pursuant to the CAISO Tariff, or to any Governmental Authority having jurisdiction.
“Confidential Information” has the meaning set forth in Section 18.1. “Construction Start” has the meaning set forth in Exhibit B. “Construction Start Date” has the meaning set forth in Exhibit B. 4 “Contract Price” has the meaning set forth on the Cover Sheet. “Contract Term” has the meaning set forth in Section 2.1. “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commercial Operation Date and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. The last Contract Year shall end at midnight on the day prior to the anniversary of the Commercial Operation Date. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred by the Non-Defaulting Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace this Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating this Agreement. “Cover Sheet” means the cover sheet to this Agreement, which is incorporated into this Agreement.
“CPM Capacity” has the meaning set forth in the CAISO Tariff. “CPUC” means the California Public Utilities Commission, or successor entity. “CPUC System RA Penalty” means the penalty rate assessed against load serving entities by the CPUC for “system” RA Capacity deficiencies that are not replaced or cured, as established by the CPUC in the Resource Adequacy Rulings.
“Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by Fitch, S&P or Moody’s. If ratings by Fitch, S&P and Moody’s are not equivalent, the lower rating shall apply. “Cycles” means, at any point in time during any Contract Year, the number of equivalent charge/discharge cycles of the Facility, which shall be deemed to be equal to (a) the total cumulative amount of Discharging Energy from the Facility at such point in time during such Contract Year (expressed in MWh) divided by (b) four (4) times the time-weighted average Effective Storage Capacity for such Contract Year to date. “Damage Payment” means the amount to be paid by Seller to Buyer as set forth in Section 11.3(a) or Exhibit B, as applicable.
“Dedicated Interconnection Capacity” has the meaning set forth in Section 6.3. “Defaulting Party” has the meaning set forth in Section 11.1(a). “Delivery Point” has the meaning set forth in Exhibit A. 5 “Delivery Term” shall mean the period of Contract Years set forth on the Cover Sheet beginning on the Commercial Operation Date, unless terminated earlier in accordance with the terms and conditions of this Agreement.
“Development Cure Period” has the meaning set forth in Exhibit B. “Development Security” means (a) cash or (b) a Letter of Credit in the amount set forth for the Development Security on the Cover Sheet.
“Discharging Energy” means all Energy delivered to the Delivery Point from the Facility, as measured at the Facility Metering Point by the Facility Meter, as such meter readings are adjusted by the CAISO for any applicable Electrical Losses or Station Use. All Discharging Energy shall have originally been delivered to the Facility as Charging Energy. “Disclosing Party” has the meaning set forth in Section 18.2. “Early Termination Date” has the meaning set forth in Section 11.2(a). “Effective Date” has the meaning set forth on the Preamble. “Effective Storage Capacity” means the lesser of (a) PMAX, and (b) the maximum dependable operating capacity of the Facility to discharge Energy for four (4) hours of continuous discharge, as measured in MW AC at the Delivery Point (i.e., measured at the Facility Meter and as such meter readings are adjusted by the CAISO for any applicable Electrical Losses to the Delivery Point) pursuant to the most recent Storage Capacity Test, in either case (a) or (b) up to but not in excess of the Installed Capacity (with respect to any Storage Capacity Test after the Commercial Operation Date).
“Electrical Losses” means all transmission or transformation losses (a) between the Facility Metering Point and the Delivery Point associated with delivery of Discharging Energy, and (b) between the Delivery Point and the Facility Metering Point associated with delivery of Charging Energy to the Facility, in each case as applicable. “Energy” means electrical energy, measured in kilowatt-hours or multiple units thereof. “Event of Default” has the meaning set forth in Section 11.1. “Expected Commercial Operation Date” is the date set forth on the Cover Sheet by which Seller reasonably expects as of the Effective Date to achieve Commercial Operation. “Expected Construction Start Date” is the date set forth on the Cover Sheet by which Seller reasonably expects as of the Effective Date to achieve Construction Start. “Facility” means the energy storage facility described on the Cover Sheet and in Exhibit A, located at the Site and including mechanical equipment and associated facilities and equipment, and as such storage facility may be expanded or otherwise modified from time to time in accordance with the terms hereof.
6 “Facility Meter” means the CAISO approved bi-directional revenue quality meter or meters (with a 0.3 accuracy class), along with a compatible data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, the amount of Charging Energy delivered to the Facility Metering Point and the amount of Discharging Energy discharged from the Facility at the Facility Metering Point to the Delivery Point for the purpose of invoicing in accordance with Section 8.1. For clarity, the Facility may contain multiple measurement devices that will make up the Facility Meter, and, unless otherwise indicated, references to the Facility Meter shall mean all such measurement devices and the aggregated data of all such measurement devices, taken together.
“Facility Metering Point” means the location(s) of the Facility Meter shown in Exhibit M. “FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Fitch” means Fitch Ratings Ltd., or its successor.
“Force Majeure Event” has the meaning set forth in Section 10.1. “Full Capacity Deliverability Status” or “FCDS” has the meaning set forth in the CAISO Tariff.
“Full Capacity Deliverability Status Finding” means a written confirmation from the CAISO that the Facility is eligible for Full Capacity Deliverability Status. “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 this Agreement for the remaining Contract Term, determined in a commercially reasonable manner. “Governmental Authority” means any federal, state, provincial, local or municipal government, any political subdivision thereof or any other governmental, congressional or parliamentary, regulatory, or judicial instrumentality, authority, body, agency, department, bureau, or entity with authority to bind a Party at law, including CAISO and the CPUC; provided, “Governmental Authority” shall not in any event include any Party. “Guaranteed Commercial Operation Date” has the meaning set forth in Exhibit B. “Guaranteed Construction Start Date” has the meaning set forth in Exhibit B. “Guarantor” means any Person that
“Guaranty” means a guaranty from a Guarantor provided for the benefit of the secured Party substantially in the form attached as Exhibit N, or as reasonably acceptable to the secured Party.
7 “Hold-Back Capacity” has the meaning set forth in Section 4.4. “Indemnified Party” has the meaning set forth in Section 16.1. “Indemnifying Party” has the meaning set forth in Section 16.1. “Installed Capacity” means the lesser of (a) PMAX, and (b) maximum dependable operating capacity of the Facility to discharge Energy for four (4) hours of continuous discharge, as measured in MW AC at the Facility Meter Point by the Facility Meter as such meter readings are adjusted by the CAISO for any applicable Electrical Losses to the Delivery Point, that achieves Commercial Operation, as evidenced by a certificate substantially in the form attached as Exhibit F hereto.
“Interconnection Agreement” means the interconnection agreement entered into by Seller (or its Affiliate) pursuant to which the Facility will be interconnected with the Transmission System, and pursuant to which Seller’s Interconnection Facilities and any other Interconnection Facilities will be constructed, operated and maintained during the Contract Term. “Interconnection Facilities” means the interconnection facilities, control and protective devices and metering facilities required to connect the Facility with the Transmission System in accordance with the Interconnection Agreement.
“Interest Rate” has the meaning set forth in Section 8.2. “Joint Powers Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.).
“Joint Powers Agreement” means that certain Joint Powers Agreement dated November 4, 2019, as amended, under which Buyer is organized as a Joint Powers Authority in accordance with the Joint Powers Act.
“kW” means a kilowatt measured in alternating current, unless expressly stated in terms of direct current.
“Law” means any applicable law, statute, rule, regulation, decision, writ, order, decree or judgment, permit or any interpretation thereof, promulgated or issued by a Governmental Authority.
“Lender” means, collectively, any Person (i) providing senior or subordinated construction, interim, back leverage or long-term debt, equity or tax equity financing or refinancing for or in connection with the development, construction, purchase, installation or operation of the Facility, whether that financing or refinancing takes the form of private debt (including back-leverage debt), equity (including tax equity), public debt or any other form (including financing or refinancing provided to a member or other direct or indirect owner of Seller), including any equity or tax equity investor directly or indirectly providing financing or refinancing for the Facility or purchasing equity ownership interests of Seller and/or its Affiliates, and any trustee or agent or similar representative acting on their behalf, (ii) providing interest rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of 8 the foregoing obligations and/or (iii) participating in a lease financing (including a sale leaseback or leveraged leasing structure) with respect to the Facility. “Letter(s) of Credit” means one or more irrevocable, standby letters of credit issued by (a) a U.S. commercial bank or (b) a foreign bank reasonably acceptable to Buyer with a U.S. branch, with such bank having a Credit Rating of at least A- with an outlook of “stable” from S&P or A3 with an outlook of “stable” from S&P from Moody’s, in a form substantially similar to the letter of credit set forth in Exhibit I.
“Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Buyer, licensed in the State of California. For the avoidance of doubt, the Licensed Professional Engineer may be the same engineer contracted under the engineering, procurement, and construction contract for the Facility. “Local Capacity Area Resource” has the meaning set forth in the CAISO Tariff. “Local RAR” means the local Resource Adequacy Requirements established for load-serving entities by the CAISO pursuant to the CAISO Tariff, the CPUC pursuant to the Resource Adequacy Rulings, or by any other Governmental Authority having jurisdiction. “Local RAR” may also be known as local area reliability, local resource adequacy, local resource adequacy procurement requirements, or local capacity requirement in other regulatory proceedings or legislative actions.
“Losses” means, with respect to the Non-Defaulting Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner. “Milestones” means the development activities for significant permitting, interconnection, and construction milestones set forth on the Cover Sheet. “Monthly Payment” has the meaning set forth in Exhibit C. “Moody’s” means Moody’s Investors Service, Inc., or its successor. “MW” means megawatts in alternating current, unless expressly stated in terms of direct current.
“MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Net Qualifying Capacity” has the meaning set forth in the CAISO Tariff ; provided, the Net Qualifying Capacity of the Facility will not decrease as a result of any change by CAISO, the CPUC or other Governmental Authority after the Effective Date that results in a change in the calculation of Net Qualifying Capacity.
“Network Upgrades” has the meaning set forth in the CAISO Tariff. “Non-Defaulting Party” has the meaning set forth in Section 11.2. 9 “Notice” shall, unless otherwise specified in the Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, or electronic messaging (e-mail).
“Party” or “Parties” has the meaning set forth in the Preamble. “Performance Security” means (i) cash, (ii) a Letter of Credit, or (iii) a Guaranty in the amount set forth for the Performance Security on the Cover Sheet. “Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
“Planned Outage” means a period during which the Facility is either in whole or in part not capable of providing service due to planned maintenance that has been scheduled in advance in accordance with Section 4.6(a).
“PMAX” means the applicable CAISO-certified maximum operating level of the Facility. “PNode” has the meaning set forth in the CAISO Tariff.
“Product” has the meaning set forth on the Cover Sheet. “Progress Report” means a progress report including the items set forth in Exhibit D or in an alternate form agreed upon by the Parties.
“Prudent Operating Practice” means (a) the applicable practices, methods and acts required by or consistent with applicable Laws and reliability criteria, and otherwise engaged in or approved by a significant portion of the electric industry during the relevant time period with respect to grid-interconnected, utility-scale storage facilities in the Western United States, or (b) any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Prudent Operating Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to acceptable practices, methods or acts generally accepted in the industry with respect to grid-interconnected, utility-scale energy storage in the Western United States. Prudent Operating Practice shall include compliance with applicable Laws, applicable reliability criteria, and the applicable criteria, rules and standards promulgated in the National Electric Safety Code and the National Electrical Code, as they may be amended or superseded from time to time, including the criteria, rules and standards of any successor organizations.
“Qualified Transferee” means (i) any Affiliate of Seller or (ii) any entity that satisfies, or is controlled by another Person that satisfies, the following requirements:
10 (a) A tangible net worth of not less than
a Credit Rating of at least BBB- from S&P, BBB- from Fitch, or Baa3 from Moody’s; and
(b) At least two (2) years of experience in the ownership and operations of energy storage facilities similar to the Facility or has retained a third-party with such experience to operate the Facility.
“Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “RA Deficiency Amount” has the meaning set forth in Section 3.3(a). “RA Guarantee Date” means the date that is sixty (60) days after the Commercial Operation Date.
“RA Product” has the meaning set forth in Section 4.1(a). “RA Shortfall” has the meaning set forth in Section 3.3(a). “RA Shortfall Month” means, for purposes of calculating an RA Deficiency Amount under Section 3.3(a), any Showing Month during the Delivery Term, commencing with the first Showing Month after the Showing Month that includes the RA Guarantee Date, during which there is an RA Shortfall.
“Receiving Party” has the meaning set forth in Section 18.2. “Remedial Action Plan” has the meaning set forth in Section 2.4. “Replacement RA” means Resource Adequacy Benefits, if any, equivalent to or better than those that would have been provided by the Facility with respect to the applicable month in which a RA Deficiency Amount is due to Buyer.
“Replacement Unit” has the meaning set forth in Section 4.2. “Requested Confidential Information” has the meaning set forth in Section 18.2. “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 Plan” has the meaning set forth in the CAISO Tariff. “Resource Adequacy Requirements” or “RAR” means the resource adequacy requirements applicable to an entity as established by the CAISO pursuant to the CAISO Tariff, by the CPUC pursuant to the Resource Adequacy Rulings, or by any other Governmental Authority having jurisdiction.
11 “Resource Adequacy Resource” shall have the meaning used in Resource Adequacy Rulings.
“Resource Adequacy Rulings” means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-04-040, 06-06-064, 06-07-031 06-07-031, 07-06-029, 08-06-031, 09-06-028, 10-06-036, 11-06-022, 12-06-025, 13-06-024, 14-06-050, 15-06-063, 16-06-045, 17-06-027, 18- 06-030, 18-06-031, 19-02-022, 19-06-026, 19-10-021, 20-01-004, 20-03-016, 20-06-002, 20-06- 028, 20-12-006 and any other existing or subsequent ruling or decision, or any other resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority having jurisdiction, however described, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time throughout the Contract Term. “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of S&P Global Inc.) or its successor.
“Scheduling Coordinator” or “SC” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time.
“Security Interest” has the meaning set forth in Section 8.10. “Seller” has the meaning set forth on the Cover Sheet.
“Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other. If the Non-Defaulting Party’s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to the Non-Defaulting Party. If the Non-Defaulting Party’s Gains exceed its Costs and Losses, then the Settlement Amount shall be zero dollars ($0). The Settlement Amount does not include consequential, incidental, punitive, exemplary or indirect or business interruption damages. “Shared Facilities” means the gen-tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of Energy from the Facility (which is excluded from Shared Facilities) to the point of interconnection, including the Interconnection Agreement itself, that are used in common with third parties.
“Showing Month” means the calendar month of the Delivery Term that is the subject of the Compliance Showing, as set forth in the Resource Adequacy Rulings and outlined in the CAISO Tariff. For illustrative purposes only, pursuant to the CAISO Tariff and Resource Adequacy Rulings in effect as of the Effective Date, the monthly Compliance Showing made in June is for the Showing Month of August.
“Shown Unit(s)” means the Facility or any Replacement Unit providing Replacement RA. “Site” means the real property on which the Facility is or will be located, as further described in Exhibit A, and as shall be updated by Seller at the time Seller provides an executed Construction Start Date certificate in the form of Exhibit H to Buyer. 12 “Site Control” means that, for the Contract Term, Seller (or, prior to the Delivery Term, its Affiliate): (a) owns or has the option to purchase the Site; (b) is the lessee or has the option to lease the Site; or (c) is the holder of an easement or an option for an easement, right-of-way grant, or similar instrument with respect to the Site.
“Station Use” means the Energy (including Energy produced or discharged by the Facility) that is used within the Facility to power the information technology, telecommunications, lights, motors, temperature control systems, control facility systems and other electrical loads that are necessary for operation of the Facility.
“Storage Capacity Test” means any test or retest of the Facility to establish the Installed Capacity or Effective Storage Capacity conducted in accordance with the testing procedures, requirements and protocols set forth in Section 4.7 and Exhibit L. “Storage Contract Capacity” has the meaning set forth on the Cover Sheet. “Subsequent Buyer” means the purchaser of RA Product from Buyer in a re-sale of RA Product by Buyer.
“Substitute Capacity” means “RA Substitute Capacity” as defined in the CAISO Tariff. “Substitute Capacity Request” has the meaning set forth in Section 4.4(b). “Supply Plan” has the meaning set forth in the CAISO Tariff. “System Emergency” means any condition that requires, as determined and declared by CAISO or the Transmission Provider, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) to preserve Transmission System reliability. “Tax” or “Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Terminated Transaction” has the meaning set forth in Section 11.2(a). “Termination Payment” has the meaning set forth in Section 11.3(b). “Transmission Provider” means any entity that owns, operates and/or maintains transmission or distribution lines and associated facilities and/or has entitlements to use certain transmission or distribution lines and associated facilities for the purpose of transmitting or transporting the Energy from the Delivery Point.
13 “Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service downstream from the Delivery Point.
“Transmission System Outage” means an outage on the Transmission System, other than a System Emergency, that is not caused by Seller’s actions or inactions and that prevents Buyer or the Transmission Provider (as applicable) from receiving Energy onto the Transmission System. “Ultimate Parent” means Engie Holdings Inc.
1.2 Rules of Interpretation. In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:
(a) headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement; (b) words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders; (c) the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Article, Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified;
(e) a reference to a document or agreement, including this Agreement shall mean such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement;
(f) a reference to a Person includes that Person’s successors and permitted assigns;
(g) the terms “include” and “including” mean “include or including (as applicable) without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided;
(h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; (i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;
14 (j) references to any amount of money shall mean a reference to the amount in United States Dollars;
(k) the expression “and/or” when used as a conjunction shall connote “any or all of”;
(l) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
(m) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
ARTICLE 2
TERM; CONDITIONS PRECEDENT
2.1 Contract Term.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions set forth herein (“Contract Term”); provided, Buyer’s obligations to pay for or accept any Product are subject to Seller’s completion of the conditions precedent pursuant to Section 2.2.
(b) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality obligations of the Parties under Article 18 shall remain in full force and effect for two (2) years following the termination of this Agreement, and all indemnity and audit rights shall remain in full force and effect for one (1) year following the termination of this Agreement.
2.2 Conditions Precedent. The Delivery Term shall not commence until Seller completes each of the following conditions:
(a) Seller shall have delivered to Buyer (i) a completion certificate from a Licensed Professional Engineer substantially in the form of Exhibit E and (ii) a certificate from a Licensed Professional Engineer substantially in the form of Exhibit F setting forth the Installed Capacity on the Commercial Operation Date;
(b) Seller shall have delivered to Buyer a certificate from an authorized officer of Seller certifying that all applicable permits and government approvals, including under the California Environmental Quality Act (“CEQA”) or other environmental law, from the local jurisdiction where the Facility is or will be constructed, required to commence commercial operation of the Facility have been obtained;
15 (c) The Facility has achieved Full Capacity Deliverability Status and Seller has provided Buyer with a copy of the Full Capacity Deliverability Status Finding; (d) Seller shall have delivered to Buyer a certificate from an authorized officer of Seller certifying that Seller complied with the prevailing wage requirements of Section 13.4(b); (e) Seller has satisfied the applicable insurance requirements in Article 17; and (f) Seller has delivered the Performance Security to Buyer in accordance with Section 8.8.
2.3 Development; Construction; Progress Reports.
(a) Within fifteen (15) days after the close of (i) each calendar quarter from the first calendar quarter following the Effective Date until the Expected Construction Start Date, and (ii) each calendar month from the first calendar month following the Expected Construction Start Date until the Commercial Operation Date, Seller shall provide to Buyer a Progress Report and agree to regularly scheduled meetings between representatives of Buyer and Seller to review the Progress Reports and discuss Seller’s construction progress. (b) The form of the Progress Report is set forth in Exhibit D or an alternate form agreed upon by the Parties. Seller shall also provide Buyer with any reasonably requested documentation (subject to confidentiality restrictions) directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request by Seller. Seller is solely responsible for the design and construction of the Facility, including the location of the Site, the Facility layout, and the selection and procurement of the equipment comprising the Facility.
2.4 Remedial Action Plan. If Seller (a) misses the Guaranteed Construction Start Date, (b) misses three (3) or more Milestones (other than the Guaranteed Construction Start Date), or (c) misses any one (1) Milestone (other than the Guaranteed Construction Start Date) by more than ninety (90) days, Seller shall provide a remedial action plan (“Remedial Action Plan”), which will describe in detail any delays (actual or anticipated) beyond the scheduled Milestone dates, including the cause of the delay (e.g., governmental approvals, financing, property acquisition, design activities, equipment procurement, project construction, interconnection, or any other factor), Seller’s detailed description of its proposed course of action to achieve the missed Milestones and all subsequent Milestones by the Guaranteed Commercial Operation Date (as may be extended in accordance with Section 3 of Exhibit B); provided, delivery of any Remedial Action Plan shall not relieve Seller of its obligation to provide Remedial Action Plans with respect to any subsequent Milestones and to achieve the Guaranteed Commercial Operation Date in accordance with the terms of this Agreement. Subject to the provisions of Exhibit B, so long as Seller complies with its obligations under this Section 2.4, Seller shall not be considered in default of its obligations under this Agreement solely as a result of missing any Milestone.
2.5 CPUC Mid-Term Reliability Requirements. Buyer intends to apply this Agreement towards Buyer’s compliance with mandatory procurement obligations for incremental zero-emissions capacity pursuant to CPUC Decision 21-06-035. Seller will provide additional information and documentation to Buyer upon reasonable request to enable Buyer to demonstrate that the Facility meets the procurement mandates set forth in CPUC Decision 21-06-035 to the
19 3.4 Compliance Expenditure Cap. If a Change in Law occurring after the Effective Date has increased Seller’s cost to comply with Seller’s obligations under this Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of Capacity Attributes that Seller would reasonably be expected to avoid incurring in the absence of such obligations, then the Parties agree that the maximum aggregate amount of costs and expenses Seller shall be required to bear during the Contract Term to comply with all of such obligations shall be capped at per MW of Installed Capacity (“Compliance Expenditure Cap”).
(a) Any actions required for Seller to comply with its obligations set forth in the first paragraph above, the cost of which will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “Compliance Actions.” (b) If Seller reasonably anticipates the need to incur costs and expenses in excess of the Compliance Expenditure Cap in order to take any Compliance Action Seller shall provide Notice to Buyer of such anticipated cost and expenses. (c) Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all or some portion of the costs and expenses that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs, the “Accepted Compliance Costs”), or (2) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller. If Buyer does not respond to a Notice given by Seller under this Section 3.4 within sixty (60) days after Buyer’s receipt of same, Buyer shall be deemed to have waived its rights to require Seller to take the Compliance Actions that are the subject of the Notice, and Seller shall have no further obligation to take, and no liability or obligation under this Agreement for any failure to take, such Compliance Actions until (and only to the extent then still feasible) such time as Buyer agrees to pay such Accepted Compliance Costs.
(d) If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall take the Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall reimburse Seller for Seller’s actual costs and expenses to effect the Compliance Actions, not to exceed the Accepted Compliance Costs, within sixty (60) days from the time that Buyer receives an invoice and documentation of such costs and expenses from Seller.
(e) If a Change in Law prevents Seller from complying with its obligations under this Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of Capacity Attributes, and it is not possible to overcome the Change in Law through Compliance Actions or the expenditure of money, then (i) Seller shall provide Notice to Buyer of such Change in Law and the consequences for Seller’s performance hereunder, and (ii) Seller shall be excused from the affected compliance and delivery obligations hereunder to the extent arising from the Change in Law (including, if applicable, the obligation to pay RA Deficiency Amounts and/or provide Replacement RA with respect to RA Shortfalls). 20 ARTICLE 4
OBLIGATIONS AND DELIVERIES
4.1 Transfer of Resource Adequacy Benefits.
(a) Seller shall transfer the Product from the Facility and, if applicable, Replacement RA that Seller has elected to provide from any Replacement Units (collectively, the “RA Product”) to Buyer by submitting Supply Plans to CAISO for the Shown Unit(s). (b) Seller shall cause all Supply Plans to meet and be filed in conformance with the requirements of the CPUC and the CAISO Tariff. Seller shall submit, or cause the Shown Unit’s SC to submit, Supply Plans at least fifteen (15) Business Days before the deadline for Buyer’s Compliance Showings identifying and confirming the RA Product delivered in accordance with Buyer’s instructions for each Showing Month of the Delivery Term and shall provide emailed confirmation to Buyer that such Supply Plans have been timely submitted. For the avoidance of doubt, if Buyer subsequently notifies Seller of a resale of RA Product for a Showing Month, then any subsequent Supply Plan submitted by Seller or the Shown Unit’s SC for such Showing Month will be deemed to have met the delivery timing obligations set forth in this Section 4.1(b). (c) If CAISO rejects the Supply Plan or the Resource Adequacy Plan with respect to any part of the RA Product in any Showing Month, the Parties shall confer, make such corrections as are necessary for acceptance, and resubmit the corrected Supply Plan for validation before the applicable cure deadline for the Showing Month. (d) The RA Product is received when the CIRA Tool shows that the Supply Plan submitted in compliance with Buyer’s instructions, including Buyer’s instructions to withhold all or part of the RA Product for such Showing Month, has been accepted for the RA Product from the Shown Unit(s) by CAISO. Seller has failed to transfer the RA Product hereunder if Buyer has elected to submit the RA Product from the Shown Unit(s) in its Resource Adequacy Plan and such submission is accepted by the CPUC and the CAISO but the Supply Plan and Resource Adequacy Plan are not matched in the CIRA Tool and are rejected by CAISO due to the acts or omissions of Seller notwithstanding performance of the Parties’ obligations in Section 4.1(c). Seller will not have failed to properly transfer the RA Product if Buyer fails or chooses not to submit the Shown Unit(s) and the RA Product in its Resource Adequacy Plan with the CPUC or CAISO. (e) Hold-Back Capacity, if any, is deemed RA Product received by Buyer, unless utilized under Section 4.4 as Substitute Capacity, then RA Product is considered received according to the requirements therein.
(f) To the extent Seller reduces deliveries of Product pursuant to Section 4.6 prior to the Facility being included in the applicable Supply Plan and does not elect to provide Replacement RA, Buyer shall be responsible for procuring Substitute Capacity, and all costs associated therewith, to the extent Buyer directs Seller to include the Facility in the applicable Supply Plan and the Facility is permitted to be included in the applicable Supply Plan in accordance with the CAISO Tariff.
4.2 Seller’s Option To Provide Alternate Capacity. If Seller is unable to provide the Resource Adequacy Benefits from the Facility for a Showing Month for any reason or Seller elects 21 to provide Replacement RA pursuant to Section 3.3, then Seller may, at no cost to Buyer, provide Buyer with Replacement RA from one or more replacement units having the same or better Capacity Attributes as the Facility (each such unit, a “Replacement Unit”), provided that in each case:
(a) Seller shall notify Buyer in writing of its intent to provide Replacement RA and shall identify the proposed Replacement Units from which such Replacement RA shall be provided no later than seventy-five (75) days before the start of the applicable Showing Month; (b) The proposed Replacement Units must (i) be accepted by the CAISO, and (ii) otherwise satisfy the requirements of this Agreement;
(c) Seller shall, or shall cause the SC to submit, a Supply Plan for each Showing Month and, if applicable, annual filing (but only if the Replacement Unit is proposed for a Showing Month prior to the deadline for submission of the annual filing corresponding to such Showing Month), no later than fifteen (15) Business Days before the deadline for Buyer’s Compliance Showings, provided, for the avoidance of doubt, that if Buyer subsequently notifies Seller of a resale of RA Product for a Showing Month, then any subsequent Supply Plan submitted by Seller or the Shown Unit’s SC for such Showing Month will be deemed to have met the delivery timing obligations set forth in this Section 4.2(c);
(d) If Seller does not comply with the requirements of Sections 4.2(a), (b) and (c) for the applicable Showing Month and, if applicable, annual filing (but only if the Replacement Unit is proposed for a Showing Month prior to the deadline for submission of the annual filing corresponding to such Showing Month), then any such Replacement Units shall not be deemed a Replacement Unit for purposes of this Agreement for that Showing Month; and (e) In no event shall a Replacement Unit utilize coal or coal materials as a source of fuel. A Replacement Unit must be a specific resource that is connected directly to the CAISO Grid or be under the operational control of CAISO. A Replacement Unit may not be an unspecified import.
(f) Once Seller has identified in writing any Replacement Units that meet the requirements of this Section 4.2, then any such Replacement Units shall be deemed a Shown Unit for purposes of this Agreement for that Showing Month.
4.3 Buyer’s Re-Sale of RA Product.
(a) Buyer may re-sell all or part of the RA Product; provided that any such re-sale must not increase Seller’s obligations hereunder other than as set forth in this Section 4.3. For any such resale, the Resource Adequacy Plan of Buyer as used herein will refer to the Resource Adequacy Plan of the Subsequent Buyer. Seller shall, or shall cause the Shown Unit’s SC, to follow Buyer’s instructions with respect to providing such resold RA Product to Subsequent Buyers, to the extent such instructions are consistent with Seller’s obligations under this Agreement. Seller shall, and shall cause the Shown Unit’s SC, to take all commercially reasonable actions and execute all documents or instruments reasonably necessary to allow such Subsequent Buyers to use such resold RA Product in a manner consistent with Buyer’s rights under this Agreement. If Buyer incurs any liability to a Subsequent Buyer due to the failure of Seller or the 22 Shown Unit’s SC to comply with this Agreement, Seller will be liable to Buyer for the amounts Seller would have owed Buyer under this Agreement if Buyer had not resold the RA Product. (b) Buyer shall notify Seller in writing of any resale of RA Product and the Subsequent Buyer no later than two (2) Business Days before the deadline for the Compliance Showing for each Showing Month for which Buyer has resold the RA Product. Buyer shall notify Seller of any subsequent changes or further resales no later than two (2) Business Days before the deadline for the Compliance Showing for each Showing Month for which Buyer has resold the RA Product.
(c) Subject to Section 3.4, if CAISO or CPUC develops a centralized capacity market, Buyer will have exclusive rights to direct the Seller or the Shown Unit’s SC to offer, bid or otherwise submit the RA Product for re-sale into such market, and (i) Seller and the Shown Unit’s SC shall comply with the Buyer’s direction to offer, bid or otherwise submit the RA Product for re-sale into such market, provided that any such direction and any actionsrequired to implement such direction (and any resulting requirements and other results thereof) are permitted by (and capable of being implemented pursuant to) the CAISO Tariff and applicable Laws, (ii) Buyer shall retain and receive all revenues and costs from such re-sale, and (iii) Buyer shall reimburse Seller for any incremental costs and lost revenues incurred by Seller arising from such re-sale. (d) Unless otherwise instructed by Buyer, to the extent permitted under the CAISO Tariff (i) Seller shall not, and shall cause the Shown Unit’s SC to not, offer any portion of the RA Product to CAISO as CPM Capacity and (ii) if CAISO designates any portion of the RA Product as CPM Capacity, then Seller shall, and shall cause the Shown Unit’s SC to, promptly (and in any event within one (1) Business Day of the time Seller receives notification from CAISO) notify Buyer of such designation, and if CAISO makes such a designation, to the extent permitted under the CAISO Tariff, Seller shall not, and shall cause the Shown Unit’s SC to not, accept any such designation by CAISO unless and until Buyer has agreed to accept such designation.
4.4 Hold-Back and Substitute Capacity.
(a) No later than five (5) Business Days before the relevant deadline for the initial Compliance Showing with respect to a particular Showing Month, Buyer may request in writing that Seller not list, or cause the Shown Unit’s SC not to list, in the Shown Unit’s Supply Plan a portion or all of the RA Product for such Showing Month (“Hold-Back Capacity”). The amount of RA Product that is the subject of Buyer’s request for Hold-Back Capacity shall be deemed RA Product received by Buyer consistent with Section 4.1 for purposes of calculating the payments due hereunder, unless utilized under Section 4.4(b) as Substitute Capacity, then RA Product is considered received according to the requirements therein. Seller shall, or shall cause the Shown Unit’s SC to, comply with Buyer’s request under this Section 4.4. (b) In any Showing Month in which Buyer has designated Hold-Back Capacity, Buyer may request, in writing, that Seller make the Hold-Back Capacity available for Buyer’s use as Substitute Capacity within the respective Showing Month (“Substitute Capacity Request”) with the following schedule:
(i) For Buyer’s Substitute Capacity Requests that are to be scheduled
24 determined by the CAISO for the Facility, as a Resource Adequacy Resource that is subject to the Availability Standards, to qualify for an “Approved Maintenance Outage” under the CAISO Tariff (or such shorter period as may be reasonably acceptable to Buyer based on the likelihood the change will have a material adverse effect on Buyer).
(b) System Emergencies and other Interconnection Events. Seller shall be permitted to reduce deliveries of Product during any period of System Emergency or Transmission System Outage pursuant to the terms of this Agreement, the Interconnection Agreement or applicable tariff.
(c) Force Majeure Event. Subject to Article 10, Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event to the extent such Force Majeure Event prevents Seller from delivering any such Product. (d) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2.
4.7 Facility Testing.
(a) Storage Capacity Tests. Prior to the Commercial Operation Date, Seller shall schedule and complete a Commercial Operation Storage Capacity Test in accordance with Exhibit L. Thereafter, Seller and Buyer shall have the right to run additional Storage Capacity Tests in accordance with Exhibit L.
(i) Buyer shall have the right to send one or more representative(s) to witness all Storage Capacity Tests.
(ii) Following each Storage Capacity Test, Seller shall submit a testing report in accordance with Exhibit L. If the actual capacity determined pursuant to a Storage Capacity Test varies from the then-current Effective Storage Capacity, then the actual capacity determined pursuant to such Storage Capacity Test shall become the new Effective Storage Capacity at the beginning of the day following the completion of the test for all purposes under this Agreement.
(b) Reserved.
ARTICLE 5
TAXES
5.1 Allocation of Taxes and Charges. Seller shall pay or cause to be paid all Taxes on or with respect to the Facility or on or with respect to the sale and making available of Product to Buyer, that are imposed on Product prior to its delivery to Buyer at the time and place contemplated under this Agreement. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and after its delivery to Buyer at the time and place contemplated under this Agreement (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees). If a Party is required to remit or pay Taxes that are the other Party’s responsibility hereunder, such Party shall promptly pay the Taxes due and then seek and receive reimbursement from the other for such 25 Taxes. In the event any sale of Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation to evidence such exemption or exclusion within thirty (30) days after the date Buyer makes such claim. Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes for which Buyer is responsible hereunder and from which Buyer claims it is exempt.
5.2 Cooperation. Each Party shall use reasonable efforts to implement the provisions of and administer this Agreement in accordance with the intent of the Parties to minimize all Taxes, so long as no Party is materially adversely affected by such efforts. The Parties shall cooperate to minimize Tax exposure; provided, however, that neither Party shall be obligated to incur any financial or operational burden to reduce Taxes for which the other Party is responsible hereunder without receiving due compensation therefor from the other Party. All Product delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Product.
ARTICLE 6
MAINTENANCE OF THE STORAGE FACILITY
6.1 Maintenance of the Facility. Seller shall, as between Seller and Buyer, be solely responsible for the operation and maintenance of the Facility and shall comply with Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product.
6.2 Maintenance of Health and Safety. Seller shall take reasonable safety precautions with respect to the operation, maintenance, repair and replacement of the Facility.
6.3 Dedicated Interconnection Capacity. Seller shall ensure throughout the Delivery Term, Seller shall have sufficient interconnection capacity and rights under such Interconnection Agreement to interconnect the Facility with the CAISO Grid, to fulfill Seller’s obligations under the Agreement, including with respect to Resource Adequacy Benefits (collectively, the “Dedicated Interconnection Capacity”).
6.4 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities and Interconnection Facilities, and Seller’s rights and obligations under the Interconnection Agreement, may be subject to certain shared facilities and/or co-tenancy agreements to be entered into among Seller, the Transmission Provider, Seller’s Affiliates, and/or third parties pursuant to which certain Interconnection Facilities may be subject to joint ownership and shared maintenance and operation arrangements, including through shared ownership of an Affiliate or other entity that is the party to and interconnection customer under the Interconnection Agreement; provided, such agreements shall permit Seller to perform or satisfy, and shall not purport to limit, its obligations hereunder.
ARTICLE 7
METERING
7.1 Metering. Seller shall be responsible for designing, furnishing, installing, operating, maintaining and testing a real-time system in accordance with the CAISO monitoring and communication requirements, which is capable of interconnecting to the Facility Meter(s) and the Facility’s control system with the CAISO infrastructure network (data highway) used by all 26 CAISO participants to exchange data to and from resources and CAISO (the “Energy Communication Network”).
ARTICLE 8
INVOICING AND PAYMENT; CREDIT
8.1 Invoicing. Seller shall use commercially reasonable efforts to deliver an invoice to Buyer for Product within ten (10) days after the end of each month of the Delivery Term. Each invoice shall: (a) include data showing a calculation of the Monthly Payment and other relevant data for the prior month; and (b) be in a format reasonably specified by Buyer, covering the Product provided in the preceding month determined in accordance with the applicable provisions of this Agreement.
8.2 Payment.
(a) Buyer shall make payment to Seller for the Product by wire transfer or ACH payment to the bank account designated by Seller in Exhibit K, which may be updated by Seller by Notice hereunder; provided, however, that changes to invoice, payment, wire transfer and other banking information must be made in writing and delivered via certified mail and shall include contact information for an authorized person who is available by telephone to verify the authenticity of such requested changes. Buyer shall pay undisputed invoiced amounts within thirty (30) days after the invoice date; provided, if such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. Payments made after the due date will be considered late and will bear interest on the unpaid balance. (b) If the amount due is not paid on or before the due date or if any other payment that is due and owing from one Party to another under this Agreement is not paid on or before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement. Such late payment charge shall be calculated based on an annual Interest Rate equal to the prime rate published on the date of the invoice in The Wall Street Journal (or, if The Wall Street Journal is not published on that day, the next succeeding date of publication), plus two percent (2%) (the “Interest Rate”). If the due date occurs on a day that is not a Business Day, the late payment charge shall begin to accrue on the next succeeding Business Day.
8.3 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years or as otherwise required by Law. Upon fifteen (15) days’ Notice to the other Party, either Party shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated pursuant to this Agreement.
8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Section 8.5 or an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO, or there is determined to have been a meter inaccuracy sufficient to require a payment adjustment. If the required adjustment is in favor of 27 Buyer, Buyer’s next monthly payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller, Seller shall add the adjustment amount to Buyer’s next monthly invoice. Adjustments in favor of either Buyer or Seller shall bear interest, until settled in full, in accordance with Section 8.2, accruing from the date on which the adjusted amount should have been due.
8.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any arithmetic or computational error within twelve (12) months of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Inadvertent overpayments shall be returned via adjustments in accordance with Section 8.4. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 8.5 within twelve (12) months after the invoice is rendered or subsequently adjusted, except to the extent any misinformation was from the CAISO or a third party not affiliated with any Party and the CAISO or such third party corrects its information after the twelve-month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.
8.6 Netting of Payments. The Parties hereby agree that they shall discharge mutual debts and payment obligations due and owing to each other on the same date through netting, in which case all amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement or otherwise arising out of this Agreement, including any related damages calculated pursuant to Exhibit B, interest, and payments or credits, shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it.
8.7 Seller’s Development Security. To secure its obligations under this Agreement, Seller shall deliver the Development Security to Buyer within thirty (30) days after the Effective Date. Seller shall maintain the Development Security in full force and effect until the earlier of (a) Seller’s delivery of the Performance Security, or (b) sixty (60) days after termination of this Agreement, at which time Buyer shall return the Development Security to Seller, less any amounts drawn in accordance with this Agreement. Subject to this Section 8.7 and the other terms of this Agreement governing Seller’s Development Security requirements, Seller may change the type and/or issuer (as applicable) of the Development Security from time to time and at any time.
8.8 Seller’s Performance Security. To secure its obligations under this Agreement, Seller shall deliver Performance Security to Buyer on or before the Commercial Operation Date.
If the Performance Security is not in the form of cash or Letter of Credit, it shall be substantially in the form of Guaranty set forth in Exhibit N. Seller shall maintain the Performance Security in full force and effect, and Seller shall within five (5) Business Days after any draw thereon replenish the Performance Security in the event Buyer collects or draws down any portion of the 28 Performance Security for any reason permitted under this Agreement other than to satisfy a Termination Payment, until the following have occurred: (a) the Delivery Term has expired or terminated early; and (b) all payment obligations of Seller due and payable under this Agreement are paid in full (whether directly or indirectly such as through set-off or netting). Following the occurrence of both events, Buyer shall promptly return to Seller the unused portion of the Performance Security. Subject to this Section 8.8 and the other terms of this Agreement governing Seller’s Performance Security requirements, Seller may change the type and/or issuer (as applicable) of the Performance Security from time to time and at any time.
8.9 Reserved.
8.10 First Priority Security Interest in Cash or Cash Equivalent Collateral. To secure its obligations under this Agreement, and until released as provided herein, each Party hereby grants the other Party a present and continuing first-priority security interest (“Security Interest”) in, and lien on (and right to net against), and assignment of the Development Security and/or Performance Security (collectively, “Security”) posted as cash pursuant to Sections 8.7 and
8.8, and any and all interest thereon or proceeds resulting therefrom or from the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of such other Party. Each Party agrees to take all action as the other Party reasonably requires in order to perfect such Security Interest in, and lien on (and right to net against), such collateral and any and all proceeds resulting therefrom or from the liquidation thereof. Upon or any time after the occurrence of an Event of Default, an Early Termination Date resulting from an Event of Default, or an occasion provided for in this Agreement where a secured Party is authorized to retain all or a portion of the Development Security or Performance Security, then the secured Party may do any one or more of the following (in each case subject to the final sentence of this Section 8.10):
(a) Exercise any of its rights and remedies with respect to the Security, including any such rights and remedies under Law then in effect; (b) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held as Security; and
(c) Liquidate all Security then held by or for the benefit of the secured Party free from any claim or right of any nature whatsoever of posting Party, including any equity or right of purchase or redemption.
The secured Party shall apply the proceeds of the collateral realized upon the exercise of any such rights or remedies to reduce the posting Party’s obligations under this Agreement (such posting Party remains liable for any amounts owing to the secured Party after such application), subject to the obligation of the secured Party to return any surplus proceeds remaining after such obligations are satisfied in full.
ARTICLE 9
NOTICES
9.1 Addresses for the Delivery of Notices. Any Notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the 29 address set forth in Exhibit K or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder.
9.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered as follows: (a) if sent by United States mail with proper first class postage prepaid, three (3) Business Days following the date of the postmark on the envelope in which such Notice was deposited in the United States mail; (b) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; (c) if sent by electronic communication (including electronic mail or other electronic means) at the time indicated by the time stamp upon delivery and, if after 5 pm, on the next Business Day; or (d) if delivered in person, upon receipt by the receiving Party. Notwithstanding the foregoing, Notices of outages or other scheduling or dispatch information or requests, may be sent by electronic communication and shall be considered delivered upon successful completion of such transmission.
ARTICLE 10
FORCE MAJEURE
10.1 Definition.
(a) “Force Majeure Event” means any act or event or circumstance occurring after the Effective Date that delays or prevents a Party from timely performing all or a portion of its obligations under this Agreement or from complying with all or a portion of the conditions under this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be avoided by and is beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance.
(b) Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance, a Force Majeure Event shall include: an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; epidemic; pandemic, landslide; mudslide; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; strikes or other labor difficulties caused or suffered by a Party or any third party; delays resulting from action or inaction of a local public permitting authority; and any temporary restraint or restriction imposed by applicable Law or any directive from a Governmental Authority.
(c) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions that render a Party’s performance of this Agreement at the Contract Price unprofitable or otherwise uneconomic (including Buyer’s ability to buy the Product at a lower price, or Seller’s ability to sell Product at a higher price, than the Contract Price); (ii) Seller’s inability to obtain permits or approvals of any type for the construction, operation, or 30 maintenance of the Facility except to the extent such inability is caused by a Force Majeure Event; (iii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above that disables physical or electronic facilities necessary to transfer funds to the payee Party; (iv) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility except to the extent such inability is caused by a Force Majeure Event; (v) a strike, work stoppage or labor dispute limited only to any one or more of Seller, Seller’s Affiliates, Seller’s contractors, their subcontractors thereof or any other third party employed by Seller to work on the Facility, except to the extent such strikes or labor disturbances at the Facility Site or contractor's or any subcontractor's facilities are directly related to strikes or labor disturbances that are (x) on a regional or national level and are (y) simultaneously disrupting other business operations in the applicable regional or national area, but only to the extent there are other like business operations in the applicable regional or national area; or (vi) any equipment failure except if such equipment failure is due to a serial defect or is caused by a Force Majeure Event.
Notwithstanding the foregoing, the occurrence and continuation of a Force Majeure Event shall not (a) suspend or excuse the obligation of Seller to achieve the Guaranteed Construction Start Date or the Guaranteed Commercial Operation Date beyond the extensions provided in Exhibit B, or (b) limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(i) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Sections 11.2 and 11.3.
10.2 No Liability If a Force Majeure Event Occurs. Neither Seller nor Buyer shall be liable to the other Party in the event it is prevented or delayed from performing its obligations hereunder in whole or in part due to a Force Majeure Event. The Party rendered unable to fulfill any obligation by reason of a Force Majeure Event shall take reasonable actions necessary to remove such inability with due speed and diligence. Nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has been removed. The obligation to use due speed and diligence shall not be interpreted to require resolution of labor disputes by acceding to demands of the opposition when such course is inadvisable in the discretion of the Party having such difficulty. Neither Party shall be considered in breach or default of this Agreement if and to the extent that any failure or delay in the Party’s performance of one or more of its obligations hereunder is caused by a Force Majeure Event. The occurrence and continuation of a Force Majeure Event shall not suspend or excuse the obligation of a Party to make any payments due hereunder.
10.3 Notice. Within ten (10) Business Days of becoming aware of the commencement of a Force Majeure Event, the non-performing Party shall provide the other Party with oral notice of the Force Majeure Event, and within two (2) weeks of the commencement of the Force Majeure Event (or, if later, as soon as practicable following the date when the non-performing Party became aware of the Force Majeure Event), the non-performing Party shall provide the other Party with Notice in the form of a letter describing in detail the particulars of the occurrence giving rise to the Force Majeure Event claim. Failure to provide timely Notice as described in the preceding sentence constitutes a waiver of a Force Majeure Event claim as to all time periods prior to the delivery of the Notice. The suspension of performance due to a claim of Force Majeure Event must be of no greater scope and of no longer duration than is required by the Force Majeure Event.
10.4 Termination Following Force Majeure Event. If a Force Majeure Event has occurred after the Commercial Operation Date that has caused either Party to be wholly or partially 31 unable to perform its obligations hereunder in any material respect, and the impacted Party has claimed and received relief from performance of its obligations for a consecutive twelve (12) month period, then the non-claiming Party may terminate this Agreement upon Notice to the Party experiencing the Force Majeure Event. Upon any such termination, neither Party shall have any liability to the other Party, save and except for those obligations specified in Section 2.1(b), and Buyer shall promptly return to Seller any Performance Security then held by Buyer, less any amounts drawn in accordance with this Agreement.
ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION
11.1 Events of Default. An “Event of Default” shall mean, (a) with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default, the occurrence of any of the following:
(i) the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof;
(ii) any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if such Party is unable to remedy such default within such initial thirty (30)-day period despite exercising commercially reasonable efforts); (iii) the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default set forth in this Section 11.1; and except for the failure to provide Capacity Attributes, the exclusive remedies for which are set forth in Section 3.3) and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite exercising commercially reasonable efforts); (iv) such Party becomes Bankrupt;
(v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Article 14, as applicable; (vi) such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party; or
(vii) with respect to any outstanding Letter of Credit provided for the benefit of a Party that is not then required under this Agreement to be canceled or returned, the 32 failure by the Party required to post such Letter of Credit to provide for the benefit of the other Party either (1) cash, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after the Party providing the Letter of Credit receives Notice of the occurrence of any of the following events:
(A) the issuer of the outstanding Letter of Credit shall fail to maintain a Credit Rating of at least “A-” by S&P or “A3” by Moody’s; (B) the issuer of such Letter of Credit becomes Bankrupt; (C) the issuer of the outstanding Letter of Credit shall fail to comply with or perform its obligations under such Letter of Credit and such failure shall be continuing after the lapse of any applicable grace period permitted under such Letter of Credit; (D) the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; (E) the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit; (F) such Letter of Credit fails or ceases to be in full force and effect at any time; or
(G) the Party required to maintain such Letter of Credit shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than sixty (60) days prior to the expiration of the outstanding Letter of Credit. (b) with respect to Seller as the Defaulting Party, the occurrence of any of the following:
(i) the failure by Seller to achieve Commercial Operation within after the Guaranteed Commercial Operation Date;
(ii) failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 within five (5) Business Days after Notice from Buyer, including the failure to replenish the Performance Security amount in accordance with this Agreement in the event Buyer draws against it for any reason other than to satisfy a Termination Payment; (iii) the failure by Seller to achieve Construction Start within after the Guaranteed Construction Start Date;
(iv) the failure by Seller to deliver a Remedial Action Plan if not remedied within ten (10) Business Days after written Notice thereof; (v) with respect to any Guaranty provided for the benefit of Buyer, the failure by Seller to provide for the benefit of Buyer either (1) cash or (2) a replacement Letter of 33 Credit from an issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events:
(A) if any representation or warranty made by the Guarantor in connection with this Agreement is false or misleading in any material respect when made or when deemed made or repeated;
(B) the failure of the Guarantor to make any payment required or to perform any other material covenant or obligation in any Guaranty; (C) the Guarantor becomes Bankrupt;
(D) the Guarantor shall fail to meet the criteria for an acceptable Guarantor as set forth in the definition of Guarantor;
(E) the failure of the Guaranty to be in full force and effect (other than in accordance with its terms) prior to the indefeasible satisfaction of all obligations of Seller hereunder; or
(F) the Guarantor shall repudiate, disaffirm, disclaim, or reject, in whole or in part, or challenge the validity of any Guaranty.
11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (“Non-Defaulting Party”) shall have the following rights:
(a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“Early Termination Date”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date;
(b) to accelerate all amounts owing between the Parties, and to collect as liquidated damages (i) the Damage Payment, or (ii) the Termination Payment, as applicable, in each case calculated in accordance with Section 11.3 below; (c) to withhold any payments due to the Defaulting Party under this Agreement pending declaration of an Early Termination Date under Section 11.2(a); (d) to suspend performance pending declaration of an Early Termination Date under Section 11.2(a); and
(e) to exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief to the extent monetary remedies are inadequate, except to the extent such remedies are expressly limited under this Agreement; provided, payment by the Defaulting Party of the Damage Payment or Termination Payment, as applicable, shall constitute 34 liquidated damages and the Non-Defaulting Party’s sole and exclusive remedy for any Terminated Transaction and the Event of Default related thereto.
11.3 Damage Payment; Termination Payment. If an Early Termination Date has been declared, the Non-Defaulting Party shall calculate, in a commercially reasonable manner, the Damage Payment or Termination Payment, as applicable, in accordance with this Section 11.3. (a) Damage Payment. If the Seller is the Defaulting Party and the Early Termination Date occurs before the Commercial Operation Date, a Damage Payment shall be calculated in accordance with this Section 11.3(a). The Damage Payment shall be owed to Buyer and, subject to Section 11.8, shall be equal to the entire Development Security amount. Subject to the foregoing, Buyer shall be entitled to immediately retain for its own benefit those funds held as Development Security and any interest accrued thereon, and any amount of Development Security that Seller has not yet posted with Buyer shall be immediately due and payable by Seller to Buyer.
The Parties agree that Buyer’s damages in the event of an Early Termination Date prior to the Commercial Operation Date where Seller is the Defaulting Party would be difficult or impossible to determine and that the damages set forth in this Section 11.3(a) are a reasonable approximation of Buyer’s harm or loss.
(b) Termination Payment. Except for an Early Termination Date occurring before the Commercial Operation Date where Seller is the Defaulting Party, which is provided for in Section 11.3(a), the payment owed by the Defaulting Party to the Non-Defaulting Party for a Terminated Transaction shall be the aggregate of all Settlement Amounts plus any and all other amounts due to or from the Non-Defaulting Party (as of the Early Termination Date) netted into a single amount (the “Termination Payment”). The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. Third parties supplying information for purposes of the calculation of Gains or Losses may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information. The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (i) the actual damages that the Non-Defaulting Party would incur in connection with a Terminated Transaction would be difficult or impossible to predict with certainty, (ii) the Termination Payment described in this Section 11.3(b) is a reasonable and appropriate approximation of such damages, and (iii) the Termination Payment described in this Section 11.3(b) is the exclusive remedy of the Non-Defaulting Party in connection with a Terminated Transaction but shall not otherwise act to limit any of the Non-Defaulting Party’s rights or remedies if the Non-Defaulting Party does not elect a Terminated Transaction as its remedy for an Event of Default by the Defaulting Party.
11.4 Notice of Payment of Termination Payment or Damage Payment. As soon as practicable after a Terminated Transaction, but in no event later than sixty (60) days after the Early Termination Date, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Damage Payment or Termination Payment, as applicable, and, in the case of the Termination Payment, whether the Termination Payment is due to or from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation 35 of such amount and the sources for such calculation. The Termination Payment or Damage Payment, as applicable, shall be made within ten (10) Business Days after such Notice is effective.
11.5 Disputes With Respect to Termination Payment or Damage Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment or Damage Payment, as applicable, in whole or in part, the Defaulting Party shall, within five (5) Business Days of receipt of the Non-Defaulting Party’s calculation of the Termination Payment or Damage Payment, as applicable, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding the Termination Payment or Damage Payment, as applicable, shall be determined in accordance with Article 15.
11.6 Rights And Remedies Are Cumulative. Except where liquidated damages or other remedy are explicitly provided as the exclusive remedy, the rights and remedies of a Party pursuant to this Article 11 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.
11.7 Mitigation. Any Non-Defaulting Party shall be obligated to use commercially reasonable efforts to mitigate its Costs, Losses and damages resulting from any Event of Default of the other Party under this Agreement.
ARTICLE 12
LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES.
12.1 No Consequential Damages. EXCEPT TO THE EXTENT PART OF (A) AN EXPRESS REMEDY OR MEASURE OF DAMAGES HEREIN, (B) AN ARTICLE 16
INDEMNITY CLAIM, (C) INCLUDED IN A LIQUIDATED DAMAGES CALCULATION, OR (D) RESULTING FROM A PARTY’S FRAUD OR WILLFUL MISCONDUCT, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER OR ITS INDEMNIFIED PERSONS FOR ANY
SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR
LOSSES OR DAMAGES FOR LOST REVENUE OR LOST PROFITS, WHETHER
FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, BY STATUTE, IN TORT OR CONTRACT.
12.2 Waiver and Exclusion of Other Damages. EXCEPT AS EXPRESSLY SET
FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND
MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO SELLER’S LIMITATION OF LIABILITY AND THE PARTIES’ WAIVER OF
CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES FOR BREACH 36 OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE.
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE
REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR
MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED.
IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY.
TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING UNDER SECTIONS 3.3, 11.2 AND 11.3 AND AS PROVIDED
IN EXHIBIT B, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT
OR IMPOSSIBLE TO DETERMINE, THAT OTHERWISE OBTAINING AN ADEQUATE
REMEDY IS INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE
INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES
AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR
CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY,
WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS AS AN UNREASONABLE PENALTY.
ARTICLE 13
REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS
13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and is qualified to conduct business in each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Seller.
(b) Seller has the limited liability company power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller’s performance under this Agreement. The execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary limited liability company action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller. (c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions 37 of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Seller, subject to any permits that have not yet been obtained by Seller, the documents of formation of Seller or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Seller is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Seller. This Agreement is a legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) The Facility is located in the State of California.
13.2 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a joint powers authority and a validly existing community choice aggregator, duly organized, validly existing and in good standing under the laws of the State of California and the rules, regulations and orders of the California Public Utilities Commission, and is qualified to conduct business in each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Buyer. All Persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with applicable Law. (b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Buyer’s performance under this Agreement. The execution, delivery and performance of this Agreement by Buyer has been duly authorized by all necessary action on the part of Buyer and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Buyer or any other party to any other agreement with Buyer.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Buyer, including but not limited to community choice aggregation, competitive bidding, public notice, open meetings, election, referendum, or prior appropriation requirements, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Buyer is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. 38 (e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (1) suit, (2) jurisdiction of court, (3) relief by way of injunction, order for specific performance or recovery of property, (4) attachment of assets, or (5) execution or enforcement of any judgment.
(f) Buyer is a “local public entity” as defined in Section 900.4 of the Government Code of the State of California.
13.3 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term:
(a) It shall continue to be duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and to be qualified to conduct business in each jurisdiction where the failure to so qualify would have a material adverse effect on its business or financial condition;
(b) It shall take all commercially reasonable actions required to maintain (or obtain from time to time as required) all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and
(c) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and in material compliance with any Law.
13.4 Additional Seller Commitments.
(a) Seller (or its Affiliate) shall maintain Site Control throughout the Delivery Term.
(b) Seller covenants that commencing on the Effective Date and continuing throughout the Contract Term, Seller shall materially comply with all applicable federal, state and local Laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals, including without limitation applicable employment discrimination laws and prevailing wage laws.
(c) Seller shall enter into a project labor agreement for construction of the Facility agrees to demonstrate, upon request, compliance with this requirement via copies of executed project labor agreements or similar agreements, a certified payroll system and such other documentation reasonably requested by Buyer, including pursuant to an audit.
13.5 Additional Buyer Commitments.
(a) Buyer acknowledges that it has read and supports the commitments adopted by Engie on ethics and social and environmental responsibility, as set out in its reference documents and in its Vigilance Plan; Engie’s commitments can be found on its website (www.engie.com).
39 ARTICLE 14
ASSIGNMENT
14.1 General Prohibition on Assignments. Except as provided below in this Article 14, neither Party may voluntarily assign this Agreement or its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed. Any Change of Control of Seller or direct or indirect change of control of Buyer (whether voluntary or by operation of law) will be deemed an assignment and will require the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Buyer’s prior written consent will not be required for any Change of Control of Seller where the Person controlling Seller after such Change of Control is a Qualified Transferee.
14.2 Collateral Assignment. Subject to the provisions of this Section 14.2, Seller has the right to assign this Agreement as collateral for any financing or refinancing of the Facility. In connection with any financing or refinancing of the Facility, upon request by Seller, Buyer shall in good faith work with Seller and Lender to agree upon a consent to collateral assignment of this Agreement, estoppels, or other required documentation in connection with Seller’s financing for the Facility. Seller shall pay Buyer’s reasonable expenses, including attorneys’ fees, incurred to provide consents, estoppels, or other required documentation in connection with Seller’s financing for the Facility. Buyer will have no obligation to provide any consent, or enter into any agreement, that materially and adversely affects any of Buyer’s rights, benefits, risks or obligations under this Agreement.
14.3 Permitted Assignment by Seller. Seller may, without the prior written consent of Buyer, transfer or assign this Agreement to: (a) an Affiliate of Seller, or (b)
ARTICLE 15
DISPUTE RESOLUTION
15.1 Governing Law. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of Law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement.
15.2 Dispute Resolution. In the event of any dispute arising under the Agreement, within ten (10) days following the receipt of a written Notice from either Party identifying such dispute, the authorized members of the Parties’ senior management shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within thirty (30) days of initiating such discussions, the Parties shall submit the dispute to mediation prior to seeking any and all remedies available to it at Law in or equity.
15.3 Attorneys’ Fees. In any proceeding brought to enforce this Agreement or because 40 of the breach by any Party of any covenant or condition herein contained, the prevailing Party shall be entitled to reasonable attorneys’ fees (including reasonably allocated fees of in-house counsel) in addition to court costs and any and all other costs recoverable in said action.
15.4 Venue. The Parties agree that any suit, action or other legal proceeding by or against any party (or its Affiliates or designees) with respect to or arising out of this Agreement shall be brought in the federal courts of the United States, or the courts of the State of California, sitting in Los Angeles, California.
ARTICLE 16
INDEMNIFICATION
16.1 Indemnification.
(a) Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party and its Affiliates, directors, officers, employees and agents (collectively, the “Indemnified Party”) from and against all third party claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) for personal injury or death to Persons and damage to the property of any third party to the extent arising out of, resulting from, or caused by the negligence or willful misconduct of the Indemnifying Party, its Affiliates, or its directors, officers, employees, or agents.
(b) Nothing in this Section 16.1 shall enlarge or relieve a Party of any liability to the other for any breach of this Agreement. The Indemnified Party shall not be indemnified for its damages resulting from its sole negligence, intentional acts or willful misconduct. These indemnity provisions shall not be construed to relieve any insurer of its obligation to pay claims consistent with the provisions of a valid insurance policy.
16.2 Claims. Promptly after receipt by a Party of any claim or Notice of the commencement of any action, administrative, or legal proceeding, or investigation as to which the indemnity provided for in this Article 16 may apply, the Indemnified Party shall notify the Indemnifying Party in writing of such fact. The Indemnifying Party shall assume the defense thereof with counsel designated by the Indemnifying Party and satisfactory to the Indemnified Party, provided, if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to the Indemnifying Party, the Indemnified Party shall have the right to select and be represented by separate counsel, at the Indemnifying Party’s expense, unless a liability insurer is willing to pay such costs. If the Indemnifying Party fails to assume the defense of a claim meriting indemnification, the Indemnified Party may at the expense of the Indemnifying Party contest, settle, or pay such claim, provided that settlement or full payment of any such claim may be made only following consent of the Indemnifying Party or, absent such consent, written opinion of the Indemnified Party’s counsel that such claim is meritorious or warrants settlement. Except as otherwise provided in this Article 16, in the event that a Party is obligated to indemnify and hold the other Party and its successors and assigns harmless under this Article 16, the amount owing to the Indemnified Party will be the amount of the Indemnified Party’s damages net of any insurance 41 proceeds received by the Indemnified Party following a reasonable effort by the Indemnified Party to obtain such insurance proceeds.
ARTICLE 17
INSURANCE
17.1 Insurance.
(a) General Liability. Seller shall maintain, or cause to be maintained at its sole expense, (i) commercial general liability insurance, including products and completed operations and personal injury insurance, in a minimum amount of Five Million Dollars ($5,000,000) per occurrence, and an annual aggregate of not less than Five Million Dollars ($5,000,000), endorsed to provide contractual liability in said amount, specifically covering Seller’s obligations under this Agreement and including Buyer as an additional insured; and (ii) an umbrella insurance policy in a minimum limit of liability of Five Million Dollars ($5,000,000) per occurrence and in aggregate.
Defense costs shall be provided as an additional benefit and not included within the limits of liability. Such insurance shall contain standard cross-liability and severability of interest provisions. The amount of insurance required above may be satisfied by any combination of primary and excess insurance.
(b) Employer’s Liability Insurance. Employers’ Liability insurance shall not be less than One Million Dollars ($1,000,000.00) for injury or death occurring as a result of each accident. With regard to bodily injury by disease, the One Million Dollar ($1,000,000) policy limit will apply to each employee.
(c) Workers Compensation Insurance. Seller, if it has employees, shall also maintain at all times during the Contract Term workers’ compensation and employers’ liability insurance coverage in accordance with applicable requirements of Law. (d) Business Auto Insurance. Seller shall maintain at all times during the Contract Term business auto insurance for bodily injury and property damage with limits of One Million Dollars ($1,000,000) per occurrence. Such insurance shall cover liability arising out of Seller’s use of all owned (if any), non-owned and hired vehicles, including trailers or semi-trailers in the performance of the Agreement.
(e) Builder’s All-Risk Insurance. Seller shall maintain or cause to be maintained during the construction of the Facility prior to the Commercial Operation Date, builder’s all-risk insurance covering the Facility during such construction periods to the extent such coverage is commercially available.
(f) Evidence of Insurance. Within ten (10) days after execution of the Agreement and upon annual renewal thereafter, Seller shall deliver to Buyer certificates of insurance evidencing such coverage. Such certificates shall specify that Buyer shall be given at least thirty (30) days prior Notice by Seller in the event of any material modification, cancellation or termination of coverage. Such insurance shall be primary coverage without right of contribution from any insurance of Buyer. Any other insurance maintained by Seller is for the exclusive benefit of Seller and shall not in any manner inure to the benefit of Buyer. The general liability, auto 42 liability and worker’s compensation policies shall be endorsed with a waiver of subrogation in favor of Buyer for all work performed by Seller, its employees, agents and sub-contractors. (g) Failure to Comply with Insurance Requirements. If Seller fails to comply with any of the provisions of this Article 17, Seller, among other things and without restricting Buyer’s remedies under the Law or otherwise, shall, at its own cost and expense, act as an insurer and self-insure in accordance with the terms and conditions above. With respect to the required general liability, umbrella liability and business automobile liability insurance, 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 would have, had the insurance been maintained in accordance with the terms and conditions set forth above. In addition, alleged violations of the provisions of this Article 17 means that Seller has the initial burden of proof regarding any legal justification for refusing or withholding coverage and Seller shall face the same liability and damages as an insurer for wrongfully refusing or withholding coverage in accordance with the laws of California.
ARTICLE 18
CONFIDENTIAL INFORMATION
18.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written which is delivered by Seller to Buyer or by Buyer to Seller including: (a) the terms and conditions of, and proposals and negotiations related to, this Agreement, and (b) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” before disclosing it to the other. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of the delivery; (iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement.
18.2 Duty to Maintain Confidentiality. The Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”) shall not disclose Confidential Information to a third party (other than the Party’s employees, lenders and investors (including bona fide prospective lenders and other investors), counsel, accountants, directors or advisors, or any such representatives of a Party’s Affiliates, who have a need to know such information and have agreed to keep such terms confidential) except in order to comply with any applicable Law, regulation, or any exchange, control area or independent system operator rule or in connection with any court or regulatory proceeding applicable to such Party or any of its Affiliates; provided, each Party shall, to the extent practicable, use reasonable efforts to prevent or limit the disclosure. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, this confidentiality obligation. The Parties agree and acknowledge that nothing in this Section 18.2 prohibits a Party from disclosing any one or more of the commercial terms of a transaction (other than the name of the other Party unless otherwise agreed to in writing by the Parties) to any industry price source for the purpose of aggregating and 43 reporting such information in the form of a published energy price index.
The Parties acknowledge and agree that the Agreement and any transactions entered into in connection herewith are subject to the requirements of the California Public Records Act (Government Code Section 7920 et seq.). In order to designate information as confidential, the Disclosing Party must clearly stamp and identify the specific portion of the material designated with the word “Confidential.” The Parties agree not to over-designate material as Confidential Information. Over-designation includes stamping whole agreements, entire pages or series of pages as “Confidential” that clearly contain information that is not Confidential Information.
Upon request or demand of any third person or entity not a Party hereto to Buyer pursuant to the California Public Records Act for production, inspection and/or copying of Confidential Information (“Requested Confidential Information”), Buyer shall as soon as practical notify Seller in writing via email that such request has been made. Seller shall be solely responsible for taking at its sole expense whatever legal steps are necessary to prevent release of the Requested Confidential Information to the third party by Buyer. If Seller takes no such action after receiving the foregoing Notice from Buyer, Buyer shall, at its discretion, be permitted to comply with the third party’s request or demand and is not required to defend against it. If Seller does take or attempt to take such action, Buyer shall provide timely and reasonable cooperation to Seller, if requested by Seller, and Seller agrees to indemnify and hold harmless Buyer, its officers, employees and agents (“Buyer’s Indemnified Parties”), from any claims, liability, award of attorneys’ fees, or damages, and to defend any action, claim or lawsuit brought against any of Buyer’s Indemnified Parties for Buyer’s refusal to disclose any Requested Confidential Information.
18.3 Irreparable Injury; Remedies. Receiving Party acknowledges that its obligations hereunder are necessary and reasonable in order to protect Disclosing Party and the business of Disclosing Party, and expressly acknowledges that monetary damages would be inadequate to compensate Disclosing Party for any breach or threatened breach by Receiving Party of any covenants and agreements set forth in this Article 18. Accordingly, Receiving Party acknowledges that any such breach or threatened breach will cause irreparable injury to Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Disclosing Party will be entitled to obtain injunctive relief against the threatened breach of this Article 18 or the continuation of any such breach, without the necessity of proving actual damages.
18.4 Further Permitted Disclosure. Notwithstanding anything to the contrary in this Article 18, Confidential Information may be disclosed by the Receiving Party to any of its agents, consultants, contractors, trustees, or actual or potential financing parties (including, in the case of Seller, its actual or potential Lender(s)), so long as such Person to whom Confidential Information is disclosed is bound by contract or Law or otherwise agrees in writing to be bound by confidentiality provisions that are at least as restrictive as this Article 18 to the same extent as if it were a Party.
18.5 Press Releases. Neither Party shall issue (or cause its Affiliates to issue) a press release regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such press release.
44 ARTICLE 19
MISCELLANEOUS
19.1 Entire Agreement; Integration; Exhibits. This Agreement, together with the Cover Sheet and Exhibits attached hereto constitutes the entire agreement and understanding between Seller and Buyer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by reference. The headings used herein are for convenience and reference purposes only. This Agreement shall be considered for all purposes as prepared through the joint efforts of the Parties and shall not be construed against one Party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof.
19.2 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Buyer; provided, this Agreement may not be amended by electronic mail communications.
19.3 No Waiver. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default.
19.4 No Agency, Partnership, Joint Venture or Lease. Seller and the agents and employees of Seller shall, in the performance of this Agreement, act in an independent capacity and not as officers or employees or agents of Buyer. Under this Agreement, Seller and Buyer intend to act as energy seller and energy purchaser, respectively, and do not intend to be treated as, and shall not act as, partners in, co-venturers in or lessor/lessee with respect to the Facility or any business related to the Facility. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement) and/or, to the extent set forth herein, any Lender and/or Indemnified Party.
19.5 Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal or unenforceable provision(s) with legally acceptable clauses which correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as a whole.
19.6 Mobile-Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms or conditions of service of this Agreement proposed by a Party shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable Law. 45 19.7 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument and each of which shall be deemed an original.
19.8 Electronic Delivery. This Agreement may be duly executed and delivered by a Party by electronic format (including portable document format (.pdf)) delivery of the signature page of a counterpart to the other Party.
19.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
19.10 No Recourse to Members of Buyer. Buyer is organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) pursuant to its Joint Powers Agreement and is a public entity separate from its constituent members. Buyer shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Seller shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Buyer’s constituent members, or the employees, directors, officers, consultants or advisors or Buyer or its constituent members, in connection with this Agreement.
19.11 Forward Contract. The Parties acknowledge and agree that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and Seller are “forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. § 366 in any Bankruptcy proceeding wherein such Party is a debtor. In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. §366 or another provision of 11 U.S.C. § 101-1532.
19.12 Change in Electric Market Design. If a change in the CAISO Tariff (i) renders this Agreement or any provisions hereof incapable of being performed or administered, or (ii) a change in the CAISO Tariff, CPUC rules or other Law (or any new Law) results in the Net Qualifying Capacity of the Facility on a consistent or ongoing basis falling below the Qualifying Capacity of the Facility through no fault of Seller and such change in Law is not reasonably addressable by Seller under Section 3.4, then any Party may request that Buyer and Seller enter into negotiations to make the minimum changes to this Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Effective Date. Upon delivery of such a request, Buyer and Seller shall engage in such negotiations in good faith. If Buyer and Seller are unable, within sixty (60) days after delivery of such request, to agree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then any Party may submit issues pertaining to changes to this Agreement to the dispute resolution process set forth in Article 15. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, and (ii) all of the unaffected provisions of this Agreement shall remain in full force and effect during any period of such negotiation or dispute resolution.
46 19.13 Further Assurances. Each of the Parties hereto agrees to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.
19.14 Service Contract. The Parties acknowledge and agree that this Agreement is intended to constitute a “service contract” within the meaning of Section 7701(e) of the Internal Revenue Code of 1986, as amended from time to time.
[Signatures on following page]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.
CIRCLE CITY ENERGY STORAGE LLC
By:
Name:
Title:
Date:
CLEAN ENERGY ALLIANCE,
a California joint powers authority
By:
Name:
Title:
Date:
Exhibit A - 1
EXHIBIT A
FACILITY DESCRIPTION
Site Name: Circle City
Site includes all or some of the following APNs:
County:
CEQA Lead Agency: City of Corona, statutory exemption
Type of Facility: Lithium-Ion Battery Energy Storage
Operating Characteristics of Facility:
Maximum Stored Energy Level (MWh) at COD:
Minimum Stored Energy Level (MWh) at COD:
Maximum Charging Capacity (MW) at COD:
Minimum Charging Capacity (MW) at COD:
Maximum Discharging Capacity (MW) at COD:
Minimum Discharging Capacity (MW) at COD:
Annual Cycles:
Storage Contract Capacity: 28 MWAC
Delivery Point: Interconnection Point Mira Loma-Corona-Pedley 66 kV line Facility Metering Points: See Exhibit M
Facility Interconnection Point: The Facility shall interconnect to the Southern California Edison (“SCE”) Mira Loma-Corona-Pedley 66 kV line (the “Interconnection Point”).
Facility PNode: or alternate PNode assigned to the Facility by CAISO Participating Transmission Owner: SCE
Exhibit B - 1
EXHIBIT B
FACILITY CONSTRUCTION AND COMMERCIAL OPERATION
1) Construction of the Facility.
a) “Construction Start” will occur upon Seller’s (i) acquisition of all applicable regulatory authorizations, approvals and permits necessary to commence the construction of the Facility, (ii) engagement of all primary contractors and ordering of all essential equipment and supplies as, in each case, can reasonably be considered necessary so that physical construction of the Facility may begin, and (iii) execution of an engineering, procurement, and construction contract and issuance thereunder of a full notice to proceed that authorizes the contractor to mobilize to Site and begin physical construction at the Site. The date of Construction Start will be evidenced by and subject to Seller’s delivery to Buyer of a certificate substantially in the form attached as Exhibit H hereto, and the date certified therein shall be the “Construction Start Date.” b) The “Guaranteed Construction Start Date” means the Expected Construction Start Date, subject to extensions on a day-for-day basis for the Development Cure Period.
2) Commercial Operation of the Facility.
a) “Commercial Operation” means the condition existing when Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit E (the “COD Certificate”). Seller shall provide Notice of expected COD to Buyer in writing no less than sixty (60) days in advance of such date.
b) The “Guaranteed Commercial Operation Date” means the Expected Commercial Operation Date, subject to extensions on a day-for-day basis for the Development Cure Period.
3) Development Cure Period. The “Development Cure Period” means delays in achieving the Milestones due to Force Majeure Event
The Development Cure Period, including for Force Majeure Event, shall be no longer than on a cumulative basis. For clarity, the Development Cure Period extends both the Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date simultaneously. Notwithstanding anything to the contrary, no extension shall be given if (i) the delay was the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines, (ii) Seller failed to provide requested documentation as provided below, or (iii) Seller failed to provide written Notice to Buyer as required in the next sentence. Seller shall provide prompt written Notice to Buyer of a delay, but in no case more than thirty (30) days after Seller became aware of such delay, except that in the case of a delay occurring within sixty (60) days of the Expected Commercial Operation Date, or after such date, Seller must
Exhibit B - 2
provide written Notice within five (5) Business Days of Seller becoming aware of such delay. Upon request from Buyer, Seller shall provide documentation demonstrating to Buyer’s reasonable satisfaction that the delays described above did not result from Seller’s actions or failure to take commercially reasonable actions. 4) Termination for Failure to Achieve Construction Start or Commercial Operation a) Termination for Failure to Achieve Construction Start. Failure to achieve Construction Start by the date that is after the
Guaranteed Construction Start Date shall constitute an Event of Default, and Buyer shall have the right, in its sole discretion, to terminate the Agreement and, subject to Section 11.8, retain a Damage Payment in the amount of the Development Security.
b) Termination for Failure to Achieve Commercial Operation. Failure to achieve the Commercial Operation Date by the date that is after the Guaranteed Commercial Operation Date shall constitute an Event of Default, and Buyer shall have the right, in its sole discretion, to terminate the Agreement and, subject to Section 11.8, retain a Damage Payment in the amount of the Development Security. Notwithstanding anything herein to the contrary, if Buyer does not terminate the Agreement by the date that is after the Guaranteed Commercial Operation Date, and Seller still has not achieved the Commercial Operation Date, then Seller shall have the right, in its sole discretion, to terminate the Agreement by written Notice to Buyer, which termination right must be exercised by the date that is after the Guaranteed Commercial Operation Date. If Seller exercises such termination right Seller shall, subject to Section 11.8, pay Buyer a Damage Payment in the amount of the Development Security, which Buyer may draw from the Development Security.
Exhibit C - 1
EXHIBIT C
COMPENSATION
Buyer shall compensate Seller for the Product as follows:
The “Monthly Payment” shall equal (i) the Contract Price,
Such payment constitutes the entirety of the amount due to Seller from Buyer for the Product.
Exhibit D - 1
EXHIBIT D
PROGRESS REPORTING FORM
Each Progress Report must include the following items:
1. Executive Summary.
2. Facility description.
3. Site plan of the Facility.
4. Description of any material planned changes to the Facility or the Site.
5. Gantt chart schedule showing progress toward meeting each of the Milestones.
6. Summary of activities during the previous calendar quarter or month, as applicable.
7. Forecast of activities scheduled for the current calendar quarter.
8. Written description (a) about the progress relative to Seller’s Milestones, including whether Seller has met or is on target to meet the Milestones, (b) identifying any missed Seller’s Milestones and the cause of the delay and providing a detailed description of Seller’s corrective actions to achieve the missed Seller’s Milestones and all subsequent Seller’s Milestones by the Guaranteed Commercial Operation Date.
9. List of issues that are reasonably likely to affect Seller’s Milestones.
10. A status report of start-up activities including a forecast of activities ongoing and after start-up, a report on Facility performance including performance projections for the next twelve (12) months.
11. Prevailing wage reports as required by Law.
12. Progress and schedule of all material agreements, contracts, permits, approvals, technical studies, financing agreements and major equipment purchase orders showing the start dates, completion dates, and completion percentages.
13. Pictures, in sufficient quantity and of appropriate detail, in order to document construction and startup progress of the Facility, the interconnection into the Transmission System and all other interconnection utility services.
14. Any other documentation reasonably requested by Buyer.
Exhibit E - 1
EXHIBIT E
FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by [licensed professional engineer] (“Engineer”) to Clean Energy Alliance, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Energy Storage Resource Adequacy Agreement dated [date] (“Agreement”) by and between Circle City Energy Storage LLC (“Seller”) and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
As of [date], Engineer hereby certifies and represents to Buyer the following:
1. The Facility has met all Interconnection Agreement requirements.
2. Seller has installed and commissioned equipment for the Facility with an Installed Capacity of no less than ninety-five percent (95%) of the Storage Contract Capacity.
3. The Facility has successfully completed all testing required by Prudent Operating Practices and any requirement of Law to operate the Facility.
EXECUTED by [LICENSED PROFESSIONAL ENGINEER]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL ENGINEER]
By:
Printed Name:
Title:
Exhibit F - 1
EXHIBIT F
FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity and related characteristics of the Facility is delivered by [licensed professional engineer] (“Engineer”) to Clean Energy Alliance, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Energy Storage Resource Adequacy Agreement dated [date] (“Agreement”) by and between Circle City Energy Storage LLC (“Seller”) and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
I hereby certify that the Commercial Operation Storage Capacity Test conducted on [Date] demonstrated a maximum dependable operating capability to discharge electric energy of __ MW AC to the Delivery Point at four (4) hours of continuous discharge, in accordance with the testing procedures, requirements and protocols set forth in Section 4.7 and Exhibit L (the “Installed Capacity”).
EXECUTED by [LICENSED PROFESSIONAL ENGINEER]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL ENGINEER]
By:
Printed Name:
Title:
Exhibit G - 1
EXHIBIT G
RESERVED
Exhibit H - 1
EXHIBIT H
FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification of Construction Start Date (“Certification”) is delivered by Circle City Energy Storage LLC (“Seller”) to Clean Energy Alliance, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Energy Storage Resource Adequacy Agreement dated [date] (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
Seller hereby certifies and represents to Buyer the following:
1. Construction Start (as defined in Exhibit B of the Agreement) has occurred, and a copy of the full notice to proceed that Seller issued to its contractor as part of Construction Start is attached hereto; and
2. the Construction Start Date occurred on [date] (the “Construction Start Date”); and
3. the precise Site on which the Facility is located is, which must be within the boundaries of the previously identified Site:
_____________________________________________________________________.
IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as of the ___ day of ________.
[SELLER ENTITY]
By:
Printed Name:
Title:
Exhibit I - 1
EXHIBIT I
FORM OF LETTER OF CREDIT
[to be further reviewed by issuing bank prior to issuance] [Issuing Bank Letterhead and Address]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX]
Date: _____________________
Bank Ref.: _________________
Stated Amount: US$_______________
Beneficiary:
Clean Energy Alliance
Attn: Gregory Wade, CEO
5857 Owens Ave, Suite 2023
Carlsbad, CA 92008
Applicant:
[Entity]
[on behalf of entity]
[address]
[attn:]
To Whom It May Concern:
By the order of [Entity name, state of formation, type of entity] (“Applicant”), we, [Bank name and address] (“Issuer”) hereby issue our Irrevocable Standby Letter of Credit No. [XXXXXX] (the “Letter of Credit”) in favor of Clean Energy Alliance, a California joint powers authority (“Beneficiary”), for an amount of U.S. $[XXXXXX] (United States Dollars [XXXXXX] and 00/100) (“Stated Amount”) , pursuant to that certain Energy Storage Resource Adequacy Agreement dated as of [Date] and as amended (the “Agreement”) between Applicant and Beneficiary. This Letter of Credit shall become effective immediately and shall expire on [Date] which is one year after the issue date of this Letter of Credit, or any expiration date extended in accordance with the terms hereof (the “Expiration Date”).
Funds under this Letter of Credit are available to Beneficiary by valid presentation on or before the Expiration Date of a dated statement purportedly signed by Beneficiary’s duly authorized representative, in the form attached hereto as Exhibit A, containing one of the two alternative paragraphs set forth in paragraph 2 therein, referencing our Letter of Credit No. [XXXXXX] (“Drawing Certificate”).
The Drawing Certificate may be presented by (a) physical delivery to bank address at [bank
Exhibit I - 2
address], (b) as a PDF attachment to an email to [Bank email address] or (c) facsimile to [Bank fax number] confirmed by [email to [Bank email address]]. Transmittal by facsimile or email shall be deemed delivered when received.
The original of this Letter of Credit (and all amendments, if any) is not required to be presented in connection with any presentment of a Drawing Certificate by Beneficiary hereunder in order to receive payment.
We hereby agree with the Beneficiary that all documents presented under and in compliance with the terms of this Letter of Credit, that such drafts will be duly honored upon presentation to the Issuer on or before the Expiration Date. All payments made under this Letter of Credit shall be made with Issuer’s own immediately available funds by means of wire transfer in immediately available United States dollars to Beneficiary’s account as indicated by Beneficiary in its Drawing Certificate or in a communication accompanying its Drawing Certificate.
Partial draws are permitted under this Letter of Credit and shall reduce the Stated Amount available under this Letter of Credit, and this Letter of Credit shall remain in full force and effect with respect to any continuing balance; provided that the aggregate draws on this portfolio shall not exceed the Stated Amount at the time of such draw.
This Letter of Credit is not transferrable. Any purported transfer shall be deemed void in all respects. All account charges are the sole responsibility of the Applicant.
It is a condition of this Letter of Credit that the Expiration Date shall be deemed automatically extended without an amendment for a one year period beginning on the present Expiration Date hereof and upon each anniversary for such date, unless at least one hundred twenty (120) days prior to any such Expiration Date we have sent to you written notice by overnight courier service that we elect not to extend this Letter of Credit, in which case it will expire on such Expiration Date, or such later date as may be specified in such notice. No presentation made under this Letter of Credit after such Expiration Date (or such later date, if applicable) will be honored.
This Letter of Credit is issued subject to the rules of the ‘International Standby Practices 1998’, International Chamber of Commerce Publication No. 590 (“ISP98”) and, as to matters not addressed by ISP98, shall be governed and construed in accordance with the laws of state of New York.
Notwithstanding any reference in this Letter of Credit to any other documents, instruments or agreements (other than as set forth in the immediately prior paragraph), this Letter of Credit contains the entire agreement between Beneficiary and Issuer relating to the obligations of Issuer hereunder.
Please address all correspondence regarding this Letter of Credit to the attention of the Letter of Credit Department at [Bank name and address], referring specifically to Issuer’s Letter of Credit No. [XXXXXX]. For telephone assistance, please contact Issuer’s Standby Letter of Credit Department at [Bank phone number] and have this Letter of Credit available.
All notices to Beneficiary shall be in writing and are required to be sent by certified letter, overnight courier, or delivered in person to: Clean Energy Alliance, Attn:
Exhibit I - 3
Only notices to Beneficiary meeting the
requirements of this paragraph shall be considered valid. Any notice to Beneficiary which is not in accordance with this paragraph shall be void and of no force or effect. [Bank Name]
___________________________
[Officer name]
[Officer title]
Exhibit I - 4
EXHIBIT A
Drawing Certificate
(DRAW REQUEST SHOULD BE ON BENEFICIARY’S LETTERHEAD)
[Insert Bank Name and Address]
To Whom It May Concern:
The undersigned, a duly authorized representative of Clean Energy Alliance, a California joint powers authority, as beneficiary (the “Beneficiary”) of the Irrevocable Letter of Credit No. [XXXXXX] (the “Letter of Credit”) issued by [Bank name] (the “Bank”) by order of [Entity name, state of formation, type of entity] (the “Applicant”), hereby certifies to the Bank as follows:
1. Applicant and Beneficiary are party to that certain Energy Storage Resource Adequacy Agreement dated as of [Date] (the “Agreement”).
2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________ because a Seller Event of Default (as such term is defined in the Agreement) has occurred or other occasion provided for in the Agreement where Beneficiary is authorized to draw on the Letter of Credit has occurred.
OR
Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________, which equals the full available amount under the Letter of Credit, because Applicant is required to maintain the Letter of Credit in force and effect beyond the Expiration Date of the Letter of Credit but has failed to provide Beneficiary with a replacement Letter of Credit or other acceptable instrument within thirty (30) days prior to such Expiration Date.
3. The undersigned is a duly authorized representative of Clean Energy Alliance and is authorized to execute and deliver this Drawing Certificate on behalf of Beneficiary.
You are hereby directed to make payment of the requested amount to Clean Energy Alliance by wire transfer in immediately available funds to the following account: [Specify account information]
Clean Energy Alliance
_______________________________
[Name and Title of Authorized Representative]
Date___________________________
Exhibit J - 1
EXHIBIT J
FORM OF REPLACEMENT RA NOTICE
This Replacement RA Notice (this “Notice”) is delivered by Circle City Energy Storage LLC (“Seller”) to Clean Energy Alliance, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Energy Storage Resource Adequacy Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Notice but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.
Pursuant to Section 3.3 of the Agreement, Seller hereby provides the below Replacement RA product information:
Exhibit J - 2
[SELLER ENTITY]
By:
Its:
Date:
Exhibit K - 1
EXHIBIT K
NOTICES
Exhibit L - 1
EXHIBIT L
STORAGE CAPACITY TESTS
Storage Capacity Test Notice and Frequency
A. Storage Capacity Test. Upon no less than ten (10) Business Days prior Notice to Buyer, Seller shall schedule and complete a Storage Capacity Test prior to the Commercial Operation Date. Such initial Storage Capacity Test and any subsequent Commercial Operation Storage Capacity Test conducted pursuant to Section 4.7 shall be performed in accordance with this Exhibit L and shall establish the Storage Contract Capacity hereunder based on the actual capacity and capabilities of the Facility determined by such Storage Capacity Test(s).
B. Test Results and Re-Setting of Storage Contract Capacity. No later than five (5) Business Days following any Storage Capacity Test, Seller shall submit a testing report detailing results and findings of the test. The report shall include Facility meter readings and plant log sheets verifying the operating conditions and output of the Facility. In accordance with Section 4.7 of the Agreement, Part II.I below, the Storage Contract Capacity determined pursuant to a Storage Capacity Test (in the case of the Storage Contract Capacity, up to, but not in excess of, shall become the new Storage Contract Capacity at the beginning of the day following the completion of the test for calculating the Monthly Payment and all other purposes under this Agreement.
Storage Capacity Test Procedures
PART I. GENERAL.
Each Storage Capacity Test (including the initial Storage Capacity Test and all re-performances thereof) shall be conducted in accordance with Prudent Operating Practices, all operating restrictions applicable to the Facility, and the provisions of this Exhibit L. For ease of reference, a Storage Capacity Test is sometimes referred to in this Exhibit L as a “SCT”. Buyer or its representative may be present for the SCT and may, for informational purposes only, use its own metering equipment (at Buyer’s sole cost).
PART II. REQUIREMENTS APPLICABLE TO ALL STORAGE CAPACITY TESTS.
Note: Seller shall have the right and option in its sole discretion to install storage capacity in excess of the initial Storage Contract Capacity of provided, for all purposes of this Agreement, the amount of Storage Contract Capacity shall never be deemed to exceed .
A. Purpose of Test. Each SCT shall:
(1) Determine an updated Storage Contract Capacity;
B. Test Elements. Each SCT shall include the following test elements:
• The measurement of discharging energy, as measured by the Facility Meter or other mutually agreed meter, that is discharged from the Facility to the
Exhibit L - 2
Delivery Point until the Stored Energy Level reaches zero MWh as indicated by the battery management system (“Energy Out”); • Electrical output at maximum discharging capacity at the Facility Meter (MW);
C. Parameters. During each SCT, the following parameters shall be measured and recorded simultaneously for the Facility, at ten (10) minute intervals:
(1) discharge time (minutes);
(2) discharging energy (MWh);
(3) discharging power (MW);
(4) Stored Energy Level (MWh).
D. Site Conditions. During each SCT, the following conditions at the Site shall be measured and recorded simultaneously at thirty (30) minute intervals:
(1) Relative humidity (%);
(2) Barometric pressure (inches Hg) near the horizontal centerline of the Facility; and
(3) Ambient air Temperature (°F).
E. Test Conditions.
(i) General. At all times during a SCT, the Facility shall be operated in compliance with Prudent Operating Practices and all operating protocols recommended, required or established by the manufacturer for operation at maximum charging capacity and maximum discharging capacity. (ii) Abnormal Conditions. If abnormal operating conditions that prevent the recordation of any required parameter occur during a SCT, Seller may postpone or reschedule all or part of such SCT in accordance with Part II.F below.
(iii) Instrumentation and Metering. Seller shall provide all instrumentation, metering and data collection equipment required to perform the SCT. The instrumentation, metering and data collection equipment electrical meters shall be calibrated in accordance with Prudent Operating Practice.
F. Incomplete Test. If any SCT is not completed in accordance herewith, Buyer may in its sole discretion: (i) accept the results up to the time the SCT stopped; (ii) require that the portion of the SCT not completed, be completed within a reasonable specified time period; or (iii) require that the SCT be entirely repeated.
Exhibit L - 3
Notwithstanding the above, if Seller is unable to complete a SCT due to a Force Majeure Event or the actions or inactions of Buyer or the CAISO or the PTO or the Transmission Provider, Seller shall be permitted to reconduct such SCT on dates and at times reasonably acceptable to the Parties.
G. Final Report. Within five (5) Business Days after the completion of any SCT, Seller shall prepare and submit to Buyer a written report of the results of the SCT, which report shall include:
(1) a record of the personnel present during the SCT that served in an operating, testing, monitoring or other such participatory role;
(2) the measured data for each parameter set forth in Part II.A through C, including copies of the raw data taken during the test; (3) the level of Storage Contract Capacity, Energy In, Energy Out, charging capacity, the current charge and discharge Ramp Rate, and Stored Energy Level determined by the SCT, including supporting calculations; and (4) Seller’s statement of either Seller’s acceptance of the SCT or Seller’s rejection of the SCT results and reason(s) therefor.
Within ten (10) Business Days after receipt of such report, Buyer shall notify Seller in writing of either Buyer’s acceptance of the SCT results or Buyer’s rejection of the SCT and reason(s) therefor.
If either Party rejects the results of any SCT, such SCT shall be repeated in accordance with Part II.F.
H. Supplementary Storage Capacity Test Protocol. No later than sixty (60) days prior to commencing Facility construction, Seller shall deliver to Buyer for its review and approval (such approval not to be unreasonably delayed or withheld) an updated supplement to this Exhibit L with additional and supplementary details, procedures and requirements applicable to Storage Capacity Tests based on the then current design of the Facility (“Supplementary Storage Capacity Test Protocol”). Thereafter, from time to time, Seller may deliver to Buyer for its review and approval (such approval not to be unreasonably delayed or withheld) any Seller recommended updates to the then current Supplementary Storage Capacity Test Protocol. The initial Supplementary Storage Capacity Test Protocol (and each update thereto), once approved by Buyer, shall be deemed an amendment to this Exhibit L.
I. Adjustment to Storage Contract Capacity. The total amount of discharging energy delivered to the Delivery Point (expressed in MWh AC) during the first four (4) hours of discharge (up to, but not in excess of, ), shall be divided by four (4) hours to determine the Storage Contract Capacity, which shall be expressed in MW AC, and shall be the new Storage Contract Capacity in accordance with
Exhibit L - 4
Section 4.7 of the Agreement until updated pursuant to a subsequent Storage Capacity Test.
Part III. INITIAL SUPPLEMENTARY STORAGE CAPACITY TEST PROTOCOL The initial Supplementary Storage Capacity Test Protocol outlined below shall be subject to any approved terms and conditions set forth in a Supplementary Storage Capacity Test Protocol in accordance with Part II.H above.
A. Procedure:
(1) System Starting State: The Facility shall be balanced using OEM procedures as appropriate and will be in the on-line state at the Minimum Stored Energy Level.
(2) Record the initial value of the Facility State-of-Charge (“SOC”). (3) Charge the Facility at the maximum charging capacity until the battery reaches the maximum SOC allowed at that rate. Continue charging the Facility at the fixed maximum battery voltage (CV charging). Stop the Facility charge routine when the battery has reached the desired SOC, not to exceed six hours of charging.
(4) Following an agreed-upon rest period, command a real power discharge that results in an AC power output of the Facility’s maximum discharging capacity and maintain the discharging state until the earlier of (a) the Facility has discharged at the maximum discharging level for four (4) consecutive hours, (b) the Facility has reached zero percent (0%) state of charge (the “Minimum Stored Energy Level”), or (c) the sustained discharging level is at least 2% less than the maximum discharging capacity. (5) Record and store the AC Energy discharged (in MWh) as measured at the Facility Meter. Such data point shall be used for purposes of calculation of the Storage Contract Capacity.
(6) If the Facility has not reached the Minimum Stored Energy Level pursuant to Part III.A.4, continue discharging the Facility until it reaches the Minimum Stored Energy Level.
(7) Record and store the AC Energy discharged (in MWh) as measured at the Facility Metering Points. “Energy Out” means that total AC Energy discharged (in MWh) as measured at the Facility Metering Point associated with Charging Energy from the commencement of discharging pursuant to Part III.A.4 until the Facility has reached the Minimum Stored Energy Level pursuant to either Part III.A.4 or Part III.A.6, as applicable. All separately metered Facility Station Use shall be excluded from the measurement of Energy Out.
Exhibit L - 5
(8) Test Results: The resulting Storage Contract Capacity measurement is the sum of the total discharging energy at the Facility Meter divided by four (4) hours.
Exhibit M – 1
EXHIBIT M
METERING DIAGRAM
[To Follow]
Exhibit N - 1
EXHIBIT N
FORM OF GUARANTY
This Guaranty (this “Guaranty”) is entered into as of [_____] (the “Effective Date”) by and between ___________ (“Guarantor”), Clean Energy Alliance, a California joint powers authority (together with its successors and permitted assigns, “Buyer”).
Recitals
A. Buyer and Circle City Energy Storage LLC, a Delaware Limited Liability Company (“Seller”), entered into that certain Energy Storage Resource Adequacy Agreement (as amended, restated or otherwise modified from time to time, the “PPA”) dated as of [____].
B. Guarantor is entering into this Guaranty as Performance Security to secure Seller’s obligations under the PPA, as required by Section 8.8 of the PPA.
C. Guarantor is entering into this Guaranty in as much as Guarantor expects to derive substantial direct and indirect benefits from the execution and delivery of the PPA.
D. Initially capitalized terms used but not defined herein have the meaning set forth in the PPA.
Agreement
1. Guaranty. For value received, Guarantor does hereby unconditionally, absolutely and irrevocably guarantee, as primary obligor and not as a surety, to Buyer the full, complete and prompt payment by Seller of any and all amounts and payment obligations now or hereafter owing from Seller to Buyer under the PPA, including, without limitation, compensation for penalties, the Termination Payment, indemnification payments or other damages, as and when required pursuant to the terms of the PPA (the “Guaranteed Amount”), provided, that Guarantor’s aggregate liability under or arising out of this Guaranty shall not exceed ________ Dollars ($___________).
The Parties understand and agree that any payment by Guarantor or Seller of any portion of the Guaranteed Amount shall thereafter reduce Guarantor’s maximum aggregate liability hereunder on a dollar-for-dollar basis. This Guaranty is an irrevocable, absolute, unconditional and continuing guarantee of the full and punctual payment and performance, and not of collection, of the Guaranteed Amount and, except as otherwise expressly addressed herein, is in no way conditioned upon any requirement that Buyer first attempt to collect the payment of the Guaranteed Amount from Seller, any other guarantor of the Guaranteed Amount or any other Person or entity or resort to any other means of obtaining payment of the Guaranteed Amount. In the event Seller shall fail to duly, completely or punctually pay any Guaranteed Amount as required pursuant to the PPA, Guarantor shall promptly pay such amount as required herein.
2. Demand Notice. For avoidance of doubt, a payment shall be due for purposes of this Guaranty only when and if a payment is due and payable by Seller to Buyer under the terms and conditions of the Agreement. If Seller fails to pay any Guaranteed Amount as required pursuant to the PPA for five (5) Business Days following Seller’s receipt of Buyer’s written notice of such failure (the “Demand Notice”), then Buyer may elect to exercise its rights under this Guaranty
Exhibit N - 2
and may make a demand upon Guarantor (a “Payment Demand”) for such unpaid Guaranteed Amount. A Payment Demand shall be in writing and shall reasonably specify in what manner and what amount Seller has failed to pay and an explanation of why such payment is due and owing, with a specific statement that Buyer is requesting that Guarantor pay under this Guaranty.
Guarantor shall, within five (5) Business Days following its receipt of the Payment Demand, pay the Guaranteed Amount to Buyer.
3. Scope and Duration of Guaranty. This Guaranty applies only to the Guaranteed Amount.
This Guaranty shall continue in full force and effect from the Effective Date and may not be terminated by Guarantor except upon thirty (30) days’ prior written notice to Buyer as required herein, provided that no such termination shall be effective until after the occurrence of either: (x) all Guaranteed Amounts have been paid in full (whether directly or indirectly through set-off or netting of amounts owed by Buyer to Seller), or (y) replacement Performance Security is provided in an amount and form required by the terms of the Agreement. Further, this Guaranty (a) shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of this Guaranty, and (b) subject to the preceding sentence, shall be discharged only by complete performance of the undertakings herein. Without limiting the generality of the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged, or otherwise affected and this Guaranty shall not be invalidated or impaired or otherwise affected for the following reasons:
(i) the extension of time for the payment of any Guaranteed Amount, or (ii) any amendment, modification or other alteration of the PPA, or (iii) any indemnity agreement Seller may have from any party, or (iv) any insurance that may be available to cover any loss, except to the extent insurance proceeds are used to satisfy the Guaranteed Amount, or
(v) any voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, Seller or any of its assets, including but not limited to any rejection or other discharge of Seller’s obligations under the PPA imposed by any court, trustee or custodian or any similar official or imposed by any law, statue or regulation, in each such event in any such proceeding, or
(vi) the release, modification, waiver or failure to pursue or seek relief with respect to any other guaranty, pledge or security device whatsoever, or (vii) any payment to Buyer by Seller that Buyer subsequently returns to Seller pursuant to court order in any bankruptcy or other debtor-relief proceeding, or (viii) those defenses based upon (A) the legal incapacity or lack of power or authority of any Person, including Seller and any representative of Seller to enter into the PPA or perform its obligations thereunder, (B) lack of due execution, delivery, validity or enforceability, including of the PPA, or (C) Seller’s inability to pay any Guaranteed Amount or perform its obligations under the PPA, or
Exhibit N - 3
(ix) any defenses based on statute of frauds;
provided that, subject to Guarantor’s payment of a Guaranteed Amount in accordance with Paragraph 2, Guarantor reserves the right to assert for itself in a subsequent proceeding any defenses, setoffs or counterclaims that Seller is or may be entitled to assert against Buyer (except for such defenses, setoffs or counterclaims that may be asserted by Seller with respect to the PPA, but that are expressly waived under any provision of this Guaranty).
4. Waivers by Guarantor. Guarantor hereby unconditionally waives as a condition precedent to the performance of its obligations hereunder, with the exception of the requirements in Paragraph 2, (a) notice of acceptance, presentment or protest with respect to the Guaranteed Amounts and this Guaranty, (b) notice of any action taken or omitted to be taken by Buyer in reliance hereon, (c) any requirement that Buyer exhaust any right, power or remedy or proceed against Seller under the PPA, and (d) any event, occurrence or other circumstance which might otherwise constitute a legal or equitable discharge of a surety. Without limiting the generality of the foregoing waiver of surety defenses, it is agreed that the occurrence of any one or more of the following shall not affect the liability of Guarantor hereunder:
(i) at any time or from time to time, without notice to Guarantor, the time for payment of any Guaranteed Amount shall be extended, or such performance or compliance shall be waived; (ii) the obligation to pay any Guaranteed Amount shall be modified, supplemented or amended in any respect in accordance with the terms of the PPA; (iii) subject to Paragraph 9, any (a) sale, transfer or consolidation of Seller into or with any other entity, (b) sale of substantial assets by, or restructuring of the corporate existence of, Seller or (c) change in ownership of any membership interests of, or other ownership interests in, Seller; or
(iv) the failure by Buyer or any other Person to create, preserve, validate, perfect or protect any security interest granted to, or in favor of, Buyer or any Person.
5. Subrogation. Notwithstanding any payments that may be made hereunder by the Guarantor, Guarantor hereby agrees that until the earlier of payment in full of all Guaranteed Amounts or expiration of the Guaranty in accordance with Paragraph 3, it shall not be entitled to, nor shall it seek to, exercise any right or remedy arising by reason of its payment of any Guaranteed Amount under this Guaranty, whether by subrogation or otherwise, against Seller or seek contribution or reimbursement of such payments from Seller.
6. Representations and Warranties. Guarantor hereby represents and warrants that (a) it has all necessary and appropriate [limited liability company][corporate] powers and authority and the legal right to execute and deliver, and perform its obligations under, this Guaranty, (b) this Guaranty constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting enforcement of creditors’ rights or general principles of equity, (c) the execution, delivery and performance of this Guaranty does not and will not contravene Guarantor’s organizational documents, any applicable Law or any contractual provisions binding on or affecting Guarantor, (d) there are no actions, suits or proceedings pending before any court,
Exhibit N - 4
governmental agency or arbitrator, or, to the knowledge of the Guarantor, threatened, against or affecting Guarantor or any of its properties or revenues which may, in any one case or in the aggregate, adversely affect the ability of Guarantor to enter into or perform its obligations under this Guaranty, and (e) no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or Governmental Authority, and no consent of any other Person (including, any stockholder or creditor of the Guarantor), that has not heretofore been obtained is required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty by Guarantor.
7. Notices. Notices under this Guaranty shall be deemed received if sent to the address specified below: (i) on the day received if served by overnight express delivery, and (ii) four Business Days after mailing if sent by certified, first class mail, return receipt requested. If transmitted by facsimile, such notice shall be deemed received when the confirmation of transmission thereof is received by the party giving the notice. Any party may change its address or facsimile to which notice is given hereunder by providing notice of the same in accordance with this Paragraph 7.
If delivered to Buyer, to it at [____]
Attn: [____]
Email: [____]
If delivered to Guarantor, to it at [____]
Attn: [____]
Email: [____]
8. Governing Law and Forum Selection. This Guaranty shall be governed by, and interpreted and construed in accordance with, the laws of the United States and the State of California, excluding choice of law rules. The Parties agree that any suit, action or other legal proceeding by or against any party (or its affiliates or designees) with respect to or arising out of this Guaranty shall be brought in the federal courts of the United States or the courts of the State of California sitting in the City and County of Los Angeles, California.
9. Miscellaneous. This Guaranty shall be binding upon Guarantor and its successors and assigns and shall inure to the benefit of Buyer and its successors and permitted assigns pursuant to the PPA. No provision of this Guaranty may be amended or waived except by a written instrument executed by Guarantor and Buyer. This Guaranty is not assignable by Guarantor without the prior written consent of Buyer. No provision of this Guaranty confers, nor is any provision intended to confer, upon any third party (other than Buyer’s successors and permitted assigns) any benefit or right enforceable at the option of that third party. This Guaranty embodies the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings of the parties hereto, verbal or written, relating to the subject matter hereof. If any provision of this Guaranty is determined to be illegal or unenforceable (i) such provision shall be deemed restated in accordance with applicable Laws to reflect, as nearly as possible, the original intention of the parties hereto and (ii) such determination
Exhibit N - 5
shall not affect any other provision of this Guaranty and all other provisions shall remain in full force and effect. This Guaranty may be executed in any number of separate counterparts, each of which when so executed shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Guaranty may be executed and delivered by electronic means with the same force and effect as if the same was a fully executed and delivered original manual counterpart.
[Signature on next page]
Exhibit N - 6
IN WITNESS WHEREOF, the Guarantor has caused an authorized representative to execute and deliver this Guaranty.
GUARANTOR:
[_______]
By:______________________________
Printed Name:__________________
Title:____________________________
Staff Report
DATE: July 31, 2025
TO: Clean Energy Alliance Board of Directors
FROM: Greg Wade, Chief Executive Officer
ITEM 12: Consider Adoption of Resolution No. 2025-038 Approving a Default Power Supply Change Policy
RECOMMENDATION:
That the Clean Energy Alliance (CEA) Board (Board) Adopt Resolution No. 2025-038 Approving a Member Agency Default Power Supply Change Policy.
BACKGROUND AND DISCUSSION:
CEA’s Joint Powers Agreement (JPA) provides that CEA is to offer power supply product options from which the member agencies can select that customers within their city are defaulted into when enrolled with CEA.
The three power supply options currently available are:
• Clean Impact – minimum 50% renewable energy increasing to 100% by 2035 • Clean Impact Plus – minimum 50% renewable energy and 75% carbon free energy • Green Impact – 100% renewable energy
As part of planning for the initial enrollment of customers in their community, each member agency selected a default power supply, with all seven current member cities selecting Clean Impact Plus. Customers continue to have the option to individually opt up to Green Impact or opt down to Clean Impact.
While member agencies selected their default power supply as part of the initial enrollment process, members have the ability to change the default power supply for their community. In order to ensure CEA has procured enough energy supply appropriately in the event that the default power supply is opted up to Green Impact, or has adjusted its portfolio in the event of an opt down to Clean Impact, as well as to provide the time to evaluate any rate implications of such actions, staff has developed a proposed Default Power Supply Policy (Policy).
Proposed Default Power Supply Policy
The process to effectuate a Default Power Supply change is an approximately 20-month process. In order to reduce the cost impact of a Default Power Supply change to a higher level, CEA’s policy recommends the Power Supply change to be effective in November of the year the Member Agency desires to make the change. The proposed Policy establishes the following timeline and procedures related to a Member Agency desiring to change its default power supply product. Key steps include:
July 31, 2025
Proposed Default Power Supply Change Policy
• March 1st of Year 0, where Year 1 is the year in which the Member Agency desires to implement the Default Power Supply change: Advance Notice of Default Power Supply Change to be provided to CEA the by Member Agency proposing a Default Product • June 1st of Year 0: CEA to provide a report to the Member Agency detailing the impacts of the Default Power Supply change.
• October 1st of Year 0: A resolution must be adopted by the Member Agency directing the Default Product change; and
• November of Year 1: The Default Power Supply change becomes effective.
A specific timeline of steps is shown below.
Year 0 steps = Year prior to effective date of default change Year 0 through Year 1 Steps
Advance Notice
provided to CEA
March 1
June 1
Report of fiscal impact
procurement impact
and rate impact
prepared by CEA and
provided to Member
Agency
City Council adoption
of Resolution
approving change in
default power supply
October 1
CEA begins procurement; regulatory compliance and reporting updates; coordination with Data Manager and Customer Service Center; customer communications; Rate adoption (if applicable)
October of Year 0 through October of Year 1
July 31, 2025
Proposed Default Power Supply Change Policy
Year 1 Steps
The steps outlined above ensure customers receive sufficient notification of the Default Product change and that CEA has prepared appropriately to serve customers on the new power supply product. Due to the steps involved in making a default power supply change, the proposed Policy establishes a maximum frequency of 1 change every 2 years for a Member Agency.
The Policy as proposed provides flexibility for the Chief Executive Officer to make exceptions to the Policy that are deemed appropriate.
Submitted for Board consideration:
___________________________________
Gregory Wade
Chief Executive Officer
ATTACHMENTS:
A. Resolution No. 2025-038
B. Proposed Member Agency Default Power Supply Change Policy Customer Notice #1
No later than
September
October
Customer Notice #2
Default Power Supply
changes
November 1
CLEAN ENERGY ALLIANCE
RESOLUTION NO. 2025-038
A RESOLUTION OF THE CLEAN ENERGY ALLIANCE BOARD OF DIRECTORS
APPROVING A MEMBER AGENCY DEFAULT POWER SUPPLY CHANGE
POLICY
WHEREAS, Clean Energy Alliance (“CEA”) is a joint powers authority established on November 4, 2019, and organized under the Joint Exercise of Powers Act (Government Code Sections 6500 et seq.); and
WHEREAS, on November 4, 2019, the CEA Board of Directors of CEA (“Board”), approved the CEA Joint Powers Authority (JPA) Agreement; and
WHEREAS, Section 6.5 of the JPA Agreement provided that the Board establish product options with higher renewable and/or greenhouse gas-free content that each Member Agency may select for flexibility to achieve their respective Climate Action Plan (CAP) goals without impeding any other Member Agency from doing the same; and WHEREAS, on March 4, 2021, the Board adopted Resolution No. 2021-007 establishing three power supply product offerings from which Member Agencies could select as their default power supply including Clean Impact (50% renewable energy supply), Clean Impact Plus (50% renewable/75% carbon-free energy supply) and Green Impact (100% renewable energy supply); and
WHEREAS, following the adoption of Resolution No. 2021-007, each Member Agency of CEA has selected Clean Impact Plus (50% renewable/75% carbon-free energy supply) as their default power supply product; and
WHEREAS, to provide the flexibility for each Member Agency to achieve its CAP goals as provided for under Section 6.5 of the JPA Agreement, CEA now desires to adopt a policy under which a Member Agency may change its default power supply; and WHEREAS, in order to ensure CEA has procured enough energy supply appropriately in the event that a Member Agency’s default power supply is modified as well as to provide the time to evaluate any rate implications of such actions, staff has developed a proposed Member Agency Default Power Supply Policy (Policy) outlining the process by which a Member Agency may change its default power supply.
NOW, THEREFORE, BE IT RESOLVED, by the Board of Directors of Clean Energy Alliance, as follows:
Attachment A
CEA Resolution No. 2025-038
Default Energy Supply Change Policy
Section 1. The Board hereby approves the CEA Member Agency Default Power Supply Change Policy as presented to the Board at their regular meeting on July 31, 2025, which is incorporated herein by reference and is on file with the Board Clerk of CEA and available to the public for inspection on CEA’s website.
The foregoing Resolution was passed and adopted on this 31st day of July, 2025, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
________________________________________
Katie Melendez, Board Chair
ATTEST:
_______________________________
Ana Marie Alarcon, Clerk to the Board
CEA-XXX
Default Power Supply Change Policy
Proposed July 31, 2025
Member Agency Default Power Supply Change Policy
1.0 PURPOSE
Clean Energy Alliance’s (CEA) Joint Powers Agreement (JPA) provides that CEA is to offer power supply product options from which the member agencies can select to achieve their Climate Action Plan (CAP) goals. The change in a Member Agency’s Default Power Supply must take into consideration many factors, including impacts to customers, impacts to CEA procurement and impact to CEA rates. The purpose of this Default Power Supply Change Policy (“Policy”) is to establish standard operating procedures and guidelines for addressing the considerations related to a change in a Member Agency’s Default Power Supply.
2.0 APPLICABILITY
This Policy applies to all Default Power Supply change requests by Member Agencies.
3.0 DEFINITIONS
“Board” means CEA Board of Directors.
“CEA Rates” means the rates applicable to customers as established in CEA’s rate schedule. “CEA Power Supply Product” means power supply products approved by the Board and available to CEA customers. For example, Clean Impact, Clean Impact Plus or Green Impact. “Default Power Supply” refers to the CEA Power Supply product that has been selected by the Member Agency as the default for customers within the Member Agency’s territory. This is the power supply that customers are enrolled in unless the customer takes an action to change to a different CEA Power Supply Product.
“Default Power Supply Change Month”. Default Power Supply changes will be effective November 1 of the year following the adoption of the City Council Resolution approving the change in Default Power Supply.
“Member Agency” is a “Party” as defined in Appendix A of CEA’s Joint Powers Agreement. “Opt Action” means an affirmative action taken by an individual CEA customer to select a CEA Power Supply Product that is different than the Default Power Supply for their location or to opt out of CEA service and return to San Diego Gas & Electric bundled service.
Attachment B
CEA-XXX
Default Power Supply Change Policy
Proposed July 31, 2025
2 4.0 DEFAULT POWER SUPPLY CHANGE PROCESS
1) Advance Notice of Intent to Change Default Power Supply. If a Member Agency desires to change its Default Power Supply after its customers have been enrolled with CEA, the Member Agency must provide advance notice to CEA of its intent to change Default Power Supply no later than March 1 of the year prior to the year in which the Default Power Supply change will occur.
2) Actions by CEA and the Member Agency Subsequent to Receipt of Advance Notice of Intent to Change Default Power Supply.
a. Upon receipt of the Advance Notice of Intent to Change Default Power Supply, CEA will evaluate the fiscal impact, procurement impact and rate impact of the change in Default Power Supply.
b. CEA will report the results of the evaluation of fiscal impact, procurement impact and rate impact, including the schedule for the proposed Default Power Supply Change, to the Member Agency no later than June 1 following receipt of the Advance Notice of Intent to Change Default Power Supply. c. No later than October 1 of the year prior to the year in which the Default Power Supply change will occur, the City Council or governing board of the Member Agency shall adopt a Resolution that approves the change in Default Power Supply.
3) Actions by CEA upon Receipt of Member Agency Resolution. Upon receipt of the Member Agency Resolution, CEA may engage in any of the following activities:
a. Procure or prepare to procure the appropriate amount of energy resources to meet the expected change in demand when the Default Power Supply is changed; b. Complete or prepare to complete additional regulatory compliance and reporting requirements, if any;
c. Coordinate with CEA’s data manager and Customer Service Center to prepare for the change of the Default Power Supply;
d. Prepare a customer communications plan; and
e. Take any other action necessary to effectuate the Member Agency’s change in Default Power Supply.
CEA-XXX
Default Power Supply Change Policy
Proposed July 31, 2025
3 4) November Default Power Supply Change Implementation. CEA will implement the change to the Default Power Supply in the month of November in the year following the adoption of the Resolution approving the Default Power Supply change by the City Council of the Member Agency pursuant to Section 4.2.c above. The individual customer transition will take place on the customer’s first meter read date in November.
Notwithstanding the foregoing, CEA and the Member Agency may mutually agree upon a different implementation schedule.
5) Customer Communications. CEA will notify customers affected by a Member Agency’s Default Power Supply Change. CEA will lead, with support from the Member Agency, the development and dissemination of customer notices.
a. Customers affected by a Member Agency’s Default Power Supply Change shall be sent a minimum of two (2) notifications. A minimum of one (1) notification shall be sent one (1) month prior to the change going into effect. b. In addition to the two required notices referenced in Section 5.a above, CEA will coordinate with a Member Agency who wishes to develop and distribute additional customer notices and/or conduct additional communications such as on-bill messaging, bill inserts, social media campaigns, newsletters, etc. c. CEA will cover the cost of the required notices referred to in Section 5.a above for the first Default Power Supply Change. Costs related to additional customer noticing and outreach for the first Default Power Supply Change and all customer communications, including the required notices, for any subsequent Default Power Supply Change will be charged to the Member Agency. 6) Exceptions to Application of Default Power Supply Change. Notwithstanding anything contained in this Policy, in no event shall a Member Agency’s change in the Default Power Supply affect the following:
a. Prior Customer Opt Actions. Any customer that has affirmatively taken any Opt Action will be excluded from the Default Power Supply Change. b. Additional Exceptions. The CEA Chief Executive Officer is authorized to determine additional exceptions for customers that would be excluded from the Default Power Supply Change or to implement the change on a different schedule than as set forth herein, including postponement of the Default Power Supply Change.
Additional exceptions will be communicated to the Member Agency. 7) Frequency of Default Power Supply Change by a Member Agency. A Member Agency may change its Default Power Supply no more than one (1) time every two (2) years.
Staff Report
DATE: July 31, 2025
TO: Clean Energy Alliance Board of Directors
FROM: Greg Wade, Chief Executive Officer
ITEM 13: Consider Adoption of Resolution No. 2025-039 Changing the Venue for Clean Energy Alliance (CEA) Board and Community Advisory Committee (CAC) Meetings from September 2025 through June 2026 and Discuss Time of Board Meetings RECOMMENDATION:
Adopt Resolution No. 2025-039 changing the Place/Venue for Clean Energy Alliance (CEA) Board and Community Advisory Committee (CAC) Meetings for September 2025 – June 2026 and provide additional direction regarding the time and place of the CEA Board Meeting as needed.
BACKGROUND AND DISCUSSION:
At the CEA Board meeting on June 26, 2025, and pursuant to Section 4.8 of the Clean Energy Alliance (CEA) Joint Powers Agreement, the CEA Board adopted Resolution No. 2025-023 setting the dates, times and location for regular Board Meetings (Attachment B). Additionally, at the CEA Board Meeting on January 30, 2025, CEA Board adopted Resolution No. 2025-003 approving the 2025 Community Advisory Committee (CAC) Meeting Schedule and Work Plan. Both Resolution No. 2025-003 and No. 2025-023 set the meeting location as the City of Oceanside City Council Chambers, located at 300 North Coast Hwy, Oceanside CA 92054 for these meetings.
Board Meeting Location/Venue
As previously advised, CEA staff have been exploring other meeting locations at which to conduct both the Board meetings and Community Advisory Committee (CAC) meetings. The CEA Board and CAC have been meeting at the City of Oceanside Council Chambers for the past two years. Over the past several months, concerns have been expressed both by Board and CAC members about the lack of parking available for their respective meetings. Additionally, some of the routine administrative services previously carried out by Oceanside staff have been transferred to CEA staff. Finally, the CEA Board has over the years expressed an interest in periodic movement of the Board/CAC meeting location within CEA’s service territory to accommodate travel times and convenience for all those who attend these meetings.
Staff have been considering two potential options for these meeting locations. One is the Board Meeting Room of the Leucadia Wastewater District at 1960 La Costa Avenue in Carlsbad. This facility is located close to CEA’s offices, has plenty of free on-site parking and CEA’s Thursday meeting days do not conflict with any of their regular meetings. Additionally, the space has been offered at no charge along with access July 31, 2025
Changing Board/CAC Meeting Location
Fiscal Year 25/26
to their Closed Session Meeting Room and a larger conference meeting room if ever needed with prior approval.
A second option staff has been evaluating is the City of Vista’s City Council Chambers. Staff engaged with City of Vista staff to work through logistics for this location, however, on July 24, 2025, staff was informed that, because CEA’s audio-visual and information technology (IT) needs would require Vista IT staff support and time, they could not accommodate our request for monthly or bi-monthly meetings in their Council Chambers.
Given the above information,staff recommends that the Board approve the Leucadia Wastewater District at 1960 La Costa Avenue in Carlsbad for the new location to hold the Board and CAC meetings. As previously noted, this location has been offered at no cost and there is no conflict with any other meetings currently taking place there. There is ample free parking and this location achieves the objective of rotating to other areas within CEA’s service territory at which to hold these meetings. Additionally, Leucadia Wastewater District has also offered the use of their Board Room and another larger conference room if ever needed subject to prior approval.
The CEA Board meetings will continue to occur at the previously approved times as noted in Resolution No. 2025-023. The CAC meetings will also continue to occur at their Board-approved times as well. If adopted by the Boad, Resolution No. 2025-039 would simply change the meeting venue/location for both the Board and CAC meetings.
Amending the Board Meeting calendar by resolution meets the Brown Act requirements (Government Code §54954) and provides the CEA Board the opportunity to notify the public of its scheduled regular meetings. Special meetings may be called as needed by providing 24-hour notice before the time of the special meeting. The meeting schedule will be posted to the CEA website.
FISCAL IMPACT:
There is no fiscal impact associated with this item.
Submitted for Board consideration:
___________________________________
Gregory Wade
Chief Executive Officer
ATTACHMENTS:
A. Resolution No. 2025-039 Changing the Place/Venue for Clean Energy Alliance Board Meetings for September 2025 through June 2026
B. Resolution No. 2025-023 – Setting time and place for CEA Board Meetings, 6-26-2025 C. Resolution No. 2025-003 – Approving the 2025 CAC Meeting Schedule and Workplan, 1-30-2025
CLEAN ENERGY ALLIANCE
RESOLUTION NO. 2025-039
A RESOLUTION OF THE BOARD OF DIRECTORS OF CLEAN ENERGY ALLIANCE
CHANGING THE PLACE/VENUE FOR CLEAN ENERGY ALLIANCE BOARD AND
COMMUNITY ADVISORY COMMITTEE REGULAR MEETINGS FOR SEPTEMBER 2025 – JUNE 2026
WHEREAS, Clean Energy Alliance (CEA) is a joint powers agency, formed in November 2019, whose members include the cities of Carlsbad, Del Mar, Escondido, Oceanside, San Marcos, Solana Beach and Vista; and
WHEREAS, the CEA Board of Directors (Board) has determined that it will establish its regular meetings annually by resolution; and
WHEREAS, the Ralph M. Brown Act (Government Code §54954) provides for the establishment of an annual regular meeting calendar procedure; and WHEREAS, special meetings of the Board will be called as necessary and following the requirements of the Brown Act (Government Code §54954); and WHEREAS, on January 30, 2025, the CEA Board adopted Resolution No. 2025-003 setting the meeting location, time and dates for the Community Advisory Committee (CAC); and WHEREAS, on June 26, 2025, the CEA Board adopted Resolution No. 2025-023 setting the dates, times, and location for regular Board meetings for fiscal year 2025/26; and WHEREAS, the CEA Board now desires to change the location of CEA Board and CAC regular meetings beginning September 2025 through June 2026.
NOW, THEREFORE, BE IT RESOLVED, by the Board of Directors of the Clean Energy Alliance, as follows:
Section 1. The Board of Directors of Clean Energy Alliance hereby establishes the following new location for regular CEA Board meetings during fiscal year 2025/26 and for the CAC meetings for calendar year 2025:
Location: Leucadia Wastewater District Board Room
1960 La Costa Avenue
Carlsbad, CA 92009
Attachment A
CEA Resolution No. 2025-039
Location Change for CEA
Board & CAC Meetings
Section 2. That the changed fiscal year 2025-26 meeting calendar will be posted to the Clean Energy Alliance website.
The foregoing Resolution was passed and adopted this 31st day of July, 2025, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
________________________________________
Katie Melendez, Board Chair
ATTEST:
_______________________________
Ana Marie Alarcon, Clerk to the Board
CLEAN ENERGY ALLIANCE
RESOLUTION NO. 2025-023
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CLEAN ENERGY ALLIANCE
SETTING TIME AND PLACE FOR CLEAN ENERGY ALLIANCE BOARD MEETINGS JULY 2025 – JUNE 2026
WHEREAS, the Clean Energy Alliance (CEA) is a joint powers agency, formed in November 2019, whose members include the cities of Carlsbad, Del Mar, Escondido, Oceanside, San Marcos, Solana Beach and Vista; and
WHEREAS, the CEA Board of Directors has determined it will establish its regular meetings annually by resolution; and
WHEREAS, the Ralph M. Brown Act (Government Code §54954) provides for the establishment of an annual regular meeting calendar procedure; and WHEREAS, special meetings of the Board of Directors will be called as necessary and following the requirements of the Brown Act (Government Code §54954).
NOW, THEREFORE, BE IT RESOLVED, by the Board of Directors of the Clean Energy Alliance, as follows:
Section 1. The Board of Directors of the Clean Energy Alliance hereby establishes the following dates, times, and location, for regular Board meetings during fiscal year 2025/26:
Location: City of Oceanside, City Council Chambers
300 North Coast Hwy
Oceanside, CA 92054
July 31, 2025 2 p.m.
August 28, 2025 2 p.m.
September 25, 2025 2 p.m.
October 30, 2025 2 p.m.
November 20, 2025 2 p.m.
January 29, 2026 2 p.m.
February 26, 2026 2 p.m.
March 26, 2026 2 p.m.
April 30, 2026 2 p.m.
May 28, 2026 2 p.m.
June 25, 2026 2 p.m.
Section 2. That the fiscal year 2025-26 meeting calendar will be posted to the Clean Energy Alliance website.
Docusign Envelope ID: 04B111C5-0ABE-4439-8C51-FF7AE58D8A7D Attachment B
CEA Resolution No. 2025-023
Time and Place for CEA
Board Meetings 2025-2026
The foregoing Resolution was passed and adopted this 26th day of June, 2025, by the following vote:
AYES: Melendez, Garcia, Blackburn, Figueroa, Nuñez, Becker, Spelich.
NOES: None.
ABSENT: None.
ABSTAIN: None.
APPROVED:
________________________________________
Katie Melendez, Board Chair
ATTEST:
_______________________________
Ana Marie Alarcon, Clerk to the Board
Docusign Envelope ID: 04B111C5-0ABE-4439-8C51-FF7AE58D8A7D
CLEAN ENERGY ALLIANCE
RESOLUTION NO. 2025-003
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CLEAN ENERGY ALLIANCE APPROVING THE 2025 COMMUNITY ADVISORY COMMITTEE MEETING
SCHEDULE AND WORKPLAN
WHEREAS, the Clean Energy Alliance (CEA) is a joint powers agency, formed in November 2019, whose members include the cities of Carlsbad, Del Mar, Escondido, Oceanside, San Marcos, Solana Beach and Vista; and
WHEREAS, the CEA Community Advisory Committee Policy states that the CEA Board shall determine the annual CAC meeting schedule and workplan; and WHEREAS, special meetings of the Community Advisory Committee (CAC) will be called as necessary and following the requirements of the Brown Act (Government Code §54954).
NOW, THEREFORE, BE IT RESOLVED, by the Board of Directors of the Clean Energy Alliance, as follows:
Section 1. The Board of Directors of the Clean Energy Alliance hereby establishes the following dates, times, and location, for regular CAC meetings during calendar year 2025:
Location: City of Oceanside, City Council Chambers
300 North Coast Hwy
Oceanside, CA 92054
February 13, 2025 1 p.m.
April 10, 2025 1 p.m.
June 12, 2025 1 p.m.
August 14, 2025 1 p.m.
October 9, 2025 1 p.m.
Section 2. That the calendar year 2025 meeting calendar will be posted to the Clean Energy Alliance website.
Section 3. The Board of Directors of the Clean Energy Alliance hereby establishes the following Workplan CAC meetings during calendar year 2025:
Docusign Envelope ID: 671C8C09-616A-4364-B403-1CB703D91245 Attachment C
CEA Resolution No. 2025-003
2025 CAC Meetings and Workplan
MEETING DATE WORK PLAN/TOPICS
February 13, 2025
1 pm – 3 pm
Oceanside Council
Chambers
Board Organization Update
CAC Orientation/Brown Act Review
Review Strategic Plan/Organizational Update
Ad-Hoc CAC Subcommittees Discussion
April 10, 2025
1 pm – 3 pm
Oceanside Council
Chambers
CEA Budget Update
Energy Program Plan Input
Rate Premiums
June 12, 2025
1 pm – 3 pm
Oceanside Council
Chambers
Review CEA Draft FY 2025/26 Budget
Programs Update
August 14, 2025
1 pm – 3 pm
Oceanside Council
Chambers
Update on outside organization collaboration
Social Media Marketing Feedback
October 9, 2025
1 pm – 3 pm
Oceanside Council
Chambers
2025 Achievements and 2026 Workplan Suggestions
Climate Action Plan Updates
The foregoing Resolution was passed and adopted this 30th day of January, 2025, by the following vote:
AYES: Melendez, Garcia, Becker, Bhat-Patel, Nuñez, Spelich.
NOES: None.
ABSENT: Figueroa.
ABSTAIN: None.
APPROVED:
______________________________________
Katie Melendez, Board Chair
ATTEST:
_____________________________
Kaylin McCauley, Clerk to the Board
Docusign Envelope ID: 671C8C09-616A-4364-B403-1CB703D91245