Clean Power Alliance Board of Directors
February 1, 2024

Board of Directors of the
Clean Power Alliance of Southern California
Regular Meeting
Thursday, February 1, 2024
2:00 p.m.

Visit CPA’s YouTube Channel to view a Live Stream of the Meeting www.youtube.com/@CPApublicmeetings
*There may be a streaming delay of up to 90 seconds. This is a view-only live stream.

Clean Power Alliance
Diana Mahmud Board Room
801 S. Grand Ave., Suite 400
Los Angeles, CA 90017
Members of the public may also participate in this meeting at the following locations:

Calabasas City Hall
Council Conference Room
100 Civic Center Way
Calabasas, CA 91301
Ventura County Government Center
Channel Islands Conference Room, 4th Floor
Hall of Administration
800 South Victoria Avenue
Ventura, CA 93009
Whittier City Hall
Admin Conference Room
13230 Penn Street
Whittier, CA 90602
South Bay Cities Council of Governments
Conference Room
2355 Crenshaw Blvd., Suite 125
Torrance, CA 90501
Danforth Plant and Science Center
975 N Warson Rd.

Olivette, MO 63132
PUBLIC COMMENT: Members of the public may submit their comments by one of the following options:
• Email Public Comment: Members of the public are encouraged to submit written comments on any agenda item to [email protected] up to four hours before the meeting. Written public comments will be announced at the meeting and become part of the meeting record. Public comments received in writing will not be read aloud at the meeting. • Provide Public Comment During the Meeting: The General Public Comment item is reserved for persons wishing to address the Board on any Clean Power Alliance-related matters not on today’s agenda. Public comments on matters on today’s Consent Agenda and Regular Agenda shall be heard at the time the matter is called. Comments on items on the Consent Agenda are consolidated into one public comment period. Members of the public who wish to address the Board at CPA’s Office are requested to complete a comment card and provide it to staff. If you are attending from a remote location, please identify yourself to a CPA representative when your item is called. Each speaker is limited to two (2) minutes (in whole-minute increments) per agenda item with a cumulative total of five 5 minutes to be allocated between the General Public Comment, the entire Agenda Page 1
Consent Agenda, or individual items in the Regular Agenda. Please refer to Policy No. 8 – Public Comment for additional information.

NAVIGATING OUR AGENDA PACKETS: The meeting agenda packets are bookmarked PDFs, which display a list of agenda items to the left of the page and allow you to click to view specific items within the packet. If viewing in your browser, click the "document outline" button in the upper left corner of the screen.

If the PDF is downloaded, the bookmark panel (ribbon icon) appears on the left side of the screen.

ACCESSIBILITY: Meetings are accessible to people with disabilities. Individuals who need special assistance or a disability-related modification or accommodation to participate in this meeting, or who have a disability and wish to request an alternative format for the meeting materials, should contact the Clerk of the Board at least two (2) working days before the meeting at [email protected] or (213) 713- 5995. Notification in advance of the meeting, while not required, will enable us to make reasonable arrangements to ensure accessibility to this meeting and the materials related to it.

CALL TO ORDER AND PLEDGE OF ALLEGIANCE

ROLL CALL

GENERAL PUBLIC COMMENT

CONSENT AGENDA

1. Approve Minutes from the December 7, 2023 Board of Directors Meeting

2. Authorize the Chief Executive Officer to Execute a new Professional Services Agreement with Energy Exemplar LLC for Production Cost Modeling Software and Related Services for an Initial One-Year Term and Up to a Three-Year Term for a total Not-To-Exceed Contract Value of $808,007

3. Approve and Authorize the Chief Executive Officer to Execute an Amendment to the Agreement with AutoGrid, Updating the Services for the Power Response Program as well as the Budget for the 3 Remaining One-Year Renewal Terms with a total Not-to-Exceed Amount of $3,266,935 for those Remaining Three Years

4. (A) Approve Amendment to CPA’s Investment Policy to Permit Investment in the California Asset Management Program (CAMP); and, (B) Authorize the Chief Executive Officer to Execute the CAMP Investor Agreement and Any Related Documents Required to Invest in CAMP as an Investor

5. Receive and File Bill Positions February 2024 Monthly Report

6. Receive and File Monthly Community Advisory Committee Report Agenda Page 2

REGULAR AGENDA
Action Items

7. Approve the Power Ready Power Purchase Agreement General Conditions and the Eleven Power Purchase Agreement Special Conditions (PPA) with Coast Energy to Provide Energy-Resilient Systems at Eleven CPA Member Agency Sites Under the Power Ready Program and Authorize the Chief Executive Officer to Execute the Agreements

8. Approve and authorize the Chief Executive Officer to execute the following long-term Energy Storage Agreements:

A. 20-Year Energy Storage Agreement with ESCA-PLD-CPA1, LLC (Prologis Energy) for the 300 MW Drifter project
B. 15-Year Energy Storage Agreement with Ranger Energy Storage, LLC (esVolta) for the 60 MW Ranger project
Information Item

9. Receive Quarterly Communications Report and 2024 Look Ahead Presentation Election Item

10. Open Nomination Period for Board Chair for Q2 2024 and July 2024 – June 2026 Terms

COMMITTEE CHAIR UPDATES
Director Deborah Klein Lopez, Chair, Legislative & Regulatory Committee Director Susan Santangelo, Chair, Finance Committee
Director Robert Parkhurst, Chair, Energy Planning & Resources Committee

MANAGEMENT REPORT

BOARD MEMBER COMMENTS

REPORT FROM THE CHAIR
ADJOURN – NEXT REGULAR MEETING ON MARCH 7, 2024
Public Records: Public records that relate to any item on the open session agenda for a regular Board Meeting are available for public inspection. Those records that are distributed less than 72 hours prior to the meeting are available for public inspection at the same time they are distributed to all, or a majority of, the members of the Board. Public records are available for inspection at CPA’s Office at 801 S. Grand Ave., Suite 400, Los Angeles, CA 90017, or online at www.cleanpoweralliance.org/agendas.

Agenda Page 3
Commonly Used Acronyms
BESS Battery Energy Storage System
CAC Community Advisory Committee
CAISO California Independent System Operator
CALCCA California Community Choice Association
CalEVIP California Electric Vehicle Incentive Program
CARB California Air Resources Board
CARE California Alternate Rates for Energy (Low Income Discount Rate) CCA Community Choice Aggregation
CEC California Energy Commission
CPUC California Public Utilities Commission
DA Direct Access (Private Retail Energy Supplier)
DAC Disadvantaged Community (As Defined by Calenviroscreen 3.0) DER Distributed Energy Resources
DR Demand Response
ERMP Energy Risk Management Policy
ERRA Energy Resource Recovery Account (SCE Generation Rate Setting)
ESA Energy Storage Agreement
EVSE Electric Vehicle Supply Equipment (EV Charger)
FERA Family Electric Rate Assistance (Low Income Discount Rate) GHG Greenhouse Gas
IOU Investor Owned Utility
IRP Integrated Resource Plan
JPA Joint Powers Authority
Agenda Page 4
Commonly Used Acronyms
Kwh Kilowatt-Hour (A Measure of Energy Used in A One-Hour Period) Kw Kilowatt = 1,000 Watts (Watt = A Measure of Instantaneous Power) LSE Load Serving Entity
MB Medical Baseline (Discount Rate for Medical Equipment Needs) MW Megawatt = 1,000 Kilowatts
Mwh Megawatt-Hour = 1,000 Kilowatt-Hours
NEM Net Energy Metering (Usually for Customers with Solar) OAT Other Applicable Tariffs
PCIA Power Charge Indifference Adjustment (Can Be Called “Exit Fee”) PCC1 Renewable Energy Generated Inside California
PCC2 Renewable Energy Generated Outside California
PCC3 A REC from A Renewable Resource, Delivered Without Energy PCL Power Content Label
POU Publicly Owned or Municipal Utility
PPA Power Purchase Agreement
PSPS Public Safety Power Shutoff
PV Photovoltaic (Solar) Panels
RA Resource Adequacy
REC Renewable Energy Credit
RPS Renewables Portfolio Standard
T&D Transmission and Distribution
TOU Time Of Use (Used to Refer to Rates that Differ by Time Of Day) WECC Western Electricity Coordinating Council
Agenda Page 5
Staff Report – Agenda Item 1
To: Board of Directors
Subject: Approve Minutes from the December 7, 2023 Board of Directors Meeting Date: February 1, 2024

RECOMMENDATION
Approve.

ATTACHMENT

1. Minutes

Agenda Page 6
Board of Directors Item 1

MINUTES
Board of Directors of the
Clean Power Alliance of Southern California
Regular Meeting
Thursday, December 7, 2023, 2:00 p.m.

Meeting videos are available on CPA's YouTube Channel.
http://www.youtube.com/@CPApublicmeetings
Board members participated from the following locations:

Calabasas City Hall
Council Conference Room
100 Civic Center Way
Calabasas, CA 91301
Clean Power Alliance
Diana Mahmud Board Room
801 S. Grand Ave., Suite 400
Los Angeles, CA 90017
Whittier City Hall
Admin Conference Room
13230 Penn Street
Whittier, CA 90602
Ventura County Government Center
Channel Islands Conference Room, 4th Floor
Hall of Administration
800 South Victoria Avenue
Venture, CA 93009
South Bay Cities Council of Governments
Conference Room
2355 Crenshaw Blvd., Suite 125
Torrance, CA 90501
Embassy Suites
Business Center
401 E. Martin Luther King Jr. Blvd.

Charlotte, NC 28202

CALL TO ORDER & ROLL CALL
Chair Julian Gold called the meeting to order at 2:00 p.m. and Gabriela Monzon, Clerk of the Board, conducted roll call.

PLEDGE OF ALLEGIANCE
Matthew Langer, Chief Operating Officer, led the pledge of allegiance.

Roll Call
1 Agoura Hills Deborah Klein Lopez Director Remote
2 Alhambra Jeff Maloney Director Present
3 Arcadia Michael Cao Director Present
4 Beverly Hills Julian Gold Chair Present
5 Calabasas Ed Albrecht Alternate Remote
6 Camarillo Susan Santangelo Director Remote
7 Carson Cedric Hicks Director Remote
8 Claremont Corey Calaycay Director Present
9 Culver City Joe Susca Alternate Remote
Agenda Page 7
10 Downey Absent
11 Hawaiian Gardens Absent
12 Hawthorne Alex Monteiro Director Present
13 Hermosa Beach Justin Massey
Doug Kraus
Director
Alternate Present
14 Los Angeles
County Lindsey Horvath Vice Chair Present
15 Malibu Marianne Riggins Director Remote
16 Manhattan Beach David Lesser Alternate Remote
17 Monrovia Absent
18 Moorpark Renee Delgado Director Remote
19 Ojai Michelle Ellison Alternate Remote
20 Oxnard Absent
21 Paramount Absent
22 Redondo Beach Absent
23 Rolling Hills
Estates Debby Stegura Director Remote
24 Santa Monica Caroline Torosis Alternate Present
25 Santa Paula Leslie Cornejo Alternate Remote
26 Sierra Madre Robert Parkhurst Director Remote
27 Simi Valley Absent
28 South Pasadena Jon Primuth Director Present
29 Temple City Absent
30 Thousand Oaks David Newman Director Remote
31 City of Ventura Liz Campos Director Remote
32 Ventura County Vianey Lopez Vice Chair Present
33 West Hollywood Absent
34 Westlake Village Absent
35 Whittier Leon Vasquez Alternate Remote
All votes are unanimous unless otherwise stated.

GENERAL PUBLIC COMMENT
There was no public comment.

Board of Directors Item 1
Agenda Page 8

CLOSED SESSION

1. CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION Exposure to litigation pursuant to paragraph (2) of subdivision (d) of Section 54956.9: 1 Nancy Whang, General Counsel, reported that the Board voted to approve a settlement agreement resolving the disagreement between CPA and HDSI with respect to certain aspects of how the operating deviations and year-to-date annual capacity availability should be determined and the monthly capacity payment amounts that CPA owes to HDSI, resulting in a payment to HDSI in the amount of $2,275,423.57. The settlement agreement is conditioned on approval of the amendment to the power purchase agreement, which is agenda Item 3 on the Board agenda.

Vote: The closed session item was approved by a roll call, with one abstention.

CONSENT AGENDA

2. Approve Minutes from the November 2, 2023 Board of Directors Meeting

3. Approve an Amendment to the Long-Term Renewable Power Purchase Agreement with HDSI, LLC for the High Desert Solar + Storage Project and Authorize the Chief Executive Officer to Execute the Amendment

4. Adopt Resolution 23-12-057 Approving Amendments to the Power Share Tariff and Approving the Community Solar Tariff

5. Adopt Resolution 23-12-058 Approving Amendments to the Net Billing Tariff

6. Receive and File FY Q1 Quarterly Financial Report

7. Receive and File CY Q3 Quarterly RMT Report

8. Receive and File CY Q3 Quarterly Communications Report

9. Receive and File 2024 Meeting Schedule

10. Receive and File Monthly Community Advisory Committee Report Motion: Director Horvath, Los Angeles County
Second: Director Calaycay, Claremont
Vote: The consent agenda was approved by a roll call vote

PUBLIC HEARING

11. Adopt Resolution No. 23-12-059-A to Approve Addendum No. 5 to the CPA Implementation Plan, Adding the Cities of La Cañada Flintridge, Lynwood, and Port Hueneme, Provided that the City of Lynwood, has Passed an Ordinance to join Clean Power Alliance by December 5, 2023; Authorize Staff to Submit the Addendum to the California Public Utilities Commission on or before December 31, 2023 Chair Gold announced that the City of Lynwood voted to join the Clean Power Alliance, and therefore the Board would vote on Item 11 and remove Item 12 from the agenda.

Mr. Bardacke reviewed the expansion process; noted that in the case of these three cities, the Councils had a short time to go through two readings of the ordinance. One major difference from the three cities that were added last year is that these three new cities will have a start date of October of 2025, due to the financial and Resource Adequacy (RA) impacts of the summer; CPA will not have RA obligations for the new cities in the summer of 2025. Mr. Bardacke also thanked Karen Schmidt, Director of Rates and Strategy, Chair Gold, Vice Chair Lopez, Director Torosis, the Sierra Club, and the Community Environment Coalition of Ventura County for their work bringing on new members.

Motion: Director Calaycay, Claremont
Board of Directors Item 1
Agenda Page 9
Second: Vice Chair Lopez, Ventura County
Vote: Item 11 was approved by a roll call vote

12. Adopt Resolution No. 23-12-059-B to Approve Addendum No. 5 to the CPA Implementation Plan, Adding the Cities of La Cañada Flintridge and Port Hueneme; 2023 Authorize Staff to Submit the Addendum to the California Public Utilities Commission on or before December 31, 2023
Item 12 was removed from the agenda.

REGULAR AGENDA

13. Approve the 2024 Legislative & Regulatory Policy Platform as Recommended by the Legislative & Regulatory Committee
Gina Goodhill, Senior Director of Government Affairs, presented the 2024 Legislative and Regulatory Policy Platform. Ms. Goodhill explained the proposed changes to the platform and described the regulatory landscape. The new platform includes expanded language around local control and autonomy in governance, in particular the need to continue allowing non-elected alternate Board members to participate in closed meetings when the primary Board member is not available. Regarding regionalization, California regulators are currently exploring ways in which the state's grid operator, the California Independent System Operator (CAISO), could expand its operations to include other states in the West, with the goals of reducing costs, increasing reliability, and meeting decarbonization goals for California. The proposed platform calls for a support position for this regional market if key conditions are met.

Energy leaders from various states have created the West-Wide Governance Pathways Initiative, which is developing a regionalization plan that includes governance options and possibly an independent nonprofit entity and/or new legislation. The states involved are Arizona, California, New Mexico, Washington, Oregon, as well as utilities, load serving entities, power producers, and stakeholders representing labor, environmental groups, and ratepayers. The Legislative and Regulatory Committee and staff recommend that the Board approve a regionalization principle as part of the 2024 policy platform so that CPA staff can have direction when participating in these discussions.

Legislative and Regulatory Committee Chair Klein Lopez noted that the committee fine-tuned the verbiage of the regionalization principles and encouraged the Board’s approval, allowing CPA the flexibility it needs to operate in a fast-changing legislative landscape, which will ultimately benefit CPA’s customers.

In response to Director Maloney’s question about the Governor’s input, Ms. Goodhill noted the Governor has not directly weighed in, but the head of the CPUC is appointed by the Governor, so indirectly, there is support for this effort. Director Massey asked about the failed regionalization bill; stakeholders involved in SPP; and if regionalization would advance clean power generation across the West. Ms. Goodhill noted that in the past, regionalization was a legislative effort and a highly political issue, which made it difficult to move forward. Mr. Bardacke added that efforts failed over labor issues; now that labor is involved in the stakeholder process, there may be less pushback.

Regarding SPP, states would not be able to participate in California’s energy market if they joined SPP. Mr. Bardacke noted that the platform principles reflect an effort to advance clean power generation throughout the region, to not only import energy from around the West, but influence policy in the region.

Board of Directors Item 1
Agenda Page 10
Vice Chair Horvath expressed support for regionalization efforts in order to positively influence the region’s clean energy goals, while also focusing on maintaining affordability, reliability, and creating local jobs. In response to Director Massey’s question about CPA’s position on income graduated fixed charges, Mr. Bardacke explained that implementation is still in its early stages; CPA may take a legislative position in the future and would come back to the Board for that discussion if warranted. Director Parkhurst asked how deregulation may impact regionalization efforts. Matt Langer, Chief Operating Officer, explained that regionalization in California will come with guardrails, regulation, and assurances that California will set its own clean energy and reliability targets, while integrating into a regional market and trade with power providers outside of the CAISO. Transactional barriers will be reduced by expanding into the region and the platform principles will provide a guide for CPA to engage in those efforts.

Motion: Director Monteiro, Hawthorne
Second: Director Maloney, Alhambra
Vote: Item 13 was approved by a roll call vote

COMMITTEE CHAIR UPDATES
Director Susan Santangelo, Chair, Finance Committee Director reported that the committee discussed CPA’s banking agreement with JP Morgan; the Committee will review other banking opportunities and report back.

MANAGEMENT REPORT
Mr. Bardacke reported that the National Renewable Energy Laboratory (NREL) of the Department of Energy ranked CPA number one in both green power sales and customers in its national rankings, which for the first time included CCAs. CPA will be highlighting its NREL ranking in its marketing. Mr. Bardacke also reported that CPA provided almost $300,000 this year to community local nonprofits in partnership with billing manager Calpine Energy Solutions.

Responding to Director Massey’s question, Mr. Bardacke clarified that marketing about the NREL standing will be targeted to CPA customers in the form of education about CPA’s efforts.

It can also prove advantageous in conversations at the state and federal levels.

BOARD MEMBER COMMENTS
Director Monteiro congratulated Vice Chair Horvath for being appointed as Chair of the Los Angeles County Board of Supervisors.

REPORT FROM THE CHAIR
Chair Gold wished everyone happy holidays and thanked the Board and staff for their dedication and contributions to the organization’s success.

ADJOURN
Chair Gold adjourned the meeting at 3:42 p.m.

Board of Directors Item 1
Agenda Page 11
Staff Report – Agenda Item 2
To: Board of Directors
From: Lindsay Descagnia, Vice President, Power Supply
Approved By: Ted Bardacke, Chief Executive Officer
Subject: Professional Services Agreement with Energy Exemplar, LLC for Production Cost Modeling Software and Related Services
Date: February 1, 2024

RECOMMENDATION
Authorize the Chief Executive Officer to execute a new Professional Services Agreement with Energy Exemplar LLC (EE) for Production Cost Modeling Software and Related Services for an initial one-year term and up to a three-year term for a total Not-To-Exceed (NTE) contract value of $808,007.

BACKGROUND
Production cost modeling software is commonly used for energy planning functions by simulating electric grid operations and producing a distribution of cost and reliability outcomes and their associated probabilities. This software tool can be used for asset valuation, short-term operations and planning, procurement portfolio risk and sensitivity analysis, price forecasting, long-term integrated resource planning (IRP), and policy evaluation.

The software is primarily used by CPA’s Resource Planner for IRP functions and Market Operations Group for the short-term operations and planning of CPA’s energy storage resources.

Agenda Page 12
Board of Directors Item 2
Evaluation
On February 5, 2024, CPA’s current contract with EE expires. To prepare, CPA conducted an Informal Bid to re-evaluate this Specialized Service and determined that PLEXOS by EE is still the provider offering the best value to CPA.

PLEXOS offers a user-friendly interface and extensive features which provide a comprehensive platform for integrated resource planning, short and long-term planning, optimizing complex technologies, and analysis of CPA’s unique generation portfolio.

PLEXOS is also widely adopted by numerous California entities, including all three Investor-Owned Utilities, the California Independent System Operator and other major players in the California energy markets including the California Public Utilities Commission, the California Energy Commission, Northern California Northern California Power Agency, Sacramento Municipal Utility District, and Los Angeles Department of Water and Power.

Continuing with PLEXOS would ensure that CPA’s needs are met. There are significant costs associated with leaving the PLEXOS platform, including data compatibility issues, software integration issues, workflow disruptions, implementation costs, and productivity loss during the training and transition period. After reviewing the benefits of PLEXOS and weighing the costs of adopting other available solutions, PLEXOS by EE is still offers the best value to CPA.

CONTRACT OVERVIEW
Scope of Services
The Scope of Services for the contract includes the following tasks:
• Task 1
o Contractor will provide PLEXOS user credentials, license keys, cloud services, all requisite product versions, and the WECC nodal database for the number of users identified in the Order Form of Exhibit D o Customer support services including 24-hour, 5 day a week technical support accessible through online portal, email, and phone

Agenda Page 13
Board of Directors Item 2
• Task 2 – As needed consulting services to support CPA procurement planning modeling activities
Term and Pricing
The term of the agreement will commence upon February 6, 2024 and continue for an initial one-year term. CPA may renew the agreement at its option for successive one-year terms for a maximum of two renewal years after the initial term.

Fees for Task 1 below:

For Task 2 services, CPA will pay for consulting services based on hourly rates for an annual NTE of $25,000.

FISCAL IMPACT
The cost of the contract for the initial year is incorporated into the FY 2023-24 budget, which includes both ongoing licensing costs and consulting services.

ATTACHMENT
1) Professional Services Agreement - Energy Exemplar - Production Cost Modeling Software and Related Services

Agenda Page 14
1 Clean Power Alliance of Southern California
This Professional Services Agreement (this “Agreement”), dated and effective as of February 6, 2024 (the “Effective Date”), is made by and between:

CLEAN POWER ALLIANCE OF SOUTHERN CALIFORNIA (“CPA”), and ENERGY EXEMPLAR LLC (“Contractor”).

CPA and Contractor are sometimes collectively referred to herein as the “Parties” and each individually as a “Party.” In consideration of the terms of this Agreement, and for other good and valuable consideration, the Parties make the following acknowledgments and agreements:

RECITALS
WHEREAS, CPA may contract with a provider for a production cost modeling software solution and to provide as‐needed services such as training and customer service support;
WHEREAS, CPA conducted an Informal Bid and CPA selected Contractor because Contractor has the expertise and experience to provide the Specialized Services to CPA and offered CPA the Best Value;
WHEREAS, Contractor desires to provide these Specialized Services to CPA; WHEREAS, the purpose of this Agreement is to set forth the terms and conditions upon which Contractor shall provide services to CPA; NOW, THEREFORE, it is agreed based on the consideration set forth below by the Parties to this Agreement as follows:

AGREEMENT

1. Definitions
a. The definition of “Confidential Information” is set forth in paragraph 10.b. of this Agreement.
b. “CPA Data” shall mean all data gathered or created by Contractor in the performance of the Services pursuant to this Agreement, including any customer or customer-related data; for the avoidance of doubt, CPA Data does not include Contractor’s datasets delivered to CPA.
c. “CPA Information” shall mean all confidential, proprietary, or sensitive information provided by CPA to Contractor in connection with this Agreement. d. “CPA Materials” shall mean all finished or unfinished content, writing and design of materials but not limited to messaging, design, personalization, or other materials, reports, plans, studies, documents and other writings prepared

Agenda Page 15
2 by Contractor, its officers, employees and agents for CPA for the performance of, the purpose of, or in the course of implementing this Agreement. e. “CPA Product” includes collectively CPA Data, CPA Information, and CPA Materials.
f. “Services” shall mean the scope of work Contractor provides to CPA as specified in Exhibit A.

2. Exhibits and Attachments
The following exhibits and attachments are attached to this Agreement and incorporated into this Agreement by this reference:

Exhibit A – Scope of Work
Exhibit B – Reserved
Exhibit C – Compensation
Exhibit D – Contractor’s End User License Agreement
Should a conflict arise between language in the body of this Agreement and any exhibit or attachment to this Agreement, the language in the body of this Agreement controls, followed by Exhibit A, B, C, and D in that order. Notwithstanding the foregoing, solely with respect to Contractor’s EE Software and Dataset Services (each as defined in Exhibit D), and any and all related intellectual property rights, Exhibit D shall control.

3. Services to be Performed by Contractor
In consideration of the payments set forth in this Agreement and in Exhibit C, Contractor shall perform services for CPA in accordance with the terms, conditions, and specifications set forth in this Agreement and in Exhibit A (“Services”).

4. Compensation
CPA agrees to compensate Contractor as specified in Exhibit C:
a. In consideration of the Services provided by Contractor in accordance with all terms, conditions and specifications set forth in this Agreement and Exhibit A, CPA shall make payment to Contractor in the manner specified in Exhibit C. b. Unless otherwise indicated in Exhibit C, Contractor shall invoice CPA monthly to [email protected] for all compensation related to Services performed during the previous month. Payments shall be due within fifteen (15) calendar days after the date the invoice is submitted to CPA at the specified email address. All payments must be made in U.S. dollars.

5. Term
Subject to compliance with all terms and conditions of this Agreement, the term of this Agreement shall be one (1) year from the Effective Date (“Initial Term”). At the end of the Initial Term, the Parties may renew this Agreement for two successive one (1) year terms for a maximum of two additional years (each, a “Renewal Term”), unless either Party

Agenda Page 16
3 provides ninety (90) days prior written notice of its intent not to renew the term of the Agreement (“Renewal Notice”).

6. Termination
a. Termination for Default.
(i) Either Party may terminate this Agreement if the other Party violates any applicable ordinance, regulation, or law or defaults in the observance or performance of any material covenants or agreements in this Agreement and such default continues uncured for thirty (30) business days after written notice is given to such Party failing to perform its covenants or agreements under this Agreement, provided, however, that for such events which require more than thirty (30) business days to cure, then the defaulting Party shall have such additional time as may reasonably be required to effect such cure provided that the defaulting Party diligently and continuously pursues such cure.
(ii) If Contractor fails to provide in any manner the Services required under this Agreement, otherwise fails to comply with the terms of this Agreement, or violates any ordinance, regulation or law which applies to its performance herein and such default continues uncured for thirty (30) calendar days after written notice is given to Contractor, CPA may terminate this Agreement by giving five (5) business days' written notice. If Contractor requires more than thirty (30) calendar days to cure, then CPA may, at its sole discretion, authorize additional time as may reasonably be required to effect such cure provided that Contractor diligently and continuously pursues such cure. b. Effect of Termination. Upon the effective date of expiration or termination of this Agreement: (i) Contractor may immediately cease providing Services in its entirety or if a termination to a part of the Agreement, cease providing the Services that have been terminated; (ii) any and all payment obligations of CPA under this Agreement will become due immediately except any equitable adjustment pursuant to Paragraph 5(a); (iii) promptly transfer title and deliver to CPA all CPA Product or any work in progress pursuant to this Agreement; and (iv) each Party will promptly either return or destroy (as directed by the other Party) all Confidential Information of the other Party in its possession as well as any other materials or information of the other Party in its possession.

Upon such expiration or termination, and upon request of CPA, Contractor shall reasonably cooperate with CPA to ensure a prompt and efficient transfer of all data, documents and other materials to CPA in a manner such as to minimize the impact of expiration or termination on CPA’s customers.

7. Contract Materials
CPA owns all right, title and interest in and to all CPA Materials and CPA Data. Upon the expiration of this Agreement, or in the event of termination, CPA Materials and all CPA Information, in whatever form and in any state of completion, shall remain the property of CPA and shall be promptly returned to CPA. Upon termination, Contractor may make and retain a copy of such Contract Materials if required by law or pursuant

Agenda Page 17
4 to the Contractor’s reasonable document retention or destruction policies. For the avoidance of doubt, Contractor owns all right, title and interest in and to all intellectual property rights subsisting in, relating to or arising out of the Software or Services as defined in Exhibit D. Upon the expiration of this Agreement, or in the event of termination, the Software and Services, in whatever form and in any state of completion, shall remain the property of Contractor and shall be promptly returned to Contractor in a mutually agreeable format.

8. Payments of Permits/Licenses
Contractor bears responsibility to obtain any license, permit, or approval required for it to provide the Services to be performed under this Agreement at Contractor’s own expense prior to commencement of the Services.

9. No Recourse against Constituent Members
CPA 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 the Joint Powers Agreement and is a public entity separate from its constituent members. CPA shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Contractor shall have no rights and shall not make any claims, take any actions or assert any remedies against any of CPA’s constituent members in connection with this Agreement.

10. Confidential Information
a. Duty to Maintain Confidentiality. Each of the parties hereto agree to hold all Confidential Information of the other party in confidence, and will not divulge, disclose, or directly or indirectly use, copy, digest, or summarize, any Confidential Information, except to the extent necessary to carry out its responsibilities pursuant to this Agreement.
b. Definition of “Confidential Information”. The following constitutes “Confidential Information,” in whatever form: (a) information that the Parties exchange with each other in the course and scope of this Agreement; (b) information that either Contractor stamps or otherwise identifies as “confidential” or “proprietary” before disclosing it to CPA; (c) CPA Product; or (d) information concerning the business, products, services, systems, procedures and records (in whatever form, including in electronic format) of that Party and its affiliates, and their relationships with their customers and suppliers, including without limitation all information relating to the Software and the Services (both as defined in Exhibit D) along with any and all related intellectual property rights.

Confidential Information shall not include: (l) information that is generally available to the public or in the public domain at the time of disclosure; (2) information that becomes publicly known other than through any breach of this Agreement by the recipient or its Representatives; (3) information which is subsequently lawfully and in good faith obtained by the recipient or its Representatives from a third party, as shown by documentation sufficient to establish the third party as the source of the Confidential Information; provided that the disclosure of such information by such third party is not known by the

Agenda Page 18
5 recipient or its Representatives to be in breach of a confidentiality agreement or other similar obligation of confidentiality; (4) information that the recipient or its Representatives develop independently without use of or reference to Confidential Information provided by the other party; or (5) information that is approved for release in writing by the disclosing party. c. California Public Records Act. The Parties acknowledge and agree that the Agreement including but not limited to any communication or information exchanged between the Parties, any deliverable, or work product are subject to the requirements of the California Public Records Act (Government Code Section 6250 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. d. Third Party Request for Confidential Information. Upon request or demand of any third person or entity not a Party hereto pursuant to the California Public Records Act for production, inspection and/or copying of Confidential Information (“Requested Confidential Information”), CPA will as soon as practical (but in any case prior to the release of any information) notify Contractor in writing via email that such request has been made. CPA will be solely responsible for taking at its sole expense whatever legal steps are necessary to prevent release to the third party of the Confidential Information designated by Contractor. If Contractor takes no such action after receiving the foregoing notice from CPA, CPA 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 Contractor does take or attempt to take such action, Contractor agrees to indemnify and hold harmless CPA, its officers, directors, employees and agents (“CPA Indemnified Parties”), from any claims, liability, award of attorneys’ fees, or damages, and to defend any action, claim or lawsuit brought against any of CPA Indemnified Parties for Contractor’s attempt to prevent disclosure or CPA’s refusal to disclose any Confidential Information.

11. Insurance
All required insurance coverages shall be substantiated with a certificate of insurance and must be signed by the insurer or its representative evidencing such insurance to CPA within 10 business days after the Agreement is fully executed. The general liability policy shall be endorsed naming Clean Power Alliance of Southern California and its employees, officers and agents as additional insureds. The certificate(s) of insurance and required endorsement shall be furnished to CPA prior to commencement of work and maintained throughout the Term and any Renewal Term. Each certificate shall provide for thirty (30) days advance written notice to CPA of any cancellation or reduction in coverage. Said policies shall remain in force through the life of this Agreement and shall be payable on a per occurrence basis only, except those required by paragraph (d) below which may be provided on a claims-made basis consistent with the criteria noted therein.

Nothing herein shall be construed as a limitation on Contractor’s obligation under paragraph 6 of this Agreement to indemnify, defend, and hold CPA harmless from any

Agenda Page 19
6 and all liabilities arising from the Contractor’s negligence, recklessness or willful misconduct in the performance of this Agreement. CPA agrees to timely notify the Contractor of any negligence claim.

Failure to provide and maintain the insurance required by this Agreement will constitute a material breach of the Agreement. In addition to any other available remedies, CPA may suspend payment to the Contractor for any services provided during any time that insurance was not in effect and until such time as the Contractor provides adequate evidence that Contractor has obtained the required coverage. a. General Liability
The Contractor shall maintain a commercial general liability insurance policy in an amount of no less than one million ($1,000,000.00) with a two million dollar ($2,000,000.00) aggregate limit. CPA shall be named as an additional insured on the commercial general liability policy and the Certificate of Insurance shall include an additional endorsement page.
b. Auto Liability
Where the services to be provided under this Agreement involve or require the use of any type of vehicle by Contractor in order to perform said services, Contractor shall also provide comprehensive business or commercial automobile liability coverage including non-owned and hired automobile liability in the amount of one million dollars combined single limit ($1,000,000.00).
c. Workers’ Compensation
The Contractor acknowledges the State of California requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of the Labor Code. If Contractor has employees, a copy of the certificate evidencing such insurance or a copy of the Certificate of Consent to Self-Insure shall be provided to CPA prior to commencement of work. d. Professional Liability Insurance
Coverages required by this paragraph may be provided on a claims-made basis with a “Retroactive Date” either prior to the date of the Agreement or the beginning of the contract work. If the policy is on a claims-made basis, coverage must extend to a minimum of twelve (12) months beyond completion of contract work. If coverage is cancelled or non-renewed, and not replaced with another claims made policy form with a “retroactive date” prior to the Agreement effective date, the Contractor must purchase “extended reporting” coverage for a minimum of twelve (12) months after completion of contract work.

Contractor shall maintain a policy limit of not less than $1,000,000.00 per incident. If the deductible or self-insured retention amount exceeds $100,000.00, CPA may ask for evidence that Contractor has segregated amounts in a special insurance reserve fund or Contractor’s general insurance reserves are adequate to provide the necessary coverage and CPA may conclusively rely thereon.

Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Agreement.

Agenda Page 20
7 Contractor shall monitor the safety of the job site(s) during the project to comply with all applicable federal, state, and local laws, and to follow safe work practices.

12. Indemnification
Contractor agrees to indemnify, defend, and hold harmless CPA, its employees, officers, and agents, from and against, and shall assume full responsibility for payment of all wages, state or federal payroll, social security, income or self-employment taxes, with respect to Contractor’s performance of this Agreement. Contractor further agrees to indemnify, and save harmless CPA from and against any and all third-party claims, liabilities, penalties, forfeitures, suits, costs and expenses incident thereto (including costs of defense, settlement, and reasonable attorney’s fees), which CPA may hereafter incur, become responsible for, or pay out, as a result of any violation of governmental laws, regulations or orders, to the extent caused by Contractor’s grossly negligent acts, willful misconduct, or the grossly negligent acts, willful misconduct of Contractor’s employees, agents, or subcontractors while in the performance of the terms and conditions of the Agreement, except for such loss or damage arising from the sole negligence or willful misconduct of CPA, elected and appointed officers, employees, agents and volunteers.

CPA further agrees to indemnify, and save harmless Contractor from and against any and all third-party claims, liabilities, penalties, forfeitures, suits, costs and expenses incident thereto (including costs of defense, settlement, and reasonable attorney’s fees), which Contractor may hereafter incur, become responsible for, or pay out, as a result of any violation of governmental laws, regulations or orders, to the extent caused by CPA’s grossly negligent acts, willful misconduct, or the grossly negligent acts, willful misconduct of CPA’s employees, agents, or subcontractors while in the performance of the terms and conditions of the Agreement, except for such loss or damage arising from the sole negligence or willful misconduct of Contractor, elected and appointed officers, employees, agents and volunteers.

13. Independent Contractor
a. Contractor acknowledges that Contractor, its officers, employees, or agents will not be deemed to be an employee of CPA for any purpose whatsoever, including, but not limited to: (i) eligibility for inclusion in any retirement or pension plan that may be provided to employees of Contractor; (ii) sick pay; (iii) paid non-working holidays; (iv) paid vacations or personal leave days; (v) participation in any plan or program offering life, accident, or health insurance for employees of Contractor; (vi) participation in any medical reimbursement plan; or (vii) any other fringe benefit plan that may be provided for employees of Contractor.
b. Contractor declares that Contractor will comply with all federal, state, and local laws regarding registrations, authorizations, reports, business permits, and licenses that may be required to carry out the work to be performed under this Agreement. Contractor agrees to provide CPA with copies of any registrations

Agenda Page 21
8 or filings made in connection with the work to be performed under this Agreement.

14. Compliance with Applicable Laws
The Contractor shall comply with any and all applicable federal, state and local laws and resolutions affecting Services covered by this Agreement.

15. Nondiscriminatory Employment
Contractor and/or any permitted subcontractor, shall not unlawfully discriminate against any individual based on race, color, religion, nationality, sex, sexual orientation, age, protected veteran status, or condition of disability. Contractor and/or any permitted subcontractor understands and agrees that Contractor and/or any permitted subcontractor is bound by and will comply with the nondiscrimination mandates of all federal, state and local statutes, regulations and ordinances.

16. Work Product.

Subject to the ownership rights in Section 7 above, all tangible deliverables set forth in Exhibit A (“Deliverables”) and prepared by Contractor, its officers, employees and agents in the course of implementing this Agreement shall become the sole property of CPA upon payment to Contractor for such work. CPA shall have the exclusive right to use such Deliverables in its sole discretion without further compensation to Contractor or to any other party. Contractor shall, at CPA’s expense, provide such Deliverables to CPA or any party CPA may designate, upon written request. Contractor may keep file reference copies of all Deliverables and documents prepared for CPA. For the avoidance of doubt, the Deliverables do not include Contractor’s Software, Datasets, or the Services (each as defined in Exhibit D), or any related intellectual property rights.

17. Notices
Any notice, request, demand, or other communication required or permitted under this Agreement shall be deemed to be properly given when both: (1) transmitted via email to the email address listed below; and (2) sent to the physical address listed below by either being deposited in the United States mail, postage prepaid, or deposited for overnight delivery, charges prepaid, with an established overnight courier that provides a tracking number showing confirmation of receipt.

In the case of CPA, to:

Name/Title: Theodore Bardacke, Chief Executive Officer
Address: 801 S. Grand Ave., Suite 400, Los Angeles, CA 90017 Telephone: (213) 269-5890
Email: [email protected]
In the case of Contractor, to:

Name/Title: Energy Exemplar Account Management
Address: 420 East South Temple, Suite 300, Salt Lake City, UT 84111

Agenda Page 22
9 Telephone: (208) 255-3900
Email: [email protected]

18. Assignment
Neither this Agreement nor any of the Parties’ rights or obligations hereunder may be transferred or assigned without the prior written consent of the other Party. Subject to the preceding sentence, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

19. Subcontracting
Contractor may not subcontract Services to be performed under this Agreement without the prior written consent of CPA. If the CPA’s written consent to a subcontract is not obtained, Contractor acknowledges and agrees that CPA will not be responsible for any fees or expenses claimed by such subcontractor.

20. Retention of Records and Audit Provision
Contractor and any subcontractors authorized by the terms of this Agreement shall keep and maintain on a current basis full and complete documentation and accounting records, employees’ time sheets, and correspondence pertaining to this Agreement. Such records shall include, but not be limited to, documents supporting all income and all expenditures.

CPA shall have the right, during regular business hours, to review and audit all records relating to this Agreement during the Agreement period and for at least five (5) years from the date of the completion or termination of this Agreement. Any review or audit may be conducted on Contractor’s premises, or, at CPA’s option, Contractor shall provide all records within a maximum of fifteen (15) days upon receipt of written notice from CPA.

Contractor shall refund any monies erroneously charged. Contractor shall have an opportunity to review and respond to or refute any report or summary of audit findings and shall promptly refund any overpayments made by CPA based on undisputed audit findings.

21. Conflict of Interest
a. No CPA employee whose position with the CPA enables such employee to influence the award of this Agreement or any competing Agreement, and no spouse or economic dependent of such employee, shall be employed in any capacity by the contractor or have any other direct or indirect financial interest in this Agreement. No officer or employee of the Contractor who may financially benefit from the performance of work hereunder shall in any way participate in the CPA’s approval, or ongoing evaluation, of such work, or in any way attempt to unlawfully influence the CPA’s approval or ongoing evaluation of such work.
b. The Contractor shall comply with all conflict of interest laws, ordinances, and regulations now in effect or hereafter to be enacted during the term of this Agreement. The Contractor warrants that it is not now aware of any facts that create a conflict of interest. If the Contractor hereafter becomes aware of any facts that might reasonably be expected to create a conflict of interest, it shall immediately make full written disclosure of such facts to CPA. Full written

Agenda Page 23
10 disclosure shall include, but is not limited to, identification of all persons implicated and a complete description of all relevant circumstances. Failure to comply with the provisions of this paragraph shall be a material breach of this Agreement.

22. Publicity
Contractor shall not issue a press release or any public statement regarding the Agreement, Services contemplated by this Agreement, or any other related transaction unless CPA has agreed in writing the contents of any such public statement.

23. Governing Law, Jurisdiction, and Venue
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. The Contractor agrees and consents to the exclusive jurisdiction of the courts of the State of California for all purposes regarding this Agreement and further agrees and consents that venue of any action brought hereunder shall be exclusively in the County of Los Angeles.

24. Amendments
None of the terms and conditions of this Agreement may be changed, waived, modified or varied in any manner whatsoever unless in writing duly signed by the Parties.

25. Severability
Should any provision of this Agreement be held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not invalidate the whole of this Agreement, but rather, the remainder of the Agreement which can be given effect without the invalid provisions, will continue in full force and effect and will in no way be impaired or invalidated.

26. Complete Agreement
This Agreement constitutes the entire Agreement between the parties. No modification or amendment shall be valid unless made in writing and signed by each party. Failure of either party to enforce any provision or provisions of this Agreement will not waive any enforcement of any continuing breach of the same provision or provisions or any breach of any provision or provisions of this Agreement.

27. Counterparts
This Agreement may be executed in one or more counterparts, including facsimile(s), emails, or electronic signatures, each of which shall be deemed an original and all of which together will constitute one and the same instrument IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.

Agenda Page 24
11 Energy Exemplar LLC Clean Power Alliance of Southern California ____________________________________ ____________________________________ By: By: Theodore Bardacke
Title: Title: Chief Executive Officer

Agenda Page 25
Exhibit A – Scope of Work

PROJECT TASKS AND DELIVERABLES
Contractor shall be responsible for providing a production cost modeling software solution and support services.

Contractor must account for the following tasks and all tasks must be completed according to the timelines set forth below:

Task #1: PLEXOS Market Simulation Software Access
a. Contractor shall provide Cloud User Licenses to Access PLEXOS as more fully set forth in the Order Form of Exhibit D.
b. Contractor shall provide the following support services:
a. Contractor will provide direct Customer Support to CPA, accessible through our online portal, by email, and by phone.
b. Contractor will provide customer support twenty-four (24) hours a day, five (5) days a week. Contractor’s response time to technical support requests will not exceed twenty-four (24) hours from initial request submission.

Deliverables for Task #1:
• Contractor will provide PLEXOS user credentials, license keys, and access to all requisite product versions and the WECC nodal database, all in accordance with Exhibit D. • Support services as set forth above.

Timeline for Task #1:
• Software access shall be granted upon the Effective Date. • Support services shall be provided over the duration of the Agreement.

Task #2: As-Needed Consulting Services
At CPA’s request, Contractor may perform additional consulting services on an hourly basis as described in Exhibit C for the development and implementation of CPA procurement planning modeling activities.

Deliverables for Task #2:
• Completion of the as-needed consulting services as set forth above.

Timeline for Task #2:
• Ongoing over the duration of the agreement.

Agenda Page 26
Exhibit B – Intentionally Left Blank

Agenda Page 27
Exhibit C – Compensation
Contractor shall satisfactorily provide all the contemplated Services detailed in Exhibit A at the rates specified in the table below and in compliance with the terms and conditions of this Agreement.

Task #1 PLEXOS Market Simulation Software Access:

Description
Initial Term
(February 6, 2024 –
February 5, 2025)
First Renewal
Term (February 6,
2025 – February 5,
2026)
Second Renewal
Term (February 6,
2026 – February 5,
2027)
Software, Datasets, and Cloud
Services as set forth in the Order
Form of Exhibit D
$228,671 $244,678 $259,658
Task #2 As-Needed Consulting Services:

Title Hourly Rate
Director $431
Technical Lead $301
Senior Analyst $246
Analyst 2, IT Analyst $218
Total Program Costs for the Initial Term:

Description Estimated Due Date Not to Exceed
Amount
Task 1:

PLEXOS Market Simulation Software Access February 6, 2024 $228,671 Task 2:

As-Needed Consulting Services
Ongoing over the
duration of the
Agreement
Up to $25,000
Expenses, if approved in advance, in writing, by CPA $0 TOTAL Program Costs for the Initial Term $253,671

Agenda Page 28
Payment for Task #1 Services will be due and payable upon the Effective Date (and any applicable anniversary thereof) and shall not exceed Two Hundred Twenty-Eight Thousand Six Hundred Seventy-One Dollars ($228,671) ("Not-to-Exceed" or "NTE") during the Initial Term.

Payment for Task #1 Services shall not exceed Two Hundred Forty-Four Thousand Six Hundred Seventy-Eight Dollars ($244,678) ("Not-to-Exceed" or "NTE") during the First Renewal Term (February 6, 2025 – February 5, 2026), if renewed.

Payment for Task #1 Services shall not exceed Two Hundred Fifty-Nine Thousand Six Hundred Fifty-Eight Dollars ($259,658) ("Not-to-Exceed" or "NTE") during the Second Renewal Term (February 6, 2026 – February 5, 2027), if renewed.

In addition, CPA will reimburse Contractor at the hourly rates set forth above for the as-needed consulting services identified in Task #2 of Exhibit A and shall not exceed Twenty-Five Thousand Dollars ($25,000) ("Not-to-Exceed" or "NTE") during the Initial Term, and each subsequent Renewal Term, if renewed.

Any travel, administrative expenses, and materials (hereinafter, “Expenses”) will be billed in the amount incurred by Contractor for actual out-of-pocket cost, without any additional mark-up by Contractor. Any Expenses incurred shall be billed for the month in which the Expenses are incurred. Expense reports detailing all Expenses, along with receipts, shall be presented to CPA for reimbursement. All expenses must be approved by CPA in advance writing before they are incurred.

The Total Maximum Amount that CPA shall pay Contractor, including any subcontractor that the Contractor may retain, for all Services and Expenses to be provided under this Professional Services Agreement (including but not limited to Exhibit D) shall not exceed Eight Hundred Eight Thousand and Seven Dollars ($808,007) ("Not-to-Exceed" or "NTE").

Contractor shall satisfactorily perform and complete, in the judgement of CPA, all required Services in accordance with Exhibit A notwithstanding the fact that total payment from CPA shall not exceed the NTE.

Agenda Page 29
Exhibit D – Contractor’s End User License Agreement
Order Form
This Order Form and the attached Terms and Conditions (collectively, the “Agreement”) are made effective as of February 8, 2024 (the “Effective Date”) between:

Energy Exemplar LLC (“EE”), and
Clean Power Alliance (“Customer”).

This Order Form is made subject to, and incorporates the terms and conditions contained in the Terms and Conditions attached hereto. The use of any software or service provided by EE is conditioned on Customer’s acceptance of the Agreement. Any capitalized terms used in this Order Form but not defined shall have the meaning given such terms in the Terms and Conditions.

A. TERM. The Initial Term of the Agreement commences on the Effective Date and continues for one year from the Effective Date.

B. PRODUCTS AND SERVICES
Products and Services SKU Quantity Annual Fee
PLEXOS Electricity PLEL 2 (two) Named Users $228,671
PLEXOS Cloud Workspace PLCWAWS 16 Cores Included
PLEXOS WECC Nodal Data PLELNAWN By Site Included
NOTES:

TOTAL: $228,671

Agenda Page 30
C. CUSTOMER INFORMATION.

Notices Invoicing
Customer Contact: Clarissa Chan Customer Contact: Scott Gropp Address: Address:

Phone: (323) 428-8949 Phone: (213) 880-9986
E-mail: [email protected] E-mail: [email protected] VAT/Tax ID:

IF APPLICABLE:  Purchase Order Required for Invoicing.  Tax-exempt Entity: Please attach a copy of your tax-exemption certificate to this order form.

D. EE INFORMATION.

Notices Payment
EE Contact:

Address:

Phone:

E-mail:
[Insert Bank Account Details for Payment]
The parties hereto have agreed to this Order Form and the accompanying Terms and Conditions as of the date first written above.

Energy Exemplar LLC
_____________________________
Name:

Title:

Clean Power Alliance
_____________________________
Name:

Title:

Agenda Page 31

TERMS AND CONDITIONS

1. Introduction. These Terms and Conditions govern Customer’s acquisition and use of EE’s Services, EE Software, and other EE Materials. These terms and conditions together with any Order Form collectively form the “Agreement” between the parties. This Agreement is effective between Customer and EE as of the Effective Date set forth in the Order Form. Capitalized terms have the definitions set forth in Section 17 or otherwise herein.

2. Services and EE Software.

2.1 Provision of Services. During the Term, and conditioned on Customer’s compliance with this Agreement, EE hereby grants Customer a limited, non-exclusive, non-transferable right to access and use the Services, solely for use by Named Users in accordance with the terms and conditions of this Agreement. Such use is limited to Customer's own internal purposes (and not for further commercial distribution).

2.2 EE Software. During the Term, and conditioned on Customer’s compliance with this Agreement, EE hereby grants Customer a limited, non-exclusive, non-transferable, and non-sublicensable right to install and use the EE Software solely for use by the Named Users in accordance with the terms and conditions of this Agreement. Such use is limited to Customer’s own internal purposes (and not for further commercial distribution).

2.3 Access Credentials. EE shall make available access credentials and/or software license keys (as applicable) to Customer within 48 hours of EE having received all required information from Customer, including the contact information of the Customer representative that will receive administrative rights to grant access to Customer’s Named Users. Customer may change the identity of an individual who is a Named User via EE’s client portal (https://portal.energyexemplar.com/) by providing the email address of the individual who will be the new Named User and the email address of the individual who Customer wants to remove as a Named User.

Customer may not add a Named User if such individual was previously a Named User within the last 30 days.

The total number of Named Users and Cores will not exceed the number set forth in the applicable Order Form.

Customer may increase the number of Named Users or Cores or add other products pursuant to an additional Order Form signed by both parties.

2.4 EE Commitments. Subject to Customer's compliance with this Agreement, EE will: (a) make the EE Materials available to Customer in accordance with the applicable Order Form, this Agreement, and the Documentation; (b) meet the applicable uptime and other requirements set forth in the Service Level Agreement; (c) provide EE’s applicable standard technical support for the Services and EE Software to Customer at no additional charge, and will also provide upgraded technical support if purchased by Customer.

2.5 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties: (a) EE has and will retain sole control over the operation, provision, maintenance, and management of the EE Materials; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, Customer Systems, and sole responsibility for all access to and use of the EE Materials by or through Customer Systems or any other means controlled by Customer or any Named User, including any: (i) information, instructions, or materials provided by any of them to the EE Materials or EE; (ii) results obtained from any use of the Services or EE Materials; and (iii) conclusions, decisions, or actions based on such use.

2.6 Updates. EE reserves the right to make any Updates that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of EE’s products to its customers; (ii) the competitive strength of or market for EE’s products; or (iii) the cost efficiency or performance of EE’s products; (b) to comply with applicable law, or (c) add or remove features or services (including previous versions of EE Software or as a result of a change in Third Party Materials). EE will use reasonable efforts to provide Customer with advance notice of Updates.

For purposes of this Section 2.6, notice may also be made by: alerts in the Services or EE Software, email, or

Agenda Page 32
posting on EE’s website. In the event an Update results in a material change to the Services that adversely affects Customer: (x) EE will notify Customer of such change or update and (y) Customer may terminate this Agreement by providing written notice to EE within 30 days of receipt of notice of the change from EE. In the event Customer terminates this Agreement pursuant to the preceding sentence, EE will refund to Customer a pro rata portion of the fees previously paid by Customer for the Services that correspond to the time period after the date of termination.

2.7 Trial Products and Beta Products.
(a) If EE offers Customer a trial or evaluation of any EE Materials (“Trial Products”), Customer may access and use the Trial Products for 30 days, or such other duration specified in the Order Form. (b) From time to time, EE may invite Customer to try a Beta Product, which Customer may accept or decline in Customer’s sole discretion. Customer agrees to comply with any testing and usage guidelines that EE provides in connection with Customer’s access and use of a Beta Product and will make reasonable efforts to provide Feedback in accordance with Section 10.3. EE may discontinue a Beta Product at any time in its sole discretion and there is no guarantee that a Beta Product will be incorporated into future versions of the EE Materials.
(c) Trial Products and Beta Products are provided only for internal testing and evaluation and solely for Customer’s own internal purposes.
(d) TRIAL PRODUCTS AND BETA PRODUCTS ARE PROVIDED “AS IS” WITHOUT ANY SUPPORT, INDEMNITY, LIABILITY OR REMEDY OF ANY KIND. TO THE EXTENT ALLOWED BY APPLICABLE LAW, EE

EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESSED OR IMPLIED,

INCLUDING ANY WARRANTY, CONDITION, OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF TRIAL PRODUCTS OR BETA PRODUCTS. (e) The terms in this Section 2.7 apply, and prevail over any conflicting terms in this Agreement, with respect to all access to and use of Trial Products or Beta Products.

2.8 Suspension or Termination of Access. EE may, directly or indirectly, and by use of a Compliance Verification Process or any other lawful means, suspend or terminate access to or use of all or any part of the EE Materials by providing written notice to Customer (in advance, where reasonably practicable), without incurring any resulting obligation or liability, if: (a) EE receives a judicial or other governmental demand, order, subpoena, or request that expressly or by reasonable implication requires EE to do so; (b) EE believes, in good faith, that: (i) Customer or any Named User has failed to comply with any material term of this Agreement (including any payment obligation), or accessed or used the EE Materials beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Named User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated; and (c) Customer becomes, threatens, or resolves to become or is in jeopardy of becoming subject to any form of insolvency. This Section 2.8 does not limit any of EE’s other rights or remedies, whether at law, in equity, or under this Agreement.

2.9 Temporary Licenses. Customer acknowledges and agrees that, to enforce its rights under this Agreement, EE is entitled to issue temporary access credentials and/or licenses for any EE Materials to Customer (which licenses may expire prior to the end of the Initial Term or Renewal Term, as applicable). Once EE has received payment of the fees specified on the relevant Order Form and is otherwise satisfied Customer is complying with this Agreement, EE will issue access credentials and/or licenses for the remainder of the Initial Term or Renewal Term (as applicable).

Agenda Page 33

3. Customer Use of EE Materials

3.1 Use Restrictions. Customer will not (a) permit any other person to access or use EE Materials, or use any EE Materials for the benefit of anyone other than Customer, except as expressly permitted by this Agreement or any Order Form; (b) copy, modify, translate, or create derivative works or improvements of EE Materials; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any EE Materials to any person, including any time-sharing, service bureau, subscriptions, software as a service, outsourcing, or other technology or service; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of EE Materials, in whole or in part; (e) access or use EE Materials other than by a Named User through the use of his or her own then valid access credentials or use any EE Materials to access or use any of EE’s intellectual property except as permitted under this Agreement; (f) input, upload, or transmit through EE Materials, any information or materials that (1) are unlawful, immoral, pornographic, offensive, injurious, or otherwise inappropriate; or (2) contain, transmit, or activate any Harmful Code; (g) remove, delete, alter, or obscure any EE branding, disclaimers, copyrights, trademarks, patents, or other intellectual property or proprietary rights notices from any EE Materials; (h) permit direct or indirect access to or use of any EE Materials in a way that circumvents a contractual usage limit; (i) access or use EE Materials in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; (j) access or use EE Materials for purposes of competitive analysis of EE Materials, the development, provision, or use of a competing software service or product or any other purpose that is to EE’s detriment or commercial disadvantage; and (k) otherwise access or use EE Materials beyond the scope of the authorization granted under this Agreement.

3.2 Customer Obligations and Cooperation. Customer shall at all times during the Term: (a) be responsible for each Named User’s compliance with this Agreement; (b) only access the EE Materials via equipment specified by EE as meeting the relevant operational requirements and maintain adequate internet connection bandwidth to be able to access the Services; (c) use commercially reasonable efforts to prevent unauthorized access to or use of EE Materials; and (d) use EE Materials only in accordance with this Agreement, the Documentation, and applicable laws and regulations.

3.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by this Section 3, Customer shall, and shall cause its Named Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to EE Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify EE in writing of any such actual or threatened activity.

3.4 Dataset Services.
(a) For the avoidance of doubt, Dataset Services, and any components, data, or content included in Dataset Services, constitute part of the Services under this Agreement. Dataset Services may only be used together with the other EE Materials provided hereunder. In the event Customer discontinues any Dataset Services, Customer shall delete all copies of such Dataset Services and derivatives that exist on Customer’s Systems and shall cease running any simulations that incorporate such Dataset Services (in whole or in part).

Any changes, additions, derivatives, or other modifications made by Customer to any Dataset Services do not provide Customer with any right or title to the underlying Dataset Services. Upon request by EE, Customer shall provide EE with a document signed by an officer of Customer that certifies Customer’s compliance with this Section 3.4(a). Customer warrants that it will use the Dataset Services solely for its own internal operation and purpose and will not redistribute, sell, publish or disclose Dataset Services in whole or in part to any third party.
(b) Notwithstanding Section 3.4(a), Customer may include portions of data included in the Dataset Services (which must not comprise a material portion of the applicable Dataset Services) in a report that is provided to third parties, provided that: (i) the inclusion of such portions of Dataset Services is incidental

Agenda Page 34
to the primary focus of the report and is limited to the amount reasonably necessary to support the conclusions or positions contained in such report; (ii) Customer prominently attributes ownership of the Dataset Services to EE, including an acknowledgement in the following form: “Energy Exemplar: [name of Dataset]”; and (iii) the recipients of the report agree to treat such portions of the Dataset Services as Confidential Information of EE and to observe the terms, conditions and limitations under this Agreement applicable to Confidential Information. Customer may also include portions of data included in Dataset Services in regulatory proceedings in which Customer is a party, provided that there is no disclosure of a material portion of data and Customer keeps EE informed of developments of the proceedings.

3.5 Cores Usage.
(a) If a specific number of Cores is specified in any Order Form, Customer must not use the Services or EE Software on devices (whether physical or virtual) containing, in the aggregate, more than the maximum number of Cores specified in the applicable Order Form. If no Cores are specified in the Order Form, a Named User may only install and use the EE Materials on a desktop with up to 8 Cores or less. (b) EE Materials may not be installed on, or otherwise used on, a shared server OS or otherwise run remotely without having purchased the necessary Cores.

3.6 Compute Credits. If Compute Credits are specified in any Order Form, the following additional terms apply.
(a) A Compute Credit (a “Compute Credit”) is a measurement unit reflecting Customer’s use of computational resources on the PLEXOS Cloud during simulations and other data processing. A Compute Credit is measured based on infrastructure used for computation time. Compute Credits are calculated in whole numbers and are rounded up to the nearest minute. Example Compute Credits usage on PLEXOS Cloud are shown below (subject to availability):

CPU Cores Memory (GB) Compute Credits per Hour
1 8 1
2 16 2
4 32 4
8 64 8
16 128 16
(b) Customer shall be subscribed to the annual compute credits set forth on the Order Form.

Customer is responsible for monitoring its use of the Compute Credits. Notwithstanding the foregoing, EE may send Customer written notice once Customer has used 80% of its Compute Credits (the “Usage Notice”).
(c) To maintain Customer’s ability to initiation new simulations and subject to EE’s infrastructure capabilities, Customer may purchase a block of additional Compute Credits in the block size and for the price set forth on the Order Form (the “Additional Compute Credits”). The purchase of Additional Compute Credits will occur automatically upon receipt of the Usage Notice, unless Customer provides written notice to EE within ten days of receiving the Usage Notice, that Customer does not wish to purchase the Additional Compute Credits.
(d) Customer shall be responsible for any use of the Services that exceeds the Compute Credits set forth on the Order Form. If Customer does not purchase Additional Compute Credits pursuant to clause

4.5.3, any Compute Credits used in excess of the amount purchased will be charged to Customer at the “Overage” rate set forth on the Order Form. EE may (but is not required to) suspend Customer’s ability to initiate new simulations if Customer exceeds the Compute Credits; provided that, for the avoidance of

Agenda Page 35
doubt, Customer will retain access to any previously completed simulations (subject to the other terms and conditions contained in the Agreement).
(e) Compute Credits and Additional Compute Credits reset annually and must be used during the Term in which they were purchased.
(f) Significant changes in infrastructure needs (such as an increase in the base cores set forth on the Order Form) require Customer to provide 48 hours written notice. EE will use commercially reasonable efforts to meet Customer’s increased requirements, but an expansion in computing power above the number of cores set forth on the Order Form is subject to availability and EE’s infrastructure capabilities. (g) Customer is responsible for all Compute Credits and Additional Compute Credits consumed and Customer is not entitled to any usage credits for failed simulations, errors, or otherwise unsatisfactory results. Notwithstanding the foregoing, if a simulation fails due to a Service Level failure, EE shall be entitled to a Service Credit as set forth in the Service Level Agreement.”

3.7 Non-Solicitation. During the Term and for one year after, Customer shall not, and shall not assist any other person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any person or persons) for employment or engagement as an independent contractor any person employed by EE.

4. Service Levels. EE agrees to meet the service levels set forth in the Service Level Agreement. If EE fails to perform its required obligations with respect to any service level, then Customer is entitled to receive the applicable service credits set forth in the Service Level Agreement, subject to Customer having promptly notify EE of any faults in relation to the provision of the Services. Customer’s rights and remedies under this Section

4.1 and the Service Level Agreement are the sole and exclusive remedy available to Customer for any failure to provide the Services in accordance with the Service Level Agreement.

5. Technical Support.

5.1 Technical Support Request. To receive technical support, Customer must log a request for each technical issue within the support area of EE’s client portal (https://portal.energyexemplar.com/). Technical support is available during business hours in the location of the primary business office of the EE entity party to this Agreement. EE will provide an initial response within 48 business hours of the request being submitted on the client portal. EE will use commercially reasonable efforts to resolve issues, or provide work-around options, as timely as possible. However, EE neither warrants nor guarantees that all technical issues can be addressed in a particular timeframe or as required by Customer. If Customer requires: (a) a specific level of technical support, responsiveness or resolution; or (b) technical support in relation to any items included in Section 5.2, then such additional support and applicable fees for such additional support must be expressly specified in either the applicable Order Form or a separate statement of work.

5.2 Exclusions. Technical support excludes: (a) correction of errors or defects caused by Customer’s use of EE Materials in violation of this Agreement; (b) correction of errors or defects caused by Customer’s modification, revision, variation, translation or alteration of EE Materials not authorized by EE; (c) diagnosis or correction of faults or errors caused in whole or in part by the use of third party products or services not contemplated for the ordinary functioning of EE Materials; (d) diagnosis or correction of faults or errors on Customer’s computer systems or network; (e) correction of errors caused by the failure of Customer to provide suitably qualified and adequately trained personnel; (f) training of Customer personnel; and; (g) development of Customer datasets.

6. Data Protection.

Agenda Page 36

6.1 Data Backup and Disaster Recovery. EE’s cloud service architecture is designed to be highly redundant and reliable. Should Customer’s primary data center encounter a disaster that prevents it from functioning, formal processes are in place to restore Customer’s access to the Services. EE’s backup and disaster recovery strategies are validated and tested at least annually or during major architectural changes. Additional information on EE’s data backup and disaster recovery program can be found in EE’s Cloud Operations Standards, a current version of which is available at https://portal.energyexemplar.com/security/.

6.2 Information Security. EE implements security for the protection of Customer Data and the integrity of the Services, which includes encryption for data transmission and multiple layers of security to protect Customer Data. These security practices, which are frequently reviewed and updated by EE, are available at https://portal.energyexemplar.com/security/.

6.3 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Named User in connection with the Services or EE Software; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer's and its Named Users' access credentials and software license keys; and (e) all access to and use of EE Materials directly or indirectly by or through Customer Systems or its or its Named Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

6.4 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) protect against any unauthorized access to or use of EE Materials; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services or EE Software.

6.5 Data Privacy. Customer and EE agree to comply with all applicable data privacy laws and with no less than the standard of care used by other similarly situated companies. Customer shall ensure that it has provided the necessary notices and/or obtained proper consent from its Named Users to use and disclose their personal data, to the extent needed for EE to provide the EE Materials and perform its other obligations under this Agreement.

7. Third Party Materials.

7.1 EE Integrated or Provided Third Party Materials. The EE Materials may include, or EE may from time to time make available to Customer, Third-Party Materials. Such Third-Party Materials may be essential for Customer to receive full functionality, modelling or other benefits in using EE Materials. Customer agrees that EE may allow Third Party Materials to have access to Customer Data as required to provide the Services or EE Software. Third Party Materials are provided under the same terms and conditions as the EE Materials.

Notwithstanding the foregoing, if Customer chooses to use CPLEX as a solver, Customer also agrees to the applicable terms set forth at: https://www.ibm.com/support/customer/csol/terms/ and EE will have no liability in relation to such use.

7.2 Customer Installed or Requested Third Party Materials. In respect of any third party products or services which Customer installs or enables for use with EE Materials, the Customer agrees that (a) EE may allow the third party vendors of those products to have access to Customer Data as required for the interoperation and support of such third party products with the EE Materials; (b) Customer has the necessary rights and permissions to use and integrate such third party products or services with the EE Materials, and (c) EE does not warrant the use or performance of such third party products or services, nor does it provide any support for such third party products, and use of such third party products is on an AS-IS, WHERE-IS basis.

Agenda Page 37

8. Fees and Payment.

8.1 Fees. Customer must pay all fees specified in the applicable Order Form. Except as otherwise specified in this Agreement or in an Order Form, (a) payment obligations are non-cancelable and fees paid are non-refundable, and (b) quantities purchased cannot be decreased during the relevant subscription term.

8.2 Payment. EE shall invoice Customer in advance (unless otherwise specified in an Order Form) and Customer shall pay all fees within 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to EE and notifying EE of any changes to such information.

Customer shall make all payments in the currency specified in the Order Form (or if no currency is specified, in U.S. dollars) by way of electronic transfer to EE’s bank account specified in the Order Form (or such other account specified in writing by EE to Customer).

8.3 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, (a) EE may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law, (b) Customer shall reimburse EE for all reasonable costs incurred by EE in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees, and (c) if any payment owing by Customer is 30 days or more overdue, EE may, upon written notice, suspend performance of the Services and access to EE Software until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension.

8.4 Payment Disputes. With respect to payment amounts that are in dispute, EE will not exercise its rights under Section 8.3 to the extent Customer is disputing the applicable payments reasonably and in good faith and is working diligently to resolve the dispute.

8.5 Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments of any nature, including value-added, sales, excise, use or withholding taxes. Customer is responsible for paying all taxes associated with its purchases hereunder. If EE has the legal obligation to pay or collect taxes for which Customer is responsible under this Section 8.5, EE will invoice Customer and Customer will pay that amount unless Customer provides EE with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, EE is solely responsible for taxes assessable against it based on its income, property and employees.

8.6 Compliance Verification. Customer must keep records relating to its use of EE Materials during the Term and for two years after the end of the Term. EE may verify Customer’s compliance with this Agreement (a) remotely, (b) via direct or indirect in-person audit (under nondisclosure obligations), or (c) by asking Customer to complete a self-audit process. Customer must promptly provide any information and documents that EE or the auditor reasonably requests related to the verification and access to systems running the Services or EE Software. If verification or self-audit reveals usage that exceeds the usage permitted by the applicable Order Form, Customer must, within 30 days, pay EE all amounts due for such excess use. Without limiting EE’s other remedies, if unlicensed use is 10% or more of Customer’s total use of all Services or EE Software, Customer must reimburse EE for its costs incurred in verification and acquire sufficient usage rights to cover its unauthorized use at 110% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.

9. Confidentiality.

9.1 Confidential Information. In connection with this Agreement a party (the “Disclosing Party”) may disclose Confidential Information to the other party (the “Receiving Party”). Except as set forth in Section 9.2, “Confidential Information” means information in any form or medium disclosed by the Disclosing Party to the Receiving Party, including all information concerning the business, products, services, systems, procedures and records of the Disclosing Party, in each case whether or not marked or identified as “confidential.” Confidential

Agenda Page 38
information of EE includes EE Materials (including all intellectual property rights existing in the same), any internal or third-party audit reports (including any security or ISO audits) disclosed by or on behalf of EE, and the terms and conditions of this Agreement.

9.2 Exclusions. Confidential Information does not include information that: (a) was known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

9.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party must (a) only use Confidential Information for the purposes contemplated by this Agreement, (b) not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9, and (c) safeguard the Confidential Information from unauthorized use or disclosure using at least the degree of care it uses to protect its own information and in no event less than a reasonable degree of care. Disclosing Party shall ensure its representatives' compliance with, and be responsible and liable for, any of its representatives’ non-compliance with, the terms of this Section 9.

9.4 Trade Secrets. Notwithstanding any other provision of this Agreement, the Receiving Party’s obligations with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection other than as a result of any act or omission of the Receiving Party or any of its representatives.

9.5 Compelled Disclosures. If the Receiving Party is compelled by law to disclose any Confidential Information, then, to the extent permitted by law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party of such compelled disclosure, and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, if the Disclosing Party decides to contest such compelled disclosure.

10. Proprietary Rights.

10.1 Reservation of Rights. The EE Materials and Updates are proprietary to EE, its Affiliates, licensors, or suppliers. Except as expressly granted in this Agreement, (a) EE and its Affiliates reserve all their right, title, and interest (including all intellectual property and other rights) in and to EE Materials and Updates, and (b) the applicable third-party providers reserve all their right, title, and interest (including all intellectual property and other rights) in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any EE Materials or Updates except as expressly set forth in Section 2 or the applicable third-party license, in each case subject to Section 33.1. All other rights in and to EE Materials and Updates are expressly reserved by EE, its Affiliates, licensors, and suppliers. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to EE an assignment of all right, title, and interest in and to Usage Data and Updates and agrees to take such further action as EE may reasonably require to achieve such assignment.

10.2 Customer Data. As between Customer and EE, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data. Customer grants EE a royalty-free, non-exclusive, revocable license to host, copy, transmit, display and otherwise use Customer Data for the sole purpose of

Agenda Page 39
providing the Services, support services (including troubleshooting) and performing EE’s other obligations under this Agreement. EE is not responsible for: (a) checking or validating Customer Data or any simulations or calculations initiated by Customer; (b) ensuring that Customer Data is free from any errors; or (c) exercising any control over the content of any Customer Data. Customer warrants that it has all necessary rights and titles to Customer Data.

10.3 Feedback and Modifications. Customer is not required to provide EE any feedback, comments, or suggestions about EE Materials (“Feedback). However, if Customer provides Feedback, EE is free to use and disclose Feedback without any obligations or restrictions of any kind, including intellectual property rights. Any intellectual property rights created with respect to any changes or extensions in functionality of the EE Materials, including as a result of any Feedback or EE having been engaged to perform services for Customer are owned by and assigned to EE.

11. Representations and Warranties.

11.1 Mutual Representations. Each party represents that (a) it has the legal authority to, and that it has, validly entered into this Agreement; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate any applicable laws or other agreement to which such party is bound.

11.2 EE Warranties. EE warrants that: (a) the Services and EE Software will perform materially in accordance with the applicable Documentation, and (b) that EE will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner.

11.3 Customer Warranties. Customer warrants that Customer owns or otherwise has the necessary licenses, rights, and consents to Customer Data to allow EE the right to use such Customer Data in accordance with this Agreement; and (b) the use of Customer Data by EE in connection with this Agreement, will not breach any applicable law.

11.4 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE EE MATERIALS ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND

EE, ITS LICENSORS AND ITS SUPPLIERS SPECIFICALLY EXCLUDE ALL IMPLIED REPRESENTATIONS AND

WARRANTIES WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, TITLE,

FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AS WELL AS THE APPLICATION OR AVAILABILITY OF ANY STATUTORY RIGHTS. CUSTOMER BEARS ALL RISK RELATING TO THE ACCURACY AND USE OF THE INFORMATION AND REPORTS RESULTING FROM THE USE OF EE MATERIALS. WITHOUT LIMITING THE

FOREGOING, NEITHER EE NOR ITS LICENSORS OR SUPPLIERS WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OR USE OF EE MATERIALS WILL BE UNINTERRUPTED OR ERROR OR BUG-FREE. TO THE

FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EE MATERIALS PROVIDED FREE OF CHARGE, AS PART OF A TRIAL, OR AS BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER.

12. Indemnification.

12.1 EE Indemnification. EE shall indemnify and defend Customer and its Affiliates (each a “Customer Indemnitee”) against all Losses incurred by such Customer Indemnitee resulting from any Action by a third party alleging Customer's use of EE Materials in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (a) any unauthorized combination, operation, or other use of the EE Materials if such infringement would have been avoided but for such combination, operation or use; (b) any additions, modifications or enhancements of the EE Materials requested by Customer, if the alleged infringement would not have occurred but for such additions, modifications or enhancements; (c) use of the EE Materials in breach of this Agreement; (d) Customer’s failure to comply with instructions, documentation or materials provided by

Agenda Page 40
EE, if the alleged infringement would not have occurred but for such failure; or (e) any modification of the EE Materials not made by EE, if the alleged infringement would not have occurred absent such modification.

12.2 Customer Indemnification. Customer shall indemnify and defend EE, its Affiliates, and licensors (each an “EE Indemnitee”) against all Losses incurred by such EE Indemnitee resulting from any Action by a third party that are alleged to arise out of or result from: (a) Customer Data, including any use of Customer Data with EE Materials; and (b) use of the EE Materials outside of the scope allowed under this Agreement.

12.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee's prior written consent (unless such settlement unconditionally releases the Indemnitee of all liability). The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.

12.4 Mitigation. If any EE Materials are, or in EE’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, EE may, at its option and sole cost and expense:
(a) procure for Customer the right to continue using EE Materials free from any such claim; (b) modify or replace such EE Materials to make them (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality; or (c) if neither of the above are reasonably practicable, terminate this Agreement with immediate effect by providing notice and refund Customer any prepaid fees covering the remainder of the Term.

12.5 Sole Remedy. Subject to Section 13.3, this Section 12 sets forth the Indemnitee’s sole remedy and the Indemnitor’s sole liability and obligation to the other party for any third-party claim described in this Section 12.

13. Limitations of Liability.

13.1 EXCLUSION OF CONSEQUENTIAL AND INDIRECT DAMAGES. IN NO EVENT WILL EE, ITS LICENSORS, OR

THEIR AFFILIATES BE LIABLE FOR ANY LOSS OF OPPORTUNITY, GOODWILL, PROFITS, ANTICIPATED SAVINGS OR

BUSINESS, LOSS OR CORRUPTION OF DATA OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR

CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR

RELIANCE UPON EE MATERIALS OR ANY INFORMATION RESULTING THEREFROM, EVEN IF EE OR ITS LICENSORS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT SECTION

13.4 APPLIES, IN NO EVENT WILL EE BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR

SERVICES OR ANY UNAUTHORIZED USE OR MISUSE OF ANY SERVICES OR ANY INFORMATION RESULTING FROM THE USE OF THE EE MATERIALS. CUSTOMER ASSUMES RESPONSIBILITY FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE EE MATERIALS.

13.2 LIMITATION ON LIABILITY. IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY OF ANY KIND ARISING

OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF WHETHER ANY

ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTE OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO EE DURING THE 12-MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH LIABILITY AROSE. CUSTOMER MAY NOT MAKE ANY CLAIM AGAINST ANY OF EE’S LICENSORS OR SUPPLIERS IN CONNECTION WITH THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE

PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF

Agenda Page 41

LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE FOREGOING LIMITATION WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS WITH RESPECT TO THE EE MATERIALS.

13.3 Exceptions. The exclusions and limitations in Section 13.1 and Section 13.2 will not apply to the extent they are not permitted by applicable law, in the case of fraud, or use of the EE Materials outside of the scope allowed under this Agreement.

14. Statutory Rights. Nothing in this Agreement is intended to exclude, restrict or modify any consumer rights or any other legislation which may not be excluded, restricted or modified by agreement. If any other legislation implies a condition, warranty or term into this Agreement or provides statutory guarantees in connection with this Agreement, in respect of goods and services supplied (if any), the liability of EE or its licensors or suppliers for breach of such a condition, warranty, other term or guarantee is limited (at EE’s election) to the extent it is able to do so to EE doing any one or more of the following: (a) in the case of supply of goods: (i) replacing the goods or supplying equivalent goods; (ii) repairing the goods; (iii) paying the cost of replacing the goods or of acquiring equivalent goods; and/or (iv) paying the cost of having the goods repaired; or (b) in the case of supply of services: (i) supplying the services again; and/or (ii) paying the cost of having the services supplied again.

15. Term and Termination.

15.1 Term. The initial term of this Agreement shall be as specified in the applicable Order Form (the “Initial Term”). Except as otherwise specified in an Order Form, this Agreement will automatically renew for additional one year terms (each, a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party gives the other written notice at least 60 days before the end of the then current Term. Except as expressly provided in the applicable Order Form, renewal pricing will be at EE’s applicable list price in effect at the time of the applicable renewal. In addition, if at any renewal, Customer decreases its use of the EE Materials from the prior term, EE may reprice the EE Materials at renewal without regard to the prior term’s per-unit pricing.

15.2 Termination for Cause. A party may terminate this Agreement for cause if (a) the other party materially breaches this Agreement and fails to remedy the breach within 30 days of receipt of written notice of such breach, or (b) the other party becomes, threatens, or resolves to become or is in jeopardy of becoming subject to any form of insolvency.

15.3 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) EE must immediately cease all use of any Customer Data or Customer's Confidential Information and within 30 days of termination of this Agreement, on written request by Customer, EE will make commercially reasonable efforts to make available to Customer any Customer Data that is being stored at the time of termination of this Agreement in connection with Customer’s use of, and access to, the Services; (c) Customer must immediately cease all use of any EE Materials and promptly erase all EE Materials and EE's Confidential Information from all Customer systems; (d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information, in its then current state and solely to the extent and for so long as required by applicable law; (ii) EE may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iv) all information and materials described

Agenda Page 42
in this Section 15.3(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
(e) EE may disable all Customer and Named User access to EE Materials;

15.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 15.2 above, EE will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by EE in accordance with Section

15.2 above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to EE for the period prior to the effective date of termination.

15.5 Copy of Customer Data. If Customer requests in writing at least 30 days prior to the effective date of termination, subject to Section 15.3(d), EE shall, within 30 days following such expiration or termination, deliver to Customer the then most recent version of Customer Data held by EE, provided that Customer has at that time paid all fees then outstanding and any amounts payable after or as a result of such expiration or termination.

15.6 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 9, Section 11.4, Section 12, Section 13, Section 15.3, Section 15.4, this Section 15.6, and Section 16. Termination of this Agreement does not affect the rights and obligations of the parties which have accrued before the date of termination, including the right to claim damages as a result of a breach of this Agreement.

16. Compliance with Laws and Regulations. Each party agrees to comply with all laws and regulations applicable to the subject matter of this Agreement. Certain EE Materials may include information that is subject to either US Federal Energy Regulatory Commission (“FERC”) or Critical Energy Infrastructure Information (“CEII”) regulations or other restricted use provisions of an originating entity (such as load flows contained in certain nodal datasets). This information can only be delivered to entities which have received and can demonstrate approval from FERC or the appropriate originating entity. Customer must provide proof of approval to EE as a condition precedent to the delivery of CEII or other regulated information and Customer shall maintain CEII regulated data in a secure place pursuant to FERC regulations.

17. Definitions. The below capitalized terms have the following meanings:
“Action” means any claim, action, demand, suit, arbitration, investigation, audit, or proceeding of any nature. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means the direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. "Beta Product” means any portion of the EE Materials that EE identifies as beta, pre-release, early access, or preview, and that is made available to Customer during the Term. “Compliance Verification Process” means any software, hardware, or other technology, device, or means used by EE or its designee to verify Customer’s or any Named User’s compliance with the terms of this Agreement or to terminate Customer’s or any Named User’s access to or use of EE Materials. “Cores” means an independent processing unit in a CPU.
“Customer” means the company or other legal entity identified as “Customer” on the Order Form that incorporates this Agreement.

Agenda Page 43
“Customer Data” means (a) data and information which Customer uploads or otherwise inputs into the Services or EE Software (other than Dataset Services) and (b) the output report created by Customer’s use of the Services or EE Software. For clarity, Customer Data does not include Usage Data. “Customer Systems” means Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services. “Dataset Services” means that portion of the Services which provides or otherwise makes available (in any format) any datasets, other similar content, and any derivatives thereof, including Updates. “Documentation” means the manuals, instructions, and other documents or materials that EE provides or makes available to Customer at (https://portal.energyexemplar.com), as updated from time to time. “EE” means the Energy Exemplar company or other legal entity identified on the Order Form that incorporates this Agreement.
“EE Materials” means the Services, Documentation, EE Software, Trial Products, Beta Products, and any and all other systems, software, data, materials, content, methods, processes, technologies, inventions, and reports that are provided or used by EE or any subcontractor in connection with the EE Materials or related thereto. For the avoidance of doubt, EE Materials include Usage Data, but do not include Customer Data. “EE Personnel” means all individuals involved in the provision of the EE Software or the performance of Services as employees, agents, or independent contractors of EE or any subcontractor. “EE Software” means any software application provided by EE to Customer (and its Named Users) for installation and use by Named Users on a personal computer or workstation, including Updates and also includes products and services provided under a free trial.
“Harmful Code” means code, software, hardware, files, scripts or other technology or programs intended to do harm or intended to prevent or impair the operation of any computer software, hardware or network from working as intended, including viruses, worms, malware, and Trojan horses. Harmful Code does not include any Compliance Verification Process.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. “Named User” means an employee of Customer who has a specific individual login configured to them that enables such individual to access and use EE Materials and for whom access to EE Materials has been purchased hereunder.
“Order Form” means an order form signed by both EE and Customer specifying the Services and EE Software to be provided under this Agreement. If an Affiliate of Customer enters into an Order Form with EE, such Affiliate agrees to be bound by the terms and conditions of this Agreement as if it were an original party to this Agreement.
“Professional Services” means any implementation, training, or other professional services provided by EE as specified in an Order Form or a statement of work agreed to by the parties and that references this Agreement. “Service Level Agreement” means EE’s Service Level Agreement made available to Customer at https://portal.energyexemplar.com/cloud-sla.

Agenda Page 44
“Services” means the products and services (including Compute Credits, Dataset Services, and Professional Services) that are ordered by Customer under an Order Form, including Updates and also includes products or services provided to Customer under a free trial.
“Third-Party Materials” means materials, services, software, solvers, add-ons, plug-ins, information, documents, data, content, specifications, products, or components that are incorporated into the EE Materials, but are not proprietary to EE.
“Updates” means corrections, bug fixes, patches, modifications, changes, updates, or enhancements to EE Materials, including as a result of (a) any suggestions or recommendations of Customer, or (b) being engaged to perform services for Customer.
“Usage Data” means data, information or other materials regarding how Customer uses EE Materials, including, for example, how many simulations Customer runs per day or how often Customer runs a simulation.

18. Miscellaneous.

18.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. This Agreement does not create any agency, partnership, joint venture, employment, or fiduciary relationship between the parties.

18.2 Public Announcements. Within thirty (30) days of the Effective Date, EE may issue an announcement, statement, press release, or other publicity or marketing materials relating to this Agreement. Except as set forth in the preceding sentence, neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement, without the prior written consent of the other party, provided, however, that EE may, without Customer's consent, include Customer's name and other indicia in EE’s lists of current or former customers in promotional and marketing materials.

18.3 Notices. Any notice required or permitted under this Agreement must be in writing, in the English language, and addressed to the other party at the address set forth in the Order Form (or to such other address that such party may designate). Except as otherwise specified in this Agreement, all notices will be deemed given upon (a) personal delivery; (b) receipt, if sent by overnight courier, signature required; or (c) if by email, when sent, except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices. Legal Notices shall be deemed received upon actual receipt. Invoice-related notices to Customer will be addressed to the relevant invoice contact designated by Customer.

18.4 Interpretation. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. For purposes of this Agreement: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. Unless the context otherwise requires, references in this Agreement: (x) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (y) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting a document. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

18.5 Exclusion of CISG and UCITA. The terms of the United Nations Convention in Contracts for the International Sale of Goods (CISG) and the Uniform Computer Information Transactions Act (UCITA) do not apply to this Agreement.

Agenda Page 45

18.6 Entire Agreement and Order of Precedence. This Agreement (including any Order Form, schedules, and Documentation) constitutes the entire agreement of the parties with respect to Customer’s use of EE Materials and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the following documents, the following order of precedence governs: (a) the Order Form, (b) the body of this Agreement, and (c) the Documentation. No confirmation, shipment or delivery docket, invoice or other similar document issued by or on behalf of Customer or EE (including the terms on any pre-printed purchase order form) will vary or form part of this Agreement or otherwise affect the rights or obligations of the parties.

18.7 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement (whether voluntarily, involuntarily, by operation of law, or otherwise) without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, that either party may assign or otherwise transfer this Agreement in connection with the sale of all, or substantially all, of the business or assets of that party. Any purported assignment, delegation, or transfer in violation of this section is void. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Notwithstanding the foregoing, EE may enter into a sub-contract with a third party for the performance of its obligations under this Agreement without the prior written consent of Customer. Any such sub-contract does not excuse EE from performing its obligations under this Agreement.

18.8 Force Majeure. In no event will either party be liable to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics, or explosion; (iii) war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; and (vii) strikes, work stoppages, or other industrial disturbances.

18.9 Amendment and Modification; Waiver. No amendment or modification of this Agreement will be effective unless agreed in writing and signed by authorized representatives of each of the parties. Except as otherwise set forth in this Agreement, no failure to exercise any right under this Agreement will be construed as a waiver thereof.

18.10 Severability. If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, the provision will be deemed null and void; provided that such unenforceability shall not affect any other term or provision of this Agreement. Upon such determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible.

18.11 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the laws of Utah without giving effect to any conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Each party submits to the exclusive jurisdiction of the federal or state courts located in Salt Lake City, Utah.

18.12 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 3.1, Section 3.3, or Section 9, could cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

Agenda Page 46
Staff Report – Agenda Item 3
To: Board of Directors
From: Jillian Nelson, Program Manager, Grid Management & Resiliency Approved By: Ted Bardacke, Chief Executive Officer
Subject: Amendment of Agreement for Demand Response Implementation Services with AutoGrid to Update the Scope of Services and related aspects of the Agreement
Date: February 1, 2024

RECOMMENDATION
Approve and authorize the Chief Executive Officer to execute an amendment to the agreement with AutoGrid, updating the services for the Power Response program as well as the budget for the 3 remaining one-year renewal terms with a total Not-To-Exceed amount of $3,266,935 for those remaining three years.

BACKGROUND
In September 2021, the Board approved an Agreement between CPA and AutoGrid1 for Demand Response (“DR”) Implementation Services under CPA’s Power Response Program (“Agreement”). The approved Agreement specified an initial term of 30-months beginning on September 3, 2021, and expiring on March 3, 2024 (“Initial Term”) and three successive one-year terms (“Renewal Terms”). The Board approved contract contained 1 Established in 2011, AutoGrid offers a suite of proprietary DER management software that allows them to optimize and dispatch flexible capacity from DERs in real time. They bring technology partnerships with trade allies that have deep market reach in CPA’s territory to drive customer acquisition, as well as experience delivering flexible capacity at scale. They have implemented DER flex capacity programs for major national utilities and have brought a network of trade allies to augment Power Response. Current trade ally partners include eGoogle Nest, ecobee, and Emerson (smart thermostats), Solar Edge (battery storage), and ChargePoint and Wallbox (EV charging).

Agenda Page 47
Board of Directors Item 3
an NTE in the amount of $3,149,600 for the Initial Term, but did not contain a budget or NTE for the Renewal Terms.

The Initial Term was designed to build a Power Response program structure that was accessible and provided benefits to CPA’s customers2 and to allow for two full summers of demand response activity. During this time, over 2,600 households were successfully enrolled, which includes over 1,700 automated smart connected devices and 1,100 homes participating manually through our behavioral demand response participation pathway.

In addition to the successful enrollment of customers, the Power Response Program expanded to launch several new opportunities for customers to participate. Currently, there are four distinct areas of Power Response including: “Home,” for residents who can manually adjust appliances to conserve; “Smart Home,” which allows residents to register networked smart devices that are auto-adjusted during energy saving events; “Commercial Leaders,” a way for businesses and public sector customers to receive incentives for their environmental leadership; and “Multifamily Community,” where property owners and residents of affordable multifamily housing communities can unite in reducing energy to earn money and create healthier communities.

PROPOSED AMENDMENT
To build upon the successes of the Power Response program, staff is prepared to exercise the renewal terms. As the approved NTE amount for the Initial Term is now set to expire with no NTE for the Renewal Terms, and in order to improve current participation pathways, expand several facets of the Power Response Program, and build upon the current offerings, staff is requesting approval of the NTE for the remaining three renewal terms and an updated scope of services. In addition, the amendment to the Agreement contains a number of clean-up changes to delineate between the Initial Term and the 2 Power Response is a demand response program that offers financial incentives to participating customers who reduce electricity usage during times of higher than projected energy demand. The program features four tracks in which to participate, making it available to all CPA customers so that everyone has the chance to save energy and receive incentives.

Agenda Page 48
Board of Directors Item 3
Renewal Terms, while ensuring the budget for each Renewal Term year is clearly distinguishable.

Scope of Work
The Scope of Work contemplated in the original Agreement has been updated to include additional expectations for the Renewal Terms. The amended Scope of Work is contained in Attachment B. AutoGrid will continue to hold primary responsibility for completing the work outlined in the Scope of Work, in collaboration with CPA. CPA will continue to retain oversight of program implementation, marketing, and trade ally selection and management, which will be critical to the quality and success of the program.

The following enhancements have also been added to the Scope of Work and are to be completed during the First Renewal Term and applied, where appropriate, to subsequent Renewal Terms:
 Customer Experience Improvements: CPA will transition to a new customer portal, providing a streamlined customer experience for recruitment, enrollment, and performance tracking for the Power Response Program. In addition, the SCE Rule 24 action step will be removed from the enrollment process to improve the customer experience for potential program participants.  Device Additions: New automated smart connected devices will be added to the Smart Home participation pathway as device options, including Wallbox EV chargers.
 Multifamily Community Program Changes: Improvements will be implemented to the existing Multifamily Community smart thermostat offering, including a new enrollment incentive for participating tenants. A new pilot will also be offered to our Multifamily Community customers, offering Flick smart light switches that encourages end-users to adjust their energy usage when energy on the grid is most expensive and/or carbon intensive.
 Commercial Partnerships: Partnerships with aggregators will be considered to expand the Commercial Leaders program's reach.

Agenda Page 49
Board of Directors Item 3
 Income Qualified Thermostat Availability: AutoGrid will work with CPA to develop a plan to increase the availability of smart thermostats to income qualified customers.

In addition to the planned updates for the First Renewal Term, AutoGrid will develop an Implementation Plan for each subsequent Renewal Term under the direction of CPA.

Term
The initial 30-month Agreement term will expire in March 2024. This Agreement may be renewed for three (3) successive twelve (12) month terms for a maximum of five and a half years (each 12-month term shall be referred to as a “Renewal Term”), unless either Party provides written notice at least one hundred eighty (180) days prior to the expiration of the Initial Term or each Renewal Term of its intent not to renew the term of the Agreement.

Program NTE
The total Power Response program NTE for three annual Renewal Terms, including customer incentives and trade ally payments, is $3,266,935. The revised budget is contained in Attachment C. This is on par with the contract’s Initial Term NTE of $3,149,600.3
The NTE is allocated as follows:
 $1,357,000 for Program Implementation & Services
 $377,735 for Trade Ally Device Fees
 $1,457,200 for Customer Incentives
 $45,000 for Final Reporting & Transition Costs (only applicable in final contract year)
3 In September 2021, the Board approved a contract NTE amount of $3,149,600 for the 30-month Initial Term. CPA is requesting an increase of approximately $100,000, for a contract NTE amount of $3,266,935 for a 3-year Renewal Term.

Agenda Page 50
Board of Directors Item 3
 $30,000 for Administrative Costs
The NTE for each renewal term is as follows:
 First Renewal Term: March 4, 2024 – March 3, 2025 with an NTE of $857,935  Second Renewal Term: March 4, 2025 – March 3, 2026 with an NTE of $1,104,500  Third Renewal Term: March 4, 2026 – March 3, 2027 with an NTE of $1,394,500

FISCAL IMPACT
The Board approved FY 2023-24 budget included a $1,427,483 allocation for the Power Response Program, sufficient to cover program costs for the beginning of the First Renewal Term. Costs for future years will be included in future budget proposals.

ATTACHMENTS
1) Amendment – Renewal Term
2) Exhibit A Redline – Scope of Services – Renewal Term 3) Exhibit B Redline – Work Plan – Renewal Term
4) Exhibit C Redline – Budget – Renewal Term
5) Exhibit E Redline –Trading Restrictions – Renewal Term

Agenda Page 51
A-2

AMENDMENT NUMBER ONE TO

AUTOGRID

DEMAND RESPONSE IMPLEMENTATION SERVICES AGREEMENT
This Amendment Number One (“AMENDMENT ONE”) to the Demand Response Implementation Services Agreement is made by and between Clean Power Alliance of Southern California (“CPA”) and AutoGrid Systems, Inc. (“CONTRACTOR”) on [Effective Date]. CPA and CONTRACTOR may individually be referred to herein as a “Party,” or collectively as the “Parties.”

RECITALS
WHEREAS, a Demand Response Implementation Services Agreement (“AGREEMENT”) was executed on September 3, 2021, between CPA and CONTRACTOR to provide professional services for Scheduling Coordinator and Demand Response Provider services to market, implement, and scale a comprehensive Distributed Energy Resources based demand response program; WHEREAS, CPA desires to amend the AGREEMENT in order to authorize the Renewal Term from March 3, 2024, through March 2, 2025 (the “First Renewal Term”), as set forth in Section 6 of the AGREEMENT;
WHEREAS, CPA desires to amend the AGREEMENT in order to update the scope of services set forth in Exhibit A, the contractor plan in Exhibit B, the compensation and budget set forth in Exhibit C, and the instructions regarding scheduling duties and restrictions in Exhibit E;
WHEREAS, CONTRACTOR has the competence and expertise to provide the professional services, described above; and,
WHEREAS, CONTRACTOR desires to continue providing and performing these professional services.

NOW, THEREFORE, it is mutually agreed by and between the Parties hereto to amend the AGREEMENT as follows:

1. Section 6 of the AGREEMENT is deleted in its entirety and replaced with the following:

6. Term.

Subject to compliance with all terms and conditions of this Agreement, the term of this Agreement shall be thirty (30) months from the Effective Date (“Initial Term”). At least 9 months prior to the expiration of the Initial Term, CPA and Contractor may renew this Agreement for three (3) successive twelve (12) month terms for a maximum of five and a half years (each 12-month term shall be referred to as a “Renewal Term”), unless either Party provides ninety (90) days prior written notice at least one hundred eighty (180) days prior to the expiration of the Initial Term or each Renewal Term of its intent not to renew

Agenda Page 52
A-2
the term of the Agreement (“Renewal Notice”). . The Parties agree and acknowledge that a Renewal Term has been renewed for the period beginning on March 3, 2024 and ending on March 2, 2025 (“First Renewal Term”). The Parties shall discuss in good faith a renewal of the Services, including any compensation for those Services for the Renewal Term. If compensation specified in Exhibit C requires an adjustment during a Renewal Term, then the compensation shall be within a commercially reasonable range of the rate card attached as Schedule 2 to Exhibit A to this Agreement.

2. The first sentence in Section 3 is deleted and replaced with the following:

In consideration of the payments set forth in this Agreement and in Exhibit C, Contractor for itself and on behalf of its subsidiary, subsidiary Energy AI Systems as well as its(a) the entity and any successor entity that shall provide scheduling coordinator services under this Agreement (“Scheduling Coordinator”) and (2) the Trade Allies listed in Schedule 1, as that schedule may be amended from time to time, shall use commercially reasonable efforts to perform services for CPA in accordance with the terms, conditions, and specifications set forth in this Agreement and in Exhibits A and B (“Services”).

3. All usages of the capitalized term “Scheduling Coordinator” in Section 4.a. shall be deleted and replaced with the non-capitalized term “scheduling coordinator”.

4. The first paragraph of Section 4.b. is deleted and replaced with the following:
b. Contractor Performance Obligations. Contractor represents and warrants that Contractor, Scheduling Coordinator, and its subsidiary, Energy AI Systems and itsthe Trade Allies, as applicable, have the professional and technical personnel required to perform the Services and will perform the Services in a good, efficient, competent, and commercially reasonable manner, and in accordance with (i) all applicable industry practices (ii) instructions from CPA, (iii) all applicable laws, including CAISO Protocols, (iv) the terms of this Agreement, and, (v) CPA risk management policies and protocols a link to the policies are available here: https://cleanpoweralliance.org/key-documents/ including but not limited to policies and protocols relating to energy risk management and customer data and privacy, as those policies and protocols may be amended by CPA from time to time. Contractor shall execute any required acknowledgements of such policies and protocols as those policies and protocols are amended from time to time.

5. The third paragraph of Section 4.b. is deleted and replaced with the following:

Contractor acknowledges and agrees that Contractor has authority to bind its subsidiary Energy AI SystemsScheduling Coordinator, a registered Demand Response Provider (DRP) and Distributed Energy Resource Provider (DERP) Service provider, to perform the Services specified in this Agreement. Contractor further agrees that Contractor shall be solely responsible for any errors, omissions, or liability arising from the performance of the Services provided by its subsidiary Energy AI SystemsScheduling Coordinator and the Trade Allies.

6. Exhibit A of the AGREEMENT is deleted in its entirety and shall be replaced with Exhibit A (Scope of Work), attached hereto as Attachment 1.

Agenda Page 53
A-2

7. Exhibit B of the AGREEMENT is deleted in its entirety and shall be replaced with Exhibit B (Contractor Workplan), attached hereto as Attachment 2.

8. Exhibit C of the AGREEMENT is deleted in its entirety and shall be replaced with Exhibit C (Compensation and Budget for the First Renewal Term), attached hereto as Attachment 3.

9. Exhibit E of the AGREEMENT is deleted in its entirety and shall be replaced with Exhibit E (Instructions to AutoGrid Regarding Scheduling Duties and Restrictions in California), attached hereto as Attachment 4.

10. Except as specifically amended hereby, all other terms and conditions of the AGREEMENT shall remain in full force and effect.

IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT ONE to be executed as of the date first above written.

CLEAN POWER ALLIANCE OF SOUTHERN CALIFORNIA
By
______________________________________
Theodore Bardacke
Chief Executive Officer
CONTRACTOR: AUTOGRID SYSTEMS, INC.
_______________________________________
By
Ruben Llanes
CEO

Agenda Page 54

EXHIBIT A

SCOPE OF SERVICES
Under the direction of the CPA Director of Customer Programs and Power Response Program Manager, AutoGridContractor shall perform the following demand response program implementation tasks in accordance with the Contractor Workplan timetable set forth in Exhibit B:.

For the purposes of this Exhibit A, each Renewal Term will be defined as follows:
● First Renewal Term: March 4, 2024 – March 3, 2025
● Second Renewal Term: March 4, 2025 – March 3, 2026
● Third Renewal Term: March 4, 2026 – March 3, 2027
I. Pre-Implementation Planning and Implementation Plan
A. Pre-Implementation Planning: (Initial Term)
Starting on the Effective Date, AutoGridContractor to review current Power Response pilot program details and provide recommendations for program modification including but not limited to incentive levels, incentive delivery, event duration and frequency, CAISO market participation strategy for enrolled resources, and technology options.

B. Implementation Plan (Initial Term)
In consultation with, and under the guidance of, CPA programs staff, AutoGridContractor to develop an Implementation Plan to enroll a minimum of 6 MW of demand response capacity in the CPA-branded Power Response program within two years of implementation, with continuous annual growth as permitted by DER market penetration of selected Trade Allies and CPA program budget. For the purposes of this Agreement, Trade Allies shall be defined as a manufacturer, vendor, developer, installer, or aggregator of Distributed Energy Resource (DER) technologies.

The Implementation Plan shall provide a roadmap to reach a minimum of 6 MW of demand response enrolled capacity and must include the following elements:
● Overall approach to program implementation and enrolled capacity target of 6 MW, with subgoal of 1 MW of that capacity from enrollment of customers

Agenda Page 55
taking service on CARE/FERA rates or customers located in Disadvantaged Communities within CPA territory1
● Program design
● Customer segmentation
● Technology types
● Trade Ally Network development (see Section III) and customer acquisition strategy
● Projected aggregated valuation of enrolled Demand Response (DR) capacity ● Program goals, Key Performance Indicators (“KPIs”), and metrics ● Detailed budgets and anticipated spend rates
● CAISO market participation strategy, including bidding strategy recommendations, market operations protocols, and market performance reporting
● Plan to integrate up to 1,000 customers that have already enrolled in the Power Response Pilot Program into the fully implemented program CPA is open to implementation approaches to meet this level of enrolled DR capacity, but the Implementation Plan must, at a minimum:
● Include offerings for both commercial and residential customers ● Include smart thermostat and battery storage demand response options for residential customers
● Include Electric Vehicle (EV) charging and commercial battery storage demand response options for commercial customers
● Provide CPA with the ability to call at least 3540 demand response events per year per enrolled customer
● Address Trade Ally network expansion plan and direct load control potential in CPA territory
● Address how to meet enrolled capacity goal of 1 MW for low-income customers (defined as taking service on CARE or FERA rates) and those living or located in Disadvantaged Communities (“DACs”) through both Bring Your Own Device (BYOD) and newly installed Trade Ally residential thermostat outreach.
● Implement multifamily smart thermostat DAC DR pilot for 2-3 apartment buildings located in DACs in CPA territory.
● Describe how Power Response enrolled demand response capacity can generate wholesale market or Resource Adequacy (“RA”) value to CPA beyond avoided wholesale energy purchases and best-fit paths for profit 1 Disadvantaged Communities as defined by California SB 535 refer to the areas throughout California which have a combined economic, health, and environmental CalEnviroScreen score in the top 25th percentile.

Agenda Page 56
maximization (e.g., PDR, load modification, ancillary service offerings, etc.) depending on the nature of DR resources in CPA’s portfolio. ● Define options for customer portability at the end of Term. ● Use AutoGrid Flex as database of customer records.
● Describe any competing commitments on any aggregated DR resource in the program capacity portfolio limiting CPA’s program flexibility.

C. Rollout of Residential Behavioral Demand Response (BDR) Program (Initial Term)
● AutoGridContractor to provide the ability to enroll interested customers into a residential BDR program.
● AutoGridContractor to dispatch BDR events by sending SMS and/or emails to registered homeowners. Messaging to be approved by CPA.

CPA may consider additional implementation approaches or elements, provided that nothing considered by CPA will change AutoGrid’sContractor’s requirement to meet the minimum requirements specified in this Section I.

Deliverable(s):

1. Implementation Plan that meets the requirements of Section I and is acceptable to CPA.

D. Implementation Plan (Renewal Terms)
In consultation with, and under the guidance of, CPA programs staff, Contractor will continue operating under the Initial Term’s Implementation Plan (Section I.B).

In addition to compliance with the Initial Term’s Implementation Plan, Contractor will develop an Implementation Plan for each Renewal Term to enroll and maintain an additional 2 MW of demand response capacity in the CPA-branded Power Response program (“Enrollment Target”), to reach a total of 4 MW of maintained capacity by the end of the First Renewal Term, with continuous growth as permitted by DER market penetration of selected Trade Allies and CPA program budget. For any Renewal Term subsequent to the First Renewal Term, (1) either Party may reasonably request a change to the Enrollment Target, provided that such request must be provided in writing to the other Party at least one hundred eighty (180) days prior to the expiration of a Renewal Term, (2) such Enrollment Target changes are mutually agreed upon by both Parties, and (3) the changes to the Enrollment Amount do not result in a budget that exceeds the NTE Amount, as defined in Exhibit C to this Agreement.

Agenda Page 57
The Implementation Plan for each Renewal Term shall provide a roadmap to reach the agreed upon goal of demand response enrolled capacity for the term and must include the following elements:
● Plan to enroll the Enrollment Target, with subgoal of at least 15% to 20% of that capacity of the Enrollment Target to come from enrollment of customers taking service on CARE/FERA rates or customers located in Disadvantaged Communities within CPA territory2.
● Overall approach to the continued operation of existing program offerings.

This includes all program pathways created during the Initial Term: Smart Home, Home, Multifamily Community, and Commercial Leaders. ● Detailed plan and schedule, including program design, for any new program offerings added or updated during the Renewal Term. Program designs must include detailed plans on incorporation of new technologies or trade allies, and detailed user experience flows.
● Updated forecasts projecting number of enrollments and the valuation of their enrolled Demand Response capacity for all participation pathways and device offerings. Forecasts to be updated following any new addition to the program. ● Updated budgets and anticipated spend rates for existing program offerings continuing operation in the Renewal Term, as well as the addition of any new offerings added to the program. Budget forecast to be updated following any new addition to the program. Changes to the budget may not exceed the NTE Amount, as defined in Exhibit C to this Agreement.

The following adjustments shall be made by April 30, 2024:
● Customer Portal and Recruitment Tool Upgrade
o CPA will transition from AutoGrid Engage to FlexSaver for the purpose of providing a streamlined customer experience for recruitment, enrollment, and performance tracking for the Power Response Program. o FlexSaver will be customizable and designed for Power Response under the guidance of CPA staff. FlexSaver will be branded as CPA and will incorporate CPA messaging in the landing pages.
o Existing users will be provided an option to register into FlexSaver. o Contractor will offer a consumer-to-consumer referral program, with the incentive to be set by CPA.
● Rule 24 and ShareMyData Removal
o Contractor to implement the transition from Rule 24 meter data transfer to CPA Snowflake meter data transfer.
o Interactions with CAISO will remain unchanged.
o Contractor will comply with any data sharing requirements, under the guidance of CPA staff.
2 Disadvantaged Communities as defined by California Environmental Protection Agency. .

Agenda Page 58
● Device Additions
o Contractor will add Wallbox EV charger as a new device partner to the Smart Home program pathway. The same parameters will be used as other EV chargers in the program. Any changes to the parameters will require written approval from CPA.
o Additional devices and partnerships may be added throughout the renewal term with written approval from CPA.
● Multifamily Community Program Changes
o Under the direction of CPA, Contractor will implement improvements to the existing Multifamily Community smart thermostat offering, including a new enrollment incentive for participating tenants.
o Contractor will add Flick Smart Light Switches as a program option for the existing Multifamily Community pathway. AutoGrid will coordinate with OEM to confirm device installations and to enroll Multifamily recipients in Power Response. For those who enroll in Power Response, Contractor will configure event / dispatch messages and provide DR reporting to CPA.
● Commercial Partnerships
o Contractor will work to partner with aggregators, when possible and under the guidance of CPA staff, to expand the Commercial Leaders pathway. ● Availability of Income Qualified Thermostats
o Contractor will work to increase the availability of thermostat OEMs to the LMI community, presenting a plan and strategy to CPA for approval.

II. Marketing Activities
A. Marketing Plan (Initial Term)
● Concurrent with the development of the Implementation Plan, AutoGridContractor shall conduct market research that will include:
o Customer segmentation analysis of both residential and commercial customer groups
o Customer interviews, surveys, or focus groups
o Utilize customer segmentation, interviews, surveys or focus groups in BDR planning
o Examination of DER market share in CPA territory by program technology and Trade Ally
o Competitive demand response landscape analysis
● The market research should inform the Implementation Plan. ● Utilizing the insights gained from market research, review current Power Response marketing materials/strategies, and best practices and lessons-learned from past experiences to inform and adapt the Marketing Plan as appropriate.

Agenda Page 59
● Develop and execute a comprehensive program Marketing Plan under the strategic guidance and oversight of CPA. Marketing plan must address the following:
o Measurable objectives pertaining to customer acquisition and reach for each Trade Ally, program customer segment, and technology type o Residential and commercial marketing and acquisition strategies o Target program audiences and identification of eligible customers o Roles and responsibilities of CPA and selected Proposer in marketing implementation
o Role of Trade Allies in marketing (see Section III)
o Marketing budget and anticipated spend rates
o Marketing metrics
Deliverable(s):

1. Comprehensive Marketing Plan for all customer segments and technologies that meets the requirements of this Section II.A. and is acceptable to CPA.

B. Marketing Plan Execution (Initial Term)
● Implement the Marketing Plan in partnership with CPA and Trade Allies. o CPA and AutoGridContractor to conduct direct customer outreach for Commercial and Industrial customer (C&I) recruitment
o All other Trade Allies will directly contact their customers and share information about program participants with CPA and
AutoGridContractor
● Collaborate with and leverage Trade Ally marketing activities and AutoGridContractor to coordinate activation of potential CPA customer participants through existing Trade Ally partnerships and direct customer outreach.
● Coordinate and hold regular, but no less than once a quarter, marketing-specific check-ins with CPA team to review marketing metrics and budget spend
● Conduct regular, but no less than once a quarter, marketing strategy reviews and if necessary, make recommendations for changes
● Each program year, AutoGridContractor to provide the following services:
o Summary of results and analysis of annual customer survey of at least 500 customers in CPA’s service territory
o Summary of results and analysis for up to two focus groups of up to 20 participants, with CPA providing input on the questions o Input to the program’s marketing plan for behind the meter battery deployment, including:
▪ Battery storage penetration rates in the year preceding the start of the program
▪ Identification of program audiences within CPA’s territory

Agenda Page 60
Deliverable(s):

1. List of ChargePoint and other Trade Ally customers in CPA territory that accept to participate in the CPA program.

2. Yearly survey and focus group data and findings

3. Hold regular, but no less than once a quarter, meetings as specified in this Section II.

C. Marketing Activities (Renewal Term)
● All Trade Allies will directly contact their customers, sharing necessary information about program participants and marketing performance with CPA and Contractor. Contractor and CPA will continue to oversee the marketing implemented by Trade Allies.
o Contractor will collaborate with and leverage Trade Ally marketing activities whenever possible to enroll new participants in Power Response.
● CPA and Contractor will continue to conduct direct customer outreach for Commercial and Industrial customer (C&I) recruitment. If new partnerships are developed for C&I offerings, AutoGrid will work with such partners on incorporating customer outreach.
● Contractor will continue to manage all customer interactions related to the Power Response Program, responding to customer inquiries and resolving issues in a timely manner. This includes all inbound calls3 to the call center and emails to the [email protected] inbox. ● Contractor will log all interactions with customers and provide report to CPA on a monthly basis, in a format to be determined and approved by CPA. ● Coordinate and hold regular, but no less than once a month, marketing specific check-ins with CPA team to review marketing strategy and make recommendations for changes. Meetings topics to include:
o Marketing metrics and Google Analytics results from user experience enrollment flow.
o Tracking of Trade Ally email marketing.
o Reporting of customer interactions from call center and managed Power Response inbox.
3 Call center hours are 9:00am to 5:00pm Pacific on non-holiday weekdays; all voicemails will be returned no later than 48 hours after they are received.

Agenda Page 61
III. Trade Ally Network Development Services and Planning A. Trade Ally Network Development (Initial Term and Renewal Terms) AutoGridContractor shall develop a qualified network of Trade Allies on CPA’s behalf to acquire potential customers into the Power Response program. ● In addition to Trade Allies specified in Proposal, Exhibit D, AutoGridContractor and CPA will create a Trade Ally acquisition process to engage new trade allies in the Power Response program. See Deliverable 1 in this Section III. ● Trade Allies may include DER technology manufacturers, vendors, developers, aggregators, or installers.
● Acquired customers into the program may include those with existing installed technology that just need to be enrolled in demand response, or those installing new technologies.
● Build upon Trade Ally customer acquisition market activity by leveraging combined CPA, AutoGridContractor, and Trade Ally Program marketing, education, and outreach tactics.
● Facilitate Distributed Energy Resource Management systems (DERMS) integration of Trade Ally technologies to enable direct load control options.

Deliverable(s):

1. Establishment of DERMS Trade Ally Network interfaces. As of the Effective Date, AutoGridContractor must integrate the following Trade Allies to AutoGrid’sContractor’s DERMS platform: ChargePoint, ecobee, Emerson, Sunnova, and Google Nest. (applicable for Initial Term only). During the First Renewal Term, Contractor must integrate the following Trade Allies to Contractor’s DERMS platform:

ChargePoint, ecobee, Emerson, Google Nest, Wallbox.

2. AutoGridContractor must seek CPA’s prior written approval of any change to the integrated Trade Ally network.

3. Provide CPA written confirmation from each Trade Ally of readiness to enroll and dispatch CPA customers.

B. Trade Ally Network Planning and Monitoring (Initial Term and Renewal Terms) AutoGridContractor to produce a Trade Ally Plan and Roadmap that contains all of the following:
● In addition to Trade Allies specified in Proposal, Exhibit D, AutoGridContractor and CPA will create a Trade Ally acquisition process to engage new trade allies in the Power Response program. See Deliverable 1 in this Section III. ● Work with CPA to identify additional commercial EVSE and battery DR trade allies beyond those proposed in Proposal and Best and Final Offer (BAFO) for

Agenda Page 62
program integration. Program integration would depend on AutoGridContractor product roadmap.
● Establish roadmap for timeline and projected costs to integrate additional Trade Allies specified as optional in the BAFO into the CPA Power Response program, including, Emerson, Sunrun, Schneider, SolarEdge, EATON, IMS Evolve, Schneider, and Flo, as well as others defined through ongoing coordination.
● Under the direction of CPA, develop Trade Ally selection criteria and Quality Control and Assurance standards protocols with CPA providing oversight, input, and final approval on new Trade Ally selection. Trade Allies should meet ongoing minimum criteria that will be established by CPA in collaboration with AutoGridContractor but must include two or more of the following elements:
current licensing, insurance, minimum customer service levels, and safety records.
● Training plan for on-boarding Trade Allies, including marketing training, and for providing ongoing support with a remote option to comply with local health and safety standards, if necessary.

AutoGridContractor to create tracking system of participating Trade Allies to include company information, applicable licenses and insurance, and contacts. In particular, the following will be tracked:
a) Main point of contact for each Trade Ally
b) All electrical work to be performed by electricians that are licensed to work in the state of California
c) All companies to be bonded
d) All companies performing work on a homeowner or company site to carry workers compensation
● Tracking system must include metrics for participants, including participation rates, pending and completed project information, and other metrics to be determined.
● Tracking system data must be made available to CPA by quarterly reporting or through online data portal.

Deliverable(s):

1. Delivery of Trade Ally Plan and Roadmap that meets the requirements of this Section III.B. and is acceptable to CPA.

2. Delivery of Trade Ally Tracking System that meets the requirements of this Section III.B and is acceptable to CPA.

Agenda Page 63
IV: Program Implementation, Operations, and Evaluation (Ongoing) A. Implementation Plan Execution and Program Administration (Initial Term and Renewal Terms)
AutoGridContractor shall execute the Implementation Plan and manage all aspects of program implementation under the direction and oversight of CPA staff. These aspects shall include, but are not limited to:
● Launch Enrollment Campaign for Legacy Pilot Thermostat Customers:
o Work with Trade Allies to launch Enrollment Campaign for already-enrolled legacy thermostat customers to encourage them to switch to the new program.
o Work with CPA and Power Response pilot implementer if needed to integrate existing pilot customers into the new program and transfer CAISO registration details.
● CPA to complete Google’s security questionnaire; AutoGridContractor to assist.
● Conduct operations of the Power Response Program, including, at a minimum:
o Customer verification, enrollment, and SCE Rule 24 meter data transfers. CPA to provide AutoGridContractor with weekly filefiles of active CPA customers for AutoGridContractor to verify program eligibility.
o Management of enrolled resources utilizing universal DERMS platform with standard Amazon Web Service security package.
o Commercial customer pre-enrollment technological support if required by customer.
o Deployment of mobile application or promotion of Trade Ally mobile applications for residential customer enrollment, event notifications, usage tracking, etc. This mobileFlexSaver will be used as the web application may beand white-labeled for CPA Power Response. o Demand response events scheduling, dispatch, customer notifications, and performance reporting to CPA. CPA staff shall have the option to schedule and dispatch events, but AutoGridContractor will be default manager of this process.
o Customer incentive payment verification, processing, and reporting o Customer service and communications conducted via AutoGrid Flex.

CPA must have access to a centralized database of Power Response customers.
o Work with CPA Data Manager at direction of CPA staff to exchange only necessary customer eligibility and billing data, process bill credits for incentive payments, if applicable, and coordinate customer service processes as needed. CPA is unable to provide real time meter data to trade allies.

Agenda Page 64
Deliverables

1. Launch of Enrollment Campaign for legacy thermostat customers as specified in this Section IV.A.

2. CRM Solution Deployment as specified in this Section IV.A.

3. Successful enrollment of 68 MW of dispatchable DR capacity, including at least 1 MW of commercial capacity and 1 MWat least 15% to 20% of that capacity to come from enrollment of customers taking service on CARE/FERA rates or customers located in Disadvantaged Community capacity Communities within CPA territory by Year 3, at the following schedule, demonstrated by proof of successful Rule 24 data transfer:end of the Third Renewal Term.
a. Year 1: 1.6MW total
b. Year 2: 4.6 MW total
Year 3: 6 MW total
B. Demand Response Provider (DRP) and Distributed Energy Resource Provider (DERP) Services (Initial Term and Renewal Terms)
AutoGridContractor shall perform all necessary functions enabling CAISO market integration of CPA’s Demand Response Resource including but not limited to:
● Retaining a registered DRP/DERP. As of the Effective Date, Energy AI SystemsDecember 1, 2023, APX is authorized to serve as a the registered DRP/DERP and any change of DRP/DERP is subject to CPA’s prior written approval.
● DRP/DERP services to bid demand response resource capacity in the CAISO day-ahead, real-time, or ancillary services markets using the bidding strategy developed in consultation with CPA, as well as handling of settlements validation and reporting (See C. Scheduling Services for Demand Response Resource, below).
● CAISO registration of enrolled DER/DR resources via Demand Response Registration System (“DRRS”) and notification to customers of any third-party conflicts; customer assistance with conflict removal as needed. ● Aggregation, management, and value analysis of enrolled DERs (“Demand Response Resource”) including analysis of market eligibility of Demand Response Resource by Sub LAP.
● Event baseline and performance calculations for CPA’s Demand Response Resource.
● Complete any necessary steps to enable CPA to count its Demand Response Resources for Resource Adequacy, including completion of any Load Impact Protocol studies and reports, submissions to effect load modification, or other RA implementation services, as applicable. ● Meter data management and telemetry services as needed.

Agenda Page 65
● Facilitate the submission of market inputs and receipt of dispatch notifications from the CAISO.
● Provide monthly summary reports detailing CAISO transactions in a mutually agreed upon format, including customer and financial performance. ● Any other DRP/DERP services that are required by CAISO, CPUC, or other regulatory entity, in order to effectuate market participation of the Demand Response capacity.

Deliverables

1. Monthly Reporting in a format acceptable to CPA, including:
a. Monthly DR Resource Value Analysis
b. Monthly CAISO transaction reporting including retail and wholesale performance data
C. Scheduling Services for Demand Response Resource (Initial Term and Renewal Terms)
AutoGridContractor shall perform the following functions for CPA’s Demand Response Resource(s):
● Retain the services of a certified CAISO Scheduling Coordinator. As of the Effective Date, Energy AI SystemsDecember 1, 2023, APX is authorized to serve as a certified CAISO Scheduling Coordinator (SC)scheduling coordinator and any change in SCscheduling coordinator shall be subject to CPA’s prior written approval.
● Utilizing the CPA SCID, perform all applicable required functions of a Scheduling Coordinator, including emergency operational actions, all scheduling and bidding functions in the applicable market(s), and RA and Supply Plan filings.
● Perform all CAISO and WECC scheduling functions for CPA in Day-Ahead and Real-Time markets on a 24/7, 365 days per year basis, for the Demand Response Resource, subject to market availability and operational limitations of the Demand Response Resource. Manage the interface with the CAISO for bidding the Demand Response Resource on CPA’s behalf.
● Resource Management: At CPA’s discretion, execute bidding and dispatch strategies for CPA’s Demand Response Resource(s) to maximize the value of CPA’s resource portfolio in the CAISO market.
● Market Monitoring: Monitor CAISO market activities and communicate to CPA information pertaining to such CAISO market activities that may impact CPA or be of interest to CPA.
● Shadow Settlements and Reconciliation: Shadow settle all CAISO settlement statement versions; analyze discrepancies found between

Agenda Page 66
AutoGrid’sContractor’s settlement statements and CAISO’s settlement statements and will report any significant discrepancies to CPA.

AutoGridContractor will be given parameters for further investigation of such discrepancies and filing of disputes with CAISO. For discrepancies falling within CPA’s parameters, AutoGridContractor should anticipate filing disputes at CPA’s cost with CAISO on behalf of CPA, managing these disputes with CAISO, and providing monthly status reports to CPA on all filed disputes as well as reviewing all additional CAISO settlement statements to verify CAISO has made requested changes to prior statements and verifying the accuracy of any additional CAISO charges and credits. AutoGridContractor will receive from CAISO historic and real time data collected by CAISO from, or provided to CAISO by, CPA and be given access to CPA’s SCID at CAISO to review CAISO’s bills and settlement statements.
● Assist in data collection for CPA’s regulatory reporting; timely provide to CPA all information that is reasonably requested by CPA for CPA’s regulatory or governmental reports. CPA will be responsible for required state, federal, or regional reports applicable to its licenses and business interests. ● Any other Scheduling services that are required by CAISO in order to effectuate market participation of the Demand Response capacity.

Deliverables:

1. Monthly Reporting in a format acceptable to CPA, including:
a. Performance / Settlements Reporting: Validate all CAISO invoices, including performing CAISO shadow settlements, and provide event validation reports for days in which Demand Response Resource bids were submitted (with month-to-date information) to CPA. Contractor will provide a monthly report detailing all historic charges and credits by charge code and by month.
b. Market Performance Reporting: Prepare and provide to CPA in a mutually agreed upon format event summary and monthly summary reports on Demand Response Resource performance metrics. Reports should include graphical representation of key metrics and underlying data, including interpretation of market settlementssettlement data relative to performance.

D. Overall Program Performance and Evaluation (Initial Term and Renewal Terms) ● Meet regularly with CPA staff, but no less than once a month, to review progress toward program goals and market performance, and recommend necessary program adjustments.

Agenda Page 67
● Develop a dashboard that provides CPA staff with mutually agreed upon monthly reporting. Examples of potential reporting metrics/KPIs include:
o Budget spend rates
o Enrollment levels
o Performance of marketing strategies and tactics including but not limited to impressions, conversion rates, etc.
o Customer performance, aggregate kWh reductions, and avoided wholesale costs
o Enrolled demand response resource financial valuation and financial performance, including program cost effectiveness
● Develop data visualizations for monthly reporting as requested by CPA staff. ● Provide comprehensive quarterly and annual reports describing overall program performance.
● Each year 30 days prior to the anniversary of contract signature, CPA and AutoGridContractor shall conduct a Joint Management Review of the Power Response program. This management review will include CPA’s Chief Operating Officer, Director of Customer Programs, and Power Response program manager, as well as AutoGrid’sContractor’s Program Manager and Customer Success Manager. This management review will cover the annual program performance reports, establish workplan for the coming contract year, and evaluate potential adjustment of program goals and budgets.
● Comprehensive final report due October 2023four months prior to the expiration or termination of the Agreement evaluating program performance throughout the Term. Report shall contain:
o Comprehensive reporting of KPIs
o Program valuation
o Total program spend by type
o Trade Ally status updates
o Future program growth projections and valuation
o Market and regulatory outlook for Demand Response
Deliverables:

1. Monthly, quarterly, and annual reporting as agreed upon in consultation with CPA staff

2. Annual Joint Management Reviews

3. Delivery of Final Report that meets the requirements of this Section IV.D and is acceptable to CPA

Agenda Page 68
V. Transition Services
A. Transition Services
Commencing 90 days prior to the expiration or termination of this Agreement and continuing until such time as the transition services are complete, AutoGridContractor shall perform the following transition services at no additional cost to CPA above the $45,000 specified in Exhibit C of this Agreement:
● Develop and deliver a transition plan 60 days prior to expiration of termination of this Agreement.
● Transfer all CPA Product in a form usable by CPA or the new implementation provider with the exception of any customer data not permitted to be transferred to CPA under applicable law and regulation. ● If needed, release all registered CPA customers for transition to new implementation provider, if applicable.
● Support transition, as may be reasonably directed by CPA, to new implementation provider, if applicable.
● In the event of a termination prior to the expiration of the Initial Term, delivery of Final Report as described in Section IV.D of this Exhibit A. ● Closeout and transition of CAISO settlement reporting in a manner that does not prejudice CPA.
● Cooperate in a commercially reasonable manner with all parties involved in transition.

CPA shall not be responsible for the removal of any installed telemetry or other equipment.

Agenda Page 69
Schedules:

1. Schedule A-1 – List of Contractor’s Trade Allies approved by CPA on the Effective Date.

2. Schedule A-2 – Contractor’s Rate Card

Agenda Page 70
Schedule A-1
List of Planned Trade Allies
AutoGrid is planning the use of the following Trade Allies 1) Wallbox
2) ChargePoint
3) Google Nest
4) Ecobee
5) Emerson
6) SolarEdge
7) Flick

Agenda Page 71
Schedule A-2
AutoGrid Rate Card
Role Hourly rate (USD)
Solution Architect 230
Quality Assurance 180
Professional Services Engineering 200
Project Management 200
Production/Development Operations 220
Product Management 200
Data Scientist 250
Consultant 230
Business Analyst 180

Agenda Page 72

EXHIBIT B

CONTRACTOR WORKPLAN
I. High level workplan capturing key agreement milestones.

Event Date Responsible Parties
Contract Year 1
Contract Signing September 2, 2021 AutoGridContractor and CPA
Kickoff Meeting Week of September 7 AutoGridContractor and CPA
Pre-Implementation Planning
(Section I, Exhibit A)
September 7, 2021 -
October 31, 2021
AutoGridContractor and
CPA
AutoGridContractor has formal
agreements for CPA with
Sunnova, Google, Emerson,
ecobee, and ChargePoint
No later than October-15-2021AutoGridContractor
Draft Implementation Plan Due
to CPA (Section I, Exhibit A)
Draft Trade Ally Plan and
Roadmap due to CPA (Section
III, Exhibit A)
October 31, 2021 AutoGridContractor
Implementation Plan Finalized
(Section I, Exhibit A)
Trade Ally Plan and Roadmap
Finalized (Section III, Exhibit
A)
November 15, 2021 AutoGridContractor and
CPA
Year 1 Survey Data and Focus
Group Studies Due (Section II,
Exhibit A)
December 15, 2021 AutoGridContractor,
Sunnova
Draft Marketing Plan Due
(Section II, Exhibit A)
January 15, 2021 AutoGridContractor

Agenda Page 73
Marketing Plan Finalized
(Section II, Exhibit A)
January 30, 2021 AutoGridContractor and
CPA
Launch enrollment campaign
of legacy thermostat
customers (Section IV, Exhibit
A)
Completed no later
than December 1, 2021
AutoGridContractor
Setup of AutoGrid Flex tenant
for CPA including interfaces to
Sunnova, Google, ecobee,
Emerson, and ChargePoint
(Section III, Exhibit A) and
setup of AutoGrid Engage for
use in the BDR program.

Completed no later
than December 1, 2021
AutoGridContractor
Complete enrollment of 1.6
MW of dispatchable capacity
into AutoGrid Flex. (Section
IV.A, Exhibit A)
Note: CAISO registrations will
become effective no fewer
than 75 days after the CAISO
location creation process is
complete, including any
applicable incumbent DRP
defense and SCE validation
processes.

No later than
December 31, 2021
AutoGridContractor
Contract Year 2
Implement Monthly Program
Reporting (Section IV, Exhibit
A)
January 2022 AutoGridContractor
Implement Monthly Scheduling
Coordination and DRP/DERP
Reporting (Section IV, Exhibit
A)
January 2022 AutoGridContractor
Program recruitments for all
thermostats, batteries, and EV
chargers
January 1, 2022 –
March 31, 2022
Device and BDR enrollments Continuous starting
from January 1, 2022
AutoGrid Contractor,
Sunnova, ecobee,
ChargePoint, Google Nest,
Emerson

Agenda Page 74
Residential Battery Dispatches
Begin
January 2022 -
Ongoing
AutoGrid, Energy AI
Systems Contractor,
Scheduling Coordinator
Begin Enrollment of
Commercial Capacity (Section
IV.A, Exhibit A)
Beginning April 2022 AutoGrid Contractor
Complete enrollment of 4.6
MW of dispatchable capacity.
(Section IV.A, Exhibit A)
No later than May 2022 AutoGrid Contractor
Google security questionnaire
is completed
No later than April-2022AutoGrid Contractor and
CPA
Dispatches begin for the
summer season
May 2022 AutoGrid, Energy AI
Systems Contractor,
Scheduling Coordinator
First Management Review
(Section IV, Exhibit A)
August 2022 AutoGrid Contractor and
CPA
Dispatches end for summer
season
October 2022 AutoGrid, Energy AI
Systems Contractor,
Scheduling Coordinator
Year 2 Survey Data and Focus
Group Studies Due (Section II,
Exhibit A)
November 1, 2022 AutoGrid Contractor,
Sunnova
Contract Year 3
Complete enrollment of 6 MW
of dispatchable capacity.
(Section IV.A, Exhibit A)
No later than May 2023 AutoGrid Contractor
Dispatches start for the
summer season
May 2023 AutoGrid, Energy AI
Systems Contractor,
Scheduling Coordinator
Dispatches end for summer
season
October 2023 AutoGrid, Energy AI
Systems Contractor,
Scheduling Coordinator
Final Management Review
(Section IV, Exhibit A)
August 2023 AutoGrid Contractor and
CPA
Draft Final Report Due
(Section IV, Exhibit A)
October 2023 AutoGrid Contractor

Agenda Page 75
Final Report Finalized (Section
IV, Exhibit A)
November 2023 AutoGrid Contractor and
CPA
Year 3 Survey Data and Focus
Group Studies Due (Section II,
Exhibit A)
November 1, 2023 AutoGrid Contractor,
Sunnova
First Renewal Term
FlexSaver implementation to
begin for smart thermostat, EV
chargers, battery, and BDR
program to recruit new
customers (Section I.D, Exhibit
A)
Feb-2024 Contractor
FlexSaver Portal to go live for
new customers (Section I.D,
Exhibit A)
April 2024 Contractor
Invite current customers to
register with FlexSaver
(Section I.D, Exhibit A)
April 2024 Contractor
Add WallBox as an eligible
technology (Section I.D,
Exhibit A)
March 2024 Contractor and Wallbox
Add Flick as an eligible
technology (Section I.D,
Exhibit A)
March 2024 Contractor and Flick
Dispatches start for the
summer season
May 2024 Contractor, Scheduling
Coordinator
Annual Joint Management
Review (Section IV, Exhibit A)
May 2024 Contractor & CPA
Dispatches end for summer
season
October 2024 Contractor, Scheduling
Coordinator
Dispatches start for the winter
season
November 2024 Contractor, Scheduling
Coordinator
Annual Joint Management
Review (Section IV, Exhibit A)
December 2024 Contractor and CPA
Dispatches end for winter
season
April 2025 Contractor, Scheduling
Coordinator

Agenda Page 76
Second Renewal Term
CPA and Contractor agree to any
necessary modifications to the
Program and FlexSaver as
needed
Q1-2025 Contractor & CPA
CPA and Contractor agree to
additional Trade Ally or removal
of Trade Ally as adeemed
beneficial to the program
Q1-2025 Contractor & CPA
Dispatches start for the
summer season
May 2025 Contractor, Scheduling
Coordinator
Annual Joint Management
Review (Section IV, Exhibit A)
May 2025 Contractor & CPA
Dispatches end for summer
season
October 2025 Contractor, Scheduling
Coordinator
Dispatches start for the winter
season
November 2025 Contractor, Scheduling
Coordinator
Annual Joint Management
Review (Section IV, Exhibit A)
December 2025 Contractor and CPA
Dispatches end for winter
season
April 2026 Contractor, Scheduling
Coordinator
Third Renewal Term
CPA and Contractor agree to any
necessary modifications to the
Program and FlexSaver as
needed
Q1-2026 Contractor
CPA and Contractor agree to
additional Trade Ally or removal
of Trade Ally as deemed
beneficial to the program
Q1-2026 Contractor
Dispatches start for the
summer season
May 2026 Contractor, Scheduling
Coordinator
Annual Joint Management
Review (Section IV, Exhibit A)
May 2026 Contractor & CPA
Dispatches end for summer
season
October 2026 Contractor, Scheduling
Coordinator

Agenda Page 77
Final Management Review
(Section IV, Exhibit A)
August 2026 Contractor and CPA
Draft Final Report Due
(Section IV, Exhibit A)
October 2026 Contractor
Final Report Finalized (Section
IV, Exhibit A)
November 2026 Contractor and CPA
Agenda Page 78

EXHIBIT C

COMPENSATION AND BUDGET
I. I. Compensation and Budget for Initial Term
A. Contract Implementation
AutoGrid shall satisfactorily provide or ensure the provision of all of the contemplated services detailed in Exhibit A at the fixed price per deliverable specified in this Section I and CPA shall pay AutoGrid as specified herein and in compliance with the terms and conditions of this Agreement.

For the purposes of this Exhibit, contract years will be defined as follows:
 Year 1: September 2, 2021 – December 31, 2021
 Year 2: January 1, 2022 – December 31, 2022
 Year 3: January 1, 2023 – December 31, 2023
A.1. Pre-Implementation Planning and Implementation Plan Activities:
a. AutoGrid to invoice CPA $60,000 upon contract signing to begin Pre-Implementation Planning activities as described in Exhibit A, Section I.A. b. AutoGrid to invoice CPA $30,000 upon CPA’s receipt of Implementation Plan that meets the requirements of Exhibit A, Section I.B and is acceptable to CPA.

B.2. Marketing Activities:
a. AutoGrid to invoice CPA $25,000 upon contract signing to begin Marketing Planning activities as described in Exhibit A, Section II.A.
b. AutoGrid to invoice CPA based upon CPA’s receipt of the following deliverables specified in Exhibit A:
i. AutoGrid to invoice $25,000 upon delivery of list of enrolled ChargePoint customers in CPA territory and Comprehensive Marketing Plan for all customer segments and technologies that meets the requirements of Exhibit A, Section II.A and is acceptable to CPA.
ii. AutoGrid to invoice CPA for delivery of Focus Group and Survey Results as described in Exhibit A, Section II.B, per the following schedule.

1. $50,000 in Year 1

2. $75,000 in Year 2

3. $50,000 in Year 3
C.3. Trade Ally Network Development Activities
a. AutoGrid to invoice CPA $65,000, distributed as seen in Table 1 below, upon establishment of DERMS Trade Ally Network interfaces with all proposed Trade Allies including ChargePoint, ecobee, Sunnova, and Google Nest, with written confirmation Agenda Page 79
from each Trade Ally of readiness to enroll and dispatch CPA customer loads as described in Exhibit A, Section III.A.

Table 1: Trade Ally Network Fees
Year 1 Year 2 Year 3
Trade Ally
Sunnova $50,000 $0 $0
Ecobee $0 $0 $0
Google Nest $10,000 $0 $0
ChargePoint $5,000 $0 $0
Emerson $0 $0 $0
Total $65,000 $0 $0
b. AutoGrid to invoice $25,000 upon delivery of Trade Ally Plan and Roadmap and Trade Ally Tracking System that meets the requirements of Exhibit A, Section III.A and is acceptable to CPA.

D.4. Program Implementation, Operations, and Evaluation a. Implementation Plan Execution and Program Administration i. AutoGrid to invoice CPA $25,000 upon delivery of CRM Solution Deployment as specified in Exhibit A, Section IV.A.
ii. AutoGrid to invoice CPA $25,000 upon launch of Enrollment Campaign for legacy thermostat customers as specified in Exhibit A, Section IV.A. iii. AutoGrid to invoice CPA a total of $355,200 for ongoing administration and operations, including at least 1 MW of commercial capacity and 1 MW of Disadvantaged Community capacity by Year 3, and demonstrated by proof of successful Rule 24 data transfers as specified in Exhibit A, Section IV.A and invoiced based on the following milestones:

1. $54,200 upon enrollment of 1.6MW total

2. $138,400 upon enrollment of 4.6 MW total

3. $162,600 upon enrollment of 6 MW total, including 1 MW of commercial capacity and 1 MW of Disadvantaged Community Capacity
b. Scheduling Coordinator, Demand Response Provider (DRP) and Distributed Energy Resource Provider (DERP) Services for Demand Response Resource:
i. AutoGrid to invoice CPA $50,000 upon contract signing for Energy AI Systems setup fees.
ii. AutoGrid to invoice CPA $10,000/month for the length of the Term beginning in October 2021, based on the monthly delivery of the following deliverables as described in Exhibit A, Sections IV.B and IV.C.

Agenda Page 80
c. Overall Program Performance and Evaluation
i. AutoGrid to invoice CPA $25,000 upon implementation of monthly, quarterly, and annual reporting as agreed upon in consultation with CPA staff and described in Exhibit A, Section IV.D.
ii. AutoGrid to invoice CPA $20,000 following each of the two required Annual Joint Management Reviews as described in Exhibit A, Section IV.D. iii. AutoGrid to invoice CPA $40,000 upon delivery of the Final Report that meets the requirements of Exhibit A, Section IV.D.

AutoGrid to handle payment of Trade Ally Network fees specified in Table 2 to Trade Allies. New trade allies outside of those specified in Table 2 and associated setup costs will be agreed upon in writing per the process developed as part of Exhibit A, Section III.

Except for the payments expressly specified herein, AutoGrid shall not be entitled to receive any other payment from CPA during the Term for the services AutoGrid provides relating to the CPA Power Response program.

E.5. Residential Behavioral Demand Response (BDR)
AutoGrid to setup AutoGrid Engage, consumer-facing portal. Engage will have CPA logo, color brands, and CPA’s choice of images. Consumers who are interested in enrolling into CPA’s BDR program will log into Engage to sign up and accept BDR’s terms and conditions.

Before dispatch, enrollees will receive SMS and email messages – the timing and content of messages will be configurable. With the help of CPA IT group, Engage will be setup so that emails will appear to have come from CPA. There will be an option to send another SMS at the conclusion of each event to thank participants and notify them of the event’s conclusion.

Table 1A below outlines program costs
Year 1 Year 2 Year 3 Notes
One-time Engage Setup $25,000
Annual Engage License
Fee
$0 $20,000 $20,000
Engage User Fees $0 $25,000 $50,000 Fee is $5000 per 10K homes, assume 50K
homes in year 2, 100K
homes in year 3
Homeowner Incentive Incentive structure will be determined before Jan-1-2022 Total $25,000 $45,000 $70,000
Agenda Page 81
IIB. Trade Ally Device Fees
AutoGrid to invoice CPA a total amount not to exceed $904,275 which are to be used by AutoGrid to make payments to Trade Allies for their ongoing device fees, as shown in Table 2 below, paid according to the following terms and schedule:
 Year 1: AutoGrid to invoice CPA for any device fees based on enrollments reached by December 31, 2021.
 Year 2: AutoGrid to invoice CPA for device fees based on total enrollments as of September 30, 2022.
 Year 3: AutoGrid to invoice CPA for device fees based on total enrollments as of September 30, 2023.

Table 2: Trade Ally Device Fees *
Year 1 Year 2 Year 3
Sunnova
Unit Costs $300/device $270/device $255/device
Projected
Enrollments
400 1,000 1,500
Projected Total $120,000 $270,000 $382,500
ecobee
Unit Costs $10,000 + $15/dev $10,000 + $15/dev $10,000 + $15/dev Projected
Enrollments
1,000 1,650 1,550
Projected Total $25,000 $34,750 $33,250
Emerson
Unit Costs $13/dev $13/dev $13/dev
Projected
Enrollments
0 450 450
Projected Total $0 $5,850 $5,850
Google Nest
Unit Costs $15/dev $15/dev $15/dev
Projected
Enrollments
100 625 1000
Projected Total $1500 $9,375 $15,000
ChargePoint
Unit Costs $36 $36 $36
Projected
Enrollments
100 100 200
Agenda Page 82
Projected Total $3,600 $3,600 $7,200
Total (Not to
Exceed)
$148,600 $317,725 $437,950
* Trade Ally projected enrollments and projected totals specified in Table 4 are based on projections of program participation. CPA agrees that incentive payments may transfer from one Trade Ally into another depending on actual enrollments. AutoGrid agrees that the total costs per year may not be increased without the written approval of CPA.
** The device fees paid to Trade Allies, with exception of Sunnova, are subject to change by the Trade Allies from one year to the next.

IIIC. Customer Incentives
A1. Payment of Customer Incentives
AutoGrid will manage the direct payment of customer incentives from Trade Allies to customers on CPA’s behalf, including tracking of total customer incentive spend.

CPA has budgeted $805,125 for direct customer incentive payments for the complete term, some or all of which may be deployed by AutoGrid and Trade Allies, at CPA’s direction. Customer incentives are only to be paid upon successful enrollment, and CAISO registration, of customers into the Power Response program. Additional budget for BDR customer incentives, if any, will be determined before Jan-1-2022.

AutoGrid shall establish an escrow account (“Escrow Account”). The Escrow Account will be held at a nationally recognized bank in the name of Clean Power Alliance. AutoGrid will provide monthly bank statements pertaining to the Escrow Account upon request by CPA. AutoGrid will invoice CPA a prepayment amount of $100,000 (“Prepaid Balance”) at the time of contract signing for eligible customer incentives, rebates, and reimbursement of direct customer installation costs (Customer Payments). Eligibility for purposes of incentive payment is to be defined for each Trade Ally and jointly with CPA.

AutoGrid shall submit to CPA on a monthly basis an invoice for any Customer Payments, supporting invoices detailing funds transferred to customers to pay Customer Payments, and other supporting documentation reasonably requested by CPA. AutoGrid to invoice CPA for (a) any amounts drawn down from the Prepaid Balance; or (b) in the event that the Customer Payments exceed the Prepaid Balance, the full amount of the Prepaid Balance plus the amount of such excess. Notwithstanding anything to the contrary in this agreement, if CPA (i) fails to pay an invoice to replenish the Prepaid Balance as and when due or (ii) otherwise breaches its obligations or defaults under this agreement, then AutoGrid will have no obligation to pay any Customer Payments unless and until (x) CPA has replenished the full amount of the Prepaid Balance and paid any other amounts due, and (y) any such breach or default has been cured.

Agenda Page 83
AutoGrid acknowledges and agrees that the funds in the Prepaid Balance are property of CPA, not AutoGrid, and the transfer of funds to the Prepaid Balance does not constitute a payment from CPA to AutoGrid; provided that, notwithstanding the foregoing or anything to the contrary in this agreement, (a) ownership of the funds in the Prepaid Balance will transfer from CPA to AutoGrid on a dollar-for-dollar basis as Customer Payment obligations accrue to AutoGrid, and (b) until the earlier of (x) the expiration or earlier termination of this agreement and (y) the date when no future Customer Payments are contemplated by this agreement to be paid by AutoGrid, CPA shall have no right to withdraw funds from the Prepaid Balance.

Since the incentives amounts are projections, AutoGrid, in consultation with CPA, may rebalance the payments between customers of various Trade Allies. In addition, AutoGrid, upon CPA’s agreement (which shall not be unreasonably withheld), may be entitled to customer incentives above the budgeted amount when AutoGrid enrolls the full 6 MW of program capacity.

Table 3: Projected Customer Incentives
Year 1 Year 2 Year 3
Sunnova
Customers
$40,000 $100,000 $150,000
Google Nest
Customers
$46,875 $50,000
ecobee Customers $17,500 $14,000 $10,500
Emerson
Customers
(multifamily)
$105,000 $170,000 $31,250
ChargePoint
Customers
$10,000 $2,500 $5,000
C&I Customers $14,000 $38,500
Total $172,500 $347,375 $285,250
The costs specified in Table 3 include all customer recruitment costs and costs associated with Wi-Fi installations in identified multifamily thermostat pilot projects.

IVD. Transition Costs
AutoGrid to invoice CPA $45,000 upon completion of all transition services as specified in Exhibit A, Section V.

VE. Costs for C&I Telemetry
AutoGrid to invoice CPA upon proof of installation of telemetry equipment to perform meter data management services as needed. These costs include labor and equipment.

Agenda Page 84
VF. Additional Costs
Any travel, administrative, and materials (“Expense”) will be billed at cost, as a pass through, and shall not to exceed $10,000.00 per year. AutoGrid shall obtain written approval from CPA prior to incurring any Expense. CPA reserves the right to reject and may not reimburse any Expense that was not approved in compliance with this provision.

Any changes or adjustments to this Exhibit A must be memorialized in a writing that is approved by both Parties.
**************************************************
The Total Maximum Amount, that CPA shall pay Contractor for all Services throughout the entire Term of the Agreement shall not exceed $1,300,200, inclusive of any direct payments to AutoGrid as well as funds that CPA will provide to AutoGrid for payment of Trade Allies and Subsidiary Energy AI Systems, and Expense that Contractor may incur subject to CPA’s approval (“Total Maximum Amount”). The Total Maximum Amount does not include Customer Incentives or Trade Ally Device fees. See Section II., Trade Ally Device Fees, and Section III., Customer Incentives, above in this Exhibit C.

Contractor shall perform and complete all required Services in accordance with Exhibit A notwithstanding the fact that total payment from CPA shall not exceed the Total Maximum Amount. If an increase in the NTE is otherwise required, Contractor and CPA shall reasonably cooperate to amend the Agreement. Contractor shall provide CPA with monthly invoices, outlining deliverables completed. CPA shall pay approved invoices within 30 days of receipt.

Table 4: C&I Site Telemetry Equipment Costs
Year 1 Year 2 Year 3
Install 4-second
telemetry equipment
in 3 to 5 C&I sites
$0 $10,000 $30,000
Agenda Page 85
II. Compensation and Budget for Renewal Term
A. Program Implementation & Services
Contractor shall satisfactorily provide or ensure the provision of all of the contemplated services detailed in Exhibit A at the price per deliverable specified in this Section I and CPA shall pay Contractor as specified herein and in compliance with the terms and conditions of this Agreement.

For the purposes of this Exhibit C, each Renewal Term will be defined as follows:
● First Renewal Term: March 4, 2024 – March 3, 2025
● Second Renewal Term: March 4, 2025 – March 3, 2026
● Third Renewal Term: March 4, 2026 – March 3, 2027

1. Program Implementation, Operations, and Evaluation
a. Implementation Plan Execution and Program Administration i. Contractor to invoice CPA $25,000 upon delivery of CRM Solution Deployment as specified in Exhibit A, Section IV.A.
ii. Contractor to invoice CPA $7,500 at the beginning of each Renewal Term for management and coordination of Flick devices in accordance with Exhibit A, Section I.D.
iii. Contractor to invoice CPA for ongoing administration and operations as specified herein:

1. Contractor to invoice CPA a milestone payment at the start of each Renewal Term for the management of capacity enrolled, at a rate of $3,000 per 100kW for the dispatchable capacity enrolled at the time of the Renewal Term date.

2. During any Renewal Term, Contractor to invoice CPA quarterly (April 1, July 1, October 1, January 1 of each year) for all incremental capacity exceeding the previously achieved milestone, at a rate of $3,000 per 100kW enrolled. b. Scheduling Coordinator, Demand Response Provider (DRP) and Distributed Energy Resource Provider (DERP) Services for Demand Response Resource:
i. Contractor to invoice CPA $10,000/month for the length of the First Renewal Term beginning in March 2024 for the services described in Exhibit A, Sections IV.B and IV.C.
ii. Contractor to invoice CPA in equal monthly amounts for each Renewal Term subsequent to the First Renewal Term for Scheduling Coordinator, DRP, and DERP services in an amount not to exceed the amounts set in Table 1 below.

Agenda Page 86
Table 1:

Fees for Scheduling Coordinator, DRP, and DERP Services First Renewal
Term
Second Renewal
Term
Third Renewal
Term
Scheduling
Coordinator, DRP,
and DERP Services
Not to exceed
$120,000
Not to exceed
$130,000
Not to exceed
$140,000
c. Marketing Activities
i. Contractor to invoice CPA monthly for customer referral incentive costs, as detailed in Exhibit C, Section 1.A.c.ii below, which shall be the dollar amount of incentives provided to customers, not to exceed the amounts listed in Table 2 for each corresponding Renewal Term.
ii. To qualify for a referral incentive, a participating customer must send their unique link to another CPA customer who then enrolls in Power Response. For each person that uses a referral link to successfully register, FlexSaver will credit the referring customer a $10 referral incentive. The referring customer can view their reward in the FlexSaver Dashboard.
iii. Each month, AutoGrid will send the incentive for the earned amount to the referring customers.

Table 2:

Fees for Customer Referral Incentives
First Renewal
Term
Second Renewal
Term
Third Renewal
Term
Customer Referral
Incentive
Not to exceed
$5,000
Not to exceed
$10,000
Not to exceed
$15,000
d. Overall Program Performance and Evaluation
i. Contractor to invoice CPA $20,000 following each of the two required Annual Joint Management Reviews as described in Exhibit A, Section IV.D.

2. Customer Portal and Recruitment Tool Upgrade
Contractor to set up AutoGrid FlexSaver, consumer-facing portal, in accordance with Exhibit A, Section I. D. Contractor to invoice CPA at the beginning of each Renewal Term in accordance with Table 3 below.

Agenda Page 87
Table 3:

Fees for Customer Portal and Recruitment Tool
Year 1 Year 2 Year 3 Notes
Annual FlexSaver
License Fee
$30,000 $30,000 $30,000
FlexSaver User
Fees
$5,000 $5,000 $5,000 Fee is $5,000 per 10,000
homes, each year.

Translations $10,000 $0 $0 Language translations are
one-time fee for initial set up
Total $45,000 $35,000 $35,000

3. Trade Ally Network Development Activities
Contractor to handle payment of Trade Ally Network fees specified in Table 4 to Trade Allies.

Contractor to invoice CPA $18,500 in the First Renewal Term, distributed as seen in Table 4 below, upon establishment of DERMS Trade Ally Network interfaces with all proposed Trade Allies including Wallbox and Flick with written confirmation from each Trade Ally of readiness to enroll and dispatch CPA customer loads as described in Exhibit A, Section III.A.

The addition of Trade Allies outside of those specified in Table 4 and setup costs associated with the addition of such Trade Allies are subject to CPA’s prior written approval in accordance with the requirements of Exhibit A, Section III and provided the costs do not to exceed the annual amounts listed within Table 4 below.

Table 4: Trade Ally Network Development Fees
First Renewal Term Second Renewal Term Third Renewal Term $18,500 Not to exceed $30,000 Not to exceed $30,000
Trade Allies:

Wallbox - $9,500 TBD TBD
Flick - $9,000
Agenda Page 88
B. Trade Ally Device Fees
Contractor to invoice CPA a total amount not to exceed $377,735 for the Renewal Terms, which are to be used by Contractor to make payments to Trade Allies for their ongoing device fees, as shown in Table 5 below, which shall be paid once per year in October. A sample calculation of Trade Ally device fees to be invoiced for the First Renewal Term, using projected enrollment figures, is provided in Schedule C-3 attached hereto. Any changes to Trade Ally device fees are subject to prior written approval from CPA.

C. Customer Incentives

1. Payment of Customer Incentives
Eligible customer incentives, rebates, and reimbursement of direct customer installation costs (“Customer Payments”) may be deployed by Contractor and Trade Allies, at CPA’s direction.

Customer Payments are only to be paid upon successful enrollment of customers into the Power Response program. The amount of Customer Payments is set at CPA’s sole discretion and the total amount of Customer Payments may not exceed $1,457,200 during the Renewal Terms. Customer Payments set for the First Renewal Term are provided in Schedule C-4 attached hereto.

Contractor shall establish an escrow account (“Escrow Account”) for the purpose of funding Customer Payments. The Escrow Account will be held at a nationally recognized bank in the name of Clean Power Alliance. Contractor will provide monthly bank statements pertaining to the Escrow Account upon request by CPA. Contractor will invoice CPA a prepayment amount of $100,000 (“Prepaid Balance”) at the time of contract signing for Customer Payments. Eligibility for purposes of incentive payment is to be defined for each Trade Ally and jointly with CPA.

Contractor shall submit to CPA on a monthly basis an invoice for any Customer Payments, supporting invoices detailing funds transferred to customers to pay Customer Payments, and other supporting documentation reasonably requested by CPA. Contractor to invoice CPA for (a) any amounts drawn down from the Prepaid Balance; or (b) in the event that the Customer Payments exceed the Prepaid Balance, the full amount of the Prepaid Balance plus the amount of such excess.

Notwithstanding anything to the contrary in this agreement, if CPA (i) fails to pay an invoice to replenish the Prepaid Balance as and when due or (ii) otherwise breaches its obligations or defaults under this agreement, then Contractor will have no obligation to pay any Customer Payments unless and until (x) CPA has replenished the full amount of the Prepaid Balance and paid any other Table 2: Trade Ally Device Fees
Wallbox $30/device
Flick $51/device
$2 monthly subscription/device
ChargePoint $36/device
Sensi $15/device
Ecobee $15/device
$10,000 Annually
Nest $15/device
Agenda Page 89
amounts due, and (y) any such breach or default has been cured.

Contractor acknowledges and agrees that the funds in the Prepaid Balance are property of CPA, not Contractor, and the transfer of funds to the Prepaid Balance does not constitute a payment from CPA to Contractor; provided that, notwithstanding the foregoing or anything to the contrary in this agreement, (a) ownership of the funds in the Prepaid Balance will transfer from CPA to Contractor on a dollar-for-dollar basis as Customer Payment obligations accrue to Contractor, and (b) until the earlier of (x) the expiration or earlier termination of this agreement and (y) the date when no future Customer Payments are contemplated by this agreement to be paid by Contractor, CPA shall have no right to withdraw funds from the Prepaid Balance.

Since the incentives amounts are projections, Contractor, in consultation with CPA, may rebalance the payments between customers of various Trade Allies. In addition, Contractor, upon CPA’s agreement (which shall not be unreasonably withheld), may be entitled to customer incentives above the budgeted amount when Contractor enrolls the full annually projected program capacity.

D. Transition Costs
Contractor to invoice CPA $45,000 upon completion of all transition services as specified in Exhibit A, Section V.

E. Additional Costs
Any travel, administrative, and materials (“Expense”) will be billed at cost, as a pass through, and shall not to exceed $10,000.00 per year. Contractor shall obtain written approval from CPA prior to incurring any Expense. CPA reserves the right to reject and may not reimburse any Expense that was not approved in compliance with this provision.
**************************************************
Contractor shall perform and complete all required Services in accordance with Exhibit A notwithstanding the fact that total payment from CPA shall not exceed $3,266,935 for the Renewal Terms (“NTE Amount”), in accordance with Schedule C-2, attached hereto. Contractor shall also not exceed an annual payment amount for each Renewal Term ("Annual NTE Amount"), as specified in Schedule C-2, attached hereto. If an increase in the NTE Amount is otherwise required, Contractor and CPA shall reasonably cooperate to amend the Agreement. Contractor shall provide CPA with monthly invoices, outlining deliverables completed. CPA shall pay approved invoices within 30 days of receipt.

Except for the payments expressly specified herein, Contractor shall not be entitled to receive any other payment from CPA during the Term for the services Contractor provides relating to the CPA Power Response program.

Agenda Page 90
Schedule C-1
Initial Term Summary of Payments
The payments in Exhibit C have been summarized below for ease of reference and categorizations. categorization. For the avoidance of doubt, the payment amounts in Exhibit C will take precedence in case of any inconsistencies.

In case of termination according to Section 7(a) of the Agreement, the Termination Fee is calculated as the sum of the following:
a) Implementation: For each item 1, 2, 3, and 4 in the table in this Schedule C-1 above pro-rated through the ninety (90) calendar day notice period after delivery of Notice of Termination from CPA minus any portions of such amounts then already paid by CPA, and b) Services: For each item 5, 6, 7, 8, and 9 in the table in this Schedule C-1 above pro-rated through the ninety (90) calendar day notice period after delivery of Notice of Termination from CPA, less any portions of such amounts previously paid by CPA, and c) Passthrough: Any amounts in items 10 and 11 in the table in this Schedule C-1 above that AutoGrid has then already paid, or any amounts approved and committed through the enrollment process to a homeowner but not yet paid to the homeowner or Trade Ally, prior to the ninety (90) calendar day notice period after delivery of Notice of Termination from CPA, less any portions previously paid by CPA.

Agenda Page 91
Schedule C-2
Renewal Term Summary of Payments
The payments in Exhibit C have been summarized below for ease of reference and categorization. For the avoidance of doubt, the payment amounts in Exhibit C will take precedence in case of any inconsistencies.

Item Category First Renewal
Term
Second
Renewal Term
Third Renewal
Term Total
CRM CRM Solution Deployment $25,000 $0 $0 $25,000
Program Administration Variable $3,000/100kW
enrolled $120,000 $180,000 $240,000 $540,000
Program Management Flick Device Management $7,500 $7,500 $7,500 $22,500 CAISO Scheduling
Coordinator AG SC Services $120,000 $130,000 $140,000 $390,000 Marketing Activities Referral Incentives $5,000 $10,000 $15,000 $30,000 Program Evaluations and
misc.

AG Professional Services -
Annual Reporting $40,000 $40,000 $40,000 $120,000
Program Platform AG Software Platform -
FlexSaver $45,000 $35,000 $35,000 $115,000
Trade Ally Network Dev Upfront Trade Ally Setup $18,500 $30,000 $30,000 $78,500 C&I Telemetry Installation of equipment $12,000 $12,000 $12,000 $36,000 I. Program Implementation & Services Subtotal $393,000 $444,500 $519,500 $1,357,000 Trade Ally Device Fees Passthrough to Trade Allies $82,735 $125,000 $170,000 $377,735 II. Trade Ally Device Fee Subtotal $82,735 $125,000 $170,000 $377,735 Customer Incentives Passthrough to customers $327,200 $480,000 $650,000 $1,457,200 III. Customer Incentive Subtotal $327,200 $480,000 $650,000 $1,457,200 Transition Costs1 AG Services [$45,000] [$45,000] [$45,000] $45,000 IV. Final Reporting $45,000 $45,000 $45,000 $45,000
Administrative Costs Travel, admin, and materials $10,000 $10,000 $10,000 $30,000 V. Additional Costs $10,000 $10,000 $10,000 $30,000
TOTAL
(For each Renewal Term, the Annual NTE Amount) $857,935 $1,104,500 $1,394,500 $3,266,935 1 Transition Costs will be paid one time at the expiration or termination of this agreement at a cost of $45,000. For annual budgeting purposes, Transition Costs are accounted for annually in Schedule C-2.

Agenda Page 92
In case of termination according to Section 7(a) of the Agreement, the Termination Fee is calculated as the sum of the following:
a) For Section I (Program Implementation & Services) and Section IV (Final Reporting) in the table in this Schedule C-2 above, an amount pro-rated through the ninety (90) calendar day notice period after delivery of Notice of Termination from CPA minus any portions of such amounts then already paid by CPA, and
b) Any amounts in Section II (Trade Ally Device Fee), Section III (Customer Incentive), and Section V (Additional Costs) in the table in this Schedule C-2 above that AutoGrid has then already paid, or any amounts approved and committed through the enrollment process to a homeowner but not yet paid to the homeowner or Trade Ally, prior to the ninety (90) calendar day notice period after delivery of Notice of Termination from CPA, less any portions previously paid by CPA.

Agenda Page 93
Schedule C-3
Sample Calculation of Device Fees
First Renewal Term
Trade Ally projected enrollments and projected totals specified are based on projections of program participation. Projections for the First Renewal Term are included below:

Sample Calculation of Device Fees for First Renewal Term Wallbox $30/device
- Projected Enrollments 70
- Projected Total $2,100
Flick $51/device
- Projected Enrollments (limit) 300
- Projected Total
(incl. $2/switch monthly subscription)
$22,500
ChargePoint $36/device
- Projected Enrollments 160
- Projected Total $5,760
Sensi $15/device
- Projected Enrollments 25
- Projected Enrollments MF LMI 300
- Projected Total $4,875
Ecobee $15/device
- Projected Enrollments 700
- Projected Total
(incl. ecobee $10K annual fee)
$20,500
Nest $15/device
- Projected Enrollments 1,800
- Projected Total $27,000

Agenda Page 94
Schedule C-4
Customer Payments
First Renewal Term
Customer Payments are to be paid by CPA at the cost defined and set by CPA below. Customer incentives are only to be paid once upon successful enrollment of customers into the Power Response program and annually following active participation of participating customers. Customer Payment amounts are subject to change per the direction of CPA staff.

Smart Home Sign-up Incentive
per Device Annual Participation Incentive
Nest $85 $40
ecobee $85 $40
Sensi $85 $40
ChargePoint $100 $25
WallBox $100 $25
SolarEdge $400 $300
LMI Qualifying Free Sensi Thermostat $40
Home Sign-up Incentive
per Home Annual Participation Incentive
Home (BDR) $20* $2/kWh saved
*Qualifying customers
Multifamily Community Sign-up Incentive Annual Participation Incentive Resident $20 $40
Owner $130 $30
Commercial Leaders Participation Incentive
Business Customers $80 per kw-year

Agenda Page 95

EXHIBIT E

INSTRUCTIONS TO AUTOGRID REGARDING SCHEDULING DUTIES

AND RESTRICTIONS IN CALIFORNIA
AutoGrid and its subsidiaries takeContractor takes seriously theirits legal and compliance obligations and maintainmaintains a risk policy manual that instructs AutoGridContractor and its subsidiary’sScheduling Coordinator’s traders (“Traders”) as to what activities are allowable or not allowable due to either AutoGrid’s and its subsidiaries’Contractor’s or Scheduling Coordinator’s own internal policies or its external compliance obligations.

All AutoGrid and its subsidiary’s tradersTraders with access to Confidential Information as defined above must follow all of the following directives immediately upon commencement of service to CPA:
● AutoGrid and its subsidiaryScheduling Coordinator has begun providing distributed energy services, including the scheduling of demand response capacity into the California Independent Systems Operator’s system, on behalf of CPA.

AutoGrid and its subsidiary’s tradersTraders are to treat CPA as a valued customer. ● AutoGrid and its subsidiary’s tradersTraders will respect and maintain the confidentiality of the Confidential Information.
● AutoGrid and subsidiary tradersTraders shall not use any Confidential Information to either support transactions with Third Parties, to manage the resources of other customers, or to benefit AutoGrid’s and subsidiary’sContractor’s or Scheduling Coordinator’s own trading portfolio.
● This directive will be added as an operational control limit to AutoGrid’sContractor’s risk policy, and therefore is subject to the same requirements as the AutoGridContractor risk policy.
● Contractor’s contract with Scheduling Coordinator shall contain confidentiality terms, to be consistent with confidentiality requirements under the Agreement, regarding all information that is passed from CPA and/or Contractor to Scheduling Coordinator. Contractor maintains the right to audit Scheduling Coordinator’s books and records with respect to CPA’s activities.

Any failure by a traderTrader or other AutoGrid or its subsidiary’sContractor or Scheduling Coordinator personnel to follow the requirements stated in AutoGrid’sContractor’s risk policy manual, and/or Scheduling Coordinator’s risk policy manual, as applicable, and which includes the directives in this Exhibit E, may be cause for disciplinary action by AutoGridContractor management, which may include written reprimands, docking of wages, loss of trader bonus eligibility, suspension, and/or termination of employment.

Traders who have questions about the applications of these instructions should contact their supervisor.

Agenda Page 96
Staff Report – Agenda Item 4
To: Board of Directors
From: David McNeil, Chief Financial Officer
Kate Freeman, Strategic Finance Manager
Approved By: Ted Bardacke, Chief Executive Officer
Subject: Approve Amendment to CPA’s Investment Policy and Authorize Investments in the California Asset Management Program (CAMP) Date: February 1, 2024

RECOMMENDATION
A) Approve amendment to CPA’s Investment Policy to permit investment in the California Asset Management Program (CAMP) as specified in Attachment 1.

B) Authorize the Chief Executive Officer to execute the CAMP Investor Agreement and any related documents required to invest in CAMP as an Investor.

CPA’s Executive and Finance Committees discussed investments in CAMP at their respective January 2024 meetings. Both committees voted unanimously to recommend approval of this item the full Board.

BACKGROUND
Staff manage CPA’s cash balances and invest surplus funds consistent with California state law and CPA’s Board-approved Investment Policy, which establishes three primary objectives (listed in order of importance):
• Safety: Safety of principal is the foremost objective of cash and investment management activities. The investment of funds shall be undertaken in a manner that seeks to ensure the preservation of principal.

Agenda Page 97
Board of Directors Item 4
• Liquidity: The funds of CPA shall remain sufficiently liquid to meet all operating needs that may be reasonably anticipated. Since all possible cash demands cannot be anticipated, the investment of funds in deposits or instruments that are available on demand is recommended. • Return on Investment: The deposit and investment portfolio shall be designed with the objective of attaining a market rate of return throughout the economic cycle while considering risk and liquidity constraints. The return on deposits and investments is of secondary importance compared to the safety and liquidity objectives described above.

Interest earnings from CPA’s invested funds help to fund CPA’s operating expenses. At present, roughly $60 million of CPA funds are invested in Certificates of Deposit (CDs) and in the Local Agency Investment Fund (LAIF), with the remainder of funds held in operating and savings accounts at River City Bank and JPMorgan Chase.

Beginning in summer 2023, Staff began to evaluate a range of potential investment opportunities available to CPA, including CAMP. CAMP is a California Joint Powers Authority (JPA) established in 1989 under provisions of the California Joint Exercise of Powers Act to provide public agencies with professional investment services. CAMP’s Participants include roughly 160 California counties, cities, and public agencies, including CCAs, like Peninsula Clean Energy and Silicon Valley Clean Energy, as well as three CPA member agencies (Arcadia, Paramount, and Simi Valley). CAMP has roughly $17 billion in assets under management (AUM), comparable in size to LAIF ($21 billion AUM).

CAMP is organized in accordance with its founding Declaration of Trust and its By-Laws. CAMP is governed by a five-member Board of Trustees comprised of finance directors, treasurers, and executive directors from member agencies. The Board of Trustees meets on a quarterly basis and meetings are open to the public. CAMP Trustees employ service providers to serve as custodian of CAMP’s funds and to handle all administrative operations of CAMP.

Agenda Page 98
Board of Directors Item 4
Public agencies can invest in CAMP either as Participants or Investors. Participants and Investors both receive the same returns on invested funds and are governed by the same rules of investment and withdrawal of funds; there is no financial impact associated with investing in CAMP as a Participant in comparison to investing as an Investor. Participants are required to join the CAMP JPA by adopting and executing the CAMP Declaration of Trust and receive voting rights on governance matters. In contrast, Investors are not members of the CAMP JPA and have no voting rights on the operations or governance of CAMP. Investor relationships with CAMP are substantially similar to CPA’s relationship with LAIF. At its January 2024 meetings, the Executive Committee and the Finance Committee recommended that CPA invest in CAMP as an Investor.

DISCUSSION
Staff recommend investment in CAMP for the following reasons:
• Safety
o CAMP funds are governed by CAMP’s investment policy which is aligned with i) California Government Code 53600, which only permits investments in a narrow and low-risk list of eligible securities and ii) CPA’s own Investment Policy. Funds held at CAMP are considered government agency deposits and are subject to California’s Local Agency Protection Program, which protects agency deposits. o CAMP funds are professionally managed by PFM Asset Management, a nationally-recognized fixed-income asset manager with $160 billion of AUM. Nearly all portfolio funds are invested in instruments rated A-1 or A-1+. The cash management pool has an average term to maturity of approximately 60 days.
o CAMP’s two investment pools are AAA rated by Fitch and S&P. As an Investor CPA would be apprised of any changes to CAMP’s Investment Policy or operations. Were unfavorable changes to occur at CAMP, such as a downgrade of its credit rating or an unfavorable change to its Investment Policy, CPA could withdraw its funds from CAMP as

Agenda Page 99
Board of Directors Item 4
described in the following section.
• Liquidity
o CPA can withdraw its funds from CAMP on a same-day basis without penalty; there is no term commitment, in contrast with instruments like CDs or US Treasury securities.
• Returns
o CAMP currently offers interest rates that are approximately 2% higher than rates offered by LAIF or savings accounts at banks. o CAMP interest rates are similar to those offered by CDs; however, as of December 2023, CPA is nearing the 30% maximum allocation limit for investing funds in CDs under its Investment Policy and CDs do not offer the same-day liquidity without penalty.

Staff recommend that the Board authorize investments in CAMP as it would allow CPA to meet its Investment Policy objectives, most notably by earning higher interest rates than those currently available on bank savings accounts or from LAIF while ensuring the safety and liquidity of CPA funds. Should CAMP rates fall below LAIF or savings account rates in the future, CPA can shift funds from CAMP to LAIF or savings accounts as needed and without penalty.

ATTACHMENTS
1) Amended CPA Investment Policy (Redline)
2) CAMP Investor Agreement

Agenda Page 100
1 03/05/202002/01/2024
Policy Title Investment Policy – Proposed Amendments Redline Policy Number 14 Effective: 03/05/2020
02/01/2024
This Investment Policy (Policy) establishes guidelines for the management of cash, deposits, and investments (together, “Funds”) at Clean Power Alliance of Southern California (CPA).

I. Investment Objectives
When managing Funds, CPA’s primary objectives, in the following order of importance, shall be to (1) safeguard the principal of the Funds, (2) meet the liquidity needs of CPA, and (3) achieve a return on investment on Funds in CPA’s control.

A. Safety: Safety of principal is the foremost objective of cash and investment management activities. The investment of Funds shall be undertaken in a manner that seeks to ensure the preservation of principal.

B. Liquidity: The Funds of CPA shall remain sufficiently liquid to meet all operating needs that may be reasonably anticipated. Since all possible cash demands cannot be anticipated, the investment of Funds in deposits or instruments that are available on demand is recommended.

C. Return on Investment: The deposit and investment portfolio shall be designed with the objective of attaining a market rate of return throughout the economic cycle while considering risk and liquidity constraints. The return on deposits and investments is of secondary importance compared to the safety and liquidity objectives described in I.A. and I.B., above.

II. Standard of Care
CPA will manage Funds in accordance with the Prudent Investor Standard pursuant to California Government Code Section 53600.31:
“[G]overning bodies of local agencies or persons authorized to make investment decisions on behalf of those local agencies investing public funds are trustees and therefore fiduciaries subject to the prudent investor standard. When investing, reinvesting, purchasing, acquiring, exchanging, selling or managing public funds, a trustee shall act with care, skill, prudence and diligence under the circumstances then prevailing, that a prudent person acting in a like capacity and familiarity with those matters would use in the conduct of funds of a like character and with like aims, to safeguard the principal and maintain the liquidity needs of the agency. Within the limitations of this section and considering individual investments as part of an overall strategy, investments may be acquired as authorized by law.” Pursuant to Section 53607, the Board hereby delegates responsibility to manage Funds to CPA’s Treasurer or in lieu thereof, the Executive Director. The Treasurer is authorized to 1 All further statutory references are to the California Government Code unless otherwise stated.

Agenda Page 101
2 03/05/202002/01/2024
appoint Deputy Treasurer(s) as the Treasurer deems necessary for the prompt and faithful discharge of its duties, pursuant to Section 53607.

III. Acceptable and Prohibited Investment Types
A. The following types of investments are permitted:

1. Deposits at Bank(s): Funds may be invested in non-interest-bearing depository accounts to meet CPA’s operating and collateral needs and grant requirements.

Funds not needed for these purposes may be invested in interest-bearing depository accounts or Federal Deposit Insurance Corporation (FDIC) insured certificates of deposit with maturities not to exceed five (5) years. Banks eligible to receive deposits will be federally or state chartered and will conform to Section 53635.2 which requires that banks “have received an overall rating of not less than ‘satisfactory’ in its most recent evaluation by the appropriate federal financial supervisory agency of its record of meeting the credit needs of California's communities, including low- and moderate-income neighborhoods, pursuant to Section 2906 of Title 12 of the United States Code.” As per Section 53652, banks must collateralize the deposits of public agencies in an amount equal to no less than 110% of as currently stated in the value of the deposits.

The Treasurer will monitor the credit quality of eligible banks holding CPA deposits that exceed FDIC insurance limits to ensure the safety of CPA deposits.

2. Local Agency Investment Fund (LAIF): Funds may be invested in the Local Agency Investment Fund established by the California State Treasurer for the benefit of local agencies.

3. California Asset Management Program (CAMP): Funds may be invested in the California Asset Management Program.

3.4. US Treasury Obligations: Funds may be invested in United States Treasury obligations with a term to maturity not exceeding five (5) years and subject to the limitations set forth in Sections 53601 et seq. and 53635 et seq.

4.5. Federal Agency Securities: Funds may be invested in Federal Agency Securities with a term to maturity not exceeding five (5) years and subject to the limitations set forth in Sections 53601 et seq. and 53635 et seq.

5.6. Bankers’ Acceptances: Funds may be invested in Banker’s Acceptances provided that they are issued by institutions which have short-term debt obligations rated “A-1” or its equivalent of better by at least one NRSRO (Nationally Recognized Statistical Rating Organization). Not more that 40% of the portfolio may be invested in Bankers’ Acceptances, and no more than 5% of the portfolio may be invested in any single issuer. The maximum maturity shall not exceed 180 days.

6.7. Negotiable Certificates of Deposit: Funds may be invested in negotiable certificates of deposit in accordance with the requirements of Section 53601 and 53601.8, and subject to the following limitations:
i. Issued by an entity as defined in Section 53601(i); and ii. No more than 30% of the total portfolio shall be invested in certificates of deposit.

7.8. Placement Service Deposits: Funds may be invested in deposits placed with a private sector entity that assists in the placement of deposits with eligible financial institutions located in the United States (Section 53601.8). The full

Agenda Page 102
3 03/05/202002/01/2024
amount of principal and the interest that may be accrued during the maximum term of each deposit shall at all times be insured by federal deposit insurance.

The maximum portfolio exposure to the deposits placed pursuant to this section shall be limited by Section 53601.8.

8.9. Money Market Funds: Funds may be invested in money market funds pursuant to Section 53601(l)(2) and subject to Section 53601(l)(4).

B. Prohibited Investment Types
Pursuant to Section 53601.6, CPA shall not invest Funds in any security that could result in a zero-interest accrual, or less, if held to maturity. These prohibited investments include, but are not limited to, inverse floaters, range notes, or mortgage-derived interest-only strips.

IV. Investment Portfolio Management
The term to maturity of any Funds invested shall not exceed five (5) years pursuant to Section 53601. The Treasurer will allocate Funds among authorized investments consistent with the objectives and standards of care outlined in this Policy.

V. Bids and Purchase of Securities
Prior to the purchase of an investment pursuant to this Policy the persons authorized to make investments shall assess the market and market prices using information obtained from available sources including investment services, broker or dealers, and the media. A competitive bid process, when practical, will be used to place all investment purchases and sales transactions. Any competitive bid process used pursuant to this Policy shall be exempt from CPA’s Non-Energy Contracting Policy.

VI. Brokers
Broker/dealers shall be selected by the Executive Director upon recommendation by the Treasurer. Selection of broker/dealers shall be based upon the following criteria: the reputation and financial strength of the company or financial institution, the reputation and expertise of the individuals employed, and pursuant to the requirements of Section 53601.5. The Executive Director shall require any selected broker, brokerage firm, dealer, or securities firm to affirm that it has not, within any 48-consecutive month period, made a political contribution to any member of the CPA Board, or any candidate who may join the CPA Board in an amount exceeding the limitations contained in Rule G-37 of the Municipal Securities Rulemaking Board, the Political Reform Act, including section 84308, or any applicable CPA Policy, as amended from time to time. The selected broker or dealers shall be provided with and acknowledge receipt of this Policy, the Vendor Communication Policy, and the Campaign Contribution Disclosure Form.

VII. Losses
Losses are acceptable on a sale before maturity and may be taken if required to meet the liquidity needs of CPA or if the reinvestment proceeds will earn an income flow with a present value higher than the present value of the income flow that would have been generated by the original investment, considering any investment loss or foregoing interest on the original investment.

VIII. Delivery and Safekeeping

Agenda Page 103
4 03/05/202002/01/2024
The delivery and safekeeping of all securities shall be made through a third-party custodian when practical and cost effective as determined by the Treasurer and in accordance with Section 53608.

The Treasurer shall review all transaction confirmations for conformity with the original transaction.

IX. Conflict of Interest
CPA staff shall comply with state law and applicable CPA policies regarding conflicts of interest.

X. Audits
CPA’s Funds shall be subject to a process of independent review by its external auditors. CPA’s external auditors shall review the investment portfolio in connection with CPA’s annual audit for compliance with the Policy pursuant to Section 27134. The results of the audit shall be reported to the Treasurer.

XI. Reports
A. Monthly: The Treasurer will perform a monthly review of the investment function.

Following the commencement of investment transactions, the Treasurer shall submit a monthly report of all investment transactions to the Finance Committee. Investment transactions are defined as the purchase, sale or exchange of securities.

B. Annually: The Treasurer will submit an annual report to the Finance Committee within 60 days of the end of a fiscal year providing the following:
i. A list of individual securities by investment type, issuer, credit risk rating, CUSIP number, settlement date of purchase, date of maturity, par value and dollar amount invested on all securities, the market value and source of the market value information;
ii. A statement that the portfolio is in compliance with this Policy and in accordance with Section 53646 or the manner in which the portfolio is not in compliance; and iii. A statement of CPA’s ability to meet anticipated cash requirements for the upcoming 12 months.

C. Annual Review: This Policy will be reviewed annually by the Treasurer. The Executive Committee is authorized to approve changes to this Policy following the review of proposed changes by the Finance Committee.

Agenda Page 104
D - 1
Investor Agreement_5-26-2021

ATTACHMENT D

CALIFORNIA ASSET MANAGEMENT TRUST

INVESTOR AGREEMENT
By signing this Investor Agreement (“Agreement”), the undersigned Public Agency (“Investor”) agrees with California Asset Management Trust (“Trust”) to the following:

1. Program Guide, Declaration of Trust, and By-Laws. Investor acknowledges that it has received and read a copy of the Program Guide, consisting of the Information Statement (“Information Statement”) and additional information, in effect as of the date of this Agreement (collectively the “Program Guide”), the Declaration of Trust, in effect as of the date of this Agreement (the “Declaration of Trust”), and the By-Laws, in effect as of the date of this Agreement (“By-Laws”).

Unless otherwise stated, capitalized terms used but not otherwise defined in this Agreement have the meanings set forth in the Declaration of Trust.

2. Investment. The Trust will sell to the Investor and the Investor will purchase shares of beneficial interest (“Shares”), which are part of a series of Shares issued by the Trust for Public Agencies that invest in the Trust but do not join the Trust as Participants (“Investor Shares Series”).

3. Representations and Warranties. The Investor represents and warrants to the Trust as follows and acknowledges that the Investor has full knowledge that the Trust intends to rely on such representations and warranties and that such representations and warranties shall be deemed renewed with each purchase of the Shares of Investor Shares Series:
(a) The rights, privileges, preferences and restrictions of the Investor Shares Series being purchased are subject to the terms of the Information Statement, the Declaration of Trust, the By-Laws, and this Agreement.
(b) The Investor is duly organized and validly existing as a Public Agency of the State of California, as that term is defined in Sections 6500 and 6509.7(b) of the Act, as may be amended from time to time, and has full legal right, power and authority to enter into this Agreement to observe and perform its obligations hereunder and to invest its assets as provided herein; and by all necessary official actions the Investor has duly authorized and approved the execution hereof, the observance and performance of its obligations hereunder and the investment of its assets as provided herein. (c) This Agreement constitutes a legal, valid and binding obligation of the Investor enforceable against such Investor in accordance with its respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors rights generally.
(d) The Investor has read carefully and understands the Program Guide, the Declaration of Trust and the By-Laws.
(e) The Investor has been furnished any and all materials that it requested relating to the Trust, the offering of the interests in the Trust and the information contained in the Program Guide and has been afforded the opportunity to obtain any additional information necessary to verify the accuracy of any such information.

Agenda Page 105
D - 2
Investor Agreement_5-26-2021
(f) The Investor has been advised to consult with its own attorneys and tax advisors regarding the legal, regulatory, and tax matters concerning the Trust and the purchase of Shares of Investor Shares Series.
(g) The execution and delivery of this Agreement and the completion of the transactions will not conflict with, or result in any violation of or default pursuant to, any provision of any governing instrument applicable to the Investor, or any agreement or other instrument to which it is a party or by which it or any of its properties are bound or any permit, franchise, judgment, decree, statute, rule or regulation applicable to it or any of its properties.
(h) All of the information that the Investor has furnished in this Agreement is correct and complete as of the date hereof, and if there is any material change in such information, the Investor will immediately furnish such revised and corrected information to the Trust. (i) The Investor agrees that the foregoing representations and warranties may be used as a defense in any action relating to the Trust or the offering of Shares issued by the Trust. (j) The Investor represents and warrants to the Trust that all information provided by the Investor to the Trust is correct and complete as of the date of its execution of the Agreement. (k) The Investor represents and warrants to the Trust that the individual executing this Agreement on its behalf holds the title indicated below his/her name and that such individual is authorized in the name of and on behalf of the Investor to execute and deliver this Agreement.

4. Acknowledgements. The Investor acknowledges and agrees with the Trust that:
(a) Neither the Shares nor the Trust are registered under the Securities Act or any other applicable securities laws in reliance upon the exemption from registration provided in Section 3(a)(2) of the ’33 Act, Section 2(b) of the ’40 Act, and applicable exemptions under securities laws of the State of California. The Investor understands that as of the date hereof the Trust does not intend to register the Shares under the ’33 Act or the Trust itself under the ’40 Act. (b) The Investor will indemnify and hold harmless the Trust, the Trustees, its officers and advisors in respect of all claims, actions, losses, costs, and damages resulting from any inaccuracy in any representations or breach of any warranties of the Investor contained in this Agreement. (c) The Investor undertakes to make all payments in respect of its purchase of the Shares of Investor Shares Series in accordance with the terms of the Program Guide. (d) The Investor agrees that the foregoing acknowledgements may be used as a defense in any action relating to the Trust or the offering of Shares of Investor Shares Series.

5. Miscellaneous.
(a) Amendments. This Agreement may be amended only with the approval or consent of the Trustees and the Investor.

Agenda Page 106
D - 3
Investor Agreement_5-26-2021
(b) Governing Law; Severability. This Agreement shall be construed in accordance with the laws of the State of California and, to the maximum extent possible, in such manner as to comply with all the provisions of the Act. If it is determined by a court of competent jurisdiction that any provision of this Agreement is invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. (c) Notices. All notices hereunder must be in accordance with Section 6.6 of the Declaration of Trust.
(d) Failure to Assert or Insist Upon Strict Performance. No failure by any party hereto to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement, or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or any other covenant, duty, Agreement or condition hereof. (e) Entire Agreement. This Agreement contains the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, or proposal with respect thereto.
(f) Immunity from Liability, Limited Waiver of Sovereign Immunity of Certain Investors.

All of the privileges and immunities from liability, all exemptions from laws, ordinances and rules, and all pension, relief, disability, workmen’s compensation, and other benefits which apply to the activity of Trustees, officers, agents or employees of the Initial Participants and any additional Participants and Investors when performing their functions within the territorial limits of their respective Public Agencies, shall apply to them to the same degree and extent while engaged in the performance of any of their functions and duties associated with the Trust; provided however, that notwithstanding the foregoing, any Investor that is a federally recognized Indian tribe agrees (i) to a limited waiver of its sovereign immunity solely for the purpose of authorizing the Trustees, to initiate an action against it to enforce any right under this Investor Agreement, to seek provisional remedies and to enforce an award or judgment rendered in any such action; and (ii) to waive its sovereign immunity from any judgment or liability arising from any such action, but any such waiver shall be limited to and co-extensive with any immunity afforded an Investor that is a California Public Agency but not a federally recognized Indian tribe. The Trust, acting through one or more service providers, with the consent of the Board President, shall be authorized to negotiate and to enter into agreements with federally recognized Indian tribes on behalf of the Trust consistent with the above waivers as required to address terms and conditions.

Agenda Page 107
D - 4
Investor Agreement_5-26-2021
IN WITNESS WHEREOF, the Investor has executed this Investor Agreement on the date set forth below.

This Investor Agreement shall not be binding on the Trust unless and until it has been duly executed below by an authorized representative of the Trust.

INVESTOR
ON BEHALF OF THE_____________________________________________ (Name of Public Entity)
By:____________________________________________
Name: _________________________________________
Title: __________________________________________
Date: __________________________________________

CALIFORNIA ASSET MANAGEMENT TRUST
By:____________________________________________
Name: _________________________________________
Title: Secretary___________________________________
Date: __________________________________________

Agenda Page 108
Staff Report – Agenda Item 5
To: Board of Directors
From: Gina Goodhill, Senior Director, Government Affairs Approved By: Ted Bardacke, Chief Executive Officer
Subject: Receive and File February 2024 Bill Positions Report Date: February 1, 2024

RECOMMENDATION
Receive and file.

ATTACHMENT

1. 2024 Legislative & Regulatory Policy Platform

Agenda Page 109
Board of Directors Item 5
Bill Number &
Author
Title & Summary Status CPA Position Alignment with
CPA Policy
Platform
Notes
AB 1852
Assemblymember Blanca
Pacheco (Principal
coauthor Senator
Anthony Portantino)
Joint powers agencies:

Clean Power Alliance of
Southern California:
meetings
Authorizes CPA to continue
its practice of allowing
alternate board members
who are not elected officials
to participate in closed
session meetings when the
primary board member is
unavailable.

Introduced
1/18/24
Sponsor 1d CPA sponsored
similar legislation in
2019 (SB 355;
Portantino), which
authorized CPA to
adopt a policy to
allow alternate board
members who are
not elected officials to
participate in closed
session meetings if
the primary board
member is
unavailable. The bill
was chaptered into
law in 2019 and
sunsets on January
1, 2025. This bill
would allow CPA to
extend that practice
until January 1, 2030.

Agenda Page 110
2024 Legislative and Regulatory Policy Platform
Overview and Purpose
The Clean Power Alliance (CPA) Legislative and Regulatory Policy Platform (Platform) serves as a guide to the CPA Board of Directors and CPA staff in their advocacy efforts and engagement on policy matters of interest to CPA. The Platform allows both members of the CPA Board of Directors and CPA staff to pursue actions at the regional, state and federal legislative and regulatory levels in a consistent manner and with the understanding that they are pursuing actions in the best interest of the organization and its mission, its member agencies, and its customers.

The Platform provides direction to CPA staff on positions that should be taken on regulatory matters and legislative bill proposals. The Platform also provides guidance to the Chief Executive Officer on positions that should be taken on legislative and regulatory matters that come before the California Community Choice Association (CalCCA) Board of Directors.

CPA staff report to the Board monthly on all positions taken on legislative bills. For bills that fall outside the scope of this platform; bills that are likely to attract high-profile supporters and detractors, including bills that would modify the California Environmental Quality Act (CEQA); bills that would raise taxes; or bills that would knowingly put CPA at odds with positions that its member agencies have taken, CPA staff will seek approval of a proposed position to the Legislative & Regulatory Committee and Board of Directors before taking a position.

Policy Principles
The Legislative and Regulatory Policy Platform is centered around five basic principles:

1. Protecting CPA’s local control and competitive position, especially as it relates to rates, finances, power procurement and expansion of its service territory.

2. Pursing power resource planning and procurement that promotes the growth in renewable energy capacity at the local level and reduce fossil fuel dependency, with the goal of combating climate change.

3. Developing and administering customer programs that encourage clean energy adoption by CPA customers.

4. Ensuring fair access to data, particularly as it relates to energy usage, billing, and information needed to develop and administer customer programs.

5. Supporting CPA’s ability to set electric rates and offer programmatic services that are affordable and inclusive for all.

These principles are incorporated throughout the below platform.

Agenda Page 111
Policy Platform

1. Affordability and Local Control
a. Fair rates and cost allocation: CPA will pursue administrative and legislative initiatives that will ensure that non-bypassable charges for CPA customers, including any income-graduated fixed charges, are assessed fairly compared to unbundled customers and that CPA’s customers are not unnecessarily burdened by non-bypassable charges compared to unbundled customers. b. Finances: CPA will pursue administrative and legislative initiatives to ensure that CPA is eligible to apply and receive funding made available to the electricity sector for decarbonization, reliability, and affordability purposes, and that CPA’s financial health are not disparately impacted by new regulations.
c. CCA Expansion: CPA will pursue administrative and legislative initiatives to protect CPA’s ability to expand its service to new member agencies. d. Local Control: CPA will pursue administrative and legislative initiatives to protect CPA Board’s authority over CPA’s procurement, rate-setting, governance, and customer program development activities.

2. Power Resources Planning and Procurement
a. Resource Adequacy and Reliability: CPA will pursue administrative and legislative initiatives that will enable CPA to secure capacity resources to meet its reliability obligations, such as initiatives that evaluate the supply of capacity resources available to load serving entities (LSEs), determine the appropriate market mechanisms for LSEs to procure capacity resources, and develop a durable policy framework that encourages all LSEs to construct their fair share of new capacity resources to maintain grid reliability while pursuing decarbonization efforts. b. Carbon-Free Resources: CPA will pursue administrative and legislative initiatives that will maximize CPA’s ability to procure carbon-free resources to meet or exceed the needs of CPA’s three product offerings and its long-term carbon-free procurement goal as required by SB 100 and other statutory or regulatory obligations. c. Renewable Resources: CPA will pursue administrative and legislative initiatives that will maximize CPA’s ability to procure eligible Renewable Portfolio Standard (RPS) resources to meet the needs of CPA’s three product offerings and its long-term RPS procurement goal as required by SB 100 and other statutory or regulatory obligations.
d. Integrated Resource Plan: CPA will pursue administrative and legislative initiatives that will maximize CPA’s ability to plan and procure resources to meet various environmental and reliability goals set by state laws and by its Board of Directors, while offering affordable products and programs to serve its customers, including disadvantaged communities.
e. Transmission: CPA will pursue administrative and legislative initiatives that will expedite new transmission infrastructure needed to meet California’s climate goals, as well as initiatives that will provide CPA adequate access to transmission capacity to maximize its procurement of RPS-eligible or carbon-free resources that meet various statutory and regulatory requirements.
f. Research & Development: CPA will pursue administrative and legislative initiatives that support the research and development of new energy resources that can be procured to meet the reliability and decarbonization goals set by the State and its Board of Directors.

Agenda Page 112
g. Grid Reliability: CPA will pursue administrative and legislative initiatives that support the expansion of a regional grid that improves reliability; accelerates decarbonization; improves transmission planning; reduces costs for ratepayer and load serving entities; maintains California’s ability to set, meet and implement its own climate goals; and protects clean energy jobs within the State.

3. Customer Programs
a. Demand Response, Demand Flexibility and Energy Efficiency: CPA will pursue administrative and legislative initiatives that will enable CPA to pursue demand response programs and opportunities for its customers.
b. Zero-emission vehicles: CPA will pursue administrative and legislative initiatives to promote electrification of the transportation sector in response to state and federal goals aimed at increasing the usage of zero emission vehicles. c. Building decarbonization: CPA will pursue administrative and legislative initiatives that support the ability of CPA to promote statewide building decarbonization, primarily through electrification.
d. Local Grid Management and Resiliency: CPA will pursue administrative and legislative initiatives that supports the ability of CPA and its member agencies to offer local grid management and resiliency solutions to increase local reliability and adaptability that could protect against power outages and extreme heat. e. Distributed Energy Resources: CPA will pursue administrative and legislative initiatives that support the ability of CPA to offer and utilize distributed energy resources as part of its reliability, resiliency and community engagement strategies. f. Research and Development: CPA will pursue administrative and legislative initiatives that support the ability of CPA to explore new opportunities related to behind the meter clean energy resources.

4. Data Access
a. Timely and Accurate Access to Customer Data: CPA will pursue administrative and legislative initiatives that will enable CPA to obtain timely and accurate access to its customers’ data to improve billing accuracy and inform the development and implementation of customer programs.
b. Fair Fees for Data Management Services: CPA will pursue administrative and legislative initiatives to ensure that the fees due to Southern California Edison for data access and management are fairly assessed based on data needs and potential technological improvements.

5. Diversity, Equity, Inclusion
a. Customer Protection: CPA will pursue administrative and legislative initiatives that support the protection of all ratepayers, particularly environmental and social justice communities in CPA’s service territory.
b. Supplier Diversity: CPA will pursue administrative and legislative initiatives that supports supplier diversity in CPA’s contracting activities and through women-owned, minority-owned, disabled-veteran-owned, and lesbian, gay, bisexual, and/or transgender owned business enterprises.
c. Workforce Development: CPA will pursue administrative and legislative initiatives that support workforce development with a focus on new stable, well-paying local jobs, and participation in a just transition to a low-carbon economy.

Agenda Page 113
d. Energy Equity: CPA will pursue administrative and legislative initiatives that supports increased access to clean energy technologies, clean energy and contracting jobs, and clean energy opportunities for environmental and social justice communities in CPA’s service territory.
e. Access to the Electrical Grid: CPA will pursue administrative and legislative initiatives that support reducing timelines in interconnection and service extensions for new construction, critical services, renewable energy, building decarbonization, and other projects in CPA’s service territory.

Agenda Page 114
Staff Report – Agenda Item 6
To: Board of Directors
From: Christian Cruz, Sr. Community Outreach Manager
Approved by: Ted Bardacke, Chief Executive Officer
Subject: Community Advisory Committee (CAC) Report
Date: February 1, 2024

RECOMMENDATION
Receive and file.

MEETING REPORT

CEO ORAL UPDATE
In January, the CAC received an oral update from CPA’s CEO, Ted Bardacke. The update included an in-depth overview of anticipated Board of Directors agenda items for 2024, which will likely also come to the CAC in advance of the Board of Directors meetings. The items reviewed fell into four categories.

1. Governance and Policy

2. Customer and Community Programs

3. Energy Procurement

4. Finance, Budget, and Rates
The CAC requested additional education in the 2024 calendar year on the CPA rate-setting process and affordability, updates on CPA’s Energy Advisor Program, and CPA’s low-income solar and storage program.

CPA LEGISLATIVE UPDATE AND 2024 POLICY PLATFORM
In January, the CAC also received a legislative overview of CPA’s 2024 Policy Platform.

In December 2023, the CPA Board of Directors approved the proposed 2024 Policy Platform, which incorporated changes suggested by the Legislative & Regulatory

Agenda Page 115
Board of Directors Item 6
Committee. The 2024 platform includes new or expanded principles to address the following issues:

1. Transmission and distribution planning

2. Interconnection timelines

3. Regionalization of the Electricity Market and/or Grid

4. Building decarbonization

5. Fair rates for CCA customers

6. Treatment of CEQA Reforms

7. Governance as an element of local control and autonomy The CAC recommended that CPA staff provide guidance on how the CAC can participate early in the discussions on regionalization of the electricity market and/or grid. In addition, the CAC requested a repository that the CAC could access to reference and track CPA related legislative issues.

ATTACHMENT
1) CAC Meeting Attendance

Agenda Page 116
Board of Directors Item 6
Action Items and Presentations
January
Legislative Update/2024 Policy Platform
Community Advisory Committee Attendance
2024
Jan Feb Mar Apr May Jun Jul Aug Sept Oct Nov
East Ventura/West LA County
Angus Simmons ✓
Jennifer Burke X
Debbie West A
San Gabriel Valley
Richard Tom ✓
Vacant
West/Unincorporated Ventura County
Vacant
Vern Novstrup ✓
South Bay
Court Casady ✓
Diane Wallace ✓
Gateway Cities
Irella Perez A
Genaro Bugarin ✓
Westside
Cris Gutierrez ✓
David Haake A
Unincorporated LA County
Neil Fromer ✓
Vacant
✓ - Attended A – Absent X – Medical/Personal Leave

Agenda Page 117
Staff Report – Agenda Item 7
To: Board of Directors
From: Matthew Langer, Chief Operating Officer
Approved By: Ted Bardacke, Chief Executive Officer
Subject: Approve the Power Ready Power Purchase Agreement General Conditions and Special Conditions with Coast Energy DevCo, LLC, a Delaware LLC (Coast Energy)
Date: February 1, 2024

RECOMMENDATION
Approve the Power Ready Power Purchase Agreement General Conditions and the eleven (11) Power Purchase Agreement Special Conditions (PPA) with Coast Energy to provide energy-resilient systems at eleven (11) CPA member agency sites under the Power Ready program and authorize the Chief Executive Officer to execute the agreements.

BACKGROUND
Power Ready Program Overview
The Power Ready program is a benefit offered to CPA’s member agencies to make a public building that serves a critical community purpose energy-resilient by installing a solar and battery energy storage system. The need for backup power systems is growing as power outages become more common than ever with increased wildfires, frequent Public Safety Power Shutoffs, and increased summer grid emergencies due to high heat.

The Power Ready program is intended to provide participating member agency sites across Los Angeles and Ventura Counties with clean back-up power systems at a cost equal to or less than what they would have paid if they were not participating in the

Agenda Page 118
Board of Directors Item 7
4 2
7 program. While the solar + storage systems to be installed may eventually provide some cost savings that CPA could pass on to the member agency, the size of the systems have not been optimized for economic returns. Instead, given the critical and community-serving nature of these facilities, the solar + storage systems have been optimized to provide back-up power for critical loads, generally through a larger battery than would otherwise have been installed to maximize cost savings.

Beginning in 2021, each CPA member agency was offered an opportunity to submit up to five potential sites for review. CPA retained EcoMotion as the technical advisor for the program. EcoMotion supported the site evaluation, interviewed stakeholders, gathered technical input, and recommended system sizing and developed schematic site diagrams for qualified sites. Over 100 sites across 27 member agencies were evaluated as part of this process. Following approval from their controlling City Councils or Board of Supervisors, Memorandums of Understanding for eleven sites have been executed with CPA. See the table below for a list of sites in the program.

Agenda Page 119
Board of Directors Item 7
4 2
7 Member
Agency Site
Expected
Project
PV Size
(CEC -AC
kW)
PV Type
Expected
Project
BESS Size
(kW)
Expected
Project
BESS Size
(kWh)
Agoura Hills Agoura Hills Rec Center 150.8 Rooftop
117
(175.5 for
Alternative)
468
(702 for
Alternative)
Beverly Hills Roxbury Park Community
Center 84.65 Rooftop 117.0 468
LA County –
Hacienda
Heights
Hacienda Heights Library 66.13 Rooftop 58.5 234
LA County –
Claremont
Claremont Helen Renwick
Library 58.2 Rooftop 117.0 468
LA County –
Paramount Paramount Library 60.84 Rooftop 58.5 234
Oxnard Oxnard Service Center 161.46 Rooftop 175.5 702
Sierra Madre Sierra Madre City Hall
Complex 126.97 Rooftop 117.0 468
South
Pasadena
South Pasadena City Hall
Complex 211.62 Carport 175.5 702
Ventura
County – Ojai /
Oak View
Oak View Park & Resource
Center 29.91 Rooftop 58.5 234
Ventura
County – Simi
Valley
Simi Valley Fire Station #41 52.91 Rooftop 58.5 234
Westlake
Village Civic Center Complex 150.78 Rooftop
117.0
(250 for
Alternative)
468
(1,000 for
Alternative)
10 Rooftop TOTAL 11 Sites 1.15 MW 1
Carport

1.17 MW 4.68 MWh

Agenda Page 120
Board of Directors Item 7
4 2
7 To build additional resiliency at their sites, the City of Agoura Hills and the City of Westlake Village requested alternative battery sizing options. The alternative options include significantly larger batteries to support additional site load and the potential for added cooling during an outage. In the event that either member agency decides to exercise an option for the larger battery specified in the table below, the additional cost for the larger sized battery will be paid to CPA by the city to offset the higher PPA costs.

CPA expects to launch a second round of Power Ready in the second half of 2024 to allow opportunities for member agencies to participate who were unable to join in this first round. For round two, staff is exploring the inclusion of government agencies or non-profit organizations who are nominated by a member agency that does not have a suitable site of their own.

Power Ready RFO
On February 8, 2023, CPA launched the Power Ready RFO (the “RFO”) seeking proposals from installation companies to build, finance, and operate behind-the-meter battery energy storage systems (BESS) and solar photovoltaic systems (PV) at eleven (11) member agency sites.

The RFO utilized a two-step process. At the launch of the RFO, CPA released public RFO materials seeking initial offers from proposers. Four bidders participated in the first round.

Based on staff’s evaluation of first round proposals, all four were invited to participate in the second round. CPA then released confidential site information including detailed site plans, member agency billing data, and critical site load reports to the eligible second-round proposers. Proposers were required to sign a non-disclosure agreement (NDA).

Final proposals were received on September 1, 2023. Three of the original four bidders submitted proposals in the second round.

On September 13, 2023, an RFO Review Team consisting of four Board members from the Energy Committee and senior staff consisting of the Chief Executive Officer and the Chief Operating Officer met to analyze the three final proposals. The Review Team

Agenda Page 121
Board of Directors Item 7
4 2
7 evaluated confidential terms and conditions, including pricing, and selected Coast Energy to be recommended to the Energy Committee for shortlisting, and another offer as a back-up offer.

The Review Team also concluded that more due diligence was required regarding the Coast Energy offer. This additional diligence included:

1. Whether all expected costs to replace the batteries at Year 10 of the contract term was included in the proposal price.

2. The scope of operations and maintenance (O&M) services for the duration of the contract and their inclusion in the proposal price.

3. Decommissioning protocols at the end of the 20-year PPA.

4. Reference checks of proposer experience.

Staff addressed these due diligence items with Coast Energy. Coast Energy confirmed the full cost to replace the battery systems in Year 10, including labor costs, is included in their price. Meanwhile, under the PPA, Coast Energy is solely responsible for operation and maintenance and decommissioning of the Facility. Satisfactory reference checks were completed with four (4) of Coast Energy’s prior or existing customers.

On September 27, 2023, the Energy Committee reviewed the Review Team recommendations and authorized staff to proceed with PPA negotiations with Coast Energy. Staff has concluded negotiations with Coast Energy and is requesting Board approval for the Chief Executive Officer to execute the PPA.

Per CPA’s Energy Risk Management Policy, any new build power purchase transaction with greater than a five (5)-year term or seven (7)-year maturity limit is required to be approved by the Board.

CPA retained Todd Larsen with Clean Energy Counsel, to represent CPA and its legal interests in the negotiation of these agreements. Mr. Larsen’s work was overseen by CPA’s General Counsel.

Agenda Page 122
Board of Directors Item 7
4 2
7 Development Team Background
Coast Energy is a long-term owner/operator of distributed solar assets in CAISO and the US. The developer team also includes Newport Power and Encored. Newport Power will provide EPC and PV installation for the project.

Newport Power has completed five hundred (500) behind-the-meter solar plus battery systems and/or microgrid projects in California to date and has also owned and operated two hundred (200) behind-the-meter solar plus battery systems and/or microgrid projects in California.

Encored will provide project management and design services for the project. Encored has experience with designing microgrid systems and developing commercial distributed energy projects. Encored is providing design and project management services for the development of two (2) 80kW solar systems plus 0.5 MWh of battery systems for the police department and a research center of the University of California, Santa Cruz, and a microgrid project for the Natural Energy Laboratory of Hawaii Authority.

CONTRACT STRUCTURE
The Power Purchase Agreement is structured so that there is one General Conditions PPA which outlines terms and conditions common to all sites and eleven (11) Special Conditions PPA’s which contain site specific information. Together, the one General Conditions PPA and eleven (11) Special Conditions PPA’s constitute 11 Renewable Power Purchase Agreements between CPA and Coast Energy. Participating member agencies will be required to negotiate a Site Lease agreement with Coast Energy after execution of the PPA; members agencies have already reviewed and commented on drafts of the site lease. At the end of the term of the PPA, the equipment will be removed and decommissioned unless the member agencies elect to purchase and retain the equipment.

Agenda Page 123
Board of Directors Item 7
4 2
7 Evaluation Criteria
In line with the RFO protocol, CPA ranked offers received for economic value based on the net present value to CPA and on a High, Medium, and Low scale in two other evaluation criteria categories (Developer Score and Workforce Development). CPA also considered the developer’s ability and commitment to meet the expected commercial operation date of eighteen (18) months from the PPA execution as part of its qualitative evaluation of offers received in the RFO. Below is the ranking assigned to the Coast Energy offer in each of those categories.de
Value
An NPV valuation of the costs and savings associated with the offers was conducted to provide an apples-to-apples comparison of value amongst the offers. Staff did not expect the projects to be NPV positive given that the systems were designed to include relatively large batteries to provide guaranteed backup power. The costs of the PPAs will be included in CPA’s annual power supply costs while providing a programmatic benefit to participating member agencies.

While the Coast Energy offer is not NPV positive, the offer was the highest quantitatively ranked offers received in the RFO.

Developer Score
The Coast Energy proposal ranks High. The bid team has significant experience designing, installing, owning, operating and decommissioning numerous behind-the-meter solar plus battery systems in California.

Workforce Development
The Coast Energy proposal ranks High. The developer is willing to secure a Project Labor Agreement, pay prevailing hourly wages, and meet other targeted hire requirements listed in the RFO protocol. The developer estimates that the projects will create one hundred and eighty (180) new direct construction jobs and two (2) permanent jobs.

Agenda Page 124
Board of Directors Item 7
4 2
7 Schedule/Project Delivery
The developer has committed to bring the projects online within eighteen (18) months of PPA execution. The PPA allows for the Commercial Operation Date of any specific site to be delayed under certain circumstances such as if the Site Lease agreement is not executed by the member agencies by the Milestone Date called for in the PPA.

Additionally, the COD will be extended on a day for day basis if Agoura Hills and/or Westlake Village have not confirmed whether they elect an alternative configuration to upsize their batteries within 60 days after the PPA execution.

ENVIRONMENTAL REVIEW
The project developer is responsible for acquiring all necessary permits including building permits and electrical permits as is applicable for the installation of the BESS and solar photovoltaic systems to be installed at the eleven (11) member agency sites.

CPA has no role, jurisdiction, or authority whatsoever with respect to permit review or environmental approval.

ATTACHMENTS1

1. Power Purchase Agreements Presentation

2. Power Purchase Agreement, General Conditions

3. Power Purchase Agreement, Special Conditions– Agoura Hills

4. Power Purchase Agreement, Special Conditions– Beverly Hills

5. Power Purchase Agreement, Special Conditions– Claremont

6. Power Purchase Agreement, Special Conditions– Hacienda Heights

7. Power Purchase Agreement, Special Conditions– Oak View

8. Power Purchase Agreement, Special Conditions– Oxnard

9. Power Purchase Agreement, Special Conditions– Sierra Madre

10.Power Purchase Agreement, Special Conditions– South Pasadena

11.Power Purchase Agreement, Special Conditions– Paramount

12.Power Purchase Agreement, Special Conditions– Simi Valley

13.Power Purchase Agreement, Special Conditions– Westlake Village 1 Consistent with industry practice, portions of the agreements have been redacted to protect market sensitive information.

Agenda Page 125
Power Ready
Power Purchase Agreement
February 1, 2024
Agenda Page 126
CPA launched the Power Ready RFO (RFO) on February 8, 2023 to provide participating member agencies with clean back-up power systems for critical facilities that can be used to provide power during blackout events On September 13, 2023, Staff met with the RFO Review Team to analyze proposers offers and form a shortlisting recommendation
On September 27, 2023, the Energy Committee approved the RFO shortlist and authorized staff to proceed with negotiations with the shortlisted counterparty, Coast Energy DevCo, LLC, a Delaware LLC (Coast Energy) Staff has concluded negotiations and is requesting Board approval for the Chief Executive Officer to execute the Power Purchase Agreement
2 Executive Summary
Agenda Page 127
Agenda
Action Requested
Background
Project Overview
Agenda Page 128
Action Requested
CPA is seeking approval for the Power Ready Power Purchase Agreement General Conditions and 11 Power Purchase Agreement Special Conditions (PPAs) with Coast Energy to provide energy-resilient systems at 11 CPA member agency sites:

Developer NPV
Rank
Contract
Length
Commercial
Operation Date
Expected
Project PV
Size
Expected
BESS Size Process
Coast
Energy 1 20 Years 2025 1.15MW 1.17MW Power Ready
RFO
4 Agenda Page 129
Power Ready
PPA
5 Agenda Page 130
Power Ready Overview
Power Ready is a resiliency program where CPA member agencies have the opportunity to host a behind-the-meter battery energy storage system (BESS) and solar photovoltaic system (PV) to provide backup power during outages. 11 member agency sites are participating in this first round of the program.

What is Power Ready?
6 How Does it Work?
During outages, such as Public Safety Power Shutoffs (PSPS), natural disasters, and other outages, the member agency will get the benefit of islanded backup power to meet critical loads for at least 4 hours.

Systems will provide benefits to CPA including demand response and load shifting from high Time of Use periods and Peak Demand Reduction.

Batteries can be discharged at peak times to provide more cost-effective electricity.

There will be no additional costs to member agencies. The services will be provided at a cost equal or less than what they would have paid if they were not participating in the program, and the developer will handle all maintenance.

Examples of Eligible Facilities:

Community Centers/Parks
City Halls/Civic Centers
Police/Fire Stations
Public Works
Libraries and Recreation Centers
Agenda Page 131
Power Ready Site Selection Process
Beginning in 2021, each member agency was offered an opportunity to submit up to 5 potential sites for review.

A total of 27 member agencies identified over 100 sites to be evaluated as part of this process, 26 of which were deemed to be good candidates.

Ultimately 11 sites across move forward having executed a Memorandum of Understanding with CPA following approval from their City Council or Board of Supervisors.

To build additional resiliency at their sites, the City of Agoura Hills and the City of Westlake Village requested options to increase the battery size at their sites.

If either city moves forward with this option, the additional cost for the larger sized battery will be paid to CPA by the City to offset the higher PPA costs.

Staff will be taking lessons learned to develop the next round of Power Ready, which may include the opportunity for cities to nominate another government agency or non-profit organization to host a facility. Interest from member agencies for the next round will be solicited in the second half of 2024.

Agenda Page 132
Power Ready RFO Process
CPA sought proposals from PV and energy storage installation companies that have demonstrated qualifications, resources, expertise, and experience sufficient to undertake, finance, and complete the project on a timely and cost-efficient basis.

Proposers are fully responsible for:
o Securing any and all necessary permits, site leases and utility agreements o Planning, designing, financing, scheduling, constructing, installing, commissioning, operating, maintaining and decommissioning the systems through a 20-year Power Purchase Agreement with CPA
CPA retained EcoMotion to assist with evaluating each member agency site, recommending system sizing and siting, and technical review of the RFO proposals Agenda Page 133
Selection Process
9 Four bidders submitted offers in the first round and all proposers were invited to participate in the second round
Three bidders submitted second round offers
The Review Team1 met on September 13th and considered all proposals received based on the RFO evaluation criteria and recommended to shortlist the offer from Coast Energy
Energy Committee approved entering into negotiations at its September 27th meeting
Energy Committee had specific recommendations around battery replacement, O&M services, decommissioning protocols and general developer experience.

These recommendations were followed.

1. The Review Team consisted of four Board members from the Energy Committee as well as senior staff consisting of the Chief Executive Officer and the Chief Operating Officer
Agenda Page 134
Coast Energy Project Overview
Developer Experience: Coast Energy is a long-term owner/operator of distributed solar assets in the California Independent System Operator (CAISO) and the US. The development team also includes Newport Power and Encored. Newport Power will provide Engineering Procurement and Construction (EPC) and PV installation for the project.

Encored will provide project management and design services for the project.

Workforce Development: The developer has committed to a Project Labor Agreement, prevailing wage, and meeting targeted hire requirements.

Schedule/Project Delivery: Coast Energy is committed to bring the systems online within 18 months of PPA execution.
o For sites that sought alternate configuration to increases the BESS size, CPA is allowing the developer extend the COD by 60 days to allow time for the relevant agencies to confirm if they want the alternative BESS size.
10 Criteria Score/Rank
Value
Highest
ranked NPV
offer
Developer Score High
Workforce
Development High
Schedule/Project
Delivery
No specific
concerns
Evaluation Summary
Agenda Page 135
Action Requested
Approve the Power Ready Power Purchase Agreement General Conditions and the eleven (11) Power Purchase Agreement Special Conditions (PPA) with Coast Energy and authorize the Chief Executive Officer to execute the agreement.

Developer NPV
Rank
Contract
Length
Commercial
Operation Date
Expected
Project PV
Size
Expected
BESS Size Process
Coast
Energy 1 20 Years 2025 1.15MW 1.17MW Power Ready
RFO
11 Agenda Page 136
Appendix
12 Agenda Page 137
Power Ready Member Agency Sites
13 Member Agency Site Expected Project
PV Size (kW) PV Type Expected Project BESS Size (kW)
Expected Project
BESS Size (kWh)
Agoura Hills Agoura Hills Rec Center 152.15 Rooftop 100 (175)* 400 (700)* Beverly Hills Roxbury Park Community Center 96.92 Rooftop 66.75 267 LA County - Hacienda Heights Hacienda Heights Library 67.47 Rooftop 33.25 133 LA County - Claremont Claremont Helen Renwick Library 66.93 Rooftop 66.75 267 LA County - Paramount Paramount Library 61.44 Rooftop 33.25 133 Oxnard Oxnard Service Center 178.48 Rooftop 100 400
Sierra Madre Sierra Madre City Hall Complex 156.9 Rooftop 66.75 267 South Pasadena South Pasadena City Hall Complex 211.03 Carport 166.75 667 Ventura County - Ojai / Oak View Oak View Park & Resource Center 29.99 Rooftop 33.25 133 Ventura County – Simi Valley Simi Valley Fire Station #41 52.3 Rooftop 33.25 133 Westlake Village Civic Center Complex 179.58 Rooftop 100 (250)* 400 (1,000)* TOTAL 11 Sites 1.25 MW 10 Rooftop /
1 Carport 0.8 MW 3.2 MWh
*Agoura Hills and Westlake Village sought pricing proposals at the BESS sizes shown in the above table as well as an alternate configuration that increases the BESS size.

Agenda Page 138
Program Structure
14 CPA
Member
Agency Developer SITE LEASE
Site Lease: Member agency
provides Developer access
to the facility site under the
site lease agreement
PPA: CPA pays
Developer for the
output of the solar +
storage system under
the terms of the PPA
MOU: The system will
generate bill savings that CPA
will recapture through a
charge on the member agency
bill. The total electricity bill
from CPA will be equal to or
less than what they would
have paid if they were not
participating in the program
Developer develops, owns, operates the solar +
storage system for a 20-year term
Developer guarantees a minimum amount of
yearly bill savings
CPA is the PPA Buyer and makes energy and
capacity payments to the Developer
CPA benefits from solar + storage system during
normal operating times
Member agency serves as the site host
Member agency uses system as back-up power
during outages
No cost will be passed to the member agencies
Agenda Page 139
RFO Process
15 • Staff presents confidential valuation results to RFO Review Team • Review Team meets to develop selection approach and recommended a Proposer to be selected for Energy Committee consideration
• Selected Proposer is invited to enter exclusivity
• Negotiations begin
• Intake final offers
• Perform quality control (QC) on all offers
• Perform valuation
• PPAs brought to full Board for approval
• Intake initial offers
• Perform quality control (QC) on all initial offers
• Perform initial valuation, remove ineligible proposals • Provide confidential site information to selected Proposers • Recommendation of the selected Proposer presented to Energy Committee for approval
• Confidential information is removed
• Announce RFO to market
Agenda Page 140

CPA POWER READY PROGRAM
RENEWABLE ENERGY + STORAGE PRO FORMA PPA – GENERAL CONDITIONS

RENEWABLE POWER PURCHASE AGREEMENT

GENERAL CONDITIONS
between

CLEAN POWER ALLIANCE OF SOUTHERN CALIFORNIA
and

COAST ENERGY DEVCO, LLC

Agenda Page 141

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

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

1.2 Rules of Interpretation ............................................................................19 ARTICLE 2 TERM; CONDITIONS PRECEDENT ...................................................20

2.1 Contract Term. .........................................................................................20

2.2 Conditions Precedent ...............................................................................21

2.3 Development; Construction; Progress Reports.....................................22

2.4 Remedial Action Plan ..............................................................................23

2.5 SGIP Incentives ........................................................................................23 ARTICLE 3 PURCHASE AND SALE ..........................................................................23

3.1 Purchase and Sale of Product .................................................................23

3.2 Sale of Green Attributes. .........................................................................23

3.3 Ownership of the Facility and Renewable Energy Incentives. ............24

3.4 Future Environmental Attributes. .........................................................24

3.5 Test Energy. ..............................................................................................24

3.6 Capacity Attributes. .................................................................................25

3.7 CEC Certification and Verification. ......................................................25

3.8 Eligibility. ..................................................................................................25

3.9 California Renewables Portfolio Standard. ...........................................25

3.10 Compliance Expenditure Cap. ................................................................26

3.11 Project Configuration ..............................................................................26 ARTICLE 4 OBLIGATIONS AND DELIVERIES .....................................................26

4.1 Delivery .....................................................................................................26

4.2 Energy Services. .......................................................................................27

4.3 Title and Risk of Loss. .............................................................................28

4.4 Energy Management ................................................................................28

4.5 Reduction in Energy Delivery Obligation..............................................28

4.6 Guaranteed Energy Production..............................................................29

4.7 Storage Facility Testing ...........................................................................29

4.8 WREGIS ...................................................................................................30

4.9 Roof Repair and Deemed Delivered Energy; Site Host Construction and Compensated Lost Energy. ..............................................................32

4.10 Removal of Facility. .................................................................................33 ARTICLE 5 TAXES ........................................................................................................33

5.1 Allocation of Taxes and Charges. ...........................................................33

5.2 Cooperation. .............................................................................................33 ARTICLE 6 MAINTENANCE OF THE FACILITY ..................................................34

6.1 Maintenance of the Facility. ....................................................................34

6.2 Maintenance of Health and Safety. ........................................................34 ARTICLE 7 METERING ...............................................................................................34

Agenda Page 142
ii

7.1 Metering. ...................................................................................................34

7.2 Meter Verification. ...................................................................................34 ARTICLE 8 INVOICING AND PAYMENT; CREDIT ..............................................35

8.1 Invoicing....................................................................................................35

8.2 Payment. ...................................................................................................35

8.3 Books and Records. ..................................................................................35

8.4 Payment Adjustments; Billing Errors. ..................................................35

8.5 Billing Disputes.........................................................................................36

8.6 Netting of Payments. ................................................................................36

8.7 Seller’s Development Security. ...............................................................36

8.8 Seller’s Performance Security. ...............................................................36

8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral37 ARTICLE 9 NOTICES ...................................................................................................37

9.1 Addresses for the Delivery of Notices.....................................................37

9.2 Acceptable Means of Delivering Notice .................................................38 ARTICLE 10 FORCE MAJEURE.................................................................................38

10.1 Definition ..................................................................................................38

10.2 No Liability If a Force Majeure Event Occurs .....................................39

10.3 Notice .........................................................................................................39

10.4 Termination Following Force Majeure Event, Development Cure Period or Termination of the Lease with Site Host. .............................39 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION FOR DEFAULT .........40

11.1 Events of Default ......................................................................................40

11.2 Remedies; Declaration of Early Termination Date. .............................43

11.3 Damage Payment; Termination Payment. ............................................43

11.4 Notice of Payment of Termination Payment or Damage Payment. ....45

11.5 Disputes With Respect to Termination Payment or Damage Payment.45

11.6 Rights And Remedies Are Cumulative. .................................................45

11.7 Mitigation..................................................................................................45 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF
WARRANTIES ..................................................................................45

12.1 No Consequential Damages. ....................................................................45

12.2 Waiver and Exclusion of Other Damages. .............................................46 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY ...........47

13.1 Seller’s Representations and Warranties. .............................................47

13.2 Buyer’s Representations and Warranties. .............................................47

13.3 General Covenants. ..................................................................................48

13.4 Workforce Development. ........................................................................49 ARTICLE 14 ASSIGNMENT ........................................................................................49

14.1 General Prohibition on Assignments. ....................................................49

Agenda Page 143
iii

14.2 Collateral Assignment .............................................................................49

14.3 Permitted Assignment by Seller .............................................................49

14.4 Portfolio Financing. .................................................................................50 ARTICLE 15 DISPUTE RESOLUTION ......................................................................50

15.1 Governing Law. ........................................................................................50

15.2 Dispute Resolution. ..................................................................................50

15.3 Attorneys’ Fees. ........................................................................................50

15.4 Venue. ........................................................................................................50 ARTICLE 16 INDEMNIFICATION .............................................................................51

16.1 Indemnification. .......................................................................................51

16.2 Claims........................................................................................................51 ARTICLE 17 INSURANCE............................................................................................52

17.1 Insurance ..................................................................................................52 ARTICLE 18 CONFIDENTIAL INFORMATION .....................................................53

18.1 Definition of Confidential Information. .................................................53

18.2 Duty to Maintain Confidentiality. ..........................................................53

18.3 Irreparable Injury; Remedies. ................................................................54

18.4 Further Permitted Disclosure. ................................................................54

18.5 Press Releases ...........................................................................................55 ARTICLE 19 MISCELLANEOUS ................................................................................55

19.1 Entire Agreement; Integration; Exhibits...............................................55

19.2 Amendments. ............................................................................................55

19.3 No Waiver. ................................................................................................55

19.4 No Agency, Partnership, Joint Venture or Lease.. ...............................55

19.5 Severability. ..............................................................................................55

19.6 Mobile-Sierra............................................................................................55

19.7 Counterparts.. ..........................................................................................56

19.8 Electronic Delivery...................................................................................56

19.9 Binding Effect. ..........................................................................................56

19.10 No Recourse to Members of Buyer.........................................................56

19.11 Forward Contract. ...................................................................................56

19.12 Further Assurances ..................................................................................56 Exhibits:

Exhibit A Facility Construction and Commercial Operation Exhibit B Compensation
Exhibit C Progress Reporting Form
Exhibit D Guaranteed Energy Production Damages Calculation Exhibit E Form of Construction Start Date Certificate
Exhibit F Form of Commercial Operation Date Certificate

Agenda Page 144
iv
Exhibit G-1 Form of Installed Capacity Certificate
Exhibit G-2 Form of Effective Storage Capacity Certificate Exhibit H Form of Letter of Credit
Exhibit I Notices
Exhibit J Storage Capacity Tests
Exhibit K Form of Consent to Collateral Assignment
Exhibit L Supply Chain Code of Conduct
Exhibit M Force Majeure Event and/or Development Cure Period Claim Form Exhibit N Form of Site Lease
Exhibit O Form of Surety Bond

Agenda Page 145

RENEWABLE POWER PURCHASE AGREEMENT

GENERAL CONDITIONS
These General Terms and Conditions (“General Conditions”) are dated as of _________ (the “Execution Date”), between Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”) and Coast Energy DevCo, LLC, a Delaware limited liability company (“Seller”). Buyer and Seller are sometimes referred to herein individually as a “Party” and jointly as the “Parties.” All capitalized terms used in the Agreement are used with the meanings ascribed to them in Article 1 to these General Conditions unless separately defined in the Special Conditions. These General Conditions are intended to be incorporated by reference into one or more Renewable Power Purchase Agreements that may be entered into between the Parties. These General Conditions shall have no binding effect upon the Parties, respectively, except to the extent the Parties enter into one or more Special Conditions that incorporates these General Conditions.

Each Special Conditions that incorporates these General Conditions shall together constitute a separate Renewable Power Purchase Agreement (an “Agreement’) between the Parties.

RECITALS
WHEREAS, Seller intends to develop, design, construct, own, and operate one or more Facilities; and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, on the terms and conditions set forth in the Agreement, the Product from each Facility; NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the following:

ARTICLE 1

DEFINITIONS

1.1 Contract Definitions. The following terms, when used herein with initial capitalization, shall have the meanings set forth below:
“AC” means alternating current.
“Accepted Compliance Costs” has the meaning set forth in Section 3.10(c). “Actual Efficiency Rate” means the rate calculated by dividing Energy Out by Energy In (a) pursuant to Exhibit J for the initial Efficiency Rate, and (b) based on actual Storage Facility operations for each month thereafter.
“Adjusted Energy Production” has the meaning set forth in Exhibit D. “Adjusted Facility Energy” means, for the applicable period, the sum of (a) the total Facility Energy for such period, plus (b) the result of subtracting (i) the total Discharging Energy

Agenda Page 146
2 for such period from (ii) the total Discharging Energy for such period divided by the Storage Facility Loss Factor.
“Affiliate” means, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition and the definition of “Permitted Transferee”, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person. “Agreement” has the meaning set forth in the Preamble of the General Conditions and includes the General Conditions, Special Conditions and any Exhibits, Schedules and any written supplements thereto.
“Bankrupt” or “Bankruptcy” means with respect to any entity, such entity that (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, (b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, (c) makes an assignment or any general arrangement for the benefit of creditors, (d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due.
“Battery Charging Factor” means the quotient (expressed as a decimal) of (a) the Charging Energy after reaching 100% SOC or the first five (5) hours of the charging phase of the applicable Capacity Test, as applicable, divided by (b) [the Installed Capacity x four (4) hours] MWh, not to exceed one (1).
“Battery Discharging Factor” means the quotient (expressed as a decimal) of (a) the Discharging Energy after the first four (4) hours of the discharging phase of the applicable Capacity Test, divided by (b) [the Installed Capacity x four (4) hours] MWh, not to exceed one (1).
“Bill Optimization Services” has the meaning set forth in Schedule 4 of the Special Conditions.
“Billing Period(s)” means each of the consecutive time periods applicable to Site Host during which the Utility Provider assesses and bills demand charges and retail electricity rates for the Site Load.
“Blackout Event” means any event in which there is insufficient energy supplied by the Utility Provider to serve one hundred percent (100%) of the Critical Load, including a planned outage by the Utility Provider or a Public Safety Power Shutdown (as defined in the applicable Utility Provider tariff).

Agenda Page 147
3 “Blackout Event Performance Factor” has the meaning set forth in Schedule 3 of the Special Conditions.
“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 in the Preamble of the General Conditions. “Buyer Default” means an Event of Default of Buyer.
“Buyer Dispatched Test” has the meaning in Section 4.7(c). “Buyer’s Indemnified Parties” has the meaning set forth in Section 18.2. “Buyer’s WREGIS Account” has the meaning set forth in Section 4.8(a). “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
“Calculation Interval” has the meaning set forth in Schedule 3 of the Special Conditions. “California Renewables Portfolio Standard” or “RPS” means the renewable energy program and policies established by California State Senate Bills 1038 (2002), 1078 (2002), 107 (2008), X-1 2 (2011), 350 (2015), and 100 (2018) as codified in, inter alia, California Public Utilities Code Sections 399.11 through 399.31 and California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time. “Capacity Attribute” means any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power that the Facility can generate and deliver to the Delivery Point at a particular moment and that can be purchased, sold or conveyed under CAISO or CPUC market rules.
“Capacity Availability Factor” has the meaning set forth in Exhibit C. “Capacity Damages” means collectively Storage Capacity Damages and PV Capacity Damages.
“Capacity Test” or “CT” means the Commercial Operation Storage Capacity Test, Storage Capacity Test, or any other test conducted pursuant to Exhibit J. “CEC” means the California Energy Commission or its successor agency. “CEC Certification and Verification” means that the CEC has certified (or, with respect to periods before the date that is one hundred eighty (180) days following the Commercial Operation Date, that the CEC has pre-certified) that the Generating Facility is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard and

Agenda Page 148
4 that all Adjusted Facility Energy delivered to the Delivery Point or Storage Facility as Charging Energy qualifies as generation from an Eligible Renewable Energy Resource. “CEC Precertification” means that the CEC has issued a precertification for the Facility indicating that the planned operations of the Facility would comply with applicable CEC requirements for CEC Certification and Verification.
“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, in calculating ownership percentages for all purposes of the foregoing:
(a) any ownership interest in Seller held by Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards Ultimate Parent’s ownership interest in Seller unless Ultimate Parent directly or indirectly owns more than fifty percent (50%) of the outstanding equity interests in each such intermediate entity; and (b) ownership interests in Seller owned directly or indirectly by any Lender (including any tax equity provider) shall be excluded from the total outstanding equity interests in Seller. “Charging Energy” means all Energy delivered to the Storage Facility, as measured at the Storage Facility Metering Point by the Storage Facility Meter. All Charging Energy shall be used solely to charge the Storage Facility.
“COD Certificate” has the meaning set forth in Exhibit B. “Collateral Assignment Agreement” has the meaning set forth in Section 14.2. “Commercial Operation” has the meaning set forth in Exhibit A. “Commercial Operation Date” means the date Commercial Operation is achieved. “Commercial Operation Delay Damages” means an amount equal to (a) the Development Security amount required hereunder, divided by (b) ninety (90). “Commercial Operation Storage Capacity Test” means the Storage Capacity Test conducted in connection with Commercial Operation of the Storage Facility, including any additional Storage Capacity Test for additional Storage Facility capacity installed after the Commercial Operation Date pursuant to Section 5 of Exhibit A. “Compensated Lost Energy” has the meaning set forth in Section 4.9(c). “Compliance Actions” has the meaning set forth in Section 3.10(a). “Compliance Expenditure Cap” has the meaning set forth in Section 3.10. “Confidential Information” has the meaning set forth in Section 18.1.

Agenda Page 149
5 “Construction Start” has the meaning set forth in Exhibit A. “Construction Start Date” has the meaning set forth in Exhibit A. “Contract Price” has the meaning set forth in Schedule 1 of the Special Conditions. For clarity, the Contract Price is each of the Renewable Rate and the Storage Rate. “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. “Cost Savings” has the meaning set forth in Section 3 of Schedule 4 of the Special Conditions.
“Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace the Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating the Agreement. “COVID-19” means the epidemic disease designated COVID-19 and the related virus designated SARS-CoV-2 and any mutations thereof, and the efforts of a Governmental Authority to combat such disease.
“CPUC” means the California Public Utilities Commission, or successor entity. “Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by S&P or Moody’s. If ratings by S&P and Moody’s are not equivalent, the lower rating shall apply.
“Critical Load” has the meaning set forth in Schedule 3 of the Special Conditions. “Cure Plan” has the meaning set forth in Section 11.1(b)(iii). “Daily Delay Damages” means an amount equal to (a) the Development Security amount required hereunder, divided by (b) one hundred twenty (120). “Damage Payment” means the amount to be paid by the Defaulting Party to the Non-Defaulting Party after a Terminated Transaction occurring prior to the Commercial Operation Date, in a dollar amount as set forth in Section 11.3(a). “Deemed Delivered Energy” has the meaning set forth in Section 4.9(b). “Defaulting Party” has the meaning set forth in Section 11.1(a).

Agenda Page 150
6 “Deficient Month” has the meaning set forth in Section 4.8(e). “Delay Damages” means Daily Delay Damages and Commercial Operation Delay Damages.
“Delivery Point” means either (a) the Site Load, or (b) the point of interconnection between the Site and Distribution System pursuant to the terms of the Interconnection Agreement, as applicable.
“Delivery Term” means the period beginning on the Commercial Operation Date and continuing for twenty (20) Contract Years, unless terminated earlier in accordance with the terms and conditions of the Agreement.
“Demand Response Capacity” means the portion of the Storage Facility, as set forth in Schedule 1 of the Special Conditions, that is designated to provide demand response products in accordance with Section 4.1(c).
“Development Cure Period” has the meaning set forth in Exhibit A. “Development Security” means (a) cash or (b) a Letter of Credit in the amount set forth in Schedule 1 of the Special Conditions.
“Discharging Energy” means all Energy delivered to the Delivery Point from the Storage Facility, as measured by the Storage Facility Meter. All Discharging Energy shall have originally been delivered to the Storage Facility as Charging Energy. “Disclosing Party” has the meaning set forth in Section 18.2. “Disruption Period” has the meaning set forth in Section 4.9(b). “Distribution System” means the distribution facilities operated by the Utility Provider, now or hereafter in existence, which provide energy distribution service downstream from the Site retail meter.
“Distribution System Outage” means an outage on the Distribution System, other than a System Emergency, that is not caused by Seller’s actions or inactions and that prevents Buyer or the Utility Provider (as applicable) from receiving Facility Energy onto the Distribution System. “Early Termination Date” has the meaning set forth in Section 11.2(a). “Effective Date” has the meaning set forth in the Preamble of the Special Conditions. “Effective Storage Capacity” means the maximum dependable operating capacity of the Storage Facility to discharge Energy for four (4) hours of continuous discharge, as measured by the Storage Facility Meter pursuant to the most recent Storage Capacity Test (including the Commercial Operation Storage Capacity Test), as evidenced by a certificate substantially in the form attached as Exhibit G-2 hereto, up to but not in excess of (a) the Guaranteed Storage Capacity

Agenda Page 151
7 (with respect to a Commercial Operation Storage Capacity Test) or (b) the Installed Storage Capacity (with respect to any other Storage Capacity Test). “Efficiency Rate” means the rate calculated by dividing Energy Out by Energy In (a) pursuant to Exhibit J for the initial Efficiency Rate, and (b) based on actual Storage Facility operations for each month thereafter.
“Efficiency Rate Factor” has the meaning set forth in Exhibit B. “Electrical Losses” means all transmission or transformation losses (a) between the Generating Facility and the Delivery Point, or (b) between the Storage Facility and the Delivery Point, in each case as applicable.
“Eligible Renewable Energy Resource” has the meaning set forth in California Public Utilities Code Section 399.12(e) and California Public Resources Code Section 25741(a), as either code provision is amended or supplemented from time to time. “Eligible Surety” means a corporate surety included in the U.S. Treasury’s List of Certified Companies whose underwriting limitation is in excess of the Credit Support amount for which it takes responsibility and secures by way of a Surety Bond and is licensed to do business in the State of California with an A.M. Best rating of “A-” or higher; provided, in the event such insurance company is also rated by (i) Moody’s, it most also maintain a credit rating of at least “A3” with a stable designation, or (ii) S&P, it must also maintain a credit rating of at least “A-” with a stable designation; provided further, if such insurance company is rated by both Moody’s and S&P in addition to A.M. Best, its credit rating must satisfy the conditions set forth in clauses (i) and (ii) above.
“Emergency Energy Services” has the meaning set forth in Schedule 3 of the Special Conditions.
“Energy” means electrical energy, measured in kilowatt-hours, megawatt-hours, or multiple units thereof.
“Energy In” means the total AC energy charged (in MWh) to the Storage Facility as measured at the Storage Facility Meter during the applicable calculation period. “Energy Management System” or “EMS” means the Facility’s energy management system.
“Energy Out” means the total AC energy discharged (in MWh) as measured at the Storage Facility Meter during the applicable calculation period. “Environmental Law” means any and all Laws relating to the protection of health and the environment, worker health and safety, and/or governing the handling, use, generation, treatment, storage, transportation, disposal, manufacture, distribution, formulation, packaging, labeling, or release to the environment of or exposure to Hazardous Materials, including any such requirements implemented through Governmental Approvals.

Agenda Page 152
8 “Event of Default” has the meaning set forth in Section 11.1. “Excess MWh” has the meaning set forth in Exhibit B.
“Execution Date” has the meaning set forth in the Preamble of the General Conditions. “Expected Commercial Operation Date” has the meaning set forth in Schedule 1 of the Special Conditions.
“Expected Construction Start Date” has the meaning set forth in Schedule 1 of the Special Conditions.
“Expected Energy” means the quantity of Adjusted Facility Energy that Seller expects to be able to deliver to Buyer from the Generating Facility during each Contract Year, which for each Contract Year is the quantity specified in Schedule 1 of the Special Conditions, which amount shall be adjusted proportionately to the reduction from Guaranteed PV Capacity to Installed PV Capacity pursuant to Section 5(a) of Exhibit A, if applicable. “Facility” means the combined Generating Facility and the Storage Facility. “Facility Energy” means PV Energy and/or Discharging Energy, as applicable, during any Settlement Interval.
“Financial Close” means Seller and/or one of its Affiliates has obtained debt and/or equity financing commitments from one or more Lenders sufficient to construct the Facility, including such financing commitments from Seller’s owner(s).
“Force Majeure Event” has the meaning set forth in Section 10.1. “Force Majeure Unavailability” has the meaning set forth in Exhibit B. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility that prevents Seller from generating Energy or making Facility Energy available to the Delivery Point and that is not the result of a Force Majeure Event. “Forward Certificate Transfers” has the meaning set forth in Section 4.8(a). “Future Environmental Attributes” means any and all Green Attributes that become recognized under applicable Law after the Effective Date (and not before the Effective Date), notwithstanding the last sentence of the definition of “Green Attributes” herein. Future Environmental Attributes do not include Tax Credits associated with the construction or operation of the Facility, or other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation. “Gains” means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of the Agreement for the remaining Contract Term, determined in a commercially reasonable manner. Factors used in determining the economic benefit to a Party may include, without limitation, reference to

Agenda Page 153
9 information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, all of which should be calculated for the remaining Contract Term, and include the value of Green Attributes and, if applicable, Capacity Attributes. “Generating Facility” means the solar photovoltaic generating facility described in Schedule 2 of the Special Conditions, located at the Site and including mechanical equipment and associated facilities and equipment required to deliver (i) PV Energy to the Delivery Point, and (ii) Charging Energy to the Storage Facility; provided, the “Generating Facility” does not include the Storage Facility.
“Generating Facility Meter” means the 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 PV Energy delivered to the Generating Facility Metering Point for the purpose of invoicing in accordance with Section 8.1. For clarity, the Generating Facility may contain multiple measurement devices that will make up the Generating Facility Meter, and, unless otherwise indicated, references to the Generating Facility Meter shall mean all such measurement devices and the aggregated data of all such measurement devices, taken together.
“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. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled (including under the RPS regulations and/or under any and all other international, federal, regional, state or other law, rule, regulation, bylaw, treaty or other intergovernmental compact, decision, administrative decision, program (including any voluntary compliance or membership program), competitive market or business method (including all credits, certificates, benefits, and emission measurements, reductions, offsets and allowances related thereto)), attributable to the generation from the Facility and its displacement of conventional energy generation. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; and (3) the reporting rights to such avoided emissions, such as Green Tag Reporting Rights. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) Tax Credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances

Agenda Page 154
10 associated with the Facility that are applicable to a state or federal income taxation obligation, or (iii) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. Green Attributes under the preceding definition are limited to Green Attributes that exist under applicable Law as of the Effective Date. “Green Tag Reporting Rights” means the right of a purchaser of renewable energy to report ownership of accumulated Green Tags in compliance with and to the extent permitted by applicable Law and include, without limitation, rights under Section 1605(b) of the Energy Policy Act of 1992, and any present or future federal, state or local certification program or emissions trading program, including pursuant to the WREGIS Operating Rules. “Green Tags” means a unit accumulated on a MWh basis where one (1) represents the Green Attributes associated with one (1) MWh of Adjusted Facility Energy. “Green-e Certified” means the Green Attributes provided to Buyer pursuant to the Agreement are certified under the Green-e Energy National Standard. “Green-e Energy National Standard” means the Green-e Renewable Energy Standard for Canada and the United States (formerly Green-e Energy National Standard) version 3.4, updated April 27, 2023, as may be further amended from time to time. “Guaranteed Capacity” means the sum of (x) the Guaranteed PV Capacity and (y) the Guaranteed Storage Capacity.
“Guaranteed Commercial Operation Date” has the meaning set forth in Schedule 1 of the Special Conditions, subject to extension pursuant to Exhibit A. “Guaranteed Construction Start Date” has the meaning set forth in Schedule 1 of the Special Conditions, subject to extension pursuant to Exhibit A. “Guaranteed Efficiency Rate” means the minimum guaranteed Efficiency Rate of the Storage Facility throughout the Delivery Term, as set forth in Schedule 1 of the Special Conditions.
“Guaranteed Energy Production” has the meaning set forth in Section 4.7. “Guaranteed PV Capacity” means the generating capacity of the Generating Facility, as measured in kW AC, that Seller commits to install pursuant to the Agreement as set forth in Schedule 1 of the Special Conditions.
“Guaranteed Storage Capacity” means the maximum dependable operating capability of the Storage Facility to discharge Energy, as measured in kW AC for four (4) hours of continuous discharge, that Seller commits to install pursuant to the Agreement as set forth in Schedule 1 of the Special Conditions.
“Hazardous Materials” means any hazardous or toxic material, substance or waste, including petroleum, petroleum hydrocarbons or petroleum products, petroleum by-products, radioactive materials, asbestos or asbestos-containing materials, gasoline, diesel fuel, pesticides,

Agenda Page 155
11 radon, urea formaldehyde, mold, lead or lead-containing materials, polychlorinated biphenyls; and any other chemicals, materials, substances or wastes in any amount or concentration which are regulated under or for which liability can be imposed under any Environmental Law. “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 sum of (x) the Installed PV Capacity and (y) the Installed Storage Capacity.
“Installed PV Capacity” means the actual generating capacity of the Generating Facility, as measured in kW AC, that achieves Commercial Operation, as evidenced by a certificate substantially in the form attached as Exhibit G-1 hereto. “Installed Storage Capacity” means the maximum dependable operating capacity of the Storage Facility to discharge Energy for four (4) hours of continuous discharge, as measured in kW AC by the Storage Facility Meter, that achieves Commercial Operation, as evidenced by a certificate substantially in the form attached as Exhibit G-1 hereto, as such capacity may be adjusted pursuant to Section 5 of Exhibit A.
“Interconnection Agreement” means the interconnection agreement entered into by Seller (or an Affiliate of Seller) or the Site Host, as appropriate consistent with Prudent Operating Practice, pursuant to which the Facility will be interconnected with the Distribution System, and pursuant to which Seller’s Interconnection Facilities will be constructed, operated and maintained during the Contract Term.
“Interconnection Approval” means receipt of a “Deemed Valid” notice from the Utility Provider with respect to the application for interconnection of the Facility with the Distribution System.
“Interconnection Facilities” means the interconnection facilities, control and protective devices and metering facilities required to connect the Facility with the Distribution System in accordance with the Interconnection Agreement.
“Interest Rate” has the meaning set forth in Section 8.2. “IP Indemnity Claim” has the meaning set forth in Section 16.1(b). “ITC” means the investment tax credit established pursuant to Section 48 of the United States Internal Revenue Code of 1986.
“Joint Powers Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.).
“Joint Powers Agreement” means that certain Joint Powers Agreement dated June 27, 2017, as amended from time to time, under which Buyer is organized as a Joint Powers Authority in accordance with the Joint Powers Act.

Agenda Page 156
12 “kW” means kilowatts in alternating current, unless expressly stated in terms of direct current.
“kWh” means a kilowatt-hour 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 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 U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a Credit Rating of at least A- with an outlook designation of “stable” from S&P or A3 with an outlook designation of “stable” from Moody’s, in a form substantially similar to the letter of credit set forth in Exhibit H.
“Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Buyer, licensed in the State of California. “Losses” means, with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of the Agreement for the remaining Contract Term, determined in a commercially reasonable manner. Factors used in determining economic loss to a Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, all of which should be calculated for the remaining Contract Term and must include the value of Green Attributes, Capacity Attributes (if applicable), and Renewable Energy Incentives. “Lost Output” has the meaning set forth in Section 4.7. “Material Permits” means all permits required for Seller to commence construction, as set forth in Schedule 5 of the Special Conditions.

Agenda Page 157
13 “Milestones” means the development activities for significant permitting, interconnection, financing and construction milestones set forth in Schedule 1 of the Special Conditions. “Minimum Guaranteed Cost Savings” has the meaning set forth in Section 2 of Schedule 4 of the Special Conditions.
“Monthly Capacity Payment” means the payment required to be made by Buyer to Seller each month of the Delivery Term as compensation for the provision of Effective Storage Capacity and Capacity Attributes associated with the Storage Facility, as calculated in accordance with Exhibit B.
“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.
“Non-Defaulting Party” has the meaning set forth in Section 11.2. “Notice” shall, unless otherwise specified in the Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, or electronic messaging (e-mail).
“Party” has the meaning set forth in the Preamble of the General Conditions. “Payment Bond” has the meaning set forth in Schedule 1 of the Special Conditions. “Performance Measurement Period” means the prior 24-month period measured from the end of each Contract Year commencing in the second Contract Year. “Performance Security” means (i) cash or (ii) a Letter of Credit in the amount set forth in Schedule 1 of the Special Conditions.
“Permitted Transferee” means (i) any Affiliate of Seller or (ii) any entity that satisfies, or is controlled by another Person that satisfies, the following requirements:
(a) A tangible net worth of not less than one hundred fifty million dollars ($150,000,000) or a Credit Rating of at least BBB- from S&P, BBB- from Fitch, or Baa3 from Moody’s; and
(b) At least two (2) years of experience in the ownership and operations of power generation and energy storage facilities similar to the Facility, or has retained a third-party with such experience to operate the Facility.
“Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust,

Agenda Page 158
14 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 4.5(a).
“Portfolio” means the single portfolio of electrical energy generating, energy storage, or other assets and entities, including the Facility (or the interests of Seller or Seller’s Affiliates or the interests of their respective direct or indirect parent companies), that is pledged as collateral security in connection with a Portfolio Financing.
“Portfolio Content Category” means PCC1, PCC2 or PCC3, as applicable. “Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law. “Portfolio Content Category 2” or “PCC2” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(2), as may be amended from time to time or as further defined or supplemented by Law. “Portfolio Content Category 3” or “PCC3” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(3), as may be amended from time to time or as further defined or supplemented by Law. “Portfolio Financing” means any debt incurred by an Affiliate of Seller that is secured only by a Portfolio.
“Portfolio Financing Entity” means any Affiliate of Seller that incurs debt in connection with any Portfolio Financing.
“Pre-existing Environmental Conditions” means any: (i) violation of, breach of or non-compliance with any Environmental Laws with respect to the Site that first existed, arose or occurred on or prior to the Construction Start Date, and (ii) the presence or release of, or exposure to, any Hazardous Materials at, to, on, in, under or from the Site that first existed, arose or occurred on or prior to the Construction Start Date.
“Product” has the meaning set forth in Schedule 1 of the Special Conditions. “Progress Report” means a progress report including the items set forth in Exhibit C. “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

Agenda Page 159
15 respect to behind-the-meter, commercial generating facilities with integrated energy storage 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 behind-the-meter, commercial generating facilities with integrated 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. “PTC” means the production tax credit established pursuant to Section 45 of the United States Internal Revenue Code of 1986.
“PV Capacity Damages” has the meaning set forth in Section 5 of Exhibit A. “PV Energy” means all Energy delivered from the Generating Facility to the Delivery Point as measured by the Generating Facility Meter.
“Receiving Party” has the meaning set forth in Section 18.2. “Remedial Action Plan” has the meaning set forth in Section 2.4. “Renewable Energy Credit” has the meaning set forth in California Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Law.
“Renewable Energy Incentives” means: (a) all federal, state, or local Tax credits or other Tax benefits associated with the construction, ownership, or production of electricity from the Facility (including credits under Sections 38, 45, 46 and 48 of the Internal Revenue Code of 1986, as amended); (b) any federal, state, or local grants, subsidies or other like benefits relating in any way to the Facility, or any similar or substitute payment available under subsequently enacted federal legislation; and (c) any other form of incentive relating in any way to the Facility that is not a Green Attribute, Future Environmental Attribute, or Capacity Attribute. “Renewable Rate” has the meaning set forth in Schedule 1 of the Special Conditions; provided, if the officer’s certificate provided by Seller pursuant to Section 2.2(g) states that Seller will claim a Tax Credit rate for the Generating Facility that is higher than Seller’s assumed Tax Credit rate as set forth in Schedule 1 of the Special Conditions, the Renewable Rate shall be reduced by (a) $0/MWh for each one (1) percentage point that the claimed ITC rate is above 30 percent (30%) or (b) $0/MWh for each $0.0005/kWh that the PTC rate is above $0.028/kWh; provided further, the Renewable Rate may also be adjusted in accordance with Section 4.9(a). “Requested Confidential Information” has the meaning set forth in Section 18.2. “Roof Work Costs” has the meaning set forth in Section 4.9(a).

Agenda Page 160
16 “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of S&P Global Inc.) or its successor.
“Security Interest” has the meaning set forth in Section 8.9. “SGIP” means the California Public Utility Commission’s Self-Generation Incentive Program created pursuant to R.12-11-005 and all related CPUC decisions and rulings. “Seller” has the meaning set forth in the Preamble of the General Conditions. “Seller Initiated Test” has the meaning set forth in Section 4.9(c). “Seller’s WREGIS Account” has the meaning set forth in Section 4.8(a). “Settlement Amount” means Buyer’s Costs and Losses, on the one hand, netted against its Gains, on the other. If Buyer’s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to Buyer. If Buyer’s Gains exceed its Costs and Losses, then the Settlement Amount shall be zero dollars ($0). The Settlement Amount does not include consequential, incidental, punitive, exemplary or indirect or business interruption damages. “Settlement Interval” means a five-minute interval.
“Site” means the real property on which the Facility is or will be located, as further described in Schedule 2 of the Special Conditions.
“Site Control” means that, for the Delivery Term, Seller is the lessee of the Site pursuant to a lease in a form substantially similar to Exhibit N. “Site Host” means the Person set forth in Schedule 2 of the Special Conditions, which Person is the retail electricity customer for the Site. “Site Load” means point of connection at the circuit panel(s) where the Facility connects to the Site Host’s electrical load, as indicated on the Site Diagram in Schedule 2 of the Special Conditions.
“SOC” or “State of Charge” means (a) the level of charge of the Storage Facility relative to (b) the Effective Storage Capacity multiplied by four (4) hours, expressed as a percentage. The “SOC” shall represent the range of Stored Energy Level reserved exclusively for Buyer’s use; provided, Seller may represent such range anywhere within the actual available capability of the Facility.
“Special Conditions” means a Renewable Power Purchase Agreement Special Conditions signed between the Parties incorporating these General Terms by reference. “Storage Capacity Damages” has the meaning set forth in Section 5 of Exhibit A. “Storage Capacity Test” means any test or retest of the Storage Facility to establish the Installed Storage Capacity, Effective Storage Capacity and/or initial Efficiency Rate, conducted in

Agenda Page 161
17 accordance with the testing procedures, requirements and protocols set forth in Section 4.9 and Exhibit J.
“Storage Cure Plan” has the meaning set forth in Section 11.1(b)(iv). “Storage Facility” means the energy storage facility described in Schedule 2 to the Special Conditions, located at the Site and including mechanical equipment and associated facilities and equipment required to deliver Storage Product, and as such storage facility may be expanded or otherwise modified from time to time in accordance with the terms hereof. “Storage Facility Loss Factor” means the greater of (a) the Guaranteed Efficiency Rate and (b) the Actual Efficiency Rate.
“Storage Facility Meter” means the 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 Storage Facility and the amount of Discharging Energy discharged from the Storage Facility 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 Storage Facility Meter, and, unless otherwise indicated, references to the Storage Facility Meter shall mean all such measurement devices and the aggregated data of all such measurement devices, taken together. “Storage Product” means (a) Discharging Energy, (b) Capacity Attributes, if any, and (c) Effective Storage Capacity, in each case arising from or relating to the Storage Facility. “Storage Rate” has the meaning set forth in Schedule 1 of the Special Conditions; provided, (a) if the officer’s certificate provided by Seller pursuant to Section 2.2(g) states that the ITC rate for the Storage Facility is higher than Seller’s assumed ITC rate as set forth in Schedule 1 of the Special Conditions, the Storage Rate shall be reduced by $ per kW-mo. for each percentage point that the new ITC rate is above thirty percent (30%), (b) the Storage Rate shall be reduced by $ per kW-mo. for each ten thousand dollars ($10,000) of SGIP incentive funds received by Seller in respect of the Storage Facility, and (c) (i) if Buyer provides Notice to Seller that Buyer elects to increase the Guaranteed Storage Capacity to the Alternate Guaranteed Storage Capacity for the Agoura Hills Facility but not for the Westlake Village Facility, the Storage Rate for all Agreements incorporating these General Conditions shall be reduced by $0.50 per kW-mo.; (ii) if Buyer provides Notice to Seller that Buyer elects to increase the Guaranteed Storage Capacity to the Alternate Guaranteed Storage Capacity for the Westlake Village Facility but not for the Agoura Hills Facility, the Storage Rate for all Agreements incorporating these General Conditions shall be reduced by $1.50 per kW-mo.; and (iii) if Buyer provides Notice to Seller that Buyer elects to increase the Guaranteed Storage Capacity to the Alternate Guaranteed Storage Capacity for both the Westlake Village Facility and the Agoura Hills Facility, the Storage Rate for all Agreements incorporating these General Conditions shall be reduced by $2.00 per kW-mo. “Stored Energy Level” means, at a particular time, the amount of Energy in the Storage Facility available to be discharged to the Delivery Point as Discharging Energy, expressed in MWh.

Agenda Page 162
18 “Supplementary Capacity Test Protocol” has the meaning set forth in Exhibit J. “Supply Chain Code” has the meaning in Exhibit L.
“Surety Bond” means a bond issued and payable by an Eligible Surety, in substantially the form set forth in Appendix O hereto or as otherwise acceptable to Buyer in its reasonable discretion.
“System Emergency” means (a) any outage of the Distribution System that limits or reduces electricity deliveries to or from the Site, or (b) any condition that requires, as determined and declared by CAISO or the Utility Provider, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of distribution or interconnection facilities or generation supply in the immediate vicinity of the Site, or (iii) to preserve Distribution 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. “Tax Credits” means the PTC, ITC and any other state, local and/or federal production tax credit, depreciation benefit, tax deduction and/or investment tax credit specific to the production of renewable energy and/or investments in renewable energy facilities or battery storage facilities.
“Terminated Transaction” has the meaning set forth in Section 11.2(a). “Termination Payment” has the meaning set forth in Section 11.3(b). “Test Energy” means Facility Energy delivered (a) commencing on the first date that the Utility Provider informs Seller in writing that Seller has conditional or temporary permission to operate in parallel with the Distribution System, and (b) ending upon the occurrence of the Commercial Operation Date.
“Test Energy Rate” has the meaning set forth in Section 3.6. “Ultimate Parent” means Coast Energy Holdings, LLC, a Delaware limited liability company.
“Utility Provider” means any entity that owns, operates and maintains distribution lines and associated facilities and/or has entitlements to use certain distribution lines and associated facilities for the purpose of transmitting or transporting the Facility Energy from the Site and/or delivering Energy to the Site to serve the Site Load.
“WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.

Agenda Page 163
19 “WREGIS Certificate Deficit” has the meaning set forth in Section 4.8(e). “WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of October 2022, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.

1.2 Rules of Interpretation. In the 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 the 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 the Agreement as a whole and not to any particular provision of the Agreement; (d) a reference to an Article, Section, paragraph, clause, Party, Exhibit or Schedule is a reference to that Article, Section, paragraph, clause of, or that Party, Exhibit or Schedule to, the General Conditions unless otherwise specified; (e) a reference to a document or agreement, including the Agreement shall mean such document, agreement or the Agreement including any amendment or supplement to, or replacement, novation or modification of the Agreement, but disregarding any amendment, supplement, replacement, novation or modification made in breach of such document, agreement or the 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;

Agenda Page 164
20 (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 the 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 the Agreement and that it or its counsel reviewed the 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 the Agreement.

ARTICLE 2
TERM; CONDITIONS PRECEDENT

2.1 Contract Term.
(a) The term of the 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, subject to Buyer’s obligations in Section 3.5, 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) In the event that any of the circumstances set forth in this Section 2.1(b) occur prior to the Commercial Operation Date, Seller may, in its sole discretion, provide Notice to Buyer with proposed modifications to the Agreement, with documentation reasonably acceptable to Buyer demonstrating the need for such proposed modifications. Buyer shall, within forty-five (45) days of receipt of such Notice, provide Notice of its acceptance, which shall not be unreasonably withheld, or rejection of such proposed modifications. If Buyer accepts such proposed modifications, the Parties shall amend the Agreement accordingly. If Buyer rejects such proposed modifications to the Agreement or fails to provide such Notice within such forty-five (45) day period, Seller shall have the right, in its sole discretion, to terminate the Agreement, in which case neither Party shall have any liability to the other except for any such liabilities that may have accrued prior to such termination.
(i) Seller determines that the Site, as is, is insufficient to accommodate the Facility or unsuitable for construction or operation of the Facility. (ii) There exist Site conditions (including Pre-Existing Environmental Conditions) or construction requirements that were not known as of the Effective Date and that could reasonably be expected to materially increase the cost of, or time required for, construction of the Facility or would adversely affect the electricity production from the Facility as designed.

Agenda Page 165
21 (iii) Seller has not received (A) a fully executed lease from the Site Host, or (B) a release or acknowledgement from any mortgagee of the Site, if required by Seller’s Lender, to establish the priority of its security interest in the Facility. (iv) Seller has not received evidence reasonably satisfactory to it that interconnection services will be available with respect to energy delivered by the Facility or that interconnection costs or interconnection schedule are not obtained from the Utility Provider on terms and conditions satisfactory to Seller.
(v) Seller has determined that there are easements, covenants, conditions and restrictions (CCRs) or other land use restrictions, liens or encumbrances that would materially impair or prevent the installation, operation, maintenance or removal of the Facility. (vi) Seller has determined that circumstances or conditions exist that were not known as of the Effective Date and that could reasonably be expected to materially adversely affect Seller’s ability to achieve the Minimum Guaranteed Cost Savings. (c) Following the end of the Contract Term, neither Seller nor Seller’s Affiliates may sell, market or deliver any Product associated with or attributable to the Facility to a party other than Buyer (including to Site Host, except pursuant to the Buyout Option (as defined in the applicable Site lease between Seller and Site Host)) unless prior to selling, marketing or delivering such Product, or entering into the agreement to sell, market or deliver such Product to a party other than Buyer, Seller or Seller’s Affiliates provide Buyer with a written offer to sell the Product on terms and conditions materially similar to the terms and conditions Seller will offer to such third party and Buyer fails to accept such offer within forty-five (45) days of Buyer’s receipt thereof.
(d) Applicable provisions of the 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 the Agreement, and all indemnity and audit rights shall remain in full force and effect for one (1) year following the termination of the Agreement.

2.2 Conditions Precedent. The Delivery Term shall not commence until Seller completes to Buyer’s reasonable satisfaction each of the following conditions, which Buyer shall, if submitted by Seller within five (5) Business Days of the expected Commercial Operation Date, review and either accept or provide Notice stating in reasonably detail the basis for Buyer’s rejection thereof within five (5) Business Days of receipt thereof:
(a) Seller shall have delivered to Buyer (i) a completion certificate from a Licensed Professional Engineer substantially in the form of Exhibit F and (ii) a certificate from a Licensed Professional Engineer substantially in the form of Exhibit G-1 setting forth the Installed PV Capacity, the Installed Storage Capacity and the Installed Capacity on the Commercial Operation Date;

Agenda Page 166
22 (b) An Interconnection Agreement between Seller and the Utility Provider shall have been executed and delivered and be in full force and effect and a copy of the Interconnection Agreement delivered to Buyer;
(c) All applicable regulatory authorizations, approvals and permits for the operation of the Facility have been obtained and all conditions thereof that are capable of being satisfied on the Commercial Operation Date have been satisfied and shall be in full force and effect;
(d) Seller has received CEC Precertification of the Facility (and reasonably expects to receive final CEC Certification and Verification for the Facility in no more than one hundred eighty (180) days from the Commercial Operation Date); (e) Seller (with the reasonable participation of Buyer) shall have completed all applicable WREGIS registration requirements, including the completion and submittal of all applicable registration forms and supporting documentation, which may include applicable interconnection agreements, informational surveys related to the Facility, QRE service agreements, and other appropriate documentation required to effect Facility registration with WREGIS and to enable Renewable Energy Credit transfers related to the Facility within the WREGIS system;
(f) Seller has delivered the Performance Security to Buyer in accordance with Section 8.8;
(g) Seller has delivered to Buyer an officer’s certificate stating (i) that Seller has not utilized any equipment or resources in connection with the construction, commissioning or testing of the Facility in violation of Section 2.3(b), (ii) whether there has been a change in applicable Laws as set forth in subsection (b) of the definition of “Storage Rate”, and (iii) the Tax Credit and applicable rate which Seller claims will apply for the Generating Facility, the Storage Facility and/or the Facility Energy; and
(h) Seller has paid Buyer for all amounts owing under the Agreement, if any, including Delay Damages.

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 Construction Start Date, and (ii) each calendar month from the first calendar month following the Construction Start Date until the Commercial Operation Date, Seller shall provide to Buyer a Progress Report and agree to regularly scheduled meetings between representatives of Buyer and Seller to review such reports and discuss Seller’s construction progress. The form of the Progress Report is set forth in Exhibit C. 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.

Agenda Page 167
23 (b) Seller shall ensure that all materials, products and components used in constructing, installing and operating the Facility throughout the Term shall be in compliance with the Supply Chain Code. Seller shall comprehensively implement due diligence procedures for its and its Affiliate’s suppliers, subcontractors and other participants in its supply chains, to comply with the Supply Chain Code. Seller shall notify Buyer as soon as it becomes aware of any breach, or potential breach, of its obligations under this Section 2.3(b). (c) Buyer shall have the right, at Buyer’s sole expense, to retain an independent auditor to audit Seller’s compliance with the requirements of Section 2.3(b).

2.4 Remedial Action Plan. If Seller misses a Milestone by more than thirty (30) days, except as the result of Force Majeure Event or Buyer Default, Seller shall submit to Buyer, within ten (10) Business Days of the end of such thirty (30)-day period following the Milestone completion date, a remedial action plan (“Remedial Action Plan”), which will describe in detail any delays (actual or anticipated) beyond the scheduled Milestone dates, including the cause of the delay (e.g., governmental approvals, financing, property acquisition, design activities, equipment procurement, project construction, interconnection, or any other factor), Seller’s detailed description of its proposed course of action to achieve the missed Milestones and all subsequent Milestones by the Guaranteed Commercial Operation Date; provided, 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 the Agreement. Subject to the provisions of Exhibit A, so long as Seller complies with its obligations under this Section 2.4, Seller shall not be considered in default of its obligations under the Agreement solely as a result of missing any Milestone.

2.5 SGIP Incentives. Seller shall use commercially reasonable efforts to enable Site Host to apply for and cause Seller to receive SGIP incentive funds for the Storage Facility, including competing application paperwork, paying on behalf of Customer any required estimated rebate deposits to the program administrator, etc. Seller shall provide Notice to Buyer of the status of any SGIP applications, awards, incentive distributions and any material communications from any Governmental Authorities or SGIP administrators with respect thereto. Seller shall complete all SGIP reporting, data processing and communications with the SGIP program administrators to ensure timely processing and incentive payments in accordance with the terms of the SGIP and Prudent Operating Practices.

ARTICLE 3

PURCHASE AND SALE

3.1 Purchase and Sale of Product. Subject to the terms and conditions of the Agreement, during the Delivery Term, Buyer shall purchase all the Product produced by or associated with the Facility at the Contract Price and in accordance with Exhibit B, and Seller shall supply and deliver to Buyer at the Delivery Point all the Product produced by or associated with the Facility.

3.2 Sale of Green Attributes. During the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase from Seller, all Green Attributes attributable to the Facility Energy generated by the Facility. Upon request of Buyer, Seller shall use commercially reasonable

Agenda Page 168
24 efforts to (a) submit, and receive approval from the Center for Resource Solutions (or any successor that administers the Green-e Certification process), for the Green-e tracking attestations and (b) support Buyer’s efforts to qualify the Green Attributes transferred by Seller as Green-e Certified.

3.3 Ownership of the Facility and Renewable Energy Incentives. Seller is, and will remain throughout the Contract Term, the exclusive legal, beneficial and Tax owner of the Facility.

Buyer shall not, without Seller’s prior written approval, modify, alter, service, repair or shut down any part of the Facility, or impair or interrupt the generation, storage or discharge of Energy by the Facility or transmission of Energy from the Facility to the Delivery Point, except as permitted pursuant to Section 6.2. Seller shall have all right, title and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives, or values representing the same, are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to same to be assigned or transferred to Seller without delay. Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives.

3.4 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Effective Date, environmental attributes sold under the Agreement are restricted to Green Attributes; however, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Subject to the final sentence of this Section 3.4(a) and to Section

3.4(b), in such event, Buyer shall bear all costs associated with the transfer, qualification, verification, registration and ongoing compliance for such Future Environmental Attributes, but there shall be no increase in the Contract Price. Upon Seller’s receipt of Notice from Buyer of Buyer’s intent to claim such Future Environmental Attributes, the Parties shall determine the necessary actions and additional costs associated with such Future Environmental Attributes.

Seller shall have no obligation to alter the Facility or the operation of the Facility unless the Parties have agreed on all necessary terms and conditions relating to such alteration or change in operation and Buyer has agreed to reimburse Seller for all costs, losses, and liabilities associated with such alteration or change in operation.
(b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.4(a), the Parties agree to negotiate in good faith with respect to the development of further agreements and documentation necessary to effectuate the transfer of such Future Environmental Attributes, including agreement with respect to (i) appropriate transfer, delivery and risk of loss mechanisms, and (ii) appropriate allocation of any additional costs to Buyer, as set forth above; provided, the Parties acknowledge and agree that such terms are not intended to alter the other material terms of the Agreement.

3.5 Test Energy. No less than fourteen (14) days prior to the first day on which Test Energy is expected to be available from the Facility, Seller shall notify Buyer of the availability of the Test Energy. If and to the extent the Facility generates Test Energy, Seller shall sell and Buyer shall purchase from Seller all Test Energy and any associated Products of the Generating Facility on an as-available basis for up to sixty (60) days from the first delivery of Test Energy. As

Agenda Page 169
25 compensation for such Test Energy and associated Product, Buyer shall pay Seller an amount equal to seventy percent (70%) of the Renewable Rate, and thereafter zero dollars ($0) per MWh (the “Test Energy Rate”). The conditions precedent in Section 2.2 are not applicable to the Parties’ obligations under this Section 3.5.

3.6 Capacity Attributes.
(a) Throughout the Delivery Term and subject to Section 3.10, Seller grants, pledges, assigns and otherwise commits to Buyer all the Capacity Attributes from the Facility, if applicable.
(b) Throughout the Delivery Term and subject to Section 3.10, Seller shall use commercially reasonable efforts to cause the Facility to qualify to provide all Capacity Attributes to Buyer, if applicable.
(c) For the duration of the Delivery Term, and subject to Section 3.10, Seller shall take all commercially reasonable actions, including complying with all applicable registration and reporting requirements, and execute all documents or instruments necessary to enable Buyer to use all of the Capacity Attributes committed by Seller to Buyer pursuant to the Agreement.

3.7 CEC Certification and Verification. Subject to Section 3.10 and in accordance with the timing set forth in this Section 3.7, Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Certification and Verification for the Facility throughout the Delivery Term, including compliance with all applicable requirements for certified facilities set forth in the current version of the RPS Eligibility Guidebook (or its successor). Seller shall obtain CEC Precertification by the Commercial Operation Date. Within thirty (30) days after the Commercial Operation Date, Seller shall apply with the CEC for final CEC Certification and Verification. Within one hundred eighty (180) days after the Commercial Operation Date, Seller shall obtain and maintain throughout the remainder of the Delivery Term the final CEC Certification and Verification. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s application for CEC Certification and Verification for the Facility.

3.8 Eligibility. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of the Agreement that: (i) the Project qualifies and is certified by the CEC as an Eligible Renewable Energy Resource (“ERR”) as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of the Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law.

3.9 California Renewables Portfolio Standard. Subject to Section 3.10, Seller shall also take all other actions necessary to ensure that the Facility Energy produced from the Generating Facility is tracked for purposes of satisfying the California Renewables Portfolio Standard requirements, as may be amended or supplemented by the CPUC or CEC from time to time.

Agenda Page 170
26 3.10 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 the Agreement that are made subject to this Section 3.10, including with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of Green Attributes and Capacity Attributes (as applicable), then the Parties agree that the maximum aggregate amount of costs and expenses Seller shall be required to bear during the Delivery Term to comply with all of such obligations shall be capped at Twenty-Five Dollars ($25) per kW of Guaranteed 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 out-of-pocket expenses in excess of the Compliance Expenditure Cap in order to take any Compliance Action, Seller shall provide Notice to Buyer of such anticipated out-of-pocket expenses. (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 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 3.10 within sixty (60) days after Buyer’s receipt of same, Buyer shall be deemed to have waived its rights to require Seller to take the Compliance Actions that are the subject of the Notice, and Seller shall have no further obligation to take, and no liability for any failure to take, such Compliance Actions until 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 such Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall reimburse Seller for Seller’s actual costs to effect the Compliance Actions, not to exceed the Accepted Compliance Costs, within sixty (60) days from the time that Buyer receives an invoice and documentation of such costs from Seller.

3.11 Project Configuration. In order to optimize the benefits of the Facility, Buyer and Seller each agree that if requested by the other Party, then Buyer and Seller shall discuss in good faith potential reconfiguration of the Facility or Interconnection Facilities, including the use of grid energy to provide Charging Energy if a change of applicable Laws makes such change feasible; provided, neither Party shall be obligated to agree to any changes under the Agreement, or to incur any expense in connection with such changes, except under terms mutually acceptable to both Parties as set forth in a written agreement.

ARTICLE 4

OBLIGATIONS AND DELIVERIES

4.1 Delivery.

Agenda Page 171
27 (a) Energy. Subject to the provisions of the Agreement, commencing on the Commercial Operation Date through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Point, and Buyer shall take delivery of the Product at the Delivery Point in accordance with the terms of the Agreement. Seller shall be responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Facility Energy to the Delivery Point, including any operation and maintenance charges imposed by the Utility Provider directly relating to the Facility’s operations. Buyer shall be responsible for all costs, charges and penalties, if any, imposed in connection with the delivery of Facility Energy at and after the Delivery Point.
(b) Green Attributes. All Green Attributes associated with Test Energy and the Facility Energy during the Delivery Term are exclusively dedicated to and vested in Buyer. Seller represents and warrants that Seller holds the rights to all Green Attributes from the Facility, and Seller agrees to convey and hereby conveys all such Green Attributes to Buyer as included in the delivery of the Product from the Facility.

4.2 Energy Services.
(a) Seller shall, at its sole cost, cause the Facility to provide the following energy services (collectively, the “Energy Services”) throughout the Delivery Term:
(i) Emergency Energy Services as more particularly set forth in Schedule 3 of the Special Conditions;
(ii) Bill Optimization Services, as more particularly set forth in Schedule 4 of the Special Conditions; and
(iii) Seller shall use commercially reasonable efforts to provide demand response services as reasonably requested by Buyer, including by participating in Buyer’s commercial Demand Response program, to the extent providing such services does not have a material adverse impact on Seller’s ability to achieve the Emergency Energy Services or Bill Optimization Services.
(b) Remedies. In addition to the remedies set forth in Section 11.2 in the event Seller’s failure with respect to providing the Energy Services becomes an Events of Default, Buyer shall also have the following remedies with respect to such failure(s):
(i) If Seller fails to provide some or all of the Emergency Energy Services during a Blackout Event, Seller shall owe to Buyer, as liquidated damages for such failure, an amount equal to the product of (A) the Monthly Capacity Payments for the longer of (1) the three (3) months prior to the month in which such failure occurs, and (2) the period dating back to the most recent Storage Capacity Test, times (B) an amount equal to one (1) minus the Blackout Event Performance Factor.
(ii) If Seller fails to achieve the Minimum Guaranteed Cost Savings for any Contract Year, then, subject to Section 4 of Schedule 4 of the Special Conditions, within thirty (30) days following the end of such Contract Year, Seller shall pay Buyer the difference of the

Agenda Page 172
28 Minimum Guaranteed Cost Savings minus the Cost Savings (the “Savings Shortfall”) for the prior Term Year.
(c) Optimization and Other Uses. Upon Buyer’s request, Seller shall reasonably cooperate with Buyer to operate the Facility in a way that optimizes the Facility according to such Buyer request. Seller shall not use the Facility for any purpose other than to provide the Energy Services without Buyer’s prior written consent, which consent may be given or withheld in Buyer’s sole discretion.

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

4.4 Energy Management.
(a) Charging Generally. Seller shall take any and all action necessary to deliver the Charging Energy to the Storage Facility in order to deliver the Storage Product in accordance with the terms of the Agreement, including maintenance, repair or replacement of equipment in Seller’s possession or control used to deliver the Charging Energy from the Generating Facility to the Storage Facility.
(b) Unauthorized Charges and Discharges. If Seller or any third party charges, discharges or otherwise uses the Storage Facility other than as permitted hereunder it shall be a breach by Seller and Seller shall hold Buyer harmless from, and indemnify Buyer against, all actual costs or losses associated therewith, and be responsible to Buyer for any damages arising therefrom and, if Seller fails to implement procedures reasonably acceptable to Buyer to prevent any further occurrences of the same, then the failure to implement such proceduresshall be an Event of Default under Article 11.

4.5 Reduction in Energy Delivery Obligation. Without limiting Section 3.1 or Exhibit D:
(a) Facility Maintenance.
(i) Seller shall provide to Buyer written schedules for Planned Outages for each Contract Year no later than thirty (30) days prior to the first day of the applicable Contract Year. Buyer may provide comments no later than ten (10) days after receiving any such schedule, and Seller shall in good faith take into account any such comments. Seller shall deliver to Buyer the final updated schedule of Planned Outages no later than ten (10) days after receiving Buyer’s comments. Seller shall be permitted to reduce deliveries of Product during any period of such Planned Outages.

Agenda Page 173
29 (ii) If reasonably required in accordance with Prudent Operating Practices, Seller may perform maintenance at a different time than maintenance scheduled pursuant to Section 4.5(a)(i). Seller shall provide Notice to Buyer as soon as reasonably practicable of such change in the maintenance schedule and the reason therefor. (iii) Notwithstanding anything in the Agreement to the contrary, no Planned Outages of the Facility shall be scheduled or planned from each June 1 through October 31 during the Delivery Term, unless approved by Buyer in writing in its sole discretion. In the event that Seller has a previously Planned Outage that becomes coincident with a System Emergency, Seller shall make all reasonable efforts to reschedule such Planned Outage. (b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage.
(c) 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.

Notwithstanding anything in this Section 4.5 to the contrary, subject to the terms and conditions of the Agreement, Buyer has no obligation to pay Seller for any Product from the Generating Facility for which the associated Adjusted Facility Energy is not or cannot be delivered to Buyer as a result of any of the conditions in this Section 4.5.

4.6 Guaranteed Energy Production. During each Performance Measurement Period, Seller shall deliver to Buyer an amount of Adjusted Energy Production equal to no less than the Guaranteed Energy Production (as defined below). “Guaranteed Energy Production” means an amount of Adjusted Energy Production, as measured in MWh, equal to one hundred sixty percent (160%) of the average annual Expected Energy for the two (2) Contract Years constituting such Performance Measurement Period. For purposes of determining whether Seller has achieved the Guaranteed Energy Production, Seller shall be deemed to have delivered to Buyer the sum of (a) Adjusted Facility Energy in the amount Seller could reasonably have delivered to Buyer but was prevented from delivering to Buyer by reason of any Force Majeure Events (“Lost Output”) plus (b) any Deemed Delivered Energy plus (c) Compensated Lost Energy. If Seller fails to achieve the Guaranteed Energy Production amount in any Performance Measurement Period, Seller shall pay Buyer damages calculated in accordance with Exhibit D (“Energy Shortfall Damages”).

4.7 Storage 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 J. Thereafter, Seller and Buyer shall have the right to run additional Storage Capacity Tests in accordance with Exhibit J.

Agenda Page 174
30 (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 J. 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 the Agreement.
(b) Additional Testing. Seller shall, at times and for durations reasonably agreed to by Buyer, conduct necessary testing to ensure the Storage Facility is functioning properly and is able to respond to Buyer’s demand response dispatches. (c) Buyer or Seller Initiated Tests. Any testing of the Storage Facility requested by Buyer after the Commercial Operation Storage Capacity Tests and all required annual tests pursuant to Section B of Exhibit J shall be deemed Buyer-instructed dispatches of the Facility (“Buyer Dispatched Test”). Any test of the Storage Facility that is not a Buyer Dispatched Test (including all tests conducted prior to Commercial Operation, any Commercial Operation Storage Capacity Tests, any Storage Capacity Test conducted if the Effective Storage Capacity immediately prior to such Storage Capacity Test is below seventy percent (70%) of the Installed Storage Capacity, and other Seller-requested discretionary tests or dispatches, at times and for durations reasonably agreed to by Buyer, that Seller deems necessary for purposes of reliably operating or maintaining the Storage Facility or for re-performing a required test within a reasonable number of days of the initial required test (considering the circumstances that led to the need for a retest)) shall be deemed a “Seller Initiated Test”. (i) For any Seller Initiated Test, other than Storage Capacity Tests required by Exhibit J for which there is a stated notice requirement, Seller shall notify Buyer no later than twenty-four (24) hours prior thereto (or any shorter period reasonably acceptable to Buyer consistent with Prudent Operating Practices).

4.8 WREGIS. Seller shall, at its sole expense, but subject to Section 3.10, take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Adjusted Facility Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefit. Seller shall transfer the Renewable Energy Credits to Buyer. Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. Seller shall be deemed to have satisfied the warranty in Section 4.8(g), provided that Seller fulfills its obligations under Sections 4.8(a) through (g) below. In addition:
(a) Prior to the Commercial Operation Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using “Forward Certificate Transfers” (as described in the WREGIS Operating

Agenda Page 175
31 Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the Facility with WREGIS, establishing and maintaining Seller’s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account.
(b) Seller shall cause Forward Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules. Since WREGIS Certificates will only be created for whole MWh amounts of Adjusted Facility Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate. (c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Adjusted Facility Energy for such calendar month as evidenced by the Facility’s metered data.
(d) Due to the ninety (90) day delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 8.2, Buyer shall make an invoice payment for a given month in accordance with Section 8.2 before the WREGIS Certificates for such month are formally transferred to Buyer in accordance with the WREGIS Operating Rules and this Section 4.8. Notwithstanding this delay, Buyer shall have all right and title to all such WREGIS Certificates upon payment to Seller in accordance with Section 8.2. (e) A “WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Adjusted Facility Energy for the same calendar month (“Deficient Month”) caused by an error or omission of Seller. If any WREGIS Certificate Deficit is caused by, or is the result of any action or inaction of, Seller, then the amount of Adjusted Facility Energy in the Deficient Month shall be reduced by three (3) times the amount of the WREGIS Certificate Deficit for purposes of calculating Buyer’s payment to Seller under Article 8 and the Guaranteed Energy Production for the applicable Contract Year; provided, such adjustment shall not apply to the extent that Seller resolves the WREGIS Certificate Deficit within ninety (90) days after the Deficient Month within ninety (90) days after the Deficient Month (i) upon a schedule reasonably acceptable to Buyer, and (ii) provided that such deliveries do not impose additional costs upon Buyer for which Seller has not reimbursed Buyer. Without limiting Seller’s obligations under this Section 4.8, if a WREGIS Certificate Deficit is caused solely by an error or omission of WREGIS, the Parties shall cooperate in good faith to cause WREGIS to correct its error or omission. (f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section (d) after the Effective Date, the Parties promptly shall modify this Section (d) as reasonably required to cause and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Adjusted Facility Energy in the same calendar month.

Agenda Page 176
32 (g) Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of the Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after execution of the Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law.
(h) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable Energy Generation Information System will be taken prior to the first delivery under the contract. (i) Seller’s obligations under Sections 3.8, 4.8(g) and 4.8(h) shall be subject to Section 3.10, the term “Project” as used in Section 3.8 shall refer to the “Facility” and/or “Generating Facility” (as appropriate) as defined herein, and the term “commercially reasonable efforts” as used in Section 3.8 and Section 4.8(h) means efforts consistent with and subject to Section 3.10.

4.9 Roof Repair and Deemed Delivered Energy; Site Host Construction and Compensated Lost Energy.
(a) If Seller is required to install all or a portion of the Generating Facility on any roof at a Site, and Seller informs Buyer that the roof requires repairs or replacement other than as set forth in Schedule 1 of the Special Conditions, Seller shall provide to Buyer a binding estimate of Seller’s cost to provide such additional work (the “Roof Work Costs”). Buyer shall have thirty (30) days from its receipt of such estimate to approve such Roof Work Costs, reject such Roof Work Costs or provide for such work itself. If Buyer rejects such Roof Work Costs, Seller shall have the right to terminate the Agreement, and 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 Development Security then held by Buyer pursuant to the Agreement, less any amounts drawn in accordance with the Agreement. If Buyer approves such Roof Work Costs, the Renewable Rate shall increase by seventy cents ($0.70) per MWh for each ten thousand dollars ($10,000) of such Roof Work Costs.
(b) If Seller demonstrates to Buyer’s reasonable satisfaction that Seller is required to shut down or remove some or all of the Facility in order for Seller or its landlord to perform maintenance or repairs on the Site or the Facility or replace the roof on which some or all of the Facility is installed, then for each day (a “Disruption Period”) (with respect to disruptions caused by such maintenance, repairs or roof replacement performed by Seller, not to exceed an aggregate total of forty-five (45) days during the Delivery Term) on which Seller is unable to deliver some or all of the Energy that it otherwise would have been able to deliver but for such Facility removal or shutdown (“Deemed Delivered Energy”), Seller shall provide documentation to Buyer’s reasonable satisfaction of the amount of such Deemed Delivered Energy.

Agenda Page 177
33 (c) If Seller demonstrates to Buyer’s reasonable satisfaction that the amount of PV Energy able to be produced by the Generating Facility is reduced due to a reduction in insolation caused by Site Host constructing or allowing to be constructed any structure on the Site, then Buyer shall compensate Seller for the amount of such lost Energy output (“Compensated Lost Energy”) in accordance with Exhibit B, and the amount of such Compensated Lost Energy shall be accounted for in the Guaranteed Energy Production and the Minimum Guaranteed Bill Savings pursuant to an Adjustment in accordance with Schedule 4 of the Special Conditions. Seller shall provide documentation to Buyer’s reasonable satisfaction of the amount of such Compensated Lost Energy. Seller shall promptly provide Notice to Buyer if Seller becomes aware of Site Host’s consideration or intention to construct or allow to be constructed on the Site any structure that could reasonably be expected to result in Compensated Lost Energy.

4.10 Removal of Facility. Except where a Buyout Option (as defined in the applicable Site lease between Seller and Site Host) is exercised by Site Host with respect to the Facility, Seller shall remove the Facility and all its associated equipment and materials completely, vacate the Site, and restore the Site to its original conditions, within ninety (90) days of the expiration or early termination of the Contract Term (each a “Site Restoration”). Upon Seller’s completion of a Site Restoration, Seller shall have the right to submit to Buyer an invoice for Seller’s actually incurred out-of-pocket expenses incurred by Seller in connection with a Site Restoration, together with documentation reasonably satisfactory to Buyer demonstrating such costs (“Site Restoration Costs”). Unless Buyer disputes any such Site Restoration Costs pursuant to Section 8.5, Buyer shall pay to Seller such Site Restoration Costs, not to exceed dollars per kW of Installed Capacity at the applicable Site, within twenty (20) days of Buyer’s receipt of Seller’s invoice therefor.

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 the 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 the 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 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 the 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, neither Party shall be obligated to incur any financial or

Agenda Page 178
34 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 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 the delivery of the Product 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. If Seller becomes aware of any circumstances relating to the Facility that create an imminent risk of damage or injury to any Person or any Person’s property, Seller shall take prompt, reasonable action to prevent such damage or injury and shall give Buyer’s emergency contact identified in Exhibit I Notice of such condition; provided, if Buyer reasonably determines that Seller has failed to take prompt and/or reasonable action to prevent such damage or injury, Buyer shall have the right to take such action as it reasonably deems necessary to prevent such damage or injury, and shall give Seller’s emergency contact identified in Exhibit I Notice of such actions. Such action by Seller (or Buyer, if applicable) may include disconnecting and removing all or a portion of the Facility, or suspending the supply of Facility Energy to the Delivery Point. In the event Buyer takes any such actions, directly or through a third party, Seller shall reimburse Buyer for all such reasonable costs incurred by Buyer in taking such actions.

ARTICLE 7

METERING

7.1 Metering. Seller shall measure the amount of PV Energy using the Generating Facility Meter. Seller shall measure the Charging Energy and the Discharging Energy using the Storage Facility Meters. The Storage Facility Meter and Generating Facility Meter shall be programmed to adjust for all Electrical Losses from such meters to the Delivery Point in a manner subject to Buyer’s prior written approval, not to be unreasonably withheld. Each Storage Facility Meter and Generating Facility Meter shall be kept under seal, such seals to be broken only when the meters are to be tested, adjusted, modified or relocated. In the event Seller breaks a seal, Seller shall notify Buyer as soon as practicable.

7.2 Meter Verification. Annually, if Seller has reason to believe there may be a meter malfunction, or upon Buyer’s reasonable request, Seller shall test the meter. The tests shall be conducted by independent third parties qualified to conduct such tests. Buyer shall be notified seven (7) days in advance of such tests and have a right to be present during such tests. If a meter is inaccurate it shall be promptly repaired or replaced. If a meter is inaccurate by more than one percent (1%) and it is not known when the meter inaccuracy commenced (if such evidence exists, then such date will be used to adjust prior invoices), then the invoices covering the period of time since the last meter test shall be adjusted for the amount of the inaccuracy on the assumption that

Agenda Page 179
35 the inaccuracy persisted during one-half of such period; provided, such period may not exceed twelve (12) months.

ARTICLE 8
INVOICING AND PAYMENT; CREDIT

8.1 Invoicing. Seller shall use commercially reasonable efforts to deliver an invoice to Buyer for Product no later than the tenth (10th) day of each month for the previous calendar month.

Each invoice shall (a) reflect records of metered data, including (i) metering and transaction data sufficient to document and verify the amount of Product delivered by the Facility during the preceding month, including the amount of PV Energy, Charging Energy, Discharging Energy, the calculation of Deemed Delivered Energy, Compensated Lost Energy, Lost Output and Adjusted Facility Energy, and the Contract Price applicable to such Product in accordance with Exhibit B, (ii) data showing a calculation of the Monthly Capacity Payment and other relevant data for the prior month, and (iii) the calculation of the year-to-date Cost Savings; 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 the Agreement.

8.2 Payment. Buyer shall make payment to Seller for Product (and any other amounts due) by wire transfer or ACH payment to the bank account provided on each monthly invoice.

Buyer shall pay undisputed invoice amounts by the later of (a) ten (10) Business Days after Buyer’s receipt of the invoice from Seller, and (b) the thirtieth (30th) day of the month after the operational month for which such invoice was rendered; 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. If the amount due is not paid on or before the due date or if any other payment that is due and owing from one Party to another is not paid on or before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement. 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 the 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 the Agreement. Seller acknowledges that in accordance with California Government Code Section 8546.7, Seller may be subject to audit by the California State Auditor with regard to Seller’s performance of the Agreement because the compensation under the Agreement exceeds $10,000.

8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Section 8.5 or an adjustment to an amount previously invoiced or paid

Agenda Page 180
36 is required due to a correction of data by the Utility Provider, or there is determined to have been a meter inaccuracy sufficient to require a payment adjustment. If the required adjustment is in favor of Buyer, Buyer’s next monthly payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller, Seller shall add the adjustment amount to Buyer’s next monthly invoice. Adjustments in favor of either Buyer or Seller shall bear interest, until settled in full, in accordance with Section 8.2, accruing from the date on which the adjusted amount should have been due.

8.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under the 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 a third party not affiliated with any Party and such third party corrects its information after the twelve-month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.

8.6 Netting of Payments. The Parties hereby agree that they 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 the Agreement or otherwise arising out of the Agreement, including any related damages calculated pursuant to Exhibits A, D, and K, 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 the 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. Upon the earlier of (a) Seller’s delivery of the Performance Security, or (b) sixty (60) days after termination of the Agreement, Buyer shall return the Development Security to Seller, less the amounts drawn in accordance with the Agreement.

8.8 Seller’s Performance Security. To secure its obligations under the Agreement, Seller shall deliver Performance Security to Buyer on or before the Commercial Operation Date.

Seller shall maintain the Performance Security in full force and effect, and Seller shall within ten (10) Business Days after any draw thereon replenish the Performance Security in the event Buyer collects or draws down any portion of the Performance Security for any reason permitted under the Agreement other than to satisfy a Termination Payment, until the following have occurred: (a)

Agenda Page 181
37 the Delivery Term has expired or terminated early; and (b) all payment obligations of Seller due and payable under the Agreement, including compensation for penalties, Termination Payment, indemnification payments or other damages 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.

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

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

Buyer shall apply the proceeds of the collateral realized upon the exercise of any such rights or remedies to reduce Seller’s obligations under the Agreement (Seller remains liable for any amounts owing to Buyer after such application), subject to Buyer’s obligation to return any surplus proceeds remaining after 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 address set forth in Exhibit I or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder.

Agenda Page 182
38 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 that delays or prevents a Party from timely performing all or a portion of its obligations under the Agreement or from complying with all or a portion of the conditions under the Agreement if such act or event, despite the exercise of commercially reasonable efforts, cannot be avoided by and is beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance. (b) Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; epidemic; landslide; mudslide; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; or strikes or other labor difficulties caused or suffered by a Party or any third party except as set forth below. (i) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions or changes in Law that render a Party’s performance of the Agreement at the Contract Price unprofitable or otherwise uneconomic (including an increase in component or compliance costs for any reason, including foreign or domestic tariffs, Buyer’s ability to buy Product at a lower price, or Seller’s ability to sell the Product, or any component thereof, at a higher price, than under the Agreement); (ii) Seller’s inability to obtain permits or approvals of any type for the construction, operation, or maintenance of the Facility, except to the extent such inability is caused by a Force Majeure Event; (iii) the inability of a Party to make payments when due under the Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above; (iv) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility, including

Agenda Page 183
39 the lack of wind, sun or other fuel source of an inherently intermittent nature, 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; (vi) any equipment failure except if such equipment failure is caused by a Force Majeure Event; or (vii) any action or inaction by any third party, including Utility Provider, that delays or prevents the approval, construction or placement in service of any Interconnection Facilities, except to the extent caused by a Force Majeure Event.

10.2 No Liability If a Force Majeure Event Occurs. Except as provided in Section 4 of Exhibit A, neither Seller nor Buyer shall be liable to the other Party in the event it is prevented 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 the 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. In order to claim a Force Majeure Event, the claiming Party, within fourteen (14) days after the initial occurrence of the claimed Force Majeure Event, must give the other Party Notice describing the particulars of the occurrence in substantially the form set forth in Exhibit M, (b) provide timely evidence reasonably sufficient to establish that the occurrence constitutes Force Majeure as defined in the Agreement, and (c) notify the other Party in writing of the cessation or termination of such Force Majeure Event, all as known or estimated in good faith by the affected Party.

10.4 Termination Following Force Majeure Event, Development Cure Period or Termination of the Lease with Site Host. If the cumulative extensions granted under the Development Cure Period plus the payment of COD Delay Damages equal or exceed two hundred seventy (270) days, and Seller has demonstrated to Buyer’s reasonable satisfaction that Seller’s failure to achieve COD by the Guaranteed Commercial Operation Date (as extended) was the result of delays that would have otherwise entitled to Seller to two hundred seventy (270) days of Development Cure Period delays but for the one hundred eighty (180) limitation, then Seller may terminate the Agreement upon Notice to Buyer. Upon 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 Development Security then held by Buyer plus the full amount of COD Delay Damages paid by Seller, less any amounts drawn in accordance with the Agreement.
(b) If a Force Majeure Event has occurred after the Commercial Operation Date that has caused either Party to be wholly or partially unable to perform its obligations hereunder in any material respect, and the impacted Party has claimed and received relief from performance

Agenda Page 184
40 of its obligations for a consecutive twelve (12) month period, then the non-claiming Party may terminate the Agreement upon Notice to the other Party. 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 the Agreement. (c) If the lease agreement between Seller and Site Host is terminated (i) by Seller (A) in accordance with section 23.3 of the lease agreement due to a Lessor Event of Default (as defined therein) or (B) in accordance with section 27.2 of the lease agreement in the event of a condemnation of all or a portion of the Property (as defined therein), (ii) by Site Host in accordance with section 5.2(a) of the lease agreement in the event that Site Host determines that it requires any portion(s) of the Premises (as defined therein) for any public purpose or (iii) by either Seller or Site Host in accordance with article 24 of the lease agreement in the event of a Casualty (as defined therein), then this Agreement shall automatically terminate upon such termination of the lease agreement and neither Party shall have any liability to the other except for any such liabilities that may have accrued prior to such termination.

ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION FOR DEFAULT

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 the Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof;
(ii) any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30)-day period despite exercising commercially reasonable efforts); (iii) the failure by such Party to perform any material covenant or obligation set forth in the Agreement (except to the extent constituting a separate Event of Default set forth in this Section 11.1; and except for (A) failures related to the Adjusted Energy Production that do not trigger the provisions of Section 11.1(b)(iii), the exclusive remedies for which are set forth in Section 4.6; (B) failures related to the Minimum Guaranteed Cost Savings that do not trigger the provisions of Section 11.1(b)(v), the exclusive remedies for which are set forth in Section 4.2(b)(ii); (C) failures related to the Emergency Energy Services that do not trigger the provisions of Section 11.1(b)(iv), the exclusive remedies for which are set forth in Section

4.2(b)(i); and (D) failure to achieve the Guaranteed PV Capacity and/or Guaranteed Storage Capacity, the exclusive remedies for which are set forth in Section 5 of Exhibit A) and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not

Agenda Page 185
41 to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30)-day period despite exercising commercially reasonable efforts); (iv) such Party becomes Bankrupt;
(v) such Party assigns the Agreement or any of its rights hereunder other than in compliance with Article 14, if applicable; or
(vi) such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under the Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party; (b) with respect to Seller as the Defaulting Party, the occurrence of any of the following:
(i) if at any time, Seller delivers or attempts to deliver Energy for sale under the Agreement that was not generated or discharged by the Facility; (ii) the failure by Seller to (A) achieve Construction Start on or before the Guaranteed Construction Start Date, as such date may be extended by Seller’s payment of Daily Delay Damages pursuant to Section 1(b) of Exhibit A and/or a Development Cure Period pursuant to Section 4 of Exhibit A, or (B) achieve Commercial Operation on or before the Guaranteed Commercial Operation Date, as such date may be extended by Seller’s payment of Commercial Operation Delay Damages pursuant to Section 2 of Exhibit A and/or a Development Cure Period pursuant to Section 4 of Exhibit A;
(iii) if, in any consecutive six (6) month period, the Adjusted Energy Production amount (calculated in accordance with Exhibit D) for such period is not at least fifty percent (50%) of the 6-month pro rata amount of Expected Energy for such period adjusted for seasonality, and Seller fails to (x) deliver to Buyer within ten (10) Business Days after Notice from Buyer a plan or report developed by Seller that describes the cause of the failure to meet the fifty percent (50%) threshold and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Operating Practices and capable of cure within a reasonable period of time, not to exceed ninety (90) days (“Cure Plan”) and (y) complete such Cure Plan in all material respects as set forth therein, including within the timeframe set forth therein;
(iv) failure by Seller three (3) times during the Delivery Term to achieve a Blackout Event Performance Factor of at least five-tenths (0.5); (v) failure by Seller to achieve at least fifty percent (50%) of the Minimum Guaranteed Cost Savings in two (2) consecutive Contract Years; (vi) 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

Agenda Page 186
42 to replenish the Performance Security amount in accordance with the Agreement in the event Buyer draws against it for any reason other than to satisfy a Termination Payment; (vii) with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under the Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, or (2) a Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events (provided that in the case of (G), Seller may provide for the benefit of Buyer such Letter of Credit from the same issuer that previously provided such Letter of Credit):
(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) Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with the Agreement, and in no event less than sixty (60) days prior to the expiration of the outstanding Letter of Credit;
(viii) with respect to any outstanding Surety Bond provided for the benefit of Buyer that is not then required under the Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer a Surety Bond from a different Eligible Surety, 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 (provided that in the case of (G), Seller may provide for the benefit of Buyer such Surety Bond from the same Eligible Surety that previously provided such Surety Bond):
(A) the Eligible Surety of the outstanding Surety Bond shall fail to meet the requirements set forth in the definition of “Eligible Surety”; (B) the Eligible Surety of the outstanding Surety Bond becomes Bankrupt;

Agenda Page 187
43 (C) the Eligible Surety of the outstanding Surety Bond shall fail to comply with or perform its obligations under such Surety Bond and such failure shall be continuing after the lapse of any applicable grace period permitted under such Surety Bond; (D) the Eligible Surety of the outstanding Surety Bond shall fail to honor a properly documented request to draw on such Surety Bond; (E) the Eligible Surety of the outstanding Surety Bond shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Surety Bond;
(F) such Surety Bond fails or ceases to be in full force and effect at any time; or
(G) Seller shall fail to renew or cause the renewal of each outstanding Surety Bond on a timely basis as provided in the relevant Surety Bond and as provided in accordance with the Agreement, and in no event less than sixty (60) days prior to the expiration of the outstanding Surety Bond.

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 the Agreement (“Early Termination Date”) that terminates the 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 (b) below; (c) to withhold any payments due to the Defaulting Party under the Agreement; (d) to suspend performance; and
(e) to exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief, except to the extent such remedies are expressly limited under the Agreement; provided, payment by the Defaulting Party of the Damage Payment or Termination Payment, as applicable, shall constitute liquidated damages and the Non-Defaulting Party’s sole and exclusive remedy for 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.

Agenda Page 188
44 (a) Damage Payment Prior to Commercial Operation Date. If the Early Termination Date occurs before the Commercial Operation Date, then the Damage Payment shall be calculated in accordance with this Section 11.3(a).
(i) If Seller is the Defaulting Party, then the Damage Payment shall be owed to Buyer and shall be a dollar amount that equals the amount of the Development Security plus, if the Development Security is posted as cash, any interest accrued thereon. Buyer shall be entitled to immediately retain for its own benefit those funds held as Development Security and any interest accrued thereon if the Development Security is posted as cash, and any amount of Development Security that Seller has not yet posted with Buyer shall be immediately due and payable by Seller to Buyer. There will be no amounts owed to Seller. The Parties agree that Buyer’s damages in the event of an Early Termination Date prior to the Commercial Operation Date caused by Seller’s default would be difficult or impossible to determine and that the damages set forth in this Section 11.3(a)(i) are a reasonable approximation of Buyer’s harm or loss. (ii) If Buyer is the Defaulting Party, then the Damage Payment shall be owed to Seller and shall equal the sum of the actual, documented and verifiable costs incurred by Seller between the Effective Date and the Early Termination Date in connection with the Facility, less the fair market value (determined in a commercially reasonable manner) of the Facility equipment, regardless of whether or not any Seller asset or the entire Facility is actually sold or disposed of. There will be no amount owed to Buyer. The Parties agree that Seller’s damages in the event of an Early Termination Date prior to the Commercial Operation Date caused by Buyer’s default would be difficult or impossible to determine and that the damages set forth in this Section

11.3(a)(ii) are a reasonable approximation of Seller’s harm or loss. (b) Termination Payment On or After the Commercial Operation Date. If the Early Termination Date occurs after the Commercial Operation Date, then the Termination Payment shall be calculated in accordance with this Section 11.3(b). (i) If Seller is the Defaulting Party, then the Termination Payment shall be owed to Buyer and shall be a dollar amount that equals the aggregate of all Settlement Amounts plus any and all other amounts due to or from Buyer (as of the Early Termination Date) netted into a single amount. Buyer 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 Buyer’s duty to mitigate, Buyer shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (A) the actual damages that Buyer would incur in connection with a Terminated Transaction would be difficult or impossible to predict with certainty, (B) the Termination Payment described in this Section 11.3(b)(i) is a reasonable and appropriate approximation of such damages, and (C) the Termination Payment described in this Section 11.3(b)(i) is the exclusive remedy of Buyer in connection with a Terminated Transaction but shall not otherwise act to limit any of Buyer’s rights or remedies if Buyer does not elect a Terminated Transaction as its remedy for an Event of Default by Seller.

Agenda Page 189
45 (ii) If Buyer is the Defaulting Party, then the Termination Payment shall be owed to Seller and shall be a dollar amount that equals the amount set forth in Schedule 6 of the Special Conditions corresponding to the month of the Delivery Term in which the Early Termination Date occurs.

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 whether the Termination Payment or Damage Payment, as applicable, is due to or from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount and the sources for such calculation. The Termination Payment or Damage Payment, as applicable, shall be made to or from the Non-Defaulting Party, as applicable, within ten (10) Business Days after such Notice is effective.

11.5 Disputes With Respect to Termination Payment 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 the 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 the 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 IP INDEMNITY CLAIM, (C) AN ARTICLE 16 INDEMNITY CLAIM, (D) INCLUDED IN A LIQUIDATED DAMAGES CALCULATION, OR (E) RESULTING FROM A PARTY’S GROSS

NEGLIGENCE 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 THE AGREEMENT, BY STATUTE, IN TORT OR CONTRACT.

Agenda Page 190
46 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 THE AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN THE

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

CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES FOR BREACH OF WARRANTY PROVIDED IN THE 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, EACH PARTY’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, EACH PARTY’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY. THE

VALUE OF ANY TAX CREDITS, DETERMINED ON AN AFTER-TAX BASIS, LOST DUE TO BUYER’S DEFAULT (WHICH SELLER HAS NOT BEEN ABLE TO MITIGATE AFTER

USE OF REASONABLE EFFORTS) AND AMOUNTS DUE IN CONNECTION WITH THE

RECAPTURE OF ANY RENEWABLE ENERGY INCENTIVES, IF ANY, SHALL BE DEEMED TO BE DIRECT DAMAGES.

TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING UNDER SECTIONS 4.2(b) AND 11.2, AND AS PROVIDED IN

EXHIBIT A, EXHIBIT B, AND EXHIBIT D, THE PARTIES ACKNOWLEDGE THAT THE

DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT OTHERWISE

OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT, AND THAT THE

LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE INTENT OF THE PARTIES THAT THE

LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES

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

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

THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE

EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE

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

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

Agenda Page 191
47 ARTICLE 13
REPRESENTATIONS AND WARRANTIES; AUTHORITY

13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and is qualified to conduct business in 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 power and authority to enter into and perform the Agreement and is not prohibited from entering into the Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to the Agreement, except where such failure does not have a material adverse effect on Seller’s performance under the Agreement. The execution, delivery and performance of the 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 the Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions of the 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) The Agreement has been duly executed and delivered by Seller. The 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. (f) Neither Seller nor its Affiliates have received notice from or been advised by any existing or potential supplier or service provider that COVID-19 has caused, or is reasonably likely to cause, a delay in the construction of the Facility or the delivery of materials necessary to complete the Facility, in each case that would cause the Construction Start Date to be later than the Guaranteed Construction Start Date or the Commercial Operation Date to be later than the Guaranteed Commercial Operation Date.

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

Agenda Page 192
48 is qualified to conduct business in each jurisdiction of the Joint Powers Agreement members. All Persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with the Joint Powers Agreement and other Law.
(b) Buyer has the power and authority to enter into and perform the Agreement and is not prohibited from entering into the Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to the Agreement, except where such failure does not have a material adverse effect on Buyer’s performance under the Agreement. The execution, delivery and performance of the 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 the Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of the 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, the Joint Powers Act, 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) The Agreement has been duly executed and delivered by Buyer. The Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Buyer warrants and covenants that with respect to its contractual obligations under the 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.
(g) Buyer cannot assert sovereign immunity as a defense to the enforcement of its obligations under the Agreement.

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;

Agenda Page 193
49 (b) It shall maintain (or obtain from time to time as required) all regulatory authorizations necessary for it to legally perform its obligations under the Agreement; and (c) It shall perform its obligations under the Agreement in compliance with all terms and conditions in its governing documents and in material compliance with any Law.

13.4 Workforce Development. The Parties acknowledge that in connection with Buyer’s renewable energy procurement efforts, including entering into the Agreement, Buyer is committed to creating community benefits, which includes engaging a skilled and trained workforce and targeted hires. Accordingly, prior to the Guaranteed Construction Start Date, Seller shall ensure that work performed in connection with construction of the Facility will be conducted using a project labor agreement, community workforce agreement, work site agreement, collective bargaining agreement, or similar agreement providing for terms and conditions of employment with applicable labor organizations, and shall remain compliant with such agreement in accordance with the terms thereof. Seller shall provide documentation reasonably satisfactory to Buyer demonstrating Seller’s compliance with the requirements of this Section 13.4.

ARTICLE 14

ASSIGNMENT

14.1 General Prohibition on Assignments. Except as provided below in this Article 14, neither Party may voluntarily assign the Agreement or its rights or obligations under the 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 (whether voluntary or by operation of law) will be deemed an assignment and will require the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed; provided, a Change of Control of Seller shall not require Buyer’s consent if the assignee or transferee is a Permitted Transferee. Any assignment made without the required written consent, or in violation of the conditions to assignment set out below, shall be null and void. Seller shall be responsible for Buyer’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any assignment of the Agreement by Seller, including without limitation reasonable attorneys’ fees.

14.2 Collateral Assignment. Subject to the provisions of this Section 14.2, Seller has the right to assign the Agreement as collateral for any financing or refinancing of the Facility. In connection with any financing or refinancing of the Facility by Seller, Buyer shall in good faith work with Seller and Lender to execute a consent to collateral assignment of the Agreement substantially in the form attached hereto as Exhibit K (“Consent to Collateral Assignment”).

14.3 Permitted Assignment by Seller. Seller may, without the prior written consent of Buyer, transfer or assign the Agreement to: (a) an Affiliate of Seller; or (b) any Person succeeding to all or substantially all of the assets of Seller (whether voluntary or by operation of law) if, and only if:
(i) With respect to Section 14.3(b) only, such Person is a Permitted Transferee; (ii) Seller has given Buyer Notice at least fifteen (15) Business Days before the date of such proposed assignment; and

Agenda Page 194
50 (iii) Seller has provided Buyer a written agreement signed by the Person to which Seller wishes to assign its interests that (x) provides that such Person will assume all of Seller’s obligations and liabilities under the Agreement upon such transfer or assignment and (if applicable) (y) certifies that such Person meets the definition of a Permitted Transferee.

Notwithstanding the foregoing, any assignment by Seller, its successors or assigns under this Section 14.3 shall be of no force and effect unless and until such Notice and agreement by the assignee have been received and accepted by Buyer.

14.4 Portfolio Financing. Buyer agrees and acknowledges that Seller may elect to finance all or any portion of the Facility or the Interconnection Facilities (1) utilizing tax equity or cash equity investment, and/or (2) through a Portfolio Financing, which may include cross-collateralization or similar arrangements. In connection with any financing or refinancing of the Facility, the Interconnection Facilities by Seller or any Portfolio Financing, Buyer, Seller, Portfolio Financing Entity (if any), and Lender shall execute and deliver such further consents, approvals and acknowledgments as may be reasonable and necessary to facilitate such transactions; provided, Buyer shall not be required to agree to any terms or conditions which are reasonably expected to have a material adverse effect on Buyer and all reasonable attorney’s fees incurred by Buyer in connection therewith shall be borne by Seller.

ARTICLE 15

DISPUTE RESOLUTION

15.1 Governing Law. The 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 the Agreement.

15.2 Dispute Resolution. In the event of any dispute arising under the Agreement, within ten (10) days following the receipt of a Notice from either Party identifying such dispute, the Parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within the earlier of either forty-five (45) days of initiating such discussions, or within sixty (60) days after Notice of the dispute, either Party may seek any and all remedies available to it at law or in equity, subject to the limitations set forth in the Agreement.

15.3 Attorneys’ Fees. In any proceeding brought to enforce the Agreement or because of the breach by any Party of any covenant or condition herein contained, each Party shall bear its own respective costs, expenses and attorneys’ fees in connection with said action.

15.4 Venue. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Los Angeles County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, and waive any claim or defense that such forum is not convenient or proper.

Agenda Page 195
51 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 claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) (i) 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 negligent or willful misconduct of the Indemnifying Party, its Affiliates, its directors, officers, employees, or agents, or (ii) for third-party claims resulting from the Indemnifying Party’s breach (including inaccuracy of any representation of warranty made hereunder), performance or non-performance of its obligations under the Agreement. (b) Seller shall indemnify, defend and hold harmless Buyer and its Affiliates, directors, officers, employees from and against all claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) in connection with any claims of infringement upon or violation of any trade secret, trademark, trade name, copyright, patent, or other intellectual property rights of any third party by equipment, software, applications or programs (or any portion of same) used in connection with the Facility (an “IP Indemnity Claim”). (c) Nothing in this Section 16.1 shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of the Agreement. Neither Party shall 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, 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

Agenda Page 196
52 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 coverage for property damage, contractual liability, products and completed operations and personal injury insurance, in a minimum amount of One Million Dollars ($1,000,000) per occurrence, and an annual aggregate of not less than Two Million Dollars ($2,000,000), endorsed to provide contractual liability in said amount, specifically covering Seller’s obligations under the Agreement and including Buyer as an additional insured; and (ii) an umbrella insurance policy in a minimum limit of liability of Two Million Dollars ($2,000,000). 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.
(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) Construction All-Risk Insurance. Seller shall maintain or cause to be maintained during the construction of the Facility prior to the Commercial Operation Date, construction all-risk form property insurance covering the Facility during such construction periods, and naming Seller (and Lender if any) as the loss payee. (f) Subcontractor Insurance. Seller shall require all of its subcontractors to carry: (i) comprehensive general liability insurance with a combined single limit of coverage not less than One Million Dollars ($1,000,000); (ii) workers’ compensation insurance and employers’ liability coverage in accordance with applicable requirements of Law; and (iii) business auto insurance for bodily injury and property damage with limits of one million dollars ($1,000,000) per occurrence. All subcontractors shall name Seller as an additional insured to insurance carried pursuant to clauses (f)(i) and (f)(iii). All subcontractors shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 17.1(f).

Agenda Page 197
53 (g) 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 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. (h) 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 provide insurance in accordance with the terms and conditions above. With respect to the required general liability, umbrella liability and commercial 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, the 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 the 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 the 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, 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

Agenda Page 198
54 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 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 6250 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 herein. Accordingly, Receiving Party acknowledges that any such breach or threatened breach will cause irreparable injury to Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Disclosing Party will be entitled to obtain injunctive relief against the threatened breach of the Agreement 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 Lender(s)), so long as such Person to whom Confidential Information is disclosed 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.

Agenda Page 199
55 18.5 Press Releases. Neither Party shall issue (or cause its Affiliates to issue) a press release regarding the transactions contemplated by the Agreement unless both Parties have agreed upon the contents of any such public statement.

ARTICLE 19

MISCELLANEOUS

19.1 Entire Agreement; Integration; Exhibits. The Agreement, together with the Exhibits and Schedules attached thereto 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 and Schedules attached to the Agreement are integral parts thereof and are made a part of the Agreement by reference. The headings used herein are for convenience and reference purposes only. In the event of a conflict between the provisions of these General Conditions (including the Exhibits thereto) and the Special Conditions (including the Schedules thereto), the provisions of the Special Conditions and its Schedules shall prevail. The 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. The Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Buyer; provided, the 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 the Agreement, act in an independent capacity and not as officers or employees or agents of Buyer. Under the 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. The Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to the 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 the Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of the 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 the Agreement as a whole.

19.6 Mobile-Sierra. Notwithstanding any other provision of the 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 the Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any

Agenda Page 200
56 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 the Agreement proposed by a Party shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable Law.

19.7 Counterparts. The 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. The 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. The 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 the Agreement. Seller shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Buyer’s constituent members, or the employees, directors, officers, consultants or advisors of Buyer or its constituent members, in connection with the Agreement.

19.11 Forward Contract. The Parties acknowledge and agree that the 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 the Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. § 366 in any Bankruptcy proceeding wherein such Party is a debtor. In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. §366 or another provision of 11 U.S.C. § 101-1532.

19.12 Further Assurances. Each of the Parties hereto 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 the Agreement and which do not involve the assumptions of obligations other than those provided for in the Agreement, to give full effect to the Agreement and to carry out the intent of the Agreement.
[Signatures on following page]

Agenda Page 201
IN WITNESS WHEREOF, the Parties have caused the Agreement to be duly executed as of the Effective Date.

COAST ENERGY DEVCO, LLC,
a Delaware limited liability company
By:

Name: Blair Herbert
Title: Authorized Signer

CLEAN POWER ALLIANCE OF SOUTHERN
CALIFORNIA, a California joint powers authority
By:

Name: Theodore Bardacke
Title: Chief Executive Officer

Agenda Page 202

Exhibit A - 1

EXHIBIT A

FACILITY CONSTRUCTION AND COMMERCIAL OPERATION

1. Construction of the Facility.
(a) “Construction Start” will occur upon Seller’s acquisition of all applicable regulatory authorizations, approvals and permits for the construction of the Facility, and once Seller has engaged all contractors and ordered all essential equipment and supplies as, in each case, can reasonably be considered necessary so that physical construction of the Facility may begin and proceed to completion without foreseeable interruption of material duration, and has executed an engineering, procurement, and construction contract and issued thereunder a final notice to proceed that authorizes the contractor to mobilize to Site and begin physical construction (including, at a minimum, excavation for foundations or the installation or erection of improvements) 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 E hereto, and the date certified therein shall be the “Construction Start Date.” Seller shall cause Construction Start to occur no later than the Guaranteed Construction Start Date. (b) Seller may extend the Guaranteed Construction Start Date by paying Daily Delay Damages to Buyer for each day Seller desires to extend the Guaranteed Construction Start Date, not to exceed a total of ninety (90) days of extensions by such payment of Daily Delay Damages. On or before the date that is ten (10) days prior to the then-current Guaranteed Construction Start Date, Seller shall provide Notice and payment to Buyer of the Daily Delay Damages for the number of days of extension to the Guaranteed Construction Start Date. If Seller achieves Construction Start prior to the Guaranteed Construction Start Date, as extended by the payment of Daily Delay Damages, Buyer shall refund to Seller the Daily Delay Damages paid by Seller for the day on which Seller achieves Construction Start and for each day thereafter prior to the Guaranteed Construction Start Date, not to exceed the total amount of Daily Delay Damages paid by Seller pursuant to this Section 1(b). Additionally, if Seller achieves Commercial Operation on or before the Guaranteed Commercial Operation Date (not including any extensions to such date resulting from Seller’s payment of Commercial Operation Delay Damages, but as may be extended pursuant to a Development Cure Period), then Buyer shall refund to Seller all Daily Delay Damages paid by Seller and not previously refunded by Buyer.

2. Commercial Operation of the Facility. “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 F (the “COD Certificate”).
(a) Seller shall cause Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date. Seller shall notify Buyer that it intends to achieve

Agenda Page 203

Exhibit A - 2
Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date.
(b) Seller may extend the Guaranteed Commercial Operation Date by paying Commercial Operation Delay Damages to Buyer for each day Seller desires to extend the Guaranteed Commercial Operation Date, not to exceed a total of sixty (60) days of extensions by such payment of Commercial Operation Delay Damages. On or before the date that is ten (10) days prior to the then-current Guaranteed Commercial Operation Date, Seller shall provide Notice and payment to Buyer of the Commercial Operation Delay Damages for the number of days of extension to the Guaranteed Commercial Operation Date. If Seller achieves Commercial Operation prior to the Guaranteed Commercial Operation Date as extended by the payment of Commercial Operation Delay Damages, Buyer shall refund to Seller the Commercial Operation Delay Damages for each day Seller achieves Commercial Operation prior to the Guaranteed Commercial Operation Date times the Commercial Operation Delay Damages, not to exceed the total amount of Commercial Operation Delay Damages paid by Seller pursuant to this Section 2(b).

3. Termination for Failure to Achieve Commercial Operation. If the Facility has not achieved Commercial Operation on or before the Guaranteed Commercial Operation Date (as may be extended hereunder), Buyer may elect to terminate the Agreement in accordance with Sections 11.1(b)(ii) and 11.2.

4. Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall, subject to notice and documentation requirements set forth below, be extended on a day-for-day basis (the “Development Cure Period”) for the duration of any and all delays arising out of the following circumstances to the extent (i) the following circumstances are not the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines and (ii) such delays could not be mitigated by Seller using commercially reasonable efforts to overcome the delays; provided, to the extent such delays run concurrently, the corresponding day-for-day extensions shall run concurrently:
(a) Seller has not acquired the Material Permits by the Guaranteed Construction Start Date, despite the exercise of diligent and commercially reasonable efforts by Seller; or
(b) Seller has not received a fully executed Site lease on or before the expected Milestone date set forth in the Milestone Schedule in Schedule 1 of the Special Conditions; or
(c) the date on which the Utility Provider provides Interconnection Approval is after the expected date for Interconnection Approval set forth in the Milestone table in Schedule 1 of the Special Conditions; or

Agenda Page 204

Exhibit A - 3
(d) the date on which the Utility Provider executes the Interconnection Agreement is after the expected date for execution of the Interconnection Agreement set forth in the Milestone table in Schedule 1 of the Special Conditions; or (e) a Force Majeure Event occurs.

Seller shall submit any claim for Development Cure Period delays within (x) three (3) Business Days of the applicable milestone in the case of (a) through (d) above, and (y) fourteen (14) days after the initial occurrence of the claimed Force Majeure Event in the case of (e) above, in substantially the form set forth in Exhibit M. Notwithstanding anything in the Agreement to the contrary, the cumulative extensions granted under the Development Cure Period shall not exceed one hundred eighty (180) days, for any reason, including a Force Majeure Event, and the cumulative extensions granted to the Guaranteed Commercial Operation Date by the payment of Commercial Operation Delay Damages and any Development Cure Period(s) shall not exceed two hundred seventy (270) days. 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.

5. Failure to Reach Guaranteed PV Capacity or Guaranteed Storage Capacity. (a) Guaranteed PV Capacity. If, at Commercial Operation, the Installed PV Capacity is less than one hundred percent (100%) of the Guaranteed PV Capacity, Seller shall have sixty (60) days after the Commercial Operation Date to install additional capacity and/or Network Upgrades such that the Installed PV Capacity is equal to (but not greater than) the Guaranteed PV Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit G-1 hereto specifying the new Installed PV Capacity. If Seller fails to construct the Guaranteed PV Capacity by such date, Seller shall pay “PV Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Dollars ($250) for each kW that the Guaranteed PV Capacity exceeds the Installed PV Capacity. (b) Guaranteed Storage Capacity. If, at Commercial Operation, the Installed Storage Capacity is less than one hundred percent (100%) of the Guaranteed Storage Capacity, Seller shall have sixty (60) days after the Commercial Operation Date to install additional capacity and/or Network Upgrades such that the Installed Storage Capacity is equal to (but not greater than) one hundred percent (100%) of the Guaranteed Storage Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit G-1 hereto specifying the new Installed Storage Capacity. If Seller fails to construct the Guaranteed Storage Capacity by such date, Seller shall pay “Storage Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Dollars ($250) for each kW at four hours of continuous discharge that the Guaranteed Storage Capacity exceeds the Installed Storage Capacity.

Agenda Page 205

Exhibit A - 4
Capacity Damages shall not be offset or reduced by the payment of Development Security, Performance Security, Delay Damages, or any other form of liquidated damages under the Agreement.

6. Buyer’s Right to Draw on Development Security. If Seller fails to timely pay any Daily Delay Damages or Commercial Operation Delay Damages, Buyer may draw upon the Development Security to satisfy Seller’s payment obligation thereof.

Agenda Page 206
Exhibit B - 1

EXHIBIT B

COMPENSATION
Buyer shall compensate Seller for the Product in accordance with this Exhibit B. (a) Energy Payment. Buyer shall pay Seller an amount equal to the product of (1) the Renewable Rate times (2) the sum of (A) Adjusted Facility Energy delivered in each month plus (B) the amount of Compensated Lost Energy in such month, if applicable. (b) Excess Contract Year Deliveries Over 115%. Notwithstanding the foregoing, if at any point in any Contract Year, the amount of Adjusted Facility Energy plus Deemed Delivered Energy plus Compensated Lost Energy exceeds one hundred fifteen percent (115%) of the Expected Energy for such Contract Year, the price to be paid for additional Adjusted Facility Energy, Compensated Lost Energy and Deemed Delivered Energy shall be $0.00/MWh. (c) Monthly Capacity Payment.
(i) Each month of the Delivery Term (and pro-rated for the first and last month of the Delivery Term if the Delivery Term does not start on the first day of a calendar month), Buyer shall pay Seller a Monthly Capacity Payment equal to the Storage Rate x Effective Storage Capacity. Such payment constitutes the entirety of the amount due to Seller from Buyer for the Storage Product. If the Effective Storage Capacity is adjusted pursuant to a Storage Capacity Test other than the first day of calendar month, payment shall be calculated separately for each portion of the month in which the different Effective Storage Capacity is applicable. (d) Test Energy. Test Energy is compensated in accordance with Section 3.5. (e) Tax Credits. The Parties agree that the neither the Renewable Rate, the Storage Rate nor the Test Energy Rate are subject to adjustment or amendment if Seller fails to receive any Tax Credits, or if any Tax Credits expire, are repealed or otherwise cease to apply to Seller or the Facility in whole or in part, or Seller or its investors are unable to benefit from any Tax Credits.

Seller shall bear all risks, financial and otherwise, throughout the Contract Term, associated with Seller’s or the Facility’s eligibility to receive Tax Credits or to qualify for accelerated depreciation for Seller’s accounting, reporting or Tax purposes. The obligations of the Parties hereunder, including those obligations set forth herein regarding the purchase and price for and Seller’s obligation to deliver Facility Energy and Product, shall be effective regardless of whether construction of the Facility (or any portion thereof) or the sale of Facility Energy is eligible for, or receives Tax Credits during the Contract Term.

Agenda Page 207
Exhibit C - 1

EXHIBIT C

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

1. Executive Summary.

2. Facility description.

3. Site plan of the Facility.

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

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

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

7. Forecast of activities scheduled for the current calendar quarter.

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

9. List of issues that are 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. Progress and schedule of all material agreements, contracts, permits (including Material Permits), approvals, technical studies, financing agreements and major equipment purchase orders showing the start dates, completion dates, and completion percentages.

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

13. Workforce Development or Supplier Diversity Reporting (if applicable). Format to be provided by Buyer.

14. Status of SGIP application, awards, incentive payments, etc.

15. Any other documentation reasonably requested by Buyer.

Agenda Page 208
Exhibit D - 1

EXHIBIT D

GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION
In accordance with Section 4.7, if Seller fails to achieve the Guaranteed Energy Production during any Performance Measurement Period, a liquidated damages payment shall be due from Seller to Buyer, calculated as follows:
(A – B) * C
where:

A = the Guaranteed Energy Production amount for the Performance Measurement Period, in MWh
B = the Adjusted Energy Production amount for the Performance Measurement Period, in MWh
C = the Renewable Rate
“Adjusted Energy Production” shall mean the sum of the following: Adjusted Facility Energy + Lost Output + Deemed Delivered Energy + Compensated Lost Energy.

No payment shall be due if the calculation of (A - B) yields a negative number. In no event will Buyer owe any payment to Seller pursuant to this Exhibit D.

Within sixty (60) days after each Contract Year, Buyer shall send Seller Notice of the amount of damages owing, if any, which shall be payable to Buyer before the later of (a) thirty (30) days of such Notice and (b) ninety (90) days after each Performance Measurement Period.

Agenda Page 209
Exhibit E - 1

EXHIBIT E

FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification of Construction Start Date (“Certification”) is delivered by [SELLER ENTITY] (“Seller”) to Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated __________ (“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 A of the Agreement) has occurred, and a copy of the notice to proceed that Seller issued to its contractor as part of Construction Start is attached hereto.
(2) the Construction Start Date occurred on _____________ (the “Construction Start Date”); and
(3) the following Site Diagram show the location of the Facility on the Site (if different than as set forth on the Site Diagram in Schedule 2 of the Special Conditions):

IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as of the ___ day of ________.
[SELLER ENTITY]
By:

Its:

Date:

Agenda Page 210
Exhibit F - 1

EXHIBIT F

FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by _______[licensed professional engineer] (“Engineer”) to Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated _______ (“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.

As of _______[DATE]_____, Engineer hereby certifies and represents to Buyer the following:

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

2. Seller has installed equipment for the Generating Facility with an Installed PV Capacity of no less than ninety-five percent (95%) of the Guaranteed PV Capacity.

3. Seller has installed equipment for the Storage Facility with an Installed Storage Capacity of no less than ninety-five percent (95%) of the Guaranteed Storage Capacity.

4. Authorization to parallel the Facility was obtained by the Utility Provider, Southern California Edison on___[DATE]____.

5. The Utility Provider has provided documentation supporting full unrestricted release for Commercial Operation by Southern California Edison on _______[DATE]_____.

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

Its:

Date:

Agenda Page 211
Exhibit G-1
EXHIBIT G-1

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 Power Alliance of Southern California, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated __________ (“Agreement”) by and between [SELLER ENTITY] 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 the following:
(a) The installed nameplate capacity of the Generating Facility is __ kW AC (“Installed PV Capacity”);
(b) The Commercial Operation Storage Capacity Test conducted on [Date] demonstrated a maximum dependable operating capability to discharge electric energy of __ kW 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 4.9 and Exhibit J (the “Installed Storage Capacity”);
(c) The sum of (a) and (b) is __ kW AC and shall be the “Installed Capacity”; and
(d) Such Commercial Operation Storage Capacity Test demonstrated (i) a Battery Charging Factor of __%, (ii) a Battery Discharging Factor of __%, and (iii) an Efficiency Rate of __%, each in accordance with the testing procedures, requirements and protocols set forth in Section 4.9 and Exhibit J.

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

Its:

Date:

Agenda Page 212
Exhibit G-2
EXHIBIT G-2

FORM OF EFFECTIVE STORAGE CAPACITY CERTIFICATE
This certification (“Certification”) of Effective Storage Capacity and related characteristics of the Facility is delivered by [licensed professional engineer] (“Engineer”) to Clean Power Alliance of Southern California, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated __________ (“Agreement”) by and between [SELLER ENTITY] 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 the following:
(a) The Storage Capacity Test conducted on [Date] demonstrated a maximum dependable operating capability to discharge electric energy of __ kW 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 4.9 and Exhibit J of the Agreement (the “Effective Storage Capacity”); and
(b) Such Storage Capacity Test demonstrated (i) a Battery Charging Factor of __%, (ii) a Battery Discharging Factor of __%, and (iii) an Efficiency Rate of __%, each in accordance with the testing procedures, requirements and protocols set forth in Section 4.9 and Exhibit J.

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

Its:

Date:

Agenda Page 213
Exhibit H - 1

EXHIBIT H

FORM OF LETTER OF CREDIT
[Issuing Bank Letterhead and Address]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX]
Date:

Bank Ref.:

Amount: US$[XXXXXXXX]
Beneficiary:

Clean Power Alliance of Southern California,
a California joint powers authority
801 S Grand, Suite 400
Los Angeles, CA 90017

Ladies and Gentlemen:

By the order of __________ (“Applicant”), we, [insert bank name and address] (“Issuer”) hereby issue our Irrevocable Standby Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) in favor of Clean Power Alliance of Southern California, a California joint powers authority (“Beneficiary”), 801 S Grand, Suite 400, Los Angeles, CA 90017, for an amount not to exceed the aggregate sum of U.S. $[XXXXXX] (United States Dollars [XXXXX] and 00/100) (the “Available Amount”), pursuant to that certain Renewable Power Purchase Agreement dated as of ______ and as amended (the “Agreement”) between Applicant and Beneficiary. This Letter of Credit shall become effective immediately and shall be of no further force or effect at 5:00 p.m., California time, on [Date] or, if such day is not a Business Day (as hereinafter defined), on the next Business Day (as may be extended pursuant to the terms of this Letter of Credit, the “Expiration Date”).

For the purposes hereof, “Business Day” shall mean any day on which commercial banks are not authorized or required to close in Los Angeles, California.

Funds under this Letter of Credit are available to Beneficiary by valid presentation on or before 5:00 p.m. California time, on or before the Expiration Date of a copy of this Letter of Credit No. [XXXXXXX] and all amendments accompanied by Beneficiary’s 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.

Any full or partial drawing hereunder may be requested by transmitting copies of the requisite documents as described above to the Issuer by facsimile at [facsimile number for draws] or such other number as specified from time-to-time by the Issuer.

Agenda Page 214

Exhibit H - 2
The facsimile transmittal shall be deemed delivered when received. Drawings made by facsimile transmittal are deemed to be the operative instrument without the need of originally signed documents.

Issuer hereby agrees that all drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored if presented to the Issuer before the Expiration Date. All correspondence and any drawings (other than those made by facsimile) hereunder are to be directed to [Issuer address/contact]. Issuer undertakes to make payment to Beneficiary under this Standby Letter of Credit within three (3) business days of receipt by Issuer of a properly presented Drawing Certificate. The Beneficiary shall receive payment from Issuer by wire transfer to the bank account of the Beneficiary designated in the Drawing Certificate.

Partial draws are permitted under this Letter of Credit, and this Letter of Credit shall remain in full force and effect with respect to any continuing balance; provided, the Available Amount shall be reduced by the amount of each such drawing.

It is a condition of this Letter of Credit that it shall be deemed automatically extended without an amendment for a one year period (or, if such period ends on a day that is not a Business Day, until the next Business Day thereafter) beginning on the present Expiration Date hereof and upon each anniversary for such date (or, if such period ends on a day that is not a Business Day, until the next Business Day thereafter), unless at least one hundred twenty (120) days prior to any such Expiration Date Issuer has sent Beneficiary written notice by overnight courier service at the address provided below that Issuer elects not to extend this Letter of Credit, in which case it will expire on its then-current Expiration Date. No presentation made under this Letter of Credit after such Expiration Date will be honored.

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

Except so far as otherwise stated, this Letter of Credit is subject to the International Standby Practices ISP98 (also known as ICC Publication No. 590), or revision currently in effect (the “ISP”). As to matters not covered by the ISP, the laws of the State of California, without regard to the principles of conflicts of laws thereunder, shall govern all matters with respect to this Letter of Credit.

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

All notices to Beneficiary shall be in writing and are required to be sent by certified letter, overnight courier, or delivered in person to: Clean Power Alliance of Southern California, a California joint powers authority, Chief Financial Officer, 801 S Grand, Suite 400, Los Angeles, CA 90017. Only notices to Beneficiary meeting the requirements of this paragraph shall be

Agenda Page 215

Exhibit H - 3
considered valid. Any notice to Beneficiary which is not in accordance with this paragraph shall be void and of no force or effect.
[Bank Name]
___________________________
[Insert officer name]
[Insert officer title]

Agenda Page 216

Exhibit H - 4

EXHIBIT A
(DRAW REQUEST SHOULD BE ON BENEFICIARY’S LETTERHEAD)
Drawing Certificate
[Insert Bank Name and Address]
Ladies and Gentlemen:

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

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

2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________ because a Seller Event of Default (as such term is defined in the Agreement) has occurred.
or
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 [ ] 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 [ ] by wire transfer in immediately available funds to the following account:
[Specify account information]
[ ]
_______________________________
Name and Title of Authorized Representative
Date___________________________

Agenda Page 217

Exhibit I - 1

EXHIBIT I

NOTICES
COAST ENERGY DEVCO, LLC, a
Delaware limited liability company
(“Seller”)

CLEAN POWER ALLIANCE OF SOUTHERN
CALIFORNIA, a California joint powers
authority (“Buyer”)
All Notices:

Street: 840 Apollo Street, Suite 351
City: El Segundo
Attn: Operations
Phone: 424-410-8706
Email: [email protected]
All Notices:

Street: 801 S Grand, Suite 400
City: Los Angeles CA, 90017
Attn: Chief Executive Officer
Phone: (213) 269-5870
Email: [email protected]
Reference Numbers:

Duns:

Federal Tax ID Number: 87-1809632
Reference Numbers:

Duns:

Federal Tax ID Number:

Invoices:

Attn: Accounting
Phone: 424-410-8706
E-mail: [email protected]
Invoices:

Attn: Vice President, Power Supply
Phone: (213) 280-4011
E-mail: [email protected]
Scheduling:

Attn: Development Operations
Phone: 424-410-8706
Email: [email protected]
Scheduling:

Attn: Vice President, Power Supply
Phone: (213) 280-4011
Email:
[email protected]
Confirmations:

Attn: Operations
Phone: 424-410-8706
Email: [email protected]
Confirmations:

Attn: Vice President, Power Supply
Phone: (213) 280-4011
Email: [email protected]
Email CC:
[email protected]
Payments:

Attn: Accounting
Phone: 424-410-8706
E-mail: [email protected]
Payments:

Attn: Vice President, Power Supply
Phone: (213) 280-4011
E-mail: [email protected]
Wire Transfer:

BNK: Susser Bank
ABA: 311978818
ACCT: xxxx0994
Wire Transfer:

BNK: River City Bank
ABA: 121133416
ACCT: XXXXXX7557

Agenda Page 218
Exhibit J - 1

EXHIBIT J

STORAGE CAPACITY TESTS
Storage Capacity Test Notice and Frequency
A. Commercial Operation Storage Capacity Test(s). Upon no less than ten (10) Business Days prior Notice to Buyer, Seller shall schedule and complete a Commercial Operation Storage Capacity Test prior to the Commercial Operation Date. Such initial Commercial Operation Storage Capacity Test (and any subsequent Commercial Operation Storage Capacity Test permitted in accordance with Exhibit A) shall be performed in accordance with this Exhibit J and shall establish the Installed Storage Capacity and initial Efficiency Rate hereunder based on the actual capacity and capabilities of the Storage Facility determined by such Commercial Operation Storage Capacity Test(s).

B. Subsequent Storage Capacity Tests. Following the Commercial Operation Storage Capacity Test(s), at least fifteen (15) days in advance of the start of each Contract Year, upon no less than ten (10) Business Days prior Notice to Buyer, Seller shall schedule and complete a Storage Capacity Test. In addition, Buyer shall have the right to require a retest of the Storage Capacity Test at any time upon no less than five (5) Business Days prior Notice to Seller if Buyer provides data with such Notice reasonably indicating that the then-current Effective Storage Capacity have varied materially from the results of the most recent prior Storage Capacity Test.

Seller shall have the right to run a retest of any Storage Capacity Test at any time upon five (5) Business Days’ prior Notice to Buyer (or any shorter period reasonably acceptable to Buyer consistent with Prudent Operating Practice).

C. Test Results and Re-Setting of Effective Storage Capacity. No later than five (5) days following any Capacity Test, Seller shall submit a testing report detailing results and findings of the test. The report shall include Storage Facility Meter readings and plant log sheets verifying the operating conditions and output of the Storage Facility. In accordance with Section 4.9(a)(ii) of the Agreement and Part II(I) below, after the Commercial Operation Storage Capacity Test(s), the Effective Storage Capacity (up to, but not in excess of, the Installed Storage 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 calculating the Contract Price and all other purposes under the Agreement.

Capacity Test Procedures
PART I. GENERAL.
(1) Each Capacity Test shall be conducted in accordance with Prudent Operating Practices and the provisions of this Exhibit J. For ease of reference, a Capacity Test is sometimes referred to in this Exhibit J as a “CT”. Buyer or its representative may be present for the CT and may, for informational purposes only, use its own metering equipment (at Buyer’s sole cost).
(2) Conditions Prior to Testing.

Agenda Page 219
Exhibit K - 2
(1) EMS Functionality. The EMS shall be successfully configured to receive data from the Battery Management System (BMS), exchange DNP3 data with the Buyer SCADA device, and transfer data to the database server for the calculation, recording and archiving of data points. (2) Communications. The Remote Terminal Unit (RTU) testing should be successfully completed prior to any testing. The interface between Buyer’s RTU and the Facility SCADA System should be fully tested and functional prior to starting any testing, including verification of the data transmission pathway between Buyer's RTU and Seller’s EMS interface and the ability to record SCADA System data.
(3) Commissioning Checklist. Commissioning shall be successfully completed per manufacturer guidance on all applicable installed Facility equipment, including verification that all controls, set points, and instruments of the EMS are configured.
(4) Generating Facility Conditions. Any CTs requiring the availability of Charging Energy shall be conducted when the Generating Facility is producing at a rate equal to or above the Effective Storage Capacity continuously for a five (5)-hour period; provided, Seller may waive such conditions at its sole discretion. Any CTs that are required or allowed to occur under this Exhibit J that take place in the absence of the above condition being satisfied shall be subject to a mutually agreed upon adjustment (such agreement not to be unreasonably withheld) between Seller and Buyer with respect to the allowed charging time for such CT and/or the Battery Charging Factor definition, which adjustment(s) shall be commensurate with then-existing irradiance limitations.

PART II. REQUIREMENTS APPLICABLE TO ALL CAPACITY TESTS.

A. Test Elements. Each CT shall include at least the following individual test elements, which must be conducted in the order prescribed in Part III of this Exhibit J, unless the Parties mutually agree to deviations therefrom. The Parties acknowledge and agree that should Seller fall short of demonstrating one or more of the Test Elements as specified below, the Test will still be deemed “complete,” and any adjustments necessary to the Effective Storage Capacity resulting from such Test, if applicable, will be made in accordance with this Exhibit J. (1) Electrical output at the lesser of maximum discharging level (kW) and Guaranteed Storage Capacity for four (4) continuous hours; and (2) Electrical input at maximum charging level at the Storage Facility Meter (kW), as sustained until the SOC reaches at least 90%, continued by the electrical input at a rate up to the maximum charging level at the Storage Facility Meter (kW), as sustained until the SOC reaches 100%, not to exceed five (5) hours of total charging time.

Agenda Page 220
Exhibit K - 3
B. Parameters. During each CT, the following parameters shall be measured and recorded simultaneously for the Storage Facility, at two (2) second intervals:
(1) Time;
(2) The amount of Discharging Energy delivered to the Storage Facility Meter (kWh) (i.e., to each measurement device making up the Storage Facility Meter);
(3) Net electrical energy input from the Storage Facility Meter (kWh) (i.e., from each measurement device making up the Storage Facility Meter); (4) Stored Energy Level (kWh).

C. Site Conditions. During each CT, 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 Storage Facility; and
(3) Ambient air temperature (°F).

D. Test Showing. Each CT shall record and report the following datapoints:
(1) That the CT successfully started;
(2) The maximum sustained discharging level for four (4) consecutive hours pursuant to A(1) above;
(3) The maximum sustained charging level for four (4) consecutive hours pursuant to A(2) above;
(4) Amount of Charging Energy and Energy In to go from 0% SOC to 100% SOC;
(5) Amount of Discharging Energy and Energy Out to go from 100% SOC to 0% SOC.

E. Test Conditions.
(1) General. At all times during a CT, the Storage Facility shall be operated in compliance with Prudent Operating Practices and all operating protocols recommended, required or established by the manufacturer for the Storage Facility.
(2) Abnormal Conditions. If abnormal operating conditions that prevent the testing or recordation of any required parameter occur during a CT, Seller

Agenda Page 221
Exhibit K - 4
may postpone or reschedule all or part of such CT in accordance with Part II.F below.
(3) Instrumentation and Metering. Seller shall provide all instrumentation, metering and data collection equipment required to perform the CT. The instrumentation, metering and data collection equipment electrical meters shall be calibrated in accordance with Prudent Operating Practice.

F. Incomplete Test. If any CT is not completed in accordance herewith, Buyer may in its sole discretion: (i) accept the results up to the time the CT stopped without any modification to the Effective Storage Capacity pursuant to Section I below; (ii) require that the portion of the CT not completed, be completed within a reasonable specified time period; or (iii) require that the CT be entirely repeated within a reasonable specified time period. Notwithstanding the above, if Seller is unable to complete a CT due to a Force Majeure Event or the actions or inactions of Buyer or the Utility Provider, Seller shall be permitted to reconduct such CT on dates and at times reasonably acceptable to the Parties.

G. Test Report. Within five (5) Business Days after the completion of any CT, Seller shall prepare and submit to Buyer a written report of the results of the CT, which report shall include:
(1) A record of the personnel present during the CT that served in an operating, testing, monitoring or other such participatory role;
(2) The measured and calculated data for each parameter set forth in Part II.A through D, including copies of the raw data taken during the test; and (3) Seller’s statement of either Seller’s acceptance of the CT or Seller’s rejection of the CT results and reason(s) therefore.

Within five (5) Business Days after receipt of such report, Buyer shall notify Seller in writing of either Buyer’s acceptance of the CT results or Buyer’s rejection of the CT and reason(s) therefor.

If either Party rejects the results of any CT, such CT shall be repeated in accordance with Part II.F.

H. Supplementary Capacity Test Protocol. No later than sixty (60) days prior to commencing Storage Facility construction, Seller shall deliver to Buyer for its review and approval (such approval not to be unreasonably delayed or withheld) a supplement to this Exhibit J with additional and supplementary details, procedures and requirements applicable to Capacity Tests based on the then-current design of the Storage Facility (“Supplementary 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 Capacity Test Protocol. The initial Supplementary Capacity Test Protocol (and each update thereto), once approved by Buyer, shall

Agenda Page 222
Exhibit K - 5
be deemed an amendment to this Exhibit J.

I. Adjustment to Effective Storage Capacity. The Effective Storage Capacity shall be updated as follows:
(1) The total amount of Discharging Energy delivered to the Delivery Point (expressed in kWh AC) during the first four (4) hours of discharge (up to, but not in excess of, the product of (i) (a) the Guaranteed Storage Capacity (in the case of a Commercial Operation Storage Capacity Test, including under Section 5 of Exhibit A) or (b) the Installed Storage Capacity (in the case of any other Storage Capacity Test), multiplied by (ii) four (4) hours) shall be divided by four (4) hours to determine the Effective Storage Capacity, which shall be expressed in kW AC, and shall be the new Effective Storage Capacity in accordance with Section 4.9(a)(ii) of the Agreement.
(2) The total amount of Energy Out (as reported under Section II.D(5) above) divided by the total amount of Energy In (as reported under Section II.D(4) above), and expressed as a percentage, shall be recorded as the initial Efficiency Rate, and shall be used for the calculation of the Efficiency Rate Factor in Exhibit B until updated after the first month of operations.

PART III. INITIAL SUPPLEMENTARY CAPACITY TEST PROTOCOL.

A. Effective Storage Capacity and Initial Efficiency Rate Test • Procedure:
(1) System Starting State: The Storage Facility will be in the on-line state at 0% SOC.
(2) Record the initial value of the Storage Facility SOC. (3) Command a real power charge that results in an AC power of Storage Facility’s maximum charging level, and continue charging until the earlier of (a) the Storage Facility has reached 100% SOC or (b) five (5) hours have elapsed since the Storage Facility commenced charging.
(4) Record and store the Storage Facility SOC after the earlier of (a) the Storage Facility has reached 100% SOC or (b) five (5) hours of continuous charging.

Such data point shall be used for purposes of calculation of the Battery Charging Factor.
(5) Record and store the Energy In.
(6) Following an agreed-upon rest period, command a real power discharge that results in an AC power output of the lesser of (i) the Storage Facility’s

Agenda Page 223
Exhibit K - 6
maximum discharging level and (ii) the Guaranteed Storage 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 Storage Facility has reached 0% SOC, or (c) the sustained discharging level is at least 2% less than the lesser of (i) the maximum discharging level and (ii) the Guaranteed Storage Capacity,. (7) Record and store the Storage Facility SOC after four (4) hours of continuous discharging. Such data point shall be used for purposes of calculation of the Battery Discharging Factor. If the Storage Facility SOC remains above zero percent (0%) after discharging at a rate at or above the Guaranteed Storage Capacity (or at or above the Installed Storage Capacity after a Commercial Operation Storage Capacity Test) for four (4) consecutive hours pursuant to Part III.A.6(a), the SOC will be deemed 0 for the purposes of calculating the Battery Discharging Factor.
(8) Record and store the Discharging Energy as measured at the Storage Facility Meter. Such data point shall be used for purposes of calculation the Effective Storage Capacity.
(9) If the Storage Facility has not reached 0% SOC pursuant to Section III.A.6, continue discharging the Storage Facility until it reaches a 0% SOC. (10) Record and store the Discharging Energy (in kWh) as measured at the Storage Facility Meter, if applicable.
(11) Record and store the Energy Out from the commencement of discharging pursuant to Part III.A.5 until the Storage Facility has reached a 0% SOC pursuant to either Part III.A.6 or Part III.A.9, as applicable. • Test Results
(1) The resulting Effective Storage Capacity measurement is the sum of the total Discharging Energy at the Storage Facility Meter divided by four (4) hours.
(2) The resulting initial Efficiency Rate is calculated as the total amount of Energy Out (as reported under Section III.A(11) above) divided by the total amount of Energy In (as reported under Section III.A(5) above), and expressed as a percentage, and shall be used for the calculation of the Efficiency Rate Factor in Exhibit B until updated following the first month of operations.
\

Agenda Page 224
Exhibit K - 1

EXHIBIT K

FORM OF CONSENT TO COLLATERAL ASSIGNMENT
This Consent to Collateral Assignment (this “Consent”) is entered into among (i) Clean Power Alliance of Southern California, a California joint powers authority (“CPA”), (ii) [Name of Seller], a [Legal Status of Seller] (the “Project Company”), and (iii) [Name of Collateral Agent], a [Legal Status of Collateral Agent], as Collateral Agent for the secured parties under the Financing Documents referred to below (such secured parties together with their successors permitted under this Consent in such capacity, the “Secured Parties”, and, such agent, together with its successors in such capacity, the “Collateral Agent”). CPA, Project Company and Collateral Agent are hereinafter sometimes referred to individually as a “Party” and jointly as the “Parties”.

Capitalized terms used but not otherwise defined in this Consent shall have the meanings ascribed to them in the PPA (as defined below).

RECITALS
The Parties enter into this Consent with reference to the following facts:

A. Project Company and CPA have entered into that certain Renewable Power Purchase Agreement, dated as of [Date] [List all amendments as contemplated by Section 3.4] (“PPA”), pursuant to which Project Company will develop, construct, commission, test and operate the Facility and sell the Product to CPA, and CPA will purchase the Product from Project Company;
B. As collateral for Project Company’s obligations under the PPA, Project Company has agreed to provide to CPA certain collateral, which may include Performance Security and Development Security and other collateral described in the PPA (collectively, the “PPA Collateral”);
C. Project Company has entered into that certain [Insert description of financing arrangements with Lender], dated as of [Date], among Project Company, the Lenders party thereto and the Collateral Agent (the “Financing Agreement”), pursuant to which, among other things, the Lenders have extended commitments to make loans to Project Company; D. As collateral security for Project Company’s obligations under the Financing Agreement and related agreements (collectively, the “Financing Documents”), Project Company has, among other things, assigned all of its right, title and interest in, to and under the PPA and Project’s Company’s owners have pledged their ownership interest in Project Company (collectively, the “Assigned Interest”) to the Collateral Agent pursuant to the Financing Documents; and
E. It is a requirement under the Financing Agreement and the PPA that CPA and the other Parties hereto shall have executed and delivered this Consent.

AGREEMENT
In consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the Parties hereto hereby agree as follows:

Agenda Page 225
Exhibit K - 2
SECTION 1. CONSENT TO ASSIGNMENT, ETC.

1.1 Consent and Agreement.

CPA hereby acknowledges:
(a) Notice of and consents to the assignment as collateral security to Collateral Agent, for the benefit of the Secured Parties, of the Assigned Interest; and (b) The right (but not the obligation) of Collateral Agent in the exercise of its rights and remedies under the Financing Documents, to make all demands, give all notices, take all actions and exercise all rights of Project Company permitted under the PPA (subject to CPA’s rights and defenses under the PPA and the terms of this Consent) and accepts any such exercise; provided, insofar as the Collateral Agent exercises any such rights under the PPA or makes any claims with respect to payments or other obligations under the PPA, the terms and conditions of the PPA applicable to such exercise of rights or claims shall apply to Collateral Agent to the same extent as to Project Company.

1.2 Project Company’s Acknowledgement.

Each of Project Company and Collateral Agent hereby acknowledges and agrees that CPA is authorized to act in accordance with Collateral Agent’s instructions, and that CPA shall bear no liability to Project Company or Collateral Agent in connection therewith, including any liability for failing to act in accordance with Project Company’s instructions.

1.3 Right to Cure.

If Project Company defaults in the performance of any of its obligations under the PPA, or upon the occurrence or non-occurrence of any event or condition under the PPA which would immediately or with the passage of any applicable grace period or the giving of notice, or both, enable CPA to terminate or suspend its performance under the PPA (a “PPA Default”), CPA will not terminate or suspend its performance under the PPA until it first gives written notice of such PPA Default to Collateral Agent and affords Collateral Agent the right to cure such PPA Default within the applicable cure period under the PPA, which cure period shall run concurrently with that afforded Project Company under the PPA. In addition, if Collateral Agent gives CPA written notice prior to the expiration of the applicable cure period under the PPA of Collateral Agent’s intention to cure such PPA Default (which notice shall include a reasonable description of the time during which it anticipates to cure such PPA Default) and is diligently proceeding to cure such PPA Default, notwithstanding the applicable cure period under the PPA, Collateral Agent shall have a period of sixty (60) days (or, if such PPA Default is for failure by the Project Company to pay an amount to CPA which is due and payable under the PPA other than to provide PPA Collateral, thirty (30) days, or, if such PPA Default is for failure by Project Company to provide PPA Collateral, ten (10) Business Days) from the Collateral Agent’s receipt of the notice of such PPA Default from CPA to cure such PPA Default; provided, (a) if possession of the Facility is necessary to cure any such non-monetary PPA Default and Collateral Agent has commenced foreclosure proceedings within sixty (60) days after notice of the PPA Default and is diligently pursuing such foreclosure proceedings, Collateral Agent will be allowed a reasonable time, not to exceed one hundred eighty (180) days after the notice of the PPA Default, to complete such

Agenda Page 226
Exhibit K - 3
proceedings and cure such PPA Default, and (b) if Collateral Agent is prohibited from curing any such PPA Default by any process, stay or injunction issued by any Governmental Authority or pursuant to any bankruptcy or insolvency proceeding or other similar proceeding involving Project Company, then the time periods specified herein for curing a PPA Default shall be extended for the period of such prohibition, so long as Collateral Agent has diligently pursued removal of such process, stay or injunction. Collateral Agent shall provide CPA with reports concerning the status of efforts to cure a PPA Default upon CPA’s reasonable request.

1.4 Substitute Owner.

Subject to Section 1.7, the Parties agree that if Collateral Agent notifies (such notice, a “Financing Document Default Notice”) CPA that an event of default has occurred and is continuing under the Financing Documents (a “Financing Document Event of Default”) then, upon a judicial foreclosure sale, non-judicial foreclosure sale, deed in lieu of foreclosure or other transfer following a Financing Document Event of Default, Collateral Agent (or its designee) shall be substituted for Project Company (the “Substitute Owner”) under the PPA, and, subject to Sections

1.7(b) and 1.7(c) below, CPA and Substitute Owner will recognize each other as counterparties under the PPA and will continue to perform their respective obligations (including those obligations accruing to CPA and the Project Company prior to the existence of the Substitute Owner) under the PPA in favor of each other in accordance with the terms thereof; provided, before CPA is required to recognize the Substitute Owner, the Substitute Owner must have demonstrated to CPA’s reasonable satisfaction that the Substitute Owner has financial qualifications and operating experience [TBD] (a “Permitted Transferee”). For purposes of the foregoing, CPA shall be entitled to assume that any such purported exercise of rights by Collateral Agent that results in substitution of a Substitute Owner under the PPA is in accordance with the Financing Documents without independent investigation thereof but shall have the right to require that the Collateral Agent and its designee (if applicable) provide reasonable evidence demonstrating the same.

1.5 Replacement Agreements.

Subject to Section 1.7, if the PPA is terminated, rejected or otherwise invalidated as a result of any bankruptcy, insolvency, reorganization or similar proceeding affecting Project Company, its owner(s) or guarantor(s), and if Collateral Agent or its designee directly or indirectly takes possession of, or title to, the Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure) (“Replacement Owner”), CPA shall, and Collateral Agent shall cause Replacement Owner to, enter into a new agreement with one another for the balance of the obligations under the PPA remaining to be performed having terms substantially the same as the terms of the PPA with respect to the remaining Contract Term (“Replacement PPA”); provided, before CPA is required to enter into a Replacement PPA, the Replacement Owner must have demonstrated to CPA’s reasonable satisfaction that the Replacement Owner satisfies the requirements of a Permitted Transferee. For purposes of the foregoing, CPA is entitled to assume that any such purported exercise of rights by Collateral Agent that results in a Replacement Owner is in accordance with the Financing Documents without independent investigation thereof but shall have the right to require that the Collateral Agent and its designee (if applicable) provide reasonable evidence demonstrating the same. Notwithstanding the execution and delivery of a Replacement PPA, to the extent CPA is, or was otherwise prior to its termination as described in this Section 1.5, entitled under the PPA, CPA may suspend performance of its obligations under

Agenda Page 227
Exhibit K - 4
such Replacement PPA, unless and until all PPA Defaults of Project Company under the PPA or Replacement PPA have been cured.

1.6 Transfer.

Subject to Section 1.7, a Substitute Owner or a Replacement Owner may assign all of its interest in the Facility and the PPA and a Replacement PPA to a natural person, corporation, trust, business trust, joint venture, joint stock company, association, company, limited liability company, partnership, Governmental Authority or other entity (a “Person”) to which the Facility is transferred; provided, the proposed transferee shall have demonstrated to CPA’s reasonable satisfaction that such proposed transferee satisfies the requirements of a Permitted Transferee.

1.7 Assumption of Obligations.
(a) Transferee.

Any transferee under Section 1.6 shall expressly assume in a writing reasonably satisfactory to CPA all of the obligations of Project Company, Substitute Owner or Replacement Owner under the PPA or Replacement PPA, as applicable, including posting and collateral assignment of the PPA Collateral. Upon such assignment and the cure of any outstanding PPA Default, and payment of all other amounts due and payable to CPA in respect of the PPA or such Replacement PPA, the transferor shall be released from any further liability under the PPA or Replacement PPA, as applicable.
(b) Substitute Owner.

Subject to Section 1.7(c), any Substitute Owner pursuant to Section 1.4 shall be required to perform Project Company’s obligations under the PPA, including posting and collateral assignment of the PPA Collateral; provided, the obligations of such Substitute Owner shall be no more than those of Project Company under the PPA.
(c) No Liability.

CPA acknowledges and agrees that neither Collateral Agent nor any Secured Party shall have any liability or obligation under the PPAas a result of this Consent (except to the extentCollateral Agent or a Secured Party is a Substitute Owner or Replacement Owner) nor shall Collateral Agent or any other Secured Party be obligated or required to (i) perform any of Project Company’s obligations under the PPA, except as provided in Sections 1.7(a) and 1.7(b) and to the extent Collateral Agent or a Secured Party is a Substitute Owner or Replacement Owner, or (ii) take any action to collect or enforce any claim for payment assigned under the Financing Documents. If Collateral Agent becomes a Substitute Owner pursuant to Section 1.4 or enters into a Replacement PPA, Collateral Agent shall not have any personal liability to CPA under the PPA or Replacement PPA and the sole recourse of CPA in seeking enforcement of such obligations against Collateral Agent shall be to the aggregate interest of the Secured Parties in the Facility; provided, such limited recourse shall not limit CPA’s right to seek equitable or injunctive relief against Collateral Agent, or CPA’s rights with respect to any offset rights expressly allowed under the PPA, a Replacement PPA or the PPA Collateral.

Agenda Page 228
Exhibit K - 5

1.8 Delivery of Notices.

CPA shall deliver to Collateral Agent, concurrently with the delivery thereof to Project Company, a copy of each notice, request or demand given by CPA to Project Company pursuant to the PPA relating to (a) a PPA Default by Project Company under the PPA, (b) any claim regarding a Force Majeure Event by CPA under the PPA, (c) any notice of dispute under the PPA, (d) any notice of intent to terminate or any termination notice, and (e) any matter that would require the consent of Collateral Agent pursuant to Section 1.11 or any other provision of this Consent. Collateral Agent acknowledges that delivery of such notice, request and demand shall satisfy CPA’s obligation to give Collateral Agent a notice of PPA Default under Section 1.3. Collateral Agent shall deliver to CPA, concurrently with delivery thereof to Project Company, a copy of each notice, request or demand given by Collateral Agent to Project Company pursuant to the Financing Documents relating to a default by Project Company under the Financing Documents.

1.9 Confirmations.

CPA will, as and when reasonably requested by Collateral Agent from time to time, confirm in writing matters relating to the PPA (including the performance of same by Project Company); provided, such confirmation may be limited to matters of which CPA is aware as of the time the confirmation is given and such confirmations shall be without prejudice to any rights of CPA under the PPA as between CPA and Project Company.

1.10 Exclusivity of Dealings.

Except as provided in Sections 1.3, 1.4, 1.8, 1.9 and 2.1, unless and until CPA receives a Financing Document Default Notice, CPA shall deal exclusively with Project Company in connection with the performance of CPA’s obligations under the PPA. From and after such time as CPA receives a Financing Document Default Notice and until a Substitute Owner is substituted for Project Company pursuant to Section 1.4, a Replacement PPA is entered into or the PPA is transferred to a Person to whom the Facility is transferred pursuant to Section 1.6, CPA shall, until Collateral Agent confirms to CPA in writing that all obligations under the Financing Documents are no longer outstanding, deal exclusively with Collateral Agent in connection with the performance of CPA’s obligations under the PPA, and CPA may irrevocably rely on instructions provided by Collateral Agent in accordance therewith to the exclusion of those provided by any other Person.

1.11 No Amendments.

To the extent permitted by Laws, CPA agrees that it will not, without the prior written consent of Collateral Agent (not to be unreasonably withheld, delayed or conditioned) (a) enter into any material supplement, restatement, novation, extension, amendment or modification of the PPA (b) terminate or suspend its performance under the PPA (except in accordance with Section 1.3) or (c) consent to or accept any termination or cancellation of the PPA by Project Company.

SECTION 2. PAYMENTS UNDER THE PPA

2.1 Payments.

Agenda Page 229
Exhibit K - 6
Unless and until CPA receives written notice to the contrary from Collateral Agent, CPA will make all payments to be made by it to Project Company under or by reason of the PPA directly to Project Company. CPA, Project Company, and Collateral Agent acknowledge that CPA will be deemed to be in compliance with the payment terms of the PPA to the extent that CPA makes payments in accordance with Collateral Agent’s instructions.

2.2 No Offset, Etc.

All payments required to be made by CPA under the PPA shall be made without any offset, recoupment, abatement, withholding, reduction or defense whatsoever, other than that expressly allowed by the terms of the PPA.

SECTION 3. REPRESENTATIONS AND WARRANTIES OF CPA
CPA makes the following representations and warranties as of the date hereof in favor of Collateral Agent:

3.1 Organization.

CPA is a joint powers authority and community choice aggregator duly organized and validly existing under the laws of the state of California, and the rules, regulations and orders of the California Public Utilities Commission, and is qualified to conduct business in each jurisdiction of the Joint Powers Agreement members. CPA has all requisite power and authority, corporate and otherwise, to enter into and to perform its obligations hereunder and underthe PPA, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby.

3.2 Authorization.

The execution, delivery and performance by CPA of this Consent and the PPA have been duly authorized by all necessary corporate or other action on the part of CPA and do not require any approval or consent of any holder (or any trustee for any holder) of any indebtedness or other obligation of CPA which, if not obtained, will prevent CPA from performing its obligations hereunder or under the PPA except approvals or consents which have previously been obtained and which are in full force and effect.

3.3 Execution and Delivery; Binding Agreements.

Each of this Consent and the PPA is in full force and effect, has been duly executed and delivered on behalf of CPA by the appropriate officers of CPA, and constitutes the legal, valid and binding obligation of CPA, enforceable against CPA in accordance with its terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).

3.4 No Default or Amendment.

Agenda Page 230
Exhibit K - 7
Except as set forth in Schedule A attached hereto: (a) Neither CPA nor, to CPA’s actual knowledge, Project Company, is in default of any of its obligations under the PPA; (b) CPA and, to CPA’s actual knowledge, Project Company, has complied with all conditions precedent to the effectiveness of its obligations under the PPA; (c) to CPA’s actual knowledge, no event or condition exists which would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either CPA or Project Company to terminate or suspend its obligations under the PPA; and (d) the PPA has not been amended, modified or supplemented in any manner except as set forth herein and in the recitals hereto.

3.5 No Previous Assignments.

CPA has no notice of, and has not consented to, any previous assignment by Project Company of all or any part of its rights under the PPA, except as previously disclosed in writing and consented to by CPA.

SECTION 4. REPRESENTATIONS AND WARRANTIES OF PROJECT COMPANY Project Company makes the following representations and warranties as of the date hereof in favor of the Collateral Agent and CPA:

4.1 Organization.

Project Company is a [Legal Status of Seller] duly organized and validly existing under the laws of the state of its organization, and is duly qualified, authorized to do business and in good standing in every jurisdiction in which it owns or leases real property or in which the nature of its business requires it to be so qualified, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or its ability to transact its business. Project Company has all requisite power and authority, corporate and otherwise, to enter into and to perform its obligations hereunder and under the PPA, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby.

4.2 Authorization.

The execution, delivery and performance of this Consent by Project Company, and Project Company’s assignment of its right, title and interest in, to and under the PPA to the Collateral Agent pursuant to the Financing Documents, have been duly authorized by all necessary corporate or other action on the part of Project Company.

4.3 Execution and Delivery; Binding Agreement.

This Consent is in full force and effect, has been duly executed and delivered on behalf of Project Company by the appropriate officers of Project Company, and constitutes the legal, valid and binding obligation of Project Company, enforceable against Project Company in accordance with its terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).

Agenda Page 231
Exhibit K - 8

4.4 No Default or Amendment.

Except as set forth in Schedule B attached hereto: (a) neither Project Company nor, to Project Company’s actual knowledge, CPA, is in default of any of its obligations under the PPA; (b) Project Company and, to Project Company’s actual knowledge, CPA, has complied with all conditions precedent to the effectiveness of its obligations under the PPA; (c) to Project Company’s actual knowledge, no event or condition exists which would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either CPA or Project Company to terminate or suspend its obligations under the PPA; and (d) the PPA has not been amended, modified or supplemented in any manner except as set forth herein and in the recitals hereto.

4.5 No Previous Assignments.

Project Company has not previously assigned all or any part of its rights under the PPA.

SECTION 5. REPRESENTATIONS AND WARRANTIES OF COLLATERAL AGENT Collateral Agent makes the following representations and warranties as of the date hereof in favor of CPA and Project Company:

5.1 Authorization.

The execution, delivery and performance of this Consent by Collateral Agent have been duly authorized by all necessary corporate or other action on the part of Collateral Agent and Secured Parties.

5.2 Execution and Delivery; Binding Agreement.

This Consent is in full force and effect, has been duly executed and delivered on behalf of Collateral Agent by the appropriate officers of Collateral Agent, and constitutes the legal, valid and binding obligation of Collateral Agent as Collateral Agent for the Secured Parties, enforceable against Collateral Agent (and the Secured Parties to the extent applicable) in accordance with its terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).

SECTION 6. MISCELLANEOUS

6.1 Notices.

All notices and other communications hereunder shall be in writing, shall be deemed given upon receipt thereof by the Party or Parties to whom such notice is addressed, shall refer on their face to the PPA (although failure to so refer shall not render any such notice or communication ineffective), shall be sent by first class mail, by personal delivery or by a nationally recognized courier service, and shall be directed (a) if to CPA or Project Company, in accordance with [Notice Section of the PPA] of the PPA, (b) if to Collateral Agent, to [Collateral Agent Name], [Collateral

Agenda Page 232
Exhibit K - 9
Agent Address], Attn: [Collateral Agent Contact Information], Telephone: [___], Fax: [___], and (c) to such other address or addressee as any such Party may designate by notice given pursuant hereto.

6.2 Governing Law; Submission to Jurisdiction.
(a) THIS CONSENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THIS

CONSENT AND ALL MATTERS ARISING OUT OF THIS CONSENT AND THE TRANSACTIONS

CONTEMPLATED HEREBY SHALL BE GOVERNED BY, THE LAW OF THE STATE OF

CALIFORNIA WITHOUT REGARD TO ANY CONFLICTS OF LAWS PROVISIONS THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. (b) All disputes, claims or controversies arising out of, relating to, concerning or pertaining to the terms of this Consent shall be governed by the dispute resolution provisions of the PPA. Subject to the foregoing, any legal action or proceeding with respect to this Consent and any action for enforcement of any judgment in respect thereof may be brought in the courts of the State of California or of the United States of America for the Central District of California, and, by execution and delivery of this Consent, each Party hereby accepts for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and appellate courts from any appeal thereof. Each Party further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to its notice address provided pursuant to Section 6.1 hereof. Each Party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Consent brought in the courts referred to above and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Nothing herein shall affect the right of any Party to serve process in any other manner permitted by law.

6.3 Headings Descriptive.

The headings of the several sections and subsections of this Consent are insertedfor convenience only and shall not in any way affect the meaning or construction of any provision of this Consent.

6.4 Severability.

In case any provision in or obligation under this Consent shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

6.5 Amendment, Waiver.

Neither this Consent nor any of the terms hereof may (a) be terminated, amended, supplemented or modified, except by an instrument in writing signed by CPA, Project Company and Collateral Agent or (b) waived, except by an instrument in writing signed by the waiving Party.

6.6 Termination.

Agenda Page 233
Exhibit K - 10
Each Party’s obligations hereunder are absolute and unconditional, and no Party has any right, and shall have no right, to terminate this Consent or to be released, relieved or discharged from any obligation or liability hereunder until CPA has been notified by Collateral Agent that all of the obligations under the Financing Documents shall have been satisfied in full (other than contingent indemnification obligations) or, with respect to the PPA or any Replacement PPA, its obligations under such PPA or Replacement PPA have been fully performed.

6.7 Successors and Assigns.

This Consent shall be binding upon each Party and its successors and assigns permitted under and in accordance with this Consent, and shall inure to the benefit of the other Parties and their respective successors and assignee permitted under and in accordance with this Consent. Each reference to a Person herein shall include such Person’s successors and assigns permitted under and in accordance with this Consent.

6.8 Further Assurances.

CPA hereby agrees to execute and deliver all such instruments and take all such action as may be necessary to effectuate fully the purposes of this Consent.

6.9 Waiver of Trial by Jury.

TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE PARTIES HEREBY

IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,

PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT OR ANY MATTER ARISING HEREUNDER. EACH PARTY FURTHER

WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS

LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

6.10 Entire Agreement.

This Consent and any agreement, document or instrument attached hereto or referred to herein integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect to the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Consent and any such agreement, document or instrument, the terms, conditions and provisions of this Consent shall prevail.

6.11 Effective Date.

This Consent shall be deemed effective as of the date upon which the last Party executes this Consent.

6.12 Counterparts; Electronic Signatures.

This Consent may be executed in one or more counterparts, each of which will be deemed to be an original of this Consent and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Consent and of signature pages by

Agenda Page 234
Exhibit K - 11
facsimile transmission, Portable Document Format (i.e., PDF), or by other electronic means shall constitute effective execution and delivery of this Consent as to the Parties and may be used in lieu of the original Consent for all purposes.
[Remainder of Page Left Intentionally Blank.]

Agenda Page 235
Exhibit K - 12
IN WITNESS WHEREOF, the Parties hereto have caused this Consent to be duly executed and delivered by their duly authorized officers on the dates indicated below their respective signatures. [NAME OF PROJECT COMPANY],
[Legal Status of Project Company].

CLEAN POWER ALLIANCE OF

SOUTHERN CALIFORNIA,
a California joint powers authority.

By:
___________________________________
[Name]
[Title]
Date: ___________________________
By:
___________________________________
[Name]
[Title]
Date: ___________________________
[NAME OF COLLATERAL AGENT],
[Legal Status of Collateral Agent].

By:
________________________________
[Name]
[Title]
Date: ___________________________

Agenda Page 236
Exhibit K - 13

SCHEDULE A
[Describe any disclosures relevant to representations and warranties made in Section 3.4]

Agenda Page 237
Exhibit L - 1

EXHIBIT L
Supply Chain Code of Conduct
Buyer is committed to ensuring that the fundamental human rights of workers are protected, including addressing the potential risks of forced labor, child labor, servitude, human trafficking and slavery across our portfolio.

Our requirements and expectations for Seller’s supply chain are detailed below in our Supply Chain Code of Conduct (“Supply Chain Code”). Seller must comply with all applicable Laws and this Supply Chain Code, even when this Supply Chain Code exceeds the requirements of applicable Law.

These standards are derived from the United Nations Guiding Principles on Business and Human Rights, the Core Conventions of the International Labour Organization (“ILO”), including the ILO Declaration on Fundamental Principles and Rights at Work, the Solar Energy Industries Association Solar Industry Commitment to Environmental & Social Responsibility, and the Responsible Business Alliance Code of Conduct.

1. Freely Chosen Employment
Forced, bonded (including debt bondage) or indentured labor, involuntary or exploitative prison labor, slavery or trafficking of persons is not permitted. This includes transporting, harboring, recruiting, transferring, or receiving persons by means of threat, force, coercion, abduction or fraud for labor or services. There shall be no unreasonable restrictions on workers’ freedom of movement in the facility in addition to unreasonable restrictions on entering or exiting company provided facilities including, if applicable, workers’ dormitories or living quarters. All work must be voluntary, and workers shall be free to leave work at any time or terminate their employment without penalty if reasonable notice is given as per worker’s contract. Employers, agents, and sub-agents’ may not hold or otherwise destroy, conceal, or confiscate identity or immigration documents, such as government-issued identification, passports, or work permits. Employers can only hold documentation if such holdings are required by law. In this case, at no time should workers be denied access to their documents. Workers shall not be required to pay employers’ agents or sub-agents’ recruitment fees or other related fees for their employment. If any such fees are found to have been paid by workers, such fees shall be repaid to the worker.

2. Young Workers
Child labor is not to be used in any stage of manufacturing. The term “child” refers to any person under the age of 15, or under the age for completing compulsory education, or under the minimum age for employment in the country, whichever is greatest. Suppliers shall implement an appropriate mechanism to verify the age of workers. The use of legitimate workplace learning programs, which comply with all laws and regulations, is supported.

Workers under the age of 18 shall not perform work that is likely to jeopardize their health or safety, including night shifts and overtime. Suppliers shall ensure proper management of student workers through proper maintenance of student records, rigorous due diligence of educational partners, and protection of students’ rights in accordance with applicable laws and regulations. Suppliers shall provide appropriate support and training to all student

Agenda Page 238
Exhibit L - 2
workers. In the absence of local law, the wage rate for student workers, interns, and apprentices shall be at least the same wage rate as other entry-level workers performing equal or similar tasks. If child labor is identified, assistance/remediation is provided.

3. Working Hours
Studies of business practices clearly link worker strain to reduced productivity, increased turnover, and increased injury and illness. Working hours are not to exceed the maximum set by local law. Further, a workweek should not be more than 60 hours per week, including overtime, except in emergency or unusual situations. All overtime must be voluntary.

Workers shall be allowed at least one day off every seven days.

4. Wages and Benefits
Compensation paid to workers shall comply with all applicable wage laws, including those relating to minimum wages, overtime hours and legally mandated benefits. In compliance with local laws, workers shall be compensated for overtime at pay rates greater than regular hourly rates. Deductions from wages as a disciplinary measure shall not be permitted. For each pay period, workers shall be provided with a timely and understandable wage statement that includes sufficient information to verify accurate compensation for work performed. All use of temporary, dispatch and outsourced labor will be within the limits of the local law.

5. Humane Treatment
There is to be no harsh or inhumane treatment including violence, gender-based violence, sexual harassment, sexual abuse, corporal punishment, mental or physical coercion, bullying, public shaming, or verbal abuse of workers; nor is there to be the threat of any such treatment. Disciplinary policies and procedures in support of these requirements shall be clearly defined and communicated to workers.

6. Non-Discrimination/Non-Harassment
Suppliers should be committed to a workplace free of harassment and unlawful discrimination. Companies shall not engage in discrimination or harassment based on race, color, age, gender, sexual orientation, gender identity and expression, ethnicity or national origin, disability, pregnancy, religion, political affiliation, union membership, covered veteran status, protected genetic information or marital status in hiring and employment practices such as wages, promotions, rewards, and access to training. Workers shall be provided with reasonable accommodation for religious practices. In addition, workers or potential workers should not be subjected to medical tests that could be used in a discriminatory way or otherwise in violation of applicable law. This was drafted in consideration of ILO Discrimination (Employment and Occupation) Convention (No.111).

7. Freedom of Association
In conformance with local law, Suppliers shall respect the right of all workers to form and join trade unions of their own choosing, to bargain collectively, and to engage in peaceful assembly as well as respect the right of workers to refrain from such activities. Workers and/or their representatives shall be able to openly communicate and share ideas and concerns with management regarding working conditions and management practices without fear of discrimination, reprisal, intimidation, or harassment.

Agenda Page 239
Exhibit L - 3

8. Restricted Jurisdictions
Supplier shall not manufacture or produce products in the Xinjiang Uyghur Autonomous Region of China, or knowingly procure goods and services mined, produced or manufactured in the same.

Agenda Page 240
Exhibit M - 1

EXHIBIT M
Force Majeure and/or Development Cure Period Claim Form Instructions
A. Please review Article 10 and Exhibit A (if applicable) of the Power Purchase Agreement prior to filling out the form.

B. Fill out the form completely and return to your assigned Contract Manager at CPA.

Seller: [Name] Project: [Name]
Current Guaranteed Construction Start Date: [Date]
New Guaranteed Construction Start Date (if Seller’s claims are validated in full): [Date] Guaranteed Commercial Operation Date: [Date]
New Guaranteed Commercial Operation Date (if Seller’s claims are validated in full):
[Date]

1. Please describe the claimed Force Majeure Event or other event giving rise to the claimed Development Cure Period delay(s) (the “Claimed Event”), including its cause, date of commencement and date it ended or is anticipated to end.

2. Please specify the extent of the delay or prevented performance caused by the Claimed Event, including the relief claimed thereby. Describe how the claimed relief was calculated/determined, accounting for individual developments causing such delay or prevented performance.

3. With respect to a Claimed Event other than a Force Majeure Event, please describe the commercially reasonable efforts taken by Seller to prevent such event.

4. Please describe the commercially reasonable efforts taken to mitigate the delays or nonperformance caused by the Claimed Event and specify how such efforts reduced the delay days or nonperformance that would otherwise have occurred absent such mitigation.

Agenda Page 241
Exhibit M - 2

5. Please attach supporting documentation, including without limitation:
• Force Majeure notices or other correspondence received from suppliers and/or contractors that describe the basis for and extent of the Claimed Event. • Documentation, contracts, and/or correspondence with suppliers and/or contractors evidencing the claiming Party’s mitigation efforts.
• Project schedule and/or GANTT charts that demonstrate the effect of the Claimed Event on the Guaranteed commercial Operation Date.

By signing this Claim form, I attest and affirm that I am authorized to sign this form on behalf of the Seller, that I have reviewed this Claim, including any attached documentation, and that the facts and statements made in this Claim are true and correct to the best of my knowledge.

Signed:

Name:

Title:

Date:

Agenda Page 242
Exhibit N - 1

EXHIBIT N
Form of Site Lease

SOLAR AND STORAGE SITE LEASE AGREEMENT
This solar and storage site lease agreement (“Lease”) is made and entered into as of _______________, the last date signed below (the “Effective Date”), by and between the [_________], a ___________________ (“City” or “Lessor”) and [___________], a Delaware limited liability company (“Lessee”). City and Lessee may be referred to individually as a “Party” or collectively as the “Parties”.

RECITALS

WHEREAS,
A. City is the owner of certain real property, consisting of land and certain improvements, buildings, and other structures located thereon, as more particularly described on Exhibit A (the “Property”).

B. The Property is identified as a site for energy resilience as part of the Power Ready Program (“Program”). Clean Power Alliance of Southern California (“CPA”) administers the Program to support community energy reliability efforts in its service territory by providing public agencies with an on-site energy resiliency project that also provides significant community benefit and demand response capabilities to CPA.

C. After issuing and administering a competitive Request for Offers, CPA selected Lessee as the third-party developer to develop behind-the-meter battery energy storage and solar photovoltaic generation energy systems at developer’s sole cost and expense at the sites selected for the Program, including the Property, subject to developer entering a Solar and Storage Site Lease Agreement with the site owners.

D. Lessee and CPA have entered into a Renewable Power Purchase Agreement dated [____] (“PPA”), wherein Lessee has agreed to build, finance, own and operate a solar photovoltaic energy generation system and associated battery energy storage system, (together, the “Facility”), as more particularly described in Exhibit B on a portion of the Property and CPA has agreed to purchase from Lessee the electrical energy produced by the Facility.

E. In order to build and operate the Facility, Lessee requires access to and use of the Premises, as further described below.

F. City agrees to lease the Premises to Lessee on the terms and conditions set forth in this Lease.

G. [The Parties intend that Lessee will replace or repair the roof of the building on which the Facility (or any portion thereof) will be installed prior to such installation, as set forth in Exhibit J.] [NTD: Remove if inapplicable.]
NOW, THEREFORE, in consideration of these Recitals and the following covenants,

Agenda Page 243
Exhibit N - 2
terms, and conditions, Lessee and City mutually agree as follows:

LEASE PROVISIONS
ARTICLE 1
INTERPRETATION; EXHIBITS.

1.1 Interpretation.
(a) The captions of the various sections, paragraphs and subparagraphs of this Lease are for convenience only and shall not be considered or referred to in resolving questions of interpretation.
(b) In construing or interpreting this Lease, the word “or” shall not be construed as exclusive and the word “including” shall not be limiting.

1.2 Recitals. The Recitals set forth above are true and correct and are hereby incorporated into this Lease as if fully set forth herein.

1.3 Exhibits. The following Exhibits are attached to and made part of this Lease as if fully set forth herein.

EXHIBIT A DESCRIPTION OF PROPERTY

EXHIBIT B DESCRIPTION OF FACILITY

EXHIBIT C DEFINITIONS

EXHIBIT D DESCRIPTION OF PREMISES

EXHIBIT E SECURITY MEASURES

EXHIBIT F WORK SCHEDULE

EXHIBIT G INSURANCE REQUIREMENTS

EXHIBIT H FORM OF LENDER CONSENT AND AGREEMENT

EXHIBIT I MEMORANDUM OF LEASE

EXHIBIT J ROOF REPLACEMENT OR REPAIR
ARTICLE 2
DEFINITIONS.

Capitalized terms used in the Lease and not otherwise defined herein have the meanings set forth in Exhibit C (Definitions).

ARTICLE 3
LEASE.

Agenda Page 244
Exhibit N - 3
City hereby leases to Lessee, in accordance with the terms and conditions set forth in this Lease, land, floor space, rooftop space, and additional cabling space for associated utility lines, cables, conduits, wires, and equipment (all of which are described specifically in Exhibit D (Description of Premises)) necessary to allow for the Permitted Uses. Unless specifically provided in this Lease, Lessee accepts the Property “as-is” on the Effective Date of this Lease.

ARTICLE 4
RENT.

In consideration for the lease of the Premises, Lessee shall pay City monthly rent of ten dollars ($10.00), or one hundred twenty dollars ($120.00) annually, which shall be paid annually on July 1, without notice or demand of any kind by City. All payments shall be submitted to: [insert]. The first year’s rent may be pro-rated, and is due within ten (10) Business Days of the Effective Date.

ARTICLE 5
TERM, TERMINATION.

5.1 Term.
(a) Definition. This Lease shall commence on the Effective Date and shall remain in effect until:
(i) Twenty (20) years after the Commercial Operation Date plus the ninety (90) day removal period provided under section 5.4 (the “Term”) except where a Buyout Option is exercised with respect to the Facility; or (ii) The Lease has been terminated by either theCity or Lessee in accordance with the terms of this Lease.
(b) Within five (5) Business Days of execution, Lessee shall provide City with a copy of the Commercial Operation Date Certificate submitted to CPA under the PPA.

5.2 Termination. TheCity, in itssole discretion, shall have the right to terminate this Lease as follows:
(a) Public Purpose. If the City determines that it requires the Premises or portions thereof at any time or multiple times during the Term for any public purpose as determined by City in its sole discretion, upon sixty (60) days prior written notice to Lessee, the City may in its sole discretion either (i) find an alternative City-owned replacement site that has substantially similar insolation and reasonably acceptable access to the utility grid (with appropriate upgrades or otherwise), that Lessee may use for the System; provided, however, that the City shall pay for the reasonable costs of removal, lost revenue from production and costs of reinstallation of the System (including interconnection and utility related fees from the existing Premises to the new site and City agrees to execute a Lease for the new site, which will be referred to as the “Premises,” with all other terms remaining the same; provided further that Lessee shall use commercially reasonable efforts to remove and reinstall the System without delay and endeavor to minimize lost production time, or (ii) terminate the Lease and pay to Lessee the applicable Termination Payment.

Agenda Page 245
Exhibit N - 4
(b) Event of Default. City may terminate this Lease following a Lessee Event of Default in accordance with section 23.5 of this Lease.

5.3 Buyout Option for the Facility. At the expiration of the Term, the City has the option, in its discretion, to purchase the Facility at a price determined to be the fair market value, determined in accordance with section 5.3(A)(ii) below, or at a price mutually agreed to by the Parties. The City may exercise its Buyout Option, however, it is not obligated to complete the purchase should the Fair Market Value not be acceptable to the City, or for any other reason.
(a) Exercise of Buyout Option: Notice; Fair Market Value. (i) If the City desires to exercise its Buyout Option, City will, no later than six (6) months prior to expiration of the Term, notify Lessee of City's election to exercise its Buyout Option.
(ii) “Fair Market Value”. The “fair market value” of the Facility shall be determined by an independent, third-party appraiser mutually agreed upon by Lessor and Lessee having substantial experience in the valuation of solar facilities similar to the Facilities. If Lessor and Lessee are unable to agree, then each of Lessor and Lessee shall designate an appraiser who shall designate a third appraiser having substantial experience in the valuation of solar facilities similar to facility, to perform the fair market value appraisal. The reasonable costs of the fair market value appraisal shall be borne by Lessee, provided however, if the City decides not complete the purchase for any reason, the City shall reimburse Lessor for the reasonable cost of the appraisal.

5.4 Removal of Facility.
(a) Except where a Buyout Option is exercised with respect to the Facility, Lessee shall at its sole expense, remove the Facility and all its associated equipment and materials completely, vacate the Premises and Property, and restore the Premises to its original conditions, taking into account any repair and replacement of the roof pursuant to this agreement, and not including restoration of normal wear and tear, within ninety (90) days of:
(i) Expiration of the Term; or
(ii) Upon termination.
(b) Lessee shall restore the Premises to its original condition (excluding reasonable aging, wear and tear) to the reasonable satisfaction of City, including any damage to the Premises or the Property caused by the Facility or its removal. (c) Before departure, Lessee shall return any of City’s keys, including any copies of such keys, or personal property to City in good, clean and sanitary condition, reasonable wear and tear excepted.
(d) Lessee shall allow City to inspect the Premises to verify the condition of the Premises and its contents. At City’s reasonable request, Lessee agrees to

Agenda Page 246
Exhibit N - 5
participate in a walk-through inspection of the Premises to verify the condition of the Premises.
(e) City shall provide Lessee with reasonable access to perform the necessary removal activities.
(f) Upon City’s reasonable request, the usual and customary lighting, plumbing, utility, and heating fixtures shall remain upon the Premises upon termination or expiration of this Lease.

ARTICLE 6
USE OF PREMISES.

6.1 Permitted Uses. Lessee shall use the Premises exclusively for the purpose of development, engineering, design, construction, installation, operation, maintenance, monitoring, cleaning, repair, replacement, decommissioning and removal of the Facility described in Exhibit B of this Lease, in its entirety or any component thereof (“Permitted Uses”).
(a) No City monies shall be required to fund the development, construction, financing, maintenance, and/or operation of the Facility.

6.2 Prohibited Uses. Lessee shall not use Premises for any purpose not expressly permitted hereunder.
(a) Lessee shall not create, cause, maintain or permit any nuisance or waste in, on, or about the Premises, or permit or allow the Premises to be used for any unlawful or immoral purpose. Lessee shall not do or permit to be done anything in any manner which unreasonably disturbs the users of the City Property or the occupants of neighboring property. Specifically, and without limiting the above, Lessee agrees not to cause any unreasonable odor, noise, vibration, power emission, or other item to emanate from the Premises or Access Property.
(b) No materials or articles other than the Facility of any nature shall be stored outside upon any portion of the Premises or Property, except those used for construction, in an area to be designated by City. Lessee will not use Premises or Property in a manner that unreasonably increases the risk of fire or cost of fire insurance.
(c) No unreasonable sign or placard shall be painted, inscribed or placed in or on the Premises; and no tree or shrub thereon shall be destroyed or removed or other waste committed of said Property, except that Lessee may request to remove trees or shrubs necessary to ensure the Facility is not shaded and receives adequate sunlight, which approval thereof by City shall not be unreasonably withheld.
(d) Except as set forth in section 7.1(C), no bicycles, motorcycles, automobiles or other mechanical means of transportation shall be placed or stored anywhere on the Premises except for designated parking or storage spaces. No repair,

Agenda Page 247
Exhibit N - 6
overhaul, or modification of any motor vehicle shall take place on the Property or the street in front of said Property.
(e) Lessee, at its own expense, shall keep the Premises in as good condition as it was at the beginning of the term hereof, except damage occasioned by ordinary wear and tear, and except damage to City facilities and Property, which is not the fault of Lessee. Lessee shall document, through the use of photographs, the condition of the Premises prior to the commencement of any work.

6.3 Condition and Use of Premises. City represents that, as of the Effective Date, (a) to City’s knowledge, there are no Hazardous Materials at, on or under the Premises, and (b) the City is aware of no conditions at the Premises that would be reasonably likely to result in an adverse effect on the Facility or Lessee’s ability to produce and deliver electricity therefrom. Except as expressly set forth in this Section 6.3, City makes no warranty or representation of any kind concerning the condition of the Premises, or the fitness of the Premises for the use intended by Lessee, and hereby disclaims any personal knowledge with respect thereto, it being expressly understood by the Parties that Lessee has personally inspected the Premises, knows its condition and accessibility, finds it fit for Lessee’s intended use, accepts it as is, and has ascertained that it can be used for the Permitted Uses.

6.4 Rooftop Replacement. Lessee shall replace or repair the roof of the Building in accordance with the terms set forth in Exhibit J.

ARTICLE 7
ACCESS.

7.1 For Lessee.
(a) Ingress & Egress. City hereby grants to Lessee, for the Lease Term, a non-exclusive right-of-way for vehicular and pedestrian ingress and egress to the Premises to the extent required by Lessee for the Permitted Uses and as mutually agreed upon by the Parties (the “Access Property”). (b) Access to Sunlight. The City shall not cause or permit any interference with the Facility’s access to sunlight as such access exists as of the Effective Date. The City shall from time to time trim any vegetation as necessary to maintain such access to sunlight.
(c) Additional Space. City hereby grants to Lessee the temporary use of additional space on the Property, in such areas mutually agreed to in advance by the Parties, during the installation, maintenance, repair, replacement, improvement, or removal of the Facilities on or from the Premises. Upon completion of its installation, maintenance, repair, replacement, improvement, or removal activity, Lessee will remove all materials from the additional space and will restore the area to substantially the same condition in which it existed immediately prior to Lessee’s use.
(d) Exclusive Access. Lessee is granted no exclusive access to the Premises.

7.2 For City.

Agenda Page 248
Exhibit N - 7
(a) Lessee acknowledges and agrees that the Premises retains primary use as public property operated by the City or its assignee at City’s sole discretion and with associated operator access.
(b) Access for Inspection. City and City’s agents shall have the right to open or enter the Premises at reasonable times, upon not less than twenty-four (24) hours prior notice to Lessee (except in the event of an emergency in which case notice shall be given not less than twenty-four (24) hours after entry), for the purpose of inspecting same, showing same to prospective City, lenders or lessees, and making such alterations, repairs, improvements, or additions to the Premises as City may deem necessary.

7.3 Security Measures.
(a) Lessee shall comply with the security measures set forth in Exhibit E. (b) Lessee shall provide City with keys to any locks Lessee installs and codes to any security system it installs to allow City access to the Premises, subject to the notice requirements set forth in the Lease.

ARTICLE 8
HAZARDOUS MATERIALS.

8.1 Use of Hazardous Materials Prohibited. Lessee shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Property by Lessee, its agents, employees, contractors or invitees. Notwithstanding the above, Lessee may install, operate, and maintain the Facility, provided Lessee does so in compliance with all applicable laws, regulations, Prudent Industry Practices, and instructions by the equipment manufacturers.

8.2 City’s Right to Perform Tests. At any time during the Term, City shall have the right to enter upon the Premises in order to conduct tests of water, soil and other relevant media or substances to assess the environmental condition of the Premises, provided that such tests do not interfere with the operation of the Facility.

ARTICLE 9
UTILITIES AND OPERATING EXPENSES.

9.1 City shall allow Lessor the use of City’s water already available on the Property and accessible to the Premises in reasonable quantities for purposes of construction, cleaning, and maintenance of the Facility (it being understood and agreed that Lessee’s access to such water is non-exclusive in that City and other third parties may also access such water), subject to any applicable State, regional, or local water rationing rules, regulations or policies. Lessee assumes all risk and liability associated with its use of such water. Lessee shall fully and promptly pay for all of the City’s actual expenses associated with Lessee’s water use if demanded by City.

9.2 City shall have no obligation to provide any other utilities to Lessee.

ARTICLE 10
TAXES; SGIP INCENTIVE.

Agenda Page 249
Exhibit N - 8

10.1 Revenue and Taxation Code. Lessee specifically acknowledges it is familiar with section 107.6 of the California Revenue and Taxation Code. Lessee realizes that a possessory interest subject to property taxes may be created, agrees to pay any such tax, and hereby waives any rights Lessee may have under said California Revenue and Taxation Code section 107.6.

10.2 Personal Property Taxes. Lessee shall pay before delinquent, or if requested by City, reimburse City for, any and all taxes, fees, and assessments associated with the Premises, the personal property contained on the Premises and other taxes, fees, and assessments regarding any of Lessee’s activities which take place at the Premises. Lessee recognizes and understands in accepting this Lease that its interest therein may be subject to a possible possessory interest tax that City or County may impose on such interest and that such tax payment shall be the liability of and be paid by Lessee.

10.3 Self-Generation Incentive Program.
(a) City shall use commercially reasonable efforts to apply for and cause Lessee to receive SGIP (as defined in Section 10.3(D) below) incentive funds, including by providing information necessary for Lessee to complete SGIP application paperwork, assisting Lessee to respond to SGIP-related questions from program administrators, etc.
(b) Lessee shall pay any required estimated rebate deposits and similar costs to the program administrator on behalf of City. City shall promptly provide notice to Lessee of any communications from any Governmental Authorities or SGIP administrators (including copies of all written communications) with respect thereto.
(c) City shall designate Lessee as the recipient of any and all SGIP incentive funds. If City receives any payment, distribution, refund or reimbursement of any deposits made by Lessee or SGIP incentive funds, City shall promptly forward such money to Lessee.
(d) “SGIP” means the California Public Utility Commission’s Self-Generation Incentive Program created pursuant to R.12-11-005 and all related CPUC decisions and rulings.

ARTICLE 11
CONTRACTORS, CONSULTANTS; WORK HOURS.

11.1 Contractors, Consultants.
(a) Any contractor or consultant engaged by Lessee to install, construct, operate or maintain the Facility must be properly licensed.
(b) Lessee agrees to advise the City of any contractors or consultants involved in the installation or construction of the Facility in advance of the commencement of the Construction Period, as defined in Exhibit F of this Lease.

Agenda Page 250
Exhibit N - 9
(c) Lessee isresponsible for the conduct of its contractors and consultants, and any subcontractors thereto, and City shall have no contractual relationship with any such contractors or consultants.
(d) All Lessee’s contractors and consultants must carry public liability and property damage insurance, standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, during the period of construction consistent with requirements set forth in section 26 (Insurance).

Such insurance shall contain waiver of subrogation clauses in favor of City and Lessee in accordance with the Provisions of Exhibit G (Insurance Requirements)

11.2 Work Hours.
(a) Lessee shall cause all installation, construction, maintenance, or operations work to be performed as authorized by any Lessee permit for such work and in accordance with the City’s applicable codes. All such work shall be in a manner that does not unreasonably interfere with City and City’s employees, visitors, tenants, licensees and their customers to the extent commercially practicable.

Except for emergency situations or unplanned outages, Lessee shall notify the Lease Administrator at least seventy-two (72) hours in advance of such work and schedule the activities in coordination with the City to reasonably minimize interference with use of the Property.

ARTICLE 12
OWNERSHIP OF FACILITY.

12.1 Title to the Facility placed on the Premises by Lessee shall be held by Lessee during the Term. Notwithstanding anything to the contrary in this Lease, City and Lessee acknowledge and agree that the Facility is not a fixture to a City building and/or the Property, and City agrees that it will not claim, assert or assist any other entity in claiming or asserting that the Facility is a fixture to a City building and/or the Property.

12.2 In the event City exercises its Buyout Option, Lessee shall take whatever actions are reasonably necessary to transfer fee title ownership of the Facility to City, free and clear from any lien, or monetary or other encumbrances.

12.3 Should this Lease be terminated for any reason prior to the expiration of the Term, except in the event City exercises its Buyout Option, all of the Facility placed by Lessee on the Premises shall remain under the ownership of Lessee and shall be removed by Lessee in accordance with section 5.4 of this Lease.

12.4 City acknowledges and agrees that:
(a) The City has no ownership interest in the Facility (except in the event City exercises its Buyout Option), and Lessee is, and will remain throughout the Term, the exclusive legal, beneficial and tax owner and operator of the Facility; (b) The City and its authorized representatives and invitees shall not, without Lessee’s prior written approval, modify, alter, service, repair or shut down any part of the Facility, or impair or interrupt the generation, storage or discharge of energy by the

Agenda Page 251
Exhibit N - 10
Facility or transmission of energy from the Facility to the Delivery Point (as defined in the PPA) and shall not permit any other person to do so; provided, if the City reasonably determines that Lessee has failed to take prompt and/or reasonable action to prevent any imminent risk of damage or injury to any Person or any Person’s property, the City shall have the right to take such action as it reasonably deems necessary to prevent such damage or injury, and shall give Lessee Notice of such actions. Such action may include disconnecting and removing all or a portion of the Facility, or suspending the supply of energy from the Facility to the Delivery Point. In the event the City takes any such actions, directly or through a third party, Lessee shall reimburse the City for all such reasonable costs incurred by the City in taking such actions.
(c) Notwithstanding the Facility’s presence on the Premises, as between the City and Lessee, Lessee is the exclusive owner of the energy generated by the Facility and owner of any environmental attributes and environmental incentives of the Facility;
(d) The Facility may not be sold, leased, assigned, mortgaged, pledged or otherwise alienated or encumbered (collectively, a “Transfer”) with the fee interest or leasehold rights to the Property by City; and
(e) Nothing shall prevent or limit City’s right to Transfer the Property or the Premises; provided, however that:
(i) City agrees to give Lessee at least fifteen (15) days written notice prior to any Transfer of all or a portion of the Property identifying the transferee, the portion of the Property to be transferred and the proposed date of transfer; and
(ii) City agrees that this Lease and any right-of-way granted hereunder shall run with the Property and the Premises and survive any Transfer of the Property or the Premises.

ARTICLE 13
INSTALLATION AND CONSTRUCTION OF FACILITY BY LESSEE.

13.1 Installation of Facility.
(a) City Consent. City hereby consents to the installation on the Premises of the Facility by Lessee, as shown in Exhibit B (Description of Facility), subject to the conditions and obligations in this Lease Agreement. (b) Installation and Work. Lessee shall be responsible for the installation of the Facility, including all costs associated with the installation of the Facility. (i) Lessee shall obtain, at no cost and expense to City, all Permits, and execute all agreements, necessary for the installation and operation of the Facility, including _______________[list any permits or approvals such as building permit, development permit] from City. Lessee is responsible for and City agrees to cooperate in Lessee’s seeking any and all Permits Lessee finds necessary or desirable for the installation

Agenda Page 252
Exhibit N - 11
of the Improvements. Lessee will carry out the activities set forth in this subsection in accordance with all applicable laws, rules, codes, ordinances, and emergency orders.
(ii) Lessee shall carry out or cause to be carried out all construction, installation, maintenance, and repair work in a good, efficient and workmanlike manner.
(iii) All installation and construction performed by or on behalf of Lessee shall materially and substantially conform to the plans, specifications, construction, and architectural standards contained in Exhibit B (Description of Facility), the siting and construction plan approved by the City, and approved building permit(s) for the Facility. (iv) All work shall be performed in a manner that complies with all applicable governmental permits, laws, ordinances, regulations, and emergency orders, and shall meet all other requirements contained in this Lease.
(v) All work shall be conducted in a manner as will not unreasonably interfere with City’s operation or maintenance of the Property and the improvements thereon.
(vi) Lessee shall, and shall cause its contractors to, keep the Premises and Access Property reasonably clear of debris, waste, material and rubbish and to comply with reasonable safety procedures established by City for the conduct of business on the Premises.
(vii) Lessee shall keep the Premises free and clear of all claims and liens resulting from construction done by or for Lessee.
(c) As Built Plans. Lessee shall provide the Lease Administrator with a complete set of reproducible “as-built plans” reflecting actual construction within or upon the Premises upon completion of any: (i) new construction; (ii) structural alterations; or (iii) non-structural alterations costing more than twenty-five thousand dollars ($25,000).

ARTICLE 14
MAINTENANCE AND OPERATION OF FACILITY BY LESSEE.

14.1 Maintenance.
(a) City Responsibilities.
(i) Premises. City shall be responsible for the maintenance and repair of the overall Premises, other than the Facility, including main support systems not exclusively serving the Lessee’s Facility, such as electrical system repair, painting, structural repairs, and all maintenance of landscaped areas. (A) Relocation:

Agenda Page 253
Exhibit N - 12
(1) City may request to move the Facility on a temporary basis to another location on the Property or to another site owned by City as necessary to perform City’s maintenance
responsibilities.
(2) For any such relocation that is required due to repair or maintenance work or another purpose unrelated to the
Facility, the City is responsible for all associated reasonable costs of removal and reinstallation and must proceed
diligently; provided, the City shall not be required to reimburse Lessee for any lost revenue under the PPA during the first thirty (30) days of such relocation, but shall reimburse Lessee for any lost revenues under the PPA in the event the Facility is uninstalled in excess of thirty (30) days (except to the extent such additional delays are caused by Lessee).
(ii) Access Property. City shall maintain or cause to be maintained, including repair and replacement as necessary, the Access Property serving the Premises.
(b) Lessee Responsibilities.
(i) Lessee shall be solely responsible for the maintenance of the Facility.

Lessee shall maintain, at Lessee’s expense, the Facility, including all related equipment, furnishings, and trade fixtures upon the Premises in a safe, clean, wholesome, and sanitary condition required for the maintenance and operation of a first-class business of the type to be conducted pursuant to this Lease. Lessee agrees to promptly (and in no case later than within sixty (60) days written notice from City) restore the physical appearance and operational functionality of the Facility to such a condition, including paint, clean, and abate graffiti, to the reasonable satisfaction of City, and in compliance with all applicable laws, throughout the term of this Lease.

14.2 Facility Operation.
(a) Lessee shall be solely responsible for the operation of the Facility. Lessee’s obligation shall include, without limitation, the obligation to promptly make or pay (as determined by City) for any repairs to the Property or to the Premises to the extent the damage was directly caused by Lessee, its employees, agents, contractors or subcontractors.
(b) Lessee shall bear all risk of loss with respect to the Facility, except:
(i) As set forth elsewhere in this Lease; or
(ii) For actions or negligence by the City or its agents and employees. (c) Lessee shall operate the Facility so as to keep the Facility in good operating condition and repair, in compliance with all applicable laws, and in accordance with

Agenda Page 254
Exhibit N - 13
generally accepted practices of the electric industry, in general, and the solar generation industry in particular.
(d) Lessee shall operate the Facility in compliance with Prudent Industry Practices.

ARTICLE 15
RECORDS.

Lessee shall provide City with statistical data on any applicable Project Labor Agreement compliance and Lessee’s compliance with all prevailing wage requirements within sixty (60) days of a written request by City.

ARTICLE 16
SIGNS.

Lessee shall not place, construct, maintain, or allow any signs upon the Property without prior written consent of City, which consent shall be at the City’s sole discretion.

ARTICLE 17
ALTERATIONS BY LESSEE.

Lessee shall not make any alterations or modifications to the Premises without obtaining the prior written consent of the Lease Administrator, which consent shall be at the City’s sole discretion.

Lessee may, at any time and at its sole expense, install and place business fixtures and equipment within the Premises provided such fixtures and installation have been reviewed and approved by the Lease Administrator, which consent shall be at the City’s sole discretion.

ARTICLE 18
PREVAILING WAGE.

18.1 Prevailing wage requirement. All employees hired by Lessee, and its contractors and subcontractors, that will perform construction work or provide services at the site related to construction of the Facility shall be paid wages at rates not less than those prevailing for workers performing similar work in the locality as provided by applicable California law, if any. Lessee’s prevailing wage obligations can be satisfied upon the execution of a project labor agreement related to construction of the Facility.

18.2 Targeted hire requirements. Lessee shall comply with the following targeted hire requirements:
(a) A minimum of 40% of all hours of project work shall be performed by Local Targeted Worker1 with priority given to residents of Los Angeles and Ventura Counties.
1 Local Targeted Worker refers to workers located within a 25-mile radius of the project.

Agenda Page 255
Exhibit N - 14
(b) A minimum of 10% of all hours of Project Work shall be performed by Disadvantaged Workers2 whose primary place of residence is within Los Angeles and Ventura Counties.
(c) 60% of all Journeymen Wiremen working on the project shall be graduates of a state approved joint labor management electrical apprenticeship program. (d) At least 10% jobsite electrical workers shall be OSHA 30-hour General Industry Safety and Health Certified.
(e) All Electrical Work 3 will be performed by Journeymen Electricians, or Apprentices currently being trained in a California Approved Electrical Apprenticeship Program under the Supervision of a Journeyman Electrician. (f) All Apprentices will be registered in a state of California approved apprenticeship program under the supervision of a certified electrician.

ARTICLE 19
REPRESENTATIONS AND WARRANTIES.

19.1 City represents and warrants that it has full right and authority to enter into this Lease and to perform all of City’s obligations hereunder and that all persons signing this Lease on its behalf are authorized to do so. Lessee represents and warrants that Lessee has full right and authority to enter into this Lease, and to perform all of Lessee’s obligations hereunder, and that all persons signing this Lease on its behalf are authorized to do so.

19.2 City represents and warrants that, on the Effective Date, (i) it owns fee title to the Property and is the sole owner of the Property (including the Premises), and (ii) City’s ownership of the Property (including the Premises) is subject to no Liens or exceptions to title other than Liens, if any, expressly disclosed in writing by City to Lessee prior to the Effective Date.

ARTICLE 20
HOLD HARMLESS; INDEMNIFICATION.

20.1 General Indemnification. Lessee agrees to protect, defend (with counsel acceptable to City), hold harmless and indemnify City, its City Council, commissions, officers, agents, volunteers, and employees from and against any claim, injury, liability, loss, cost, penalties, forfeiture, and/or expense and/or damage, however same may be caused, including all costs and reasonable attorney’s fees in providing a defense to any claim arising therefrom for 2 Disadvantaged Worker means an individual who, prior to commencing work on the project, meets the income requirements of a Targeted Worker and faces at least one of the following barriers to employment: (1) being homeless; (2) being a custodial single parent;(3) receiving public assistance; (4) lacking a GED or high school diploma; (5) having a criminal record or other involvement with the criminal justice system; (6) suffering from chronic unemployment; (7) emancipated from the foster care system; (8) being a veteran of the United States Armed Services; or (9) being an apprentice with less than 15% of the required graduating apprenticeship hours in a program. 3 Electrical work is defined as the handling of batteries, photovoltaic panels or panel cartridges (including any rigging for lifting of cartridges from delivery trucks, guiding cartridges onto support rails and sliding cartridges into final location), installation or rails supporting the panels or panel cartridges, installation and connection of any electrical wires and cables, connections to power conversion stations, electrical fixtures, electrical appliances, electrical apparatus, electrical raceways or trays, electrical conduits, electrical instrumentation and controls, and electrical startup and testing. Excluded from Electrical Work: The delivery and unloading of material, supplies and equipment to the Project Site or to locations designated throughout the Project Site for equipment and material staging, as determined by the Owner or Employer.

Agenda Page 256
Exhibit N - 15
which City shall become legally liable, arising from Lessee’s or its contractors, consultants, agents, or assigns negligent, reckless, or wrongful acts, errors, or omissions with respect to or in any way connected with this Lease together with reasonable attorneys’ fees and all costs and expenses reasonably incurred by City in negotiating, settling, defending or otherwise protecting against such claims. This indemnity shall be in addition to the Hazardous Materials Indemnity and Indemnity for claims arising out of construction contained in this Lease and shall survive the expiration of or early termination of the Lease Term.