WestLight Energy Board of Directors
July 23, 2026

2075 Woodside Road
Redwood City, CA 94061
650-260-0005
westlightenergy.org
Regular Meeting of the WestLight Energy
Board of Directors
AGENDA
Thursday, July 23, 2026
6:30 pm
Please Note: This meeting will be held in hybrid format with both in-person and Zoom participation options for members of the public.

Meeting Locations:

WestLight Energy Lobby, 2075 Woodside Road, Redwood City, CA 94061 Los Banos City Hall, Conference Room A, 520 J Street, Los Banos, CA 93635 Zoom, Virtual Meeting Link: https://westlightenergy.zoom.us/j/87496649657 Meeting ID: 874-9664-9657 Passcode: 2075 Phone: +1 (669) 444-9171 Introduction
This meeting of the WestLight Energy Board of Directors will be held at the locations listed above pursuant to the Ralph M. Brown Act (Gov. Code § 54950 et seq.). Board Members are expected to attend in person and may contact General Counsel, Jennifer Stalzer, at [email protected] with questions or accommodation requests. For remote participation information, please see the instructions at the end of the agenda. A video recording of the meeting will be available after the meeting at https://www.westlightenergy.org/board-of-directors.

Public Participation
This WestLight Energy Board meeting may be accessed via Zoom using the Zoom login information above. To join by phone, dial +1 (669) 444-9171, enter the Webinar ID and Passcode above. Use the following link to find your local number: https://westlightenergy.zoom.us/u/kcEsYhLG0p. WestLight Energy makes reasonable efforts to ensure audio and video quality but cannot guarantee connectivity. Members of the public may attend in person at the locations listed above. Spoken public comments may be made in person or remotely via Zoom.

To comment remotely, use the Zoom “Raise Hand” feature or press *6 when joining by phone.

Written public comments may be submitted to Board Clerk, Nelly Wogberg, at [email protected] and should identify the applicable agenda item.

Please note that WestLight Energy Board of Directors meetings are a limited public forum, and all public comment must relate to something that is within the subject matter jurisdiction of the Board. If comments do not relate to the subject matter jurisdiction of the Board, we will stop the comment and move on to the next speaker. General Counsel will assist in identifying comments that are not related to the subject matter jurisdiction of the Board.

ADA Requests
Individuals who require special assistance, a disability-related modification or accommodation, or an alternative format for the meeting or meeting materials should contact Board Clerk, Nelly Wogberg, at [email protected] by 10:00 a.m. on the day before the meeting. Advance notice will enable WestLight Energy to make reasonable arrangements to ensure accessibility to the meeting, related materials, and the opportunity to provide public comment.

Closed captioning is available for all Board meetings. While viewing the meeting in Zoom, please enable captioning.
1 1. Approval of WestLight Energy's 2025 Power Source Disclosure Annual Report

2. Approval authorizing the Chief Executive Officer to Negotiate and Enter into Furniture Purchase Agreements with Various Vendors in an Amount Not-to-Exceed $400,000

3. Approval of Minutes from the June 25, 2026 Board of Directors Meeting

4. Chair Report (Discussion)

5. CEO Report (Discussion)

6. Approval of Two Power Purchase Agreements for the Green Access Program with a Power Delivery Term of 20 Years Starting at a Commercial Operation Date on or About December 31, 2028, in an Amount Not-to-Exceed $35,000,000 (Action)

7. Approval of the 2026 California Public Utilities Commission Integrated Resource Plan Submission (Action)

8. Approval of Recommendation to Award the 2026 Dave Pine Community Energy Award to Community Outreach Workers (Promotoras) (Action)

9. Approval of an Agreement with Shawn E. Marshall, Chief Executive Officer, for the Term of July 1, 2026 to June 30, 2029 (Action)

10. Board Members’ Reports (Discussion)

11. Community Energy Programs Quarterly Report

12. Marketing, Outreach Activities, and Media Relations Quarterly Report

13. July 2026 Legislative Policy and Political Update

14. Social Media FAQ's

15. Acronym List

CALL TO ORDER / ROLL CALL

PUBLIC COMMENT
This item is reserved for public comment on matters within the Board's jurisdiction that are not otherwise on this agenda. Comments on agenda items will be heard when the item is called. Speakers are generally limited to two minutes, subject to adjustment by the Board Chair.

ACTION TO SET AGENDA AND TO APPROVE CONSENT AGENDA ITEMS

REGULAR AGENDA

INFORMATIONAL REPORTS

ADJOURNMENT
Public records that relate to any item on the open session agenda are available for public inspection. The records are available at the WestLight Energy offices or on the WestLight Energy website at:
www.westlightenergy.org.
2 JOINING INSTRUCTIONS
3 Instructions for Joining a Zoom Meeting via Computer or Phone Before You Join
For the best audio experience, use headphones or earbuds if available.

If you plan to join from your computer or cell phone, you can use the Zoom app for full audio and video participation or dial in by phone for audio only. We recommend installing the Zoom Workplace application in advance if you plan to use the app: https://zoom.us/download.

Option 1 – Join by Computer (Recommended)

1. Click the Zoom webinar link provided on the first page of the agenda.

2. Open the Zoom Workplace application when prompted.

3. Select Join with Computer Audio.

4. In a webinar, your camera will be off by default. If you raise your hand to speak during a public comment opportunity, the Board Clerk will typically enable you to turn on your camera.

Option 2 – Join by Computer with Phone Audio

1. Click the Zoom webinar link provided on the first page of the agenda.

2. Open the Zoom Workplace application when prompted.

3. Select Phone Call for audio.

4. Dial +1 (669) 444-9171.

5. Enter the Meeting ID, followed by #.

6. Enter your Participant ID (displayed in Zoom app) to connect your phone audio.

Option 3 – Join by Telephone (Audio Only)

1. Dial +1 (669) 444-9171.

2. Enter the Meeting ID, followed by #.

3. Press # again if prompted for a Participant ID.

4. Enter the Webinar Passcode, followed by #.

Please note: Participants joining by telephone will be able to hear the webinar but will not be able to view presentations or other shared visual content.
4 DATE: July 10, 2026
MEETING DATE: July 23, 2026
VOTE REQUIRED: Majority Vote
TO: Honorable WestLight Energy Board of Directors
FROM: Roy Xu, Senior Director of Power Resources Shayna Levia, Associate Manager, Power Resources
SUBJECT: Approval of WestLight Energy's 2025 Power Source Disclosure Annual Report Item No. 1
WestLight Energy
JPA Board Correspondence

RECOMMENDATION
Approve Resolution Approving WestLight Energy’s 2025 Power Source Disclosure Annual Report, Confirming the Accuracy of the Information Provided in the 2025 Power Source Disclosure Report and Delegating Authority to the Chief Executive Officer, or designee, to Submit the Attestation to the California Energy Commission.

BACKGROUND
The California Public Utilities Code requires all retail sellers of electric energy, including WestLight Energy (“WestLight”), to disclose “accurate, reliable, and simple-to-understand information on the sources of energy” that are delivered to their respective customers. The format for the required communications is highly prescriptive, offering little flexibility to retail sellers when presenting such information to customers. This format has been termed the “Power Content Label” by the California Energy Commission (“CEC”). Information presented in the Power Content Label includes the proportionate share of total energy supply attributable to various resource types, including both renewable and conventional fuel sources. The method used to determine the power content of the energy supply is governed by the CEC’s Power Source Disclosure Program. Every spring, retail sellers prepare a Power Source Disclosure Annual Report (“Annual Report”) that lists the individual specified resources used to serve their customers’ electricity needs in the previous calendar year, and the amount procured from each resource. This Annual Report forms the basis of the Power Content Label that is sent to customers. In 2021, Assembly Bill 242 (Holden, Chapter 228, Statutes of 2021) was adopted, requiring California retail electricity suppliers to post their Power Content Labels on their websites annually by October 1 and in written promotional materials by the end of the first complete billing cycle for the fourth quarter of the year. In 2022, Senate Bill 1158 (Becker, Chapter 367, Statutes of 2022) was adopted, requiring hourly reporting of a retail seller’s electric supply to the CEC beginning in 2028, and additional reporting requirements. The subsequent Amended Regulations Governing the Power Source Disclosure Program approved in 2025 modified the attestation requirements for public agencies providing electric energy. Historically, public agencies like WestLight were required to have their Board attest to 5 both their Power Source Disclosure Annual Report and Power Content Label and submit the attestation to the CEC by October 1. Beginning in 2025 with the 2024 Annual Report, public agencies are only required to have their Board attest to their Power Source Disclosure Annual Report. Later this year, the CEC will generate each retail seller’s Power Content Label on their behalf based on the information provided in their Power Source Disclosure Annual Report.

Retail sellers will then provide the Power Content Label generated by the CEC to their respective customers in the fall of 2026.

Beginning with the 2021 reporting year, retail suppliers are required to calculate the greenhouse gas (GHG) emissions intensity of their electricity portfolios and report the results in the Power Source Disclosure Annual Report and on the Power Content Label. The methodology for calculating the emissions intensity is determined by the CEC, and retail suppliers are required to use the CEC’s methodology. Any marketing or retail product claim by a retail supplier related to the GHG emissions intensity of an electricity portfolio must be consistent with the GHG emissions intensity disclosed on the relevant Power Content Label.

Retail suppliers may provide additional information to customers describing other actions related to greenhouse gases that are unrelated to the electricity portfolio.

Beginning with the 2025 reporting year, the California Energy Commission requires retail suppliers to report total power content based on loss-adjusted load rather than retail sales alone. Loss-adjusted load includes the electricity that must be procured to account for transmission and distribution losses that occur as power travels across the electric grid. This change provides a more complete accounting of the electricity used to serve customers. In addition to displaying the power mix for each retail product, the 2025 Power Content Label will include a new "Total Power Content" section that reflects WestLight Energy's combined power supply across all of its retail products, plus the additional electricity procured to account for transmission and distribution losses.

DISCUSSION
During the 2025 calendar year, WestLight successfully delivered a substantial portion of its electric energy supply from various renewable energy sources, including solar, wind, small hydroelectricity, and geothermal. For its ECOplus customers, the percentage of supply attributable to renewable energy sources approximated fifty-nine percent (59%) according to the Power Source Disclosure Annual Report, and the total supply from carbon-free or renewable energy resources was one hundred percent (100%). For its ECO100 customers, the percentage of supply attributable to renewable energy sources comprised one hundred percent (100%). WestLight’s program for the Disadvantaged Communities Green Tariff (DAC-GT) is called Green Access and is represented on the Power Source Disclosure Annual Report and Power Content Label as a separate product, with one hundred percent (100%) of its supply coming from renewable energy sources., WestLight also offers a Green Transit product to public transit agencies, and this product’s supply comes from one hundred percent (100%) renewable energy sources. WestLight's Total Power Content includes all resources procured for its four retail products, as well as the additional resources procured to account for transmission and distribution losses, expressed as a percentage of WestLight's loss-adjusted load. For 2025, renewable energy resources represented sixty percent (60%) of WestLight's Total Power Content, while carbon-free and renewable resources together represented one hundred percent (100%). WestLight's Strategic Plan target of sixty percent (60%) renewable energy is measured as a percentage of retail sales rather than loss-adjusted load. As a result, this strategic metric is not reflected on the Power Source Disclosure Annual Report or Power 6 Content Label. However, when measured using the Strategic Plan methodology (renewable resources as a percentage of retail sales), WestLight exceeded its 2025 target, with renewable energy representing sixty-two percent (62%) of retail sales.

The 2025 Annual Report includes the GHG Emissions Intensity factor calculated per the CEC’s methodology. The GHG Emissions Intensity for 2025 was 0 lbs of carbon dioxide equivalent per megawatt-hour of electricity (CO2e/MWh) for each of WestLight’s retail products (ECOplus, ECO100, Green Access, and Green Transit), and Total Power Content. In comparison, the average intensity for California utilities in 2024 was 359 lbs CO2e/MWh. The average intensity value for California utilities in 2025 will be published by the CEC later this year and provided to customers on the Power Content Label in the fall of 2026.

Beginning with reporting for the 2019 calendar year, the CEC requires supplies purchased from Asset Controlling Suppliers (ACS supplies) to be disaggregated in the Power Content Label into distinct fuel types, such as large hydroelectric, nuclear, and unspecified sources of power. WestLight did not purchase any ACS supplies in 2025.

While developing WestLight’s 2025 Power Source Disclosure Annual Report, staff performed a detailed review of all power purchases completed for the 2025 calendar year. This review included an inventory of all renewable energy transfers within WestLight’s Western Renewable Energy Generation Information System (WREGIS) accounts and pertinent transaction records. Staff developed the Power Source Disclosure Annual Report for its four retail products and Total Power Content and submitted this report under Peninsula Clean Energy to the CEC by the regulatory deadline of June 1, 2026. WestLight submitted a revised version of the Power Source Disclosure Report on July 6, 2026 reflecting the organization’s new name. In addition, the ECO100 product for 2025 has been certified by Green-e, a process which included an external audit. Based on staff’s review of available data, the information presented in the Annual Report was determined to be accurate.

To fulfill its Power Source Disclosure reporting obligation, WestLight must also provide the CEC with an attestation regarding the veracity of information included in the Annual Report. In consideration of the aforementioned internal review and applicable regulations, staff requests that the Board accept this determination and attest to the veracity of information included in WestLight’s 2025 Power Source Disclosure Annual Report, which will then be submitted to the CEC.

Consistent with applicable regulations, WestLight will submit the Board’s attestation of its 2025 Power Source Disclosure Report to the CEC and post the Power Content Label online by October 1, 2026, and complete requisite customer communications by December 31, 2026.

A copy of WestLight’s 2025 Power Source Disclosure Report is included as Exhibit A. The Power Content Label data for each of WestLight’s retail products and Total Power Content is also reproduced below.
7 STRATEGIC PLAN
The Power Source Disclosure Annual Report supports the Strategic Priority regarding Procurement.

ATTACHMENTS:

Exhibit A: WestLight Energy Power Source Disclosure Report 8 RESOLUTION NO. _____________

WESTLIGHT ENERGY, COUNTY OF SAN MATEO, AND THE CITY OF LOS BANOS,

STATE OF CALIFORNIA
APPROVAL OF WESTLIGHT ENERGY'S 2025 POWER SOURCE DISCLOSURE ANNUAL REPORT
RESOLVED, by Westlight Energy of the County of San Mateo, and the City of Los Banos, State of California, (“Westlight”) that:

WHEREAS, WestLight Energy was formed as Peninsula Clean Energy on February 29, 2016, and adopted the name WestLight Energy on May 28, 2026; and WHEREAS, the California Public Utilities Code requires all retail sellers of electric energy, including WestLight Energy, to disclose “accurate, reliable, and simple-to-understand information on the sources of energy” that are delivered to their respective customers; and WHEREAS, the California Energy Commission’s Power Source Disclosure Program governs the method and format by which retail sellers make these disclosures to their customers; and WHEREAS, staff completed a detailed review of all power purchases for the 2025 calendar year and developed the 2025 Power Source Disclosure Annual Report pursuant to the Regulations Governing the Power Source Disclosure Program; and WHEREAS, the Board wishes to attest to the veracity of information presented in the 2025 Power Source Disclosure Annual Report.

NOW, THEREFORE, IT IS HEREBY DETERMINED AND ORDERED by the Board as follows:

SECTION 1: The Board approves the 2025 Power Source Disclosure Annual Report.

SECTION 2: The Board attests to the veracity of information provided in the 2025 Power Source Disclosure Annual Report.

SECTION 3: The Board authorizes the Chief Executive Officer, or designee, to submit the attestation of the 2025 Power Source Disclosure Annual Report to the California Energy Commission.
9 2025 POWER SOURCE DISCLOSURE ANNUAL REPORT
For the Year Ending December 31, 2025

GENERAL INSTRUCTIONS
Retail suppliers are required to use the posted template and are not allowed to make edits to this format.

Please complete the Retail Supplier Name and contact information in column B below.

RETAIL SUPPLIER NAME WestLight Energy

CONTACT INFORMATION
NAME Shayna Levia
TITLE Associate Manager, Power Resources
MAILING ADDRESS 2075 Woodside Rd
CITY, STATE, ZIP Redwood City, CA, 94061
PHONE 650-761-6784
EMAIL [email protected]
WEBSITE URL FOR PCL POSTING www.westlightenergy.org
Submit the Annual Report and signed Attestation in PDF format with the Excel version of the Annual Report to [email protected].

California Energy Commission's website.

If you have questions, contact Power Source Disclosure (PSD) staff at [email protected] or (916) 639-0573.

Version: April 2026
NOTE: Information submitted in this report is not automatically held confidential. If your company wishes the information submitted to be considered confidential an authorized representative must submit an application for confidential designation (CEC-13), which can be found on the 10 *indicates GHG figures are preliminary until the calculation of the annual un Power Sources and Emissions ECOplus ECO100
Retail Sales, Other End Uses,
Losses (MWh) 3,084,362 270,053
Total Net Specified (MWh) 3,084,362 270,053
Biomass & Biogas - -
Geothermal 401,767 -
Eligible Hydroelectric 48,595 -
Solar 689,803 135,027
Wind 667,356 135,027
Large Hydroelectric 1,276,841 -
Nuclear - -
Emerging Technologies - -
Other - -
Natural Gas - -
Coal & Petroleum - -
Unspecified Power - ACS - -
Unspecified Power - Direct
Import - -
Unspecified Power - Spot Market - -
Unspecified Power - Total - -
Unspecified GHGs (MT CO2e)* - -
Specified GHGs (MT CO2e) - -
Total GHGs (MT CO2e)* - -
GHG Emissions Intensity (MT
CO2e/MWh)* - -
PCL Emissions Intensity (lbs
CO2e/MWh)*
0 0
Retail Sales, Other End Uses,
Specified Losses 3,084,362 270,053
Unmet Load (MWh) - -
Facility Name Fuel Type State or
Province
WREGIS ID of REC
Source
RPS ID of REC
Source
EIA ID of Delivered
Energy Loss Factor Gross MWhs Procured
Specified
Resales MWhs
Net MWhs
Procured
Firmed & Shaped
Resource?
Eligible for Firmed &
Shaped
Grandfathering?
Specified Losses
Covered by Seller?
Total EF
(MT CO2e/MWh) Total GHGs PCL EF(MT CO2e/MWh) ECOplus ECO100 Buena Vista Energy Windfarm - Buena Vista Energy WindfarmWind CA W165 60124A 56446 0.044 96,146 1,185 94,961 0.0000 - 0.0000 94,961 CED Lost Hills Solar, LLC - Frontier Solar Solar CA W7139 62516A 58712 0.044 100 - 100 0.0000 - 0.0000 100 DOSP Solar CA W22287 65129A 64693 0.044 5,690 - 5,690 0.0000 - 0.0000 Geysers Power Plant - Calistoga Power Plant Geothermal CA W486 60117A 50066 0.044 14,136 - 14,136 0.0257 363 0.0000 14,136 Geysers Power Plant - Calpine Geothermal Unit 12 Geothermal CA W120 60004A 286 0.044 56,971 9,993 46,978 0.0257 1,207 0.0000 46,978 Geysers Power Plant - Calpine Geothermal Unit 13 Geothermal CA W121 60005A 286 0.044 36,687 13,647 23,040 0.0257 592 0.0000 23,040 Geysers Power Plant - Calpine Geothermal Unit 16 Geothermal CA W123 60006A 286 0.044 34,569 10,659 23,910 0.0257 614 0.0000 23,910 Geysers Power Plant - Calpine Geothermal Unit 17 Geothermal CA W124 60007A 286 0.044 60,863 - 60,863 0.0257 1,564 0.0000 60,863 Geysers Power Plant - Calpine Geothermal Unit 18 Geothermal CA W125 60008A 286 0.044 94,257 13,041 81,216 0.0257 2,087 0.0000 81,216 Goose Lake Solar - Goose Lake Solar Solar CA W4151 62357A 59086 0.044 10,418 - 10,418 0.0000 - 0.0000 Mega Hydro #1 (Clover Creek) - Mega Hydro #1 (Clover Creek) Eligible Hydroelectric CA W623 60227A p236 0.044 4,281 369 3,912 0.0000 - 0.0000 3,912 Mega Renewables (Bidwell Ditch) - Mega Renewables (Bidwell Ditch) Eligible Hydroelectric CA W625 60165A 10880 0.044 11,773 1,018 10,755 0.0000 - 0.0000 10,755 Mega Renewables (Hatchet Creek) - Mega Renewables (Hatchet Creek) Eligible Hydroelectric CA W626 60166A 10882 0.044 21,795 1,485 20,310 0.0000 - 0.0000 20,310 Mega Renewables (Roaring Creek) - Mega Renewables (Roaring Creek) Eligible Hydroelectric CA W627 60167A 10881 0.044 5,982 317 5,665 0.0000 - 0.0000 5,665 Mustang Two Whirlaway - Mustang Two Whirlaway Solar CA W9615 63730A 62015 0.044 263,520 35,189 228,331 0.0000 - 0.0000 189,944 Second Imperial Geothermal Company - Heber 2 Geothermal CA W415 60316A 54111 0.044 181,270 29,646 151,624 0.0000 - 0.0000 151,624 Shiloh I Wind Project - Shiloh I Wind Project LLC Wind CA W231 60488A 56362 0.044 400,792 34,890 365,902 0.0000 - 0.0000 365,902 Sky RIver Wind Energy Center - Sky River Wind - Feeder 3 Wind CA W530 63763A 50536 0.044 69,346 5,333 64,013 0.0000 - 0.0000 64,013 Sky River Wind Energy Center - Sky River Wind Feeder 4 Wind CA W531 63763A 50536 0.044 41,104 2,777 38,327 0.0000 - 0.0000 38,327 Snow Mtn Hydro (Burney) - Burney Creek Eligible Hydroelectric CA W673 60177A 10706 0.044 8,639 686 7,953 0.0000 - 0.0000 7,953 Tehachapi Wind Resource I - Tehachapi Wind Resource I Wind CA W519 61467A 10191 0.044 12,304 586 11,718 0.0000 - 0.0000 11,718 Voyager Wind 2 - Voyager Wind 2 Wind CA W7267 63686A 61582 0.044 238,401 10,939 227,462 0.0000 - 0.0000 92,435 135,027 Willy 9 Chap 1 - Chaparral Solar, LLC Solar CA W14099 64315A 64864 0.044 255,311 13,039 242,272 0.0000 - 0.0000 242,272 Wright Solar Park - Wright Solar Park Solar CA W8785 62620A 59525 0.044 402,715 10,201 392,514 0.0000 - 0.0000 257,487 135,027 Balch #1 PH Large Hydroelectric CA 217 0.044 4,012 4,012 0.0000 - 0.0000 4,012 Balch #2 PH Large Hydroelectric CA 218 0.044 38,575 38,575 0.0000 - 0.0000 38,575 Belden Large Hydroelectric CA 219 0.044 11,747 11,747 0.0000 - 0.0000 11,747 Boundary Hydro Large Hydroelectric WA 6433 0.066 102,798 102,798 0.0000 - 0.0000 102,798 Box Canyon Dam Large Hydroelectric WA 3891 0.066 2 2 0.0000 - 0.0000 2 Brownlee Large Hydroelectric ID 811 0.066 53,240 53,240 0.0000 - 0.0000 53,240 Bucks Creek Large Hydroelectric CA 220 0.044 25,486 25,486 0.0000 - 0.0000 25,486 Butt Valley Large Hydroelectric CA 221 0.044 19,341 19,341 0.0000 - 0.0000 19,341 Caribou 1 Large Hydroelectric CA 222 0.044 44,413 44,413 0.0000 - 0.0000 44,413 Caribou 2 Large Hydroelectric CA 223 0.044 44,281 44,281 0.0000 - 0.0000 44,281 Chelan Large Hydroelectric WA 6424 0.066 288 288 0.0000 - 0.0000 288 Colgate Large Hydroelectric CA 454 0.044 75,653 75,653 0.0000 - 0.0000 75,653 Cresta Large Hydroelectric CA 231 0.044 47,688 47,688 0.0000 - 0.0000 47,688 Diablo Canyon Nuclear CA 6099 0.044 228,757 228,757 0.0000 - 0.0000 Drum #1 Large Hydroelectric CA 235 0.044 1,917 1,917 0.0000 - 0.0000 1,917 Drum #2 Large Hydroelectric CA 236 0.044 21,103 21,103 0.0000 - 0.0000 21,103 Electra Large Hydroelectric CA 239 0.044 23,214 23,214 0.0000 - 0.0000 23,214 Exchequer Hydro Large Hydroelectric CA 409 0.044 203,893 203,893 0.0000 - 0.0000 203,893 Haas Large Hydroelectric CA 240 0.044 27,099 27,099 0.0000 - 0.0000 27,099 Headgate Rock Large Hydroelectric AZ 7179 0.066 2,023 2,023 0.0000 - 0.0000 2,023 James B Black Large Hydroelectric CA 249 0.044 66,924 66,924 0.0000 - 0.0000 66,924 Kerckhoff #2 PH Large Hydroelectric CA 682 0.044 31,844 31,844 0.0000 - 0.0000 31,844 Kings River Large Hydroelectric CA 254 0.044 7,895 7,895 0.0000 - 0.0000 7,895 Lucky Peak Power Plant Project Large Hydroelectric ID 10014 0.066 11,212 11,212 0.0000 - 0.0000 11,212 Narrows 2 Large Hydroelectric CA 455 0.044 7,639 7,639 0.0000 - 0.0000 7,639 NID-Chicago Park Large Hydroelectric CA 412 0.044 3,560 3,560 0.0000 - 0.0000 3,560 Pit 1 Large Hydroelectric CA 265 0.044 23,749 23,749 0.0000 - 0.0000 23,749 Pit 3 Large Hydroelectric CA 266 0.044 42,945 42,945 0.0000 - 0.0000 42,945 Pit 4 Large Hydroelectric CA 267 0.044 41,000 41,000 0.0000 - 0.0000 41,000 Pit 5 Large Hydroelectric CA 268 0.044 64,406 64,406 0.0000 - 0.0000 64,406 Pit 6 Large Hydroelectric CA 269 0.044 39,142 39,142 0.0000 - 0.0000 39,142 Pit 7 Large Hydroelectric CA 270 0.044 93,997 93,997 0.0000 - 0.0000 93,997 Poe Large Hydroelectric CA 272 0.044 35,534 35,534 0.0000 - 0.0000 35,534 Rock Creek Large Hydroelectric CA 275 0.044 61,358 61,358 0.0000 - 0.0000 60,222 Rock Island Large Hydroelectric WA 6200 0.066 27,280 27,280 0.0000 - 0.0000 Rocky Reach Large Hydroelectric WA 3883 0.066 2,202 2,202 0.0000 - 0.0000 Salt Springs Large Hydroelectric CA 279 0.044 6,158 6,158 0.0000 - 0.0000 Selis Ksanka Qlispe (Kerr) Large Hydroelectric MT 2188 0.066 33,332 33,332 0.0000 - 0.0000 Stanislaus Large Hydroelectric CA 285 0.044 9,721 9,721 0.0000 - 0.0000 Tiger Creek Large Hydroelectric CA 287 0.044 10,981 10,981 0.0000 - 0.0000

0.066 - #N/A #N/A 0.0000

0.066 - #N/A #N/A 0.0000

0.066 - #N/A #N/A 0.0000

0.066 - #N/A #N/A 0.0000
Instructions

1. Enter electricity portfolio names in cells Q27-V27, as needed.

2. Enter the megawatt hours (MWh) of retail sales associated with electricity portfolios in cells Q25-V25, as needed, and the MWh associated with other end uses in cell W25.

3. In the table beginning with cell A28, enter information about all specified purchases. All fields in white should be filled out. Fields in grey auto-populate as needed and should not be filled out.

4. Default loss factors will auto-populate based on resource location. Enter a custom loss factor if applicable. All custom loss factors require additional documentation.

5. If a resource’s losses are covered by the generation seller under contract, select “Yes” in the relevant cell in column M: “Specified Losses Covered by Seller?”

6. For firmed-&-shaped procurements specifically, enter all fields from step 3. Additionally, enter the EIA ID of the substitute power in the "EIA ID of Delivered Energy" field.

7. For firmed-&-shaped procurements eligible for grandfathered GHG emissions, select "Yes" in the relevant field in column L: "Eligible for Firmed & Shaped Grandfathering?"

8. Proxy EIA IDs for unspecified power and specified system mixes from asset-controlling suppliers have been provided. Enter "Unspecified Power", "BPA", or "Tacoma Power" as applicable.

9. Proxy EIA IDs for aggregated reporting of WAPA CVP or PCIA resources have been provided. Enter "CVP", "PCIA Solar", "PCIA Wind", "PCIA Eligible Hydro", or "PCIA Large Hydro" as applicable.

10. Only unspecified imports purchased directly from a seller under contract or ACS unspecified power procurements must be entered as line items; any additional unspecified power is calculated automatically in individual electricity portfolio tables after all specified resources are allocated.

11. Allocate net MWhs procured to each electricity portfolio until the loads are balanced across each portfolio. If the total Net MWhs Procured exceeds the total retail sales of all portfolios, allocate only enough MWh to meet the retail sales of each portfolio.

12. If electricity portfolio loads are balanced and net MWhs remain, allocate net MWhs to cover losses in the column starting with cell X28. This will add new losses, resulting in a new net short of unmet load in Cell X26. For retail suppliers that want to cover 100% of their loss-adjusted load with specified procurements, continue allocating specified procurement in Column X until Cell X26 shows no unmet load. 11 Resource and GHG Allocations
indicates GHG figures are preliminary until the calculation of the annual unspecified power emissions factor Green Transit Green Access
Electricity Portfolio
Name 5
Electricity Portfolio
Name 6 Other End Uses Losses
38,385 13,021 - - - 161,139
38,385 13,021 - - - 161,139
- - - - - -
- - - - - -
- - - - - -
38,385 13,021 - - - -
- - - - - -
- - - - - 90,811
- - - - - 70,328
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - - Checks Status
- - #DIV/0! #DIV/0! - -
Portfolio and other
end use allocations COMPLETE
0 0 #DIV/0! #DIV/0!
- -
Specified resources
allocated COMPLETE
38,385 13,021 161,139
Coal allocated COMPLETE
- - - - - -
Oversupply not
negative COMPLETE PCL GHG Allocations (MT CO2e)
Green Transit Green Access Electricity Portfolio
Name 5
Electricity Portfolio
Name 6 Other End Uses
Specified
Procurement
Covering Losses
Total Specified
Losses Remainder/Oversupply Facility Name ECOplus ECO100 Green Transit Green Access Electricity Portfolio Name 5 Electricity Portfolio
Name 6
Other End Uses
PCL GHGs
4,152 - Buena Vista Energy Windfarm - Buena Vista Energy Windfarm - - - - - - - 4 - CED Lost Hills Solar, LLC - Frontier Solar - - - - - - - 5,690 249 - DOSP - - - - - - -
618 - Geysers Power Plant - Calistoga Power Plant - - - - - - - 2,054 - Geysers Power Plant - Calpine Geothermal Unit 12 - - - - - - - 1,007 - Geysers Power Plant - Calpine Geothermal Unit 13 - - - - - - - 1,046 - Geysers Power Plant - Calpine Geothermal Unit 16 - - - - - - - 2,661 - Geysers Power Plant - Calpine Geothermal Unit 17 - - - - - - - 3,551 - Geysers Power Plant - Calpine Geothermal Unit 18 - - - - - - - 7,331 321 3,087 Goose Lake Solar - Goose Lake Solar - - - - - - - 171 - Mega Hydro #1 (Clover Creek) - Mega Hydro #1 (Clover Creek) - - - - - - - 470 - Mega Renewables (Bidwell Ditch) - Mega Renewables (Bidwell Ditch) - - - - - - - 888 - Mega Renewables (Hatchet Creek) - Mega Renewables (Hatchet Creek) - - - - - - - 248 - Mega Renewables (Roaring Creek) - Mega Renewables (Roaring Creek) - - - - - - - 38,385 9,984 2 Mustang Two Whirlaway - Mustang Two Whirlaway - - - - - - - 6,630 - Second Imperial Geothermal Company - Heber 2 - - - - - - - 16,000 - Shiloh I Wind Project - Shiloh I Wind Project LLC - - - - - - - 2,799 - Sky RIver Wind Energy Center - Sky River Wind - Feeder 3 - - - - - - - 1,676 - Sky River Wind Energy Center - Sky River Wind Feeder 4 - - - - - - - 348 - Snow Mtn Hydro (Burney) - Burney Creek - - - - - - - 512 - Tehachapi Wind Resource I - Tehachapi Wind Resource I - - - - - - - 9,946 0 Voyager Wind 2 - Voyager Wind 2 - - - - - - -
10,594 - Willy 9 Chap 1 - Chaparral Solar, LLC - - - - - - - 17,163 0 Wright Solar Park - Wright Solar Park - - - - - - - 175 - Balch #1 PH - - - - - - -
1,687 - Balch #2 PH - - - - - - -
514 - Belden - - - - - - -
6,782 - Boundary Hydro - - - - - - -
- - Box Canyon Dam - - - - - - -
3,513 - Brownlee - - - - - - -
1,114 - Bucks Creek - - - - - - -
846 - Butt Valley - - - - - - -
1,942 - Caribou 1 - - - - - - -
1,936 - Caribou 2 - - - - - - -
19 - Chelan - - - - - - -
3,308 - Colgate - - - - - - -
2,085 - Cresta - - - - - - -
70,328 3,075 158,429 Diablo Canyon - - - - - - -
84 - Drum #1 - - - - - - -
923 - Drum #2 - - - - - - -
1,015 - Electra - - - - - - -
8,916 - Exchequer Hydro - - - - - - -
1,185 - Haas - - - - - - -
133 - Headgate Rock - - - - - - -
2,926 - James B Black - - - - - - -
1,392 - Kerckhoff #2 PH - - - - - - -
345 - Kings River - - - - - - -
740 - Lucky Peak Power Plant Project - - - - - - -
334 - Narrows 2 - - - - - - -
156 - NID-Chicago Park - - - - - - -
1,038 - Pit 1 - - - - - - -
1,878 - Pit 3 - - - - - - -
1,793 - Pit 4 - - - - - - -
2,816 - Pit 5 - - - - - - -
1,712 - Pit 6 - - - - - - -
4,110 - Pit 7 - - - - - - -
1,554 - Poe - - - - - - -
1,137 2,683 - Rock Creek - - - - - - -
27,280 1,800 - Rock Island - - - - - - -
2,202 145 - Rocky Reach - - - - - - -
6,158 269 - Salt Springs - - - - - - -
33,332 2,199 - Selis Ksanka Qlispe (Kerr) - - - - - - - 9,721 425 - Stanislaus - - - - - - -
10,981 480 - Tiger Creek - - - - - - -
- - - - - - - - -
- - - - - - - - -
- - - - - - - - -
- - - - - - - - -
12 Oversupply
Specified
Procurement
Covering Losses
PCL GHGs
Facility Name Fuel Type Net
Procurement Oversupply Losses Annual PCL
GHGs (MT CO2e)
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- Goose Lake Solar - Goose Lake Solar Solar 3,087 135 - - - - - - -
- - - - - -
- - - - - -
- - - - - -
- Mustang Two Whirlaway - Mustang Two Whirlaway Solar 2 0 - - - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- Voyager Wind 2 - Voyager Wind 2 Wind 0 0 -
- - - - - -
- Wright Solar Park - Wright Solar Park Solar 0 0 -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- Diablo Canyon Nuclear 158,429 6,928 -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - -
- - - - - #N/A
- - - - - #N/A
- - - - - #N/A
- - - - - #N/A
13 2025 PCL Data*
Emissions, Power Sources, Unbundled RECs ECOplus ECO100 Green Transit Green Access Electricity Portfolio
Name 5
Electricity Portfolio
Name 6
Total Loss-Adjusted Load
Retail Sales and Loss-Adjusted Load 3,084,362 270,053 38,385 13,021 0 0 3,566,960 GHG Emissions Intensity (lbs CO2e/MWh) 0 0 0 0 #DIV/0! #DIV/0! 0 ■ Renewables and Zero-Carbon Resources 100% 100% 100% 100% #DIV/0! #DIV/0! 100% ■ Fossil Fuels 0% 0% 0% 0% #DIV/0! #DIV/0! 0%
Biomass & Biogas 0% 0% 0% 0% #DIV/0! #DIV/0! 0%
Geothermal 13% 0% 0% 0% #DIV/0! #DIV/0! 11%
Eligible Hydroelectric 2% 0% 0% 0% #DIV/0! #DIV/0! 1%
Solar 22% 50% 100% 100% #DIV/0! #DIV/0! 25%
Wind 22% 50% 0% 0% #DIV/0! #DIV/0! 22%
RPS Eligible Renewables - Subtotal 59% 100% 100% 100% #DIV/0! #DIV/0! 60% Large Hydroelectric 41% 0% 0% 0% #DIV/0! #DIV/0! 38%
Nuclear 0% 0% 0% 0% #DIV/0! #DIV/0! 2%
Emerging Technologies 0% 0% 0% 0% #DIV/0! #DIV/0! 0%
Other 0% 0% 0% 0% #DIV/0! #DIV/0! 0%
Natural Gas 0% 0% 0% 0% #DIV/0! #DIV/0! 0%
Coal & Petroleum 0% 0% 0% 0% #DIV/0! #DIV/0! 0%
Unspecified Power - Total 0% 0% 0% 0% #DIV/0! #DIV/0! 0% Retail Sales Covered by Retired Unbundled RECs 0% 0% 0% 0% #DIV/0! #DIV/0! - *NOTE: The figures above are preliminary.

Staff will calculate the GHG emissions factor and fuel mix breakdown (percentage derived from renewables and zero-carbon resources or fossil fuels) of unspecified power after data from all reporting entities is submitted. 14 Instructions

1. In the table starting in cell A13, select the appropriate retail portfolio from the drop-down list in column A and enter the Facility Name, Fuel Type, State or Province, RPS ID, and Total Retired Unbundled RECs (in MWh) for each facility.

TOTAL ALLOCATIONS
Retail Portfolio Total Retired (in MWh)
ECOplus 0
ECO100 0
Green Transit 0
Green Access 0
Electricity Portfolio Name 5 0
Electricity Portfolio Name 6 0

RETIRED UNBUNDLED RECS
Retail Portfolio Facility Name Fuel Type State or Province RPS ID Total Retired (in MWh) 15 ASSET CONTROLLING SUPPLIER RESOURCE MIX CALCULATOR
Instructions: Enter total net specified procurement of ACS system resources into cell B5 or B19 In Column C, the calculator will determine quantities of resource-specific net procurement for entry on the Annual Data tab.

Bonneville Power Administration
Net MWh Procured:

Fuel Type Resource Mix Factors
Resource-Specific
Procurements from
BPA
Biomass & Biogas -
Geothermal -
Eligible Hydroelectric -
Solar -
Wind -
Coal -
Large Hydroelectric 0.77 -
Natural Gas -
Nuclear 0.11 -
Other 0.01 -
Unspecified Power 0.11 -
Tacoma Power
Net MWh Procured:

Fuel Type Resource Mix Factors
Resource-Specific
Procurements from
Tacoma Power
Biomass & Biogas -
Geothermal -
Eligible Hydroelectric -
Solar -
Wind -
Coal -
Large Hydroelectric 0.82 -
Natural Gas -
Nuclear 0.07 -
Other -
Unspecified Power 0.11 -
16 This Secondary Losses Adjustment Calculator is used for alternative loss factors (rather than the default loss factors). The calculator adjusts a generator-based loss factor so that it calculates primary and secondary losses. Enter the generator-based loss factor in cell B7 to get the adjusted loss factor in cell B8.

Using the most recent EIA 861 data, line losses were calculated at 4.19% for in-state resources and 6.19% for imported resources. These values are based on Total Energy Supply, which includes Estimated Losses (this is a top-down calculation).

That total supply-based loss factor must be converted to a loss factor that can be applied only to the generation matched to load, rather than total supply. The Calculation of Default Loss Factors section below provides the necessary calculations.

The corresponding bottom-up loss factors that will gross up load-matched resources to determine losses are 0.0437 and 0.0660, respectively. This conversion does not increase losses, which can be demonstrated below, as [Cell B14 x Cell B18] = [Cell B22 x Cell B23].

Secondary Losses Adjustment Calculator
Generator-based loss factor 0.04
Loss factor w/secondary losses 0.0417
Calculation of Default Loss Factors
2024 EIA 861 Energy Disposition Breakdown MWh and Loss % In-state generation 214,191,383
Imports 59,469,653
Total Supply 273,661,036
Estimated Losses (in-state) 11,465,052
In-state loss % 4.19%
Out of state loss % (+.02) 6.19%
Default in-state loss factor for total supply 0.0419
In-state generation matched to load 205,217,817
Default loss factor applied to load-matched in-state resources 0.0437 Default import loss factor for total supply 0.0619
Imported generation matched to load 55,788,774
Default loss factor applied to load-matched out-of-state resources 0.0660 17 2025 POWER SOURCE DISCLOSURE ANNUAL REPORT

ATTESTATION FORM
For the Year Ending December 31, 2025
WestLight Energy
Name: _____________________________________________________________ Representing (Retail Supplier):WestLight Energy
Signature: __________________________________________________________ Dated: _____________________________________________________________ Executed at: Redwood City, CA
I, Shawn Marshall,
Chief Executive Officer, declare under penalty of perjury, that the information provided in this report is true and correct and that I, as an authorized agent of WestLight Energy, have authority to submit this report on the retail supplier's behalf. I further declare that all of the electricity claimed as specified purchases as shown in this report was sold once and only once to retail customers. 18 DATE: July 17, 2026
MEETING DATE: July 23, 2026
VOTE REQUIRED: Majority Vote
TO: Honorable WestLight Energy Board of Directors
FROM: Nick Bijur, Chief Financial Officer, Nelly Wogberg, Office Manager SUBJECT: Approval authorizing the Chief Executive Officer to Negotiate and Enter into Furniture Purchase Agreements with Various Vendors in an Amount Not-to-Exceed $400,000 Item No. 2
WestLight Energy
JPA Board Correspondence

RECOMMENDATION
Approval to authorize the Chief Executive Officer to negotiate and execute agreements with various vendors in a total amount not-to-exceed $400,000 for the procurement, delivery, and installation of furniture and related furnishings for WestLight Energy's new headquarters at 400 South El Camino Real in San Mateo.

BACKGROUND
WestLight Energy’s (WestLight or the Agency) current office lease in Redwood City expires on September 30, 2026. As the Agency has grown from 17 employees in 2017 to 60+ employees today, the existing office no longer provides sufficient space or functionality to support the Agency operations. In January 2025, WestLight engaged JLL Commercial Real Estate to identify a new office location that would meet the Agency's long-term operational needs.

Following a comprehensive site selection process, WestLight selected the 14th floor at 400 South El Camino Real in San Mateo under a seven-year lease at a rental rate that is nearly identical to the Agency's current office location. In October 2025, the Board of Directors (Board) delegated authority to the Chief Executive Officer to finalize lease negotiations and execute the agreement, which was signed in December 2025. Construction of the tenant improvements is currently underway, with occupancy anticipated on the later of October 1, 2026, or completion of the tenant improvements.

WestLight engaged RMW Architecture & Interiors to develop the space plan and interior design for the new headquarters. Working closely with staff, RMW refined the office layout to reflect the Agency's operational needs, staff feedback, accessibility improvements, and value engineering strategies to reduce costs. The final design includes appropriately sized workstations, flexible meeting and collaboration spaces, an updated boardroom layout, welcoming reception and lounge areas, and ADA-compliant improvements, including an all-gender restroom. 19 In parallel with the furniture planning effort, staff has been working with Cal Coast Telecom to design the office's audio/visual and networking systems. The design supports reliable hybrid Board and committee meetings, staff collaboration, secure connectivity, and day-to-day operations while emphasizing ease of use, reliability, and value. Where practical, existing equipment from the current office will be incorporated into the new system to reduce project costs. The estimated cost of $238,000 for A/V and technology needs is within the Chief Executive Officer's signing authority.

Construction of the tenant improvements began in July 2026 and is being managed by DA Pope, the landlord's preferred contractor. Under the lease terms, the landlord is providing a tenant improvement (TI) allowance of up to $897,770 ($85 per square foot), with WestLight responsible for costs exceeding that amount. The current estimated cost of the tenant improvements is approximately $1.4 million, resulting in an anticipated Agency contribution of approximately $500,000. This contribution is partially offset by six months of rent abatement negotiated as part of the lease agreement. WestLight's share of the tenant improvement costs was included in the Fiscal Year 2026–27 budget approved by the Board in June 2026. With construction now underway, furnishing the new headquarters is the next major phase of the project in preparation for occupancy.

At its May 2026 meeting, the Executive Committee unanimously approved a recommendation to the Board to authorize the Chief Executive Officer to select a furniture vendor(s) and execute agreements to purchase office furniture in an amount not to exceed $400,000.

DISCUSSION
WestLight solicited proposals from furniture dealers with experience supporting Community Choice Aggregation agencies in the Bay Area. Proposals were evaluated based on project approach, pricing, design support, project management, implementation, and overall value.

Based on this evaluation, staff identified The Collective as the primary furniture dealer for the project based on its overall value, project approach, and expertise. A key consideration was The Collective's position as the largest Teknion dealer in North America. WestLight's existing office furniture is primarily manufactured by Teknion, and staff plans to reuse as much of the existing furniture as practical, particularly furniture from the enclosed offices. In addition, staff anticipates that certain furniture may be procured from other vendors when doing so provides a better overall value, addresses product availability, or allows the Agency to take advantage of quality second-hand furniture or other cost-saving opportunities. The requested authorization provides the flexibility to make those purchasing decisions while remaining within the Board-approved budget.

Furniture procurement includes workstations, conference room and boardroom furniture, reception and lounge seating, wellness/mothers' room and breakroom furnishings, storage, and other ancillary furniture needed to fully equip the new headquarters. The boardroom furniture will also replace the existing "donut" configuration with a more functional layout for Board meetings and public participation.

Staff is also developing a plan to responsibly reuse, donate, or recycle existing surplus furniture to minimize landfill impacts. The overall expected cost for furniture is estimated to range from $350,000 to $400,000. The final cost will depend on the specific furniture selections, which are expected to be finalized in August. 20 FISCAL IMPACT
Initial rent at 400 South El Camino Real is $824,000 per year, with a standard 3% annual escalation. The initial rental rate of $6.50 per square foot represents a slight decrease from WestLight's current office, while increasing the Agency's leased space by approximately 38%.

The 87-month lease includes six months of rent abatement and a tenant improvement allowance of $85 per square foot (approximately $900,000), with WestLight funding the remaining tenant improvement costs, currently estimated at approximately $500,000.

This action authorizes the Chief Executive Officer to negotiate and execute furniture-related purchase agreements with various vendors in an amount not to exceed $400,000. In addition, the Agency expects to invest approximately $238,000 in audio/visual, networking, and security systems, and approximately $100,000 for the installation of 10 dedicated Level 2 electric vehicle chargers at the new headquarters. All headquarters relocation costs, including lease costs, tenant improvements, furniture, technology systems, and EV charging infrastructure, were included in the Fiscal Year 2026–27 budget approved by the Board. Tenant improvement and office costs are partially offset by 6 months of free rent negotiated as part of the seven year lease term.

STRATEGIC PLAN
This action supports the Organizational Excellence pillar of WestLight Energy's 2026–2030 Strategic Plan by investing in a modern, flexible workplace that enhances collaboration, supports hybrid operations, and promotes long-term organizational effectiveness. The proposed procurement also reflects the Agency's commitment to responsible fiscal stewardship by maximizing the reuse of existing furniture while providing flexibility to pursue cost-effective purchasing opportunities that deliver the best overall value. 21 RESOLUTION NO. _____________

WESTLIGHT ENERGY, COUNTY OF SAN MATEO, AND THE CITY OF LOS BANOS,

STATE OF CALIFORNIA

APPROVAL AUTHORIZING THE CHIEF EXECUTIVE OFFICER TO NEGOTIATE AND

ENTER INTO FURNITURE PURCHASE AGREEMENTS WITH VARIOUS VENDORS IN AN AMOUNT NOT-TO-EXCEED $400,000
RESOLVED, by WestLight Energy of the County of San Mateo, and the City of Los Banos, State of California, (“WestLight”) that:

WHEREAS, WestLight Energy was formed as Peninsula Clean Energy on February 29, 2016, and adopted the name WestLight Energy on May 28, 2026; and WHEREAS, WestLight first entered into its lease at 2075 Woodside Road in July 2017, subsequently expanding in January 2020 to a total of 7,660 square feet, with the lease expiring on September 30, 2026; and
WHEREAS, since that time, WestLight's staff has grown from 17 to 60+ employees and the current office configuration no longer meets WestLight's needs for modern, accessible, and flexible workspace to support in-person collaboration, hybrid Board and committee meetings, and community engagement; and
WHEREAS, WestLight signed a 87-month lease for 10,562 square feet of office space at 400 S. El Camino Real in San Mateo; and
WHEREAS, WestLight is procuring furniture, fixtures, equipment, and related furnishings for its new headquarters; and
WHEREAS, the procurement of said office furniture may require purchases from multiple vendors to achieve the best value and meet the WestLight's operational needs.

NOW, THEREFORE, IT IS HEREBY DETERMINED AND ORDERED that the Board delegates authority to the Chief Executive Officer to execute agreements with selected vendors to purchase office furniture in an amount not to exceed $400,000. 22 DATE: July 10, 2026
MEETING DATE: July 23, 2026
VOTE REQUIRED: Majority Vote
TO: Honorable WestLight Energy Board of Directors
FROM: Nelly Wogberg, Board Clerk
SUBJECT: Approval of Minutes from the June 25, 2026 Board of Directors Meeting Item No. 3
WestLight Energy
JPA Board Correspondence

RECOMMENDATION
Approval of Minutes from the June 25, 2026 Board of Directors Meeting.

ATTACHMENTS:
06-25-2026 BOD Draft Minutes.pdf
23 Regular Meeting of the Board of Directors of the
Peninsula Clean Energy Authority (PCEA)
Minutes
Thursday, June 25, 2026
6:30 p.m.

Zoom Video Conference and Teleconference

CALL TO ORDER
Meeting was called to order at 6:31 p.m. in virtual teleconference, in the Peninsula Clean Energy Authority lobby and in the Los Banos City Hall conference room A.

ROLL CALL
Participating:

Jasneet Sharma, San Mateo County
Rick DeGolia, Atherton
Tom McCune, Belmont
Coleen Mackin, Brisbane
Donna Colson, Burlingame, arrived at 7:20 p.m.

Ken Gonzalez, Colma, arrived at 6:45 p.m.

Teresa Proano, Daly City
Stacy Jimenez, Foster City
Patrick Jonsson, Half Moon Bay
Leslie Ragsdale, Hillsborough, Vice Chair
Michael Amabile, Los Banos, participating from Los Banos Betsy Nash, Menlo Park
Bob Nguyen, Millbrae, arrived at 6:33 p.m.

Christine Boles, Pacifica
Rebecca Flynn, Portola Valley
Elmer Martinez Saballos, Redwood City
Marty Medina, San Bruno, Chair
John Dugan, San Carlos
Adam Loraine, San Mateo
James Coleman, South San Francisco
Hassan Aburish, Woodside

Absent:

Ray Mueller, San Mateo County
Mark Dinan, East Palo Alto
A quorum was established.

PUBLIC COMMENT
Gerard Manning

CLOSED SESSION
24 1. PUBLIC EMPLOYEE PERFORMANCE EVALUATION PURSUANT TO GOV’T CODE SEC. § 54957(b)(4)
Title: Chief Executive Officer

2. CONFERENCE WITH LABOR NEGOTIATORS (Cal. Gov. Code § 54957.6) Agency Designated Representatives: Chair Marty Medina and General Counsel; Unrepresented Employee: Chief Executive Officer

3. Reconvene Open Session (If Necessary) To Report Any Action(s) Taken During Closed Session The board went into closed session at 6:39 p.m. and returned from closed session at 7:48 p.m.

The board took a break from 7:48 p.m. and returned at 7:56 p.m.

Chair Medina reported no reportable action.

ACTION TO SET THE AGENDA AND APPROVE REMAINING CONSENT AGENDA ITEMS Public Comment: None
MOTION: Director DeGolia moved, seconded by Director Nash to set the Agenda, and approve Agenda Item Numbers 4-6.

4. Approval of the San Carlos School District Schools Building Electrification (SchoolsBE) Program Agreement.

5. Approval of a Mutual Termination and Release Agreement and a Replacement Interim Resource Agreement with Marin Clean Energy for the Green Access Program with a Not-to-Exceed Amount of $6.2 Million and a Term Through December 31, 2030.

6. Approval of the Minutes for the May 28, 2026 Meeting.

MOTION PASSED: 20-0 (Absent: San Mateo County, East Palo Alto, Redwood City)

JURISDICTION BOARD MEMBER YES NO ABSTAIN ABSENT
San Mateo County Director Sharma X
San Mateo County Director Mueller X
Atherton Director DeGolia X
Belmont Director McCune X
Brisbane Director Mackin X
Burlingame Director Colson X
Colma Director Gonzalez X
Daly City Director Proano X
East Palo Alto Director Dinan X
Foster City Director Jimenez X
Half Moon Bay Director Jonsson X
Hillsborough Director Ragsdale X
Los Banos Director Amabile X
25 Menlo Park Director Nash X
Millbrae Director Nguyen X
Pacifica Director Boles X
Portola Valley Director Flynn X
Redwood City Director Martinez Saballos X
San Bruno Director Medina X
San Carlos Director Dugan X
San Mateo Director Loraine X
South San Francisco Director Coleman X
Woodside Director Aburish X
Total 20 3

REGULAR AGENDA

7. Chair Report (Discussion)
Chair Medina shared that this will be the last meeting as Peninsula Clean Energy as our next meeting will be as WestLight Energy and a recap of the Sunzia ribbon cutting in Albuquerque, New Mexico.

8. CEO Report (Discussion)
Shawn Marshall, Chief Executive Officer, shared a report covering the Tumbleweed ribbon cutting in Kern County, updates on the go-live date of the second pre-pay transaction, an update on the name change and rebrand, an update on the new office, information on the MCE Grand Jury Report, and a reminder to complete the Board Logistics Survey.

Mike Mielke, Senior Manager of Legislative Policy, gave a legislative update.

9. Approval of the Fiscal Year 2026-2027 Budget (Action) Nick Bijur, Chief Financial Officer, gave a review of the Fiscal Year 2026-2027 budget.

Public Comment: None
MOTION: Director McCune moved, seconded by Director Jimenez to Approve the proposed fiscal year 2026-2027 budget (July 1, 2026 through June 30, 2027).

MOTION PASSED: 20-0 (Absent: San Mateo County, East Palo Alto, San Carlos)

JURISDICTION BOARD MEMBER YES NO ABSTAIN ABSENT
San Mateo County Director Sharma X
San Mateo County Director Mueller X
Atherton Director DeGolia X
Belmont Director McCune X
Brisbane Director Mackin X
Burlingame Director Colson X
Colma Director Gonzalez X
Daly City Director Proano X
26 East Palo Alto Director Dinan X
Foster City Director Jimenez X
Half Moon Bay Director Jonsson X
Hillsborough Director Ragsdale X
Los Banos Director Amabile X
Menlo Park Director Nash X
Millbrae Director Fung X
Pacifica Director Boles X
Portola Valley Director Flynn X
Redwood City Director Martinez Saballos X
San Bruno Director Medina X
San Carlos Director Dugan X
San Mateo Director Loraine X
South San Francisco Director Coleman X
Woodside Director Aburish X
Total 20 3

10. Approval of Updated July 2026 Peninsula Clean Energy Rates (Action) Justin Kudo, Associate Director of Strategic Analysis & Rates, and Nick Bijur, Chief Financial Officer, presented an update on Peninsula Clean Energy rates. Leslie Brown, Senior Director of Account Services, helped answer questions from the Board.

Public Comment: None
MOTION: Director Loraine moved, seconded by Director DeGolia to Approve setting PCE’s ECOplus rates at a system average of $0.072/kWh effective July 1, 2026, subject to a minimum rate of $0/kWh, resulting in a 5% discount to PG&E.

MOTION PASSED/FAILED: 23-0 (Absent: San Mateo County, East Palo Alto)

JURISDICTION BOARD MEMBER YES NO ABSTAIN ABSENT
San Mateo County Director Sharma X
San Mateo County Director Mueller X
Atherton Director DeGolia X
Belmont Director McCune X
Brisbane Director Mackin X
Burlingame Director Colson X
Colma Director Gonzalez X
Daly City Director Proano X
East Palo Alto Director Dinan X
Foster City Director Jimenez X
Half Moon Bay Director Jonsson X
Hillsborough Director Ragsdale X
Los Banos Director Amabile X
Menlo Park Director Nash X
27 Millbrae Director Nguyen X
Pacifica Director Boles X
Portola Valley Director Flynn X
Redwood City Director Martinez Saballos X
San Bruno Director Medina X
San Carlos Director Dugan X
San Mateo Director Loraine X
South San Francisco Director Coleman X
Woodside Director Aburish X
Total 21 2

11. Approval of the Peninsula Clean Energy Commercial Electrification Program (Action) Shelby Bush, Energy Efficiency Programs Manager, gave a presentation on the Peninsula Clean Energy Commercial Electrification Program. Rafael Reyes, Senior Director of Energy Programs, and Jennifer Stalzer, General Counsel, helped answer questions from the Board.

Public Comment: None
MOTION: Director Boles moved, seconded by Director Loraine to Approve the Peninsula Clean Energy Commercial Electrification Program to provide financial incentives to business customers for the installation of eligible electric equipment that replaces existing fossil fuel-powered equipment.

MOTION PASSED/FAILED: 23-0 (Absent: San Mateo County, East Palo Alto)

JURISDICTION BOARD MEMBER YES NO ABSTAIN ABSENT
San Mateo County Director Sharma X
San Mateo County Director Mueller X
Atherton Director DeGolia X
Belmont Director McCune X
Brisbane Director Mackin X
Burlingame Director Colson X
Colma Director Gonzalez X
Daly City Director Proano X
East Palo Alto Director Dinan X
Foster City Director Jimenez X
Half Moon Bay Director Jonsson X
Hillsborough Director Ragsdale X
Los Banos Director Amabile X
Menlo Park Director Nash X
Millbrae Director Nguyen X
Pacifica Director Boles X
Portola Valley Director Flynn X
Redwood City Director Martinez Saballos X
San Bruno Director Medina X
San Carlos Director Dugan X
28 San Mateo Director Loraine X
South San Francisco Director Coleman X
Woodside Director Aburish X
Total 21 2

12. Board Members’ Reports (Discussion)
Chair Medina noted that tonight is the last night of Peninsula Clean Energy’s meetings before becoming WestLight Energy.

Director Boles shared gratitude to the Board of Supervisors for passing a resolution to support the polluters pay climate super fund act and to Director Coleman for speaking at an event.

Vice Chair Ragsdale shared attendance at the Best Places to Work event.

ADJOURNMENT
Meeting was adjourned at 9:49 p.m.
29 DATE: July 1, 2026
MEETING DATE: July 23, 2026
VOTE REQUIRED: None
TO: Honorable WestLight Energy Board of Directors
FROM: Shawn Marshall, Chief Executive Officer
SUBJECT: CEO Report (Discussion)
Item No. 5
WestLight Energy
JPA Board Correspondence

BACKGROUND
During the Board meeting, CEO Shawn Marshall will provide an update on a variety of topics and activities of interest including progress and impact of WestLight rebrand, results of the Board survey, new office move, residential solar + storage program delay, Gov PV and Pescadero microgrid updates, State and Federal policy updates, and events upcoming for the Board's awareness.

See California’s Largest Multi-Family EV Retrofit in Action WestLight Energy is proud to announce the completion of the Peninsula Pines EV charging project in South San Francisco - the largest multi-family EV charging retrofit project in California and the second largest in the nation.

Through WestLight's EV Ready Program and in partnership with GoPowerEV, more than 200 smart EV charging outlets have been installed at Peninsula Pines Apartments, providing residents with convenient access to home charging. By leveraging affordable Level 1 charging technology and smart outlet solutions, the project demonstrates an innovative and scalable approach to expanding EV infrastructure in multi-family housing communities.

This milestone represents more than a successful installation - it serves as a model for addressing one of California’s most significant transportation equity challenges: ensuring that apartment and condominium residents have access to reliable EV charging. To date, WestLight's EV Ready Program has helped install more than 2,500 EV chargers throughout our service area, with over two-thirds located at multi-family properties.

As California works toward its climate goals and the need for more than one million EV chargers statewide by 2030, projects like Peninsula Pines showcase how cost-effective, scalable solutions can help accelerate EV adoption and reduce greenhouse gas emissions.

To celebrate this achievement, we invite you to join us for a guided tour and ribbon-cutting 30 ceremony at The Peninsula Pines Apartments at 842 Antoinette Lane, South San Francisco, CA 94080, on Wednesday, July 29, from 11:45 a.m. to 2:00 p.m.

We are proud to welcome the following keynote speakers at this celebration:

Nancy Skinner, Commissioner, California Energy Commission Matthew Baker, Commissioner, California Public Utilities Commission Shawn Marshall, CEO, WestLight Energy; Chair and Founder, Community Choice Energy Alliance
John Reister, Founder and CEO of GoPowerEV
We look forward to recognizing this important milestone with you while highlighting the impact of equitable EV charging access in our communities.

To RSVP tour ticket, please email [email protected] WestLight Energy In the Community
July 29 Peninsula Pines EV Charger Ribbon Cutting, South San Francisco July 31 Family Resource Day Tabling, Daly City
July 31 Nesian Night Market EV Showcase, San Bruno
August 1 SMC Dept of Emergency Management - Disaster Preparedness Day, San Mateo
August 5 Puente Backpack and Food Distribution, Pescadero August 8 Assembly member Soria Backpack Giveaway, Los Banos August 13 Electrification Workshop with El Concilio and Sustainable San Mateo County, San Mateo
August 29 Waves & Watts, Half Moon Bay
September
13 Fiestas Patrias, Redwood City
WestLight Energy Staffing Update
WestLight is fully staffed at this time; no open positions. 31 DATE: July 14, 2026
MEETING DATE: July 23, 2026
VOTE REQUIRED: Majority Vote
TO: Honorable WestLight Energy Board of Directors
FROM: Steve Campbell, Senior Analyst, Innovation Strategy SUBJECT: Approval of Two Power Purchase Agreements for the Green Access Program with a Power Delivery Term of 20 Years Starting at a Commercial Operation Date on or About December 31, 2028, in an Amount Not-to-Exceed $35,000,000 (Action)
Item No. 6
WestLight Energy
JPA Board Correspondence

RECOMMENDATION
Approve Delegation of Signing Authority to the Chief Executive Officer to Execute Two Power Purchase Agreements (PPAs) Totaling 5 MW with King Kettle Clean Power I LLC, and Required Ancillary Documents with a Power Delivery Term of 20 years starting at a Commercial Operation Date on or about December 31, 2028, in an Amount Not to Exceed $35,000,000.

BACKGROUND
Assembly Bill (AB) 327 (Perea, 2013) directed the California Public Utilities Commission (CPUC) to develop programs that expand access to renewable energy for residents of California's Disadvantaged Communities (DACs), as identified by the CalEnviroScreen (CES) tool.

In Decision D.18-06-027, the CPUC established the Disadvantaged Communities Green Tariff (DAC-GT) program to provide income-qualified residential customers in DACs with access to 100% renewable energy from community solar projects and a 20% discount on their electric bills. The program also encourages the development of new "steel-in-the-ground" community solar and solar-plus-storage projects, with facilities up to 20 MW located within, or within five miles of, a DAC in the applicable investor-owned utility service territory.

The CPUC authorized Community Choice Aggregators (CCAs) to administer their own DAC-GT programs and recover a portion of eligible program costs. In February 2022, WestLight launched its DAC-GT program, branded as the Green Access Program. To implement the program, the CPUC established a statewide capacity cap and allocates capacity among participating investor-owned utilities (IOUs) and CCAs based on the number of eligible customers in each service area. Through subsequent CPUC decisions, including D.24-05-065, WestLight's allocation has increased from 1.236 MW to its current allocation of 6.008MW. 32 WestLight has met this allocation through a combination of dedicated community solar resources and interim resources. In August 2022, the WestLight Board approved a 20-year Power Purchase Agreement (PPA) for the 3 MW Dos Palos Clean Power community solar project, which began commercial operation in March 2025.

Because community solar projects often require several years to develop and construct, the CPUC permits program administrators to use interim resources that meet the same program requirements while dedicated projects are under development. WestLight currently relies on a 3 MW interim resource from Marin Clean Energy (MCE) to serve the remaining DAC-GT program capacity. The Board approved updates to the interim resource agreement in 2026 to maintain uninterrupted service through December 31, 2030.

Today, the Green Access Program serves approximately 2,660 income-qualified customers in WestLight's territory through the Dos Palos community solar project and the interim resource from MCE. Approval of the two proposed PPAs would replace the interim resource with a second dedicated community solar project in Kings County, CA, thus completing the transition to permanent resources for WestLight's current DAC-GT capacity allocation.

DISCUSSION
In November 2025, WestLight issued a Request for Offers (RFO) to procure the remaining dedicated community solar resource needed to replace the interim resource currently serving the Green Access Program. WestLight received five offers from three developers. Following a technical, commercial, and regulatory evaluation, staff selected the King Kettle PV+BESS project for contract negotiations based on its competitive pricing, project maturity, and an executed Small Generator Interconnection Agreement (SGIA) with Pacific Gas & Electric (PG&E), which provides greater certainty regarding interconnection costs and project schedule.

King Kettle PV + BESS Project Information
The proposed King Kettle project is a 5 MW solar photovoltaic facility paired with a 20 MWh battery energy storage system located in Kettleman City, Kings County, California. The project is located within a qualifying Disadvantaged Community, as identified by CalEnviroScreen 5.0, and meets the DAC-GT program's locational requirements. Commercial operation is guaranteed by December 31, 2028.

This project is being developed by Renewable America LLC which has secured site control through a long-term lease option agreement, obtained the project's Small Generator Interconnection Agreement with PG&E, and completed preliminary environmental due diligence. Based on the work completed to date, staff have not identified any known fatal environmental or permitting issues that would preclude project development.

King Kettle PV + BESS Offer Structure
Although WestLight requires approximately 3 MW of additional dedicated capacity to complete implementation of its DAC-GT program, Renewable America LLC proposal is based on a 5 MW solar and 20 MWh battery project that it already planned to develop. Rather than reducing the size of the project, Renewable America LLC proposed dividing the facility into two separately metered Power Purchase Agreements (PPAs), each with its own CAISO resource identification number. Because the project was designed, permitted, and interconnected as a 33 single 5 MW facility, restructuring it would increase complexity, delay project development, and could jeopardize the economics of the project.

The first PPA includes 3 MW of solar generation and 12 MWh of battery storage and will serve the Green Access Program. This full NTE amount of $25,000,000 is eligible for DAC-GT cost recovery through the CPUC.

The second PPA includes the remaining 2 MW of solar generation and 8 MWh of battery storage and will become part of WestLight's general power supply portfolio. The NTE amount of $10,000,000 is not eligible for DAC-GT cost recovery but expected to be revenue positive.

Staff evaluated several procurement alternatives and determined that the recommended two-PPA structure provides the greatest execution certainty, preserves the existing interconnection configuration, enables clear DAC-GT compliance reporting through separate metering, and avoids the delays and additional customer costs associated with conducting a new solicitation.

While the second PPA is not eligible for DAC-GT cost recovery, staff determined that its size is modest relative to WestLight's overall resource portfolio and that the associated costs are reasonable given the procurement, operational, and customer benefits. Additional information regarding the financial impact is provided in the Fiscal Impact section.

Developer Qualifications
Renewable America LLC is an independent power producer specializing in renewable energy projects serving Community Choice Aggregators throughout California. The company has developed a portfolio of more than 228 MW of solar generation and 505 MWh of battery storage. The project seller is King Kettle Clean Power I LLC, which is a wholly-owned subsidiary of BlueRock Investments LLC. BlueRock Investments LLC and Renewable America LLC are both wholly owned subsidiaries of “your solar LLC” which will provide long-term ownership of the project. Staff has reviewed the developer's experience, financial backing, and project development plan and believe the project is well positioned to achieve commercial operation by the required date. Renewable America LLC was also the project developer of the Dos Palos Clean Power project.

Preliminary environmental studies, including biological, hydrological, and agricultural land compatibility assessments, have not identified any known fatal environmental constraints.

Renewable America anticipates compliance with the California Environmental Quality Act (CEQA) through preparation of an Initial Study/Mitigated Negative Declaration.

Renewable America LLC has committed to complying with applicable California prevailing wage requirements and utilizing state-approved apprenticeship programs during project construction.

FISCAL IMPACT
The Green Access Program is funded through Public Purpose Program (PPP) funds collected through PG&E's distribution rates. Pursuant to CPUC Decision D.18-06-027, Community Choice Aggregators (CCAs) administering DAC-GT programs are eligible for reimbursement of program administration costs and the above-market costs of eligible DAC-GT resources. 34 For electricity procurement, the CPUC reimburses only the portion of generation costs that exceed WestLight's standard residential energy supply costs (the "above-market" generation cost). WestLight receives quarterly reimbursement based on forecasted costs, with actual costs reconciled through an annual true-up process.

Under the proposed agreement structure, the 3 MW / 12 MWh (PPA 1) serving the Green Access Program is eligible for CPUC cost recovery. The companion 2 MW / 8 MWh (PPA 2), which will become part of WestLight's general power supply portfolio, is not eligible for DAC-GT cost recovery. Staff evaluated the financial impact of the companion PPA and determined that, because of the project's competitive pricing, the agreement is expected to be revenue positive over the contract term.

The 2MW PV + 8 MWh BESS (PPA 2) assumes no Resource Adequacy value and is subject to any future regulatory and market changes that could impact revenue generation. However, because the pricing is favorable to current market benchmarks and is not expected to impact customer rates, the second PPA is a low-risk strategy that assists WestLight to successfully fulfill our DAC-GT program capacity.

STRATEGIC PLAN
The Green Access Program supports the 2026 - 2030 Strategic Plan by advancing community solar and storage projects to improve resilience, affordability, and equity for income-qualified households.

Guiding Principle: Innovation
Strategic Policy: Distributed Energy Resource
ATTACHMENTS:

WestLight Energy - King Kettle Unit A Execution Version_Redacted.pdf WestLight Energy - King Kettle Unit B Execution Version_Redacted.pdf 35 RESOLUTION NO. _____________

WESTLIGHT ENERGY, COUNTY OF SAN MATEO, AND THE CITY OF LOS BANOS,

STATE OF CALIFORNIA

APPROVAL OF TWO POWER PURCHASE AGREEMENTS FOR THE GREEN ACCESS PROGRAM WITH A POWER DELIVERY TERM OF 20 YEARS STARTING AT A COMMERCIAL OPERATION DATE ON OR ABOUT DECEMBER 31, 2028, IN AN AMOUNT NOT-TO-EXCEED $35,000,000 (ACTION)
RESOLVED, by Westlight Energy of the County of San Mateo, and the City of Los Banos, State of California, (“Westlight”) that:

WHEREAS, WestLight Energy was formed as Peninsula Clean Energy on February 29, 2016, and adopted the name WestLight Energy on May 28, 2026; and WHEREAS, WestLight procures energy, renewable energy, carbon-free energy, resource adequacy and related energy market products and services on behalf of its customers; and WHEREAS, as a Program Administrator of the California Public Utilities Commission’s Disadvantaged Communities Green Tariff (DAC-GT) program, WestLight is required to procure eligible renewable resources to serve program customers; and WHEREAS, WestLight conducted a competitive solicitation to replace the Interim Resource contract with a new dedicated community solar resource needed to fully implement its DAC-GT Program and selected the King Kettle PV+BESS project, located in Kettleman City, California, for contract negotiations; and
WHEREAS, the proposed transaction consists of two Power Purchase Agreements with King Kettle Clean Power I LLC, totaling 5 MW of solar generation and 20MWh of battery energy storage; and
WHEREAS, execution of the proposed agreements will replace WestLight's remaining interim resource and complete implementation of the Agency’s current DAC-GT capacity allocation; NOW, THEREFORE, IT IS HEREBY DETERMINED AND ORDERED that the Board delegates authority to the Chief Executive Officer to execute two Power Purchase Agreements with King Kettle Clean Power I LLC, together with any necessary ancillary agreements, in a form approved by the General Counsel, for a power delivery term of up to twenty (20) years commencing upon commercial operation, in not to exceed of $35,000,000. 36 Execution Version

POWER PURCHASE AND SALE AGREEMENT

COVER SHEET
Seller: King Kettle Clean Power I LLC, a Delaware limited liability company Buyer: WestLight Energy, a California joint powers authority Description of Generating Facility and Storage Facility: A separately metered 3 MW solar photovoltaic electric generating facility located in Kings County, California, plus a separately metered 12 MWh and 3 MW AC energy storage facility with at least four (4) hours of continuous discharging at the maximum rate of discharge, located at the same Site as the Generating Facility in Kings County, California.

Guaranteed Commercial Operation Date: December 31, 2028 Milestones:

Milestone Expected Completion Date
Site Control April 2022
Conditional Use Permit
Interconnection Study Results August 2023
Obtain Full Capacity Deliverability Status Allocation N/A Executed Interconnection Agreement December 2023
Procure Major Equipment
Financial Close
Construction Start
Initial Synchronization
Deliverability Network Upgrades completed N/A
CAISO Commercial Operation
Commercial Operation Date December, 2028
37 Delivery Term: 20 Contract Years
Delivery Term Expected Energy:

Contract Year Expected Energy (MWh)
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
38 Contract Year Expected Energy (MWh)
19 20
Monthly Expected Energy:
1 Month Expected Energy (MWh)
January
February
March
April
May
June
July
August
September
October
November
December
Guaranteed Storage Capacity: 3 MW AC at four (4) hours of continuous discharging at the maximum rate of discharge (12 MWh).

Guaranteed PV Capacity: 3 MW AC capacity measured at the Delivery Point. 1 This table reflects Seller’s Expected Energy by calendar month in the first Contract Year, as if the first Contract Year begins on January first. The first Contract Year may begin on another date, per the terms of this Agreement. 39 Guaranteed Interconnection Capacity: 3 MW
Guaranteed Round-Trip Efficiency Rate:

Contract Year Guaranteed Efficiency Rate
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
40 Renewable Rate:

Contract Years Renewable Rate ($/MWh)
All
Storage Rate:

Contract Years Storage Rate ($/kW-month)
All
Guaranteed Storage Availability:

Product:
x PV Energy
x Discharging Energy
x Green Attributes: Portfolio Content Category 1
x Future Environmental Attributes
x Capacity Attributes, if applicable
x Storage Product
Scheduling Coordinator: Buyer or Buyer’s Agent.

Development Security:

Performance Security:
[Signatures on following page.]
41 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.

SELLER
King Kettle Clean Power I LLC
By: BlueRock Investments, LLC
Its Managing Member
By:

Name: Ardeshir Arian
Title: CEO
BUYER
WestLight Energy
By:

WestLight Executive Officer
Name:

Title:
42 i

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

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

1.2 Rules of Interpretation .......................................................................................... 23 ARTICLE 2 TERM; CONDITIONS PRECEDENT............................................................... 24

2.1 Contract Term....................................................................................................... 24

2.2 Conditions Precedent ............................................................................................ 25

2.3 Development; Construction; Progress Reports..................................................... 26

2.4 Remedial Action Plan ........................................................................................... 27

2.5 Facility Configuration........................................................................................... 27 ARTICLE 3 PURCHASE AND SALE ..................................................................................... 28

3.1 Sale of Product...................................................................................................... 28

3.2 Sale of Green Attributes........................................................................................ 28

3.3 Compensation ....................................................................................................... 28

3.4 Imbalance Energy ................................................................................................. 29

3.5 Ownership of Renewable Energy Incentives........................................................ 30

3.6 Future Environmental Attributes .......................................................................... 30

3.7 Test Energy ........................................................................................................... 30

3.8 Capacity Attributes ............................................................................................... 31

3.9 [Intentionally Omitted] ......................................................................................... 31

3.10 CEC Certification and Verification ...................................................................... 31

3.11 Eligibility .............................................................................................................. 32

3.12 California Renewables Portfolio Standard............................................................ 32

3.13 Compliance Expenditure Cap ............................................................................... 33

3.14 Guaranteed Interconnection Capacity................................................................... 34

3.15 CPUC Mid-Term Reliability Requirements ......................................................... 34

3.16 Buyer’s Re-Sale of Product .................................................................................. 34 ARTICLE 4 OBLIGATIONS AND DELIVERIES................................................................. 34

4.1 Delivery................................................................................................................. 34

4.2 Title and Risk of Loss........................................................................................... 35

4.3 Scheduling Coordinator Responsibilities.............................................................. 35

4.4 Forecasting............................................................................................................ 37

4.5 Dispatch Down/Curtailment ................................................................................. 38

4.6 Charging and Discharging Energy........................................................................ 40

4.7 [Intentionally Omitted] ......................................................................................... 42

4.8 Expected Energy and Guaranteed Energy Production.......................................... 42

4.9 WREGIS ............................................................................................................... 42

4.10 Financial Statements............................................................................................. 44

4.11 Access to Data....................................................................................................... 44

4.12 Storage Availability and Efficiency...................................................................... 46 43 ii

4.13 Storage Capacity Tests.......................................................................................... 46

4.14 Storage Facility Modifications.............................................................................. 47

4.15 Ancillary Services................................................................................................. 47

4.16 Workforce Agreement .......................................................................................... 47

4.17 Diverse Business Enterprises................................................................................ 47

4.18 Shared Facilities.................................................................................................... 48 ARTICLE 5 TAXES................................................................................................................... 48

5.1 Allocation of Taxes and Charges.......................................................................... 48

5.2 Cooperation........................................................................................................... 49

5.3 Ownership............................................................................................................. 49 ARTICLE 6 MAINTENANCE OF THE FACILITY ............................................................. 49

6.1 Maintenance of the Facility .................................................................................. 49

6.2 Maintenance of Health and Safety........................................................................ 50

6.3 Permits and Approvals.......................................................................................... 50

6.4 Energy to Serve Station Use ................................................................................. 50 ARTICLE 7 METERING.......................................................................................................... 51

7.1 Metering................................................................................................................ 51

7.2 Meter Verification................................................................................................. 52 ARTICLE 8 INVOICING AND PAYMENT; CREDIT......................................................... 52

8.1 Invoicing ............................................................................................................... 52

8.2 Payment................................................................................................................. 52

8.3 Books and Records ............................................................................................... 53

8.4 Payment Adjustments; Billing Errors................................................................... 53

8.5 Billing Disputes .................................................................................................... 53

8.6 Netting of Payments.............................................................................................. 54

8.7 Seller’s Development Security ............................................................................. 54

8.8 Seller’s Performance Security............................................................................... 54

8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral ................. 54 ARTICLE 9 NOTICES .............................................................................................................. 55

9.1 Addresses for the Delivery of Notices.................................................................. 55

9.2 Acceptable Means of Delivering Notice............................................................... 55 ARTICLE 10 FORCE MAJEURE............................................................................................ 56

10.1 Definition .............................................................................................................. 56

10.2 No Liability If a Force Majeure Event Occurs ..................................................... 57

10.3 Notice.................................................................................................................... 57

10.4 Termination Following Force Majeure Event....................................................... 57 44 iii
ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ................................................. 57

11.1 Events of Default .................................................................................................. 57

11.2 Remedies; Declaration of Early Termination Date............................................... 60

11.3 Damage Payment; Termination Payment ............................................................. 61

11.4 Notice of Payment of Termination Payment ........................................................ 62

11.5 Disputes With Respect to Termination Payment.................................................. 62

11.6 Limitation on Seller’s Ability to Make or Agree to Third-Party Sales from the Facility after Early Termination Date ............................................................. 62

11.7 Rights And Remedies Are Cumulative................................................................. 62

11.8 Mitigation.............................................................................................................. 62 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF
WARRANTIES............................................................................................. 63

12.1 No Consequential Damages.................................................................................. 63

12.2 Waiver and Exclusion of Other Damages............................................................. 63 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY...................... 64

13.1 Seller’s Representations and Warranties .............................................................. 64

13.2 Buyer’s Representations and Warranties.............................................................. 64

13.3 General Covenants................................................................................................ 65 ARTICLE 14 ASSIGNMENT ................................................................................................... 66

14.1 General Prohibition on Assignments.................................................................... 66

14.2 Permitted Assignment; Change of Control of Seller ............................................ 66

14.3 Permitted Assignment; Change of Control of Buyer............................................ 66

14.4 Buyer Financing Assignment................................................................................ 66 ARTICLE 15 LENDER ACCOMMODATIONS.................................................................... 67

15.1 Granting of Lender Interest................................................................................... 67

15.2 Rights of Lender ................................................................................................... 67

15.3 Cure Rights of Lender........................................................................................... 67 ARTICLE 16 DISPUTE RESOLUTION ................................................................................. 67

16.1 Governing Law ..................................................................................................... 67

16.2 Dispute Resolution................................................................................................ 67

16.3 Attorneys’ Fees..................................................................................................... 68

16.4 Venue .................................................................................................................... 68 ARTICLE 17 INDEMNIFICATION........................................................................................ 68

17.1 Indemnification..................................................................................................... 68

17.2 Claims................................................................................................................... 68 45 iv
ARTICLE 18 INSURANCE....................................................................................................... 69

18.1 Insurance ............................................................................................................... 69 ARTICLE 19 CONFIDENTIAL INFORMATION ................................................................ 70

19.1 Definition of Confidential Information................................................................. 70

19.2 Duty to Maintain Confidentiality.......................................................................... 70

19.3 Irreparable Injury; Remedies ................................................................................ 70

19.4 Disclosure to Lender............................................................................................. 71

19.5 Disclosure to Credit Rating Agency ..................................................................... 71

19.6 Public Statements.................................................................................................. 71 ARTICLE 20 MISCELLANEOUS ........................................................................................... 71

20.1 Entire Agreement; Integration; Exhibits............................................................... 71

20.2 Amendments......................................................................................................... 71

20.3 Time is of the Essence. ......................................................................................... 71

20.4 No Waiver............................................................................................................. 71

20.5 No Agency, Partnership, Joint Venture or Lease.................................................. 71

20.6 Severability ........................................................................................................... 72

20.7 Mobile-Sierra ........................................................................................................ 72

20.8 Counterparts.......................................................................................................... 72

20.9 Facsimile or Electronic Delivery .......................................................................... 72

20.10 Binding Effect....................................................................................................... 72

20.11 No Recourse to Members of Buyer ...................................................................... 72

20.12 Change in Electric Market Design........................................................................ 72 ARTICLE 21 CPUC MODIFIABLE STANDARD CONTRACT TERMS.......................... 73

21.1 STC 2: Bioenergy Transactions............................................................................ 73

21.2 STC 4: Confidentiality.......................................................................................... 73

21.3 STC 5: Contract Term........................................................................................... 74

21.4 STC 7: Performance Standards/Requirements...................................................... 75

21.5 STC 8: Product Definitions................................................................................... 78

21.6 STC 9: Non-Performance or Termination Penalties and Default Provisions....... 78

21.7 STC 12: Credit Terms........................................................................................... 84

21.8 STC 15: Contract Modifications........................................................................... 89

21.9 STC 16: Assignment............................................................................................. 89

21.10 STC 18: Application of Prevailing Wage ............................................................. 90 EXHIBITS:

Exhibit A Description of Facility
Exhibit B Facility Construction and Commercial Operation Exhibit C [Intentionally Omitted]
Exhibit D Guaranteed Energy Production Damages Calculation Exhibit E Progress Reporting Form
Exhibit F Buyout Option
46 v
Exhibit G-1 Form of Commercial Operation Date Certificate Exhibit G-2 Form of Installed Capacity Certificate
Exhibit H Form of Construction Start Date Certificate
Exhibit I Form of Letter of Credit
Exhibit J Insurance
Exhibit K [Intentionally Omitted]
Exhibit L L-1 Annual Energy Forecast
L-2 Monthly Expected Available Generating Capacity
L-3 Monthly Expected Available Storage Capacity
L-4 Monthly Expected PV Energy
Exhibit M Monthly Storage Availability
Exhibit N Storage Capacity Tests
Exhibit O Operating Restrictions
Exhibit P Metering Diagram
Exhibit Q RTE Shortfall Payments
Exhibit R Notices
Exhibit S Supply Chain Code of Conduct
47 Exhibit A - 1

POWER PURCHASE AND SALE AGREEMENT
This Power Purchase and Sale Agreement (“Agreement”) is entered into as of [_______________] (the “Effective Date”), between Seller and Buyer (each also referred to as a “Party” and collectively as the “Parties”).

RECITALS
WHEREAS, Seller intends to develop, design, construct, own or otherwise have control over, and operate the electric generating and energy storage facility as described in Exhibit A; and WHEREAS, Seller desires to sell, and Buyer desires to purchase, on the terms and conditions set forth in this Agreement, all Energy generated by the Generating Facility, all Green Attributes related to the generation of such Energy, all Capacity Attributes from the Facility, and all Storage Product;
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the following:

ARTICLE 1

DEFINITIONS

1.1 Contract Definitions. The following terms, when used herein with initial capitalization, shall have the meanings set forth below:
“AC” means alternating current.
“Accepted Compliance Costs” has the meaning set forth in Section 3.13. “Adjusted Energy Production” has the meaning set forth in Exhibit D. “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. “AGC” has the meaning set forth in the CAISO Tariff.
“Aggregate Capability Constraint” has the meaning set forth in the CAISO Tariff. “Agreement” has the meaning set forth in the Preamble and includes the Cover Sheet and any exhibits, schedules and any written supplements hereto. “Ancillary Services” means ancillary services as defined in the CAISO Tariff that are associated with the Storage Facility and that the Facility is capable of providing consistent with the Operating Restrictions, including Spinning Reserve, Non-Spinning Reserve, Regulation Up, and Regulation Down (as each is defined in the CAISO Tariff). “Assignment Agreement” has the meaning set forth in Section 14.4. 48 2
“Attestation” has the meaning set forth in Section 4.1(b). “Automated Dispatch System” or “ADS” has the meaning set forth in the CAISO Tariff. “Availability Incentive Payment” has the meaning set forth in the CAISO Tariff. “Availability Notice” means the lower of (a) Seller’s availability forecasts issued and updated pursuant to Section 4.4 with respect to the Available Storage Capacity and Available Storage Capability, and (b) availability information reported to CAISO through OMS. “Available Generating Capacity” means the capacity from the Generating Facility, expressed in whole MWs, that is available at a particular time to generate Energy. “Available Storage Capability” has the meaning defined in Exhibit M. “Available Storage Capacity” has the meaning defined in Exhibit M. “Bankrupt” means with respect to any entity, such entity that (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, (b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, (c) makes an assignment or any general arrangement for the benefit of creditors, (d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due.
“Bid” has the meaning set forth in the CAISO Tariff.
“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a Notice, or payment, or performing a specified action. “Buyer” has the meaning set forth on the Cover Sheet.
“Buyer Assignee” has the meaning set forth in Section 14.4. “Buyer Bid Curtailment” means any curtailment of the Generating Facility arising out of or resulting from the manner in which Buyer bids, offers or schedules the Generating Facility, the Energy or any Products, or in which Buyer fails to do so, where either all of the following (a) through (c) occurs, or (d) occurs:
(a) the CAISO provides notice, including through ADS, to a Party or the Scheduling Coordinator for the Generating Facility, requiring the Party to deliver less PV Energy from the Generating Facility than is reflected in the VER Forecast for the Generating Facility for a period of time;
49 3
(b) for the same time period as referenced in (a), Buyer or the Scheduling Coordinator for the Facility:
(i) did not submit a Self-Schedule or an Energy Supply Bid for the MW subject to the reduction; or
(ii) submitted an Energy Supply Bid and the CAISO notice referenced in (a) is solely a result of CAISO implementing the Energy Supply Bid; or (iii) submitted a Self-Schedule for less than the full amount of VER Forecast for the Generating Facility; and
(c) no other circumstances exist that constitute a Scheduled Maintenance, Forced Facility Outage, Force Majeure Event and/or a Curtailment Period during the same time period as referenced in (a); or
(d) during a period when all of the following occur: (i) Buyer submitted a Bid or Self-Schedule for Ancillary Services with respect to the Storage Facility for such Settlement Interval, (ii) is awarded an Ancillary Services Schedule by the CAISO with respect to Storage Facility for such Settlement Interval, (iii) the Generating Facility is instructed by the CAISO to follow the Dispatch Operating Target (as defined in the CAISO Tariff) other than due to a Curtailment Order, and (iv) the Generating Facility would have generated PV Energy in excess of the Dispatch Operating Target but for such instruction from the CAISO. “Buyer Curtailment Order” means the instruction from Buyer to Seller to reduce delivery of PV Energy by the amount, and for the period of time set forth in such order, for reasons unrelated to a Scheduled Maintenance, Forced Facility Outage, Force Majeure Event and/or Curtailment Order, which instruction may be communicated to Seller in writing by electronic notice or other commercially reasonable means.
“Buyer Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces delivery of PV Energy pursuant to or as a result of (i) Buyer Bid Curtailment or (ii) a Buyer Curtailment Order. “Buyer Default” means a Buyer Event of Default.
“Buyer’s WREGIS Account” has the meaning set forth in Section 4.9(a). “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
“CAISO Approved Meter” means a CAISO approved revenue quality meter or meters, CAISO approved data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, all Energy delivered by the Facility to the Delivery Point adjusted for or net of Electrical Losses and Station Use, in accordance with the CAISO Tariff.
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“CAISO Certification” means the certification and testing requirements for a storage facility, such as the Facility, as set forth in the CAISO Tariff that are applicable to the Facility, including certification and testing for all Ancillary Services, PMAX, and PMIN associated with such storage facility, that are applicable to the Facility. “CAISO Charges Invoice” has the meaning set forth in Section 4.3(d). “CAISO Commercial Operation” has the meaning of “Commercial Operation” set forth in the CAISO Tariff.
“CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
“CAISO Metered Entity” has the meaning set forth in the CAISO Tariff. “CAISO No Pay” has the meaning for the term “No Pay” as set forth in the CAISO Tariff. “CAISO Operating Order” means the “operating order” defined in Section 37.2.1.1 of the CAISO Tariff.
“CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC.
“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) 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 Energy that the Facility can generate and/or deliver to the CAISO Grid at a particular moment and that can be purchased, sold, traded or used for a Person’s legal or regulatory compliance under the CPUC or CAISO market rules, including Resource Adequacy Benefits and MTR Attributes. Capacity Attributes shall also include all rights to provide and all benefits related to the provision of Ancillary Services (as defined in the CAISO Tariff) and reactive power.
“Capacity Damages” has the meaning set forth in Exhibit B. “Capacity Test” or “CT” means the Commercial Operation Storage Capacity Test, Storage Capacity Test, or any other test conducted pursuant to Exhibit N. “CEC” means the California Energy Commission or its successor agency. “CEC Final Certification and Verification” means that the CEC has certified the Generating Facility as an Eligible Renewable Energy Resource for purposes of the California 51 5
Renewables Portfolio Standard, meeting all applicable requirements for certified facilities set forth in the RPS Eligibility Guidebook, Ninth Edition (or its successor), and that all Energy generated by the Generating Facility qualifies as generation from an Eligible Renewable Energy Resource. “CEC Precertification” means that the CEC has issued a precertification for the Generating Facility indicating that the planned operations of the Generating Facility would comply with applicable CEC requirements for CEC Final Certification and Verification. “Change of Control”, in the case of Seller, means any circumstance in which Seller’s Ultimate Parent ceases to be the Ultimate Parent or 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 its Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards the Ultimate Parent’s ownership interest in Seller unless the 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.

Notwithstanding the foregoing, (a) so long as the Ultimate Parent Controls Persons owning at least

1.5 MW of operating solar electricity generating and energy storage projects, a change in the Control of the Ultimate Parent, or (b) a change in the Control of Seller resulting from the exercise by Lender of its remedies under its financing agreements for the Facility with Seller or an Affiliate of Seller shall not be a Change of Control hereunder; provided that the entity acquiring Control of the Ultimate Parent or of Seller, directly or indirectly, is a Qualified Transferee and Buyer is given Notice of the Change of Control within five (5) Business Days of its occurrence. “Charging Energy” means all Energy, less Station Use and Electrical Losses, if any, delivered to the Storage Facility pursuant to a Charging Notice, as measured by the Storage Facility Meter.
“Charging Notice” means the operating instruction, and any subsequent updates, given by Buyer or the CAISO, directing the Storage Facility to charge at a specific MW rate to a specified Stored Energy Level; provided, any such operating instruction shall be in accordance with Section

4.6 and the Operating Restrictions. Any Charging Notice shall not constitute a Buyer Bid Curtailment, Buyer Curtailment Order, or Curtailment Order. “Co-located Resource” has the meaning set forth in the CAISO Tariff. “Commercial Operation” has the meaning set forth in Exhibit B. “Commercial Operation Date” has the meaning set forth in Exhibit B. “Commercial Operation Delay Damages” means an amount equal to (a) the Development Security amount required hereunder,
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“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 B. “Compliance Actions” has the meaning set forth in Section 3.13. “Compliance Expenditure Cap” has the meaning set forth in Section 3.13. “Confidential Information” has the meaning set forth in Section 19.1. “Construction Start” has the meaning set forth in Exhibit B. “Construction Start Date” has the meaning set forth in Exhibit B. “Contract Price” means each of the Renewable Rate and Storage Rate. “Contract Term” has the meaning set forth in Section 2.1(a). “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commercial Operation Date, and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. “Control” (including, with correlative meanings, the terms “Controlled by” and “under common Control with”), as used with respect to any Person, shall mean the direct or indirect right to cast more than 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 more than fifty percent (50%) of the equity or other ownership interest in such Person. “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 this Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating the Agreement. “Cover Sheet” means the cover sheet to this Agreement.
“CPM Soft Offer Cap” has the meaning set forth in the CAISO Tariff. “CPUC” means the California Public Utilities Commission, or successor entity. “CPUC-Penalized Shortfall” has the meaning set forth in Section 3.9(b)(i). “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, in either case by S&P or Moody’s. If ratings by S&P and Moody’s are not equivalent, the lower rating shall apply. 53 7
“CRS” has the meaning set forth in Section 4.1(b).
“Curtailment Order” means any of the following:
(a) CAISO orders, directs, alerts, or provides notice to a Party, including a CAISO Operating Order, to curtail Energy deliveries for any reason other than a Buyer Bid Curtailment; (b) a curtailment ordered by the Participating Transmission Owner or distribution operator (if the Facility is interconnected to distribution or sub-transmission system) for reasons including, but not limited to, (i) any situation that affects normal function of the electric system including, but not limited to, any abnormal condition that requires action to prevent circumstances such as equipment damage, loss of load, or abnormal voltage conditions, or (ii) any warning, forecast or anticipation of conditions or situations that jeopardize the Participating Transmission Owner’s or distribution operator’s electric system integrity or the integrity of other systems to which the Participating Transmission Owner is connected; (c) a curtailment ordered by the Participating Transmission Owner due to scheduled or unscheduled maintenance on the Participating Transmission Owner’s transmission facilities that prevents either Party from receiving or delivering Energy to the Delivery Point; or (d) a curtailment in accordance with Seller’s obligations under its Interconnection Agreement with the Participating Transmission Owner or distribution operator.

If Buyer or Buyer’s Scheduling Coordinator submitted a Self-Schedule and/or an Energy Supply Bid in its final CAISO market participation in respect of a given time period that clears, in full, the applicable CAISO market for the full amount of Energy forecasted to be produced by or delivered from the Facility for such time period, any notice from the CAISO having the effect of requiring a reduction during the same time period is a Curtailment Order, not a Buyer Bid Curtailment.
“Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces energy from the Facility pursuant to a Curtailment Order. “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 a liquidated damages payment 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 set forth in Section 11.3(a). “Day-Ahead Forecast” has the meaning set forth in Section 4.4(c). “Day-Ahead LMP” means the LMP for the Day-Ahead Market. “Day-Ahead Market” has the meaning set forth in the CAISO Tariff. “Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff. 54 8
“Deemed Delivered Energy” means the amount of Energy that qualifies as PCC1, expressed in MWh, that the Generating Facility would have produced and delivered to the Storage Facility or the Delivery Point, but that is not produced by the Generating Facility and delivered to the Storage Facility or the Delivery Point during a Buyer Curtailment Period, which amount shall be equal to (a) the VER Forecast expressed in MWh, applicable to the Buyer Curtailment Period, or (b) if there is no VER Forecast available or Seller demonstrates to Buyer’s reasonable satisfaction that the VER Forecast does not represent an accurate forecast of generation from the Generating Facility, the amount determined by a third party reasonably acceptable to Buyer using an industry standard forecasting or back-casting methodology to determine the potential generation of the Generating Facility as a function of Available Generating Capacity, solar insolation and panel temperature, and other pertinent data for the period of time during the Buyer Curtailment Period, in either case less the amount of PV Energy delivered to the Delivery Point during the Buyer Curtailment Period; provided, if the applicable difference is negative, the Deemed Delivered Energy shall be zero (0). Once the sum of Facility Energy plus Deemed Delivered Energy is equal to one hundred ten percent (110%) of the Expected Energy in any Contract Year, there shall be no additional Deemed Delivered Energy in such Contract Year. “Defaulting Party” has the meaning set forth in Section 11.1(a). “Deficient Month” has the meaning set forth in Section 4.9(e). “Delivery Point” means the PNode designated by the CAISO for the Generating Facility and the PNode designated by the CAISO for the Storage Facility, as applicable. “Delivery Term” shall mean the period of Contract Years specified on the Cover Sheet, beginning on the Commercial Operation Date, unless terminated earlier in accordance with the terms and conditions of this Agreement.
“Development Cure Period” has the meaning set forth in Exhibit B. “Development Security” means (i) cash or (ii) a Letter of Credit in the amount specified for the Development Security on the Cover Sheet, deposited with Buyer in conformance with Section 8.7.
“Discharging Energy” means all Energy delivered to the Delivery Point from the Storage Facility, net of Station Use and Electrical Losses, as measured by the Storage Facility Meter. All Discharging Energy will have originally been delivered to the Storage Facility as Charging Energy. “Discharging Notice” means the operating instruction, and any subsequent updates, given by Buyer to Seller, directing the Storage Facility to discharge Discharging Energy at a specific MWh rate to a specified Stored Energy Level, provided, any such operating instruction or updates shall be in accordance with Section 4.6 and the Operating Restrictions. “Diverse Business Enterprises” means a women, minority, disabled veteran, lesbian, gay, bisexual and/or transgender business enterprise, as more particularly set forth in CPUC General Order 156.
“Early Termination Date” has the meaning set forth in Section 11.2. 55 9
“Effective Date” has the meaning set forth on the Preamble. “Electrical Losses” means all transmission or transformation losses between the Facility and the Delivery Point, including losses associated with (i) delivery of PV Energy to the Delivery Point, (ii) delivery of Charging Energy to the Storage Facility, and (iii) delivery of Discharging Energy to the Delivery Point.
“Eligible Intermittent Resources Protocol” or “EIRP” has the meaning set forth in the CAISO Tariff.
“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. “EMS” has the meaning set forth in the CAISO Tariff.
“Energy” means metered electrical energy measured in MWh. “Energy Supply Bid” has the meaning set forth in the CAISO Tariff. “Estimated Placed-In-Service Date” has the meaning set forth in Section 2.1(b). “Event of Default” has the meaning set forth in Section 11.1. “Excess MWh” has the meaning set forth in Section 3.3(c). “Expected Energy” has the meaning set forth in Section 4.8. “Facility” means the Generating Facility and the Storage Facility, as described more fully in Exhibit A attached hereto.
“Facility Energy” means the sum of PV Energy and Discharging Energy during any Settlement Interval or Settlement Period, as measured by the CAISO Approved Meter. “FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Flexible Capacity” has the meaning set forth in the CAISO Tariff. “Flexible Capacity Category” has the meaning set forth in the CAISO Tariff. “Flexible Resource Adequacy Benefits” means the attributes, however defined, of a resource that can be used to satisfy the flexible resource adequacy obligations of a load serving entity, including Flexible Capacity.
“FMM Schedule” has the meaning set forth in the CAISO Tariff. “Force Majeure Event” has the meaning set forth in Section 10.1. 56 10
“Forced Facility Outage” means an unexpected failure of one or more components of the Facility or any outage on the Transmission System that prevents Seller from generating or delivering power to the Delivery Point or providing Storage Product and that is not the result of a Force Majeure Event.
“Forward Certificate Transfers” has the meaning set forth in the WREGIS Operating Rules.
“Full Network Model” has the meaning set forth in the CAISO Tariff. “Future Environmental Attributes” shall mean any and all emissions, air quality or other environmental attributes (other than Green Attributes or Renewable Energy Incentives) 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) that are attributable, now, or in the future, to the generation of electrical energy by the Facility. Future Environmental Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) investment or production tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. “Gains” means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner. Factors used in determining the economic benefit 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, settlement prices for comparable transactions at liquid trading hubs (e.g., NP-15), all of which should be calculated for the remaining Contract Term, and includes the value of Green Attributes and Capacity Attributes.
“Generating Facility” means the separately metered 3 MW portion of the photovoltaic generating facility described on the Cover Sheet and in Exhibit A, located at the Site and including mechanical equipment and associated facilities and equipment required to deliver PV Energy to the Delivery Point or to the Storage Facility, including Seller’s rights and interests in Shared Facilities; provided, the “Generating Facility” does not include the Storage Facility or the portions of Shared Facilities other than Seller’s rights and interests thereto. 57 11
“Generating Facility Meter” means the CAISO Approved Meter (with a 0.3 accuracy class), sufficient for monitoring, recording and reporting, in real time, the amount of PV Energy generated by the Generating Facility and calculated as delivered to Buyer at the Delivery Point.

For clarity, the Generating Facility may contain multiple measurement devices and calculations 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 calculations and the aggregated data of all such measurement devices and calculations, 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; 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, 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; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) production tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. If the Facility is a biomass or landfill gas facility and Seller receives any tradable Green Attributes based on the greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Facility.
“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. “Greenhouse Gas” or “GHG” has the meaning set forth in the GHG Regulations or in any other applicable Laws.
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“Green-e Certified” means the Green Attributes provided to Buyer pursuant to this 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 3.5, updated December 15, 2020, as may be further amended from time to time. “Guaranteed Commercial Operation Date” has the meaning set forth in Exhibit B. “Guaranteed Construction Start Date” has the meaning set forth in Exhibit B. “Guaranteed Energy Production” has the meaning set forth in Section 4.8. “Guaranteed Interconnection Capacity” means the interconnection rights provided under the Interconnection Agreement in the amount set forth on the Cover Sheet. “Guaranteed PV Capacity” means the amount set forth on the Cover Sheet, as may be adjusted pursuant to Exhibits B and G-2.
“Guaranteed Round-Trip Efficiency” means the minimum guaranteed Efficiency Rate of the Storage Facility required during each month commencing upon Commercial Operation and continuing throughout the Delivery Term, as set forth on the Cover Sheet. “Guaranteed Storage Availability” has the meaning set forth on the Cover Sheet. “Guaranteed Storage Capacity” has the meaning set forth on the Cover Sheet, as may be adjusted pursuant to Exhibit B and Exhibit G-2.
“Hybrid Resource” has the meaning set forth in the CAISO Tariff. “Imbalance Energy” means the amount of Energy, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy, including Uninstructed Imbalance Energy (as defined in the CAISO Tariff). “Indemnified Party” has the meaning set forth in Section 17.1. “Indemnifying Party” has the meaning set forth in Section 17.1. “Initial Synchronization” means the initial delivery of Energy from the Facility to the interconnection point specified in the Interconnection Agreement. “Installed PV Capacity” means the actual generating capacity of the Facility, measured at the Facility PNode and adjusted for ambient conditions on the date of the performance test, not to exceed the Guaranteed PV Capacity, as evidenced by a certificate substantially in the form attached as Exhibit G-2 hereto provided by Seller to Buyer. “Installed Storage Capacity” means the maximum dependable operating capability of the Storage Facility to discharge electric energy for four (4) consecutive hours at the maximum discharge rate (up to but not in excess of the Guaranteed Storage Capacity), as measured in MW 59 13
at the Delivery Point, that achieves Commercial Operation, as evidenced by a certificate substantially in the form attached as Exhibit G-2 hereto provided by Seller to Buyer. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “Interconnection Agreement” means the interconnection agreement entered into by Seller pursuant to which the Facility will be interconnected with the Transmission System, and pursuant to which Seller’s Interconnection Facilities and any other Interconnection Facilities will be constructed, operated and maintained during the Contract Term. “Interconnection Capacity Limit” means the maximum instantaneous amount of Energy that is permitted to be delivered to the Delivery Point. “Interconnection Delay Notice” has the meaning set forth in Section 2.1(b). “Interconnection Facilities” means the interconnection facilities, control and protective devices and metering facilities required to connect the Facility with the Transmission System (or PTO’s distribution system, as applicable) in accordance with the Interconnection Agreement. “Interest Rate” has the meaning set forth in Section 8.2. “Internal Revenue Service Requirements” means those requirements set forth in Section 48 of the Internal Revenue Code and associated regulations promulgated by the Internal Revenue Service that pertain to the eligibility of energy property to qualify for the federal investment tax credit.
“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 February 29, 2016 under which Buyer is organized as a Joint Powers Authority in accordance with the Joint Powers Act.
“kW” means kilowatts in alternating current, unless expressly stated in terms of direct current.
“kWh” means 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, and includes the CAISO Tariff.
“Lender” means, collectively, (A) in the case of Seller, any Person (i) providing senior or subordinated construction, interim 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, public debt or any other form (including financing or refinancing provided to a member or other direct or indirect 60 14
owner of Seller), including any tax equity investor directly or indirectly providing financing or refinancing for the Facility, and any trustee or agent 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, and (B) in the case of Buyer, any Person (i) providing senior or subordinated short-term or long-term debt financing or refinancing for or in connection with the business or operations of Buyer, whether that financing or refinancing takes the form of private debt, public debt or any other form, and any trustee or agent acting on their behalf, and/or (ii) providing interest rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of the foregoing obligations. “Letter(s) of Credit” means one or more irrevocable, standby letters of credit issued by a U.S. commercial bank or a U.S. branch of a foreign bank 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 I and acceptable to Buyer.
“Licensed Professional Engineer” means an independent, professional engineer (a) reasonably acceptable to Buyer, (b) who has been retained by, or for the benefit of, the Lenders, as their “independent engineer” for the purpose of financing the Facility, or (c) who (i) is licensed to practice engineering in the State of California, (ii) has training and experience in the power industry specific to the technology of the Facility, (iii) is licensed in an appropriate engineering discipline for the required certification being made, and (iv) unless otherwise approved by Buyer, is not a representative of a consultant, engineer, contractor, designer or other individual involved in the development of the Facility or of a manufacturer or supplier of any equipment installed at the Facility.
“Local Capacity Area” has the meaning set forth in the CAISO Tariff. “Local Capacity Area Resource” has the meaning set forth in the CAISO Tariff. “Local Capacity Area Resource Adequacy Benefits” means the attributes, however defined, of a Local Capacity Area Resource that can be used to satisfy the local resource adequacy obligations of a load serving entity.
“Locational Marginal Price” or “LMP” has the meaning set forth in the CAISO Tariff. “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 this 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, settlement prices for comparable transactions at liquid trading hubs (e.g., NYMEX), all of which should be 61 15
calculated for the remaining Contract Term and must include the value of Green Attributes, Capacity Attributes, and Renewable Energy Incentives.
“Lost Output” has the meaning set forth in Exhibit D.
“Main Power Transformer” means the Facility’s main step-up transformer as depicted on the one-line diagram set forth in Exhibit A.
“Milestones” means the development activities for significant permitting, interconnection, financing and construction milestones set forth in the Cover Sheet. “Monthly Storage Availability” has the meaning set forth in Exhibit M. “Moody’s” means Moody’s Investors Service, Inc., or its successor. “MTR Attributes” has the meaning set forth in Section 3.15(a). “MTR Requirements” has the meaning set forth in Section 3.15. “MW” means megawatts measured in alternating current, unless expressly stated in terms of direct current.
“MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Negative LMP” means, in any Settlement Interval in the Real-Time Market, the LMP is less than zero dollars ($0).
“Negative LMP Costs” has the meaning set forth in Section 3.3(c). “Net Qualifying Capacity” or “NQC” has the meaning set forth in the CAISO Tariff. “Network Upgrades” has the meaning set forth in the CAISO Tariff. “Non-Availability Charge” has the meaning set forth in the CAISO Tariff. “Non-Defaulting Party” has the meaning set forth in Section 11.2. “Notice” shall, unless otherwise specified in this Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail).
“Operating Restrictions” means the requirements and limitations set forth on Exhibit O. “Other Facility(ies)” means the electric generating or energy storage facility(ies), other than the Facility, utilizing any facilities shared with the Facility to enable delivery of energy from each such other generating or storage facility to the Delivery Point, together with all materials, equipment systems, structures, features and improvements necessary to produce electric energy at each such other generating or storage facility, but (i) with respect to the Shared Facilities, 62 16
excluding Seller’s interests therein and (ii) excluding the real property on which each such other generating or storage facility is, or will be located, land rights and interests in land. “Partial Capacity Deliverability Status” or “PCDS” has the meaning set forth in the CAISO Tariff.
“Participating Transmission Owner” or “PTO” means an entity that owns, operates and maintains transmission or distribution lines and associated facilities and/or has entitlements to use certain transmission or distribution lines and associated facilities where the Facility is interconnected. For purposes of this Agreement, the Participating Transmission Owner is Pacific Gas and Electric Company.
“Party” has the meaning set forth in the Preamble.
“Performance Measurement Period” has the meaning set forth in Section 4.8. “Performance Security” means (i) cash, or (ii) a Letter of Credit, in the amount specified for the Performance Security on the Cover Sheet, deposited with Buyer in conformance with Section 8.8.
“Performance Security End Date” has the meaning set forth in Section 8.8. “Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
“PMAX” means the applicable CAISO-certified maximum operating level of the Storage Facility.
“PMIN” means the applicable CAISO-certified minimum operating level of the Storage Facility.
“PNode” has the meaning set forth in the CAISO Tariff.
“Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law.
“Product” has the meaning set forth on the Cover Sheet. “Progress Report” means a progress report including the items set forth in Exhibit E. “Project” has the same meaning as Generating Facility.
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“Prudent Operating Practice” means the practices, methods and standards of professional care, skill and diligence engaged in or approved by a significant portion of the electric power industry in the Western United States for facilities of similar size, type, and design, that, in the exercise of reasonable judgment, in light of the facts known at the time, would have been expected to accomplish results consistent with Law, reliability, safety, environmental protection, applicable codes, and standards of economy and expedition. Prudent Operating Practices are not necessarily defined as the optimal standard practice method or act to the exclusion of others, but rather refer to a range of actions reasonable under the circumstances. “PV Energy” means all Energy produced by the Generating Facility, as measured by the Generating Facility Meter after adjustment to exclude (a) all Electrical Losses, and (b) all Energy that serves Station Use.
“Qualified Reporting Entity” has the meaning set forth in the WREGIS Operating Rules. “Qualified Transferee” means an entity that (a) (i) has a Tangible Net Worth of one hundred fifty million dollars ($150,000,000) or (ii) has (A) a Tangible Net Worth of fifty million dollars ($50,000,000) and (B) a Credit Rating of A2 or higher by Moody’s or A- or higher by S&P, if rated by only one such entity, or a Credit Rating of A2 or higher by Moody’s and A- or higher by S&P, if rated by both such entities, and, in any case, (b) is not a public utility regulated by the CPUC or an Affiliate thereof, and (c) has, or retains to operate the Facility a Person that has, at least five (5) years of experience operating at least two (2) or more electricity generating facilities of the same technology and with at least as much Installed PV Capacity as the Generating Facility, and at least three (3) years of experience operating at least two (2) or more storage facilities of the same technology and with at least as much installed storage capacity as the Installed Storage Capacity.
“Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “RA Plan” has the meaning set forth for “Resource Adequacy Plan” in the CAISO Tariff with respect to Buyer’s monthly or annual Resource Adequacy showings to the CAISO and CPUC. “RA Substitute Capacity” has the meaning set forth in the CAISO Tariff. “Real-Time Market” has the meaning set forth in the CAISO Tariff. “Reimbursable Station Use” has the meaning set forth in Section 6.4(i). “Reimbursable Station Use Costs” means costs incurred by Buyer in connection with Reimbursable Station Use for any applicable month, if any, including any CAISO costs or Imbalance Energy costs incurred to serve Station Use.
“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.
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“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, including a cash grant available under Section 1603 of Division B of the American Recovery and Reinvestment Act of 2009, provided in lieu of federal Tax credits 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 are not a Green Attribute or a Future Environmental Attribute.
“Renewable Rate” means the price per MWh of PV Energy that qualifies as PCC1, as set forth on the Cover Sheet, and as may be adjusted by Section 3.3. ““Resource Adequacy Benefits” means the rights and privileges attached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Ruling, and shall include System Resource Adequacy Benefits, Flexible Resource Adequacy Benefits, SOD Benefits and Local Capacity Area Resource Adequacy Benefits associated with the Facility.
“Resource Adequacy Rulings” means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-04-040, 06-06-064, 06-07-031, 07-06-029, 08-06-031, 09-06-028, 10-06-036, 11-06-022, 12-06-025, 13-06-024, 14-06-050, 15-06-063, 16-06-045, 17-06-027, 18-06-030, 18- 06-031, 19-02-022, 19-06-026, 19-10-021, 20-01-004, 20-03-016, 20-06-002, 20-06-028, 20-06- 031, 20-12-006, 21-06-029, 21-07-014, 22-03-034, 22-06-050, 22-12-028, 22-08-039, 23-04-010 and any other existing or subsequent ruling or decision, or any other resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority, however described, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time throughout the Contract Term. “Resource ID” has the meaning set forth in the CAISO Tariff. “Round-Trip Efficiency” has the meaning set forth in Exhibit Q. “Round-Trip Efficiency Factor” has the meaning set forth in Exhibit Q. “RTD Instructed Imbalance Energy” has the meaning set forth in the CAISO Tariff. “RTE Shortfall Payment” has the meaning set forth in Exhibit Q. “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill Companies, Inc.) or its successor.
“SCADA” means the standard supervisory control and data acquisition systems to be installed by Seller as part of the Facility, including those system components that enable Seller to receive ADS and AGC instructions from the CAISO or similar instructions from Buyer’s SC.
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“Schedule” has the meaning set forth in the CAISO Tariff. “Scheduled Energy” means the Energy reflected in a final Day-Ahead Schedule, FMM Schedule, and/or any other financially binding Schedule, market instruction or dispatch for the Facility for a given period of time.
“Scheduled Maintenance” has the meaning set forth in Section 6.1(a). “Scheduling Coordinator” or “SC” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time.
“Security Interest” has the meaning set forth in Section 8.9. “Self-Schedule” has the meaning set forth in the CAISO Tariff. “Seller” has the meaning set forth on the Cover Sheet.
“Seller’s WREGIS Account” has the meaning set forth in Section 4.9(a). “Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other. If the Non-Defaulting Party’s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to the Non-Defaulting Party. If the Non-Defaulting Party’s Gains exceed its Costs and Losses, then the Settlement Amount shall be zero dollars ($0).
“Settlement Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff, which as of the Effective Date is the period beginning at the start of the hour and ending at the end of the hour. “Shared Facilities” means the gen-tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of Energy to the Delivery Point, including the Interconnection Facilities and the Interconnection Agreement itself, if applicable, that are used in common with third parties or by Seller for electric generation or storage facilities owned by Seller other than the Facility. “Showing Deadline” means the initial deadline that a Scheduling Coordinator must meet to submit its RA Plan, as established by CAISO or any other Governmental Authority. For illustrative purposes only, as of the Effective Date, the CAISO monthly Showing Deadline is approximately forty-five (45) days prior to the RA delivery month. “Showing Month” means the calendar month of the Delivery Term that is the subject of the RA Plan, as set forth in the Resource Adequacy Rulings and outlined in the CAISO Tariff. For illustrative purposes only, as of the Effective Date, the monthly RA Plan made in June is for the Showing Month of August.
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“Site” means the real property on which the Facility is or will be located, as further described in Exhibit A, and as shall be updated by Seller at the time Seller provides an executed Construction Start Date Certificate to Buyer, in substantially the form of the Form of Construction Start Date Certificate in Exhibit H.
“Site Control” means that Seller: (a) owns or has the option to purchase the Site; (b) is the lessee or has the option to lease the Site; or (c) is the holder of an easement or an option for an easement, right-of-way grant, or similar instrument with respect to the Site. “SOC” or “State of Charge” means (a) the Stored Energy Level relative to (b) the 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 Storage Facility. “SOD” or “Slice-of-Day” has the meaning set forth in the Resource Adequacy Rulings. “Station Use” has the meaning given in the tariff of the retail provider of energy for the Facility and reflects:
(a) the electric energy that is used within the Facility (including to power the lights, motors, control systems, thermal regulation equipment and other electrical loads) and that is necessary for operation of the Facility; and
(b) the electric energy that is consumed within the Facility’s electric energy distribution system as losses (other than any losses that are Electrical Losses). “Storage Availability Adjustment” has the meaning set forth in Exhibit M. “Storage Capacity” means the maximum dependable operating capability of the Storage Facility (expressed in MW AC) to discharge electric energy at the maximum discharge rate that can be sustained for four (4) consecutive hours, as the same is to be established as of the Commercial Operation Date and adjusted from time to time pursuant to Exhibit N to reflect the results of the most recently performed Storage Capacity Test (including the Commercial Operation Storage Capacity Test); provided, the Storage Capacity shall not at any time exceed the lesser of (a) the Guaranteed Storage Capacity (with respect to a Commercial Operation Storage Capacity Test), and (b) the Storage Facility’s then current PMAX in the Storage Facility’s CAISO’s Master Data File and Resource Data Template (or successor data systems) (with respect to any other Storage Capacity Test).
“Storage Capacity Payment” has the meaning set forth in Section 3.3(e). “Storage Capacity Test” or “SCT” means any test or retest of the capacity of the Storage Facility conducted in accordance with the testing procedures, requirements and protocols set forth in Exhibit N.
“Storage Facility” means the separately metered 12 MWh and 3 MW AC portion of the energy storage facility described on the Cover Sheet and in Exhibit A (including the operational requirements of the energy storage facility), located at the Site and including mechanical 67 21
equipment and associated facilities and equipment and Seller’s rights and interests in Shared Facilities required to deliver the Storage Product, but excluding any portions of Shared Facilities other than Seller’s rights and interests thereto.
“Storage Facility Meter” means the CAISO Approved Meter (with a 0.3 accuracy class), sufficient for monitoring, recording and reporting, in real time, the amount of (i) Charging Energy, (ii) Discharging Energy and (iii) Energy that serves Station Use. For clarity, the Facility may include multiple measurement devices and calculations 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 calculations and the aggregated data of all such measurement devices and calculations, taken together.
“Storage Product” means (a) the ability of the Storage Facility to accept and store Charging Energy and to deliver Discharging Energy in accordance with the terms of this Agreement, (b) Capacity Attributes, if any, (c) Storage Capacity, and (d) Ancillary Services (as defined in the CAISO Tariff), if any, in each case arising from or relating to the Storage Facility. “Storage Rate” has the meaning set forth on the Cover Sheet. “Stored Energy” means the electric energy in the Storage Facility available to be discharged as Discharging Energy.
“Stored Energy Level” means, at a particular time, the amount of electric energy in the Storage Facility available to be discharged as Discharging Energy, expressed in MWh. “Subsequent Purchasers” means the purchaser or recipient of Product from Buyer in any conveyance, re-sale or remarketing of Product by Buyer. “Supplementary Capacity Test Protocol” has the meaning set forth in Exhibit N. “Supply Chain Code” has the meaning set forth in Exhibit S. “Supply Plan” has the meaning set forth in the CAISO Tariff. “System Emergency” means any condition that: (a) requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) preserve Transmission System reliability, and (b) directly affects the ability of any Party to perform under any term or condition in this Agreement, in whole or in part.
“System Resource Adequacy Benefits” means the attributes, however defined, of a resource that can be used to satisfy the resource adequacy obligations of a load serving entity, other than Flexible Resource Adequacy Benefits and Local Capacity Area Resource Adequacy Benefits. “Tangible Net Worth” means the tangible assets (for example, not including intangibles such as goodwill and rights to patents or royalties) that remain after deducting liabilities as determined in accordance with generally accepted accounting principles. 68 22
“Tax” or “Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Terminated Transaction” has the meaning set forth in Section 11.2. “Termination Payment” has the meaning set forth in Section 11.3. “Test Energy” means the Energy delivered (a) commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Energy from the Facility to the CAISO and (ii) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to parallel and (b) ending upon the occurrence of the Commercial Operation Date.
“Transformer Failure” means a failure of all or part of the Main Power Transformer that results in the Facility being unable to deliver Facility Energy during such failure, and such failure was not caused by Seller and could not have been avoided through the exercise of Prudent Operating Practices.
“Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service downstream from the Delivery Point.
“Ultimate Parent” means the entity that Controls, directly or indirectly, Seller and that is not Controlled by any other entity. As of the Effective Date, the Ultimate Parent is “Variable Energy Resource” or “VER” has the meaning set forth in the CAISO Tariff. “Variable Energy Resource Forecast” or “VER Forecast” means, for a given period, the final forecast of the Energy to be produced by the Facility prepared by the CAISO in accordance with the Eligible Intermittent Resources Protocol.
“WECC” means the Western Electricity Coordinating Council or its successor. “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
“WREGIS Certificate Deficit” has the meaning set forth in Section 4.9(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.
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“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of January 4, 2021, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.

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

ARTICLE 2
TERM; CONDITIONS PRECEDENT

2.1 Contract Term.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions set forth herein (“Contract Term”). (b) Seller shall provide Notice to Buyer within ten (10) Business Days of Seller’s receipt of the fully executed Interconnection Agreement that includes an estimated placed-in-service date (“Estimated Placed-In-Service Date”) for Seller’s interconnection facilities that is later than the date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet (“Interconnection Delay Notice”).
(i) If, despite Seller’s commercially reasonable efforts to have the Estimated Placed-In-Service Date be on or before the estimated date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet, such Estimated Placed-In-Service Date is not more than ninety (90) days after the date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet, the Initial Synchronization Milestone date and all subsequent Milestone dates shall be extended by the number of days by which the Estimated Placed-In-Service Date is later than the Initial Synchronization Milestone date. (ii) If, despite Seller’s commercially reasonable efforts to have the Estimated Placed-In-Service Date be on or before the estimated date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet, such Estimated Placed-In-Service Date is more than ninety (90) days after the date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet, then Seller may include in the Interconnection Delay Notice a revised Milestone schedule (including Guaranteed Construction Start Date and Guaranteed Commercial Operation Date), and Buyer shall have the right, in its sole discretion, to either accept such revised schedule and dates or terminate this Agreement by providing Notice to Seller within ninety (90) days after Buyer’s receipt of the Interconnection Delay Notice, and retain fifty percent (50%) of the Development Security as liquidated damages.
(c) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality 71 25
obligations of the Parties under Article 19 shall remain in full force and effect for three (3) years following the termination of this Agreement, and all indemnity and audit rights shall remain in full force and effect for two (2) years following the termination of this Agreement.

2.2 Conditions Precedent. 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 installed and commissioned generating equipment with a nameplate capacity of no less than ninety-five percent (95%) of the Guaranteed PV Capacity; (b) Seller shall have installed and commissioned storage equipment with a capacity of no less than ninety-five percent (95%) of the Guaranteed Storage Capacity; (c) Seller shall have delivered to Buyer certificates from a Licensed Professional Engineer substantially in the form of Exhibits G-1 and G-2; (d) A Participating Generator Agreement and a Meter Service Agreement (with the Facility configured as a CAISO Metered Entity) between Seller and CAISO shall have been executed and delivered and be in full force and effect, and a copy of each such agreement delivered to Buyer;
(e) An Interconnection Agreement between Seller and the PTO shall have been executed and delivered and be in full force and effect and a copy of the Interconnection Agreement, including all modifications and amendments thereto, delivered to Buyer; (f) Authorization to parallel the Facility was obtained by the Participating Transmission Owner prior to the Commercial Operation Date; (g) The Transmission Provider has provided documentation supporting full unrestricted release for Commercial Operation by the Commercial Operation Date; (h) The Facility has achieved CAISO Commercial Operation; (i) Buyer, or its designee, is the Scheduling Coordinator for the Facility; provided, if this requirement is not met because of Buyer’s (or its designee’s) actions or failure to take actions, and this is the only requirement for Commercial Operation that has not been met, Seller shall be entitled to a day for day extension of the Guaranteed Commercial Operation Date for such Buyer (or its designee) actions or failure to act; (j) Seller shall have delivered to Buyer a copy of all environmental impact reports (i.e. EIRs), studies (i.e. EISs) or assessments (i.e. EIAs) prepared by or obtained by Seller or its Affiliates, the conditional use permit or other principal land use approval for the Facility, and a certificate signed by an authorized representative of Seller stating that Seller is in compliance with the requirements of the conditional use permit or other principal land use approval; 72 26
(k) Seller has received CEC Precertification;
(l) 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, Qualified Reporting Entity 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;
(m) Seller shall have caused the Generating Facility and the Storage Facility to be included in the Full Network Model and has ability to offer Bids into CAISO Day-Ahead Markets and Real-Time Markets in respect of each of the Generating Facility and the Storage Facility;
(n) Seller shall have completed all necessary steps to provide Ancillary Services from the Storage Facility, including completing the certification and testing requirements in Section 8 and Appendix K of the CAISO Tariff;
(o) Seller has delivered to Buyer a copy of the most recent generation resource report (including as prepared by an independent engineer in connection with the financing of the construction or permanent operation of the Facility) and the most up-to-date 8760 hourly generation forecast;
(p) Seller has delivered the Performance Security to Buyer; (q) Seller has paid Buyer for all Daily Delay Damages and Commercial Operation Delay Damages owing under this Agreement, if any; (r) Seller has delivered to Buyer a copy of the project labor agreement, or similar agreement, in compliance with the requirements of Section 4.16 of this Agreement; (s) Seller has demonstrated compliance with Section 7.1, including installation of the Storage Facility Meter, Station Use Meter, and CLAP Meters, in accordance with this Agreement; and
(t) Seller has delivered to Buyer a plan that is reasonably acceptable to Buyer for the proper recycling and disposal of all project components, equipment, and materials at the end of the useful life of the Facility.

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 E. Seller 73 27
shall also provide Buyer with any reasonably requested documentation directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request by Seller. (b) Seller shall ensure that all materials, products and components used in constructing, installing and operating the Facility throughout the Contract 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 two (2) or more Milestones, or misses any one (1) Seller shall submit to Buyer, within ten (10) Business Days of such second missed Milestone completion date (or the thirtieth (30th) day after the missed Milestone completion date, as applicable), 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), and 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 this Agreement. If the missed Milestone(s) is not the Guaranteed Construction Start Date or the Guaranteed Commercial Operation Date, and so long as Seller complies with its obligations under this Section 2.4, then Seller shall not be considered in default of its obligations under this Agreement as a result of missing such Milestone(s).

2.5 Facility Configuration. The Parties agree that the Facility configuration will be as Hybrid Resources with single CAISO Resource IDs and single CAISO approved revenue quality meter for the Facility; provided, Seller shall design, construct and maintain the Facility to have the capability to receive Charging Energy from the CAISO Grid at the Delivery Point. Seller shall design and configure the Facility metering and equipment (although not necessarily the software associated therewith) to accommodate being able to function in a Hybrid Resource configuration using the best available information at the time of meter installation. Not more than once per Contract Year during the Delivery Term, Buyer may request that Seller convert the Storage Facility from a Hybrid Resource to a Co-located Resource (or, if previously converted to a Co-located Resource, back to a Hybrid Resource). Upon such request, Seller shall determine in its commercially reasonable discretion, taking into account any operational or design limitations of the Facility and any CAISO approved process for conversion of a Hybrid Resource to a Co-Located Resource or vice versa, whether such a conversion is possible and, if so, the anticipated costs associated with such a conversion. Seller shall provide an estimate of such costs and expenses, including lost revenue, and the associated scope of work, if such a conversion is possible, for Buyer’s review within thirty (30) days after Buyer’s request for the conversion. If Buyer agrees to be responsible for the reasonably incurred and documented costs and expenses associated with 74 28
the identified scope of work, Seller shall request that CAISO convert the Storage Facility from the configuration then in effect to the other configuration. Buyer shall reimburse Seller for its reasonably incurred and documented costs and expenses associated with the identified scope of work, including lost revenue, to effectuate the conversion and the Parties shall cooperate in good faith to amend this Agreement to accommodate such conversion while maintaining the expected economic benefit to Seller arising out of this Agreement. Once Buyer approves the costs and expenses for reimbursement, the conversion shall be completed within the timeline in the CAISO’s administrative process. In addition to the other limitations specified in this Section 2.5, if such request or such conversion of the Storage Facility from a hybrid solar and storage facility to a storage facility co-located with solar is not permitted by CAISO or any Governmental Authority, or reasonably could be expected to have an adverse impact on the expected economic benefit to Seller arising out of this Agreement, including any physical modification of the Facility, that is not compensated for by Buyer, Seller shall provide notice of the same to Buyer with a reasonably detailed explanation and Seller shall not be required to effectuate the conversion.

ARTICLE 3

PURCHASE AND SALE

3.1 Sale of Product.
(a) Subject to the terms and conditions of this Agreement, during the period (i) commencing upon Initial Synchronization with respect to the Generating Facility and (ii) commencing upon Commercial Operation with respect to the Storage Facility, and, in each case, continuing throughout the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller all of the Product produced by the Facility. Buyer shall re-sell all of the Energy purchased hereunder (other than Charging Energy), and may, at its sole discretion, re-sell or use for another purpose all or a portion of the remainder of the Product, provided, such resale or use for another purpose will not relieve Buyer of any of its obligations under this Agreement.
(b) Except for Deemed Delivered Energy, Buyer has no obligation to pay Seller for any Product that is not delivered to the Delivery Point as a result of any circumstance, including, an outage of the Facility, a Force Majeure Event, or a Curtailment Order. In no event shall Seller have the right to procure any element of the Product from sources other than the Facility for sale or delivery to Buyer under this Agreement.

3.2 Sale of Green Attributes. Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, all of the Green Attributes produced by the Facility during the Delivery Term, and any Green Attributes associated with Test Energy.

3.3 Compensation. Buyer shall compensate Seller for the Product in accordance with this Section 3.3.
(a) Buyer shall pay Seller the Renewable Rate for each MWh of PV Energy that qualifies as PCC1 and is delivered to the Delivery Point or the Storage Facility, plus Deemed Delivered Energy, if any, up to of the Expected Energy for such Contract Year.
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(b) If, at any point in any Contract Year following CAISO Commercial Operation, the amount of PV Energy delivered to the Delivery Point or the Storage Facility plus the amount of Deemed Delivered Energy exceeds of the
Expected Energy for such Contract Year, for each additional MWh of PV Energy that qualifies as PCC1 or Deemed Delivered Energy, if any, delivered to Buyer in such Contract Year, the price to be paid shall be the lesser of (i) of the Renewable Rate or (ii) the Day-Ahead LMP for the applicable Settlement Interval. If, at any point in any Contract Year, the amount of PV Energy delivered to the Delivery Point or the Storage Facility plus the amount of Deemed Delivered Energy exceeds of the Expected
Energy for such Contract Year, the price to be paid for additional Adjusted Facility Energy or Deemed Delivered Energy shall be equal to the lesser of (a) the Day-Ahead LMP for the applicable Settlement Interval or (b) $0.00/MWh.
(c) If during any Settlement Interval, Seller delivers PV Energy in excess of the product of the Installed PV Capacity and the duration of the Settlement Interval, expressed in hours (“Excess MWh”), then the price applicable to all such Excess MWh in such Settlement Interval shall be zero dollars ($0), and if there is a Negative LMP during such Settlement Interval, Seller shall pay to Buyer an amount equal to the absolute value of the Negative LMP times the number of such Excess MWh (“Negative LMP Costs”).
(d) The price for PV Energy that does not qualify as PCC1 shall be the lesser of (i) the Renewable Rate, or (ii) the Day-Ahead LMP for the applicable Settlement Interval. (e) For the Storage Product, for each month commencing on Commercial Operation and throughout the Delivery Term, Buyer shall pay Seller an amount equal to [(A x B x C) – D], (such amount, the “Storage Capacity Payment”), where:

A = the Storage Rate
B = the current Storage Capacity (in kW)
C = the applicable Storage Availability Adjustment determined in accordance with Exhibit M
D = the applicable RTE Shortfall Payment determined in accordance with Exhibit Q (if applicable)
The Storage Capacity Payment constitutes the entirety of the amount due to Seller from Buyer for the Storage Product.

3.4 Imbalance Energy. With respect to the Generating Facility, as a Variable Energy Resource, Buyer and Seller recognize that from time to time the amount of PV Energy will deviate from the amount of Scheduled Energy. Buyer and Seller shall cooperate to minimize charges and imbalances associated with Imbalance Energy caused by the variances in solar insolation to the extent possible. To the extent there are such deviations, any CAISO costs or revenues assessed as a result of such Imbalance Energy shall be solely for the account of Buyer; provided, to the extent such deviations are the result of any cause other than variances in solar insolation, and with respect to any deviations by the Storage Facility from its Schedule, any CAISO costs assessed as a result 76 30
of such Imbalance Energy shall be solely for the account of Seller, and all CAISO revenue associated with such deviations shall be solely for the account of Buyer. CAISO costs and revenues in connection with RTD Instructed Imbalance Energy shall be for Buyer’s account except to the extent such RTD Instructed Imbalance Energy was the result of a change in the Forecasted Product after the deadline for submitting Schedules in the Day-Ahead Market, in which case the CAISO costs shall be for Seller’s account, and all CAISO revenue associated with such deviations shall be solely for the account of Buyer.

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

3.6 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Effective Date, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Buyer shall have the right to obtain such Future Environmental Attributes without any adjustment to the Contract Price paid by Buyer under this Agreement. Subject to Section 3.13, Seller shall take all reasonable actions necessary to realize the full value of such Future Environmental Attributes for the benefit of Buyer, and shall cooperate with Buyer in Buyer’s efforts to do the same.
(b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.6(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 incremental expenses incurred by Seller (not including Seller’s overhead costs for administrative tasks) associated with providing such Future Environmental Attributes; provided, the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.

3.7 Test Energy.
(a) No less than forty-five (45) days, and no more than one hundred eighty (180) days, prior to the first day on which Test Energy is expected to be available from the Generating Facility, Seller shall notify Buyer of the anticipated commencement date of the availability of the Test Energy.
(b) Seller shall sell and Buyer shall purchase from Seller all Test Energy and any associated Green Attributes and Capacity Attributes on an as-available basis. As compensation for any such Test Energy, Green Attributes, and Capacity Attributes, Buyer shall pay Seller for 77 31
each MWh of Test Energy an amount equal to fifty percent (50%) of the Renewable Rate for the first Contract Year.

3.8 Capacity Attributes.
(a) Subject to Section 3.13, Seller shall use commercially reasonable efforts to cause the Facility to qualifies to provide Capacity Attributes. Throughout the Delivery Term, and in connection with any Test Energy, subject to Section 3.13, Seller hereby covenants and agrees to transfer all Capacity Attributes, if any, to Buyer, at no additional cost or charge to Buyer, except to the extent of any Accepted Compliance Costs.
(b) Subject to Section 3.13, Seller shall take all commercially reasonable actions, including complying with all applicable registration and reporting requirements, and execute any and all documents or instruments necessary to enable Buyer to use all of the Capacity Attributes committed by Seller to Buyer pursuant to this Agreement. (c) For the duration of the Delivery Term, Seller shall maintain an interconnection capacity under its Interconnection Agreement of at least the amount of the Guaranteed Interconnection Capacity.
(d) If the Facility qualifies to provide Resource Adequacy Benefits, Seller shall provide Notice to Buyer not less than fifteen (15) Business Days prior to each Showing Deadline confirming the Net Qualifying Capacity of the Facility that is able to be shown on Buyer’s monthly or annual RA Plan, as applicable. If applicable, Seller shall provide RA Substitute Capacity in accordance with applicable CAISO requirements in connection with Seller’s Facility outages.

Seller acknowledges and agrees that any failure by Seller to provide such RA Substitute Capacity may result in CAISO rejecting or cancelling Scheduled Maintenance or other outage of the Facility. If applicable, Buyer shall notify Seller within three (3) Business Days after becoming aware of an obligation by Seller to provide RA Substitute Capacity. Upon request by Seller, Buyer shall use commercially reasonable efforts to secure, on Seller’s behalf, RA Substitute Capacity; provided, Seller shall reimburse Buyer for all out-of-pocket costs, including broker and outside counsel costs, associated with such RA Substitute Capacity.

3.9 [Intentionally Omitted].

3.10 CEC Certification and Verification. Subject to Section 3.13, Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Precertification and CEC Final Certification and Verification for the Facility. 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 CEC Final 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 CEC Final Certification and Verification. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s application for CEC Precertification or CEC Final Certification and Verification for the Facility. For the first one hundred eighty (180) days of the Delivery Term, provided, Seller has obtained and maintained CEC Precertification, Buyer shall pay Seller the Renewable Rate for PV Energy that qualifies as PCC1 and the lower of (i) the 78 32
Renewable Rate or (ii) the Day-Ahead LMP for PV Energy that does not qualify as PCC1, according to Section 3.3, regardless of whether Seller has obtained CEC Final Certification and Verification. If Seller has not obtained CEC Final Certification and Verification within one hundred eighty (180) days after the Commercial Operation Date, Buyer will compensate Seller for the PV Energy, regardless of PCC1 eligibility, at the lower of (i) the Renewable Rate, as adjusted according to Section 3.3, or (ii) the Day-Ahead LMP, for the remainder of the Delivery Term, or until Seller obtains CEC Final Certification and Verification. If Seller obtains CEC Final Certification and Verification after one hundred eighty (180) days after the Commercial Operation Date, Buyer will thereafter begin paying Seller the Renewable Rate for PV Energy that qualifies as PCC1 according to Section 3.3, and, if such CEC Final Certification and Verification relates back to all Energy delivered by Seller during the Delivery Term, will reimburse Seller for the difference between (x) any reduced amounts paid to Seller for PV Energy under this Section 3.10 due to Seller’s failure to obtain CEC Final Certification and Verification within one hundred eighty (180) days after the Commercial Operation Date, and (y) the amount that would have been paid to Seller had Seller timely obtained CEC Final Certification and Verification within one hundred eighty (180) days after the Commercial Operation Date. If Seller has not obtained CEC Final Certification and Verification within one (1) year of the Commercial Operation Date, then an Event of Default shall occur, Buyer shall have all remedies available under this Agreement, including under Section 11.2, and, in the event that Buyer terminates this Agreement under Section 11.2, Seller shall reimburse Buyer, in addition to any other amounts owed, in an amount equal to the difference between (a) the amount paid by Buyer to Seller for PV Energy during the first one hundred eighty (180) days of the Delivery Term, and (b) the amount that would have been paid if the price for energy delivered during the first one hundred eighty (180) days of the Delivery Term were the Day Ahead LMP.

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

3.12 California Renewables Portfolio Standard. Subject to Section 3.13, Seller shall also take all other actions necessary to ensure that the 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 California statute or by the CPUC or CEC from time to time.

3.13 Compliance Expenditure Cap. If Seller establishes to Buyer’s reasonable satisfaction that a change in Laws occurring after the Effective Date has increased Seller’s cost above the cost that could reasonably have been contemplated as of the Effective Date to take all actions to comply with Seller’s obligations under the Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of (as applicable), the items listed in Sections 3.13(a), (b), (c), and (d), then the Parties agree that the maximum amount of costs and expenses Seller shall be required to bear during the Delivery Term shall be capped at Twenty Five 79 33
Thousand Dollars ($25,000.00) per MW of Guaranteed PV Capacity cumulatively during the Delivery Term (“Compliance Expenditure Cap”):
(a) CEC Certification and Verification;
(b) Green Attributes;
(c) Future Environmental Attributes; and,
(d) Capacity Attributes.

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”.

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.

Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all of the costs that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs, 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 3.13 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, these Compliance Actions for the remainder of the Contract Term.

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 reasonable documentation of such costs from Seller.

Any failure by Seller to operate the Facility in accordance with Prudent Operating Practice, or to meet availability or other operational metrics or requirements established by CAISO or the CPUC (including as part of a change of Law) that apply generally to the Facility and facilities similar to the Facility, shall not be treated as a Compliance Action subject to the Compliance Expenditure Cap for all purposes of this Agreement.

The term “commercially reasonable efforts” as used in Sections 3.11 and 4.9(h) means efforts consistent with and subject to this Section 3.13.

3.14 Guaranteed Interconnection Capacity. Seller shall enable the Aggregate Capability Constraint and sub-Aggregate Capability Constraints with CAISO so as to ensure that the Buyer has the exclusive right to use the Guaranteed Interconnection Capacity. 80 34

3.15 CPUC Mid-Term Reliability Requirements. The Parties acknowledge that Buyer is entering into this Agreement to satisfy a portion of its obligations to procure capacity to meet mid-term reliability requirements specified by the CPUC in CPUC Decision (“D.”) 21-06-035, D.23-02-040, and related CPUC orders and decisions (“MTR Requirements”). Seller represents and warrants to Buyer that:
(a) During the Delivery Term, the Product includes the exclusive right to claim the Capacity Attributes of the Facility as an incremental resource for purposes of CPUC Decision 21-06-035 and other MTR Requirements (“MTR Attributes”); (b) Seller has not and will not sell, assign or transfer the right to claim procurement of the Capacity Attributes of the Facility as an incremental resource for purposes of CPUC Decision 21-06-035 and other MTR Requirements to any other person or entity during the Delivery Term; and
(c) Seller will provide to Buyer additional information and documentation reasonably available to Seller on a commercially reasonable basis if necessary to enable Buyer to demonstrate that the Product meets the procurement mandates set forth in the MTR Requirements.

3.16 Buyer’s Re-Sale of Product. Buyer shall have the exclusive right in its sole discretion to convey, use, market, or sell the Product, or any part of the Product, to any Subsequent Purchaser; and Buyer shall have the right to all revenues generated from the conveyance, use, re-sale or remarketing of the Product, or any part of the Product. If the CAISO or CPUC develops a centralized capacity market, Buyer shall have the exclusive right to offer, bid, or otherwise submit the Capacity Attributes for re-sale into such market, and Buyer shall retain and receive all revenues from such re-sale. Seller shall take all commercially reasonable actions and execute all documents or instruments reasonably necessary to allow Subsequent Purchasers to use such resold Product, but without increasing Seller’s obligations or liabilities under this Agreement. If Buyer incurs any liability to a Subsequent Purchaser due to the failure of Seller to comply with this Section 3.16, Seller shall be liable to Buyer for the amounts Seller would have owed Buyer under this Agreement if Buyer had not resold the Product.

ARTICLE 4

OBLIGATIONS AND DELIVERIES

4.1 Delivery.
(a) Energy. Subject to the terms and conditions of this Agreement, Seller shall make available and Buyer shall accept at the Delivery Point all Product. Each Party shall perform all obligations under this Agreement, including all generation, scheduling, and transmission services in compliance with (i) the CAISO Tariff, (ii) WECC scheduling practices, and (iii) Prudent Operating Practice.
(b) Green Attributes. Seller hereby provides and conveys all Green Attributes associated with the Facility as part of the Product being delivered. 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. Upon request of Buyer, Seller shall submit a Green-e® Energy Tracking 81 35
Attestation Form (“Attestation”) for Product delivered under this Agreement to the Center for Resource Solutions (“CRS”) at https://www.tfaforms.com/4652008 or its successor. The Attestation shall be submitted in accordance with the requirements of CRS and shall be submitted within thirty (30) days of Buyer’s request or the last day of the month in which the applicable Energy was generated, whichever is later.

4.2 Title and Risk of Loss.
(a) Energy. Title to and risk of loss related to the Facility Energy shall pass and transfer from Seller to Buyer at the Delivery Point. Title to and risk of loss related to the Charging Energy shall pass and transfer from Buyer to Seller at the Storage Facility Meter. (b) Green Attributes. Title to and risk of loss related to the Green Attributes shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS.

4.3 Scheduling Coordinator Responsibilities.
(a) Scheduling Coordinator for the Facility. Prior to Commercial Operation, Seller shall be the Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for both the delivery and the receipt of the Product at the Delivery Point. Upon Commercial Operation, Buyer shall be the Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for both the delivery and the receipt of the Product at the Delivery Point. At least thirty (30) days prior to the anticipated date of Commercial Operation, (i) Seller shall take all actions and execute and deliver to Buyer and the CAISO all documents necessary to authorize or designate Buyer as the Facility’s Scheduling Coordinator effective as of Commercial Operation, and (ii) Buyer shall, and shall cause its designee to, take all actions and execute and deliver to Seller and the CAISO all documents necessary to authorize or designate Buyer or its designee as the Scheduling Coordinator for the Facility effective as of Commercial Operation. On and after Commercial Operation, Seller shall not authorize or designate any other party to act as the Facility’s Scheduling Coordinator, nor shall Seller perform for its own benefit the duties of Scheduling Coordinator, and Seller shall not revoke Buyer’s authorization to act as the Facility’s Scheduling Coordinator unless agreed to by Buyer. Buyer (as the Facility’s SC) shall submit Schedules to the CAISO in accordance with this Agreement and the applicable CAISO Tariff, protocols and Scheduling practices for Product or load, as applicable, on a day-ahead, hour-ahead, fifteen-minute market or real time basis, as determined by Buyer. (b) Notices. Following Commercial Operation, Buyer (as the Facility’s SC) shall provide Seller with access to a web-based system through which Seller shall submit to Buyer and the CAISO all notices and updates required under the CAISO Tariff regarding the Facility’s status, including, but not limited to, all outage requests, Forced Facility Outages, Forced Facility Outage reports, clearance requests, or must offer waiver forms. Seller will cooperate with Buyer to provide such notices and updates. If the web-based system is not available, Seller shall promptly submit such information to Buyer and the CAISO (in order of preference) telephonically, by electronic mail, or facsimile transmission to the personnel designated to receive such information. 82 36
(c) CAISO Costs and Revenues. Following Commercial Operation and except as otherwise set forth below and in Sections 3.4 and 3.7, Buyer (as Scheduling Coordinator for the Facility) shall be responsible for CAISO costs (including penalties, Imbalance Energy costs or revenues, and other charges) and shall be entitled to all CAISO revenues (including credits, Imbalance Energy revenues or costs, and other payments, except as otherwise provided in this Agreement), including revenues associated with CAISO dispatches, bid cost recovery, Inter-SC Trade credits, or other credits in respect of the Product Scheduled or delivered from the Facility.

Seller shall be responsible for all CAISO penalties or fees (including costs associated with Imbalance Energy, as set forth in Section 3.4, and CAISO No Pays) resulting from any failure by Seller to abide by the CAISO Tariff or this Agreement (except to the extent such non-compliance is caused by Buyer’s failure to perform its duties as Scheduling Coordinator for the Facility following Commercial Operation). The Parties agree that any Availability Incentive Payments are for the benefit of the Buyer and for Buyer’s account and that any Non-Availability Charges are the responsibility of the Seller and for Seller’s account (except to the extent any Non-Availability Charges are incurred due to Buyer’s failure to perform its duties as Scheduling Coordinator for the Facility). In addition, if after Commercial Operation, the CAISO implements or has implemented any sanction or penalty related to scheduling, outage reporting, or generator operation, and any such sanctions or penalties are imposed upon the Facility or to Buyer as Scheduling Coordinator due to the actions or inactions of Seller, the cost of the sanctions or penalties shall be the Seller’s responsibility.
(d) CAISO Settlements. Buyer (as the Facility’s SC) shall be responsible for all settlement functions with the CAISO related to the Facility after Commercial Operation. Buyer shall render a separate invoice to Seller for any CAISO charges or penalties (“CAISO Charges Invoice”) for which Seller is responsible under this Agreement, including Section 3.4, which shall be offset with any charges or penalties for which Buyer is responsible. CAISO Charges Invoices shall be rendered after settlement information becomes available from the CAISO that identifies any CAISO charges. Notwithstanding the foregoing, Seller acknowledges that the CAISO will issue additional invoices reflecting CAISO adjustments to such CAISO charges. Buyer will review, validate, and if requested by Seller under Section 4.3(e) below, dispute any charges that are the responsibility of Seller in a timely manner and consistent with Buyer’s existing settlement processes for charges that are Buyer’s responsibilities. Subject to Seller’s right to dispute and to have Buyer pursue the dispute of any such invoices, Seller shall pay the amount of CAISO Charges Invoices within ten (10) Business Days of Seller’s receipt of the CAISO Charges Invoice. If Seller fails to pay such CAISO Charges Invoice within that period, Buyer may net or offset any amounts owing to it for these CAISO Charges Invoices against any future amounts it may owe to Seller under this Agreement. The obligations under this section with respect to payment of CAISO Charges Invoices shall survive the expiration or termination of this Agreement. (e) Dispute Costs. Buyer (as the Facility’s SC) may be required by Seller to dispute CAISO settlements in respect of the Facility following Commercial Operation. Seller agrees to pay Buyer’s costs and expenses (including reasonable attorneys’ fees) associated with its involvement with such CAISO disputes to the extent they relate to CAISO charges payable by Seller with respect to the Facility that Seller has directed Buyer to dispute. (f) Terminating Buyer’s Designation as Scheduling Coordinator. At least thirty (30) days prior to expiration of this Agreement or as soon as reasonably practicable upon an earlier 83 37
termination of this Agreement, the Parties will take all actions necessary to terminate the designation of Buyer as Scheduling Coordinator for the Facility as of 11:59 p.m. on such expiration date.
(g) Master Data File and Resource Data Template. Seller shall provide the data to the CAISO (and to Buyer) that is required for the CAISO’s Master Data File and Resource Data Template (or successor data systems) for this Facility consistent with this Agreement. Neither Party shall change such data without the other Party’s prior written consent, not to be unreasonably withheld.
(h) NERC Reliability Standards. Following Commercial Operation, Buyer (as Scheduling Coordinator) shall cooperate reasonably with Seller to the extent necessary to enable Seller to comply, and for Seller to demonstrate Seller’s compliance with, NERC reliability standards. This cooperation shall include the provision of information in Buyer’s possession that Buyer (as Scheduling Coordinator) has provided to the CAISO related to the Facility or actions taken by Buyer (as Scheduling Coordinator) related to Seller’s compliance with NERC reliability standards.

4.4 Forecasting. Seller shall provide the forecasts described below. Seller’s (i) Available Generating Capacity, (ii) Available Storage Capacity, and (iii) Available Storage Capability forecasts (items (i), (ii), and (iii) collectively referred to as the “Forecasted Product”) shall include availability and updated status of key equipment for the Facility. Seller shall use commercially reasonable efforts to forecast the Forecasted Product and expected PV Energy of the Facility accurately and to transmit such information in a format reasonably acceptable to Buyer (or Buyer’s designee).
(a) Annual Forecast of Monthly Expected PV Energy. No less than ninety (90) days before (i) the first day of the first Contract Year of the Delivery Term and (ii) the beginning of each calendar year for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of monthly expected PV Energy, by hour, for the following calendar year in the form attached hereto as Exhibit L-1 or as reasonably requested by Buyer.
(b) Monthly Forecast of Available Generating Capacity, Available Storage Capacity, and Available Storage Capability. No less than thirty (30) days before CAISO Commercial Operation, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer and Buyer’s designee (if applicable) a non-binding forecast of the hourly Forecasted Product, and expected PV Energy, for each day of the following month in the forms attached hereto as Exhibits L-2, L-3 and L-4, respectively, or as reasonably requested by Buyer.
(c) Daily Forecast. By 5:30 AM Pacific Prevailing Time on the Business Day immediately preceding the date of delivery, Seller shall provide Buyer with a non-binding forecast of the Forecasted Product for each hour of the immediately succeeding day (“Day-Ahead Forecast”). A Day-Ahead Forecast provided in a day prior to any non-Business Day(s) shall include non-binding forecasts for the immediate day, each succeeding non-Business Day and the next Business Day. Each Day-Ahead Forecast shall clearly identify, for each hour, Seller’s best 84 38
estimate of the Available Generating Capacity (or if requested by Buyer, the monthly expected PV Energy), Available Storage Capacity, and Available Storage Capability. (d) Real-Time Forecast. During the period commencing upon CAISO Commercial Operation and continuing throughout the Delivery Term, Seller shall notify Buyer of any changes in Forecasted Product of one (1) MW or MWh or more, whether due to Forced Facility Outage, Force Majeure Event or other cause, as soon as reasonably possible, but no later than one (1) hour prior to the deadline for submitting Schedules to the CAISO in accordance with the rules for participation in the Real-Time Market. If the Forecasted Product changes by at least one (1) MW as of a time that is less than one (1) hour prior to the Real-Time Market deadline, but before such deadline, then Seller must notify Buyer as soon as reasonably possible. Such Notices shall contain information regarding the beginning date and time of the event resulting in the change in Available Generating Capacity, Available Storage Capacity, and/or Available Storage Capability, as applicable, the expected end date and time of such event, the expected Available Generating Capacity, Available Storage Capacity, and/or Available Storage Capability, as applicable, in MW, and any other information required by the CAISO or reasonably requested by Buyer. With respect to any Forced Facility Outage, Seller shall use commercially reasonable efforts to notify Buyer of such outage within ten (10) minutes of the commencement of the Forced Facility Outage. Seller shall inform Buyer of any developments that are reasonably likely to affect either the duration of such outage or the availability of the Facility during or after the end of such outage. These Notices and changes to Available Generating Capacity, Available Storage Capacity, and/or Available Storage Capability shall be communicated in a method acceptable to Buyer; provided, Buyer specifies the method no later than sixty (60) days prior to the effective date of such requirement.

In the event Buyer fails to provide Notice of an acceptable method for communications under this Section 4.4(d), then Seller shall send such communications by telephone and e-mail to Buyer. (e) Hybrid Resource Forecast Requirements. In the event that the Storage Facility and the Generating Facility are in Hybrid Resource configuration, Seller shall use commercially reasonable efforts to provide such information as is needed by Buyer or the CAISO to fully make use of Hybrid Resource functionality, or as is otherwise reasonably requested by Buyer.

4.5 Dispatch Down/Curtailment.
(a) General. Seller agrees to reduce the Generating Facility’s generation by the amount and for the period set forth in any Curtailment Order, Buyer Curtailment Order, or notice received from CAISO in respect of a Buyer Bid Curtailment. Buyer has no obligation to purchase or pay for any Product delivered in violation of any Curtailment Order, Buyer Curtailment Order, or notice received from CAISO in respect of a Buyer Bid Curtailment, or for any Product that could not be delivered to the Delivery Point due to a Force Majeure Event. (b) Buyer Curtailment. Buyer shall have the right to order Seller to curtail deliveries of PV Energy or Discharging Energy to the Delivery Point for reasons unrelated to Force Majeure Events or Curtailment Orders pursuant to a dispatch notice delivered to Seller, provided, Buyer shall pay Seller for all Deemed Delivered Energy associated with all Buyer Curtailment Periods at the applicable Renewable Rate.
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(c) Failure to Comply. If Seller fails to comply with a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, then, for each MWh of Facility Energy that is delivered to the Delivery Point in contradiction to the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, Seller shall pay Buyer for each such MWh at an amount equal to the sum of (A) + (B) + (C), where: (A) is the amount, if any, paid to Seller by Buyer for delivery of such MWh and, (B) is an amount equal to the absolute value of the Negative LMP, if any, for the Buyer Curtailment Period or Curtailment Period, times the amount of MWh of Facility Energy delivered to the Delivery Point in contradiction to the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, and (C) is any penalties or other charges resulting from Seller’s failure to comply with the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order. (d) Seller Equipment Required for Operating Instruction Communications.

Seller shall acquire, install, and maintain such facilities, communications links and other equipment, and implement such protocols and practices, as necessary to respond to and follow operating instructions from the CAISO and Buyer's SC, including an electronic signal conveying real time and intra-day instructions, to operate the Facility as directed by Buyer from time to time in accordance with this Agreement and/or a Governmental Authority, including to implement a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order in accordance with the methodologies applicable to the Facility and used to transmit such instructions. If at any time during the period commencing upon CAISO Commercial Operation and continuing throughout the Delivery Term, Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with methodologies applicable to the Facility as required by CAISO or reasonably determined by Buyer to be applicable consistent with Prudent Operating Practices, Seller shall take the steps necessary to become compliant as soon as commercially reasonably possible. Seller shall promptly repair and replace as necessary such facilities, communication links or other equipment, and shall notify Buyer as soon as Seller discovers any defect. If Buyer notifies Seller of the need for maintenance, repair, or replacement of any such facilities, communication links or other equipment, Seller shall repair or replace such equipment as necessary within five (5) days of receipt of such Notice; provided, if Seller is unable to do so, then Seller shall make such repair or replacement as soon as reasonably practical. Seller shall be liable pursuant to Section 4.5(c) for failure to comply with a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, during the time that Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with applicable methodologies. A Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order communication via such systems and facilities shall have the same force and effect on Seller as any other form of communication.

4.6 Charging and Discharging Energy.
(a) Buyer will be the Scheduling Coordinator for the Storage Facility and will have sole and exclusive rights to direct Seller to charge and discharge the Storage Facility and to bid and schedule the Storage Facility in CAISO markets, subject to the terms of this Agreement, including the Operating Restrictions.
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(b) Seller shall comply with Charging Notices and Discharging Notices that comply with the terms of this Agreement. Upon receipt of a valid Charging Notice, Seller shall accept the Charging Energy at, the Storage Facility in accordance with the terms of this Agreement (including the Operating Restrictions), at the times and in the quantities specified in such Charging Notice. Charging Energy may be supplied from the Generation Facility, the CAISO Grid or the local utility distribution system. Upon receipt of a valid Discharging Notice, Seller shall deliver the Discharging Energy to the Delivery Point in accordance with the terms of this Agreement (including the Operating Restrictions), at the times and in the quantities specified in such Discharging Notice.
(c) Buyer will have the right to direct Seller to charge the Storage Facility seven (7) days per week and twenty-four (24) hours per day (including holidays), by providing Charging Notices to Seller electronically, provided, Buyer’s right to issue Charging Notices is subject to the requirements and limitations set forth in this Agreement, including the Operating Restrictions.

Each Charging Notice issued in accordance with this Agreement will be effective unless and until Buyer modifies such Charging Notice by providing Seller with an updated Charging Notice. (d) Seller shall not charge the Storage Facility during the Contract Term other than pursuant to a valid Charging Notice or in connection with a Storage Capacity Test (for which Seller may request a Charging Notice from Buyer), or pursuant to a notice from CAISO, the PTO, or any other Governmental Authority. If, during the Contract Term, Seller (i) charges the Storage Facility to a Stored Energy Level greater than the Stored Energy Level provided for in the Charging Notice (except as permitted in the first sentence of this Section 4.6(d)), or (ii) charges the Storage Facility in violation of the first or second sentence of Section 4.6(b), then, in addition to any other costs and charges for which Seller is responsible, including Imbalance Energy costs and other amounts specified in Section 4.3(c), and without limiting any of Buyer’s other rights under this Agreement:
(i) Seller shall be responsible for all Energy costs associated with such charging of the Storage Facility; and
(ii) the Monthly Storage Availability calculation shall be affected to the extent specified in Exhibit M.
(e) Subject to compliance with the CAISO Tariff, other applicable Laws and the Operating Restrictions, Buyer will have the right to discharge the Storage Facility seven (7) days per week and twenty-four (24) hours per day (including holidays), by providing Discharging Notices to Seller electronically and subject to the requirements and limitations set forth in this Agreement, including the Operating Restrictions. Each Discharging Notice issued in accordance with this Agreement will be effective unless and until Buyer modifies such Discharging Notice by providing Seller with an updated Discharging Notice.
(f) Seller shall not discharge the Storage Facility during the period commencing upon Commercial Operation and continuing throughout the Delivery Term other than pursuant to a valid Discharging Notice or in connection with a Storage Capacity Test (for which Seller may request a Discharging Notice from Buyer), or pursuant to a notice from CAISO, the PTO, or any other Governmental Authority. Discharging for Station Use may occur only as 87 41
specified in Section 6.4. In the case of a Storage Capacity Test, Buyer shall pay for costs associated with the Charging Energy and may retain any revenue from the discharge of such Energy (adjusted for efficiency losses) pursuant to a valid Discharging Notice; provided, Seller shall pay the costs associated with the Charging Energy if (i) Seller initiates the tests in accordance with Exhibit N or (ii) a Buyer-initiated test indicates that the Storage Capacity is two percent (2%) or more lower than the then-current Storage Capacity. If, during the Contract Term, Seller (i) discharges the Storage Facility to a Stored Energy Level less than the Stored Energy Level provided for in the Discharging Notice (except as permitted in the first or second sentence of this Section 4.6(f)), or (ii) discharges the Storage Facility in violation of the first or second sentence of this Section 4.6(f), then, in addition to any other costs and charges for which Seller is responsible, including Imbalance Energy costs and other amounts specified in Section 4.3(c), and without limiting any of Buyer’s other rights under this Agreement:
(i) Buyer shall retain any positive revenues received from CAISO or otherwise associated with such discharge;
(ii) Seller shall be responsible for and reimburse Buyer for all Energy costs associated with charging the Storage Facility to the Stored Energy Level specified by Buyer before the discharge; and
(iii) the Monthly Storage Availability calculation shall be affected to the extent specified in Exhibit M.
(g) Notwithstanding anything in this Agreement to the contrary, during any Settlement Interval, Curtailment Orders, Buyer Curtailment Orders, and Buyer Bid Curtailments applicable to such Settlement Interval shall have priority over any Discharging Notices applicable to such Settlement Interval (but not over Charging Notices which are consistent with such Curtailment Orders, Buyer Curtailment Orders, or Buyer Bid Curtailments), and Seller shall have no liability for violation of this Section 4.6 or any Discharging Notice if and to the extent such violation is caused by Seller’s compliance with any Curtailment Order, Buyer Curtailment Order, Buyer Bid Curtailment, or other instruction or direction from a Governmental Authority or the PTO unless caused by Seller’s fault or negligence. Buyer shall have the right, but not the obligation, to provide Seller with updated Charging Notices and Discharging Notices during any Buyer Curtailment Order, Buyer Bid Curtailment, or Curtailment Order consistent with the Operating Restrictions.
(h) Prior to Commercial Operation, (i) Buyer shall have no rights to issue or cause to be issued Charging Notices or Discharging Notices, (ii) Seller shall have exclusive rights to charge and discharge the Storage Facility (provided, Seller shall only charge and discharge the Storage Facility in connection with installation, commissioning and testing of the Storage Facility, and, commencing upon CAISO Commercial Operation, subject to the Operating Restrictions), (iii) all CAISO costs, revenues, penalties and other amounts owing to or paid by CAISO in respect of the Storage Facility testing shall be for Seller’s account. Upon Commercial Operation, Buyer shall have exclusive rights to issue or cause to be issued Charging Notices or Discharging Notices.

4.7 [Intentionally Omitted]
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4.8 Expected Energy and Guaranteed Energy Production. The quantity of PV Energy that Seller expects to be able to deliver to Buyer at the Delivery Point during each Contract Year is set forth on the Cover Sheet (“Expected Energy”). Seller shall be required to deliver to Buyer at the Delivery Point an amount of PV Energy, not including any Excess MWh, equal to no less than the Guaranteed Energy Production (as defined below) in each Contract Year during the Delivery Term (“Performance Measurement Period”). “Guaranteed Energy Production” means an amount of Product, asmeasured inMWh,
Seller shall be excused from achieving the Guaranteed Energy Production during any Performance Measurement Period only to the extent that Seller was unable to deliver PV Energy as a result of any Force Majeure Events, Buyer Default, Curtailment Periods and Buyer Curtailment Periods; to effectuate the foregoing excuse, Seller shall be deemed to have delivered to Buyer (a) the Deemed Delivered Energy in respect of Buyer Curtailment Periods, and (b) an amount of Energy determined in accordance with Exhibit D in respect of Lost Output. 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.

4.9 WREGIS. Seller shall, at its sole expense, but subject to Section 3.13, 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 PV Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard 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, issuance, and transfer of such WREGIS Certificates to Buyer, and Buyer shall be given sole title to all such WREGIS Certificates. In addition:
(a) Prior to the Commercial Operation Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using “Forward Certificate Transfers” (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the accounts 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 itself or its agent to be designated as the Qualified Reporting Entity for the Facility. Seller shall cause Forward Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules. Since WREGIS Certificates will only be created for whole MWh amounts of Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for 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 PV Energy for such calendar month as evidenced by data produced by the Generating Facility Meter.
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(d) Due to the timing of 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 4.9.

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 issued to Buyer for a calendar month as compared to the PV Energy for the same calendar month (“Deficient Month”). If any WREGIS Certificate Deficit occurs, then the amount of PV Energy in the Deficient Month shall be reduced by 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 Performance Measurement Period; provided, Buyer shall pay Seller for any PV Energy that is delivered by Seller without corresponding WREGIS Certificates at a price equal to the lesser of (i) the Renewable Rate, or (ii) the weighted average Day-Ahead LMPs for the PV Energy delivered in the corresponding month. Without limiting Seller’s obligations under this Section 4.9, 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. Seller shall use commercially reasonable efforts to rectify any WREGIS Certificate Deficit as expeditiously as possible. (f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.9 after the Effective Date, the Parties promptly shall modify this Section 4.9 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 PV Energy in the same calendar month. (g) STC REC-2. 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. (h) STC REC-1. Transfer of Renewable Energy Credits. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation.

To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law.

4.10 Financial Statements. Seller shall provide to Buyer, within sixty (60) days of the end of Seller’s first, second, and third fiscal quarters, and within one hundred twenty (120) days of the end of the Seller’s fiscal year, as applicable, unaudited quarterly and annual audited financial statements of the Seller (including a balance sheet and statements of income and cash flows), all prepared in accordance with generally accepted accounting principles in the United States, consistently applied.
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4.11 Access to Data and Installation and Maintenance of Weather Station. (a) Commencing on CAISO Commercial Operation, and continuing throughout the Delivery Term, Seller shall provide to Buyer, in a form reasonably acceptable to Buyer, the data set forth below on a real-time basis; provided, Seller shall agree to make and bear the cost of changes to any of the data delivery provisions below, as requested by Buyer, following CAISO Commercial Operation and continuing throughout the Delivery Term, which changes Buyer determines are necessary to forecast output from the Facility, and comply with Law:
(i) real time, read-only access to meteorological measurements, transformer availability, any other facility availability information, and, if applicable, all parameters necessary for use in the equation under item (vii) of this list; (ii) real time, read-only access to PV Energy, EMS data, including Charging Energy, Discharging Energy, Facility Energy, Storage Facility state-of-charge, and battery rack and inverter status (online or offline) information, and meteorological measurements collected by SCADA system for the Facility; provided, if Buyer is unable to access the Facility’s SCADA system, then upon written request from Buyer, Seller shall provide such information and meteorological measurements to Buyer in 1 minute intervals in the form of a flat file to Buyer through a secure file transport protocol (FTP) system with an e-mail back up for each flat file submittal;
(iii) read-only access to the Generating Facility Meter and the Storage Facility Meter, and all Facility meter data at the Site; (iv) full, real time access to the Facility’s Scheduling and Logging for the CAISO (OMS) client application, or its successor system; (v) net plant electrical output at the CAISO revenue meter; (vi) instantaneous data measurements at sixty (60) second or increased frequency for the following parameters, which measurements shall be provided by Seller to Buyer in a consolidated data report at least once every five minutes via flat file through a secure file transport protocol (FTP) system with an e-mail backup: (i) back panel temperature (ii) global horizontal irradiance, (iii) plane of array irradiance (if the panels are fixed) or direct normal irradiance (if the panels are tracking), (iv) wind speed, (v) peak wind speed (within one minute), (vi) wind direction, (vii) ambient air temperature, (viii) dewpoint air temperature or relative humidity, (ix) horizontal visibility, (x) precipitation (rain rate), (xi) precipitation (running 30 day total), and (xii) barometric pressure; and
(vii) an equation, updated on an ongoing basis to reflect the potential generation of the Facility as a function of insolation (and, if applicable, other weather factors).

Such equation shall take into account the expected availability of the Facility. Seller shall reasonably cooperate with any request from Buyer to adjust the equation due to results that are inconsistent with the observed Facility output.

For any month in which the above information and access was not available to Buyer for longer than twenty-four (24) continuous hours, Seller shall prepare and provide to Buyer upon Buyer’s 91 45
request a report with the Facility’s monthly actual Available Generating Capacity and/or Available Storage Capacity in a form reasonably acceptable to Buyer. (b) Seller shall maintain at least a minimum of one hundred twenty (120) days’ historical data for all data required pursuant to Section 4.11, which shall be available on a minimum time interval of one hour basis or an hourly average basis, except with respect to the meteorological measurements which shall be available on a minimum time interval of ten (10) minute basis. Seller shall provide such data to Buyer within five (5) Business Days of Buyer’s request. (c) Installation, Maintenance and Repair.
(i) Seller, at its own expense, shall install and maintain at least one (1) stand-alone meteorological station at the Site to monitor and report the meteorological data required in Section 4.11(a) of this Agreement. Seller, at its own expense, shall install and maintain a secure communication link in order to provide Buyer with access to the data required in Section

4.11(a) of this Agreement.
(ii) Seller shall maintain the meteorological stations, telecommunications path, hardware, and software necessary to provide accurate data to Buyer or Buyer’s designee to enable Buyer to meet current CAISO scheduling requirements. Seller shall promptly repair and replace as necessary such meteorological stations, telecommunications path, hardware and software and shall notify Buyer as soon as Seller learns that any such telecommunications paths, hardware and software are providing faulty or incorrect data. (iii) If Buyer notifies Seller of the need for maintenance, repair or replacement of the meteorological stations, telecommunications path, hardware or software, Seller shall maintain, repair or replace such equipment as necessary within five (5) days of receipt of such Notice; provided, if Seller is unable to repair or replace such equipment within five (5) days, then Seller shall make such repair or replacement as soon as reasonably practical; provided further, Seller shall not be relieved from liability for any Imbalance Energy costs incurred under Section

3.4 during this additional period for repair or replacement. (iv) For any occurrence in which Seller’s telecommunications system is not available or does not provide quality data and Buyer notifies Seller of the deficiency or Seller becomes aware of the occurrence, Seller shall transmit data to Buyer through any alternate means of verbal or written communication, including cellular communications from onsite personnel, facsimile, blackberry or equivalent mobile e-mail, or other method mutually agreed upon by the Parties, until the telecommunications link is re-established. (d) Seller agrees and acknowledges that Buyer may seek and obtain from third parties any information relevant to its duties as Scheduling Coordinator for the Facility, including from the Participating Transmission Operator. Seller shall execute within a commercially reasonable timeframe upon request such instruments as are reasonable and necessary to enable Buyer to obtain from the Participating Transmission Operator information concerning Seller and the Facility that may be necessary or useful to Buyer in furtherance of Buyer’s duties as Scheduling Coordinator for the Facility.
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(e) No later than ninety (90) days before the date of Initial Synchronization, Seller shall provide one (1) year, if available, but no less than six (6) months, of recorded meteorological data to Buyer in a form reasonably acceptable to Buyer from a weather station at the Site. Such weather station shall provide, via remote access to Buyer, all data relating to (i) the parameters (other than back panel temperature) identified in Section 4.11(a)(vi) above (all data, except peak values, should be 1-second samples averaged into 10-minute periods); (ii) elevation, latitude and longitude of the weather station; and (iii) any other data reasonably requested by Buyer.

4.12 Storage Availability and Efficiency.
(a) Storage Availability. During the Delivery Term, the Storage Facility shall maintain a Monthly Storage Availability (calculated in accordance with Exhibit M) of no less than Guaranteed Storage Availability. If, in any month after Commercial Operation, the Monthly Storage Availability is less than the Guaranteed Storage Availability, then, except as provided in Section 11.1(b)(vi), Buyer’s sole and exclusive remedy for such shortfall shall be the application of the Storage Availability Adjustment to reduce the Storage Capacity Payment due for the Storage Product as provided in Section 3.3(e).
(b) Round-Trip Efficiency. During each month of the Delivery Term, the Storage Facility shall maintain a Round-Trip Efficiency of no less than the Guaranteed Round-Trip Efficiency. If, in any month during the Delivery Term, the Round-Trip Efficiency is less than the Guaranteed Round-Trip Efficiency, then, except as provided in Section 11.1(b)(vii), Buyer’s sole and exclusive remedy (and Seller’s sole and exclusive liability) for such shortfall shall be the RTE Shortfall Payment calculated in accordance with Exhibit Q.

4.13 Storage Capacity Tests.
(a) Prior to the Commercial Operation Date, Seller shall schedule and complete a Commercial Operation Storage Capacity Test in accordance with Exhibit N. Thereafter, Seller and Buyer shall have the right to conduct additional Storage Capacity Tests in accordance with Exhibit N.
(b) Buyer shall have the right to send one or more representatives to witness all Storage Capacity Tests. Buyer shall be responsible for all costs, expenses and fees payable or reimbursable to its representatives witnessing any Storage Capacity Test. (c) Following each Storage Capacity Test, Seller shall submit a testing report in accordance with Exhibit N. If the actual capacity determined pursuant to a Storage Capacity Test deviates from the then current Storage Capacity, then the actual capacity determined pursuant to a Storage Capacity Test (up to, but not in excess of, the Guaranteed Storage Capacity) shall become the new Storage Capacity, effective as of the first day of the month following the completion of the Storage Capacity Test, for all purposes under this Agreement, including compensation under Section 3.3(e) until the next such Storage Capacity Test.

4.14 Storage Facility Modifications. Seller shall not modify or supplement all or any part of the Storage Facility without Buyer’s prior written consent, which consent shall be not be unreasonably withheld, conditioned or delayed.
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4.15 Ancillary Services. Buyer shall have the exclusive rights to all Ancillary Services that the Facility is capable of providing consistent with the Operating Restrictions, with characteristics and quantities determined in accordance with the CAISO Tariff. Seller shall operate and maintain the Facility throughout the Contract Term so as to be able to provide such Ancillary Services in accordance with the specifications set forth in the Facility’s initial CAISO Certification associated with the Installed Storage Capacity. If the Storage Facility fails, or is unable, to provide Ancillary Services for any reason (including by reason of failing an Ancillary Services certification test) that is not excused hereunder, then as exclusive remedies the Available Storage Capacity for any applicable Calculation Interval shall be deemed reduced for purposes of calculating the Monthly Storage Capacity Availability by an amount equal to the product of (a) the Available Storage Capacity multiplied by (b) thirty percent (30%), and Seller shall also reimburse Buyer for any CAISO charges or penalties arising from the failure to provide such Ancillary Services. Upon Buyer’s reasonable request, Seller shall submit the Facility for additional CAISO Certification so that the Facility may provide additional Ancillary Services that the Facility is, at the relevant time, actually physically capable of providing consistent with the definition of Ancillary Services herein and without modification of the Facility, provided, Buyer has agreed to reimburse Seller for any costs Seller incurs in connection with conducting such additional CAISO Certification.

4.16 Workforce Agreement. The Parties acknowledge that in connection with Buyer’s energy procurement efforts, including entering into this 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, 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 4.16. Seller shall provide to Buyer copies of any reports, certifications or similar communications with the IRS regarding labor information applicable to Seller, its Affiliates or suppliers and vendors in connection with any obtaining or substantiating tax incentives pursuant to the Internal Revenue Service Requirements.

4.17 Diverse Business Enterprises. During the Delivery Term, no later than twenty (20) days after each semi-annual period ending on June 30th or December 31st, Seller shall provide to Buyer a report listing all Diverse Business Enterprises that supplied goods or services to Seller during such period, including (i) any certifications or other documentation of such Diverse Business Enterprises status as such, (ii) the business address and other contact information of such Diverse Business Enterprises, (iii) the aggregate amount paid to Diverse Business Enterprises during such period and (iv) any other information Buyer reasonably determines is necessary to meet its related reporting obligations.
(a) Buyer has the right to disclose to the CPUC all such information provided by Seller pursuant to this Section 4.17.
(b) Seller shall make reasonable efforts to accommodate requests by the CPUC (or by Buyer in response to a request by the CPUC) to audit Seller in order to verify data provided by Seller pursuant to this Section 4.17.
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4.18 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities may be subject to shared facilities and/or co-tenancy agreements entered into among Seller, the Transmission Provider, Seller’s Affiliates, and/or third parties. If applicable, Seller agrees that any agreements regarding Shared Facilities (i) shall permit Seller to perform or satisfy, and shall not purport to limit, Seller’s obligations hereunder, (ii) shall provide for separate metering of the Facility; (iii) shall not limit Buyer’s ability to charge or discharge the Facility up to the full Storage Capacity; (iv) shall provide that any other generating or energy storage facilities not included in the Facility but using Shared Facilities shall not be included within the Facility’s CAISO Resource ID; and (iv) shall provide that any curtailment or restriction of Shared Facility capacity not attributable to a specific project or projects shall be allocated to all generating or storage facilities utilizing the Shared Facilities based on their pro rata allocation of the Shared Facility capacity prior to such curtailment or reduction. Seller shall not, and shall not permit any Affiliate to, allocate to other Persons a share of the total interconnection capacity under the Interconnection Agreements in excess of an amount equal to the total interconnection capacity under the Interconnection Agreements.

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 delivery or making available to Buyer, including on Energy prior to the Delivery Point. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and from the Delivery Point (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees). Seller shall be solely responsible for all taxes, charges or fees imposed on the Facility or Seller by a Governmental Authority for Greenhouse Gas emitted by or attributable to the Facility during the Contract Term, but expressly excluding any taxes, charges or fees related to Greenhouse Gases imposed on Charging Energy or Discharging Energy. 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 Energy or other Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation within thirty (30) days after the Effective Date to evidence such exemption or exclusion. If Buyer does not provide such documentation, then Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes from which Buyer claims it is exempt.

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

5.3 Ownership. Seller shall be the owner of the Facility for federal income tax purposes and, as such, Seller (or its Affiliates or Lenders) shall be entitled to all depreciation 95 49
deductions associated with the Facility and to any and all Renewable Energy Incentives or other tax benefits associated with the Facility, including any such tax credits or tax benefits under the Internal Revenue Code of 1986, as amended. The Parties intend this Agreement to be a “service contract” within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986, as amended. The Parties will not take the position on any tax return or in any other filings suggesting that it is anything other than a purchase of the Product from the Seller or that this agreement is anything other than a “service contract” within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986, as amended.

ARTICLE 6

MAINTENANCE OF THE FACILITY

6.1 Maintenance of the Facility. Seller shall comply with Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product.
(a) Seller shall provide to Buyer no later than ninety (90) days prior to the Commercial Operation Date for the period from the Commercial Operation Date through the end of the then-current calendar year, and no later than September 1 of each calendar year thereafter for the following calendar year, a schedule of all planned outages or derates of the Facility for maintenance purposes (“Scheduled Maintenance”). Seller may perform no more than fifty (50) hours of Scheduled Maintenance that involves a reduction in the Available Generating Capacity and/or Available Storage Capacity of the Facility per Contract Year. Seller shall not conduct Scheduled Maintenance between June 1 and October 31 of each year. Seller shall use commercially reasonable efforts to accommodate reasonable requests of Buyer with respect to adjusting the timing of Scheduled Maintenance. Seller may modify its schedule of Scheduled Maintenance upon reasonable advance notice to Buyer, subject to reasonable requests of Buyer and consistent with Section 4.4 and this Section 6.1.
(b) Seller shall use commercially reasonable efforts to perform during periods of Scheduled Maintenance all maintenance that will reduce the Facility’s output or availability.

Seller shall arrange for any necessary non-emergency maintenance that is not Scheduled Maintenance and that reduces the Available Generating Capacity and/or Available Storage Capacity of the Facility by more than ten percent (10%) to occur only between November 1 and May 31 of each year, unless (i) such outage is required to avoid damage to the Facility, (ii) such maintenance is necessary to maintain equipment warranties and cannot be scheduled outside the months of June through September, or (iii) the Parties agree otherwise in writing. (c) Seller shall use commercially reasonable efforts to schedule all maintenance outages, including those associated with Scheduled Maintenance (i) within a single month, rather than across multiple months, (ii) during periods in which CAISO does not require resource substitution or replacement, and (iii) otherwise in a manner to avoid reductions in the Resource Adequacy Benefits available from the Facility to Buyer, if applicable; provided, Seller shall not be required to consolidate preventative maintenance activities into a single month where such consolidation is inconsistent with vendor-recommended maintenance schedules. 96 50

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 on Exhibit R Notice of such condition. Such action may include disconnecting and removing all or a portion of the Facility, or suspending the supply of Energy to Buyer.

6.3 Permits and Approvals. As between Buyer and Seller, Seller shall obtain any required permits and approvals in connection with the development, construction, and operation of the Facility, including without limitation, environmental clearance under the California Environmental Quality Act or other environmental Law, from the local jurisdiction where the Facility will be constructed.

6.4 Energy to Serve Station Use. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge (a) Seller is responsible for providing all Energy to serve Station Use (including paying the cost of any Energy used to serve Station Use and the cost of energy provided by third parties used to serve Station Use); and (b) Seller may utilize Energy to serve Station Use to the extent permissible in accordance with the CAISO Tariff and subject to the following requirements and restrictions:
(i) Seller shall not bill Buyer and Buyer will not pay Seller for any Energy that serves Station Use, and Seller shall bear all costs associated with Energy that serves Station Use (“Reimbursable Station Use”), including any Stored Energy or Energy discharged from the Storage Facility that serves Station Use during periods when the Storage Facility is charging or discharging pursuant to a Charging Notice or Discharging Notice, as applicable (when such service is permissible in accordance with the CAISO Tariff); (ii) Seller shall separately meter all Station Use to ensure that records and invoices to Buyer are accurate and do not improperly bill Buyer for Energy that serves Station Use and to enable Buyer to invoice Seller for Reimbursable Station Use Costs; (iii) Seller shall ensure that any use of Stored Energy or Energy discharged from the Storage Facility to serve Station Use complies with and does not interfere with or impair Buyer’s or the CAISO’s dispatch of or schedule for the Facility, and if Seller fails to comply with such requirements, then, without prejudice to Buyer’s other rights and remedies hereunder, Seller shall reimburse Buyer for (A) any charges, costs, and penalties imposed by the CAISO for the Storage Facility’s failure to comply with dispatch instructions, the CAISO schedule, or any CAISO requirements; and (B) any loss of revenue if the CAISO adjusts dispatch instructions due to the use of Stored Energy or Energy discharged from the Storage Facility to serve Station Use, in each case only to the extent imposed or incurred as a direct result of Seller’s use of Stored Energy or Energy discharged from the Storage Facility to serve Station Use; (iv) Any use of Energy generated by the Generating Facility, Energy discharged from the Storage Facility or Stored Energy for Station Use shall not (A) reduce Seller’s obligations to achieve the Guaranteed Storage Availability and Guaranteed Round-Trip Efficiency, or (B) count toward limits specified in the Operating Restrictions; and 97 51
(v) Seller shall provide to Buyer upon Buyer’s request all records and data, including detailed meter, charging, discharging, and state of charge data, that may be necessary or useful for Buyer to verify that service of Station Use occurred in compliance with this Section 6.4, and to calculate and verify the accuracy of invoices and amounts required to be reimbursed hereunder.

ARTICLE 7

METERING

7.1 Metering.
(a) Subject to Section 7.1(b) (with respect to the entirety of the following Section 7.1(a)), the Facility shall have a single CAISO Resource ID for both the Generating Facility and the Storage Facility, but shall not share or otherwise associate such CAISO Resource ID with any other generating or storage capacity or facility. The Facility shall be configured as a CAISO Metered Entity. Seller shall measure the following using CAISO Approved Meters and CAISO approved methodologies: the amount of Facility Energy produced by the Facility; the amount of PV Energy produced by the Generating Facility; the amount of Charging Energy and Discharging Energy. The CAISO Approved Meter shall be installed and maintained at Seller’s cost. Metering will be consistent with the Metering Diagram set forth in Exhibit P. The meter(s) 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 that Seller breaks a seal, Seller shall notify Buyer as soon as practicable. In addition, Seller hereby agrees to provide all meter data to Buyer in a form reasonably acceptable to Buyer, and consents to Buyer obtaining from CAISO all CAISO meter data applicable to each of the Generating Facility and the Storage Facility and all inspection, testing and calibration data and reports. Seller and Buyer shall cooperate to allow both Parties to retrieve the meter reads from the CAISO Operational Meter Analysis and Reporting (OMAR) web and/or directly from the CAISO meter(s) at the Generating Facility and the Storage Facility. (b) The foregoing Section 7.1(a) is based on the Parties’ mutual understanding as of the Effective Date that (i) the CAISO requires the configuration of the Facility to include as the sole meters for the Facility, the Generating Facility Meter and the Storage Facility Meter, (ii) the CAISO requires the Generating Facility Meter and the Storage Facility Meter to be programmed for Electrical Losses as set forth in the definition of Electrical Losses in this Agreement, and (iii) the automatic adjustments to Charging Notices and Discharging Notices as set forth in the definitions of Charging Notice and Discharging Notice in this Agreement will not result in the Scheduling Coordinator violating, or incurring any costs, penalties, or charges under, the CAISO Tariff. If any of the foregoing mutual understandings in (i), (ii), or (iii) between the Parties become incorrect during the Delivery Term, the Parties shall cooperate in good faith to make any amendments and modifications to the Facility and this Agreement as are reasonably necessary to conform this Agreement to the CAISO Tariff and avoid, to the maximum extent practicable, any CAISO charges, costs, or penalties that may be imposed on either Party due to non-conformance with the CAISO Tariff, such agreement not to be unreasonably delayed, conditioned, or withheld.

7.2 Meter Verification. If Buyer or Seller has reason to believe there may be a meter malfunction, Seller shall test the meter. Annually, upon Buyer’s reasonable request, Seller shall 98 52
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 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 the inaccuracy persisted during one-half of such period so long as such adjustments are accepted by CAISO and WREGIS; provided, such period may not exceed twelve (12) months.

ARTICLE 8
INVOICING AND PAYMENT; CREDIT

8.1 Invoicing. Seller shall deliver an invoice to Buyer for Product no later than ten (10) days after the end of the prior monthly billing period. Each invoice shall provide Buyer (a) records of metered data, including CAISO metering and transaction data sufficient to document and verify the generation of Product by the Generating Facility and the Storage Facility for any Settlement Period during the preceding month, the amount of Product in MWh produced by the Facility as read by the Generating Facility Meter, Storage Facility Meter, and CAISO Approved Meter, the calculation of Deemed Delivered Energy and Adjusted Energy Production, and the Contract Price applicable to such Product, Station Use and Reimbursable Station Use for any Settlement Period during the preceding month; (b) records and calculations sufficient to show the calculation of the Storage Capacity Payment, including calculations of any applicable Storage Availability Adjustment and RTE Shortfall Payment; and (c) access to any records, including invoices or settlement data from the CAISO, necessary to verify the accuracy of any amount. Invoices shall be in a format specified by Buyer, covering the services provided in the preceding month determined in accordance with the applicable provisions of this Agreement. Buyer shall, and shall cause its Scheduling Coordinator to, provide Seller with all reasonable access (including, in real time, to the maximum extent reasonably possible) to any records, including invoices or settlement data from the CAISO, forecast data and other information, all as may be necessary from time to time for Seller to prepare and verify the accuracy of all invoices.

8.2 Payment. Buyer shall make payment to Seller for Product by wire transfer or ACH payment to the bank account provided on each monthly invoice. Buyer shall pay undisputed invoice amounts within forty-five (45) days after receipt of the invoice. If such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. Payments made after the due date 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.
99 53

8.3 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years or as otherwise required by Law. Either Party, upon fifteen (15) days written Notice to the other Party, shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated pursuant to this Agreement.

8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Section 8.5, an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO, or there is determined to have been a meter inaccuracy sufficient to require a payment adjustment. If the required adjustment is in favor of 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. Except for adjustments required due to a correction of data by the CAISO, any adjustment described in this Section 8.4 is waived if Notice of the adjustment is not provided within twelve (12) months after the invoice is rendered or subsequently adjusted.

8.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement, or adjust any invoice for any arithmetic or computational error, within twelve (12) months of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from subsequent payments, with interest accrued at the Interest Rate from and including the date of such overpayment to but excluding the date repaid or deducted by the Party receiving such overpayment. 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 party other than the Party seeking the adjustment and such party corrects its information after the twelve-month period.

If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.

8.6 Netting of Payments. The Parties hereby agree that they shall discharge mutual debts and payment obligations due and owing to each other on the same date through netting, in which case all amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement, including any related damages calculated pursuant to Exhibits B and D, 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. 100
54 8.7 Seller’s Development Security. To secure Seller’s obligations under this Agreement, including the obligations of Seller to pay liquidated damages to Buyer as provided in this Agreement, Seller shall deliver Development Security to Buyer within eighty-five (85) Business Days after the Effective Date. Buyer will have the right to draw upon the Development Security if Seller fails to pay liquidated damages owed to Buyer pursuant to Exhibit B to this Agreement, or if Seller fails to pay a Damage Payment owed to Buyer pursuant to Section 11.2.

Seller shall maintain the Development Security in full force and effect and Seller shall replenish the Development Security in the event Buyer collects or draws down any portion of the Development Security for any reason permitted under this Agreement other than to satisfy a Damage Payment. Following the earlier of (i) Seller’s delivery of the Performance Security, or (ii) sixty (60) days after termination of this Agreement, Buyer shall promptly return the Development Security to Seller, less the amounts drawn in accordance with this Agreement.

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

Seller shall maintain the Performance Security in full force and effect and Seller shall replenish the Performance Security in the event Buyer collects or draws down any portion of the Performance Security for any reason permitted under this Agreement within twenty (20) Business Days after such draw, other than to satisfy a Termination Payment. Seller shall maintain the Performance Security in full force and effect until the date on which the following have occurred (“Performance Security End Date”): (A) the Delivery Term has expired or terminated early; and (B) all payment obligations of the Seller arising under this 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 the Performance Security End Date, Buyer shall promptly return to Seller the unused portion of the Performance Security. Provided that no Event of Default has occurred with respect to Seller, Seller may replace or change the form of Performance Security to another form of Performance Security from time to time upon reasonable prior written notice to Buyer.

8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral. To secure its obligations under this Agreement, and until released as provided herein, Seller hereby grants to Buyer a present and continuing first-priority security interest (“Security Interest”) in, and lien on (and right to net against), and assignment of the Development Security, 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 this Agreement where Buyer is authorized to retain all or a portion of the Development Security or Performance Security, Buyer may do any one or more of the following (in each case subject to the final sentence of this Section 8.9):
101
55 (a) Exercise any of its rights and remedies with respect to the Development Security and Performance Security, including any such rights and remedies under Law then in effect;
(b) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held by Buyer as Development Security or Performance Security; and (c) Liquidate all Development Security or Performance Security (as applicable) then held by or for the benefit of Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller.

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

ARTICLE 9

NOTICES

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

9.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered as follows: (a) if sent by United States mail with proper first class postage prepaid, three (3) Business Days following the date of the postmark on the envelope in which such Notice was deposited in the United States mail; (b) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; (c) if sent by electronic communication (including electronic mail, facsimile, or other electronic means) and either (i) the receiving Party sends a written acknowledgment of receipt, or (ii) concurrently with the transmittal of such electronic communication the sending Party provides a copy of such electronic Notice by hand delivery or express courier, at the time indicated by the time stamp upon delivery; 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 this Agreement or from complying with all or a portion of the conditions under this Agreement if such act or event, despite 102
103
57 to fulfill any obligation by reason of a Force Majeure Event shall take reasonable actions necessary to remove such inability with due speed and diligence. Nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has been removed. The obligation to use due speed and diligence shall not be interpreted to require resolution of labor disputes by acceding to demands of the opposition when such course is inadvisable in the discretion of the Party having such difficulty. Neither Party shall be considered in breach or default of this Agreement if and to the extent that any failure or delay in the Party’s performance of one or more of its obligations hereunder is caused by a Force Majeure Event. The occurrence and continuation of a Force Majeure Event shall not suspend or excuse the obligation of a Party to make any payments due hereunder.

10.3 Notice. In the event of any delay or nonperformance resulting from a Force Majeure Event, the Party suffering the Force Majeure Event shall (a) as soon as practicable, notify the other Party in writing of the nature, cause, estimated date of commencement thereof, and the anticipated extent of any delay or interruption in performance, and (b) 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; provided, a Party’s failure to give timely Notice shall not affect such Party’s ability to assert that a Force Majeure Event has occurred unless the delay in giving Notice materially prejudices the other Party.

10.4 Termination Following Force Majeure Event. If a Force Majeure Event has occurred that has caused either Party to be wholly or partially unable to perform its obligations hereunder, and has continued for a consecutive twelve (12) month period, then the non-claiming Party may terminate this Agreement upon written Notice to the other Party with respect to the Facility experiencing the Force Majeure Event. Upon any such termination, neither Party shall have any liability to the other, save and except for those obligations specified in Section 2.1(b), and Buyer shall promptly return to Seller any Development Security or Performance Security then held by Buyer.

ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION

11.1 Events of Default. An “Event of Default” shall mean, (a) with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following:
(i) the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within five (5) 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; (iii) the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default) and such failure is not remedied within thirty (30) days after Notice thereof 104
58 (iv) such Party becomes Bankrupt;
(v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Sections 14.2 or 14.3, as 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 this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. (b) with respect to Seller as the Defaulting Party, the occurrence of any of the following:
(i) if at any time, Seller delivers or attempts to deliver to the Delivery Point for sale under this Agreement Energy that was not generated or discharged by the Facility; (ii) the failure by Seller to achieve the Construction Start Date within one hundred twenty (120) days after the Guaranteed Construction Start Date, or the failure by Seller to achieve Commercial Operation within days after the Guaranteed Commercial Operation Date;
(iii) the failure by Seller to timely obtain CEC Final Certification and Verification in accordance with Section 3.10;
(iv) if, in the first six (6) months or the second six (6) months of any Contract Year, the Adjusted Energy Production amount is not at least ten percent (10%) of the Expected Energy amount for that Contract Year, and Seller fails to demonstrate to Buyer’s reasonable satisfaction, within ten (10) Business Days after Notice from Buyer, a legitimate reason for the failure to meet the ten percent (10%) minimum;
(v) if in any two (2) consecutive Contract Years, the Adjusted Energy Production amount is not at least sixty-five percent (65%) of the Expected Energy amount in each Contract Year; provided, it will not be an Event of Default under this Section 11.1(b)(v) if (a) the failure to meet the respective standard results from a Transformer Failure, (b) during the one hundred eighty (180) day period following the date of such Transformer Failure Seller diligently pursues a cure to such Transformer Failure and delivers to Buyer a certificate from a Licensed Professional Engineer within thirty (30) days following the date of the Transformer Failure that cure can be made within such one hundred eighty (180) day period, and (c) Seller completes the cure of such Transformer Failure within such one hundred eighty (180) day period; (vi) if, in the first Contract Year during the Delivery Term, the average Monthly Storage Availability is not at least fifty percent (50%), or for any Contract Year thereafter, the average Monthly Storage Availability is not at least seventy percent (70%); provided, it will 105
59 not be an Event of Default under this Section 11.1(b)(vi) if one (1) time during the Delivery Term, (a) the failure to meet the respective standard results from a Transformer Failure, (b) during the one hundred eighty (180) day period following the date of such Transformer Failure Seller diligently pursues a cure to such Transformer Failure and delivers to Buyer a certificate from a Licensed Professional Engineer within thirty (30) days following the date of the Transformer Failure that cure can be made within such one hundred eighty (180) day period, and (c) Seller completes the cure of such Transformer Failure within such one hundred eighty (180) day period; (vii) if, for any two (2) consecutive Contract Years, the annual average Round-Trip Efficiency is not at least seventy-five percent (75%); (viii) if, in any Contract Year, Seller fails to maintain an average Storage Capacity determined pursuant to one or more Storage Capacity Tests equal to at least seventy-five percent (75%) of the Installed Storage Capacity; provided, it will not be an Event of Default under this Section 11.1(b)(viii) if (a) the failure to meet such standard results from a Transformer Failure, (b) during the one hundred eighty (180) day period following the date of such Transformer Failure Seller diligently pursues a cure to Transformer Failure and delivers to Buyer a certificate from a Licensed Professional Engineer within thirty (30) days following the date of the Transformer Failure that cure can be made within such one hundred eighty (180) day period, and (c) Seller completes the cure of such Transformer Failure within such one hundred eighty (180) day period; (ix) failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8, including the failure to replenish the Development Security or Performance Security amount in accordance with this Agreement in the event Buyer draws against either for any reason other than to satisfy a Damage Payment or a Termination Payment, if such failure is not remedied within five (5) Business Days after Notice thereof; (x) if at any time Seller owns, operates or manages any equipment, facility, property or other asset, other than the Facility or engages in any business or activity other than the development, financing, ownership or operation of the Facility; (xi) the occurrence of six (6) consecutive months in which a WREGIS Certificate Deficit was caused, or was the result of any action or inaction, by Seller; provided, if Seller is taking reasonable steps to prevent subsequent WREGIS Certificate Deficits and is reasonably likely to succeed in preventing the occurrence in the seventh (7th) consecutive month, then an Event of Default shall not be deemed to have occurred until the seventh (7th) consecutive month; or
(xii) with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within five (5) Business Days after Seller receives Notice of the occurrence of any of the following events:
(A) the issuer of the outstanding Letter of Credit shall fail to maintain a Credit Rating of at least “A-” by S&P or “A3” by Moody’s; 106
60 (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 this Agreement, and in no event less than sixty (60) days prior to the expiration of the outstanding Letter of Credit.

11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred, the other Party (“Non-Defaulting Party”) shall have the following rights:
(a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“Early Termination Date”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date;
(b) to accelerate all amounts owing between the Parties, and to collect as liquidated damages (i) the Damage Payment (in the case of an Event of Default by Seller under Section 11.1(b)(ii)) or (ii) the Termination Payment, each as calculated in accordance with Section

11.3 below;
(c) to withhold any payments due to the Defaulting Party under this Agreement; (d) to suspend performance; and/or
(e) to exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief, except to the extent such remedies are expressly limited under this Agreement;
provided, 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. 107
61 11.3 Damage Payment; Termination Payment. If an Early Termination Date has been declared, the Non-Defaulting Party shall calculate, in a commercially reasonable manner, the Damage Payment or Termination Payment, as applicable, in accordance with this Section 11.3. (a) Damage Payment 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 calculated in the same manner as the Termination Payment in Section 11.3(b). (b) Termination Payment On or After the Commercial Operation Date. The payment owed by the Defaulting Party to the Non-Defaulting Party for a Terminated Transaction occurring after the Commercial Operation Date (“Termination Payment”) for a Terminated Transaction shall be the Settlement Amount plus any or all other amounts due to or from the Non-Defaulting Party netted into a single amount. If the Non-Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the net Settlement Amount shall be zero. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. Third parties supplying information for purposes of the calculation of Gains or Losses may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information. The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages; provided, any lost Capacity Attributes shall be deemed direct damages covered by this Agreement. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (i) the actual damages that the Non-Defaulting Party would incur in connection with a Terminated Transaction would be difficult or impossible to predict with certainty, (ii) the Termination Payment described in this Section 11.3(b) is a reasonable and appropriate approximation of such damages, and (iii) the Termination Payment described in this Section 11.3(b) is the exclusive remedy of the Non-Defaulting Party in connection with a Terminated Transaction but shall not otherwise act to limit any of the Non-Defaulting Party’s rights or remedies if the Non-Defaulting Party does not elect a Terminated Transaction as its remedy for an Event of Default by the Defaulting Party. 108
62 11.4 Notice of Payment of Termination Payment. As soon as practicable after a Terminated Transaction, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Termination Payment and whether the Termination Payment is due to or from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount and the sources for such calculation. The Termination Payment shall be made to or from the Non-Defaulting Party, as applicable, within ten (10) Business Days after such Notice is effective.

11.5 Disputes With Respect to Termination Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within five (5) Business Days of receipt of the Non-Defaulting Party’s calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding the Termination Payment shall be determined in accordance with Article 16.

11.6 Limitation on Seller’s Ability to Make or Agree to Third-Party Sales from the Facility after Early Termination Date. If the Agreement is terminated prior to the Commercial Operation Date for any reason other than a Buyer Event of Default, 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 for a period of two (2) years following the early termination date, 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 contained in this Agreement (including price) and Buyer fails to accept such offer within forty-five (45) days of Buyer’s receipt thereof.

Neither Seller nor Seller’s Affiliates may sell or transfer the Facility, or any part thereof, or land rights or interests in the Site (including the interconnection queue position of the Facility) so long as the limitations contained in this Section 11.6 apply, unless the transferee agrees to be bound by the terms set forth in this Section 11.6 pursuant to a written agreement approved by Buyer.

Seller shall indemnify and hold Buyer harmless from all benefits lost and other damages sustained by Buyer as a result of any breach by Seller of its covenants contained within this Section 11.6.

11.7 Rights And Remedies Are Cumulative. Except where liquidated damages are provided as the exclusive remedy, the rights and remedies of a Party pursuant to this Article 11 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

11.8 Mitigation. Any Non-Defaulting Party shall be obligated to mitigate its Costs, Losses and damages resulting from any Event of Default of the other Party under this Agreement.

ARTICLE 12
LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES.

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

EXPRESS REMEDY, INDEMNITY PROVISION, OR MEASURE OF DAMAGES HEREIN,

NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ITS INDEMNIFIED PERSONS 109
63 FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL

DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE OR LOST PROFITS,

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

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

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

A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND

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

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

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

FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE

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

MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED.

IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY. THE

VALUE OF ANY TAX BENEFITS, 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 THE DAMAGE PAYMENT UNDER SECTION 11.3(a) AND THE TERMINATION PAYMENT UNDER SECTION 11.3(b), AND AS PROVIDED IN

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, AND (UNLESS EXPRESSLY STATED TO THE CONTRARY) AN EXCLUSIVE REMEDY. 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.
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64 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 State of Delaware, 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 this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller’s performance under this Agreement. The execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary corporate action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Seller, subject to any permits that have not yet been obtained by Seller, the documents of formation of Seller or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Seller is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Seller. This Agreement is a legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as limited by Laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) The Facility is located in the State of California. (f) All Energy and associated Green Attributes sold and delivered to Buyer hereunder, qualify as PCC1.

13.2 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a joint powers authority and a validly existing community choice aggregator, duly organized, validly existing and in good standing under the laws of the State of California and the rules, regulations and orders of the California Public Utilities Commission, and is qualified to conduct business in each jurisdiction 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.
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65 (b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Buyer’s performance under this Agreement. The execution, delivery and performance of this Agreement by Buyer has been duly authorized by all necessary action on the part of Buyer and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Buyer or any other party to any other agreement with Buyer.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Buyer, including but not limited to community choice aggregation, 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) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by Laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (1) suit, (2) jurisdiction of court, (3) relief by way of injunction, order for specific performance or recovery of property, (4) attachment of assets, or (5) execution or enforcement of any judgment.
(f) Buyer is a “local public entity” as defined in Section 900.4 of the Government Code of the State of California.

13.3 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term:
(a) It shall continue to be duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation and to be qualified to conduct business in each jurisdiction where the failure to so qualify would have a material adverse effect on its business or financial condition;
(b) It shall maintain (or obtain from time to time as required) all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and (c) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and any contracts to which it is a party and in material compliance with any Law.
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66 ARTICLE 14

ASSIGNMENT

14.1 General Prohibition on Assignments. Except as provided below and in Article 15, neither Seller nor Buyer may voluntarily assign its rights nor delegate its duties under this Agreement, or any part of such rights or duties, without the written consent of the other Party.

Neither Seller nor Buyer shall unreasonably withhold, condition or delay any requested consent to an assignment that is allowed by the terms of this Agreement. Any such assignment or delegation made without such written consent or in violation of the conditions to assignment set out below shall be null and void.

14.2 Permitted Assignment; Change of Control of Seller. Seller may, without the prior written consent of Buyer, transfer or assign this Agreement to: (a) an Affiliate of Seller; or (b) subject to Section 15.1, a Lender as collateral. Any direct or indirect Change of Control of Seller (whether voluntary or by operation of Law) shall be deemed an assignment under this Article 14 and will require the prior written consent of Buyer, which consent shall not be unreasonably withheld.

14.3 Permitted Assignment; Change of Control of Buyer. Buyer may assign its interests in this Agreement to an Affiliate of Buyer or to any entity that has acquired all or substantially all of Buyer’s assets or business, whether by merger, acquisition or otherwise without Seller’s prior written consent, provided, in each of the foregoing situations, (a) the assignee (i) has a Credit Rating of Baa2 or higher by Moody’s or BBB or higher by S&P, and (ii) is a community choice aggregator or publicly-owned electric utility with retail customers located in the state of California, and (b) no fewer than fifteen (15) Business Days before such assignment Buyer (i) notifies Seller of such assignment and (ii) provides to Seller a written agreement signed by the Person to which Buyer wishes to assign its interests stating that such Person agrees to assume all of Buyer’s obligations and liabilities under this Agreement and under any consent to assignment and other documents previously entered into by Seller as described in Section 15.2. Any assignment by Buyer, 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 Seller.

14.4 Buyer Financing Assignment. Seller agrees that Buyer may assign a portion of its rights and obligations under this Agreement to a Person in connection with a municipal prepayment financing transaction (“Buyer Assignee”) at any time upon not less than fifteen (15) Business Days’ notice by delivering Notice of such assignment, which notice must include a proposed assignment agreement in form reasonably acceptable to both Parties (the “Assignment Agreement”), provided, at the time of such assignment, such Buyer Assignee has a Credit Rating equal to the higher of (a) Buyer’s Credit Rating at the time of such assignment (if applicable), and (b) Baa2 from Moody’s and BBB from S&P. As reasonably requested by Buyer Assignee, Seller shall (i) provide Buyer Assignee with information and documentation with respect to Seller, including but not limited to account opening information, information related to forecasted generation, Credit Rating, and compliance with anti-money laundering rules, the Dodd-Frank Act, the Commodity Exchange Act, the Patriot Act and similar rules, regulations, requirements and corresponding policies; and (ii) promptly execute such Assignment Agreement and implement 113
67 such assignment as contemplated thereby, subject only to the countersignature of Buyer Assignee and Buyer and the requirements of this Section 14.4.

ARTICLE 15

LENDER ACCOMMODATIONS

15.1 Granting of Lender Interest. Notwithstanding Section 14.2 or Section 14.3, either Party may, without the consent of the other Party, grant an interest (by way of collateral assignment, or as security, beneficially or otherwise) in its rights and/or obligations under this Agreement to any Lender. Each Party’s obligations under this Agreement shall continue in their entirety in full force and effect. Promptly after granting such interest, the granting Party shall notify the other Party in writing of the name, address, and telephone and facsimile numbers of any Lender to which the granting Party’s interest under this Agreement has been assigned. Such Notice shall include the names of the Lenders to whom all written and telephonic communications may be addressed. After giving the other Party such initial Notice, the granting Party shall promptly give the other Party Notice of any change in the information provided in the initial Notice or any revised Notice.

15.2 Rights of Lender. If a Party grants an interest under this Agreement as permitted by Section 15.1, the other Party shall in good faith work with such Party and its Lender to execute a consent to collateral assignment of this Agreement substantially in the form attached hereto as Exhibit T (“Consent to Collateral Assignment”).

ARTICLE 16

DISPUTE RESOLUTION

16.1 Governing Law. This agreement and the rights and duties of the parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of law. To the extent enforceable at such time, each party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this agreement.

16.2 Dispute Resolution. In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a written Notice from either Party identifying such dispute, the Parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within the earlier of either thirty (30) days of initiating such discussions, or within forty (40) days after Notice of the dispute, either Party may seek any and all remedies available to it at Law or in equity, subject to the limitations set forth in this Agreement.

16.3 Attorneys’ Fees. In any proceeding brought to enforce this Agreement or because of the breach by any Party of any covenant or condition herein contained, the prevailing Party shall be entitled to reasonable attorneys’ fees (including reasonably allocated fees of in-house counsel) in addition to court costs and any and all other costs recoverable in said action.

16.4 Venue. The Parties agree that any litigation arising with respect to this Agreement is to be venued in the Superior Court for the county of San Mateo, California 114
68 ARTICLE 17

INDEMNIFICATION

17.1 Indemnification.
(a) Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party and its Affiliates, directors, officers, employees and agents (collectively, the “Indemnified Party”) from and against all third-party claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) for personal injury or death to Persons and damage to the property of any third party to the extent arising out of, resulting from, or caused by the violation of Law or the negligent or willful misconduct of the Indemnifying Party, its Affiliates, its directors, officers, employees, or agents. (b) Nothing in this Section 17.1 shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this 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.

17.2 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 17 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 such 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 17, in the event that a Party is obligated to indemnify and hold the other Party and its successors and assigns harmless under this Article 17, the amount owing to the Indemnified Party will be the amount of the Indemnified Party’s damages net of any insurance proceeds received by the Indemnified Party following a reasonable effort by the Indemnified Party to obtain such insurance proceeds.

ARTICLE 18

INSURANCE

18.1 Insurance.
115
69 (a) General. Seller shall comply at all times during the Contract Term with the requirements of Exhibit J.
(b) Subcontractor Insurance. Seller shall require all of its subcontractors to carry: (i) comprehensive general liability insurance in amounts equal to those set forth for Seller in Exhibit J; (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, in each case, in amounts equal to those set forth for Seller in Exhibit J. All subcontractors shall name Seller as an additional insured to insurance carried pursuant to clauses (b)(i) and (b)(iii). All subcontractors shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 18.1(b). (c) 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. These certificates shall specify that Buyer shall be given at least thirty (30) days prior Notice by Seller in the event of any material modification, cancellation or termination of coverage. Such insurance shall be primary coverage without right of contribution from any insurance of Buyer. Any other insurance maintained by Seller is for the exclusive benefit of Seller and shall not in any manner inure to the benefit of Buyer. Seller shall also comply with all insurance requirements by any renewable energy or other incentive program administrator or any other applicable authority.
(d) Failure to Comply with Insurance Requirements. If Seller fails to comply with any of the provisions of this Article 18, 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 18 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 19

CONFIDENTIAL INFORMATION

19.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written, and whether delivered by Seller to Buyer or by Buyer to Seller: (a) proposals and negotiations of the Parties in the negotiation of this Agreement; (b) the terms and conditions of this Agreement; and (c) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” or words of similar import before disclosing it to the other. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient; (iii) information that 116
70 was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement.

19.2 Duty to Maintain Confidentiality. The Party receiving Confidential Information shall treat it as confidential, and shall adopt reasonable information security measures to maintain its confidentiality, employing the higher of (a) the standard of care that the receiving Party uses to preserve its own confidential information, or (b) a standard of care reasonably tailored to prevent unauthorized use or disclosure of such Confidential Information. Confidential Information may be disclosed by the recipient if and to the extent such disclosure is required (a) by Law, (b) pursuant to an order of a court or (c) in order to enforce this Agreement. The Party that originally discloses Confidential Information may use such information for its own purposes, and may publicly disclose such information at its own discretion. Notwithstanding the foregoing, Seller acknowledges that Buyer is required to make portions of this Agreement available to the public in connection with the process of seeking approval from its board of directors for execution of this Agreement. Buyer may, in its discretion, redact certain terms of this Agreement as part of any such public disclosure, and will use reasonable efforts to consult with Seller prior to any such public disclosure. Seller further acknowledges that Buyer is a public agency subject to the requirements of the California Public Records Act (Cal. Gov. Code section 6250 et seq.). Upon request or demand from any third person not a Party to this Agreement for production, inspection and/or copying of this Agreement or other Confidential Information provided by Seller to Buyer, Buyer shall, to the extent permissible, notify Seller in writing in advance of any disclosure that the request or demand has been made; provided, upon the advice of its counsel that disclosure is required, Buyer may disclose this Agreement or any other requested Confidential Information, whether or not advance written notice to Seller has been provided. Seller shall be solely responsible for taking whatever steps it deems necessary to protect Confidential Information that is the subject of any Public Records Act request submitted by a third person to Buyer.

19.3 Irreparable Injury; Remedies. Buyer and Seller each agree that disclosing Confidential Information of the other in violation of the terms of this Article 19 may cause irreparable harm, and that the harmed Party may seek any and all remedies available to it at Law or in equity, including injunctive relief and/or notwithstanding Section 12.2, consequential damages.

19.4 Disclosure to Lender. Notwithstanding anything to the contrary in this Article 19, Confidential Information may be disclosed by Seller to any potential Lender or any of its agents, consultants or trustees so long as the Person to whom Confidential Information is disclosed agrees in writing to be bound by the confidentiality provisions of this Article 19 to the same extent as if it were a Party.

19.5 Disclosure to Credit Rating Agency. Notwithstanding anything to the contrary in this Article 19, Confidential Information may be disclosed by either Party to any nationally recognized credit rating agency (e.g., Moody’s Investors Service, Standard & Poor’s, or Fitch Ratings) in connection with the issuance of a credit rating for that Party or its Affiliates, provided, 117
71 any such credit rating agency agrees in writing to maintain the confidentiality of such Confidential Information.

19.6 Public Statements. Neither Party shall issue (or cause its Affiliates to issue) a press release regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such press release.

ARTICLE 20

MISCELLANEOUS

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

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

20.3 Time is of the Essence. The Parties agree that time is of the essence with respect each Party’s performance of its obligations under the Agreement.

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

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

20.6 Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal or unenforceable provision(s) with legally acceptable clauses which correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as a whole.
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72 20.7 Mobile-Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms or conditions of service of this Agreement proposed by a Party, a non-Party or the FERC acting sua sponte 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).

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

20.9 Facsimile or Electronic Delivery. This Agreement may be duly executed and delivered by a Party by execution and facsimile or electronic format (including portable document format (.pdf)) delivery of the signature page of a counterpart to the other Party, and, if delivery is made by facsimile or other electronic format, the executing Party shall promptly deliver, via overnight delivery, a complete original counterpart that it has executed to the other Party, but this Agreement shall be binding on and enforceable against the executing Party whether or not it delivers such original counterpart.

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

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

20.12 Change in Electric Market Design. If a change in the CAISO Tariff renders this Agreement or any provisions hereof incapable of being performed or administered, then any Party may request that Buyer and Seller enter into negotiations to make the minimum changes to this Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Effective Date. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, or constitute, or form the basis of, a Force Majeure Event, and (ii) this Agreement shall remain in full force and effect, subject to any necessary changes, if any, agreed to by the Parties or determined through dispute resolution.

ARTICLE 21
119
73 CPUC MODIFIABLE STANDARD CONTRACT TERMS

21.1 STC 18: Application of Prevailing Wage.

To the extent applicable, Seller shall comply with the prevailing wage requirements of Public Utilities Code section 769.2(b)(1).

EXHIBIT A

DESCRIPTION OF THE FACILITY
Facility Name: King Kettle Clean Power I, Unit A
120
121
75 Generation Technology: The Facility is a ground-mounted photovoltaic system consisting of Storage Technology: Lithium-ion (LFP) battery energy storage system; 3 MW AC / 12 MWh, minimum four (4) hours of continuous discharging at the maximum rate of discharge; DC-coupled with the Generating Facility via DC/DC converters.

P-node/Delivery Point:

Point of Interconnection:

Description of Interconnection Facilities and Metering:

CAISO Queue Number:
122
123
Exhibit B - 1

EXHIBIT B

FACILITY CONSTRUCTION AND COMMERCIAL OPERATION

1. Construction of the Facility.
a. Seller shall cause construction to begin on the Facility by December 31st, 2027, (as such date may be extended by the Development Cure Period, the “Guaranteed Construction Start Date”). Seller shall demonstrate the beginning of construction through execution of Seller’s engineering, procurement and construction contract, Seller’s issuance of a notice to proceed under such contract, mobilization to site by Seller and/or its designees, and includes the physical movement of soil at the Site (“Construction Start”). On the date of the beginning of construction (the “Construction Start Date”), Seller shall deliver to Buyer a certificate substantially in the form attached as Exhibit H hereto.
b. If Construction Start is not achieved by the Guaranteed Construction Start Date, Seller shall pay Daily Delay Damages to Buyer on account of such delay. Daily Delay Damages shall be payable for each day for which Construction Start has not begun by the Guaranteed Construction Start Date. Daily Delay Damages shall be payable to Buyer by Seller until the earlier of one hundred twenty (120) days after the Guaranteed Construction Start Date, or the date on which Seller reaches Construction Start of the Facility. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Daily Delay Damages, if any, accrued during the prior month and, within ten (10) Business Days following Seller’s receipt of such invoice, Seller shall pay Buyer the amount of the Daily Delay Damages set forth in such invoice. Daily Delay Damages shall be refundable to Seller pursuant to Section 3(b) of this Exhibit B. The Parties agree that Buyer’s receipt of Daily Delay Damages shall be Buyer’s sole and exclusive remedy for the first one hundred twenty (120) days of the delay in achieving the Construction Start Date on or before the Guaranteed Construction Start Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 11.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s rights pursuant to Section 11.2.

2. Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and (ii) Seller has provided Notice to Buyer that Commercial Operation has been achieved and specifying the “placed in service” date per Internal Revenue Service Requirements of the Facility.

The “Commercial Operation Date” shall be the later of (x) December 31st, 2028 or (y) the date on which Commercial Operation is achieved.
a. Seller shall cause Commercial Operation for the Facility to occur by December 31st, 2028 (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. b. If Seller achieves Commercial Operation by the Guaranteed Commercial Operation Date, all Daily Delay Damages paid by Seller shall be refunded to Seller. Seller shall include the 124
Exhibit B - 2
request for refund of the Daily Delay Damages with the first invoice to Buyer after the Commercial Operation Date.
c. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Buyer shall retain Daily Delay Damages, as applicable, and Seller shall pay Commercial Operation Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date. Commercial Operation Delay Damages shall be payable to Buyer by Seller until the Commercial Operation Date. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if any, accrued during the prior month. The Parties agree that Buyer’s retention of Daily Delay Damages and receipt of Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for the of delay in achieving the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 11.1 and (y) not limit Buyer’s right to declare an Event of Default under Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section 11.2.

3. Termination for Failure to Timely Achieve Construction Start or Commercial Operation. If the Facility has not achieved Construction Start within one hundred twenty (120) days after the Guaranteed Construction Start Date, or Commercial Operation within after the Guaranteed Commercial Operation Date, Buyer may elect to terminate this Agreement pursuant to Sections 11.1(b)(ii) and 11.2(a), which termination shall become effective as provided in Section 11.2(a).

4. Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall be extended on a day-for-day basis, as applicable, (the “Development Cure Period”) for the duration of each of the following delays:
a. a Force Majeure Event occurs; or
b. for the Guaranteed Commercial Operation Date only, Buyer has not made all necessary arrangements to receive the Energy at the Delivery Point by the Guaranteed Commercial Operation Date.

Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period (other than the extensions granted pursuant to clause 4(b) above) shall not exceed one hundred eighty (180) days, for any reason, and, without limiting the provisions of Section 10.3, no extension shall be given to the extent that (i) the delay was the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines; (ii) Seller failed to provide prompt written notice to Buyer of a delay due to a Force Majeure Event, but in no case more than thirty (30) days after Seller became aware of an actual delay (not including Seller’s receipt of generic notices of potential delays due to a Force Majeure Event) affecting the Facility, except that in the case of a delay occurring within sixty (60) days of the Guaranteed Commercial Operation Date, or after such date, Seller must provide written notice within seven (7) Business Days of Seller becoming aware of such delay; or (iii) Seller failed, upon written request from Buyer, to provide documentation demonstrating to Buyer’s reasonable 125
Exhibit B - 3
satisfaction that the delay was a result of a Force Majeure Event and 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. If, at Commercial Operation, the Installed PV Capacity is at least ninety-five percent (95%) of Guaranteed PV Capacity, but less than the Guaranteed PV Capacity, or the Installed Storage Capacity is at least ninety-five percent (95%) of the Guaranteed Storage Capacity but less than the Guaranteed Storage Capacity, Seller shall have ninety (90) days after the Commercial Operation Date to install additional generating and/or storage capacity such that the Installed PV Capacity and/or the Installed Storage Capacity, as applicable, is increased, but not to exceed the Guaranteed PV Capacity or Guaranteed Storage Capacity. If Seller installs additional storage or generating capacity pursuant to the immediately preceding sentence, Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit G-2 hereto specifying the new Installed PV Capacity and Installed Storage Capacity. In the event that the Installed PV Capacity is still less than the Guaranteed PV Capacity or the Installed Storage Capacity is still less than the Guaranteed Storage Capacity as of such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Three Hundred Fifty Thousand Dollars ($350,000) for each MW that the Guaranteed PV Capacity exceeds the Installed PV Capacity and Five Hundred Thousand Dollars ($500,000) for each MW that the Guaranteed Storage Capacity exceeds the Installed Storage Capacity, and the Guaranteed PV Capacity, Guaranteed Storage Capacity, and other applicable portions of the Agreement shall be reduced based on the ratio of the Installed PV Capacity as of such date to the original Guaranteed PV Capacity or the Installed Storage Capacity as of such date to the original Guaranteed Storage Capacity, as applicable.

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, and Seller shall replenish the Development Security to its full amount within five (5) Business Days after such draw. 126
Exhibit C - 1

EXHIBIT C
[Intentionally Omitted]
127
Exhibit D - 1

EXHIBIT D

GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION
In accordance with Section 4.8, 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 – D)]
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 = Replacement price for the Performance Measurement Period, in $/MWh, which is calculated as (a) the simple average of the Integrated Forward Market hourly price for all the hours in the Performance Measurement Period, as published by the CAISO, for the Existing Zone Generation Trading Hub (as defined in the CAISO Tariff) for the Delivery Point, plus (ii) for any portion of the Production Shortfall for which Buyer purchased replacement RECs, the amount of Buyer’s cost of such replacement RECs, plus (iii) for any portion of the Production Shortfall for which Buyer did not purchase replacement RECs, the lesser of (A) the current prevailing market value of such PCC1 RECs, as reasonably determined by Buyer, or (B) $100/MWh, minus (c) the Renewable Rate
D = the average Renewable Rate for the Performance Measurement Period, in $/MWh
No payment shall be due if the calculation of (A - B) or (C - D) yields a negative number.

Within sixty (60) days after each Performance Measurement Period, Buyer will 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.

Additional Definitions:
“Adjusted Energy Production” means the sum of the following: PV Energy + Deemed Delivered Energy + Lost Output – Excess MWh.
“Lost Output” means the amount of Energy that qualifies as PCC1, expressed in MWh, that the Generating Facility would have generated and delivered, but did not, on account of Force Majeure Event, Buyer Default, or Curtailment Order, which amount shall be equal to (a) the VER 128
Exhibit D - 2
Forecast expressed in MWh, applicable to the Buyer Curtailment Period, or (b) if there is no VER Forecast available or Seller demonstrates to Buyer’s reasonable satisfaction that the VER Forecast does not represent an accurate forecast of generation from the Generating Facility, the amount determined by a third party reasonably acceptable to Buyer using an industry standard forecasting or back-casting methodology to determine the potential generation of the Generating Facility as a function of Available Generating Capacity, solar insolation and panel temperature, and using relevant Facility availability, weather, historical and other pertinent data for the period of time during the period in which the Force Majeure Event, Buyer Default, or Curtailment Order occurred.
“Production Shortfall” means the amount of Energy shortfall calculated as A – B in the formula above.
129
Exhibit E - 1

EXHIBIT E

PROGRESS REPORTING FORM
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 written Progress Report in the form specified below.

Each Progress Report must include the following items:

1. Executive summary.

2. Facility description.

3. Site plan of the Facility.

4. Description of any 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 could potentially affect Seller’s Milestones.

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

11. Progress and schedule of all agreements, contracts, 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 Transmission System and all other interconnection utility services.

13. Workforce Development or Supplier Diversity Reporting (if applicable). Format to be provided by Buyer.

14. Any other documentation reasonably requested by Buyer. 130
Exhibit F - 1

EXHIBIT F

BUYOUT OPTION
(1) Buyout Option. No later than ninety (90) days prior to the last day of each of (i) the tenth (10th) Contract Year of the Contract Term, (ii) the fifteenth (15th) Contract Year of the Contract Term and (iii) the twentieth (20th) Contract Year of the Contract Term, Buyer may deliver Notice to Seller indicating whether it elects to purchase the Facility. If Buyer elects to make a purchase, Buyer shall pay to Seller a “Buyout Payment” within thirty (30) days prior to the last day of such Contract Year equal to the Fair Market Value of the Facility as of such date, as determined pursuant to clause (2) below.
(2) Calculation of Fair Market Value. If Buyer provides Notice to Seller that it is contemplating exercising its rights under this Exhibit F, the Parties shall mutually agree upon an independent appraiser on or before the date that is sixty (60) days prior to the last day of (i) the tenth (10th) Contract Year of the Contract Term, (ii) the fifteenth (15th) Contract Year of the Contract Term, or (iii) the twentieth (20th) Contract Year of the Contract Term, if applicable. Such appraiser shall determine, at equally shared expense of Buyer and Seller, the fair market value of the Facility as of the date on which the Buyout Payment is to be paid, taking into account such items as deemed appropriate by the appraiser, which may include the resale value of the Facility, and the price of the Product (the “Fair Market Value”). In the event that Buyer and Seller cannot agree upon a single independent appraiser, each Party shall contract for an independent appraiser at its own expense, and the Fair Market Value shall be the simple average of the determinations of the two independent appraisers. On or prior to the date that is thirty (30) days prior to the last day of such Contract Year, the appraiser shall deliver its determination of Fair Market Value to each of Buyer and Seller. After the appraiser provides the Parties with its appraisal of Fair Market Value of the Facility, Buyer shall have thirty (30) days to decide whether to consummate its option to purchase the Facility. If Buyer does not provide Notice to Seller that Buyer intends to exercise its option to purchase the Facility within thirty (30) days of receipt of the Fair Market Value appraisal, Buyer shall be deemed to have not exercised its option to purchase the Facility. (3) Passage of Title. Upon receipt of the Buyout Payment, the Parties shall execute all documents necessary to cause title to the Facility to pass to Buyer on an as-is, where-is, with-all-faults basis; provided, Seller shall remove any encumbrances held by Seller with respect to the Facility.
131
Exhibit G1 - 1
EXHIBIT G-1

FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by _______[Licensed Professional Engineer] (“Engineer”) to WestLight Energy (“Buyer”) in accordance with the terms of that certain Power Purchase and Sale 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.

Engineer hereby certifies and represents to Buyer the following:
(1) Seller has installed generating equipment with a nameplate capacity of no less than ninety-five percent (95%) of the Guaranteed PV Capacity. (2) Seller has installed and commissioned storage equipment with a capacity of at least ninety-five percent (95%) of the Guaranteed Storage Capacity in accordance with Exhibit M of the Agreement.
(3) The Storage Facility is capable of receiving Charging Energy from and delivering Discharging Energy to the Delivery Point and commissioning of equipment at the Storage Facility has been completed in accordance with the manufacturer’s specifications. (4) The Generating Facility’s testing included a performance test demonstrating peak electrical output of no less than ninety-five percent (95%) of the Guaranteed PV Capacity at the Delivery Point.
(5) Authorization to parallel the Facility was obtained by the Participating Transmission Owner, [Name of Participating Transmission Owner as appropriate] on___[DATE]____ (6) The Participating Transmission Owner or Distribution Provider has provided documentation supporting full unrestricted release for Commercial Operation by [Name of Participating Transmission Owner as appropriate] on _______[DATE]_____. (7) The CAISO has provided notification supporting the Facility’s Commercial Operation, inclusion in the Full Network Model and authorization to provide Ancillary Services from the Storage Facility, all in accordance with the CAISO tariff on _______[DATE]_____. (8) Seller has segregated and separately metered Station Use in accordance with Prudent Operating Practice, and any such meter(s) have the same or greater level of accuracy as is required for CAISO certified meters used for settlement purposes. (9) The total rated power of the Storage Facility inverters associated with the Installed Storage Capacity as measured to the Delivery Point is at least [____] MW charging and [____] MW discharging at 45°C ambient air temperature.
132
Exhibit G1 - 2
29181659v1
EXECUTED by [licensed professional engineer]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL
ENGINEER]
By:

Its:

Date:
133
Exhibit G1
-3
29181659v1
134
Exhibit G2 - 1
EXHIBIT G-2

FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity is delivered by [Licensed Professional Engineer] (“Engineer”) to WESTLIGHT ENERGY(“Buyer”) in accordance with the terms of that certain Power Purchase and Sale 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.

The initial Generating Facility performance test under Seller’s engineering, procurement and construction contract or primary solar module supply agreement for the Generating Facility conducted on [Date] demonstrated peak Generating Facility electrical output of __MW AC at the Delivery Point, as adjusted for ambient conditions on the date of the performance test (“Installed PV Capacity”).

The Commercial Operation Storage Capacity Test conducted on [Date] demonstrated a maximum dependable operating capability to discharge electric energy of __ MW AC to the Delivery Point at four (4) hours of continuous discharge, in accordance with the testing procedures, requirements and protocols set forth in Section 4.13 and Exhibit N (“Installed Storage Capacity”).

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

Its:

Date:
135
Exhibit H - 1

EXHIBIT H

FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification (“Certification”) of the Construction Start Date is delivered by [SELLER ENTITY] (“Seller”) to WESTLIGHT ENERGY(“Buyer”) in accordance with the terms of that certain Power Purchase and Sale 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. the engineering, procurement and construction contract related to the Facility was executed on __________;

2. the limited notice to proceed with the construction of the Facility was issued on ______________ (attached);

3. the Construction Start Date has occurred;

4. the precise Site on which the Facility is located is, which must be within the boundaries of the previously identified Site:
_____________________________________________________________________ (such description shall amend the description of the Site in Exhibit A).

IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as of the ___ day of ________.
[SELLER ENTITY]
By:

Its:

Date:
136
Exhibit I - 1

EXHIBIT I

FORM OF LETTER OF CREDIT
[Issuing Bank Letterhead and Address]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX]
Date:

Bank Ref.:

Amount: US$[XXXXXXX]
Expiry Date:

Beneficiary:

WestLight Energy
[Address]
Ladies and Gentlemen:

On behalf of [XXXXXXX] (“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 WestLight Energy, Address__________, for an amount not to exceed the aggregate sum of U.S. $[XXXXXXX] (United States Dollars [XXXXXXX] and 00/100), pursuant to that certain [Agreement] dated as of ____________ (the “Agreement”) between Applicant and Beneficiary.

This Letter of Credit shall become effective immediately and shall have an initial expiry date of __________ __, 201_ subject to the automatic extension provisions herein.

Funds under this Letter of Credit are available to you against your draft(s) drawn on us at sight, mentioning thereon our Letter of Credit No. [XXXXXXX] accompanied by your dated statement purportedly signed by your duly authorized representative, in the form attached hereto as Exhibit A, containing one of the two alternative paragraphs set forth in paragraph 2 therein.

We hereby agree with the Beneficiary that all drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored upon presentation to the Issuer in person, by courier or by fax at [insert bank address]. Payment shall be made by Issuer in U.S. dollars with Issuer’s own immediately available funds.

The document(s) required may also be presented by fax at facsimile no. (xxx) xxx-xxx on or before the expiry date (as may be extended below) on this Letter of Credit in accordance with the terms and conditions of this Letter of Credit. No mail confirmation is necessary and the facsimile transmission will constitute the operative drawing documents without the need of originally signed documents.

Partial draws are permitted under this Letter of Credit. 137
Exhibit I - 2
It is a condition of this Letter of Credit that it shall be deemed automatically extended without an amendment for a one year period beginning on the present expiry date hereof and upon each anniversary for such date, unless at least ninety (90) days prior to any such expiry date we have sent to you written notice by overnight courier service that we elect not to permit this Letter of Credit to be so extended, in which case it will expire on its then current expiry date. No presentation made under this Letter of Credit after such expiry date will be honored.

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

This Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision) International Chamber of Commerce Publication No. 600 (the “UCP”), except to the extent that the terms hereof are inconsistent with the provisions of the UCP, including but not limited to 36 of the UCP, in which case the terms of this Letter of Credit shall govern. In the event of an act of God, riot, civil commotion, insurrection, war or any other cause beyond Issuer’s control (as defined in Article 36 of the UCP) that interrupts Issuer’s business and causes the place for presentation of the Letter of Credit to be closed for business on the last day for presentation, the expiry date of the Letter of Credit will be automatically extended without amendment to a date thirty (30) calendar days after the place for presentation reopens for business.

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. [Bank Name]
___________________________
[Insert officer name]
[Insert officer title]
138
Exhibit I - 3
(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 WestLight Energy, 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 [XXXXXXX] (the “Applicant”), hereby certifies to the Bank as follows:

1. Applicant and Beneficiary are party to that certain Agreement dated as of [XXXXXXX] (the “Agreement”).

2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________.
or

3. 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 the Bank has provided notice of its intent to not extend the expiry date of the Letter of Credit and Applicant failed to provide acceptable replacement security to Beneficiary at least thirty (30) days prior to the expiry date of the Letter of Credit.

4. The undersigned is a duly authorized representative of WestLight Energy 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 WestLight Energy by wire transfer in immediately available funds to the following account:
[Specify account information]
WestLight Energy
_______________________________
Name and Title of Authorized Representative
Date___________________________
139
Exhibit J - 1

EXHIBIT J

INSURANCE
Liability Insurance
To the fullest extent allowable by law, Seller shall purchase and maintain such insurance as will protect it from the claims set forth below which may arise out of or result from Seller’s operations under this Agreement whether such operations be by itself or by anyone directly or indirectly employed by them, or by anyone for whose acts any of them may be liable. Limits shall be all the Insurance Coverage and/or limits carried by or available to the Seller, the minimum limits as required herein.

General Conditions
Seller shall maintain completed operations liability insurance for the entire Contract Term plus the period of time Seller may be held legally liable for.

Seller shall maintain policies of insurance in full force and effect, at all times during the performance of the Agreement, plus any statute of repose or statute of limitations applicable to the jurisdiction where any work is performed.

All insurance companies shall have a Best’s rating of A-VII or better.

In addition, Seller shall provide Buyer with 45 days’ notice in case of cancellation or non- renewal, except 10 days for non-payment of premium.

Certificates of Insurance Acord Form 25 and all required Endorsements shall be filed with Buyer within (5) working days of execution of the contract and/or prior to commencement of any work performed.

If requested by the Buyer, Seller shall provide a certified and true copy of any or all policies.

Acceptance of the certificates or endorsements by the Buyer shall not constitute a waiver of Seller’s obligations hereunder.

If Seller fails to secure and/or pay the premiums for any of the policies of insurance required herein, or fails to maintain such insurance, Buyer may, in addition to any other rights it may have under this Agreement or at law or in equity, terminate this Agreement or secure such policies or policies of insurance for the account of Seller and charge Seller for the premiums paid therefore, or withhold the amount thereof from sums otherwise due from Buyer to Seller. Neither the Buyer’s rights to secure such policy or policies nor the securing thereof by Buyer shall constitute an undertaking by Buyer on behalf of or for the benefit of Seller or others to determine or warrant that such policies are in effect.

Seller shall be fully and financially responsible for all deductibles or self-insured retentions. 140
Exhibit J
-2
141
Exhibit J - 3
Coverage Forms & Limits
Seller’s Commercial General Liability insurance shall be written on an industry standard Commercial General Liability Occurrence from (CG 00 01, 12/07) or its equivalent and shall include but not be limited to products/completed operations; premises and operations; blanket contractual; advertising/personal injury; independent Buyers.

Coverage shall be on an occurrence form with policy limits of not less than:
• $1,000,000 Each Occurrence Bodily Injury & Property Damage • $1,000,000 Personal & Advertising Injury
• $2,000,000 General Aggregate to apply on a Per Project basis • $2,000,000 Products/Completed Operations Aggregate
Business Auto Liability – Coverage shall be no less than that provided by Insurance Services Office, Inc. (ISO) form CA 00 01, written on an occurrence basis to apply to “any auto” or at a minimum “all owned, hired and non-owned autos”, with policy limits of not less than $1,000,000 per accident for bodily injury and property damage.

If applicable, Broadened Pollution for Covered Autos shall apply. This requirement may also be satisfied by providing proof of separate Pollution Liability that includes coverage for transportation exposures.

Workers’ Compensation and (b) employers’ liability – Sellers shall provide coverage for industrial injury to their employees (or leased employees as applicable) in strict accordance with the provisions of the State or States in which project work is performed or where jurisdiction is deemed to be applicable. Workers’ Compensation shall be provided in a statutory form on either a state or, where applicable, federal (U.S. Longshore & Harbor Workers Act, Maritime- Jones Act, etc.) basis as required in the applicable jurisdiction.

Such insurance shall be in an amount of not less than:
• Workers Compensation: Statutory
• Employers Liability
o $1,000,000 Bodily Injury by Accident – Each Accident
o $1,000,000 Bodily Injury by Disease – Total Limit
o $1,000,000 Bodily Injury by Disease – Each Employee
Commercial Umbrella or Excess Liability Insurance over Seller’s primary Commercial General Liability, Business Auto Liability and Employers Liability. All coverage terms required under the Commercial General Liability, Business Auto Liability and Employers Liability above must be included on the Umbrella or Excess Liability Insurance.

Coverage shall be written on an occurrence form with policy limits not less than:
• $5,000,000 Each Occurrence
• $5,000,000 Personal & Advertising Injury
• $5,000,000 Aggregate (where applicable, following the terms of the underlying) 142
Exhibit J - 4
Pollution liability – Seller shall provide evidence prior to the Construction Start Date of Pollution Liability; covering all operations necessary or incidental to the fulfillment of all contract obligations hereunder. Such insurance shall provide coverage for bodily injury, property damage (including loss of use of damaged property or of property that has not been physically injured), clean- up costs and remediation expenses (including costs for investigation, sampling, characterization, and monitoring), legal costs, defense costs, natural resource damage, transportation of pollutants on and off the project site, and non-owned disposal site liability if Seller’s scope of work (or Seller’s consultants) includes the responsibility of manifesting and disposing of contaminated material or waste from its activities. Coverage shall also extend to pollution conditions arising out of the Seller’s operations including coverage for sudden as well as gradual release arising from Seller’s operations including operations of any of its Seller’s or consultants. Such insurance shall provide coverage for wrongful acts, which may arise from all activities from the first point of Seller engagement and shall continue on a practice basis for not less than 36 months after completion, or the period of time Seller may be held legally liable for its work, whichever is longer. The retro date if any such coverage shall be prior to the commencement of Seller’s work.

Such insurance shall be in an amount of not less than $5,000,000 per claim or occurrence and $5,000,000 annual aggregate.

If Seller maintains Pollution Liability limits greater than what is required herein, such limits carried become what we require under this contract.

Professional Liability and/or Errors & Omissions – Seller shall provide evidence of Professional Liability insurance covering claims that arise from the actual or alleged errors, omissions or acts of the Seller or any entity for which the Seller is legally responsible, for the provision of all professional services necessary or incidental to the fulfillment of all contract obligations hereunder.

Such insurance shall be in an amount of not less than $2,000,000 each claim / $4,000,000 aggregate.

If Seller maintains Professional Liability limits greater than what is required herein, such limits carried become what we require under this Agreement.

The policy shall be effective from the date of commencement of all professional services in connection with the fulfillment of all contract obligations hereunder. The retroactive date in the current and future policies shall be prior to the commencement of all professional services.

Coverage shall be maintained for a period not less than 36 months or the period of time Seller may be held legally liable for its work, (whichever is longer) following the completion of the work; or an extended reporting period of 36 months following completion of the work shall be purchased.

Coverages shall not include any exclusion or other limitations related to scopes of services or project type or construction type, or delays in project completion and cost overruns.

Additional Insured / Primary-Noncontributory / Waiver of Subrogation Requirements To the fullest extent of coverage allowed under applicable law, Buyer shall be named as additional insured on a primary and non-contributory basis for all required lines of coverage except Statutory 143
Exhibit J - 5
Workers Compensation and Professional Liability, arising out of all operations performed by or for the Seller under this Agreement. Buyer shall accept General Liability Additional Insured forms CG 20 10 11/85, CG 20 10 10/01 & CG 20 37 10/01 or their equivalent.

Additional Insured status shall be for all limits carried, not limited to the minimum acceptable as required herein. Seller’s insurance shall be Primary as respects to Buyer and Owner, and any other insurance maintained by Buyer and Owner shall be excess and not contributing insurance with Seller’s insurance until such time as all limits available under the Seller’s insurance policies have been exhausted.

Additional Insured endorsements that contain comparative fault, vicarious liability or sole negligence limitations of the Buyer / Owner or any other party required by the contract, will not be accepted.

In the event that any policy provided in compliance with this Agreement states that the coverage provided to an additional insured shall be no broader than that required by contract, or words of similar meaning, the Parties agree that nothing in this Agreement is intended to restrict or limit the breadth of coverage or limits available.

The additional insured status shall remain in full force and effect for the Contract Term plus the applicable statute of repose, or the amount of time you are legally liable, whichever is longer.

It is further agreed that the additional insured coverage required under this Agreement shall not be subject to any Defense Costs Endorsements such as Form IL 01 23 11 13, allowing for the recovery of defense costs by the insurer if the insurer initially pays defense costs but later determines the claims are not covered.

Buyer reserves the right, in its sole and subjective discretion, to reject any Additional Insured forms that are deemed not equivalent to what is required herein.

Waiver of Subrogation – Seller shall provide a Waiver of Subrogation Endorsement naming Buyer for all lines of coverage.

Additional Requirements
Property Insurance
Seller shall procure and maintain, at the Seller’s own expense, Builder’s Risk, property and equipment insurance, including for any property stored off the Site, in transit or any of the Buyer’s property in the care, custody or control of Seller. Seller and Seller’s insurance carrier(s) hereby waive all rights of subrogation against Buyer for damage including loss of use.

Buyer neither represents nor assumes responsibility for the adequacy of the Builders Risk Insurance to protect the interests of the Seller. It shall be the obligation of the Seller to purchase and maintain any supplementary property insurance that it deems necessary to protect its interest in the Work, including without limitation off site stored materials and materials in transit.

Seller is solely responsible for loss or damage to its personal property. 144
Exhibit K - 1

EXHIBIT K
[INTENTIONALLY OMITTED]
145
Exhibit L1 - 1
EXHIBIT L-1
Annual Energy Forecast
The following table is provided for informational purposes only.

Please provide the expected PV Energy in Pacific Prevailing Time. For the Daylight Savings Day in March, the HE3 volume should be 0 MWh. For the Daylight Savings Day in November, the HE2 volume should represent two hours of generation.

Date Datetime (Hour
Beginning)
Hour Ending MWh
1/1/2022 1/1/2022 0:00 1
1/1/2022 1/1/2022 1:00 2
1/1/2022 1/1/2022 2:00 3
1/1/2022 1/1/2022 3:00 4
1/1/2022 1/1/2022 4:00 5
1/1/2022 1/1/2022 5:00 6
[insert additional rows] … …
12/31/2022 12/31/2022 18:00 19
12/31/2022 12/31/2022 19:00 20
12/31/2022 12/31/2022 20:00 21
12/31/2022 12/31/2022 21:00 22
12/31/2022 12/31/2022 22:00 23
12/31/2022 12/31/2022 23:00 24
146
Exhibit L2 - 1
EXHIBIT L-2
Monthly Expected Available Generating Capacity
The following table is provided for informational purposes only.

Please adjust the table for the appropriate number of days in the month for each month of the year.

Monthly Forecast of Available Generating Capacity (MW)
c 1:00* 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 Day 1
Day 2
Day 3
Day 4
Day 5
[insert additional rows for each day of the month]
Day
26 Day
27 Day
28 Day
29**
Day
30**
Day
31**
147
Exhibit L2 - 2
*All times are designated as “Hour-Ending [__]”.
**Include these rows if needed for each month.
148
Exhibit L3 - 1
EXHIBIT L-3
Monthly Expected Available Storage Capacity
The following table is provided for informational purposes only.

Please adjust the table for the appropriate number of days in the month for each month of the year.

Monthly Expected Available Storage Capacity (MW) per hour – [Insert Month] 1:00* 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 Day 1
Day 2
Day 3
Day 4
Day 5
[insert additional rows for each day of the month]
Day 26
Day 27
Day 28
Day
29**
Day
30**
Day
31**
*All times are designated as “Hour-Ending [__]”.
149
Exhibit L3 - 1
**Include these rows if needed for each month.
150
Exhibit L3 - 1
EXHIBIT L-4
Monthly Expected PV Energy
The following table is provided for informational purposes only.

Please adjust the table for the appropriate number of days in the month for each month of the year.

Monthly Expected PV Energy (MWh)
1:00* 2:00 3:00 4:00 5:00 6:00 7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00 20:00 21:00 22:00 23:00 24:00 Day 1
Day 2
Day 3
Day 4
Day 5
[insert additional rows for each day of the month]
Day 26
Day 27
Day 28
Day
29**
Day
30**
Day
31**
151
Exhibit L3 - 1
*All times are designated as “Hour-Ending [__]”.
**Include these rows if needed for each month.
152
153
Exhibit M - 2
“AVAILABLE STORAGE CAPABILITY” = the sum of the following (taking into account the SOC at the time of calculation):
i. The battery capability (in MWh) available to receive Charging Energy from the Delivery Point in the applicable Calculation Interval ii. The battery capability (in MWh) available to deliver Discharging Energy to the Delivery Point in the applicable Calculation Interval “TOTAL CALCULATION INTERVALS” = the total number of Calculation Intervals in the applicable month.
(b) If the total rated power of the Storage Facility inverters as measured to the Delivery Point at forty-five degrees (45°) C ambient air temperature is less than the Installed Storage Capacity, then Buyer shall have the right, in its reasonable discretion, to reduce the Available Storage Capacity by applying an ambient temperature derate to the applicable Calculation Interval.

2. Storage Availability Adjustment. The “Storage Availability Adjustment” shall be calculated as follows and applied to the Storage Capacity Payment due for the next month after the end of the monthly period for which the Monthly Storage Availability is calculated. (a) If the Monthly Storage Availability is greater than or equal to the Guaranteed Storage Availability, then:

Storage Availability Adjustment = 100% (expressed as a decimal) 154
Exhibit M - 3
(b) If the Monthly Storage Availability is less than the Guaranteed Storage Availability but greater than or equal to seventy percent (70%), then:
where:

Secondary Unavailability = the sum of all Unavailable Calculation Intervals in the applicable month that resulted from either (i) a Force Majeure Event for which Seller is the claiming party, or (ii) a Curtailment Order, divided by the Total Calculation Intervals for the month
(c) If (i) the Monthly Storage Availability is less than seventy percent (70%), then:

Storage Availability Adjustment = 0
155
Exhibit N - 1

EXHIBIT N

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 B) shall be performed in accordance with this Exhibit N and shall establish the Installed Storage Capacity hereunder based on the actual capacity and capabilities of the Storage Facility determined by such 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. 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 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 4.13(c) of the Agreement and Part II.I. below, after the Commercial Operation Storage Capacity Test(s), the Storage Capacity (up to, but not in excess of, the Installed Storage Capacity) determined pursuant to such Storage Capacity Test shall become the new Storage Capacity at the beginning of the first day of the month following the completion of the test for calculating the Storage Capacity Payment and all other purposes under this Agreement.

Capacity Test Procedures
PART I. GENERAL.
(1) Each Capacity Test shall be conducted in accordance with Prudent Operating Practices, the Operating Restrictions and the provisions of this Exhibit N. For ease of reference, a Capacity Test is sometimes referred to in this Exhibit N 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.
(1) EMS Functionality. The EMS shall be successfully configured to receive data from the Battery Management System (BMS), exchange Distributed Network Protocol 3 data with the Buyer 156
Exhibit N - 2
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.

PART II. REQUIREMENTS APPLICABLE TO ALL CAPACITY TESTS.

A. Test Elements. Each CT shall include the following individual test elements. The Parties acknowledge and agree that should Seller fall short of demonstrating one or more of the Test Elements as specified below, the CT will still be deemed “complete,” and any adjustments necessary to the Storage Capacity resulting from such CT, if applicable, will be made in accordance with this Exhibit N.
(1) Electrical output at the lesser of the maximum discharging level (MW) and Guaranteed Storage Capacity for four (4) continuous hours; and (2) Electrical input at maximum charging level at the Storage Facility Meter (MW), 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 (MW), as sustained until the SOC reaches 100%, not to exceed five (5) hours of total charging time.
(3) The dispatch of the Storage Facility during the CT shall only be done through the ADS signal from the CAISO to the Storage Facility. Seller shall not interfere with or alter the Storage Facility’s response to the ADS signal during the CT or manually alter any EMS or SCADA data recorded by the Storage Facility.

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 Charging Energy;
(3) The amount of Discharging Energy;
(4) SOC; and
157
Exhibit N - 3
(5) Station Use.

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 time between the Storage Facility’s electrical output going from 0 to the maximum sustained discharging level registered during the CT (for purposes of calculating the ramp rate); (5) Amount of time between the Storage Facility’s electrical input going from 0 to the maximum sustained charging level registered during the CT (for purposes of calculating the ramp rate); (6) Amount of Charging Energy to go from 0% SOC to 100% SOC; and (7) Amount of Discharging Energy 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, the Operating Restrictions, 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 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 and, as applicable, the CAISO Tariff. At Buyer’s request, Seller shall provide documentation of all equipment calibration and certification. (4) Ambient Temperature. For tests requested by Buyer (and not for any CAISO-initiated test, which shall occur when directed by CAISO), the average ambient temperature, based on an aggregate of 158
Exhibit N - 4
1-minute resolution data collected throughout the SCT, must be within the range of 8 – 33 degrees Celsius.

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 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 CAISO or the Transmission 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 the completed Installed Capacity Certificate together with 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 and Part III below, 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) therefor.

Seller’s CT report and any submitted capacity certificate shall be deemed invalid if not delivered to Buyer within five (5) Business Days after the completion of any CT. 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 any CT, Buyer may deliver to Seller for its review and approval (such approval not to be unreasonably delayed or withheld) a supplement to this Exhibit N 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”). Any additional Supplementary Capacity Test Protocol (and each update thereto), once approved by Seller, shall be deemed an amendment to this Exhibit N.

I. Adjustment to Storage Capacity. The Storage Capacity shall equal the quotient of (a) the total amount of Discharging Energy delivered to the Delivery Point (expressed in MWh AC) during the first four (4) hours of discharge (up to, but not 159
Exhibit N - 5
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 B) or (B) the Installed Storage Capacity (in the case of any other Storage Capacity Test), multiplied by (ii) four (4) hours) divided by (b) four (4) hours, expressed in MW AC.

PART III –CAPACITY TEST PROTOCOL.

A. Storage Capacity
• 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 via ADS signal 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 Charging Energy.
(6) Following an agreed-upon rest period, command via ADS signal a real power discharge that results in an AC power output of the lesser of (i) the Storage Facility’s 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. (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. Record and store the additional Discharging Energy, if applicable.
• Test Results
(1) The resulting Effective Storage Capacity measurement is the quotient of (a) the total Discharging Energy at the Storage Facility Meter pursuant to Part III Section A(8) above, divided by (b) four (4) hours.
160
Exhibit N
-6
161
Exhibit O - 1

EXHIBIT O

OPERATING RESTRICTIONS
Maximum Cycle Limits: Number of times Buyer may fully charge and discharge the Storage Facility. A full charge will be deemed to have occurred when the cumulative amount of energy added to the Storage Facility over the course of a calendar year equals the Maximum Stored Energy Level (as defined in this Exhibit O). This could occur in one continuous charge or over multiple charges, even if some energy is discharged in between. The inverse is true for a full discharge.

Annual: 365 cycles
Ramp Rates: Dmin to Dmax: up to 100%/s
Cmin to Cmax: up to 100%/s
Dmax to Dmin: up to 100%/s
Cmax to Cmin: up to 100%/s
Frequency ramp rate: 100% MW/Hz
System Response Time: Idle to Dmax: <1s
Idle to Cmax: <1s
Dmax to Cmax: <1s
Cmax to Dmax: <1s
Dmin to Cmin: <1s
Cmin to Dmin: <1s
162
163
Exhibit P - 1

EXHIBIT P

METERING DIAGRAM
164
Exhibit Q - 1

EXHIBIT Q

RTE SHORTFALL PAYMENTS
In the event that the RTEM is less than the GRTE, the monthly Storage Capacity Payment under Section 3.3(e) shall be reduced by the “RTE Shortfall Payment”, calculated as follows:
(GRTE – RTEM) x Average Monthly T4B5 Price x RTEFM x TCEM where:

GRTE = the Guaranteed Round-Trip Efficiency
RTEM = the “Round-Trip Efficiency”, as calculated by dividing (a) the total Discharging Energy for the applicable month by (b) the difference of (i) the total Charging Energy for the applicable month, minus (ii) Reimbursable Station Use for the applicable month The “Average Monthly T4B5 Price” means the average of the four (4) highest hourly average Day-Ahead Market LMPs and the five (5) lowest hourly average Day-Ahead Market LMPs, in each case in the applicable month.

The “Round-Trip Efficiency Factor” or “RTEFM” for each month is determined as follows:

If RTEM > GRTE, then RTEFM = 0
If RTEM < GRTE and RTEM > 70%, then RTEFM = 1.2
If RTEM < 70%, then RTEFM = 1.5
TCEM = the total Charging Energy charged to the Storage Facility in the applicable month. 165
166

EXHIBIT S

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 ifsuch 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 islikely 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 167
accordance with applicable laws and regulations. Suppliers shall provide appropriate support and training to all student 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, workersshall be compensated for overtime at pay rates greaterthan 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 identityand 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 168
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.

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. 169

EXHIBIT T

FORM OF CONSENT TO COLLATERAL ASSIGNMENT
This Consent to Collateral Assignment (this “Consent”) is entered into among (i) WestLight Energy, a California joint powersauthority (“WESTLIGHT”), (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”). WESTLIGHT, 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 ESA (as defined below).

RECITALS
The Parties enter into this Consent with reference to the following facts:

A. Project Company and WESTLIGHT have entered into that certain Energy Storage Agreement, dated as of [Date] [List all amendments as contemplated by Section 3.4] (“ESA”), pursuant to which Project Company will develop, construct, commission, test and operate the Facility and sell the Product to WESTLIGHT, and WESTLIGHT will purchase the Product from Project Company;
B. As collateral for Project Company’s obligations under the ESA, Project Company has agreed to provide to WESTLIGHT certain collateral, which may include Performance Security and Development Security and other collateral described in the ESA (collectively, the “ESA 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 otherthings, 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 ESA 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 ESA that WESTLIGHT 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:
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SECTION 1. CONSENT TO ASSIGNMENT, ETC.

1.1 Consent and Agreement.

WESTLIGHT 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 rightsof Project Company permitted under the ESA (subject to WESTLIGHT’s rights and defenses under the ESA and the terms of this Consent) and accepts any such exercise; provided, insofar as the Collateral Agent exercises any such rights under the ESA or makes any claims with respect to payments or other obligations under the ESA, the terms and conditions of the ESA 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 WESTLIGHT is authorized to act in accordance with Collateral Agent’s instructions, and that WESTLIGHT 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 ESA, or upon the occurrence or non-occurrence of any event or condition under the ESA which would immediately or with the passage of any applicable grace period or the giving of notice, or both, enable WESTLIGHT to terminate or suspend its performance under the ESA (a “ESA Default”), WESTLIGHT will not terminate or suspend its performance under the ESA until it first gives written notice of such ESA Default to Collateral Agent and affords Collateral Agent the right to cure such ESA Default within the applicable cure period under the ESA, which cure period shall run concurrently with that afforded Project Company under the ESA. In addition, if Collateral Agent gives WESTLIGHT written notice prior to the expiration of the applicable cure period under the ESA of Collateral Agent’s intention to cure such ESA Default (which notice shall include a reasonable description of the time during which it anticipates to cure such ESA Default) and is diligently proceeding to cure such ESA Default, notwithstanding the applicable cure period under the ESA, Collateral Agent shall have a period of sixty (60) days (or, if such ESA Default is for failure by the Project Company to pay an amount to WESTLIGHT which is due and payable under the ESA other than to provide ESA Collateral, thirty (30) days, or, if such ESA Default is for failure by Project Company to provide ESA Collateral, ten (10) Business Days) from the Collateral Agent’s receipt of the notice of such ESA Default from WESTLIGHT to cure such ESA Default; provided, (a) if possession of the Facility is necessary to cure any such non-monetary ESA Default and Collateral Agent has commenced foreclosure proceedings within sixty (60) days after notice of the ESA Default and is diligently pursuing such foreclosure proceedings, Collateral Agent will 171
be allowed a reasonable time, not to exceed one hundred eighty (180) days after the notice of the ESA Default, to complete such proceedings and cure such ESA Default, and (b) if Collateral Agent is prohibited from curing any such ESA 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 ESA Default shall be extended for theperiod of such prohibition, so long as Collateral Agent has diligently pursued removal of such process, stay or injunction. Collateral Agent shall provide WESTLIGHT with reports concerning the status of efforts to cure a ESA Default upon WESTLIGHT’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”) WESTLIGHT 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 ESA, and, subject to Sections

1.7(b) and 1.7(c) below, WESTLIGHT and Substitute Owner will recognize each other as counterparties under the ESA and will continue to perform their respective obligations (including those obligations accruing to WESTLIGHT and the Project Company prior to the existence of the Substitute Owner) under the ESA in favor of each other in accordance with the terms thereof; provided, before WESTLIGHT is required to recognize the Substitute Owner, the Substitute Owner must have demonstrated to WESTLIGHT’s reasonable satisfaction that the Substitute Owner has financial qualifications and operating experience [TBD] (a “Permitted Transferee”).

For purposes of the foregoing, WESTLIGHT 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 ESA 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 ESA 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”), WESTLIGHT 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 ESA remaining to be performed having terms substantially the same as the terms of the ESA with respect to the remaining Contract Term (“Replacement ESA”); provided, before WESTLIGHT is required to enter into a Replacement ESA, the Replacement Owner must have demonstrated to WESTLIGHT’s reasonable satisfaction that the Replacement Owner satisfies the requirements of a Permitted Transferee. For purposes of the foregoing, WESTLIGHT 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 172
its designee (if applicable) provide reasonable evidence demonstrating the same. Notwithstanding the execution and delivery of a Replacement ESA, to the extent WESTLIGHT is, or was otherwise prior to its termination as described in this Section 1.5, entitled under the ESA, WESTLIGHT may suspend performance of its obligations under such Replacement ESA, unless and until all ESA Defaults of Project Company under the ESA or Replacement ESA 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 ESA and a Replacement ESA 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 WESTLIGHT’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 WESTLIGHT all of the obligations of Project Company, Substitute Owner or Replacement Owner under the ESA or Replacement ESA, as applicable, including posting and collateral assignment of the ESA Collateral. Upon such assignment and the cure of any outstanding ESA Default, and payment of all other amounts due and payable to WESTLIGHT in respect of the ESA or such Replacement ESA, the transferor shall be released from any further liability under the ESA or Replacement ESA, 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 ESA, including posting and collateral assignment of the ESA Collateral; provided, the obligations of such Substitute Owner shall be no more than those of Project Company under the ESA.
(c) No Liability.

WESTLIGHT acknowledges and agrees that neither Collateral Agent nor any Secured Party shall have any liability or obligation under the ESAas a result of this Consent (except to the extent Collateral 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 ESA, 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 ESA, Collateral Agent shall not have any personal liability to WESTLIGHT under the ESA or Replacement ESA and the sole recourse of WESTLIGHT in seeking enforcement of such obligations against Collateral Agent shall be to the aggregate interest of the Secured Parties 173
in the Facility; provided, such limited recourse shall not limit WESTLIGHT’s right to seek equitable or injunctive relief against Collateral Agent, or WESTLIGHT’s rights with respect to any offset rights expressly allowed under the ESA, a Replacement ESA or the ESA Collateral.

1.8 Delivery of Notices.

WESTLIGHT shall deliver to Collateral Agent, concurrently with the delivery thereof to Project Company, a copy of each notice, request or demand given by WESTLIGHT to Project Company pursuant to the ESA relating to (a) a ESA Default by Project Company under the ESA, (b) any claim regarding a Force Majeure Event by WESTLIGHT under the ESA, (c) any notice of dispute under the ESA, (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 WESTLIGHT’s obligation to give Collateral Agent a notice of ESA Default under Section 1.3. Collateral Agent shall deliver to WESTLIGHT, 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.

WESTLIGHT will, as and when reasonably requested by Collateral Agent from time to time, confirm in writing matters relating to the ESA (including the performance of same by Project Company); provided, such confirmation may be limited to matters of which WESTLIGHT is aware as of the time the confirmation is given and such confirmations shall be without prejudice to any rights of WESTLIGHT under the ESA as between WESTLIGHT 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 WESTLIGHT receives a Financing Document Default Notice, WESTLIGHT shall deal exclusively with Project Company in connection with the performance of WESTLIGHT’s obligations under the ESA. From and after such time as WESTLIGHT receives a Financing Document Default Notice and until a Substitute Owner is substituted for Project Company pursuant to Section 1.4, a Replacement ESA is entered into or the ESA is transferred to a Person to whom the Facility is transferred pursuant to Section

1.6, WESTLIGHT shall, until Collateral Agent confirms to WESTLIGHT in writing that all obligations under the Financing Documents are no longer outstanding, deal exclusively with Collateral Agent in connection with the performance of WESTLIGHT’s obligations under the ESA, and WESTLIGHT 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 applicable laws, WESTLIGHT 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 ESA (b) terminate or suspend its performance under the ESA (except in accordance with Section 1.3) or (c) consent to or accept any termination or cancellation of the ESA by Project 174
Company.

SECTION 2. PAYMENTS UNDER THE ESA

2.1 Payments.

Unless and until WESTLIGHT receives written notice to the contrary from Collateral Agent, WESTLIGHT will make all payments to be made by it to Project Company under or by reason of the ESA directly to Project Company. WESTLIGHT, Project Company, and Collateral Agent acknowledge that WESTLIGHT will be deemed to be in compliance with the payment terms of the ESA to the extent that WESTLIGHT makes payments in accordance with Collateral Agent’s instructions.

2.2 No Offset, Etc.

All payments required to be made by WESTLIGHT under the ESA shall be made without any offset, recoupment, abatement, withholding, reduction or defense whatsoever, other than that expressly allowed by the terms of the ESA.

SECTION 3. REPRESENTATIONS AND WARRANTIES OF WESTLIGHT
WESTLIGHT makes the following representations and warranties as of the date hereof in favor of Collateral Agent:

3.1 Organization.

WESTLIGHT 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. WESTLIGHT has all requisite power and authority, corporate and otherwise, to enter into and to perform its obligations hereunder and underthe ESA, 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 WESTLIGHT of this Consent and the ESA have been duly authorized by all necessary corporate or other action on the part of WESTLIGHT and do not require any approval or consent of any holder (or any trustee for any holder) of any indebtedness or other obligation of WESTLIGHT which, if not obtained, will prevent WESTLIGHT from performing its obligations hereunder or under the ESA 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 ESA is in full force and effect, has been duly executed and delivered on behalf of WESTLIGHT by the appropriate officers of WESTLIGHT, and constitutes the legal, valid and binding obligation of WESTLIGHT, enforceable against WESTLIGHT in accordance 175
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.

Except as set forth in Schedule A attached hereto: (a) Neither WESTLIGHT nor, to WESTLIGHT’s actual knowledge, Project Company, is in default of any of its obligations under the ESA; (b) WESTLIGHT and, to WESTLIGHT’s actual knowledge, Project Company, has complied with all conditions precedent to the effectiveness of its obligations under the ESA; (c) to WESTLIGHT’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 WESTLIGHT or Project Company to terminate or suspend its obligations under the ESA; and (d) the ESA 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.

WESTLIGHT 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 ESA, except as previously disclosed in writing and consented to by WESTLIGHT.

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 WESTLIGHT:

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 ESA, 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 ESA 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.
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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).

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, WESTLIGHT, is in default of any of its obligations under the ESA; (b) Project Company and, to Project Company’s actual knowledge, WESTLIGHT, has complied with all conditions precedent to the effectiveness of its obligations under the ESA; (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 WESTLIGHT or Project Company to terminate or suspend its obligations under the ESA; and (d) the ESA 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 ESA.

SECTION 5. REPRESENTATIONS AND WARRANTIES OF COLLATERAL AGENT Collateral Agent makes the following representations and warranties as of the date hereof in favor of WESTLIGHT 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
177

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 ESA (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 WESTLIGHT or Project Company, in accordance with [Notice Section of the ESA] of the ESA, (b) if to Collateral Agent, to [Collateral Agent Name], [Collateral 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 ESA. 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 provisionof 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.
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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 WESTLIGHT, Project Company and Collateral Agent or (b) waived, except by an instrument in writing signed by the waiving Party.

6.6 Termination.

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 WESTLIGHT 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 ESA or any Replacement ESA, its obligations under such ESA or Replacement ESA 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.

WESTLIGHT 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 provisionsof this Consent and any such agreement, document or instrument, the terms, conditions and provisions of this Consent shall prevail.

6.11 Effective Date.
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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 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.]
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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].

WESTLIGHT ENERGY,
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: ___________________________
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SCHEDULE A
[Describe any disclosures relevant to representations and warranties made in Section 3.4] 182
Execution Version

POWER PURCHASE AND SALE AGREEMENT

COVER SHEET
Seller: King Kettle Clean Power I LLC, a Delaware limited liability company Buyer: WestLight Energy, a California joint powers authority Description of Generating Facility and Storage Facility: A separately metered 2 MW solar photovoltaic electric generating facility located in Kings County, California, plus a separately metered 8 MWh and 2 MW AC energy storage facility with at least four (4) hours of continuous discharging at the maximum rate of discharge, located at the same Site as the Generating Facility in Kings County, California.

Guaranteed Commercial Operation Date: December 31, 2028 Milestones:

Milestone Expected Completion Date
Site Control April 2022
Conditional Use Permit
Interconnection Study Results August 2023
Obtain Full Capacity Deliverability Status Allocation N/A Executed Interconnection Agreement December 2023
Procure Major Equipment
Financial Close
Construction Start
Initial Synchronization
Deliverability Network Upgrades completed N/A
CAISO Commercial Operation
Commercial Operation Date December, 2028
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Delivery Term: 20 Contract Years
Delivery Term Expected Energy:

Contract Year Expected Energy (MWh)
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
184
Contract Year Expected Energy (MWh)
19 20
Monthly Expected Energy:
1 Month Expected Energy (MWh)
January
February
March
April
May
June
July
August
September
October
November
December
Guaranteed Storage Capacity: 2 MW AC at four (4) hours of continuous discharging at the maximum rate of discharge (8 MWh).

Guaranteed PV Capacity: 2 MW AC capacity measured at the Delivery Point. 1 This table reflects Seller’s Expected Energy by calendar month in the first Contract Year, as if the first Contract Year begins on January first. The first Contract Year may begin on another date, per the terms of this Agreement. 185
Guaranteed Interconnection Capacity: 2MW
Guaranteed Round-Trip Efficiency Rate:

Contract Year Guaranteed Efficiency Rate
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
Renewable Rate:
186
Contract Years Renewable Rate ($/MWh)
All
Storage Rate:

Contract Years Storage Rate ($/kW-month)
All
Guaranteed Storage Availability:

Product:
x PV Energy
x Discharging Energy
x Green Attributes: Portfolio Content Category 1
x Future Environmental Attributes
x Capacity Attributes, if applicable
x Storage Product
Scheduling Coordinator: Buyer or Buyer’s Agent.

Development Security:

Performance Security:
[Signatures on following page.]
187
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.

SELLER
King Kettle Clean Power I LLC
By: BlueRock Investments, LLC
Its Managing Member
By:

Name: Ardeshir Arian
Title: CEO
BUYER
WestLight Energy
By:

WestLight Executive Officer
Name:

Title:
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i

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

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

1.2 Rules of Interpretation .......................................................................................... 23 ARTICLE 2 TERM; CONDITIONS PRECEDENT............................................................... 24

2.1 Contract Term....................................................................................................... 24

2.2 Conditions Precedent ............................................................................................ 25

2.3 Development; Construction; Progress Reports..................................................... 26

2.4 Remedial Action Plan ........................................................................................... 27

2.5 Facility Configuration........................................................................................... 27 ARTICLE 3 PURCHASE AND SALE ..................................................................................... 28

3.1 Sale of Product...................................................................................................... 28

3.2 Sale of Green Attributes........................................................................................ 28

3.3 Compensation ....................................................................................................... 28

3.4 Imbalance Energy ................................................................................................. 29

3.5 Ownership of Renewable Energy Incentives........................................................ 30

3.6 Future Environmental Attributes .......................................................................... 30

3.7 Test Energy ........................................................................................................... 30

3.8 Capacity Attributes ............................................................................................... 31

3.9 [Intentionally Omitted] ......................................................................................... 31

3.10 CEC Certification and Verification ...................................................................... 31

3.11 Eligibility .............................................................................................................. 32

3.12 California Renewables Portfolio Standard............................................................ 32

3.13 Compliance Expenditure Cap ............................................................................... 33

3.14 Guaranteed Interconnection Capacity................................................................... 34

3.15 CPUC Mid-Term Reliability Requirements ......................................................... 34

3.16 Buyer’s Re-Sale of Product .................................................................................. 34 ARTICLE 4 OBLIGATIONS AND DELIVERIES................................................................. 34

4.1 Delivery................................................................................................................. 34

4.2 Title and Risk of Loss........................................................................................... 35

4.3 Scheduling Coordinator Responsibilities.............................................................. 35

4.4 Forecasting............................................................................................................ 37

4.5 Dispatch Down/Curtailment ................................................................................. 38

4.6 Charging and Discharging Energy........................................................................ 40

4.7 [Intentionally Omitted] ......................................................................................... 42

4.8 Expected Energy and Guaranteed Energy Production.......................................... 42

4.9 WREGIS ............................................................................................................... 42

4.10 Financial Statements............................................................................................. 44

4.11 Access to Data....................................................................................................... 44

4.12 Storage Availability and Efficiency...................................................................... 46 189
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4.13 Storage Capacity Tests.......................................................................................... 46

4.14 Storage Facility Modifications.............................................................................. 47

4.15 Ancillary Services................................................................................................. 47

4.16 Workforce Agreement .......................................................................................... 47

4.17 Diverse Business Enterprises. .............................................................................. 47

4.18 Shared Facilities.................................................................................................... 48 ARTICLE 5 TAXES................................................................................................................... 48

5.1 Allocation of Taxes and Charges.......................................................................... 48

5.2 Cooperation........................................................................................................... 49

5.3 Ownership............................................................................................................. 49 ARTICLE 6 MAINTENANCE OF THE FACILITY ............................................................. 49

6.1 Maintenance of the Facility .................................................................................. 49

6.2 Maintenance of Health and Safety........................................................................ 50

6.3 Permits and Approvals.......................................................................................... 50

6.4 Energy to Serve Station Use ................................................................................. 50 ARTICLE 7 METERING.......................................................................................................... 51

7.1 Metering................................................................................................................ 51

7.2 Meter Verification................................................................................................. 52 ARTICLE 8 INVOICING AND PAYMENT; CREDIT......................................................... 52

8.1 Invoicing ............................................................................................................... 52

8.2 Payment................................................................................................................. 52

8.3 Books and Records ............................................................................................... 53

8.4 Payment Adjustments; Billing Errors................................................................... 53

8.5 Billing Disputes .................................................................................................... 53

8.6 Netting of Payments.............................................................................................. 54

8.7 Seller’s Development Security ............................................................................. 54

8.8 Seller’s Performance Security............................................................................... 54

8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral ................. 54 ARTICLE 9 NOTICES .............................................................................................................. 55

9.1 Addresses for the Delivery of Notices.................................................................. 55

9.2 Acceptable Means of Delivering Notice............................................................... 55 ARTICLE 10 FORCE MAJEURE............................................................................................ 56

10.1 Definition .............................................................................................................. 56

10.2 No Liability If a Force Majeure Event Occurs ..................................................... 57

10.3 Notice.................................................................................................................... 57

10.4 Termination Following Force Majeure Event....................................................... 57 190
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ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ................................................. 57

11.1 Events of Default .................................................................................................. 57

11.2 Remedies; Declaration of Early Termination Date............................................... 60

11.3 Damage Payment; Termination Payment ............................................................. 61

11.4 Notice of Payment of Termination Payment ........................................................ 62

11.5 Disputes With Respect to Termination Payment.................................................. 62

11.6 Limitation on Seller’s Ability to Make or Agree to Third-Party Sales from the Facility after Early Termination Date ............................................................. 62

11.7 Rights And Remedies Are Cumulative................................................................. 62

11.8 Mitigation.............................................................................................................. 62 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF
WARRANTIES............................................................................................. 63

12.1 No Consequential Damages.................................................................................. 63

12.2 Waiver and Exclusion of Other Damages............................................................. 63 ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY...................... 64

13.1 Seller’s Representations and Warranties .............................................................. 64

13.2 Buyer’s Representations and Warranties.............................................................. 64

13.3 General Covenants................................................................................................ 65 ARTICLE 14 ASSIGNMENT ................................................................................................... 66

14.1 General Prohibition on Assignments.................................................................... 66

14.2 Permitted Assignment; Change of Control of Seller ............................................ 66

14.3 Permitted Assignment; Change of Control of Buyer............................................ 66

14.4 Buyer Financing Assignment................................................................................ 66 ARTICLE 15 LENDER ACCOMMODATIONS.................................................................... 67

15.1 Granting of Lender Interest................................................................................... 67

15.2 Rights of Lender ................................................................................................... 67

15.3 Cure Rights of Lender........................................................................................... 67 ARTICLE 16 DISPUTE RESOLUTION ................................................................................. 67

16.1 Governing Law ..................................................................................................... 67

16.2 Dispute Resolution................................................................................................ 67

16.3 Attorneys’ Fees..................................................................................................... 68

16.4 Venue .................................................................................................................... 68 ARTICLE 17 INDEMNIFICATION........................................................................................ 68

17.1 Indemnification..................................................................................................... 68

17.2 Claims................................................................................................................... 68 191
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ARTICLE 18 INSURANCE....................................................................................................... 69

18.1 Insurance ............................................................................................................... 69 ARTICLE 19 CONFIDENTIAL INFORMATION ................................................................ 70

19.1 Definition of Confidential Information................................................................. 70

19.2 Duty to Maintain Confidentiality.......................................................................... 70

19.3 Irreparable Injury; Remedies ................................................................................ 70

19.4 Disclosure to Lender............................................................................................. 71

19.5 Disclosure to Credit Rating Agency ..................................................................... 71

19.6 Public Statements.................................................................................................. 71 ARTICLE 20 MISCELLANEOUS ........................................................................................... 71

20.1 Entire Agreement; Integration; Exhibits............................................................... 71

20.2 Amendments......................................................................................................... 71

20.3 Time is of the Essence. ......................................................................................... 71

20.4 No Waiver............................................................................................................. 71

20.5 No Agency, Partnership, Joint Venture or Lease.................................................. 71

20.6 Severability ........................................................................................................... 72

20.7 Mobile-Sierra ........................................................................................................ 72

20.8 Counterparts.......................................................................................................... 72

20.9 Facsimile or Electronic Delivery .......................................................................... 72

20.10 Binding Effect....................................................................................................... 72

20.11 No Recourse to Members of Buyer ...................................................................... 72

20.12 Change in Electric Market Design........................................................................ 72 ARTICLE 21 CPUC MODIFIABLE STANDARD CONTRACT TERMS.......................... 73

21.1 STC 2: Bioenergy Transactions............................................................................ 73

21.2 STC 4: Confidentiality.......................................................................................... 73

21.3 STC 5: Contract Term........................................................................................... 74

21.4 STC 7: Performance Standards/Requirements...................................................... 75

21.5 STC 8: Product Definitions................................................................................... 78

21.6 STC 9: Non-Performance or Termination Penalties and Default Provisions....... 78

21.7 STC 12: Credit Terms........................................................................................... 84

21.8 STC 15: Contract Modifications........................................................................... 89

21.9 STC 16: Assignment............................................................................................. 89

21.10 STC 18: Application of Prevailing Wage ............................................................. 90 EXHIBITS:

Exhibit A Description of Facility
Exhibit B Facility Construction and Commercial Operation Exhibit C [Intentionally Omitted]
Exhibit D Guaranteed Energy Production Damages Calculation Exhibit E Progress Reporting Form
Exhibit F Buyout Option
192
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Exhibit G-1 Form of Commercial Operation Date Certificate Exhibit G-2 Form of Installed Capacity Certificate
Exhibit H Form of Construction Start Date Certificate
Exhibit I Form of Letter of Credit
Exhibit J Insurance
Exhibit K [Intentionally Omitted]
Exhibit L L-1 Annual Energy Forecast
L-2 Monthly Expected Available Generating Capacity
L-3 Monthly Expected Available Storage Capacity
L-4 Monthly Expected PV Energy
Exhibit M Monthly Storage Availability
Exhibit N Storage Capacity Tests
Exhibit O Operating Restrictions
Exhibit P Metering Diagram
Exhibit Q RTE Shortfall Payments
Exhibit R Notices
Exhibit S Supply Chain Code of Conduct
193

POWER PURCHASE AND SALE AGREEMENT
This Power Purchase and Sale Agreement (“Agreement”) is entered into as of [_______________] (the “Effective Date”), between Seller and Buyer (each also referred to as a “Party” and collectively as the “Parties”).

RECITALS
WHEREAS, Seller intends to develop, design, construct, own or otherwise have control over, and operate the electric generating and energy storage facility as described in Exhibit A; and WHEREAS, Seller desires to sell, and Buyer desires to purchase, on the terms and conditions set forth in this Agreement, all Energy generated by the Generating Facility, all Green Attributes related to the generation of such Energy, all Capacity Attributes from the Facility, and all Storage Product;
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the following:

ARTICLE 1

DEFINITIONS

1.1 Contract Definitions. The following terms, when used herein with initial capitalization, shall have the meanings set forth below:
“AC” means alternating current.
“Accepted Compliance Costs” has the meaning set forth in Section 3.13. “Adjusted Energy Production” has the meaning set forth in Exhibit D. “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. “AGC” has the meaning set forth in the CAISO Tariff.
“Aggregate Capability Constraint” has the meaning set forth in the CAISO Tariff. “Agreement” has the meaning set forth in the Preamble and includes the Cover Sheet and any exhibits, schedules and any written supplements hereto. “Ancillary Services” means ancillary services as defined in the CAISO Tariff that are associated with the Storage Facility and that the Facility is capable of providing consistent with the Operating Restrictions, including Spinning Reserve, Non-Spinning Reserve, Regulation Up, and Regulation Down (as each is defined in the CAISO Tariff). “Assignment Agreement” has the meaning set forth in Section 14.4. 194
2 “Attestation” has the meaning set forth in Section 4.1(b). “Automated Dispatch System” or “ADS” has the meaning set forth in the CAISO Tariff. “Availability Incentive Payment” has the meaning set forth in the CAISO Tariff. “Availability Notice” means the lower of (a) Seller’s availability forecasts issued and updated pursuant to Section 4.4 with respect to the Available Storage Capacity and Available Storage Capability, and (b) availability information reported to CAISO through OMS. “Available Generating Capacity” means the capacity from the Generating Facility, expressed in whole MWs, that is available at a particular time to generate Energy. “Available Storage Capability” has the meaning defined in Exhibit M. “Available Storage Capacity” has the meaning defined in Exhibit M. “Bankrupt” means with respect to any entity, such entity that (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, (b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, (c) makes an assignment or any general arrangement for the benefit of creditors, (d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due. “Bid” has the meaning set forth in the CAISO Tariff.
“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a Notice, or payment, or performing a specified action. “Buyer” has the meaning set forth on the Cover Sheet.
“Buyer Assignee” has the meaning set forth in Section 14.4. “Buyer Bid Curtailment” means any curtailment of the Generating Facility arising out of or resulting from the manner in which Buyer bids, offers or schedules the Generating Facility, the Energy or any Products, or in which Buyer fails to do so, where either all of the following (a) through (c) occurs, or (d) occurs:
(a) the CAISO provides notice, including through ADS, to a Party or the Scheduling Coordinator for the Generating Facility, requiring the Party to deliver less PV Energy from the Generating Facility than is reflected in the VER Forecast for the Generating Facility for a period of time;
(b) for the same time period as referenced in (a), Buyer or the Scheduling Coordinator for the Facility:
195
3 (i) did not submit a Self-Schedule or an Energy Supply Bid for the MW subject to the reduction; or
(ii) submitted an Energy Supply Bid and the CAISO notice referenced in (a) is solely a result of CAISO implementing the Energy Supply Bid; or (iii) submitted a Self-Schedule for less than the full amount of VER Forecast for the Generating Facility; and
(c) no other circumstances exist that constitute a Scheduled Maintenance, Forced Facility Outage, Force Majeure Event and/or a Curtailment Period during the same time period as referenced in (a); or
(d) during a period when all of the following occur: (i) Buyer submitted a Bid or Self-Schedule for Ancillary Services with respect to the Storage Facility for such Settlement Interval, (ii) is awarded an Ancillary Services Schedule by the CAISO with respect to Storage Facility for such Settlement Interval, (iii) the Generating Facility is instructed by the CAISO to follow the Dispatch Operating Target (as defined in the CAISO Tariff) other than due to a Curtailment Order, and (iv) the Generating Facility would have generated PV Energy in excess of the Dispatch Operating Target but for such instruction from the CAISO. “Buyer Curtailment Order” means the instruction from Buyer to Seller to reduce delivery of PV Energy by the amount, and for the period of time set forth in such order, for reasons unrelated to a Scheduled Maintenance, Forced Facility Outage, Force Majeure Event and/or Curtailment Order, which instruction may be communicated to Seller in writing by electronic notice or other commercially reasonable means.
“Buyer Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces delivery of PV Energy pursuant to or as a result of (i) Buyer Bid Curtailment or (ii) a Buyer Curtailment Order. “Buyer Default” means a Buyer Event of Default.
“Buyer’s WREGIS Account” has the meaning set forth in Section 4.9(a). “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
“CAISO Approved Meter” means a CAISO approved revenue quality meter or meters, CAISO approved data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, all Energy delivered by the Facility to the Delivery Point adjusted for or net of Electrical Losses and Station Use, in accordance with the CAISO Tariff.
“CAISO Certification” means the certification and testing requirements for a storage facility, such as the Facility, as set forth in the CAISO Tariff that are applicable to the Facility, including certification and testing for all Ancillary Services, PMAX, and PMIN associated with such storage facility, that are applicable to the Facility. 196
4 “CAISO Charges Invoice” has the meaning set forth in Section 4.3(d). “CAISO Commercial Operation” has the meaning of “Commercial Operation” set forth in the CAISO Tariff.
“CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
“CAISO Metered Entity” has the meaning set forth in the CAISO Tariff. “CAISO No Pay” has the meaning for the term “No Pay” as set forth in the CAISO Tariff. “CAISO Operating Order” means the “operating order” defined in Section 37.2.1.1 of the CAISO Tariff.
“CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC.
“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) 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 Energy that the Facility can generate and/or deliver to the CAISO Grid at a particular moment and that can be purchased, sold, traded or used for a Person’s legal or regulatory compliance under the CPUC or CAISO market rules, including Resource Adequacy Benefits and MTR Attributes. Capacity Attributes shall also include all rights to provide and all benefits related to the provision of Ancillary Services (as defined in the CAISO Tariff) and reactive power.
“Capacity Damages” has the meaning set forth in Exhibit B. “Capacity Test” or “CT” means the Commercial Operation Storage Capacity Test, Storage Capacity Test, or any other test conducted pursuant to Exhibit N. “CEC” means the California Energy Commission or its successor agency. “CEC Final Certification and Verification” means that the CEC has certified the Generating Facility as an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard, meeting all applicable requirements for certified facilities set forth in the RPS Eligibility Guidebook, Ninth Edition (or its successor), and that all Energy generated by the Generating Facility qualifies as generation from an Eligible Renewable Energy Resource. 197
5 “CEC Precertification” means that the CEC has issued a precertification for the Generating Facility indicating that the planned operations of the Generating Facility would comply with applicable CEC requirements for CEC Final Certification and Verification. “Change of Control”, in the case of Seller, means any circumstance in which Seller’s Ultimate Parent ceases to be the Ultimate Parent or 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 its Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards the Ultimate Parent’s ownership interest in Seller unless the 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.

Notwithstanding the foregoing, (a) so long as the Ultimate Parent Controls Persons owning at least

1.5 MW of operating solar electricity generating and energy storage projects, a change in the Control of the Ultimate Parent, or (b) a change in the Control of Seller resulting from the exercise by Lender of its remedies under its financing agreements for the Facility with Seller or an Affiliate of Seller shall not be a Change of Control hereunder; provided that the entity acquiring Control of the Ultimate Parent or of Seller, directly or indirectly, is a Qualified Transferee and Buyer is given Notice of the Change of Control within five (5) Business Days of its occurrence. “Charging Energy” means all Energy, less Station Use and Electrical Losses, if any, delivered to the Storage Facility pursuant to a Charging Notice, as measured by the Storage Facility Meter.
“Charging Notice” means the operating instruction, and any subsequent updates, given by Buyer or the CAISO, directing the Storage Facility to charge at a specific MW rate to a specified Stored Energy Level; provided, any such operating instruction shall be in accordance with Section

4.6 and the Operating Restrictions. Any Charging Notice shall not constitute a Buyer Bid Curtailment, Buyer Curtailment Order, or Curtailment Order. “Co-located Resource” has the meaning set forth in the CAISO Tariff. “Commercial Operation” has the meaning set forth in Exhibit B. “Commercial Operation Date” has the meaning set forth in Exhibit B. “Commercial Operation Delay Damages” means an amount equal to (a) the Development Security amount required hereunder,
“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 B. 198
6 “Compliance Actions” has the meaning set forth in Section 3.13. “Compliance Expenditure Cap” has the meaning set forth in Section 3.13. “Confidential Information” has the meaning set forth in Section 19.1. “Construction Start” has the meaning set forth in Exhibit B. “Construction Start Date” has the meaning set forth in Exhibit B. “Contract Price” means each of the Renewable Rate and Storage Rate. “Contract Term” has the meaning set forth in Section 2.1(a). “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commercial Operation Date, and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. “Control” (including, with correlative meanings, the terms “Controlled by” and “under common Control with”), as used with respect to any Person, shall mean the direct or indirect right to cast more than 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 more than fifty percent (50%) of the equity or other ownership interest in such Person. “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 this Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating the Agreement. “Cover Sheet” means the cover sheet to this Agreement.
“CPM Soft Offer Cap” has the meaning set forth in the CAISO Tariff. “CPUC” means the California Public Utilities Commission, or successor entity. “CPUC-Penalized Shortfall” has the meaning set forth in Section 3.9(b)(i). “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, in either case by S&P or Moody’s. If ratings by S&P and Moody’s are not equivalent, the lower rating shall apply. “CRS” has the meaning set forth in Section 4.1(b).
“Curtailment Order” means any of the following:
199
7 (a) CAISO orders, directs, alerts, or provides notice to a Party, including a CAISO Operating Order, to curtail Energy deliveries for any reason other than a Buyer Bid Curtailment; (b) a curtailment ordered by the Participating Transmission Owner or distribution operator (if the Facility is interconnected to distribution or sub-transmission system) for reasons including, but not limited to, (i) any situation that affects normal function of the electric system including, but not limited to, any abnormal condition that requires action to prevent circumstances such as equipment damage, loss of load, or abnormal voltage conditions, or (ii) any warning, forecast or anticipation of conditions or situations that jeopardize the Participating Transmission Owner’s or distribution operator’s electric system integrity or the integrity of other systems to which the Participating Transmission Owner is connected; (c) a curtailment ordered by the Participating Transmission Owner due to scheduled or unscheduled maintenance on the Participating Transmission Owner’s transmission facilities that prevents either Party from receiving or delivering Energy to the Delivery Point; or (d) a curtailment in accordance with Seller’s obligations under its Interconnection Agreement with the Participating Transmission Owner or distribution operator.

If Buyer or Buyer’s Scheduling Coordinator submitted a Self-Schedule and/or an Energy Supply Bid in its final CAISO market participation in respect of a given time period that clears, in full, the applicable CAISO market for the full amount of Energy forecasted to be produced by or delivered from the Facility for such time period, any notice from the CAISO having the effect of requiring a reduction during the same time period is a Curtailment Order, not a Buyer Bid Curtailment.
“Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces energy from the Facility pursuant to a Curtailment Order. “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 a liquidated damages payment 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 set forth in Section 11.3(a). “Day-Ahead Forecast” has the meaning set forth in Section 4.4(c). “Day-Ahead LMP” means the LMP for the Day-Ahead Market. “Day-Ahead Market” has the meaning set forth in the CAISO Tariff. “Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff. “Deemed Delivered Energy” means the amount of Energy that qualifies as PCC1, expressed in MWh, that the Generating Facility would have produced and delivered to the Storage Facility or the Delivery Point, but that is not produced by the Generating Facility and delivered to the Storage Facility or the Delivery Point during a Buyer Curtailment Period, which amount shall 200
8 be equal to (a) the VER Forecast expressed in MWh, applicable to the Buyer Curtailment Period, or (b) if there is no VER Forecast available or Seller demonstrates to Buyer’s reasonable satisfaction that the VER Forecast does not represent an accurate forecast of generation from the Generating Facility, the amount determined by a third party reasonably acceptable to Buyer using an industry standard forecasting or back-casting methodology to determine the potential generation of the Generating Facility as a function of Available Generating Capacity, solar insolation and panel temperature, and other pertinent data for the period of time during the Buyer Curtailment Period, in either case less the amount of PV Energy delivered to the Delivery Point during the Buyer Curtailment Period; provided, if the applicable difference is negative, the Deemed Delivered Energy shall be zero (0). Once the sum of Facility Energy plus Deemed Delivered Energy is equal to one hundred ten percent (110%) of the Expected Energy in any Contract Year, there shall be no additional Deemed Delivered Energy in such Contract Year. “Defaulting Party” has the meaning set forth in Section 11.1(a). “Deficient Month” has the meaning set forth in Section 4.9(e). “Delivery Point” means the PNode designated by the CAISO for the Generating Facility and the PNode designated by the CAISO for the Storage Facility, as applicable. “Delivery Term” shall mean the period of Contract Years specified on the Cover Sheet, beginning on the Commercial Operation Date, unless terminated earlier in accordance with the terms and conditions of this Agreement.
“Development Cure Period” has the meaning set forth in Exhibit B. “Development Security” means (i) cash or (ii) a Letter of Credit in the amount specified for the Development Security on the Cover Sheet, deposited with Buyer in conformance with Section 8.7.
“Discharging Energy” means all Energy delivered to the Delivery Point from the Storage Facility, net of Station Use and Electrical Losses, as measured by the Storage Facility Meter. All Discharging Energy will have originally been delivered to the Storage Facility as Charging Energy. “Discharging Notice” means the operating instruction, and any subsequent updates, given by Buyer to Seller, directing the Storage Facility to discharge Discharging Energy at a specific MWh rate to a specified Stored Energy Level, provided, any such operating instruction or updates shall be in accordance with Section 4.6 and the Operating Restrictions. “Diverse Business Enterprises” means a women, minority, disabled veteran, lesbian, gay, bisexual and/or transgender business enterprise, as more particularly set forth in CPUC General Order 156.
“Early Termination Date” has the meaning set forth in Section 11.2. “Effective Date” has the meaning set forth on the Preamble. 201
9 “Electrical Losses” means all transmission or transformation losses between the Facility and the Delivery Point, including losses associated with (i) delivery of PV Energy to the Delivery Point, (ii) delivery of Charging Energy to the Storage Facility, and (iii) delivery of Discharging Energy to the Delivery Point.
“Eligible Intermittent Resources Protocol” or “EIRP” has the meaning set forth in the CAISO Tariff.
“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. “EMS” has the meaning set forth in the CAISO Tariff.
“Energy” means metered electrical energy measured in MWh. “Energy Supply Bid” has the meaning set forth in the CAISO Tariff. “Estimated Placed-In-Service Date” has the meaning set forth in Section 2.1(b). “Event of Default” has the meaning set forth in Section 11.1. “Excess MWh” has the meaning set forth in Section 3.3(c). “Expected Energy” has the meaning set forth in Section 4.8. “Facility” means the Generating Facility and the Storage Facility, as described more fully in Exhibit A attached hereto.
“Facility Energy” means the sum of PV Energy and Discharging Energy during any Settlement Interval or Settlement Period, as measured by the CAISO Approved Meter. “FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Flexible Capacity” has the meaning set forth in the CAISO Tariff. “Flexible Capacity Category” has the meaning set forth in the CAISO Tariff. “Flexible Resource Adequacy Benefits” means the attributes, however defined, of a resource that can be used to satisfy the flexible resource adequacy obligations of a load serving entity, including Flexible Capacity.
“FMM Schedule” has the meaning set forth in the CAISO Tariff. “Force Majeure Event” has the meaning set forth in Section 10.1. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility or any outage on the Transmission System that prevents Seller from generating or 202
10 delivering power to the Delivery Point or providing Storage Product and that is not the result of a Force Majeure Event.
“Forward Certificate Transfers” has the meaning set forth in the WREGIS Operating Rules.
“Full Network Model” has the meaning set forth in the CAISO Tariff. “Future Environmental Attributes” shall mean any and all emissions, air quality or other environmental attributes (other than Green Attributes or Renewable Energy Incentives) 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) that are attributable, now, or in the future, to the generation of electrical energy by the Facility. Future Environmental Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) investment or production tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. “Gains” means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner. Factors used in determining the economic benefit 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, settlement prices for comparable transactions at liquid trading hubs (e.g., NP-15), all of which should be calculated for the remaining Contract Term, and includes the value of Green Attributes and Capacity Attributes.
“Generating Facility” means the separately metered 2 MW portion of the photovoltaic generating facility described on the Cover Sheet and in Exhibit A, located at the Site and including mechanical equipment and associated facilities and equipment required to deliver PV Energy to the Delivery Point or to the Storage Facility, including Seller’s rights and interests in Shared Facilities; provided, the “Generating Facility” does not include the Storage Facility or the portions of Shared Facilities other than Seller’s rights and interests thereto. “Generating Facility Meter” means the CAISO Approved Meter (with a 0.3 accuracy class), sufficient for monitoring, recording and reporting, in real time, the amount of PV Energy generated by the Generating Facility and calculated as delivered to Buyer at the Delivery Point. 203
11 For clarity, the Generating Facility may contain multiple measurement devices and calculations 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 calculations and the aggregated data of all such measurement devices and calculations, 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; 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, 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; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) production tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. If the Facility is a biomass or landfill gas facility and Seller receives any tradable Green Attributes based on the greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Facility.
“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. “Greenhouse Gas” or “GHG” has the meaning set forth in the GHG Regulations or in any other applicable Laws.
“Green-e Certified” means the Green Attributes provided to Buyer pursuant to this Agreement are certified under the Green-e Energy National Standard. 204
12 “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 3.5, updated December 15, 2020, as may be further amended from time to time. “Guaranteed Commercial Operation Date” has the meaning set forth in Exhibit B. “Guaranteed Construction Start Date” has the meaning set forth in Exhibit B. “Guaranteed Energy Production” has the meaning set forth in Section 4.8. “Guaranteed Interconnection Capacity” means the interconnection rights provided under the Interconnection Agreement in the amount set forth on the Cover Sheet. “Guaranteed PV Capacity” means the amount set forth on the Cover Sheet, as may be adjusted pursuant to Exhibits B and G-2.
“Guaranteed Round-Trip Efficiency” means the minimum guaranteed Efficiency Rate of the Storage Facility required during each month commencing upon Commercial Operation and continuing throughout the Delivery Term, as set forth on the Cover Sheet. “Guaranteed Storage Availability” has the meaning set forth on the Cover Sheet. “Guaranteed Storage Capacity” has the meaning set forth on the Cover Sheet, as may be adjusted pursuant to Exhibit B and Exhibit G-2.
“Hybrid Resource” has the meaning set forth in the CAISO Tariff. “Imbalance Energy” means the amount of Energy, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy, including Uninstructed Imbalance Energy (as defined in the CAISO Tariff). “Indemnified Party” has the meaning set forth in Section 17.1. “Indemnifying Party” has the meaning set forth in Section 17.1. “Initial Synchronization” means the initial delivery of Energy from the Facility to the interconnection point specified in the Interconnection Agreement. “Installed PV Capacity” means the actual generating capacity of the Facility, measured at the Facility PNode and adjusted for ambient conditions on the date of the performance test, not to exceed the Guaranteed PV Capacity, as evidenced by a certificate substantially in the form attached as Exhibit G-2 hereto provided by Seller to Buyer. “Installed Storage Capacity” means the maximum dependable operating capability of the Storage Facility to discharge electric energy for four (4) consecutive hours at the maximum discharge rate (up to but not in excess of the Guaranteed Storage Capacity), as measured in MW at the Delivery Point, that achieves Commercial Operation, as evidenced by a certificate substantially in the form attached as Exhibit G-2 hereto provided by Seller to Buyer. 205
13 “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “Interconnection Agreement” means the interconnection agreement entered into by Seller pursuant to which the Facility will be interconnected with the Transmission System, and pursuant to which Seller’s Interconnection Facilities and any other Interconnection Facilities will be constructed, operated and maintained during the Contract Term. “Interconnection Capacity Limit” means the maximum instantaneous amount of Energy that is permitted to be delivered to the Delivery Point. “Interconnection Delay Notice” has the meaning set forth in Section 2.1(b). “Interconnection Facilities” means the interconnection facilities, control and protective devices and metering facilities required to connect the Facility with the Transmission System (or PTO’s distribution system, as applicable) in accordance with the Interconnection Agreement. “Interest Rate” has the meaning set forth in Section 8.2. “Internal Revenue Service Requirements” means those requirements set forth in Section 48 of the Internal Revenue Code and associated regulations promulgated by the Internal Revenue Service that pertain to the eligibility of energy property to qualify for the federal investment tax credit.
“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 February 29, 2016 under which Buyer is organized as a Joint Powers Authority in accordance with the Joint Powers Act.
“kW” means kilowatts in alternating current, unless expressly stated in terms of direct current.
“kWh” means 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, and includes the CAISO Tariff.
“Lender” means, collectively, (A) in the case of Seller, any Person (i) providing senior or subordinated construction, interim 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, public debt or any other form (including financing or refinancing provided to a member or other direct or indirect owner of Seller), including any tax equity investor directly or indirectly providing financing or refinancing for the Facility, and any trustee or agent acting on their behalf, (ii) providing interest rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any 206
14 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, and (B) in the case of Buyer, any Person (i) providing senior or subordinated short-term or long-term debt financing or refinancing for or in connection with the business or operations of Buyer, whether that financing or refinancing takes the form of private debt, public debt or any other form, and any trustee or agent acting on their behalf, and/or (ii) providing interest rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of the foregoing obligations. “Letter(s) of Credit” means one or more irrevocable, standby letters of credit issued by a U.S. commercial bank or a U.S. branch of a foreign bank 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 I and acceptable to Buyer.
“Licensed Professional Engineer” means an independent, professional engineer (a) reasonably acceptable to Buyer, (b) who has been retained by, or for the benefit of, the Lenders, as their “independent engineer” for the purpose of financing the Facility, or (c) who (i) is licensed to practice engineering in the State of California, (ii) has training and experience in the power industry specific to the technology of the Facility, (iii) is licensed in an appropriate engineering discipline for the required certification being made, and (iv) unless otherwise approved by Buyer, is not a representative of a consultant, engineer, contractor, designer or other individual involved in the development of the Facility or of a manufacturer or supplier of any equipment installed at the Facility.
“Local Capacity Area” has the meaning set forth in the CAISO Tariff. “Local Capacity Area Resource” has the meaning set forth in the CAISO Tariff. “Local Capacity Area Resource Adequacy Benefits” means the attributes, however defined, of a Local Capacity Area Resource that can be used to satisfy the local resource adequacy obligations of a load serving entity.
“Locational Marginal Price” or “LMP” has the meaning set forth in the CAISO Tariff. “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 this 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, settlement prices for comparable transactions at liquid trading hubs (e.g., NYMEX), all of which should be calculated for the remaining Contract Term and must include the value of Green Attributes, Capacity Attributes, and Renewable Energy Incentives.
“Lost Output” has the meaning set forth in Exhibit D.
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15 “Main Power Transformer” means the Facility’s main step-up transformer as depicted on the one-line diagram set forth in Exhibit A.
“Milestones” means the development activities for significant permitting, interconnection, financing and construction milestones set forth in the Cover Sheet. “Monthly Storage Availability” has the meaning set forth in Exhibit M. “Moody’s” means Moody’s Investors Service, Inc., or its successor. “MTR Attributes” has the meaning set forth in Section 3.15(a). “MTR Requirements” has the meaning set forth in Section 3.15. “MW” means megawatts measured in alternating current, unless expressly stated in terms of direct current.
“MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Negative LMP” means, in any Settlement Interval in the Real-Time Market, the LMP is less than zero dollars ($0).
“Negative LMP Costs” has the meaning set forth in Section 3.3(c). “Net Qualifying Capacity” or “NQC” has the meaning set forth in the CAISO Tariff. “Network Upgrades” has the meaning set forth in the CAISO Tariff. “Non-Availability Charge” has the meaning set forth in the CAISO Tariff. “Non-Defaulting Party” has the meaning set forth in Section 11.2. “Notice” shall, unless otherwise specified in this Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail).
“Operating Restrictions” means the requirements and limitations set forth on Exhibit O. “Other Facility(ies)” means the electric generating or energy storage facility(ies), other than the Facility, utilizing any facilities shared with the Facility to enable delivery of energy from each such other generating or storage facility to the Delivery Point, together with all materials, equipment systems, structures, features and improvements necessary to produce electric energy at each such other generating or storage facility, but (i) with respect to the Shared Facilities, excluding Seller’s interests therein and (ii) excluding the real property on which each such other generating or storage facility is, or will be located, land rights and interests in land. “Partial Capacity Deliverability Status” or “PCDS” has the meaning set forth in the CAISO Tariff.
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16 “Participating Transmission Owner” or “PTO” means an entity that owns, operates and maintains transmission or distribution lines and associated facilities and/or has entitlements to use certain transmission or distribution lines and associated facilities where the Facility is interconnected. For purposes of this Agreement, the Participating Transmission Owner is Pacific Gas and Electric Company.
“Party” has the meaning set forth in the Preamble.
“Performance Measurement Period” has the meaning set forth in Section 4.8. “Performance Security” means (i) cash, or (ii) a Letter of Credit, in the amount specified for the Performance Security on the Cover Sheet, deposited with Buyer in conformance with Section 8.8.
“Performance Security End Date” has the meaning set forth in Section 8.8. “Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
“PMAX” means the applicable CAISO-certified maximum operating level of the Storage Facility.
“PMIN” means the applicable CAISO-certified minimum operating level of the Storage Facility.
“PNode” has the meaning set forth in the CAISO Tariff.
“Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law.
“Product” has the meaning set forth on the Cover Sheet. “Progress Report” means a progress report including the items set forth in Exhibit E. “Project” has the same meaning as Generating Facility.
“Prudent Operating Practice” means the practices, methods and standards of professional care, skill and diligence engaged in or approved by a significant portion of the electric power industry in the Western United States for facilities of similar size, type, and design, that, in the exercise of reasonable judgment, in light of the facts known at the time, would have been expected to accomplish results consistent with Law, reliability, safety, environmental protection, applicable codes, and standards of economy and expedition. Prudent Operating Practices are not 209
17 necessarily defined as the optimal standard practice method or act to the exclusion of others, but rather refer to a range of actions reasonable under the circumstances. “PV Energy” means all Energy produced by the Generating Facility, as measured by the Generating Facility Meter after adjustment to exclude (a) all Electrical Losses, and (b) all Energy that serves Station Use.
“Qualified Reporting Entity” has the meaning set forth in the WREGIS Operating Rules. “Qualified Transferee” means an entity that (a) (i) has a Tangible Net Worth of one hundred fifty million dollars ($150,000,000) or (ii) has (A) a Tangible Net Worth of fifty million dollars ($50,000,000) and (B) a Credit Rating of A2 or higher by Moody’s or A- or higher by S&P, if rated by only one such entity, or a Credit Rating of A2 or higher by Moody’s and A- or higher by S&P, if rated by both such entities, and, in any case, (b) is not a public utility regulated by the CPUC or an Affiliate thereof, and (c) has, or retains to operate the Facility a Person that has, at least five (5) years of experience operating at least two (2) or more electricity generating facilities of the same technology and with at least as much Installed PV Capacity as the Generating Facility, and at least three (3) years of experience operating at least two (2) or more storage facilities of the same technology and with at least as much installed storage capacity as the Installed Storage Capacity.
“Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “RA Plan” has the meaning set forth for “Resource Adequacy Plan” in the CAISO Tariff with respect to Buyer’s monthly or annual Resource Adequacy showings to the CAISO and CPUC. “RA Substitute Capacity” has the meaning set forth in the CAISO Tariff. “Real-Time Market” has the meaning set forth in the CAISO Tariff. “Reimbursable Station Use” has the meaning set forth in Section 6.4(i). “Reimbursable Station Use Costs” means costs incurred by Buyer in connection with Reimbursable Station Use for any applicable month, if any, including any CAISO costs or Imbalance Energy costs incurred to serve Station Use.
“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, including a cash grant available under Section 1603 of Division B of the American Recovery and Reinvestment Act of 2009, provided in lieu of federal Tax credits or any 210
18 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 are not a Green Attribute or a Future Environmental Attribute.
“Renewable Rate” means the price per MWh of PV Energy that qualifies as PCC1, as set forth on the Cover Sheet, and as may be adjusted by Section 3.3. “Resource Adequacy Benefits” means the rights and privileges attached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Ruling, and shall include System Resource Adequacy Benefits, Flexible Resource Adequacy Benefits, SOD Benefits and Local Capacity Area Resource Adequacy Benefits associated with the Facility.
“Resource Adequacy Rulings” means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-04-040, 06-06-064, 06-07-031, 07-06-029, 08-06-031, 09-06-028, 10-06-036, 11-06-022, 12-06-025, 13-06-024, 14-06-050, 15-06-063, 16-06-045, 17-06-027, 18-06-030, 18- 06-031, 19-02-022, 19-06-026, 19-10-021, 20-01-004, 20-03-016, 20-06-002, 20-06-028, 20-06- 031, 20-12-006, 21-06-029, 21-07-014, 22-03-034, 22-06-050, 22-12-028, 22-08-039, 23-04-010 and any other existing or subsequent ruling or decision, or any other resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority, however described, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time throughout the Contract Term. “Resource ID” has the meaning set forth in the CAISO Tariff. “Round-Trip Efficiency” has the meaning set forth in Exhibit Q. “Round-Trip Efficiency Factor” has the meaning set forth in Exhibit Q. “RTD Instructed Imbalance Energy” has the meaning set forth in the CAISO Tariff. “RTE Shortfall Payment” has the meaning set forth in Exhibit Q. “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill Companies, Inc.) or its successor.
“SCADA” means the standard supervisory control and data acquisition systems to be installed by Seller as part of the Facility, including those system components that enable Seller to receive ADS and AGC instructions from the CAISO or similar instructions from Buyer’s SC. 211
19 “Schedule” has the meaning set forth in the CAISO Tariff. “Scheduled Energy” means the Energy reflected in a final Day-Ahead Schedule, FMM Schedule, and/or any other financially binding Schedule, market instruction or dispatch for the Facility for a given period of time.
“Scheduled Maintenance” has the meaning set forth in Section 6.1(a). “Scheduling Coordinator” or “SC” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time.
“Security Interest” has the meaning set forth in Section 8.9. “Self-Schedule” has the meaning set forth in the CAISO Tariff. “Seller” has the meaning set forth on the Cover Sheet.
“Seller’s WREGIS Account” has the meaning set forth in Section 4.9(a). “Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other. If the Non-Defaulting Party’s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to the Non-Defaulting Party. If the Non-Defaulting Party’s Gains exceed its Costs and Losses, then the Settlement Amount shall be zero dollars ($0).
“Settlement Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff, which as of the Effective Date is the period beginning at the start of the hour and ending at the end of the hour. “Shared Facilities” means the gen-tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of Energy to the Delivery Point, including the Interconnection Facilities and the Interconnection Agreement itself, if applicable, that are used in common with third parties or by Seller for electric generation or storage facilities owned by Seller other than the Facility. “Showing Deadline” means the initial deadline that a Scheduling Coordinator must meet to submit its RA Plan, as established by CAISO or any other Governmental Authority. For illustrative purposes only, as of the Effective Date, the CAISO monthly Showing Deadline is approximately forty-five (45) days prior to the RA delivery month. “Showing Month” means the calendar month of the Delivery Term that is the subject of the RA Plan, as set forth in the Resource Adequacy Rulings and outlined in the CAISO Tariff. For illustrative purposes only, as of the Effective Date, the monthly RA Plan made in June is for the Showing Month of August.
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20 “Site” means the real property on which the Facility is or will be located, as further described in Exhibit A, and as shall be updated by Seller at the time Seller provides an executed Construction Start Date Certificate to Buyer, in substantially the form of the Form of Construction Start Date Certificate in Exhibit H.
“Site Control” means that Seller: (a) owns or has the option to purchase the Site; (b) is the lessee or has the option to lease the Site; or (c) is the holder of an easement or an option for an easement, right-of-way grant, or similar instrument with respect to the Site. “SOC” or “State of Charge” means (a) the Stored Energy Level relative to (b) the 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 Storage Facility. “SOD” or “Slice-of-Day” has the meaning set forth in the Resource Adequacy Rulings. “Station Use” has the meaning given in the tariff of the retail provider of energy for the Facility and reflects:
(a) the electric energy that is used within the Facility (including to power the lights, motors, control systems, thermal regulation equipment and other electrical loads) and that is necessary for operation of the Facility; and
(b) the electric energy that is consumed within the Facility’s electric energy distribution system as losses (other than any losses that are Electrical Losses). “Storage Availability Adjustment” has the meaning set forth in Exhibit M. “Storage Capacity” means the maximum dependable operating capability of the Storage Facility (expressed in MW AC) to discharge electric energy at the maximum discharge rate that can be sustained for four (4) consecutive hours, as the same is to be established as of the Commercial Operation Date and adjusted from time to time pursuant to Exhibit N to reflect the results of the most recently performed Storage Capacity Test (including the Commercial Operation Storage Capacity Test); provided, the Storage Capacity shall not at any time exceed the lesser of (a) the Guaranteed Storage Capacity (with respect to a Commercial Operation Storage Capacity Test), and (b) the Storage Facility’s then current PMAX in the Storage Facility’s CAISO’s Master Data File and Resource Data Template (or successor data systems) (with respect to any other Storage Capacity Test).
“Storage Capacity Payment” has the meaning set forth in Section 3.3(e). “Storage Capacity Test” or “SCT” means any test or retest of the capacity of the Storage Facility conducted in accordance with the testing procedures, requirements and protocols set forth in Exhibit N.
“Storage Facility” means the separately metered 8 MWh and 2 MW AC portion of the energy storage facility described on the Cover Sheet and in Exhibit A (including the operational requirements of the energy storage facility), located at the Site and including mechanical 213
21 equipment and associated facilities and equipment and Seller’s rights and interests in Shared Facilities required to deliver the Storage Product, but excluding any portions of Shared Facilities other than Seller’s rights and interests thereto.
“Storage Facility Meter” means the CAISO Approved Meter (with a 0.3 accuracy class), sufficient for monitoring, recording and reporting, in real time, the amount of (i) Charging Energy, (ii) Discharging Energy and (iii) Energy that serves Station Use. For clarity, the Facility may include multiple measurement devices and calculations 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 calculations and the aggregated data of all such measurement devices and calculations, taken together.
“Storage Product” means (a) the ability of the Storage Facility to accept and store Charging Energy and to deliver Discharging Energy in accordance with the terms of this Agreement, (b) Capacity Attributes, if any, (c) Storage Capacity, and (d) Ancillary Services (as defined in the CAISO Tariff), if any, in each case arising from or relating to the Storage Facility. “Storage Rate” has the meaning set forth on the Cover Sheet. “Stored Energy” means the electric energy in the Storage Facility available to be discharged as Discharging Energy.
“Stored Energy Level” means, at a particular time, the amount of electric energy in the Storage Facility available to be discharged as Discharging Energy, expressed in MWh. “Subsequent Purchasers” means the purchaser or recipient of Product from Buyer in any conveyance, re-sale or remarketing of Product by Buyer. “Supplementary Capacity Test Protocol” has the meaning set forth in Exhibit N. “Supply Chain Code” has the meaning set forth in Exhibit S. “Supply Plan” has the meaning set forth in the CAISO Tariff. “System Emergency” means any condition that: (a) requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) preserve Transmission System reliability, and (b) directly affects the ability of any Party to perform under any term or condition in this Agreement, in whole or in part.
“System Resource Adequacy Benefits” means the attributes, however defined, of a resource that can be used to satisfy the resource adequacy obligations of a load serving entity, other than Flexible Resource Adequacy Benefits and Local Capacity Area Resource Adequacy Benefits. “Tangible Net Worth” means the tangible assets (for example, not including intangibles such as goodwill and rights to patents or royalties) that remain after deducting liabilities as determined in accordance with generally accepted accounting principles. 214
22 “Tax” or “Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Terminated Transaction” has the meaning set forth in Section 11.2. “Termination Payment” has the meaning set forth in Section 11.3. “Test Energy” means the Energy delivered (a) commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Energy from the Facility to the CAISO and (ii) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to parallel and (b) ending upon the occurrence of the Commercial Operation Date.
“Transformer Failure” means a failure of all or part of the Main Power Transformer that results in the Facility being unable to deliver Facility Energy during such failure, and such failure was not caused by Seller and could not have been avoided through the exercise of Prudent Operating Practices.
“Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service downstream from the Delivery Point.
“Ultimate Parent” means the entity that Controls, directly or indirectly, Seller and that is not Controlled by any other entity. As of the Effective Date, the Ultimate Parent is “Variable Energy Resource” or “VER” has the meaning set forth in the CAISO Tariff. “Variable Energy Resource Forecast” or “VER Forecast” means, for a given period, the final forecast of the Energy to be produced by the Facility prepared by the CAISO in accordance with the Eligible Intermittent Resources Protocol.
“WECC” means the Western Electricity Coordinating Council or its successor. “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
“WREGIS Certificate Deficit” has the meaning set forth in Section 4.9(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.
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23 “WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of January 4, 2021, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.

1.2 Rules of Interpretation. In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:
(a) headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement; (b) words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders; (c) the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified;
(e) a reference to a document or agreement, including this Agreement shall mean such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement;
(f) a reference to a Person includes that Person’s successors and permitted assigns;
(g) the term “including” means “including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided; (h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; (i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;
(j) references to any amount of money shall mean a reference to the amount in United States Dollars, and references to a LMP shall mean the LMP at the Delivery Point unless expressly provided otherwise;
(k) the expression “and/or” when used as a conjunction shall connote “any or all of”;
216
24 (l) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
(m) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement.

ARTICLE 2
TERM; CONDITIONS PRECEDENT

2.1 Contract Term.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions set forth herein (“Contract Term”). (b) Seller shall provide Notice to Buyer within ten (10) Business Days of Seller’s receipt of the fully executed Interconnection Agreement that includes an estimated placed-in-service date (“Estimated Placed-In-Service Date”) for Seller’s interconnection facilities that is later than the date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet (“Interconnection Delay Notice”).
(i) If, despite Seller’s commercially reasonable efforts to have the Estimated Placed-In-Service Date be on or before the estimated date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet, such Estimated Placed-In-Service Date is not more than ninety (90) days after the date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet, the Initial Synchronization Milestone date and all subsequent Milestone dates shall be extended by the number of days by which the Estimated Placed-In-Service Date is later than the Initial Synchronization Milestone date. (ii) If, despite Seller’s commercially reasonable efforts to have the Estimated Placed-In-Service Date be on or before the estimated date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet, such Estimated Placed-In-Service Date is more than ninety (90) days after the date of Initial Synchronization as set forth in the Milestone schedule on the Cover Sheet, then Seller may include in the Interconnection Delay Notice a revised Milestone schedule (including Guaranteed Construction Start Date and Guaranteed Commercial Operation Date), and Buyer shall have the right, in its sole discretion, to either accept such revised schedule and dates or terminate this Agreement by providing Notice to Seller within ninety (90) days after Buyer’s receipt of the Interconnection Delay Notice, and retain fifty percent (50%) of the Development Security as liquidated damages.
(c) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality 217
25 obligations of the Parties under Article 19 shall remain in full force and effect for three (3) years following the termination of this Agreement, and all indemnity and audit rights shall remain in full force and effect for two (2) years following the termination of this Agreement.

2.2 Conditions Precedent. 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 installed and commissioned generating equipment with a nameplate capacity of no less than ninety-five percent (95%) of the Guaranteed PV Capacity; (b) Seller shall have installed and commissioned storage equipment with a capacity of no less than ninety-five percent (95%) of the Guaranteed Storage Capacity; (c) Seller shall have delivered to Buyer certificates from a Licensed Professional Engineer substantially in the form of Exhibits G-1 and G-2; (d) A Participating Generator Agreement and a Meter Service Agreement (with the Facility configured as a CAISO Metered Entity) between Seller and CAISO shall have been executed and delivered and be in full force and effect, and a copy of each such agreement delivered to Buyer;
(e) An Interconnection Agreement between Seller and the PTO shall have been executed and delivered and be in full force and effect and a copy of the Interconnection Agreement, including all modifications and amendments thereto, delivered to Buyer; (f) Authorization to parallel the Facility was obtained by the Participating Transmission Owner prior to the Commercial Operation Date; (g) The Transmission Provider has provided documentation supporting full unrestricted release for Commercial Operation by the Commercial Operation Date; (h) The Facility has achieved CAISO Commercial Operation; (i) Buyer, or its designee, is the Scheduling Coordinator for the Facility; provided, if this requirement is not met because of Buyer’s (or its designee’s) actions or failure to take actions, and this is the only requirement for Commercial Operation that has not been met, Seller shall be entitled to a day for day extension of the Guaranteed Commercial Operation Date for such Buyer (or its designee) actions or failure to act; (j) Seller shall have delivered to Buyer a copy of all environmental impact reports (i.e. EIRs), studies (i.e. EISs) or assessments (i.e. EIAs) prepared by or obtained by Seller or its Affiliates, the conditional use permit or other principal land use approval for the Facility, and a certificate signed by an authorized representative of Seller stating that Seller is in compliance with the requirements of the conditional use permit or other principal land use approval; 218
26 (k) Seller has received CEC Precertification;
(l) 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, Qualified Reporting Entity 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;
(m) Seller shall have caused the Generating Facility and the Storage Facility to be included in the Full Network Model and has ability to offer Bids into CAISO Day-Ahead Markets and Real-Time Markets in respect of each of the Generating Facility and the Storage Facility;
(n) Seller shall have completed all necessary steps to provide Ancillary Services from the Storage Facility, including completing the certification and testing requirements in Section 8 and Appendix K of the CAISO Tariff;
(o) Seller has delivered to Buyer a copy of the most recent generation resource report (including as prepared by an independent engineer in connection with the financing of the construction or permanent operation of the Facility) and the most up-to-date 8760 hourly generation forecast;
(p) Seller has delivered the Performance Security to Buyer; (q) Seller has paid Buyer for all Daily Delay Damages and Commercial Operation Delay Damages owing under this Agreement, if any; (r) Seller has delivered to Buyer a copy of the project labor agreement, or similar agreement, in compliance with the requirements of Section 4.16 of this Agreement; (s) Seller has demonstrated compliance with Section 7.1, including installation of the Storage Facility Meter, Station Use Meter, and CLAP Meters, in accordance with this Agreement; and
(t) Seller has delivered to Buyer a plan that is reasonably acceptable to Buyer for the proper recycling and disposal of all project components, equipment, and materials at the end of the useful life of the Facility.

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 E. Seller 219
27 shall also provide Buyer with any reasonably requested documentation directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request by Seller. (b) Seller shall ensure that all materials, products and components used in constructing, installing and operating the Facility throughout the Contract 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 two (2) or more Milestones, or misses any one (1) , Seller shall submit to Buyer, within ten (10) Business Days of such second missed Milestone completion date (or the thirtieth (30th) day after the missed Milestone completion date, as applicable), 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), and 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 this Agreement. If the missed Milestone(s) is not the Guaranteed Construction Start Date or the Guaranteed Commercial Operation Date, and so long as Seller complies with its obligations under this Section 2.4, then Seller shall not be considered in default of its obligations under this Agreement as a result of missing such Milestone(s).

2.5 Facility Configuration. The Parties agree that the Facility configuration will be as Hybrid Resources with single CAISO Resource IDs and single CAISO approved revenue quality meter for the Facility; provided, Seller shall design, construct and maintain the Facility to have the capability to receive Charging Energy from the CAISO Grid at the Delivery Point. Seller shall design and configure the Facility metering and equipment (although not necessarily the software associated therewith) to accommodate being able to function in a Hybrid Resource configuration using the best available information at the time of meter installation. Not more than once per Contract Year during the Delivery Term, Buyer may request that Seller convert the Storage Facility from a Hybrid Resource to a Co-located Resource (or, if previously converted to a Co-located Resource, back to a Hybrid Resource). Upon such request, Seller shall determine in its commercially reasonable discretion, taking into account any operational or design limitations of the Facility and any CAISO approved process for conversion of a Hybrid Resource to a Co-Located Resource or vice versa, whether such a conversion is possible and, if so, the anticipated costs associated with such a conversion. Seller shall provide an estimate of such costs and expenses, including lost revenue, and the associated scope of work, if such a conversion is possible, for Buyer’s review within thirty (30) days after Buyer’s request for the conversion. If Buyer agrees to be responsible for the reasonably incurred and documented costs and expenses associated with 220
28 the identified scope of work, Seller shall request that CAISO convert the Storage Facility from the configuration then in effect to the other configuration. Buyer shall reimburse Seller for its reasonably incurred and documented costs and expenses associated with the identified scope of work, including lost revenue, to effectuate the conversion and the Parties shall cooperate in good faith to amend this Agreement to accommodate such conversion while maintaining the expected economic benefit to Seller arising out of this Agreement. Once Buyer approves the costs and expenses for reimbursement, the conversion shall be completed within the timeline in the CAISO’s administrative process. In addition to the other limitations specified in this Section 2.5, if such request or such conversion of the Storage Facility from a hybrid solar and storage facility to a storage facility co-located with solar is not permitted by CAISO or any Governmental Authority, or reasonably could be expected to have an adverse impact on the expected economic benefit to Seller arising out of this Agreement, including any physical modification of the Facility, that is not compensated for by Buyer, Seller shall provide notice of the same to Buyer with a reasonably detailed explanation and Seller shall not be required to effectuate the conversion.

ARTICLE 3

PURCHASE AND SALE

3.1 Sale of Product.
(a) Subject to the terms and conditions of this Agreement, during the period (i) commencing upon Initial Synchronization with respect to the Generating Facility and (ii) commencing upon Commercial Operation with respect to the Storage Facility and, in each case, continuing throughout the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller all of the Product produced by the Facility. Buyer shall re-sell all of the Energy purchased hereunder (other than Charging Energy), and may, at its sole discretion, re-sell or use for another purpose all or a portion of the remainder of the Product, provided, such resale or use for another purpose will not relieve Buyer of any of its obligations under this Agreement.
(b) Except for Deemed Delivered Energy, Buyer has no obligation to pay Seller for any Product that is not delivered to the Delivery Point as a result of any circumstance, including, an outage of the Facility, a Force Majeure Event, or a Curtailment Order. In no event shall Seller have the right to procure any element of the Product from sources other than the Facility for sale or delivery to Buyer under this Agreement.

3.2 Sale of Green Attributes. Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, all of the Green Attributes produced by the Facility during the Delivery Term, and any Green Attributes associated with Test Energy.

3.3 Compensation. Buyer shall compensate Seller for the Product in accordance with this Section 3.3.
(a) Buyer shall pay Seller the Renewable Rate for each MWh of PV Energy that qualifies as PCC1 and is delivered to the Delivery Point or the Storage Facility, plus Deemed Delivered Energy, if any, up to of the Expected Energy for such Contract Year.
221
29 (b) If, at any point in any Contract Year following CAISO Commercial Operation, the amount of PV Energy delivered to the Delivery Point or the Storage Facility plus the amount of Deemed Delivered Energy exceeds of the
Expected Energy for such Contract Year, for each additional MWh of PV Energy that qualifies as PCC1 or Deemed Delivered Energy, if any, delivered to Buyer in such Contract Year, the price to be paid shall be the lesser of (i) of the Renewable Rate or (ii) the Day-Ahead LMP for the applicable Settlement Interval. If, at any point in any Contract Year, the amount of PV Energy delivered to the Delivery Point or the Storage Facility plus the amount of Deemed Delivered Energy exceeds of the Expected
Energy for such Contract Year, the price to be paid for additional Adjusted Facility Energy or Deemed Delivered Energy shall be equal to the lesser of (a) the Day-Ahead LMP for the applicable Settlement Interval or (b) $0.00/MWh.
(c) If during any Settlement Interval, Seller delivers PV Energy in excess of the product of the Installed PV Capacity and the duration of the Settlement Interval, expressed in hours (“Excess MWh”), then the price applicable to all such Excess MWh in such Settlement Interval shall be zero dollars ($0), and if there is a Negative LMP during such Settlement Interval, Seller shall pay to Buyer an amount equal to the absolute value of the Negative LMP times the number of such Excess MWh (“Negative LMP Costs”).
(d) The price for PV Energy that does not qualify as PCC1 shall be the lesser of (i) the Renewable Rate, or (ii) the Day-Ahead LMP for the applicable Settlement Interval. (e) For the Storage Product, for each month commencing on Commercial Operation and throughout the Delivery Term, Buyer shall pay Seller an amount equal to [(A x B x C) – D], (such amount, the “Storage Capacity Payment”), where:

A = the Storage Rate
B = the current Storage Capacity (in kW)
C = the applicable Storage Availability Adjustment determined in accordance with Exhibit M
D = the applicable RTE Shortfall Payment determined in accordance with Exhibit Q (if applicable)
The Storage Capacity Payment constitutes the entirety of the amount due to Seller from Buyer for the Storage Product.

3.4 Imbalance Energy. With respect to the Generating Facility, as a Variable Energy Resource, Buyer and Seller recognize that from time to time the amount of PV Energy will deviate from the amount of Scheduled Energy. Buyer and Seller shall cooperate to minimize charges and imbalances associated with Imbalance Energy caused by the variances in solar insolation to the extent possible. To the extent there are such deviations, any CAISO costs or revenues assessed as a result of such Imbalance Energy shall be solely for the account of Buyer; provided, to the extent such deviations are the result of any cause other than variances in solar insolation, and with respect to any deviations by the Storage Facility from its Schedule, any CAISO costs assessed as a result 222
30 of such Imbalance Energy shall be solely for the account of Seller, and all CAISO revenue associated with such deviations shall be solely for the account of Buyer. CAISO costs and revenues in connection with RTD Instructed Imbalance Energy shall be for Buyer’s account except to the extent such RTD Instructed Imbalance Energy was the result of a change in the Forecasted Product after the deadline for submitting Schedules in the Day-Ahead Market, in which case the CAISO costs shall be for Seller’s account, and all CAISO revenue associated with such deviations shall be solely for the account of Buyer.

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

3.6 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Effective Date, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Buyer shall have the right to obtain such Future Environmental Attributes without any adjustment to the Contract Price paid by Buyer under this Agreement. Subject to Section 3.13, Seller shall take all reasonable actions necessary to realize the full value of such Future Environmental Attributes for the benefit of Buyer, and shall cooperate with Buyer in Buyer’s efforts to do the same.
(b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.6(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 incremental expenses incurred by Seller (not including Seller’s overhead costs for administrative tasks) associated with providing such Future Environmental Attributes; provided, the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.

3.7 Test Energy.
(a) No less than forty-five (45) days, and no more than one hundred eighty (180) days, prior to the first day on which Test Energy is expected to be available from the Generating Facility, Seller shall notify Buyer of the anticipated commencement date of the availability of the Test Energy.
(b) Seller shall sell and Buyer shall purchase from Seller all Test Energy and any associated Green Attributes and Capacity Attributes on an as-available basis. As compensation for any such Test Energy, Green Attributes, and Capacity Attributes, Buyer shall pay Seller for 223
31 each MWh of Test Energy an amount equal to fifty percent (50%) of the Renewable Rate for the first Contract Year.

3.8 Capacity Attributes.
(a) Subject to Section 3.13, Seller shall use commercially reasonable efforts to cause the Facility to qualifies to provide Capacity Attributes. Throughout the Delivery Term, and in connection with any Test Energy, subject to Section 3.13, Seller hereby covenants and agrees to transfer all Capacity Attributes, if any, to Buyer, at no additional cost or charge to Buyer, except to the extent of any Accepted Compliance Costs.
(b) Subject to Section 3.13, Seller shall take all commercially reasonable actions, including complying with all applicable registration and reporting requirements, and execute any and all documents or instruments necessary to enable Buyer to use all of the Capacity Attributes committed by Seller to Buyer pursuant to this Agreement. (c) For the duration of the Delivery Term, Seller shall maintain an interconnection capacity under its Interconnection Agreement of at least the amount of the Guaranteed Interconnection Capacity.
(d) If the Facility qualifies to provide Resource Adequacy Benefits, Seller shall provide Notice to Buyer not less than fifteen (15) Business Days prior to each Showing Deadline confirming the Net Qualifying Capacity of the Facility that is able to be shown on Buyer’s monthly or annual RA Plan, as applicable. If applicable, Seller shall provide RA Substitute Capacity in accordance with applicable CAISO requirements in connection with Seller’s Facility outages.

Seller acknowledges and agrees that any failure by Seller to provide such RA Substitute Capacity may result in CAISO rejecting or cancelling Scheduled Maintenance or other outage of the Facility. If applicable, Buyer shall notify Seller within three (3) Business Days after becoming aware of an obligation by Seller to provide RA Substitute Capacity. Upon request by Seller, Buyer shall use commercially reasonable efforts to secure, on Seller’s behalf, RA Substitute Capacity; provided, Seller shall reimburse Buyer for all out-of-pocket costs, including broker and outside counsel costs, associated with such RA Substitute Capacity.

3.9 [Intentionally Omitted].

3.10 CEC Certification and Verification. Subject to Section 3.13, Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Precertification and CEC Final Certification and Verification for the Facility. 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 CEC Final 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 CEC Final Certification and Verification. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s application for CEC Precertification or CEC Final Certification and Verification for the Facility. For the first one hundred eighty (180) days of the Delivery Term, provided, Seller has obtained and maintained CEC Precertification, Buyer shall pay Seller the Renewable Rate for PV Energy that qualifies as PCC1 and the lower of (i) the 224
32 Renewable Rate or (ii) the Day-Ahead LMP for PV Energy that does not qualify as PCC1, according to Section 3.3, regardless of whether Seller has obtained CEC Final Certification and Verification. If Seller has not obtained CEC Final Certification and Verification within one hundred eighty (180) days after the Commercial Operation Date, Buyer will compensate Seller for the PV Energy, regardless of PCC1 eligibility, at the lower of (i) the Renewable Rate, as adjusted according to Section 3.3, or (ii) the Day-Ahead LMP, for the remainder of the Delivery Term, or until Seller obtains CEC Final Certification and Verification. If Seller obtains CEC Final Certification and Verification after one hundred eighty (180) days after the Commercial Operation Date, Buyer will thereafter begin paying Seller the Renewable Rate for PV Energy that qualifies as PCC1 according to Section 3.3, and, if such CEC Final Certification and Verification relates back to all Energy delivered by Seller during the Delivery Term, will reimburse Seller for the difference between (x) any reduced amounts paid to Seller for PV Energy under this Section 3.10 due to Seller’s failure to obtain CEC Final Certification and Verification within one hundred eighty (180) days after the Commercial Operation Date, and (y) the amount that would have been paid to Seller had Seller timely obtained CEC Final Certification and Verification within one hundred eighty (180) days after the Commercial Operation Date. If Seller has not obtained CEC Final Certification and Verification within one (1) year of the Commercial Operation Date, then an Event of Default shall occur, Buyer shall have all remedies available under this Agreement, including under Section 11.2, and, in the event that Buyer terminates this Agreement under Section 11.2, Seller shall reimburse Buyer, in addition to any other amounts owed, in an amount equal to the difference between (a) the amount paid by Buyer to Seller for PV Energy during the first one hundred eighty (180) days of the Delivery Term, and (b) the amount that would have been paid if the price for energy delivered during the first one hundred eighty (180) days of the Delivery Term were the Day Ahead LMP.

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

3.12 California Renewables Portfolio Standard. Subject to Section 3.13, Seller shall also take all other actions necessary to ensure that the 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 California statute or by the CPUC or CEC from time to time.

3.13 Compliance Expenditure Cap. If Seller establishes to Buyer’s reasonable satisfaction that a change in Laws occurring after the Effective Date has increased Seller’s cost above the cost that could reasonably have been contemplated as of the Effective Date to take all actions to comply with Seller’s obligations under the Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of (as applicable), the items listed in Sections 3.13(a), (b), (c), and (d), then the Parties agree that the maximum amount of costs and expenses Seller shall be required to bear during the Delivery Term shall be capped at Twenty Five 225
33 Thousand Dollars ($25,000.00) per MW of Guaranteed PV Capacity cumulatively during the Delivery Term (“Compliance Expenditure Cap”):
(a) CEC Certification and Verification;
(b) Green Attributes;
(c) Future Environmental Attributes; and,
(d) Capacity Attributes.

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”.

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.

Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all of the costs that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs, 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 3.13 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, these Compliance Actions for the remainder of the Contract Term.

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 reasonable documentation of such costs from Seller.

Any failure by Seller to operate the Facility in accordance with Prudent Operating Practice, or to meet availability or other operational metrics or requirements established by CAISO or the CPUC (including as part of a change of Law) that apply generally to the Facility and facilities similar to the Facility, shall not be treated as a Compliance Action subject to the Compliance Expenditure Cap for all purposes of this Agreement.

The term “commercially reasonable efforts” as used in Sections 3.11 and 4.9(h) means efforts consistent with and subject to this Section 3.13.

3.14 Guaranteed Interconnection Capacity. Seller shall enable the Aggregate Capability Constraint and sub-Aggregate Capability Constraints with CAISO so as to ensure that the Buyer has the exclusive right to use the Guaranteed Interconnection Capacity. 226
34 3.15 CPUC Mid-Term Reliability Requirements. The Parties acknowledge that Buyer is entering into this Agreement to satisfy a portion of its obligations to procure capacity to meet mid-term reliability requirements specified by the CPUC in CPUC Decision (“D.”) 21-06-035, D.23-02-040, and related CPUC orders and decisions (“MTR Requirements”). Seller represents and warrants to Buyer that:
(a) During the Delivery Term, the Product includes the exclusive right to claim the Capacity Attributes of the Facility as an incremental resource for purposes of CPUC Decision 21-06-035 and other MTR Requirements (“MTR Attributes”); (b) Seller has not and will not sell, assign or transfer the right to claim procurement of the Capacity Attributes of the Facility as an incremental resource for purposes of CPUC Decision 21-06-035 and other MTR Requirements to any other person or entity during the Delivery Term; and
(c) Seller will provide to Buyer additional information and documentation reasonably available to Seller on a commercially reasonable basis if necessary to enable Buyer to demonstrate that the Product meets the procurement mandates set forth in the MTR Requirements.

3.16 Buyer’s Re-Sale of Product. Buyer shall have the exclusive right in its sole discretion to convey, use, market, or sell the Product, or any part of the Product, to any Subsequent Purchaser; and Buyer shall have the right to all revenues generated from the conveyance, use, re-sale or remarketing of the Product, or any part of the Product. If the CAISO or CPUC develops a centralized capacity market, Buyer shall have the exclusive right to offer, bid, or otherwise submit the Capacity Attributes for re-sale into such market, and Buyer shall retain and receive all revenues from such re-sale. Seller shall take all commercially reasonable actions and execute all documents or instruments reasonably necessary to allow Subsequent Purchasers to use such resold Product, but without increasing Seller’s obligations or liabilities under this Agreement. If Buyer incurs any liability to a Subsequent Purchaser due to the failure of Seller to comply with this Section 3.16, Seller shall be liable to Buyer for the amounts Seller would have owed Buyer under this Agreement if Buyer had not resold the Product.

ARTICLE 4

OBLIGATIONS AND DELIVERIES

4.1 Delivery.
(a) Energy. Subject to the terms and conditions of this Agreement, Seller shall make available and Buyer shall accept at the Delivery Point all Product. Each Party shall perform all obligations under this Agreement, including all generation, scheduling, and transmission services in compliance with (i) the CAISO Tariff, (ii) WECC scheduling practices, and (iii) Prudent Operating Practice.
(b) Green Attributes. Seller hereby provides and conveys all Green Attributes associated with the Facility as part of the Product being delivered. 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. Upon request of Buyer, Seller shall submit a Green-e® Energy Tracking 227
35 Attestation Form (“Attestation”) for Product delivered under this Agreement to the Center for Resource Solutions (“CRS”) at https://www.tfaforms.com/4652008 or its successor. The Attestation shall be submitted in accordance with the requirements of CRS and shall be submitted within thirty (30) days of Buyer’s request or the last day of the month in which the applicable Energy was generated, whichever is later.

4.2 Title and Risk of Loss.
(a) Energy. Title to and risk of loss related to the Facility Energy shall pass and transfer from Seller to Buyer at the Delivery Point. Title to and risk of loss related to the Charging Energy shall pass and transfer from Buyer to Seller at the Storage Facility Meter. (b) Green Attributes. Title to and risk of loss related to the Green Attributes shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS.

4.3 Scheduling Coordinator Responsibilities.
(a) Scheduling Coordinator for the Facility. Prior to Commercial Operation, Seller shall be the Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for both the delivery and the receipt of the Product at the Delivery Point. Upon Commercial Operation, Buyer shall be the Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for both the delivery and the receipt of the Product at the Delivery Point. At least thirty (30) days prior to the anticipated date of Commercial Operation, (i) Seller shall take all actions and execute and deliver to Buyer and the CAISO all documents necessary to authorize or designate Buyer as the Facility’s Scheduling Coordinator effective as of Commercial Operation, and (ii) Buyer shall, and shall cause its designee to, take all actions and execute and deliver to Seller and the CAISO all documents necessary to authorize or designate Buyer or its designee as the Scheduling Coordinator for the Facility effective as of Commercial Operation. On and after Commercial Operation, Seller shall not authorize or designate any other party to act as the Facility’s Scheduling Coordinator, nor shall Seller perform for its own benefit the duties of Scheduling Coordinator, and Seller shall not revoke Buyer’s authorization to act as the Facility’s Scheduling Coordinator unless agreed to by Buyer. Buyer (as the Facility’s SC) shall submit Schedules to the CAISO in accordance with this Agreement and the applicable CAISO Tariff, protocols and Scheduling practices for Product or load, as applicable, on a day-ahead, hour-ahead, fifteen-minute market or real time basis, as determined by Buyer. (b) Notices. Following Commercial Operation, Buyer (as the Facility’s SC) shall provide Seller with access to a web-based system through which Seller shall submit to Buyer and the CAISO all notices and updates required under the CAISO Tariff regarding the Facility’s status, including, but not limited to, all outage requests, Forced Facility Outages, Forced Facility Outage reports, clearance requests, or must offer waiver forms. Seller will cooperate with Buyer to provide such notices and updates. If the web-based system is not available, Seller shall promptly submit such information to Buyer and the CAISO (in order of preference) telephonically, by electronic mail, or facsimile transmission to the personnel designated to receive such information. 228
36 (c) CAISO Costs and Revenues. Following Commercial Operation and except as otherwise set forth below and in Sections 3.4 and 3.7, Buyer (as Scheduling Coordinator for the Facility) shall be responsible for CAISO costs (including penalties, Imbalance Energy costs or revenues, and other charges) and shall be entitled to all CAISO revenues (including credits, Imbalance Energy revenues or costs, and other payments, except as otherwise provided in this Agreement), including revenues associated with CAISO dispatches, bid cost recovery, Inter-SC Trade credits, or other credits in respect of the Product Scheduled or delivered from the Facility.

Seller shall be responsible for all CAISO penalties or fees (including costs associated with Imbalance Energy, as set forth in Section 3.4, and CAISO No Pays) resulting from any failure by Seller to abide by the CAISO Tariff or this Agreement (except to the extent such non-compliance is caused by Buyer’s failure to perform its duties as Scheduling Coordinator for the Facility following Commercial Operation). The Parties agree that any Availability Incentive Payments are for the benefit of the Buyer and for Buyer’s account and that any Non-Availability Charges are the responsibility of the Seller and for Seller’s account (except to the extent any Non-Availability Charges are incurred due to Buyer’s failure to perform its duties as Scheduling Coordinator for the Facility). In addition, if after Commercial Operation, the CAISO implements or has implemented any sanction or penalty related to scheduling, outage reporting, or generator operation, and any such sanctions or penalties are imposed upon the Facility or to Buyer as Scheduling Coordinator due to the actions or inactions of Seller, the cost of the sanctions or penalties shall be the Seller’s responsibility.
(d) CAISO Settlements. Buyer (as the Facility’s SC) shall be responsible for all settlement functions with the CAISO related to the Facility after Commercial Operation. Buyer shall render a separate invoice to Seller for any CAISO charges or penalties (“CAISO Charges Invoice”) for which Seller is responsible under this Agreement, including Section 3.4, which shall be offset with any charges or penalties for which Buyer is responsible. CAISO Charges Invoices shall be rendered after settlement information becomes available from the CAISO that identifies any CAISO charges. Notwithstanding the foregoing, Seller acknowledges that the CAISO will issue additional invoices reflecting CAISO adjustments to such CAISO charges. Buyer will review, validate, and if requested by Seller under Section 4.3(e) below, dispute any charges that are the responsibility of Seller in a timely manner and consistent with Buyer’s existing settlement processes for charges that are Buyer’s responsibilities. Subject to Seller’s right to dispute and to have Buyer pursue the dispute of any such invoices, Seller shall pay the amount of CAISO Charges Invoices within ten (10) Business Days of Seller’s receipt of the CAISO Charges Invoice. If Seller fails to pay such CAISO Charges Invoice within that period, Buyer may net or offset any amounts owing to it for these CAISO Charges Invoices against any future amounts it may owe to Seller under this Agreement. The obligations under this section with respect to payment of CAISO Charges Invoices shall survive the expiration or termination of this Agreement. (e) Dispute Costs. Buyer (as the Facility’s SC) may be required by Seller to dispute CAISO settlements in respect of the Facility following Commercial Operation. Seller agrees to pay Buyer’s costs and expenses (including reasonable attorneys’ fees) associated with its involvement with such CAISO disputes to the extent they relate to CAISO charges payable by Seller with respect to the Facility that Seller has directed Buyer to dispute. (f) Terminating Buyer’s Designation as Scheduling Coordinator. At least thirty (30) days prior to expiration of this Agreement or as soon as reasonably practicable upon an earlier 229
37 termination of this Agreement, the Parties will take all actions necessary to terminate the designation of Buyer as Scheduling Coordinator for the Facility as of 11:59 p.m. on such expiration date.
(g) Master Data File and Resource Data Template. Seller shall provide the data to the CAISO (and to Buyer) that is required for the CAISO’s Master Data File and Resource Data Template (or successor data systems) for this Facility consistent with this Agreement. Neither Party shall change such data without the other Party’s prior written consent, not to be unreasonably withheld.
(h) NERC Reliability Standards. Following Commercial Operation, Buyer (as Scheduling Coordinator) shall cooperate reasonably with Seller to the extent necessary to enable Seller to comply, and for Seller to demonstrate Seller’s compliance with, NERC reliability standards. This cooperation shall include the provision of information in Buyer’s possession that Buyer (as Scheduling Coordinator) has provided to the CAISO related to the Facility or actions taken by Buyer (as Scheduling Coordinator) related to Seller’s compliance with NERC reliability standards.

4.4 Forecasting. Seller shall provide the forecasts described below. Seller’s (i) Available Generating Capacity, (ii) Available Storage Capacity, and (iii) Available Storage Capability forecasts (items (i), (ii), and (iii) collectively referred to as the “Forecasted Product”) shall include availability and updated status of key equipment for the Facility. Seller shall use commercially reasonable efforts to forecast the Forecasted Product and expected PV Energy of the Facility accurately and to transmit such information in a format reasonably acceptable to Buyer (or Buyer’s designee).
(a) Annual Forecast of Monthly Expected PV Energy. No less than ninety (90) days before (i) the first day of the first Contract Year of the Delivery Term and (ii) the beginning of each calendar year for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of monthly expected PV Energy, by hour, for the following calendar year in the form attached hereto as Exhibit L-1 or as reasonably requested by Buyer.
(b) Monthly Forecast of Available Generating Capacity, Available Storage Capacity, and Available Storage Capability. No less than thirty (30) days before CAISO Commercial Operation, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer and Buyer’s designee (if applicable) a non-binding forecast of the hourly Forecasted Product, and expected PV Energy, for each day of the following month in the forms attached hereto as Exhibits L-2, L-3 and L-4, respectively, or as reasonably requested by Buyer.
(c) Daily Forecast. By 5:30 AM Pacific Prevailing Time on the Business Day immediately preceding the date of delivery, Seller shall provide Buyer with a non-binding forecast of the Forecasted Product for each hour of the immediately succeeding day (“Day-Ahead Forecast”). A Day-Ahead Forecast provided in a day prior to any non-Business Day(s) shall include non-binding forecasts for the immediate day, each succeeding non-Business Day and the next Business Day. Each Day-Ahead Forecast shall clearly identify, for each hour, Seller’s best 230
38 estimate of the Available Generating Capacity (or if requested by Buyer, the monthly expected PV Energy), Available Storage Capacity, and Available Storage Capability. (d) Real-Time Forecast. During the period commencing upon CAISO Commercial Operation and continuing throughout the Delivery Term, Seller shall notify Buyer of any changes in Forecasted Product of one (1) MW or MWh or more, whether due to Forced Facility Outage, Force Majeure Event or other cause, as soon as reasonably possible, but no later than one (1) hour prior to the deadline for submitting Schedules to the CAISO in accordance with the rules for participation in the Real-Time Market. If the Forecasted Product changes by at least one (1) MW as of a time that is less than one (1) hour prior to the Real-Time Market deadline, but before such deadline, then Seller must notify Buyer as soon as reasonably possible. Such Notices shall contain information regarding the beginning date and time of the event resulting in the change in Available Generating Capacity, Available Storage Capacity, and/or Available Storage Capability, as applicable, the expected end date and time of such event, the expected Available Generating Capacity, Available Storage Capacity, and/or Available Storage Capability, as applicable, in MW, and any other information required by the CAISO or reasonably requested by Buyer. With respect to any Forced Facility Outage, Seller shall use commercially reasonable efforts to notify Buyer of such outage within ten (10) minutes of the commencement of the Forced Facility Outage. Seller shall inform Buyer of any developments that are reasonably likely to affect either the duration of such outage or the availability of the Facility during or after the end of such outage. These Notices and changes to Available Generating Capacity, Available Storage Capacity, and/or Available Storage Capability shall be communicated in a method acceptable to Buyer; provided, Buyer specifies the method no later than sixty (60) days prior to the effective date of such requirement.

In the event Buyer fails to provide Notice of an acceptable method for communications under this Section 4.4(d), then Seller shall send such communications by telephone and e-mail to Buyer. (e) Hybrid Resource Forecast Requirements. In the event that the Storage Facility and the Generating Facility are in Hybrid Resource configuration, Seller shall use commercially reasonable efforts to provide such information as is needed by Buyer or the CAISO to fully make use of Hybrid Resource functionality, or as is otherwise reasonably requested by Buyer.

4.5 Dispatch Down/Curtailment.
(a) General. Seller agrees to reduce the Generating Facility’s generation by the amount and for the period set forth in any Curtailment Order, Buyer Curtailment Order, or notice received from CAISO in respect of a Buyer Bid Curtailment. Buyer has no obligation to purchase or pay for any Product delivered in violation of any Curtailment Order, Buyer Curtailment Order, or notice received from CAISO in respect of a Buyer Bid Curtailment, or for any Product that could not be delivered to the Delivery Point due to a Force Majeure Event. (b) Buyer Curtailment. Buyer shall have the right to order Seller to curtail deliveries of PV Energy or Discharging Energy to the Delivery Point for reasons unrelated to Force Majeure Events or Curtailment Orders pursuant to a dispatch notice delivered to Seller, provided, Buyer shall pay Seller for all Deemed Delivered Energy associated with all Buyer Curtailment Periods at the applicable Renewable Rate.
231
39 (c) Failure to Comply. If Seller fails to comply with a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, then, for each MWh of Facility Energy that is delivered to the Delivery Point in contradiction to the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, Seller shall pay Buyer for each such MWh at an amount equal to the sum of (A) + (B) + (C), where: (A) is the amount, if any, paid to Seller by Buyer for delivery of such MWh and, (B) is an amount equal to the absolute value of the Negative LMP, if any, for the Buyer Curtailment Period or Curtailment Period, times the amount of MWh of Facility Energy delivered to the Delivery Point in contradiction to the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, and (C) is any penalties or other charges resulting from Seller’s failure to comply with the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order. (d) Seller Equipment Required for Operating Instruction Communications.

Seller shall acquire, install, and maintain such facilities, communications links and other equipment, and implement such protocols and practices, as necessary to respond to and follow operating instructions from the CAISO and Buyer's SC, including an electronic signal conveying real time and intra-day instructions, to operate the Facility as directed by Buyer from time to time in accordance with this Agreement and/or a Governmental Authority, including to implement a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order in accordance with the methodologies applicable to the Facility and used to transmit such instructions. If at any time during the period commencing upon CAISO Commercial Operation and continuing throughout the Delivery Term, Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with methodologies applicable to the Facility as required by CAISO or reasonably determined by Buyer to be applicable consistent with Prudent Operating Practices, Seller shall take the steps necessary to become compliant as soon as commercially reasonably possible. Seller shall promptly repair and replace as necessary such facilities, communication links or other equipment, and shall notify Buyer as soon as Seller discovers any defect. If Buyer notifies Seller of the need for maintenance, repair, or replacement of any such facilities, communication links or other equipment, Seller shall repair or replace such equipment as necessary within five (5) days of receipt of such Notice; provided, if Seller is unable to do so, then Seller shall make such repair or replacement as soon as reasonably practical. Seller shall be liable pursuant to Section 4.5(c) for failure to comply with a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, during the time that Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with applicable methodologies. A Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order communication via such systems and facilities shall have the same force and effect on Seller as any other form of communication.

4.6 Charging and Discharging Energy.
(a) Buyer will be the Scheduling Coordinator for the Storage Facility and will have sole and exclusive rights to direct Seller to charge and discharge the Storage Facility and to bid and schedule the Storage Facility in CAISO markets, subject to the terms of this Agreement, including the Operating Restrictions.
(b) Seller shall comply with Charging Notices and Discharging Notices that comply with the terms of this Agreement. Upon receipt of a valid Charging Notice, Seller shall accept the Charging Energy at, the Storage Facility in accordance with the terms of this Agreement 232
40 (including the Operating Restrictions), at the times and in the quantities specified in such Charging Notice. Charging Energy may be supplied from the Generation Facility, the CAISO Grid or the local utility distribution system. Upon receipt of a valid Discharging Notice, Seller shall deliver the Discharging Energy to the Delivery Point in accordance with the terms of this Agreement (including the Operating Restrictions), at the times and in the quantities specified in such Discharging Notice.
(c) Buyer will have the right to direct Seller to charge the Storage Facility seven (7) days per week and twenty-four (24) hours per day (including holidays), by providing Charging Notices to Seller electronically, provided, Buyer’s right to issue Charging Notices is subject to the requirements and limitations set forth in this Agreement, including the Operating Restrictions.

Each Charging Notice issued in accordance with this Agreement will be effective unless and until Buyer modifies such Charging Notice by providing Seller with an updated Charging Notice. (d) Seller shall not charge the Storage Facility during the Contract Term other than pursuant to a valid Charging Notice or in connection with a Storage Capacity Test (for which Seller may request a Charging Notice from Buyer), or pursuant to a notice from CAISO, the PTO, or any other Governmental Authority. If, during the Contract Term, Seller (i) charges the Storage Facility to a Stored Energy Level greater than the Stored Energy Level provided for in the Charging Notice (except as permitted in the first sentence of this Section 4.6(d)), or (ii) charges the Storage Facility in violation of the first or second sentence of Section 4.6(b), then, in addition to any other costs and charges for which Seller is responsible, including Imbalance Energy costs and other amounts specified in Section 4.3(c), and without limiting any of Buyer’s other rights under this Agreement:
(i) Seller shall be responsible for all Energy costs associated with such charging of the Storage Facility; and
(ii) the Monthly Storage Availability calculation shall be affected to the extent specified in Exhibit M.
(e) Subject to compliance with the CAISO Tariff, other applicable Laws and the Operating Restrictions, Buyer will have the right to discharge the Storage Facility seven (7) days per week and twenty-four (24) hours per day (including holidays), by providing Discharging Notices to Seller electronically and subject to the requirements and limitations set forth in this Agreement, including the Operating Restrictions. Each Discharging Notice issued in accordance with this Agreement will be effective unless and until Buyer modifies such Discharging Notice by providing Seller with an updated Discharging Notice.
(f) Seller shall not discharge the Storage Facility during the period commencing upon Commercial Operation and continuing throughout the Delivery Term other than pursuant to a valid Discharging Notice or in connection with a Storage Capacity Test (for which Seller may request a Discharging Notice from Buyer), or pursuant to a notice from CAISO, the PTO, or any other Governmental Authority. Discharging for Station Use may occur only as specified in Section 6.4. In the case of a Storage Capacity Test, Buyer shall pay for costs associated with the Charging Energy and may retain any revenue from the discharge of such Energy (adjusted for efficiency losses) pursuant to a valid Discharging Notice; provided, Seller shall pay the costs 233
41 associated with the Charging Energy if (i) Seller initiates the tests in accordance with Exhibit N or (ii) a Buyer-initiated test indicates that the Storage Capacity is two percent (2%) or more lower than the then-current Storage Capacity. If, during the Contract Term, Seller (i) discharges the Storage Facility to a Stored Energy Level less than the Stored Energy Level provided for in the Discharging Notice (except as permitted in the first or second sentence of this Section 4.6(f)), or (ii) discharges the Storage Facility in violation of the first or second sentence of this Section 4.6(f), then, in addition to any other costs and charges for which Seller is responsible, including Imbalance Energy costs and other amounts specified in Section 4.3(c), and without limiting any of Buyer’s other rights under this Agreement:
(i) Buyer shall retain any positive revenues received from CAISO or otherwise associated with such discharge;
(ii) Seller shall be responsible for and reimburse Buyer for all Energy costs associated with charging the Storage Facility to the Stored Energy Level specified by Buyer before the discharge; and
(iii) the Monthly Storage Availability calculation shall be affected to the extent specified in Exhibit M.
(g) Notwithstanding anything in this Agreement to the contrary, during any Settlement Interval, Curtailment Orders, Buyer Curtailment Orders, and Buyer Bid Curtailments applicable to such Settlement Interval shall have priority over any Discharging Notices applicable to such Settlement Interval (but not over Charging Notices which are consistent with such Curtailment Orders, Buyer Curtailment Orders, or Buyer Bid Curtailments), and Seller shall have no liability for violation of this Section 4.6 or any Discharging Notice if and to the extent such violation is caused by Seller’s compliance with any Curtailment Order, Buyer Curtailment Order, Buyer Bid Curtailment, or other instruction or direction from a Governmental Authority or the PTO unless caused by Seller’s fault or negligence. Buyer shall have the right, but not the obligation, to provide Seller with updated Charging Notices and Discharging Notices during any Buyer Curtailment Order, Buyer Bid Curtailment, or Curtailment Order consistent with the Operating Restrictions.
(h) Prior to Commercial Operation, (i) Buyer shall have no rights to issue or cause to be issued Charging Notices or Discharging Notices, (ii) Seller shall have exclusive rights to charge and discharge the Storage Facility (provided, Seller shall only charge and discharge the Storage Facility in connection with installation, commissioning and testing of the Storage Facility, and, commencing upon CAISO Commercial Operation, subject to the Operating Restrictions), (iii) all CAISO costs, revenues, penalties and other amounts owing to or paid by CAISO in respect of the Storage Facility testing shall be for Seller’s account. Upon Commercial Operation, Buyer shall have exclusive rights to issue or cause to be issued Charging Notices or Discharging Notices.

4.7 [Intentionally Omitted]

4.8 Expected Energy and Guaranteed Energy Production. The quantity of PV Energy that Seller expects to be able to deliver to Buyer at the Delivery Point during each Contract Year is set forth on the Cover Sheet (“Expected Energy”). Seller shall be required to deliver to 234
42 Buyer at the Delivery Point an amount of PV Energy, not including any Excess MWh, equal to no less than the Guaranteed Energy Production (as defined below) in each Contract Year during the Delivery Term (“Performance Measurement Period”). “Guaranteed Energy Production” means an amount of Product, asmeasured inMWh,
Seller shall be excused from achieving the Guaranteed Energy Production during any Performance Measurement Period only to the extent that Seller was unable to deliver PV Energy as a result of any Force Majeure Events, Buyer Default, Curtailment Periods and Buyer Curtailment Periods; to effectuate the foregoing excuse, Seller shall be deemed to have delivered to Buyer (a) the Deemed Delivered Energy in respect of Buyer Curtailment Periods, and (b) an amount of Energy determined in accordance with Exhibit D in respect of Lost Output. 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;

4.9 WREGIS. Seller shall, at its sole expense, but subject to Section 3.13, 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 PV Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard 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, issuance, and transfer of such WREGIS Certificates to Buyer, and Buyer shall be given sole title to all such WREGIS Certificates. In addition:
(a) Prior to the Commercial Operation Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using “Forward Certificate Transfers” (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the accounts 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 itself or its agent to be designated as the Qualified Reporting Entity for the Facility. Seller shall cause Forward Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules. Since WREGIS Certificates will only be created for whole MWh amounts of Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for creation of a WREGIS Certificate. 235
43 (c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the PV Energy for such calendar month as evidenced by data produced by the Generating Facility Meter.
(d) Due to the timing of 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 4.9.

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 issued to Buyer for a calendar month as compared to the PV Energy for the same calendar month (“Deficient Month”). If any WREGIS Certificate Deficit occurs, then the amount of PV Energy in the Deficient Month shall be reduced by 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 Performance Measurement Period; provided, Buyer shall pay Seller for any PV Energy that is delivered by Seller without corresponding WREGIS Certificates at a price equal to the lesser of (i) the Renewable Rate, or (ii) the weighted average Day-Ahead LMPs for the PV Energy delivered in the corresponding month. Without limiting Seller’s obligations under this Section 4.9, 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. Seller shall use commercially reasonable efforts to rectify any WREGIS Certificate Deficit as expeditiously as possible. (f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.9 after the Effective Date, the Parties promptly shall modify this Section 4.9 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 PV Energy in the same calendar month. (g) STC REC-2. 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. (h) STC REC-1. Transfer of Renewable Energy Credits. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation.

To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law.

4.10 Financial Statements. Seller shall provide to Buyer, within sixty (60) days of the end of Seller’s first, second, and third fiscal quarters, and within one hundred twenty (120) days 236
44 of the end of the Seller’s fiscal year, as applicable, unaudited quarterly and annual audited financial statements of the Seller (including a balance sheet and statements of income and cash flows), all prepared in accordance with generally accepted accounting principles in the United States, consistently applied.

4.11 Access to Data and Installation and Maintenance of Weather Station. (a) Commencing on CAISO Commercial Operation, and continuing throughout the Delivery Term, Seller shall provide to Buyer, in a form reasonably acceptable to Buyer, the data set forth below on a real-time basis; provided, Seller shall agree to make and bear the cost of changes to any of the data delivery provisions below, as requested by Buyer, following CAISO Commercial Operation and continuing throughout the Delivery Term, which changes Buyer determines are necessary to forecast output from the Facility, and comply with Law:
(i) real time, read-only access to meteorological measurements, transformer availability, any other facility availability information, and, if applicable, all parameters necessary for use in the equation under item (vii) of this list; (ii) real time, read-only access to PV Energy, EMS data, including Charging Energy, Discharging Energy, Facility Energy, Storage Facility state-of-charge, and battery rack and inverter status (online or offline) information, and meteorological measurements collected by SCADA system for the Facility; provided, if Buyer is unable to access the Facility’s SCADA system, then upon written request from Buyer, Seller shall provide such information and meteorological measurements to Buyer in 1 minute intervals in the form of a flat file to Buyer through a secure file transport protocol (FTP) system with an e-mail back up for each flat file submittal;
(iii) read-only access to the Generating Facility Meter and the Storage Facility Meter, and all Facility meter data at the Site; (iv) full, real time access to the Facility’s Scheduling and Logging for the CAISO (OMS) client application, or its successor system; (v) net plant electrical output at the CAISO revenue meter; (vi) instantaneous data measurements at sixty (60) second or increased frequency for the following parameters, which measurements shall be provided by Seller to Buyer in a consolidated data report at least once every five minutes via flat file through a secure file transport protocol (FTP) system with an e-mail backup: (i) back panel temperature (ii) global horizontal irradiance, (iii) plane of array irradiance (if the panels are fixed) or direct normal irradiance (if the panels are tracking), (iv) wind speed, (v) peak wind speed (within one minute), (vi) wind direction, (vii) ambient air temperature, (viii) dewpoint air temperature or relative humidity, (ix) horizontal visibility, (x) precipitation (rain rate), (xi) precipitation (running 30 day total), and (xii) barometric pressure; and
(vii) an equation, updated on an ongoing basis to reflect the potential generation of the Facility as a function of insolation (and, if applicable, other weather factors).

Such equation shall take into account the expected availability of the Facility. Seller shall 237
45 reasonably cooperate with any request from Buyer to adjust the equation due to results that are inconsistent with the observed Facility output.

For any month in which the above information and access was not available to Buyer for longer than twenty-four (24) continuous hours, Seller shall prepare and provide to Buyer upon Buyer’s request a report with the Facility’s monthly actual Available Generating Capacity and/or Available Storage Capacity in a form reasonably acceptable to Buyer. (b) Seller shall maintain at least a minimum of one hundred twenty (120) days’ historical data for all data required pursuant to Section 4.11, which shall be available on a minimum time interval of one hour basis or an hourly average basis, except with respect to the meteorological measurements which shall be available on a minimum time interval of ten (10) minute basis. Seller shall provide such data to Buyer within five (5) Business Days of Buyer’s request. (c) Installation, Maintenance and Repair.
(i) Seller, at its own expense, shall install and maintain at least one (1) stand-alone meteorological station at the Site to monitor and report the meteorological data required in Section 4.11(a) of this Agreement. Seller, at its own expense, shall install and maintain a secure communication link in order to provide Buyer with access to the data required in Section

4.11(a) of this Agreement.
(ii) Seller shall maintain the meteorological stations, telecommunications path, hardware, and software necessary to provide accurate data to Buyer or Buyer’s designee to enable Buyer to meet current CAISO scheduling requirements. Seller shall promptly repair and replace as necessary such meteorological stations, telecommunications path, hardware and software and shall notify Buyer as soon as Seller learns that any such telecommunications paths, hardware and software are providing faulty or incorrect data. (iii) If Buyer notifies Seller of the need for maintenance, repair or replacement of the meteorological stations, telecommunications path, hardware or software, Seller shall maintain, repair or replace such equipment as necessary within five (5) days of receipt of such Notice; provided, if Seller is unable to repair or replace such equipment within five (5) days, then Seller shall make such repair or replacement as soon as reasonably practical; provided further, Seller shall not be relieved from liability for any Imbalance Energy costs incurred under Section

3.4 during this additional period for repair or replacement. (iv) For any occurrence in which Seller’s telecommunications system is not available or does not provide quality data and Buyer notifies Seller of the deficiency or Seller becomes aware of the occurrence, Seller shall transmit data to Buyer through any alternate means of verbal or written communication, including cellular communications from onsite personnel, facsimile, blackberry or equivalent mobile e-mail, or other method mutually agreed upon by the Parties, until the telecommunications link is re-established. (d) Seller agrees and acknowledges that Buyer may seek and obtain from third parties any information relevant to its duties as Scheduling Coordinator for the Facility, including from the Participating Transmission Operator. Seller shall execute within a commercially reasonable timeframe upon request such instruments as are reasonable and necessary to enable 238
46 Buyer to obtain from the Participating Transmission Operator information concerning Seller and the Facility that may be necessary or useful to Buyer in furtherance of Buyer’s duties as Scheduling Coordinator for the Facility.
(e) No later than ninety (90) days before the date of Initial Synchronization, Seller shall provide one (1) year, if available, but no less than six (6) months, of recorded meteorological data to Buyer in a form reasonably acceptable to Buyer from a weather station at the Site. Such weather station shall provide, via remote access to Buyer, all data relating to (i) the parameters (other than back panel temperature) identified in Section 4.11(a)(vi) above (all data, except peak values, should be 1-second samples averaged into 10-minute periods); (ii) elevation, latitude and longitude of the weather station; and (iii) any other data reasonably requested by Buyer.

4.12 Storage Availability and Efficiency.
(a) Storage Availability. During the Delivery Term, the Storage Facility shall maintain a Monthly Storage Availability (calculated in accordance with Exhibit M) of no less than Guaranteed Storage Availability. If, in any month after Commercial Operation, the Monthly Storage Availability is less than the Guaranteed Storage Availability, then, except as provided in Section 11.1(b)(vi), Buyer’s sole and exclusive remedy for such shortfall shall be the application of the Storage Availability Adjustment to reduce the Storage Capacity Payment due for the Storage Product as provided in Section 3.3(e).
(b) Round-Trip Efficiency. During each month of the Delivery Term, the Storage Facility shall maintain a Round-Trip Efficiency of no less than the Guaranteed Round-Trip Efficiency. If, in any month during the Delivery Term, the Round-Trip Efficiency is less than the Guaranteed Round-Trip Efficiency, then, except as provided in Section 11.1(b)(vii), Buyer’s sole and exclusive remedy (and Seller’s sole and exclusive liability) for such shortfall shall be the RTE Shortfall Payment calculated in accordance with Exhibit Q.

4.13 Storage Capacity Tests.
(a) Prior to the Commercial Operation Date, Seller shall schedule and complete a Commercial Operation Storage Capacity Test in accordance with Exhibit N. Thereafter, Seller and Buyer shall have the right to conduct additional Storage Capacity Tests in accordance with Exhibit N.
(b) Buyer shall have the right to send one or more representatives to witness all Storage Capacity Tests. Buyer shall be responsible for all costs, expenses and fees payable or reimbursable to its representatives witnessing any Storage Capacity Test. (c) Following each Storage Capacity Test, Seller shall submit a testing report in accordance with Exhibit N. If the actual capacity determined pursuant to a Storage Capacity Test deviates from the then current Storage Capacity, then the actual capacity determined pursuant to a Storage Capacity Test (up to, but not in excess of, the Guaranteed Storage Capacity) shall become the new Storage Capacity, effective as of the first day of the month following the completion of the Storage Capacity Test, for all purposes under this Agreement, including compensation under Section 3.3(e) until the next such Storage Capacity Test. 239
47 4.14 Storage Facility Modifications. Seller shall not modify or supplement all or any part of the Storage Facility without Buyer’s prior written consent, which consent shall be not be unreasonably withheld, conditioned or delayed.

4.15 Ancillary Services. Buyer shall have the exclusive rights to all Ancillary Services that the Facility is capable of providing consistent with the Operating Restrictions, with characteristics and quantities determined in accordance with the CAISO Tariff. Seller shall operate and maintain the Facility throughout the Contract Term so as to be able to provide such Ancillary Services in accordance with the specifications set forth in the Facility’s initial CAISO Certification associated with the Installed Storage Capacity. If the Storage Facility fails, or is unable, to provide Ancillary Services for any reason (including by reason of failing an Ancillary Services certification test) that is not excused hereunder, then as exclusive remedies the Available Storage Capacity for any applicable Calculation Interval shall be deemed reduced for purposes of calculating the Monthly Storage Capacity Availability by an amount equal to the product of (a) the Available Storage Capacity multiplied by (b) thirty percent (30%), and Seller shall also reimburse Buyer for any CAISO charges or penalties arising from the failure to provide such Ancillary Services. Upon Buyer’s reasonable request, Seller shall submit the Facility for additional CAISO Certification so that the Facility may provide additional Ancillary Services that the Facility is, at the relevant time, actually physically capable of providing consistent with the definition of Ancillary Services herein and without modification of the Facility, provided, Buyer has agreed to reimburse Seller for any costs Seller incurs in connection with conducting such additional CAISO Certification.

4.16 Workforce Agreement. The Parties acknowledge that in connection with Buyer’s energy procurement efforts, including entering into this 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, 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 4.16. Seller shall provide to Buyer copies of any reports, certifications or similar communications with the IRS regarding labor information applicable to Seller, its Affiliates or suppliers and vendors in connection with any obtaining or substantiating tax incentives pursuant to the Internal Revenue Service Requirements.

4.17 Diverse Business Enterprises. During the Delivery Term, no later than twenty (20) days after each semi-annual period ending on June 30th or December 31st, Seller shall provide to Buyer a report listing all Diverse Business Enterprises that supplied goods or services to Seller during such period, including (i) any certifications or other documentation of such Diverse Business Enterprises status as such, (ii) the business address and other contact information of such Diverse Business Enterprises, (iii) the aggregate amount paid to Diverse Business Enterprises during such period and (iv) any other information Buyer reasonably determines is necessary to meet its related reporting obligations.
(a) Buyer has the right to disclose to the CPUC all such information provided by Seller pursuant to this Section 4.17.
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48 (b) Seller shall make reasonable efforts to accommodate requests by the CPUC (or by Buyer in response to a request by the CPUC) to audit Seller in order to verify data provided by Seller pursuant to this Section 4.17.

4.18 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities may be subject to shared facilities and/or co-tenancy agreements entered into among Seller, the Transmission Provider, Seller’s Affiliates, and/or third parties. If applicable, Seller agrees that any agreements regarding Shared Facilities (i) shall permit Seller to perform or satisfy, and shall not purport to limit, Seller’s obligations hereunder, (ii) shall provide for separate metering of the Facility; (iii) shall not limit Buyer’s ability to charge or discharge the Facility up to the full Storage Capacity; (iv) shall provide that any other generating or energy storage facilities not included in the Facility but using Shared Facilities shall not be included within the Facility’s CAISO Resource ID; and (iv) shall provide that any curtailment or restriction of Shared Facility capacity not attributable to a specific project or projects shall be allocated to all generating or storage facilities utilizing the Shared Facilities based on their pro rata allocation of the Shared Facility capacity prior to such curtailment or reduction. Seller shall not, and shall not permit any Affiliate to, allocate to other Persons a share of the total interconnection capacity under the Interconnection Agreements in excess of an amount equal to the total interconnection capacity under the Interconnection Agreements.

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 delivery or making available to Buyer, including on Energy prior to the Delivery Point. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and from the Delivery Point (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees). Seller shall be solely responsible for all taxes, charges or fees imposed on the Facility or Seller by a Governmental Authority for Greenhouse Gas emitted by or attributable to the Facility during the Contract Term, but expressly excluding any taxes, charges or fees related to Greenhouse Gases imposed on Charging Energy or Discharging Energy. 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 Energy or other Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation within thirty (30) days after the Effective Date to evidence such exemption or exclusion. If Buyer does not provide such documentation, then Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes from which Buyer claims it is exempt.

5.2 Cooperation. Each Party shall use reasonable efforts to implement the provisions of and administer this Agreement in accordance with the intent of the Parties to minimize all Taxes, so long as no Party is materially adversely affected by such efforts. The Parties shall cooperate to minimize Tax exposure; provided, neither Party shall be obligated to incur any financial or operational burden to reduce Taxes for which the other Party is responsible hereunder without 241
49 receiving due compensation therefor from the other Party. All Energy delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Energy.

5.3 Ownership. Seller shall be the owner of the Facility for federal income tax purposes and, as such, Seller (or its Affiliates or Lenders) shall be entitled to all depreciation deductions associated with the Facility and to any and all Renewable Energy Incentives or other tax benefits associated with the Facility, including any such tax credits or tax benefits under the Internal Revenue Code of 1986, as amended. The Parties intend this Agreement to be a “service contract” within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986, as amended. The Parties will not take the position on any tax return or in any other filings suggesting that it is anything other than a purchase of the Product from the Seller or that this agreement is anything other than a “service contract” within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986, as amended.