Redwood Coast Energy Authority Board of Directors
April 22, 2024

Redwood Coast Energy Authority
633 3rd Street, Eureka, CA 95501
Phone: (707) 269-1700 Toll-Free (800) 931-7232 Fax: (707) 269-1777 E-mail: [email protected] Web: www.redwoodenergy.org

NOTICE AND CALL OF A SPECIAL MEETING

OF THE BOARD OF DIRECTORS

OF THE REDWOOD COAST ENERGY AUTHORITY

TO THE BOARD OF DIRECTORS OF THE REDWOOD COAST ENERGY AUTHORITY AND TO THE CLERK OF THE BOARD:

NOTICE IS HEREBY GIVEN that a special meeting of the Board of Directors of the Redwood Coast Energy Authority is hereby called to be held on Monday, April 22, 2024, at the Wharfinger Building Bay Room, 1 Marina Way, Eureka, at 3:30 p.m. The purpose is to address items from the cancelled April 25, 2024, regular meeting agenda listed below.

Dated: April 19, 2024

BOARD OF DIRECTORS SPECIAL MEETING AGENDA
Wharfinger Building, Downstairs Bay Room
1 Marina Way, Eureka, CA 95501
April 22, 2024
Monday, 3:30 p.m.

Any member of the public needing special accommodation to participate in this meeting or access the meeting materials should email [email protected] or call (707) 269- 1700 at least 3 business days before the meeting. Assistive listening devices are available.

Pursuant to Government Code section 54957.5, all writings or documents relating to any item on this agenda which have been provided to a majority of the Board, including those received less than 72 hours prior to the Committee's meeting, will be made available to the public at www.RedwoodEnerqv.org.

NOTE: Speakers wishing to distribute materials to the Board at the meeting, please provide 13 copies to the Board Clerk.

THIS 15 A HYBRID IN-PERSON AND VIRTUAL MEETING.

To participate in the meeting online, go to https://us02web.zoom.us/J/81972368051. To participate by phone, call (669) 900-6833 or (253) 215-8782. Enter webinar ID: 819 7236 8051.

To make a comment during the public comment periods, raise your hand in the online Zoom webinar, or press star(*) 9 on your phone to raise your hand. You will continue to hear the meeting while you wait. When it is your turn to speak, a staff member will prompt you to unmute your phone or computer. You will have 3 minutes to speak.

You may submit written public comment by email to [email protected].

Please identify the agenda item number in the subject line. Comments will be included in the meeting record but not read aloud during the meeting.
1 RCEA April 22, 2024, Board of Directors Special Meeting Agenda

While downloading the Zoom application may provide a better meeting experience, Zoom does not need to be installed on your computer to participate. After clicking the webinar link above, click “start from your browser.”

OPEN SESSION Call to Order

1. ROLL CALL - REMOTE DIRECTOR PARTICIPATION

1.1. Approve teleconference participation request for this meeting by Director pursuant to Brown Act revisions of AB 2449 due to an emergency circumstance to be briefly described.

2. REPORTS FROM MEMBER ENTITIES

3. ORAL AND WRITTEN COMMUNICATIONS
This time is provided for people to address the Board or submit written communications on matters not on the agenda.

At the conclusion of all oral communications, the Board may respond to statements. Any request that requires Board action will be set by the Board for a future agenda or referred to staff.

4. CONSENT CALENDAR
All matters on the Consent Calendar are considered to be routine by the Board and are enacted in one motion. There is no separate discussion of any of these items. If discussion is required, that item is removed from the Consent Calendar and considered separately. At the end of the reading of the Consent Calendar, Board members or members of the public can request that an item be removed for separate discussion.

4.1 Approve Minutes of March 28, 2024, Board Meeting.

4.2 Approve Disbursements Report.

4.3 Accept Financial Reports.

5. REMOVED FROM CONSENT CALENDAR ITEMS
Items removed from the Consent Calendar will be heard under this section.

COMMUNITY CHOICE ENERGY (CCE) BUSINESS (Confirm CCE Quorum) Items under this section of the agenda relate to CCE-specific business matters that fall under RCEA’s CCE voting provisions, with only CCE-participating jurisdictions voting on these matters with weighted voting as established in the RCEA joint powers agreement.

6. OLD CCE BUSINESS

6.1. Energy Risk Management Quarterly Report
Accept Energy Risk Management Quarterly Report.

7. NEW CCE BUSINESS – None.

END OF COMMUNITY CHOICE ENERGY (CCE) BUSINESS
2 RCEA April 22, 2024, Board of Directors Special Meeting Agenda

8. OLD BUSINESS

8.1 Executive Director Salary and Job Description

1. Adopt RCEA staff salary schedule with the removal of the Executive Director classification.

2. Adopt an Executive Director Salary schedule and approve the initial Executive Director salary range.

3. Approve updated Executive Director job description.

9. NEW BUSINESS

9.1 Foster Clean Power B Power Purchase Agreement
Approve Resolution 2024-4 Approving the Form and Authorizing the Execution of the Power Purchase Agreement with Foster Clean Power B LLC.

9.2 Energy Resilient Fire Services in High-Threat Communities Grant Authorize RCEA Interim Executive Director to execute the California Office of Planning and Research Regional Resilience Grant Program Grant Agreement once finalized and reviewed by General Counsel.

Authorize RCEA Interim Executive Director to execute Partnership Agreement(s) with the RRGP fire station project partners.

10. STAFF REPORTS

10.1 Interim Executive Director’s Report

11. FUTURE AGENDA ITEMS
Any request that requires Board action will be set by the Board for a future agenda or referred to staff.

12. ADJOURNMENT

NEXT REGULAR MEETING
Thursday, May 23, 2024, 3:30 p.m.

Wharfinger Building downstairs Bay Room, 1 Marina Way, Eureka, CA 95501 Online and phone participation will also be possible via Zoom. 3 This page
intentionally
left blank.
4

STAFF REPORT
Agenda Item # 1.1
AGENDA DATE: April 22, 2024
TO: RCEA Board of Directors
FROM: Eileen Verbeck, Interim Executive Director
SUBJECT: Member Teleconference Participation

BACKGROUND
Since emergency Brown Act meeting law changes went into effect in 2020 due to the COVID-19 public health emergency, the RCEA Board of Directors, Community Advisory Committee and the subcommittees of those bodies met online with no physical, public meeting location.

Governor Newsom signed AB 361 into law in September 2021, which allowed these bodies to continue meeting completely virtually without publishing each member’s participation location while the COVID state of emergency continued and state or local officials recommended social distancing measures or the RCEA Board determined that meeting in person posed health and safety risks.

The COVID-19 State of Emergency ended on February 28, 2023, and RCEA Board and CAC meetings returned to meeting in-person at a physical location, with allowances under existing Brown Act rules or new AB 2449 Brown Act rules should a Board or CAC member need to participate from a remote location for certain reasons. If another state of emergency is declared, these bodies may be able to return to completely remote meetings.

SUMMARY
RCEA Board Directors may attend up to two meetings per year from a remote location without making the location accessible to the public for the following reasons:

1. “Just cause”
a. To provide childcare or caregiving need to a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner;
b. Due to a contagious illness that prevents the member from attending in-person; c. Due to a need related to a physical or mental disability as defined in Government Code sections 12926 and 12926.1 not otherwise accommodated; and d. Due to travel while on official business of the legislative body or another state or local agency.

2. “Emergency circumstance” due to a physical or family medical emergency that prevents the member from attending in person.

If a Board Director would like to attend the meeting remotely due to an emergency circumstance, the Board will take action by majority vote to approve the Director’s remote participation. A vote is not necessary for a request to attend remotely for just cause. A brief 5

description, protecting the Director’s (or Director’s family member’s) medical privacy, needs to be provided in both cases.

The remotely participating Board Director needs to publicly disclose at the meeting before any action (vote) is taken, whether anyone 18 years of age or older is present in the room at the remote location with the Director, and the general nature of the individual’s relationship with the Director.

If the Board Director anticipates needing to participate remotely for more than 2 meetings per year, staff recommends arranging for a publicly and ADA accessible space with visual and audio meeting capabilities from which to participate.

Staff asks to be notified one-week in advance, if possible, of remote meeting attendance so the Director’s publicly and ADA accessible remote meeting address can be published in the agenda, if required per Brown Act open meeting laws.

Current Remote Participation Requests
As of the writing of this staff report, there have been no remote director participation for “just cause” or “emergency circumstances” requests.

RECOMMENDED ACTION (if needed)
Approve teleconference participation request for this meeting by Director pursuant to Brown Act revisions of AB 2449 due to an emergency circumstance to be briefly described. 6 Redwood Coast Energy Authority
633 3rd Street, Eureka, CA 95501
Phone: (707) 269-1700 Toll-Free (800) 931-7232 Fax: (707) 269-1777 E-mail: [email protected] Web: www.redwoodenergy.org

BOARD OF DIRECTORS DRAFT MEETING MINUTES
Wharfinger Building, downstairs Bay Room March 28, 2024 1 Marina Way, Eureka, CA 95501 Thursday, 3:30 p.m.

Chair Sarah Schaefer called a regular meeting of the Board of Directors of the Redwood Coast Energy Authority to order on the above date at 3:32 p.m. Notice of this meeting was posted on March 22, 2024.

PRESENT: Natalie Arroyo, Vice Chair Scott Bauer, Skip Jorgensen, Alternate Director Mike Losey, Alt. Dir. Heidi Moore-Guynup, Elise Scafani, Chair Sarah Schaefer, Jack Tuttle, Frank Wilson, Sheri Woo (remote participation with just cause). ABSENT: Kris Mobley, Frankie Myers, Jason Ramos.

STAFF AND OTHERS PRESENT: EDP Renewables North America Director of Origination Chris Baxter; Schatz Energy Research Center Principal Engineer Dave Carter; Finance Specialist Ronnie Chaussé; Power Resources Director Richard Engel; Senior Power Resources Manager Jocelyn Gwynn; Demand-Side Management Director Stephen Kullmann; Executive Director Matthew Marshall; Community Advisory Committee Nominee Michael Shackelford; Board Clerk Lori Taketa; Deputy Executive Director Eileen Verbeck.

REPORTS FROM MEMBER ENTITIES
Director Arroyo and Chair Schaefer reported on their attendance at the CivicWell conference where they learned about electrification and transportation. CivicWell, formerly the Local Government Commission, obtained funding to launch regional energy agencies including RCEA.

ORAL AND WRITTEN COMMUNICATIONS
In honor of Women’s History Month, member of the public Dan Chandler recognized Eunice Newton Foote for predicting that increasing CO2 levels would cause atmospheric warming.

Arcata resident Diane Ryerson requested two Board action items: 1) vote to amend strategic plan section 4.1.11.2 Procure Local Biomass Energy, and 2) vote to end the Humboldt Sawmill Company biomass contract.

CONSENT CALENDAR

4.1 Approve Minutes of:

4.1.1 February 12, 2024, Board Special Meeting, and

4.1.2 February 22, 2024, Board meeting.

4.2 Approve Disbursements Report.

4.3 Accept Financial Reports.

4.4 Approve 2024 RCEA Policy Platform.

4.5 Appoint Colin Fiske and Pliny McCovey to Fill the Two At-Large Community Advisory Committee Seats for Two-Year Terms Expiring March 31, 2026, and 7 RCEA March 28, 2024, Board of Directors DRAFT Meeting Minutes

Appoint Michael Shackelford to the Community Advisory Committee Blue Lake Rancheria Seat for a Term Ending March 31, 2026.

4.6 Approve Updated Account Services Manager Job Description.

4.7 Authorize the Executive Director to Withdraw from Attorney-Client Representation Agreement Between Redwood Coast Energy Authority and Law Office of David Peffer, “PefferLegal.”
Neither the Board nor public requested items be removed from the consent calendar. CAC nominee Michael Shackelford introduced himself to the Board.

M/S: Jorgensen, Arroyo: Approve Consent Calendar items.

The motion passed with a unanimous roll call vote. Ayes: Arroyo, Bauer, Jorgensen, Losey, Moore-Guynup, Scafani, Schaefer, Tuttle, Wilson, Woo. Noes: None. Absent:

Myers, Abstain: None.

NEW BUSINESS

6.1 Sandrini Battery Energy Storage Service Agreement
Power Resources Manager Gwynn reported on the battery storage agreement that will help RCEA meet state-mandated mid-term reliability and resource adequacy targets. For scale, the batteries will have enough capacity to meet Humboldt County’s power needs for four hours per day. EDPR committed $250,000 for workforce development to be used at RCEA and EDPR’s discretion in Humboldt or Kern Counties. EDP Renewables’ Chris Baxter described his company’s experience in renewable energy project development. EDPR ranks fifth in renewable energy capacity in the U.S. There was no public comment on this agenda item.

M/S: Losey, Bauer: Approve Resolution 2024-3 Approving the Form of and Authorizing the Execution of the Energy Storage Service Agreement with Sandrini BESS Storage LLC and the Third Amendment to the Power Purchase Agreement with EDPR CA Solar Park II LLC.

The motion passed with a unanimous roll call vote. Ayes: Arroyo, Bauer, Jorgensen, Losey, Moore-Guynup, Scafani, Schaefer, Tuttle, Wilson, Woo. Noes: None. Absent:

Myers, Abstain: None.

6.2 Grid Resilience Innovation Partnership Program Funding Opportunity Deputy Executive Director Verbeck and Schatz Energy Research Center Principal Engineer Dave Carter described a grid modernization project that would draw on SERC’s and the Blue Lake Rancheria’s microgrid development experience to address intractable reliability problems faced in the Hoopa Valley, Yurok, and Karuk Tribal land areas. The project would build three Tribe-owned microgrids with battery storage, upgrade the Blue Lake Rancheria microgrid, provide pathways to journeyman-level job training programs for tribal members, and create a replicable model. The Department of Energy grant would fund half of the total project cost and requires match funding which project partners would secure. RCEA’s project role would be as grant manager. The directors requested an estimate of costs to develop grant applications of this scale.
8 RCEA March 28, 2024, Board of Directors DRAFT Meeting Minutes

Outgoing CAC member Larry Goldberg, speaking as a member of the public, expressed support for this project and asked that this project be leveraged to develop similar publicly-funded projects in other grid-constrained Humboldt County areas like Southern Humboldt.

Director Moore-Guynup abstained from voting because her employer, Blue Lake Rancheria, is a partner in this funding application and project.

M/S: Arroyo, Scafani: Approve Memorandum of Agreement Between Redwood Coast Energy Authority, Blue Lake Rancheria Tribe, Hoopa Valley Tribe, Karuk Tribe, Yurok Tribe and the Cal Poly Humboldt Sponsored Programs Foundation on behalf of Schatz Energy Research Center (Schatz) to Engage in Activities Regarding the Funding and Coordination of the GRIP 2 Funding Application and Authorize the Executive Director to execute said Memorandum of Agreement.

Authorize Executive Director to Submit the GRIP 2 Funding Application for Approximately $80,000,000 in Federal Department of Energy Funding on Behalf of the Parties Listed in the MOA with RCEA Listed as the Lead Applicant.

The motion passed with a unanimous roll call vote. Ayes: Arroyo, Bauer, Jorgensen, Losey, Scafani, Schaefer, Tuttle, Wilson, Woo. Noes: None. Absent: Myers, Abstain:

Moore-Guynup.

6.3 Executive Director Recruitment
Executive Director Marshall reported that he would be leaving RCEA at the end of the month, Deputy Executive Director Verbeck would serve as the Interim Executive Director until a replacement is hired. The directors discussed the merits of working with a recruitment firm.

Directors Arroyo and Scafani and Chair Schaefer volunteered to serve on an ad hoc Executive Recruitment Subcommittee. Director Mobley was volunteered in absentia. Vice Chair Bauer volunteered to serve if Director Mobley could not join the working group.

Chair Schaefer and other directors expressed appreciation to Executive Director Marshall for his knowledgeable leadership in developing RCEA over his 15 years at the agency.

Speaking as a member of the public, Dave Carter thanked Executive Director Marshall for his long service to further renewable energy and fight climate change.

M/S: Bauer, Losey: Approve Appointment of Deputy Executive Director Eileen Verbeck to Interim Executive Director, at Compensation Determined at the February 22, 2024 Board Meeting, Beginning April 1, 2024.

Authorize staff to solicit quotes from qualified executive search firms to perform the Executive Director recruitment.

Authorize the ad hoc Executive Director recruitment subcommittee to act as a review committee and authorize it to take the following actions: (i) approve scope of work, (ii) approve evaluation criteria, (iii) approve selected proposal based on the selection criteria to bring to the full Board for review and approval of resulting contract, (iv) 9 RCEA March 28, 2024, Board of Directors DRAFT Meeting Minutes

review Executive Director salary schedule and make recommendations to the Board for any proposed changes.

The motion passed with a unanimous roll call vote. Ayes: Arroyo, Bauer, Jorgensen, Losey, Moore-Guynup, Scafani, Schaefer, Tuttle, Wilson, Woo. Noes: None. Absent:

Myers, Abstain: None.

OLD BUSINESS

7.1 Humboldt Sawmill Company Biomass Emissions Biomass Technical Advisory Group and Community Advisory Committee Report (Information only)
Power Resources Director Engel reviewed RCEA’s local biomass power procurement. The HSC contract meets the Board’s direction to procure local renewable energy which is very difficult to find or develop at needed scale and meets state mandates for baseload power under long-term contracts. In response to community concerns about procuring local biomass combustion-derived power, RCEA formed a Biomass Technical Advisory Group with diverse stakeholder membership, created a biomass-free customer option (RePower+), deployed ambient air quality sensors in the community around HSC’s biomass plant, hired a consultant to study biomass power and engaged CalPoly Humboldt senior year engineering students to investigate alternative biomass uses. The last BTAG meeting focused on HSC’s plant violations and resulted in no definitive recommendations. HSC confirmed they would sell excess power to PG&E if the RCEA contract was terminated, and the BTAG requested more clarity on whether cleaner power should be procured elsewhere if not available locally. The lengthy March Community Advisory Committee meeting also focused on the HSC biomass plant’s operating violations and health and climate impacts but ended in split votes on recommended Board actions. The Energy Authority’s financial analysis for terminating the HSC contract indicated significant financial harm to the agency from extremely high replacement resource adequacy costs and non-compliance penalties.

Local plumber Jeffrey Robinson refuted statements that the HSC biomass plant helps prevent forest fires and asked staff to investigate whether the state would waive penalties for ending the HSC contract.

Nancy Ihara opposed the HSC biomass contract due to the accelerating climate crisis and referred to public comments from the March RCEA Community Advisory Committee meeting.

Pat Kenzler opposed the HSC contract due to negative impacts on Rio Dell and Scotia residents’ health. She asked that RCEA not put profit over public health.

Walt Paniak opposed the HSC contract due to concerns over cost and lack of timely carbon sequestration.

Joann McGarry supported increased energy conservation efforts to lower the amount of energy needed from HSC. She opposed the HSC contract.

Arcata resident Diane Ryerson opposed the HSC contract due to climate warming impacts.

Ms. Ryerson refuted arguments that plant operation prevented wildfires and that the contract increased RCEA and local community leverage with HSC.
10 RCEA March 28, 2024, Board of Directors DRAFT Meeting Minutes

CAC member and Trinidad resident Larry Goldberg, speaking as a member of the public, suggested customers opt up to RCEA’s RePower+ if they oppose HSC biomass power. HSC provides local baseload power which is otherwise provided by fracked natural gas. Onshore wind would have contributed to baseload power but was opposed by Humboldt County residents and ultimately rejected by the County Board of Supervisors.

Arcata resident Carolyn Goldammer opposed RCEA’s contract with HSC and called for stronger emissions regulations.

Dr. Wendy Ring opposed the HSC biomass contract due to the plant’s air violation history and negative health impacts. Dr. Ring also opposed Purple Air monitor deployment due to their inability to monitor fine particulate exposure.

Eureka resident Joanna Welch opposed the HSC biomass plant contract and asked that RCEA exit the contract when the Sandrini project comes online.

Daniel Chandler opposed RCEA’s extension of the HSC biomass contract in 2021 and requested RCEA exit the contract as soon as a carbon-renewable replacement can be found.

Chip Sharpe opposed the HSC biomass contract and supported distributed solar with battery backup on every rooftop.

Martha Walden of 350 Humboldt opposed the HSC biomass contract and expressed concern that Biomass Technical Advisory Group and Community Advisory Committee discussions were weighted against climate activists.

Written comment opposing RCEA’s biomass contract with HSC due to greenhouse gas and other emission concerns was received from:

Daniel Chandler Lynda McDevitt
Elizabeth Connors-Keith Caephren McKenna
Suzanne Cook Siddharth Mehrortra
Tina Garsen Sue Y. Lee Mossman
Patty Harvey Walter Paniak
Mary Hurley Dr. Wendy Ring
Paula Levine Garth Rogers
Ben Martin Emily Siegel
Andrew Wanzenberg supported forest fire fuel removal, briquetting and drying the fuel to combust for power.

Larry Goldberg submitted written comment supporting opting up to RePower+, which he read at the meeting. Chair Schaefer closed the public comment period.

The directors discussed the lack of a viable financial or legal pathway to contract termination, and how the need for biomass power would be reduced if many more customers opted up to RCEA’s RePower+ service. North Coast Unified Air Quality Management District Executive Director and Air Pollution Control Officer Brian Wilson provided context for evaluating HSC’s violations, explained different levels of air quality monitoring regulations and the difficulty of comparing biomass plants due to different feedstocks, equipment vintages and upgrades. 11 RCEA March 28, 2024, Board of Directors DRAFT Meeting Minutes

The directors requested to see Humboldt Sawmill Company’s Title V permit renewal results and thanked staff for doing their due diligence.

STAFF REPORTS

8.1 Executive Director’s Report (Information only)
Executive Director Marshall reported that RCEA’s e-bike rebate program is launching.

RCEA’s rebates can be used in addition to state rebates. Mr. Marshall praised and thanked RCEA’s staff. The directors thanked Executive Director Marshall for leaving RCEA a better agency after his long tenure. There was no public comment on this item.

FUTURE AGENDA ITEMS
The Directors requested discussion of strategies to incentivize customers to opt up to RePower+ service, information on proposed Senate Bill 1999 (Irwin) which would increase electricity customers’ fixed flat rate, and a description of RCEA’s contribution to the current electricity rate increases.

Chair Schaefer adjourned the meeting at 6:15 p.m.

Lori Taketa
Board Clerk
12 Accrual Basis Redwood Coast Energy Authority
Disbursements Report
As of February 29, 2024
Type Date Num Name Memo Amount
Bill Pmt -Check 02/02/2024 ACH CalPine Corporation Calpine December 2023 Costs -60,819.36 Bill Pmt -Check 02/02/2024 ACH Humboldt Sawmill Co. December 2023 Electricity Charge -639,468.26 Bill Pmt -Check 02/02/2024 ACH Snow Mountain Hydro, LLC December 2023 Electricity -4,180.37 Liability Check 02/02/2024 ACH Ascensus Paydate 02/02/2024 -13,191.62 Liability Check 02/02/2024 ACH EDD Paydate 02/02/2024 -8,023.32 Liability Check 02/02/2024 ACH Internal Revenue Service Paydate 02/02/2024 -32,910.50 Liability Check 02/02/2024 ACH Newport Group Paydate 02/02/2024 -11,742.16 Liability Check 02/02/2024 16860 Principal Life Insurance Company Feb 2024 premiums -123.52 Bill Pmt -Check 02/02/2024 16861 Aiqueous, LLC Support Hours Dec 2023 -562.50 Bill Pmt -Check 02/02/2024 16862 Arcata Technology Center Site Host Reimbursement 10/01- 12/31/2023 -622.49 Bill Pmt -Check 02/02/2024 16863 Ascensus 10/01/2023-12/31/2023 E-delivery initial notice x 1 -1,002.00 Bill Pmt -Check 02/02/2024 16864 AT&T RCAM Router charges - ACV: 11/19-12/18/23 -163.00 Bill Pmt -Check 02/02/2024 16865 AT&T RCAM Router charges - ACV: 12/19-1/18/24 -163.00 Bill Pmt -Check 02/02/2024 16866 Blue Lake Rancheria Site Host Reimbursement 10/01- 12/31/2023 -517.41 Check 02/02/2024 16867 NEM Customer NEM Account Close Out -71.06 Check 02/02/2024 16868 CCE Customer CCE Equipment Rebate - Res #CCE-R-240108-1805 -100.00 Bill Pmt -Check 02/02/2024 16869 Chargepoint Qty 4 CT4001-CAP for Open Door and surplus -886.60 Check 02/02/2024 16870 CCE Customer CCE Equipment Rebate - Res #CCE-R-231212-1768 -100.00 Check 02/02/2024 16871 CCE Customer CCE Equipment Rebate - Res #CCE-R-240125-1855 -250.00 Bill Pmt -Check 02/02/2024 16872 City of Arcata December 2023 Utility User Tax -15,285.89 Bill Pmt -Check 02/02/2024 16873 City of Arcata December 2023 Excessive Energy Use Tax -2,337.79 Bill Pmt -Check 02/02/2024 16874 City of Arcata Site Host Reimbursement 10/01- 12/31/2023 -852.60 Bill Pmt -Check 02/02/2024 16875 City of Blue Lake Site Host Reimbursement 10/01- 12/31/2023 -193.42 Bill Pmt -Check 02/02/2024 16876 City of Eureka - REVNet VOID: Site Host Reimbursement 10/1-12/31/2023 0.00 Bill Pmt -Check 02/02/2024 16877 City of Eureka-Water VOID: 633 3rd St. Acct 0302-203299 11/27-12/19/23 0.00 Bill Pmt -Check 02/02/2024 16878 City of Trinidad VOID: Site Host Reimbursement 10/01- 12/31/2023 0.00 Bill Pmt -Check 02/02/2024 16878 City of Trinidad Site Host Reimbursement 10/01- 12/31/2023 -693.24 Bill Pmt -Check 02/02/2024 16879 Hilson, D. Mileage reimbursement - Dec 2023 -37.73 Bill Pmt -Check 02/02/2024 16880 Developed Employment Services, LLC. Facilities maintenance work-Yard Work 633 3rd St. -101.99 Check 02/02/2024 16881 CCE Customer CCE Equipment Rebate - Res #CCE-R-240110-1817 -100.00 Check 02/02/2024 16882 CCE Customer CCE Equipment Rebate - Res #CCE-R-231210-1763 -150.00 Check 02/02/2024 16883 CCE Customer CCE Equipment Rebate - Res #CCE-R-240110-1818 -200.00 Bill Pmt -Check 02/02/2024 16884 HSU - Sponsored Programs Foundation MD/HD ZEV grant subcontracting - 9/1/23-10/11/23 -18,000.19 Bill Pmt -Check 02/02/2024 16885 HSU - Sponsored Programs Foundation TO4 RCAM Op Support: Oct-Nov 2023 On-call -7,000.90 Bill Pmt -Check 02/02/2024 16886 Humboldt Bay Coffee Co. Office coffee -77.85 Bill Pmt -Check 02/02/2024 16887 Humboldt Transit Authority Bus Rides for RCEA Staff Oct-Dec 2023 -39.90 Check 02/02/2024 16888 NEM Customer NEM Account Close Out -88.20 Bill Pmt -Check 02/02/2024 16889 Rennie, J Mileage reimbursement - Jan 2024 -186.93 Check 02/02/2024 16890 CCE Customer CCE Equipment Rebate - Res #CCE-R-240105-1801 -50.00 Check 02/02/2024 16891 NEM Customer NEM Account Close Out -261.74 Check 02/02/2024 16892 NEM Customer NEM Account Close Out -48.18 Check 02/02/2024 16893 CCE Customer CCE Equipment Rebate - Res #CCE-R-231227-1787 -250.00 Bill Pmt -Check 02/02/2024 16894 Beals, K. Decals for new RCEA phones -32.81 Bill Pmt -Check 02/02/2024 16895 Siino,K. Coffee maker for 917 3rd St -87.39 Check 02/02/2024 16896 NEM Customer NEM Account Close Out -99.48 Check 02/02/2024 16897 CCE Customer CCE Equipment Rebate - Res #CCE-R-240122-1847 -100.00 Check 02/02/2024 16898 NEM Customer NEM Account Close Out -255.01 Check 02/02/2024 16899 CCE Customer CCE Equipment Rebate - Res #CCE-R-231215-1775 -50.00 Bill Pmt -Check 02/02/2024 16900 Liebert Cassidy Whitmore Dec 2023 Legal Opinion/Personnel Rule Review -10,473.75 Bill Pmt -Check 02/02/2024 16901 Rodriguez, Louis Mileage reimbursement - January 2024 -34.84

13 Accrual Basis Redwood Coast Energy Authority
Disbursements Report
As of February 29, 2024
Type Date Num Name Memo Amount
Check 02/02/2024 16902 CCE Customer CCE Equipment Rebate - Res #CCE-R-231220-1779 -400.00 Check 02/02/2024 16903 CCE Customer CCE Equipment Rebate - Res #CCE-R-240114-1823 -150.00 Bill Pmt -Check 02/02/2024 16904 Bithell, M. Mileage reimbursement - January 2024 -21.44 Check 02/02/2024 16905 NEM Customer NEM Account Close Out -310.12 Bill Pmt -Check 02/02/2024 16906 Mission Uniform & Linen Office maintenance supplies - janitorial -28.68 Bill Pmt -Check 02/02/2024 16907 Newport Group Participant Fees for Retirement Plan - Q1/2024 -987.71 Bill Pmt -Check 02/02/2024 16908 North Coast Unified Air Quality Site Host Reimbursement 10/01- 12/31/2023 -729.32 Bill Pmt -Check 02/02/2024 16909 NYLEX.net, Inc. Onsite network support services - Feb 2024 -3,690.00 Bill Pmt -Check 02/02/2024 16910 O&M Industries 917 3rd St Heater Diagnostic -100.00 Bill Pmt -Check 02/02/2024 16911 Open Door Site Host Reimbursement 10/01- 12/31/2023 -260.85 Bill Pmt -Check 02/02/2024 16912 Pacific Paper Company Office supplies -10.87 Check 02/02/2024 16913 CCE Customer CCE Equipment Rebate - Res #CCE-R-231202-1755 -50.00 Bill Pmt -Check 02/02/2024 16914 PG&E CCA VOID: Dec 2023 CCE Charges 0.00 Bill Pmt -Check 02/02/2024 16915 PG&E EV Account VOID: EV stations 12/14-01/15/24 0.00 Bill Pmt -Check 02/02/2024 16916 PG&E Office Utility VOID: 12/07-01/05/24 utilities for 917 3rd Street 0.00 Bill Pmt -Check 02/02/2024 16917 PG&E Office Utility VOID: 12/14-01/15/24 utilities for 633 3rd Street 0.00 Check 02/02/2024 16918 NEM Customer NEM Account Close Out -214.20 Check 02/02/2024 16919 NEM Customer NEM Account Close Out -25.30 Bill Pmt -Check 02/02/2024 16920 Keenan Medical premiums - late fees -1,359.02 Bill Pmt -Check 02/02/2024 16921 Redwood Community Radio Radio underwriting - FY Q3 2023/24 -780.00 Check 02/02/2024 16922 NEM Customer NEM Account Close Out -115.53 Check 02/02/2024 16923 CCE Customer CCE Equipment Rebate - Res #CCE-R-240109-1806 -100.00 Check 02/02/2024 16924 CCE Customer CCE Equipment Rebate - Res #CCE-R-231217-1776 -100.00 Bill Pmt -Check 02/02/2024 16925 St. Joseph Hospital VOID: Site Host Reimbursement 10/01- 12/31/2023 0.00 Bill Pmt -Check 02/02/2024 16925 St. Joseph Hospital Site Host Reimbursement 10/01- 12/31/2023 -1,690.53 Check 02/02/2024 16926 CCE Customer CCE Equipment Rebate - Res #CCE-R-240106-1803 -400.00 Check 02/02/2024 16927 CCE Customer CCE Heat Pump Rebate #CCE-R-231212-1766 -1,850.00 Check 02/02/2024 16928 NEM Customer NEM Account Close Out -54.11 Check 02/02/2024 16929 CCE Customer CCE Equipment Rebate - Res #CCE-R-240110-1815 -650.00 Check 02/02/2024 16930 NEM Customer NEM Account Close Out -136.76 Bill Pmt -Check 02/02/2024 16931 Times Printing Company Printing and postage -789.43 Check 02/02/2024 16932 NEM Customer NEM Account Close Out -86.04 Bill Pmt -Check 02/02/2024 16933 Chausse-Heath, V. Mileage reimbursement - January 2024 -34.30 Check 02/02/2024 16934 CCE Customer CCE Heat Pump Rebate #CCE-R-231020-1683 -3,000.00 Paycheck 02/02/2024 ACH Employees Paydate 02/02/2024 -84,119.40 Bill Pmt -Check 02/05/2024 ACH The Energy Authority CAISO Weekly Settlement -260,624.38 Bill Pmt -Check 02/05/2024 16935 City of Eureka - REVNet Site Host Reimbursement 10/1-12/31/2023 -1,079.40 Bill Pmt -Check 02/05/2024 16936 City of Eureka-Water 633 3rd St. Acct 0302-203299 11/27/23-12/19/23 -327.03 Bill Pmt -Check 02/05/2024 16937 PG&E CCA Dec 2023 CCE Charges -21,700.98 Bill Pmt -Check 02/05/2024 16938 PG&E EV Account EV stations 12/14-01/15/24 -1,316.95 Bill Pmt -Check 02/05/2024 16939 PG&E Office Utility 12/07-01/05/24 utilities for 917 3rd Street -496.18 Bill Pmt -Check 02/05/2024 16940 PG&E Office Utility 12/14-01/15/24 utilities for 633 3rd Street -1,423.41 Check 02/08/2024 16941 CCE Customer CCE Heat Pump Rebate - Res #CCE-R-240109-1810 -837.50 Check 02/08/2024 16942 CCE Customer CCE Heat Pump Rebate - Res #CCE-R-240101-1794 -800.00 Check 02/08/2024 16943 NEM Customer NEM Account Closeout #6812524116 -8.11 Check 02/08/2024 16944 CCE Customer CCE Equipment Rebate- Res #CCE-R-240110-1816 -250.00 Check 02/08/2024 16945 NEM Customer NEM Account Closeout #9142807648 -361.85 Check 02/08/2024 16946 NEM Customer NEM Account Closeout #4132801689 -161.71 Check 02/08/2024 16947 CCE Customer CCE Equipment Rebate- Res #CCE-R-240121-1846 -100.00 Check 02/08/2024 16948 CCE Customer CCE Heat Pump Rebate - Res #CCE-R-230825-1547 -800.00

14 Accrual Basis Redwood Coast Energy Authority
Disbursements Report
As of February 29, 2024
Type Date Num Name Memo Amount
Check 02/08/2024 16949 NEM Customer NEM Account Closeout #3480483513 -93.74 Check 02/08/2024 16950 CCE Customer Res EVSE rebate #EVVSE40 -297.84 Check 02/08/2024 16951 CCE Customer CCE Heat Pump Rebate- Res #CCE-R-240112-1820 -600.00 Check 02/08/2024 16952 CCE Customer CCE Heat Pump Rebate- Res- #CCE-R-231215-1772 -900.00 Check 02/08/2024 16953 NEM Customer NEM Account Closeout #6864369121 -114.28 Check 02/08/2024 16954 CCE Customer CCE Heat Pump Rebate- res #CCE-R-231202-1753 -725.00 Check 02/08/2024 16955 NEM Customer NEM Account Closeout #7929644803 -259.31 Check 02/08/2024 16956 NEM Customer NEM Account Closeout #1634291057 -48.70 Check 02/08/2024 16957 CCE Customer CCE Heat Pump Rebate- Res #CCE-R-240109-1808 -1,100.00 Bill Pmt -Check 02/08/2024 16958 Hilson, D. Mileage reimbursement - Jan 2024 -42.48 Bill Pmt -Check 02/12/2024 ACH The Energy Authority CAISO Weekly Settlement -10,760.40 Bill Pmt -Check 02/12/2024 ACH PG&E Voluntary Allocation VOID: July 2023 Forecast Price- VA 0.00 Bill Pmt -Check 02/12/2024 ACH Viridity Energy Solutions, Inc. VOID: Tierra Buena Resource Adequacy Jan 2024 0.00 Bill Pmt -Check 02/12/2024 ACH PG&E Voluntary Allocation July 2023 Forecast Price- VA Long term & Short term -114,867.30 Bill Pmt -Check 02/12/2024 ACH Viridity Energy Solutions, Inc. Tierra Buena Resource Adequacy Jan 2024 -16,900.00 Bill Pmt -Check 02/15/2024 ACH The Energy Authority TEA Invoice #TEA 12024 January 2024 -3,896,934.28 Check 02/15/2024 ACH VISA January 2024 Statement 12/21/2023 - 01/19/2024 -10,816.23 Bill Pmt -Check 02/16/2024 ACH Humboldt Sawmill Co. January 2024 Electricity Charge -577,527.12 Bill Pmt -Check 02/16/2024 ACH Leapfrog Power, Inc January 2024 RA Invoice -36,740.00 Bill Pmt -Check 02/16/2024 ACH Recology VOID: 0.00
Bill Pmt -Check 02/16/2024 ACH Snow Mountain Hydro, LLC Jan 2024 Electricity -65,423.48 Liability Check 02/16/2024 ACH Ascensus Paydate 02/16/24 -13,375.78 Liability Check 02/16/2024 ACH EDD Paydate 02/16/24 -7,991.19 Liability Check 02/16/2024 ACH Internal Revenue Service Paydate 02/16/24 -34,132.15 Liability Check 02/16/2024 ACH Newport Group Paydate 02/16/24 -11,750.33 Liability Check 02/16/2024 ACH CICCS Coalition for Controlling Insurance EAP premium -64.94 Liability Check 02/16/2024 16959 Ameritas - Dental March 2024 Premiums -2,381.92 Liability Check 02/16/2024 16960 Ameritas - Vision March 2024 Premiums -442.84 Check 02/16/2024 16961 CCE Customer CCE Equipement Rebate- Res #CCE-R-240206-1883 -450.00 Check 02/16/2024 16962 CCE Customer CCE Heat Pump Rebate- Res #CCE-R-240125-1856 -750.00 Check 02/16/2024 16963 CCE Customer CCE Equipment Rebate- Res #CCE-R-240119-1837 -100.00 Check 02/16/2024 16964 CCE Customer CCE Heat Pump Rebate- Res #CCE-R-230823-1534 -800.00 Check 02/16/2024 16965 CCE Customer CCE Equipment Rebate- Res #CCE-R-240122-1850 -50.00 Check 02/16/2024 16966 CCE Customer CCE Equipment Rebate- Res #CCE-R-240120-1844 -150.00 Check 02/16/2024 16967 CCE Customer CCE Heat Pump Rebate- Res #CCE-R-231222-1782 -1,050.00 Check 02/16/2024 16968 CCE Customer CCE Heat Pump Rebate- Res #CCE-R-240127-1862 -1,100.00 Check 02/16/2024 16969 CCE Customer CCE Heat Pump Rebate- Res #CCE-R-240205-1879 -1,200.00 Check 02/16/2024 16970 CCE Customer CCE Heat Pump Rebate- Res #CCE-R-231016-1660 -764.80 Check 02/16/2024 16971 CCE Customer CCE Equipment Rebate- Res #CCE-R-240206-1884 -250.00 Check 02/16/2024 16972 CCE Customer CCE Equipment Rebate- Res #CCE-R-231229-1790 -150.00 Check 02/16/2024 16973 CCE Customer CCE Equipment Rebate- Res #CCE-R-240207-1888 -100.00 Bill Pmt -Check 02/16/2024 16974 Aiqueous, LLC Jan 2024 Next 90 and Support Hours -787.50 Bill Pmt -Check 02/16/2024 16975 AT&T RCAM internet charges: 1/29-2/28/24 -889.58 Bill Pmt -Check 02/16/2024 16976 AT&T Long Distance Phone charges 1/25 - 2/24/2024 -125.24 Bill Pmt -Check 02/16/2024 16977 Braun Blaising & Wynne Legal Services - Regulatory - December 2023 -4,931.23 Bill Pmt -Check 02/16/2024 16978 City of Arcata January 2024 Excessive Energy Use Tax -3,384.61 Bill Pmt -Check 02/16/2024 16979 City of Arcata January 2024 Utility User Tax -17,530.86 Bill Pmt -Check 02/16/2024 16980 City of Eureka-Water 633 3rd St. Acct 0302-203299 -327.03 Bill Pmt -Check 02/16/2024 16981 CSMFO CSMFO Membership Renewal -135.00 Bill Pmt -Check 02/16/2024 16982 Boudreau, D. Mileage Reimburement Feb 2024 -19.43

15 Accrual Basis Redwood Coast Energy Authority
Disbursements Report
As of February 29, 2024
Type Date Num Name Memo Amount
Bill Pmt -Check 02/16/2024 16983 Developed Employment Services, LLC. 633 3rd St. Yard work -116.34 Bill Pmt -Check 02/16/2024 16984 Donald Dame CCE Consulting services- Jan 2024 -232.75 Bill Pmt -Check 02/16/2024 16985 Food For People, Inc. Donations Promo Sept 2023-Jan 2024 -2,300.00 Bill Pmt -Check 02/16/2024 16986 Frontier Energy, Inc. PA Program Consulting - September 2023 -26,332.75 Bill Pmt -Check 02/16/2024 16987 Humboldt Bay Coffee Co. Office coffee -77.85 Bill Pmt -Check 02/16/2024 16988 Diamond, Nancy Legal Services - general counsel -17,237.65 Bill Pmt -Check 02/16/2024 16989 Local Worm Guy Jan 2024 Compost service both locations -60.00 Bill Pmt -Check 02/16/2024 16990 Bithell, M. Feb 2024 Mileage Reimbursement -53.60 Bill Pmt -Check 02/16/2024 16991 Mission Uniform & Linen Office maintenance service and supplies - janitorial -280.01 Bill Pmt -Check 02/16/2024 16992 North Coast Cleaning Office cleaning services -1,090.00 Bill Pmt -Check 02/16/2024 16993 Optimum Business-633 633 3rd St: Phone & Internet access - 01/28-02/24/2024 -1,102.13 Bill Pmt -Check 02/16/2024 16994 Pacific Paper Company Office supplies -33.60 Bill Pmt -Check 02/16/2024 16995 Terry, P. Employee Travel Per Diem: 2024 Tribal Clean Energy -212.00 Bill Pmt -Check 02/16/2024 16996 PG&E Office Utility 01/06-02/05/2024 utilities for 917 3rd Street -627.16 Bill Pmt -Check 02/16/2024 16997 Recology Act 060703330, 633 3rd St. Jan 2024 -105.52 Bill Pmt -Check 02/16/2024 16998 Recology Act 061371327, 917 3rd St. Jan 2024 -71.48 Bill Pmt -Check 02/16/2024 16999 Times Printing Company Envelope order for Office -169.89 Bill Pmt -Check 02/16/2024 17000 Times Printing Company Printing and postage -1,765.43 Bill Pmt -Check 02/16/2024 17001 Ubeo Business Services 633 3rd St Printer Charges: 01/06-02/05/24 -134.24 Bill Pmt -Check 02/16/2024 17002 Yakovleva, Vera A. Employee Travel Per Diem: CALCCA Lobby Day -143.00 Paycheck 02/16/2024 ACH Employees Paydate 2/16/24 -86,614.68 Check 02/22/2024 Debit Umpqua Service Charge -127.56
Bill Pmt -Check 02/22/2024 ACH The Energy Authority Special Invoice- Carbon Free Energy Product July 2023 -145,000.00 Bill Pmt -Check 02/23/2024 ACH CalPine Corporation Calpine January 2024 Costs -95,751.23 Liability Check 02/23/2024 ACH Keenan March 2024 Premiums -36,404.79 Check 02/23/2024 17003 CCE Customer CCE Equipment Rebate - Res #CCE-R-231231-1792 -150.00 Check 02/23/2024 17004 CCE Customer CCE Equipment Rebate - Res #CCE-R-240207-1887 -50.00 Check 02/23/2024 17005 CCE Customer Heat Pump Rebate #CCE-R-240109-1813 -800.00 Check 02/23/2024 17006 CCE Customer Heat Pump Rebate #CCE-R-240115-1824 -900.00 Bill Pmt -Check 02/23/2024 17007 Amazon.com Dec 2023 & Jan 2024 purchases -1,773.23 Bill Pmt -Check 02/23/2024 17008 Braun Blaising & Wynne Legal Services - Regulatory -January 2024 -7,609.91 Bill Pmt -Check 02/23/2024 17009 Carter Properties, LLC 917 3rd Street Office Lease -March 2024 rent -2,300.00 Bill Pmt -Check 02/23/2024 17010 Chargepoint Inital Station Activations and Cloud Plans -9,625.00 Bill Pmt -Check 02/23/2024 17011 City of Arcata 3/9/24 Heat Pump Workshop Deposit Fee -500.00 Bill Pmt -Check 02/23/2024 17012 Frontier Energy, Inc. PA Program Consulting - October 2023 -11,595.00 Bill Pmt -Check 02/23/2024 17013 Humboldt Bay Coffee Co. Office Coffee-917 3rd St -25.95 Bill Pmt -Check 02/23/2024 17014 Law Office of David Peffer October & November 2023 Services -19,530.00 Bill Pmt -Check 02/23/2024 17015 NYLEX.net, Inc. Onsite network support services - March 2024 -3,690.00 Bill Pmt -Check 02/23/2024 17016 PG&E CCA Jan 2024 CCE Charges -21,681.52 Bill Pmt -Check 02/23/2024 17017 Whitchurch Engineering, Inc Dec 2023 & Jan 2024 Services - EV station plans -39,742.60 Bill Pmt -Check 02/23/2024 17018 Winzler, John Office Lease - 633 3rd St. March 2024 -7,752.50 Liability Check 02/24/2024 ACH Principal Life Insurance Company March 2024 Premiums -123.52 Liability Check 02/24/2024 17019 Colonial Life March 2024 premiums -2,819.30 Bill Pmt -Check 02/26/2024 ACH CA Community Power FY 2023-24 Funding for Dues and General costs -84,338.00 Bill Pmt -Check 02/26/2024 ACH The Energy Authority CAISO Weekly Settlement -113,284.49 Bill Pmt -Check 02/28/2024 ACH Viridity Energy Solutions, Inc. Tierra Buena RA-February 2024 -16,900.00 Liability Check 02/28/2024 ACH Newport Group Paydate 03/01/24 -11,778.55 TOTAL -6,836,865.93

16 Redwood Coast Energy Authority
Profit & Loss Budget vs. Actual
July 2023 through February 2024
Jul '23 - Feb 24 Budget % of Budget
Ordinary Income/Expense
Income
Total 4 GRANTS AND DONATIONS 250.00 0.00 100.0%
5 REVENUE EARNED
Total 5000 · Revenue - government agencies 267,074.90 586,099.00 45.57% Total 5100 · Revenue - program related 177,287.93 155,000.00 114.38% Total 5400 · Revenue-nongovernment agencies 437,622.20 582,802.00 75.09% Total 5500 · Revenue - Electricity Sales 51,599,492.98 85,206,156.00 60.56% Total 5 REVENUE EARNED 52,481,478.01 86,530,057.00 60.65% Total Income 52,481,728.01 86,530,057.00 60.65%
Gross Profit 52,481,728.01 86,530,057.00 60.65%
Expense
Total 6 WHOLESALE POWER SUPPLY 41,151,064.98 65,436,704.00 62.89% Total 7 PERSONNEL EXPENSES 3,005,144.64 5,148,499.00 58.37% Total 8.1 FACILITIES AND OPERATIONS 357,545.51 1,537,574.00 23.25% Total 8.2 COMMUNICATIONS AND OUTREACH 72,495.82 160,485.00 45.17%

8.4 PROFESSIONAL & PROGRAM SRVS
8400 · Regulatory 88,362.95 205,000.00 43.1%
8410 · Contracts - Program Related Ser 303,014.86 640,900.00 47.28% 8420 · Accounting 61,073.84 191,000.00 31.98%
8430 · Legal 214,500.70 230,000.00 93.26%
8450 · Wholesale Services - TEA 544,749.52 766,853.00 71.04% 8460 · Procurement Credit - TEA 130,558.19 414,075.00 31.53% 8470 · Data Management - Calpine 529,124.38 887,187.00 59.64% Total 8.4 PROFESSIONAL & PROGRAM SRVS 1,871,384.44 3,335,015.00 56.11% Total 8.5 PROGRAM EXPENSES 189,327.71 290,014.00 65.28% Total 8.6 INCENTIVES & REBATES 244,183.80 402,575.00 60.66% Total 9 NON OPERATING COSTS 70,333.23 129,500.00 54.31% Total Expense 46,961,480.13 76,440,366.00 61.44%
Net Ordinary Income 5,520,247.88 10,089,691.00 54.71%
Net Income 5,520,247.88 10,089,691.00 54.71%

17 Redwood Coast Energy Authority
Balance Sheet
As of February 29, 2024
Feb 29, 24
ASSETS
Current Assets
Checking/Savings
1010 · Petty Cash 300.00
1060 · Umpqua Checking Acct 0560 208,215.87
1071 · Umpqua Deposit Cntrol Acct 8215 17,594,103.13
1075 · Umpqua Reserve Account 2300 1,700,000.00
1076 · First Republic Bank - 4999 399,967.48
Total Checking/Savings 19,902,586.48
Total Accounts Receivable 118,674.47
Other Current Assets
1101 · Allowance for Doubtful Accounts -6,093,887.96
1103 · Accounts Receivable-Other 18,913,597.54
1120 · Inventory Asset 35,452.21
1205 · Prepaid Insurance -128.49
1210 · Retentions Receivable 17,652.91
Total Other Current Assets 12,872,686.21
Total Current Assets 32,893,947.16
Total Fixed Assets 9,435,805.88
Other Assets
1700 · Security Deposits 4,198,623.26
Total Other Assets 4,198,623.26
TOTAL ASSETS 46,528,376.30

LIABILITIES & EQUITY
Liabilities
Current Liabilities
Total Accounts Payable 5,038,188.68
Total Credit Cards 9,681.48
Other Current Liabilities
2002 · Deposits Refundable 2,271,795.01
2011 · NEM Escrow Liability 142,989.30
Total 2100 · Payroll Liabilities 178,013.74
Total 2200 · Accrued Expenses 30,976.03
Total Other Current Liabilities 2,623,774.08
Total Current Liabilities 7,671,644.24
Total Long Term Liabilities 6,085,188.01
Total Liabilities 13,756,832.25
Equity
2320 · Investment in Capital Assets 49,064.67
3900 · Fund Balance 27,202,231.50
Net Income 5,520,247.88
Total Equity 32,771,544.05
TOTAL LIABILITIES & EQUITY 46,528,376.30

18

STAFF REPORT
Agenda Item # 6.1
AGENDA DATE: April 22, 2024
TO: Board of Directors
PREPARED BY: Jaclyn Harr, TEA Account Director – California Richard Engel, Director of Power Resources
SUBJECT: Energy Risk Management Quarterly Report

BACKGROUND
The RCEA Board of Directors adopted an Energy Risk Management Policy (RCEA-ERMP-Approved-Dec-2022.pdf (redwoodenergy.org) in December 2016 and most recently revised in December 2022, to establish functions and procedures to manage the risks associated with the Community Choice Energy (CCE) program’s power procurement activities. In accordance with this policy, a quarterly update on activities and projected financial performance is presented to the Board during business meetings.

SUMMARY
The Energy Authority (TEA) California Account Director Jaclyn Harr and RCEA staff will provide an energy risk management quarterly update.

ALIGNMENT WITH RCEA’S STRATEGIC PLAN
Not applicable.

EQUITY IMPACTS
Not applicable.

RECOMMENDED ACTION
Accept Energy Risk Management Quarterly Report.

ATTACHMENTS
Energy Risk Management Quarterly Report slides will be presented at the meeting. 19 This page
intentionally
left blank.
20 RCEA
Energy Risk Management
Quarterly Report
April 2024 Board Meeting
Overview of Financial Drivers
2 Revenues:
• Small changes in 2024 PG&E Rates in March and forecasted over summer • +$137K in 2024
• Significant changes in PG&E Rates forecasted for 2025, some in 2026 • -$15.2MM impact in 2025; +$1.4MM impact in 2026
Net Power Costs:
• Forward energy prices decreased over forecast horizon • 2024 down 15% (average hedged: ~95%)
• 2025 down 4% (average hedged: ~80%)
• 2026 down 2% (average hedged: ~65%)
• Increased prices for environmental products (RECs & Carbon-Free) and capacity products (System & Flex RA)
• Change of RA compliance requirement modeling from traditional RA to Slice of Day RA Annual Net Revenue Forecast
3 2024 2025 2026
Feb Board $11,300,000 $16,100,000 $15,000,000
Apr Board $12,100,000 $(18,200,000) $2,200,000
-$20MM
-$15MM
-$10MM
-$5MM
$0MM
$5MM
$10MM
$15MM
$20MM
Forecasted PG&E Generation Rate & PCIA
4 $-
$20
$40
$60
$80
$100
$120
$140
$160
$180
$200
$/MWh
Feb Gen Rate Apr Gen Rate Feb PCIA Apr PCIA
Forward Energy Prices for RCEA
5 $-
$20
$40
$60
$80
$100
$120
$/MWh
Feb Board Forward On-Peak Apr Board Forward On-Peak Feb Board Forward Off-Peak Apr Board Forward Off-Peak Slice of Day RA Refresher
• Traditional RA Overview
• Slice of Day (SOD) Changes
6 Traditional Resource Adequacy Products
7 October 15, 2018
• Goal: CAISO has enough resources to meet monthly system peak • Supply: Any generator in the CAISO footprint, and out-of-state resources that have transmission rights to flow into CAISO
System RA
• Goal: CAISO has enough resources in local load pockets to maintain grid reliability amid transmission constraints
• Supply: Any System RA resource located in the area of need on transmission system Local
RA
• Goal: CAISO has enough dispatchable & ramping resources committed as RA to meet load as it changes throughout the day
• Supply: Separate attribute that some generators in CAISO have; providing Flex RA brings additional bidding & operational obligations in the CAISO market Flexible
RA
est. 2004
est. 2007
est. 2015
Changing
Under
SOD
Issues with the Traditional RA Program
2006 Landscape 2024 Landscape
3 investor-owned utilities serving vast majority of
load 3 IOUs, 25+ CCAs, 10+ ESPs
Limited renewables and little use-limited generation New generation is variable solar & wind and use-limited demand response & battery storage Plenty of regional hydro, nuke, and gas-fired
generation
Drought/warming conditions reducing hydro plus on-going nuke & gas-fired retirements Medium to long-term tolling contracts with gas-fired
generation for capacity
Medium to short-term RA-only contracting for
capacity
8 CONFIDENTIAL & PROPRIETARY April 23, 2024
• RA program has been showing the cracks in its structure since ~2015, resulting in a Band-Aid in 2016/2017 of Flex RA
• Each year brings new policy decisions, resulting in a web of new rule minutiae.

Provides RA policy wonks & procurement teams job security, but questionable improvement to system reliability
• Time to Wipe the Slate Clean???
Ca liforn ia Historica l Syste m RA Ca l Ye a r Price
Cu rve s
9 April 23, 2024 CONFIDENTIAL & PROPRIETARY
$3.00
$5.00
$7.00
$9.00
$11.00
$13.00
$15.00
$17.00
$19.00
$21.00
$23.00
$25.00
$27.00
$29.00
$31.00
$33.00
$35.00
$37.00
Historical System RA Cal Year Price Curves
Prompt Calendar Year ("P") P+1 P+2 P+3 P+4 P+5 P+6
Moving to a Slice -Of-Day Paradigm for RA
• LSE’s monthly showing must meet compliance in all 24 hourly “slices”, based on their “worst day” load that month = 12 * 24 = 288 LSE compliance requirements per year • Each resource gets an hourly qualifying capacity based on its expected generation during that hourly slice in that particular month = 12 * 24 = 288 capacity values per resource 10 Slice Of Day System View
11 12
Cash Balance History & Projection
$0MM
$5MM
$10MM
$15MM
$20MM
$25MM
$30MM
$35MM
$40MM
$45MM
Jan-19
Mar-19
May-19
Jul-19
Sep-19
Nov-19
Jan-20
Mar-20
May-20
Jul-20
Sep-20
Nov-20
Jan-21
Mar-21
May-21
Jul-21
Sep-21
Nov-21
Jan-22
Mar-22
May-22
Jul-22
Sep-22
Nov-22
Jan-23
Mar-23
May-23
Jul-23
Sep-23
Nov-23
Jan-24
Mar-24
May-24
Jul-24
Sep-24
Nov-24
Jan-25
Mar-25
May-25
Jul-25
Sep-25
Nov-25
Jan-26
Mar-26
Cash Balance Historical + Projected
Without
slice of
day?
With
change
to slice
of day
13 Two-Year Cash Projection
Apr - Dec 2024 CY 2025 Jan - Mar 2026
Min Avg Ending Min Avg Ending Min Avg Ending
Feb Board $18.8M $27.6M $32.3M $26.0M $34.9M $45.4M $39.8M $42.0M $42.3M Apr Board $18.9M $28.9M $34.6M $28.2M $34.4M $41.1M $9.6M $16.1M $12.5M $0MM
$5MM
$10MM
$15MM
$20MM
$25MM
$30MM
$35MM
$40MM
$45MM
$50MM
Feb Board Apr Board
Without
slice of
day?
With
change
to slice
of day

STAFF REPORT
Agenda Item # 8.1
AGENDA DATE: April 22, 2024
TO: Board of Directors
PREPARED BY: Kristy Siino, Human Resources Manager
SUBJECT: Revised Executive Director Salary and Job Description Update

SUMMARY
In anticipation of the upcoming Executive Director recruitment, staff proposed revising the current Executive Director salary to the Ad Hoc Recruitment Subcommittee. Staff presented multiple scenarios and the Committee proposed removing the Executive Director salary from the RCEA staff salary schedule and creating a new salary schedule for the Executive Director only.

Placement within the range will be negotiable in the new Executive Director contract, dependent on the successful candidate's experience.

The current Executive Director job description predates the CCA program and the creation of the Deputy Executive Director position. Staff propose updating the description prior to opening the Executive Director recruitment. The Board and staff will work with the executive recruitment firm selected to further refine the job description if it is deemed appropriate by the selected firm.

BACKGROUND
The 7/1/2023 Salary Survey was prepared in accordance with the Board Approved Compensation Policy. This policy lists labor market agencies that are identified as comparable to RCEA. These agencies are a mix of local counterparts, other CCAs of a similar size to RCEA, and Northern California utility districts.

Salaries were collected from labor market agencies beginning early 2023. Staff used job descriptions to identify similarly situated positions and compared salaries for these positions. In this survey, the ED salary was compared to seven labor market agencies, including two local agencies. Based on salary comparisons, differences existed for all classifications. The largest differences were found at the Director level (approximately 24%) and at the ED level (38%).

The average difference, excluding the ED class, was approximately 12%. The Board approved a 14% increase effective 7/1/23, for all classifications (including ED). Once approved, RCEA salaries were approximately equal to counterparts, with the exception of Directors and the ED, which still lagged behind by 14% and 24%, respectively.

At the September 28, 2023, regular Board Meeting, the Board was presented with a Staff Report to increase the ED salary for a second time amid retention and recruitment concerns. In the proposal, the labor market agencies were decreased from the seven originally used to five, which represented only the top salaries presented in the full survey and included no local 21

agency counterparts. In addition, the salaries for three of the agencies were increased from the original amounts based on updated salary information. This resulted in the ED salary being shown as 47% below counterparts (the original difference calculated was 24%).

The methods used to justify the increase for the ED salary were not consistent with methods used in the original salary survey. Had the same method (i.e. using only those salaries that represented the highest counterparts) been used for all staff, RCEA salaries would have been approximately 37% lower than counterparts versus the original 12%. The approved salary increase also created an 89% differential between Director and ED classifications. Prior to this increase, that difference was 30%. Staff reviewed the Labor Market agencies used in the ED salary increase and identified differentials between Director and ED-type classifications of 10- 40%. The 89% differential created with the ED salary increase is the highest across all comparable agencies in the Compensation Policy. (It should be noted that ED/C-Suite salaries at other CCAs are often negotiated in an employment contract, and therefore a direct comparison may not be appropriate.)
During the September 2023 Board meeting, Board members requested additional information on how RCEA positions compare to other CCA’s regarding classification, compensation, and organizational structure. Board members also questioned the comparison of some RCEA positions to non-CCA positions. Based on these discussion staff recommend conducting a classification and compensation study prior to beginning the next biennial salary review in 2025.

Staff will prepare a proposed budget item to include in the 2024/25 budget proposal to obtain a full class and compensation report.

The Board must set an Executive Director salary range prior to recruitment and a formal classification and compensation study can take months or up to a year. In an attempt to move forward with the Executive Director recruitment staff prepared multiple proposals for the ad hoc subcommittee’s consideration.

The proposals presented to the Executive Director Recruitment Ad Hoc Subcommittee on April 11, 2024, were as follows:

Proposal Reinstate 7/1/23
Salary
Increase 7/1/23
Salary by 10%
Increase 7/1/23
Salary by 24%
Maintain Current
ED Salary
ED/Dept. Dir.

Salary
Difference
30% 43% 61% 89%
Agency
Counterpart
Difference
based on
7/1/23 data
24% below 14% below 0% 15% above
The Ad Hoc Subcommittee proposed removing the ED salary from the RCEA staff salary schedule and establishing a separate annual salary range for the ED of $182,852.59 - $245,916.41 annually. This salary range represents a 10% salary increase from the 7/1/2023 Step 1 salary and increases until the top ED salary represents a 50% differential between the ED and the next employee class, which was a modification from the proposals presented above. 22

The proposed salary range would have 13 steps, which is different than the staff salary range of 10 steps.

The separate salary schedule would be excluded from the bi-annual salary survey, but the Board would have the latitude to extend any approved increases to the ED, as well as adjust the salary outside of the survey whenever it is deemed necessary.

The current Executive Director job description pre-dates the implementation of the CCA. Staff has taken this opportunity to revise the job description to bring it more in line with current ED duties and clarify the separation of duties between Directors, the Deputy ED and the ED under RCEA’s current operating structure. Using these initial updates and revisions, Staff will work with the chosen recruitment firm to further refine the job description prior to the beginning of the ED recruitment.

FINANCIAL IMPACT
Potential for salary savings between $56,169.59 and $58,432.08 annually.

RECOMMENDATION

1. Adopt RCEA staff salary schedule with the removal of the Executive Director classification.

2. Adopt an Executive Director Salary schedule and approve the initial Executive Director salary range.

3. Approve updated Executive Director job description.

ATTACHMENT
Proposed Executive Director Job Description (redline version) Proposed Staff Salary Schedule
Proposed Executive Director Salary Schedule
Executive
Director 1 2 3 4 5 6 7 8 9 10 11 12 13
Hourly 87.91 90.11 92.36 94.67 97.04 99.46 101.95 104.50 107.11 109.79 112.53 115.35 118.23 Monthly 15,237.72 15,618.66 16,009.13 16,409.35 16,819.59 17,240.08 17,671.08 18,112.86 18,565.68 19,029.82 19,505.56 19,993.20 20,493.03 Annual 182,852.59 187,423.90 192,109.50 196,912.24 201,835.05 206,880.92 212,052.95 217,354.27 222,788.13 228,357.83 234,066.77 239,918.44 245,916.40 Steps
23 This page
intentionally
left blank.
24

Executive Director
General Class Description: Under the delegated authority of the RCEA Board of Directors, the Executive Director oversees all the functions and activities of the organization and provides expert professional guidance to staff and the Board of Directors. The Executive Director works with the Board of Directors and staff to ensure consistent and efficient implementation of agency operational policies and long-term operational excellence. This position class is distinguished by organization-level responsibility, and complex and widely scoped duties with major financial and operational impact on key business processes. This position exercises considerable discretion and independent judgment in the coordination and prioritization of duties and responsibilities assigned and in acting on behalf of the Board of Directors.

Summary
The Executive Director works under the general direction and delegated authority of the Redwood Coast Energy Authority (RCEA) Board of Directors and is responsible for strategic leadership of the organization, including management of power supply planning and procurement, finance and rates, local energy and decarbonization programs, energy services and customer relations, strategic development, administrative services, and regulatory and legislative affairs. The Executive Director represents RCEA toon a variety of boards, committees, and commissions, and in public hearings and meetings.

Additionally, the Executive Director provides frequent communication and maintains positive relationships with RCEA’s member agencies, customers, private businesses, regulatory agencies including the California Public Utilities Commission (CPUC), California Energy Commission (CEC), California Independent System Operator (CAISO), California Air Resources Board (CARB), California Community Choice Association (CalCCA), Pacific Gas & Electric company and other IOUs, and other key stakeholders
The Executive Director works under the general direction and delegated authority of the Redwood Coast Energy Authority (RCEA) Board of Directors and has overall strategic and operational responsibility for RCEA staff, programs, and execution of RCEA’s mission. The Executive Director manages the staffing and oversight of RCEA’s department Directors, the Community Strategies Manager, and Board Clerk positions. The position requires deep knowledge of the energy field, core programs, and public agency governance, as well as operations and business plans for the Redwood Coast Energy Authority and management of an organization of approximately 25 40 people.

Essential Functions and Responsibilities
Duties are illustrative only and may vary. Other duties may be assigned. • Provide leadership in support of RCEA’s mission.
• Foster a collaborative, customer-focused, continuous-learninglearning, and high-performance culture within all departments and all employees of the agency. • Lead the ongoing implementation of RCEA’s Racial Justice Plan and actively champion and support justice, equity, diversity and inclusion efforts across the organization. • Proactively develop a variety of communication methods with individual Board members and the Board as a whole, ensuring the Board is oriented, educated and up-to-speed with various issues so they can set policy for the organization and carry out their Board responsibilities efficiently and effectively.
• Oversee implementation of the Humboldt County Comprehensive Action Plan for Energy (CAPE).
• Understand the complex California energy industry and all its nuances. 25 Executive Director

• Support the Board of Directors, and build and maintain board involvement. Assist the Executive Committee (Chair and Vice-Chair) with administration of Board of Directors meetings and matters.
• Develop and manage energy programs and services for the benefit of energy consumers in the Humboldt County region.
• Develop risk management strategies, policies, and contingency plans to address changing needs. • Function as RCEA’s Public Information Officer and serve as primary media contact; approve all press releases and public service announcements, web site content, and paid advertising.
• Establish and maintain close contact with member agency representatives, including City Managers, Council members, Supervisors, and others to achieve the objectives of RCEA. • Develop energy partnerships among private, non-profit, governmental and educational organizations and enter into other services and programs as directed by the Board of Directors. • Collaborate with external partners and stakeholders, regulators, public and investor-owned utilities, energy services and power suppliers and local advocacy organizations. • Use external presence and relationships to garner new opportunities, build partnerships in new markets, and communicate new initiatives, program updates, and program results. • Perform strategic planning and development of work plans. • Analyze complex employment situations, assess benefits, and potentially provide proposed action and alternatives, and make effective recommendations to implement or ensure implementation of recommendations.
• Effectively communicate, both orally and in writing, including making presentations of findings, recommendations, and policies orally or in writing to Board members, department directors, and employees.
•
• Oversee the management of RCEA staff, operations, and administration. • Ensure ongoing programmatic excellence, rigorous program evaluation, consistent quality of finance and administration, communications, and development of resources to achieve strategic goals.
• Oversee budget development and management.
• Lead, coach, develop and retain a high-performing senior management team. • Ensure effective systems to track progress and regularly evaluate organization components. • Establishes and maintains relationships with appropriate agencies, consultants, professional groups and programs associated with RCEA management and operations. • Develops, writes, and presents staff reports and recommendations to the Board.

Minimum Qualifications
Experience/Education:

Any combination of training and experience that would provide the required knowledge, skills, and abilities is qualifying. A typical way to obtain the required qualifications would be:
• Education or experience equal to a bachelor’s or master’s degree with major course-work in energy, environment, economic development, public administration, or a closely related field. • A minimum of ten (10) years of progressively responsible professional and managerial experience in energy/utility agencies, with at least five years’ experience supervising professional staff. Pa public or private sector energy program or business (public sector experience is strongly desired). Additional certifications or training in managerial and leadership techniques are highly desirable.
• Five years of broad and extensive experience in a management position responsible for the formulation and implementation of programs, budgets and administrative operations. • Additional certifications or training in managerial and leadership techniques are highly desirable. •
26 Executive Director

Knowledge of:
• Principles of public agency administration, management, and governance, including public accounting and the Brown Act.
• Principles and practices, methods and technical requirements of utility management, organization, administration, financing, pricingpricing, and community relations. • Demonstrate knowledge of mMethodologies to develop strong teams, collaboration, and a positive work culture.
•
• Principles of business and organizational management, including finance, human resources, and operations; supervision and training of staff; and customer service. • Energy sector, Investor Owned Utility, state, and federal energy efficiency and renewable energy programs; grant and contract management; and data-driven program innovation and evaluation. • Local, state, and federal energy policy.
• Principles of marketing, public relations, and development, with the goal of engaging a wide range of stakeholders and cultures.
• Current business software applications, including Microsoft Office and QuickBooks.

Demonstrated ability to:
• Effectively lead a performance- and outcomes-based organization and staff, andstaff, as well as develop and implement strategies to take the organization to the next stage of growth. • Act with integrity, maintain a positive attitude and leadership-style, and be mission-driven and self-directed.
• Employ an action-oriented, entrepreneurial, and adaptable approach to business planning. • Coordinate and align departmental performance toward overall organizational success. • Manage and develop high-performance teams, set and achieve strategic objectives, and manage an organization-wide budget.
• Represent, uphold, and communicate RCEA administrative policies and procedures to internal staff, the Board of Directors and external parties and vendors. • Cultivate relationships with Board members, community stakeholders, and industry-leaders. • Effectively represent and communicate organization-related business to a wide audience, including the public, media, stakeholders, Board members, and staff. • Advocate for effective and positive working relationships amongst staff. • Manage multiple priorities, meet deadlines, and quickly adapt to changing priorities in a fast-paced dynamic environment. • Work well under pressure.
• Be thorough and detail-oriented.
• Demonstrate patience, tact, teamwork and commitment to superior service and performance. •
Working Conditions and Essential Requirements
The physical demands described here are representative of those required for the position. Position requires sitting, walking, standing, bending, and twisting in the performance of daily activities. The position requires hand manipulation and repetitive hand movement and fine coordination in using a computer keyboard and other office equipment. The position requires near and far vision in reading reports and use of a computer. Acute hearing is required in supporting meetings and providing phone and in-person customer service. The position occasionally requires lifting and/or moving objects. RCEA will make reasonable accommodation of the known physical or mental limitations of a qualified applicant with a disability upon request. Possession and continued maintenance of a valid class C California driver’s license or the ability to provide alternate transportation and a safe driving record is required. 27 Executive Director

Preferred Qualifications
• Master’s degree in a related field.
• Knowledge of RCEA programs.
• Prior experience working with public agencies and/or public utilities. • Experience working with organizations involved with projects and programs in the areas of environmental and economic development,
• Experience working in an entrepreneurial context.

THE REDWOOD COAST ENERGY AUTHORITY IS COMMITTED TO A DIVERSE WORKFORCE AND IS AN EQUAL OPPORTUNITY EMPLOYER. RCEA MAINTAINS AND PROMOTES A POLICY OF

NONDISCRIMINATION AND NONHARASSMENT ON THE BASIS OF RACE, RELIGION, COLOR, SEX,

AGE, HANDICAP, MARITIAL STATUS, SEXUAL ORIENTATION, AND NATIONAL ORIGIN OR GENETIC CHARACTERISTIC.
28 Redwood Coast Energy Authority - PROPOSED Job Classifications and Pay Scales Step 1 Step 2 Step 3 Step 4 Step 5 Step 6 Step 7 Step 8 Step 9 Step 10 Assistant/Coordinator/Associate
Hourly 21.52 22.07 22.63 23.21 23.81 24.40 25.01 25.64 26.28 26.94 Monthly 3,729.51 3,758.03 3,854.39 3,953.22 4,054.59 4,155.95 4,259.85 4,366.35 4,475.51 4,587.39 Annual 44,754.13 45,901.67 47,078.64 48,285.78 49,523.88 50,761.98 52,031.03 53,331.80 54,665.10 56,031.72 Specialist
Hourly 31.34 32.14 32.97 33.81 34.68 35.57 36.48 37.42 38.35 39.31 Monthly 5,432.01 5,571.29 5,714.14 5,860.66 6,010.93 6,165.06 6,323.14 6,485.27 6,647.40 6,813.59 Annual 65,184.09 66,855.48 68,569.72 70,327.92 72,131.20 73,980.72 75,877.66 77,823.24 79,768.82 81,763.04 Senior Specialist
Hourly 36.04 36.96 37.91 38.88 39.88 40.90 41.93 42.97 44.05 45.15 Monthly 6,246.81 6,406.98 6,571.26 6,739.76 6,912.57 7,089.82 7,267.06 7,448.74 7,634.96 7,825.83 Annual 74,961.71 76,883.80 78,855.18 80,877.11 82,950.88 85,077.83 87,204.77 89,384.89 91,619.51 93,910.00 Technician
Hourly 37.04 37.99 38.96 39.96 40.98 42.03 43.11 44.22 45.32 46.46 Monthly 6,419.65 6,584.25 6,753.08 6,926.23 7,103.83 7,285.98 7,472.80 7,664.41 7,856.02 8,052.42 Annual 77,035.74 79,011.02 81,036.94 83,114.81 85,245.96 87,431.76 89,673.60 91,972.92 94,272.24 96,629.05 Senior Technician
Hourly 42.59 43.68 44.80 45.95 47.13 48.34 49.55 50.79 52.06 53.36 Monthly 7,382.59 7,571.89 7,766.04 7,965.17 8,169.40 8,378.88 8,588.35 8,803.06 9,023.13 9,248.71 Annual 88,591.11 90,862.67 93,192.49 95,582.04 98,032.86 100,546.52 103,060.18 105,636.69 108,277.61 110,984.55 Manager
Hourly 42.73 43.83 44.95 46.11 47.29 48.50 49.74 51.02 52.30 53.60 Monthly 7,407.28 7,597.21 7,792.01 7,991.81 8,196.73 8,406.90 8,622.46 8,843.55 9,064.64 9,291.25 Annual 88,887.40 91,166.56 93,504.17 95,901.71 98,360.73 100,882.80 103,469.54 106,122.60 108,775.67 111,495.06 Senior Manager
Hourly 49.14 50.40 51.70 53.02 54.38 55.78 57.17 58.60 60.07 61.57 Monthly 8,518.38 8,736.80 8,960.82 9,190.58 9,426.24 9,667.93 9,909.63 10,157.37 10,411.31 10,671.59 Annual 102,220.51 104,841.55 107,529.79 110,286.96 113,114.84 116,015.22 118,915.60 121,888.49 124,935.70 128,059.09 Director
Hourly 61.48 63.05 64.67 66.33 68.03 69.73 71.47 73.26 75.09 76.97 Monthly 10,655.75 10,928.97 11,209.20 11,496.62 11,791.40 12,086.19 12,388.34 12,698.05 13,015.50 13,340.89 Annual 127,868.94 131,147.64 134,510.40 137,959.38 141,496.80 145,034.22 148,660.08 152,376.58 156,185.99 160,090.64 Executive Director
Hourly 116.00 118.98 122.03 125.16 128.37 131.57 134.86 138.24 141.69 145.23 Monthly 20,107.06 20,622.62 21,151.41 21,693.75 22,250.00 22,806.25 23,376.41 23,960.82 24,559.84 25,173.83 Annual 241,284.67 247,471.45 253,816.88 260,325.00 267,000.00 273,675.00 280,516.88 287,529.80 294,718.04 302,085.99 29 Redwood Coast Energy Authority -Proposed Executive Director Pay Scale Executive Director
Hourly 87.91 90.11 92.36 94.67 97.04 99.46 101.95 104.50 107.11 109.79 112.53 115.35 118.23 Monthly 15,237.72 15,618.66 16,009.13 16,409.35 16,819.59 17,240.08 17,671.08 18,112.86 18,565.68 19,029.82 19,505.56 19,993.20 20,493.03 Annual 182,852.59 187,423.90 192,109.50 196,912.24 201,835.05 206,880.92 212,052.95 217,354.27 222,788.13 228,357.83 234,066.77 239,918.44 245,916.40 30 Executive Director
Salary Revision
Salary History
7/1/23 – RCEA Bi-Annual Salary Survey
• Salary Survey was prepared in accordance with the Board Approved Compensation Policy.
• This policy lists 10 labor market agencies that are identified as comparable to RCEA. • Based on salary comparisons, differences existed for all classifications. • The largest differences were found at the Director level (approximately 24%) and at the ED level (38%).
• Average difference across all classifications (without ED) = 12% • The Board approved a 14% increase effective 7/1/23, for all classifications (including ED). • Once approved, Directors and ED still behind by 14% and 24%, respectively. • ED Classification was compared to 7 labor market agencies, including local and CCAs 9/28/23 – ED Salary Revision
• Salary Information was prepared using some information from Salary Survey
• Local agencies were removed, comparison from 7 agencies to 5 • Agencies left out were only local agencies representing lowest salaries in comparison
• Local agencies are an important balancing aspect of the Survey since cost of living isn’t included as a criteria. For example, the median sold price of single- family homes in Sonoma County is $865,000 versus Humboldt’s $429,970. • Some salaries for remaining agencies were increased
• C-Suite Salaries are often negotiated
9/28/23 – ED Salary Revision
• Result was change in ED salary from 24% below counterparts to 47% below.
• Resulting increase was an additional 47% increase above 7/1/23 14% increase
• Internal salary difference = 89%
• Comparable agencies range from 10-40%
7/1/23
9/28/23
Ad Hoc Subcommittee Proposals
Proposal Reinstate 7/1/23
Salary
Increase 7/1/23
Salary by 10%
Increase 7/1/23
Salary by 24%
Maintain Current
ED Salary
ED/Dept. Dir.

Salary
Difference
30% 43% 61% 89%
Agency
Counterpart
Difference
based on 7/1/23
data
24% below 14% below 0% 15% above
Ad Hoc Subcommittee Recommendations
Executive
Director 1 2 3 4 5 6 7 8 9 10 11 12 13
Hourly 87.91 90.11 92.36 94.67 97.04 99.46 101.95 104.50 107.11 109.79 112.53 115.35 118.23 Monthly 15,237.72 15,618.66 16,009.13 16,409.35 16,819.59 17,240.08 17,671.08 18,112.86 18,565.68 19,029.82 19,505.56 19,993.20 20,493.03 Annual 182,852.59 187,423.90 192,109.50 196,912.24 201,835.05 206,880.92 212,052.95 217,354.27 222,788.13 228,357.83 234,066.77 239,918.44 245,916.40 Steps
• Establish Salary Range on Separate Salary Schedule
• Step 1 is a 10% increase from 7/1/23 Step 1
• Steps increase by 2.5% until top step (Step 13)
• Step 13 is 50% above Director Step 10
• Salary negotiated DOE in new Contract
• Salary range may increase with Salary Survey or as Board prefers

STAFF REPORT
Agenda Item # 9.1
AGENDA DATE: April 22, 2024
TO: Board of Directors
PREPARED BY: Jocelyn Gwynn, Senior Power Resources Manager Richard Engel, Director of Power Resources
SUBJECT: Foster Clean Power B Power Purchase Agreement

BACKGROUND
At its September 2022 meeting, the Board approved a 20-year power purchase agreement (PPA) for Foster Clean Power A, and then approved an amendment to that PPA in September 2023. Foster Clean Power A is a local project comprised of 3 MW solar plus 1.25 MW battery storage that is being developed by Renewable America (RNA) on land adjacent to Foster Avenue in the Arcata area.

RNA then submitted a second phase of the project, Foster Clean Power B, to RCEA’s 2023 Request for Offers for Zero-Emission Reliability Resources. The offer was not initially recommended to the Board ad hoc offer review committee for shortlisting, but given the project’s local status, the committee authorized staff to negotiate with RNA on the material terms to bring them in line with those of Foster Clean Power A. Those negotiations were successful, so the project was shortlisted and the proposed PPA was negotiated.

SUMMARY
Foster Clean Power B is a 4 MW solar plus 1.25 MW/5 MWh battery energy storage project being developed by RNA on land adjacent to Foster Avenue in the Arcata area, to the north of Foster Clean Power A. The project has received its discretionary use permit from Humboldt County and is expected to become operational in September 2024. RNA plans to pair the project with pollinator habitat to maintain some agricultural value of the site, which is on property owned by Sun Valley Floral Farms. The project will also utilize a design that emphasizes minimal site disturbance, grading and excavation, with a pile foundation instead of concrete footings.

RCEA hopes to count the project toward its June 2025 Mid-Term Reliability (MTR) compliance milestone. The project will need to obtain a deliverability allocation after it comes online to provide resource adequacy (RA) and MTR compliance value. Recognizing that this RA deliverability is not guaranteed, the existing contract has different energy storage prices for the scenario where RA is provided and the lower-value scenario where it is not. If the project does not secure RA deliverability by 2026, then the storage price will be reduced to reflect the reduction in value to RCEA.
31

ALIGNMENT WITH RCEA’S STRATEGIC PLAN
By continuing to build RCEA’s portfolio of long-term, local renewable and storage resources, this project contributes to many Strategic Plan goals:
• 4.1.1 Maximize the Use of Local Renewable Energy to the Extent Technically and Economically Feasible and Prudent.
• 4.1.2 Minimize Greenhouse Gas Emissions Associated with RCEA’s CCE Program. • 4.1.4 Maximize Renewable Energy Content of RCEA’s CCE Program. • 4.1.5 Ensure Diversity in Local Sources
• 4.1.7.2 Develop Distributed Generation.
• 4.1.8.1 Support Utility Scale Solar Energy Development. • 4.1.8.2 Procure Local Solar Energy.

EQUITY IMPACTS
Renewable America is not listed in the CPUC’s Supplier Diversity Clearinghouse as a diverse business enterprise. They are working with GRID Alternatives on workforce development opportunities through this and their other projects, including potential community benefit or project labor agreements.

FINANCIAL IMPACT
The forecasted value of the products the project will deliver (energy, renewable certificates, ancillary services and eventually RA) are about at parity with the value of equivalent products procured on a short-term or spot-market basis. These costs and revenues are accounted for in RCEA’s financial model and will be incorporated into the budget starting in fiscal year 2024- 2025.

STAFF RECOMMENDATION
Approve Resolution 2024-4 Approving the Form and Authorizing the Execution of the Power Purchase Agreement with Foster Clean Power B LLC.

ATTACHMENTS
Resolution 2024-4
Attachment A: Power Purchase Agreement with Foster Clean Power B LLC 32 1
RESOLUTION NO. 2024-4

A RESOLUTION OF THE BOARD OF DIRECTORS

OF THE REDWOOD COAST ENERGY AUTHORITY

APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION

OF THE POWER PURCHASE AGREEMENT

WITH FOSTER CLEAN POWER B LLC
WHEREAS, Redwood Coast Energy Authority (“RCEA”) issued Request for Offers for Zero-Emission Resources in February 2023 (“RFO”); and
WHEREAS, the Foster Clean Power B project (“Project”) was submitted into RCEA’s RFO by Renewable America and was subsequently approved for shortlisting by the Board RFO subcommittee, contingent on material terms being similar to the Foster Clean Power A Power Purchase Agreement; and WHEREAS, Foster Clean Power B is a project company owned by Renewable America; and WHEREAS, under the Power Purchase Agreement provided as Attachment A (“Agreement”), Renewable America will provide and RCEA will receive full access to all products and services from the Project for the 20-year term, thereby contributing to RCEA’s local power portfolio and benefitting the local community.

NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Redwood Coast Energy Authority as follows:

1. The Power Purchase Agreement between RCEA and Foster Clean Power B, LLC is hereby approved.

2. The RCEA Executive Director is authorized to execute the Agreement substantially in the form attached hereto as Attachment A on behalf of RCEA, and, in consultation with legal counsel, is authorized to approve any needed future amendments to the Agreement so long as the term, volume, and price are not changed and the amendment does not fundamentally change the business terms of the Agreement or measurably increase risk exposure for RCEA.

Adopted this ____ day of _________________, 2024.

ATTEST:
______________________________ ____________________________ Sarah Schaefer, RCEA Board Chair Lori Taketa, Clerk of the Board Date: _________________________ Date: ________________________ 33 2

CLERK'S CERTIFICATE
I hereby certify that the foregoing is a true and correct copy of Resolution No. 2024-4 passed and adopted at a regular meeting of the Redwood Coast Energy Authority, County of Humboldt, State of California, held on the ____ day of __________________, 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTIONS:

Clerk of the Board, Redwood Coast Energy Authority
34 3
Attachment A: Power Purchase Agreement between RCEA and Foster Clean Power B, LLC
35 Approval Draft 4-22-24

RENEWABLE PLUS STORAGE POWER PURCHASE AGREEMENT

COVER SHEET
Seller: Foster Clean Power B LLC, a Delaware limited liability company.

Buyer: Redwood Coast Energy Authority, a California joint powers authority.

Description of Facility: A 4 MW solar power electric generating facility combined with a 1.25 MW / 5 MWh lithium iron phosphate battery energy storage facility.

Development Milestones:

Milestone Expected Date for
Completion
Demonstrate Site Control Complete
Execute Interconnection Agreement Complete
Procure Major Equipment 6/1/2024
Obtain Conditional Use Permit Complete
Expected Construction Start Date 7/1/2024
Guaranteed Construction Start Date 8/1/2024
Expected Commercial Operation Date 9/30/2024
Guaranteed Commercial Operation Date 12/31/2024
Expected Full Capacity Deliverability Status Date 3/31/2025 RA Guarantee Date 3/31/2026
Delivery Term: 20 Contract Years
Expected Energy:

Contract Year Expected Energy (MWh)
1 7,524
2 7,486
3 7,449
4 7,412
5 7,375
6 7,338
7 7,301
8 7,265
9 7,228
36 Contract Year Expected Energy (MWh)
10 7,192
11 7,156
12 7,120
13 7,085
14 7,049
15 7,014
16 6,979
17 6,944
18 6,909
19 6,875
20 6,840
Maximum Discharging Energy:

Contract Year
Maximum Annual
Discharging Energy (MWh)
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
37 Contract Year
Maximum Annual
Discharging Energy (MWh)
19 20
Guaranteed Generation Capacity: 4 MW
Guaranteed Installed Storage Capacity: 1.25 MW
Storage Capacity Default Threshold: 1.25 MW
Maximum Round-Trip Efficiency: %
Minimum Round-Trip Efficiency: %
Contract Price:

Generation Rate: $ per MWh
Storage Rate: $ per kW-month, subject to modification pursuant to Section 3.8(c) Product: (select options below as applicable)
 Energy Generation
 Discharging Energy
 Green Attributes (Portfolio Content Category 1)
 Storage Capacity
 Capacity Attributes
 Full Capacity Deliverability Status
Scheduling Coordinator: Buyer or Buyer’s Agent
Security and Damages
Development Security: $
Performance Security: $
Damage Payment: An amount equal to the Development Security RA Deficiency Multiplier:

Month Multiplier ($/kW-month)
January $
February $
March $
38 April $
May $
June $
July $
August $
September $
October $
November $
December $
Compliance Expenditure Cap amount: $
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TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS ......................................................................................................... 1 ARTICLE 2: TERM; CONDITIONS PRECEDENT .................................................................. 24 ARTICLE 3: PURCHASE AND SALE ...................................................................................... 26 ARTICLE 4: OBLIGATIONS AND DELIVERIES ................................................................... 32 ARTICLE 5: TAXES ................................................................................................................... 41 ARTICLE 6: MAINTENANCE OF THE FACILITY ................................................................ 41 ARTICLE 7: METERING ........................................................................................................... 43 ARTICLE 8: INVOICING AND PAYMENT; CREDIT ............................................................ 44 ARTICLE 9: NOTICES ............................................................................................................... 47 ARTICLE 10: FORCE MAJEURE ............................................................................................. 48 ARTICLE 11: DEFAULTS; REMEDIES; TERMINATION ..................................................... 49 ARTICLE 12: LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES ........ 53 ARTICLE 13: REPRESENTATIONS AND WARRANTIES; AUTHORITY .......................... 54 ARTICLE 14: ASSIGNMENT .................................................................................................... 56 ARTICLE 15: DISPUTE RESOLUTION ................................................................................... 58 ARTICLE 16: INDEMNIFICATION.......................................................................................... 59 ARTICLE 17: INSURANCE ....................................................................................................... 60 ARTICLE 18: CONFIDENTIAL INFORMATION ................................................................... 62 40 ii
Exhibits
EXHIBIT A: FACILITY DESCRIPTION
EXHIBIT B: FACILITY CONSTRUCTION AND COMMERCIAL OPERATION EXHIBIT C: COMPENSATION
EXHIBIT D: SCHEDULING COORDINATOR RESPONSIBILITIES
EXHIBIT E: PROGRESS REPORTING FORM
EXHIBIT F-1: AVERAGE EXPECTED ENERGY
EXHIBIT F-2: AVAILABLE GENERATING CAPACITY
EXHIBIT G: GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION EXHIBIT H: FORM OF COMMERCIAL OPERATION DATE CERTIFICATE EXHIBIT I: FORM OF INSTALLED CAPACITY CERTIFICATE
EXHIBIT J: FORM OF CONSTRUCTION START DATE CERTIFICATE
EXHIBIT K: FORM OF LETTER OF CREDIT
EXHIBIT L: FACILITY SAFETY PLAN AND DOCUMENTATION
EXHIBIT M: FORM OF REPLACEMENT RA NOTICE
EXHIBIT N: NOTICES
EXHIBIT O: STORAGE CAPACITY TESTS AND ROUND-TRIP EFFICIENCY

MEASUREMENTS
EXHIBIT P: STORAGE AVAILABILITY
EXHIBIT Q: OPERATING RESTRICTIONS
EXHIBIT R: METERING DIAGRAM
EXHIBIT S: CONTRIBUTION TO MID-TERM RELIABILITY PROCUREMENT 41 RENEWABLE PLUS STORAGE POWER PURCHASE AGREEMENT

PREAMBLE
This Renewable Plus Storage Power Purchase Agreement (“Agreement”) is entered into as of ___________ (the “Effective Date”), between Buyer and Seller. Buyer and Seller are sometimes referred to herein individually as a “Party” and jointly as the “Parties.” All capitalized terms used in this Agreement are used with the meanings ascribed to them in Article 1 to this Agreement.

RECITALS
WHEREAS, Seller intends to develop, design, construct, own, and operate the Facility; and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, on the terms and conditions set forth in this Agreement, the 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 3.11. “Actual Round-Trip Efficiency” means the measured round-trip efficiency rate of the Storage Facility, as a percentage, measured in accordance with Exhibit O. “Adjusted Energy Production” has the meaning set forth in Exhibit G. “Adjusted Facility Energy” means, for the applicable period, the sum of (a) the total Facility Energy for such period, plus (b) the result of subtracting (i) the Charging Energy for such period multiplied by the Maximum Round-Trip Efficiency from (ii) the Charging Energy for such period.
“Affiliate” means, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition and the definition of “Permitted Transferee”, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there 42 2
are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person. “Agreement” has the meaning set forth in the Preamble and includes any Exhibits, schedules and any written supplements hereto, the Cover Sheet, and any designated collateral, credit support or similar arrangement between the Parties. “Ancillary Services” means all ancillary services, products and other attributes, if any, associated with the Facility.
“Approved Forecast Vendor” means (x) any of AWS Truepower (a division of UL), Reuniwatt, SteadySun, or (y) any other vendor reasonably acceptable to both Buyer and Seller for the purposes of providing or verifying the forecasts under Section 4.3(d). “Automated Dispatch System” or “ADS” has the meaning set forth in the CAISO Tariff. “Availability Adjustment” or “AA” has the meaning set forth in Exhibit C. “Available Generating Capacity” means the capacity of the Generating Facility, expressed in whole MWs, that is mechanically available to generate Energy. “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. “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 Bid Curtailment” means the occurrence of all of the following:
(a) the CAISO provides notice, including through ADS, to a Party or the Scheduling Coordinator for the Facility, requiring the Party to deliver less Facility Energy or Grid Energy from the Facility than the full amount of energy forecasted in accordance with Section 4.3 to be produced from the Facility for a period of time; and
(b) for the same time period as referenced in (a), the notice referenced in (a) results from the manner in which Buyer or the SC schedules or bids the Facility, Facility Energy, Grid Energy, or Ancillary Services, including where the Buyer or the SC for the Facility:
(i) did not submit a Self-Schedule for the MW subject to the reduction; or 43 3
(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 Facility Energy and Grid Energy forecasted to be generated by or delivered from the Facility. “Buyer Curtailment Order” means the instruction from Buyer to Seller to reduce delivery of Energy from the Facility by the amount, and for the period of time set forth in such instruction. “Buyer Curtailment Period” means the period of time, as measured using relevant Settlement Intervals, during which Seller reduces delivery of Energy from the Facility pursuant to or as a result of (a) Buyer Bid Curtailment, (b) a Buyer Curtailment Order or a (c) Buyer Default; provided that the duration of any Buyer Curtailment Period shall be inclusive of the time required for the Facility to ramp down and ramp up.
“Buyer Default” means a failure by Buyer (or its agents) to perform any of its obligations hereunder.
“Buyer’s WREGIS Account” has the meaning set forth in Section (c)(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 Facility Energy and Grid Energy delivered to the Delivery Point. “CAISO Charges Invoice” has the meaning set forth in Exhibit D. “CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
“CAISO Operating Order” means the “operating instructions” defined in Section

37.2.1.1 of the CAISO Tariff, as such provision may be modified or amended from time to time. “UCAP Valuation” means any regulatory change, adopted by the CPUC or CAISO, that (a) changes the basis for submission and assessment of supply plans from a value reflecting installed capacity (currently, Net Qualifying Capacity) to a value that takes into account historical performance of a facility (such as “Unforced Capacity” or “UCAP.” “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.
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“CAISO VER Forecast” means the forecast of output provided by CAISO pursuant to Section 4.8.2.1.2 and Appendix Q of the CAISO Tariff, as such provisions may be modified or amended from time to time.
“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 SB 100 (2018) codified in, inter alia, California Public Utilities Code Sections 399.11 through 399.33 and California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time. “Capacity Attribute” means any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power that the Facility can generate and deliver to the Delivery Point at a particular moment and that can be purchased and sold under CAISO market rules, including Resource Adequacy Benefits. “CEC” means the California Energy Commission or its successor agency. “CEC Certification and Verification” means that the CEC has certified that the Generating Facility is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard and that all Facility Energy delivered to the Delivery Point 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 Certification and Verification. “CEQA” means the California Environmental Quality Act, as amended or supplemented from time to time.
“Change in Tax Law” means (a) (i) any change in or amendment to the United States Internal Revenue Code of 1986, as amended, (“Tax Code”) or another applicable federal income tax statute; (ii) any change in, or issuance of, or promulgation of any temporary or final regulations by the U.S. Department of the Treasury that would result in any change to the interpretation of the Tax Code or existing temporary or final regulations promulgated by the U.S. Department of the Treasury; (iii) any IRS guidance published in the Internal Revenue Bulletin and/or Cumulative Bulletin, notice, announcement, revenue ruling, revenue procedure, technical advice memorandum, examination directive or similar authority issued by the IRS Large Business and International division, or any published advice, advisory, or legal memorandum issued by IRS Chief Counsel, that applies, advances or articulates a new or different interpretation or analysis of any provision of the Tax Code, any other applicable federal tax statute or any temporary or final Treasury Regulation promulgated thereunder; or (iv) any change in the interpretation of any of the authorities described in clauses (a)(i) through (iii) by a decision of the U.S. Tax Court, the U.S.

Court of Federal Claims, a U.S. District Court, a U.S. Court of Appeals or the U.S. Supreme Court, that applies, advances or articulates a new or different interpretation or analysis of federal income tax law, and (b) in the case of (a)(i) through (iv), such change or new or different interpretation, as applicable, occurs between the Execution Date and before the end of the Congress in session when the Commercial Operation Date occurs.
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“Change of Control” means, except in connection with public market transactions of equity interests or capital stock of Seller’s Ultimate Parent, any circumstance in which Ultimate Parent ceases to own, directly or indirectly through one or more intermediate entities, more than fifty percent (50%) of the outstanding equity interests in Seller; provided that in calculating ownership percentages for all purposes of the foregoing:
(a) any ownership interest in Seller held by Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards Ultimate Parent’s ownership interest in Seller unless Ultimate Parent directly or indirectly owns more than fifty percent (50%) of the outstanding equity interests in each such intermediate entity; and (b) ownership interests in Seller owned directly or indirectly by any Lender (including any tax equity provider) shall be excluded from the total outstanding equity interests in Seller. “Charging Energy” means the as-available Energy produced by the Generating Facility, less transformation and transmission losses, if any, delivered to the Storage Facility pursuant to a Charging Notice.
“Charging Notice” means the operating instruction, and any subsequent updates, given by Buyer to Seller, directing the Storage Facility to charge at a specific MW rate to a specified Stored Energy Level, provided that any such operating instruction shall be in accordance with the Operating Procedures. For the avoidance of doubt, (i) any Buyer request to initiate a Storage Capacity Test shall not be considered a Charging Notice, and (ii) any Charging Notice shall not constitute a Buyer Bid Curtailment, Buyer Curtailment Order, or Curtailment Order. “Claim” has the meaning set forth in Section 16.2.
“COD Certificate” has the meaning set forth in Exhibit B. “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 amount of Development Security that is remaining as of the Guaranteed Commercial Operation Date, as such date has been extended pursuant to Exhibit B divided by (b) one hundred and eighty (180). “Construction Start Delay Damages” means an amount equal to (a) the Development Security amount required hereunder, divided by (b) one hundred and eighty (180). “Compliance Actions” has the meaning set forth in Section 3.11. “Compliance Expenditure Cap” has the meaning set forth in Section 3.11. “Confidential Information” has the meaning set forth in Section Error! Reference source not found..
“Construction Start” has the meaning set forth in Exhibit B. 46 6
“Construction Start Date” has the meaning set forth in Exhibit B. “Contract Price” has the meaning set forth on the Cover Sheet and is each of the Generation Rate and the Storage Rate.
“Contract Term” has the meaning set forth in Section ARTICLE 1. “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commercial Operation Date and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. “Contracted Storage Capacity” means the total capacity (in MW) of the Storage Facility initially equal to the Installed Storage Capacity, and as the same may be adjusted from time to time pursuant to Section 4.9 and Exhibit O to reflect the results of the most recently performed Storage Capacity Test, subject to the limit of the Storage Capacity Default Threshold as designated on the Cover Sheet.
“Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace the Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating the Agreement. “Cover Sheet” means the cover sheet to this Agreement.
“COVID-19” means the epidemic disease designated COVID-19 and the related virus designated SARS-CoV-2 and any mutations thereof, and the efforts of a Governmental Authority to combat or mitigate such disease.
“CPUC” means the California Public Utilities Commission, or successor entity. “Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by S&P or Moody’s. If ratings by S&P and Moody’s are not equivalent, the lower rating shall apply.
“Curtailment Order” means any of the following:
(a) CAISO orders, directs, alerts, or provides notice, including through ADS, to a Party, including a CAISO Operating Order, to curtail deliveries of Discharging Energy for the following reasons: (i) any System Emergency, or (ii) any warning of an anticipated System Emergency, or warning of an imminent condition or situation, which jeopardizes CAISO’s electric system integrity or the integrity of other systems to which CAISO is connected; (b) a curtailment ordered by the Transmission Provider 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 47 7
damage, loss of load, or abnormal voltage conditions, or (ii) any warning, forecast or anticipation of conditions or situations that jeopardize the Transmission Provider’s electric system integrity or the integrity of other systems to which the Transmission Provider is connected; (c) a curtailment ordered by CAISO or the Transmission Provider due to a Transmission System outage; or
(d) a curtailment in accordance with Seller’s obligations under its Interconnection Agreement with the Transmission Provider or distribution operator. “Curtailment Period” means the period of time, as measured using relevant Settlement Intervals, during which generation from the Facility is reduced pursuant to a Curtailment Order; provided that the Curtailment Period shall be inclusive of the time required for the Facility to ramp down and ramp up.
“Damage Payment” means the dollar amount that is equal to the Development Security. “Day-Ahead Forecast” has the meaning set forth in Section 4.3(c). “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 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 during a Buyer Curtailment Period, which amount shall be equal to the Real-Time Forecast (of the hourly expected Energy) provided pursuant to Section 4.3(d) for the period of time during the Buyer Curtailment Period (or other relevant period), less the amount of Energy delivered to the Storage Facility or the Delivery Point during the Buyer Curtailment Period; provided that, if the applicable difference is negative, the Deemed Delivered Energy shall be zero (0). If the Facility is subject to a Planned Outage, Forced Facility Outage, Force Majeure Event and/or a Curtailment Period during a time period where the CAISO provides notice, including through ADS, to a Party or the Scheduling Coordinator for the Facility, requiring the Party to deliver less Facility Energy from the Facility than the full amount of energy forecasted in accordance with Section 4.3 to be produced from the Facility for a period of time, then the calculation of Deemed Delivered Energy during such period does not include any Energy that was not generated or stored due to such Planned Outage, Forced Facility Outage, Force Majeure Event or Curtailment Period.
“Defaulting Party” has the meaning set forth in Section ARTICLE 11(a). “Deficient Month” has the meaning set forth in Section (c)(e). “Delivery Point” has the meaning set forth in Exhibit A. “Delivery Term” shall mean the period of Contract Years set forth on the Cover Sheet beginning on the Commercial Operation Date, unless terminated earlier in accordance with the terms and conditions of this Agreement.
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“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 set forth on the Cover Sheet.
“Discharging Energy” means all Energy delivered to the Delivery Point from the Storage Facility, net of the Electrical Losses, as measured at the Storage Facility Metering Points by the Storage Facility Meter.
“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 MW rate to a specified Stored Energy Level, provided that any such operating instruction or updates shall be in accordance with the Operating Procedures. For the avoidance of doubt, any Discharging Notice shall not constitute a Buyer Bid Curtailment, Buyer Curtailment Order or Curtailment Order.
“Early Termination Date” has the meaning set forth in Section 11.2(a). “Economic Benefit” has the meaning set forth in Section 3.12(a). “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 Energy Generation to the Delivery Point, (ii) delivery of Charging Energy to the Storage Facility, (iii) conversion of Charging Energy into Discharging Energy, and (iv) delivery of Discharging Energy to the Delivery Point.
“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. “Energy” means electrical energy generated by the Generating Facility. “Energy Generation” means that portion of Energy that is delivered directly to the Delivery Point and is not Discharging Energy.
“Energy Supply Bid” has the meaning set forth in the CAISO Tariff. “Environmental Laws” has the meaning set forth in Section 16.3. “Event of Default” has the meaning set forth in Section ARTICLE 11. “Excess MWh” has the meaning set forth in Exhibit C.
“Exigent Circumstance” means actual or imminent harm to life or safety, public health, third-party owned property, including the Site, or the environment due to or arising from the Facility or portion thereof.
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“Expected Commercial Operation Date” has the meaning set forth on the Cover Sheet. “Expected Construction Start Date” has the meaning set forth on the Cover Sheet. “Expected Energy” means the quantity of Energy that Seller expects to be able to deliver to Buyer from the Generating Facility during each Contract Year in the quantity specified on the Cover Sheet.
“Expected Full Capacity Deliverability Status Date” has the meaning set forth on the Cover Sheet.
“Facility” means the Generating Facility and the Storage Facility. “Facility Energy” means the sum of Energy Generation and Discharging Energy, minus the amount of any Grid Energy, during any Settlement Interval or Settlement Period, net of Electrical Losses and Station Use, as measured by the Facility Meter, which Facility Meter will be adjusted in accordance with CAISO meter requirements and Prudent Operating Practices to account for Electrical Losses and Station Use.
“Facility Meter” means the CAISO Approved Meter that will measure all Facility Energy. “Facility Safety Plan” means Seller’s written plan that includes the Safeguards and plans to comply with the Safety Requirements, as such Safeguards and Safety Requirements are generally outlined in Exhibit L.
“Facility Safety Plan Documents” means the information and documentation listed in Exhibit L.
“FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Forecasting Penalty” has the meaning set forth in Section 4.3(f). “Force Majeure Event” has the meaning set forth in Section ARTICLE 10. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility prevents Seller from generating or storing Energy or making Facility Energy available at the Delivery Point and that is not the result of a Force Majeure Event. “Forward Certificate Transfers” has the meaning set forth in Section (c)(a). “Full Capacity Deliverability Status” or “FCDS” has the meaning set forth in the CAISO Tariff.
“Future Environmental Attributes” shall mean any and all generation 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 50 10
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 investment tax credits or production tax credits associated with the construction or operation of the Facility, or other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation.
“Gains” means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of 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 include the value of Green Attributes and Capacity Attributes.
“Generating Facility” means the 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 (i) Energy Generation to the Delivery Point, and (ii) Charging Energy to the Storage Facility; provided that the “Generating Facility” does not include the Storage Facility or the Shared Facilities.
“Generation Rate” has the meaning set forth on the Cover Sheet. “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 that that “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 Facility Energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) 51 11
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. “Grid Energy” means energy used to charge the Storage Facility other than Charging Energy from the Generating Facility.
“Guaranteed Generation Capacity” means the total capacity (in MW) of the Generating Facility initially equal to the amount set forth on the Cover Sheet, as the same may be adjusted pursuant to Section (c) of Exhibit C.
“Guaranteed Commercial Operation Date” means the Expected Commercial Operation Date, as such date may be extended by the Development Cure Period. “Guaranteed Construction Start Date” means the Expected Construction Start Date, as such date may be extended by the Development Cure Period. “Guaranteed Energy Production” has the meaning set forth in Section 4.7. “Guaranteed Installed Storage Capacity” has the meaning set forth on the Cover Sheet. “Guaranteed Storage Availability” has the meaning set forth in Section 4.8. "Hazardous Materials" means any substance, material or waste which is (1) defined as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," or "restricted hazardous waste" under any provision of California law; (2) petroleum or petroleum products; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. section 1251 et seq. (33 U.S.C.§ 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. § 1317); (7) defined as a "hazardous substance" pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. section 6901 et seq. (42 U.S.C. § 6903) or its implementing regulations; (8) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. section 9601 et seq. (42 U.S.C. § 9601); or (9) determined by California, federal or local governmental authority to be 52 12
capable of posing a risk of injury to health, safety or property. “Imbalance Energy” means the amount of energy in MWh, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy.
“Indemnified Party” has the meaning set forth in Section ARTICLE 16. “Indemnifying Party” has the meaning set forth in Section ARTICLE 16. “Initial Synchronization” means the initial delivery of Facility Energy to the Delivery Point.
“Installed Capacity” means the sum of (x) the Installed Generation Capacity and (y) the Installed Storage Capacity.
“Installed Storage Capacity” means the maximum dependable operating capability of the Storage Facility to discharge electric energy, as measured in MW(ac) at the Delivery Point, that achieves Commercial Operation, adjusted for ambient conditions on the date of the performance test, and as evidenced by a certificate substantially in the form attached as Exhibit I hereto. “Installed Generation Capacity” means the actual generating capacity of the Generating Facility, as measured in MW-AC at the Delivery Point, that achieves Commercial Operation, adjusted for ambient conditions on the date of the performance test, and as evidenced by a certificate substantially in the form attached as Exhibit I hereto. “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 Delay” means that the Interconnection Facilities or Network Upgrades are not complete and ready for the Facility to connect and sell Product at the Delivery Point or to obtain FCDS.
“Interconnection Facilities” means the interconnection facilities, control and protective devices and metering facilities required to connect the Facility with the Transmission System in accordance with the Interconnection Agreement.
“Interest Rate” has the meaning set forth in Section 8.2. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “ITC” means the investment tax credit established pursuant to Section 48 of the United States Internal Revenue Code of 1986.
“Joint Powers Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.).
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“Joint Powers Agreement” means that certain Joint Powers Agreement dated 12/15/2015, as amended from time to time, under which Buyer is organized as a Joint Powers Authority in accordance with the Joint Powers Act.
“Law” means any applicable law, statute, rule, regulation, decision, writ, order, decree or judgment, tariff, permit or any interpretation thereof, promulgated or issued by a Governmental Authority.
“Lender” means, collectively, any Person (i) providing senior or subordinated construction, interim, back leverage or long-term debt, equity or tax equity financing or refinancing for or in connection with the development, construction, purchase, installation or operation of the Facility, whether that financing or refinancing takes the form of private debt (including back-leverage debt), equity (including tax equity), public debt or any other form (including financing or refinancing provided to a member or other direct or indirect owner of Seller), including any equity or tax equity investor directly or indirectly providing financing or refinancing for the Facility or purchasing equity ownership interests of Seller and/or its Affiliates, and any trustee or agent or similar representative acting on their behalf, (ii) providing Interest Rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of the foregoing obligations and/or (iii) participating in a lease financing (including a sale leaseback or leveraged leasing structure) with respect to the Facility. “Letter(s) of Credit” means one or more irrevocable, standby letters of credit issued by a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a Credit Rating of at least BBB+ with an outlook designation of “stable” from S&P or Baa1 with an outlook designation of “stable” from Moody’s, in a form substantially similar to the letter of credit set forth in Exhibit K.
“Licensed Professional Engineer” means an independent, professional engineer selected by Seller and reasonably acceptable to Buyer, licensed in the State of California. “Local Capacity Area Resource” has the meaning set forth in the CAISO Tariff. “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., NP-15), 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 Section 4.7. 54 14
“Maximum Round-Trip Efficiency” has the meaning set forth on the Cover Sheet. “Milestones” means the development activities for significant permitting, interconnection, and construction milestones set forth on the Cover Sheet. “Minimum Round-Trip Efficiency” has the meaning set forth on the Cover Sheet. “Monthly Delivery Forecast” has the meaning set forth in Section 4.3(b). “Monthly Storage Availability” has the meaning set forth in Exhibit P. “Moody’s” means Moody’s Investors Service, Inc., or its successor. “Multiplier” has the meaning set forth in Section 3.8(a). “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 Period or Settlement Interval, the LMP at the Facility’s PNode is less than Zero dollars ($0).
“Net Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “Network Upgrades” 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 the 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).
“Notification Deadline” in respect of a Showing Month shall be fifteen (15) Business Days before the relevant deadlines for the corresponding RA Compliance Showings for such Showing Month.
“NP-15” means the Existing Zone Generation Trading Hub for Existing Zone region NP15 as set forth in the CAISO Tariff.
“Operating Procedures” or “Operating Restrictions” means those rules, requirements, and procedures set forth on Exhibit Q.
“Participating Transmission Owner” means an entity that owns 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. 55 15
“Participating Transmission Operator” means an entity that 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 Operator is Pacific Gas and Electric Company.
“PTO” means either Participating Transmission Owner or Participating Transmission Operator, as applicable.
“Party” has the meaning set forth in the Preamble.
“Performance Measurement Period” has the meaning set forth in Section 4.7. “Performance Security” means (i) cash or (ii) a Letter of Credit in the amount set forth on the Cover Sheet.
“Permitted Transferee” means:
(i) any Affiliate of Seller, or
(ii) any entity that has, or is controlled by another Person that satisfies the following requirements:
(A)A tangible net worth of not less than one hundred fifty million dollars ($150,000,000) or a Credit Rating of at least BBB+ from S&P, BBB+ from Fitch, or Baa1 from Moody’s; and
(B) At least two (2) years of experience in the ownership and operations of power generation facilities similar to the Facility, or has retained a third-party with such experience to operate the Facility. “Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity.
“Planned Outage” means the removal of the Facility from service to perform work on specific components that will result in an interruption in delivery of Energy to Buyer (e.g., for annual overhaul, inspections or testing).
“PNode” has the meaning set forth in the CAISO Tariff.
“Portfolio Content Category” means PCC1, PCC2 or PCC3, as applicable. “Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code 56 16
Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law.
“Portfolio Content Category 2” or “PCC2” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(2), as may be amended from time to time or as further defined or supplemented by Law.
“Portfolio Content Category 3” or “PCC3” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(3), as may be amended from time to time or as further defined or supplemented by Law.
“Product” has the meaning set forth on the Cover Sheet. “Progress Report” means a progress report including the items set forth in Exhibit E. “Prudent Operating Practice” means (a) the applicable practices, methods and acts required by or consistent with applicable Laws and reliability criteria, and otherwise engaged in or approved by a significant portion of the electric utility industry during the relevant time period with respect to grid-interconnected, utility-scale generating facilities with integrated storage in the Western United States, or (b) any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Prudent Operating Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to acceptable practices, methods or acts generally accepted in the industry with respect to grid-interconnected, utility-scale generating facilities with integrated storage in the Western United States. “PTC” means the production tax credit established pursuant to Section 45 of the United States Internal Revenue Code of 1986.
“Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “RA Compliance Showing” means the System RAR compliance or advisory showings (or similar or successor showings an entity is required to make to the CAISO pursuant to the CAISO Tariff, to the CPUC pursuant to the Resource Adequacy Rulings, or to any Governmental Authority.
“RA Deficiency Amount” means the liquidated damages payment that Seller shall pay to Buyer for an applicable RA Shortfall Month as calculated in accordance with Section 3.8(a). “RA Deficiency Multiplier” has the meaning shown on the Cover Sheet. “RA Guarantee Date” has the meaning shown on the Cover Sheet. 57 17
“RA Shortfall Amount” has the meaning set forth in Section 3.8(b). “RA Shortfall Month” means, for purposes of calculating an RA Deficiency Amount under Section 3.8(a), any Showing Month in which either:
(a) the Facility has not achieved FCDS; or
(b) the Net Qualifying Capacity of the Facility for such Showing Month was either (i) not published by or otherwise established with the CAISO by the Notification Deadline for such Showing Month, or (ii) was less than the Qualifying Capacity of the Facility for such month.
“Real-Time Forecast” means any Notice of any change to the Available Generating Capacity, Storage Capacity, or hourly expected Energy delivered by or on behalf of Seller pursuant to Section 4.3(d).
“Real-Time Market” has the meaning set forth in the CAISO Tariff. “Real-Time Price” means the Resource-Specific Settlement Interval LMP as defined in the CAISO Tariff. If there is more than one applicable Real-Time Price for the same period of time, Real-Time Price shall mean the price associated with the smallest time interval. “Release” has the meaning set forth in Section 16.3.
“Remedial Action Plan” has the meaning in Section 2.4.
“Remediation Event” means the occurrence of any of the following with respect to the Facility or the Site: (a) an Exigent Circumstance (b) a Serious Incident; (c) a change in the nature, scope, or requirements of applicable Laws, Permits, codes, standards, or regulations issued by Governmental Authorities which requires modifications to the Safeguards; (d) a material change to the manufacturer’s guidelines that requires modification to equipment or the Facility’s operating procedures; (e) a failure or compromise of an existing Safeguard; (f) Notice by Buyer pursuant to Section 6.5, in its reasonable discretion, that the Seller, the Facility Safety Plan, and/or seller attestation, as applicable, is not consistent with the Safety Requirements; or (g) any actual condition related to the Facility or the Site with the potential to adversely impact the safe construction, operation, maintenance, or decommissioning of the Facility or the Site. “Remediation Period” means the time period between the first occurrence of the Remediation Event and the resolution of such Remediation Event which period may not exceed a total of ninety (90) days unless extended pursuant to Section 6.5. “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, 58 18
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, 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 is not a Green Attribute or a Future Environmental Attribute.
“Replacement RA” means Resource Adequacy Benefits, if any, equivalent to those that would have been provided by the Facility with respect to the applicable month in which a RA Deficiency Amount is due to Buyer.
“Resource Adequacy Benefits” means the rights and privileges attached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and shall include any local, zonal or otherwise locational attributes associated with the Facility.
“Resource Adequacy Rulings” means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-04-040, 06-06-064, 06-07-031 06-07-031, 07-06-029, 08-06-031, 09-06-028, 10-06-036, 11-06-022, 12-06-025, 13-06-024 14-06-050, 15-06-063, 16-06-045, 17-06-027, 18- 06-030, 18-06-031, 19-02-022, 19-06-026, 19-10-021, 20-01-004, 20-03-016, 20-06-002, 20-06- 031, 20-06-028, 20-12-006 and any other existing or subsequent ruling or decision, or any other resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority, however described, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time throughout the Delivery Term. “Resource Generation Capability” has the meaning set forth in Exhibit I. “Round-Trip Efficiency Rate Adjustment” has the meaning set forth in Exhibit C. “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill Companies, Inc.) or its successor.
“Safeguard” means any procedures, practices, or actions with respect to the Facility, the Site or Work for the purpose of preventing, mitigating, or containing foreseeable accidents, injuries, damage, release of hazardous material or environmental harm. “Safety Remediation Plan” means a written Notice from Seller to Buyer containing information about a Remediation Event, including (a) the date, time and location of first occurrence, (b) the circumstances surrounding cause, (c) impacts, and (d) detailed information about Seller’s plans to resolve the Remediation Event.
“Safety Requirements” means Prudent Electrical Practices, the requirements of CPUC General Order No. 167 that are applicable to the Facility, Contractor Safety Program Requirements, and all applicable requirements of Law, the Utility Distribution Company, the Transmission Provider, Governmental Approvals, the CAISO, CARB, NERC and WECC, including, but not limited to, any applicable regulations adopted by the California Department of Toxic Substances Control relating to the disposal of materials used in the Facility. 59 19
“Schedule” has the meaning set forth in the CAISO Tariff, and “Scheduled” has a corollary meaning.
“Scheduled Energy” means the Facility Energy that clears under the applicable CAISO market based on the final Day-Ahead Schedule, FMM Schedule (as defined in the CAISO Tariff), and/or any other financially binding Schedule, market instruction or dispatch for the Facility for a given period of time implemented in accordance with the CAISO Tariff. “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 Permitted Party” means any actual or potential: (i) Lender, (ii) direct or indirect purchaser of all or any part of Seller or the Facility, (iii) engineering, procurement, and construction contractor, and (iv) operation and maintenance provider. “Seller’s WREGIS Account” has the meaning set forth in Section (c)(a). “Serious Incident” means a harmful event that occurs on the Site during the term arising out of, related to, or connected with the Facility or the Site that results in any of the following outcomes: (a) any injury to or death of a member of the general public; (b) the death or permanent, disabling injury to operating personnel, subcontractors, Seller’s employees, agents, or consultants, or authorized visitors to the Site; (c) any property damage greater than one hundred thousand dollars ($100,000.00); (d) release of hazardous material above the limits, or violating the requirements, established by permits, codes, standards, regulations, Laws, or Governmental Authorities; or (e) environmental impacts exceeding those authorized by permits or Law. “Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other. If the Non-Defaulting Party’s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to the Non-Defaulting Party. If the Non-Defaulting Party’s Gains exceed its Costs and Losses, then the Settlement Amount shall be zero dollars ($0). The Settlement Amount does not include consequential, incidental, punitive, exemplary or indirect or business interruption damages. “Settlement Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff. “Shared Facilities” means the gen-tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of energy from the Facility (which is excluded from Shared Facilities) to the 60 20
point of interconnection, including the Interconnection Agreement itself, that are used in common with third parties.
“Showing Month” shall be a calendar month of the Delivery Term, commencing with the Showing Month that contains the Expected Full Capacity Deliverability Status Date, that is the subject of a RA Compliance Showing, as set forth in the Resource Adequacy Rulings and outlined in the CAISO Tariff. For illustrative purposes only, pursuant to the CAISO Tariff and Resource Adequacy Rulings in effect as of the Effective Date, the monthly RA Compliance Showing made in June is for the Showing Month of August.
“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 achieves Construction Start.
“Site Control” means that Seller or its Affiliate: (a) owns or has the option to purchase the Site; (b) is the lessee or has the option to lease the Site; or (c) is the holder of an easement or an option for an easement, right-of-way grant, or similar instrument with respect to the Site. “Station Use” means: (a) the Energy produced or discharged by the Facility that is used within the Facility to power the lights, motors, control systems and other electrical loads that are necessary for operation of the Facility; and (b) the Energy produced or discharged by the Facility that is consumed within the Facility’s electric energy distribution system as losses. “State of Charge” or “SOC” means the Equipment’s state of charge which is the ratio of the current capacity of the battery to the maximum available current capacity of the battery, expressed as a percentage.
“Storage Capacity” means the maximum dependable operating capability of the Storage Facility to discharge electric energy, and any other products that may be developed or evolve from time to time during the Term that the Storage Facility is able to provide as the Facility is configured on the Commercial Operation Date and that relate to the maximum dependable operating capability of the Storage Facility to discharge electric energy.
“Storage Capacity Default Threshold” has the meaning set forth on the Cover Sheet. “Storage Capacity Test” 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 Section 4.9 and Exhibit O.
“Storage Facility” means 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 equipment and associated facilities and equipment required to deliver Storage Product (but excluding any Shared Facilities), and as such storage facility may be expanded or otherwise modified from time to time in accordance with the terms hereof. “Storage Facility Meter” means the bi-directional revenue quality meter or meters (with an accuracy class between 0.3 and 0.5, as selected by Seller and approved by Buyer, each acting reasonably), along with a compatible data processing gateway or remote intelligence gateway, 61 21
telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, (i) the amount of Charging Energy delivered to the Storage Facility Metering Points, (ii) the amount of Grid Energy delivered to the Storage Facility Metering Points, and (iii) the amount of Discharging Energy discharged from the Storage Facility at the Storage Facility Metering Points to the Delivery Point for the purpose of invoicing in accordance with Section ARTICLE 8. For clarity, the Facility will contain multiple measurement devices that will make up the Storage Facility Meter, and, unless otherwise indicated, references to the Storage Facility Meter shall mean all such measurement devices and the aggregated data of all such measurement devices, taken together.
“Storage Facility Metering Points” means the locations of the Storage Facility Meters shown on Exhibit R.
“Storage Product” means (a) Discharging Energy, (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, as such rate may be modified pursuant to Section 3.8(c).
“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. “System Emergency” means any condition that 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) to preserve Transmission System reliability. “Tax” or “Taxes” means all U.S. federal, state, local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Tax Benefits” means any state, local and/or federal tax benefit or incentive, including energy credits determined under Section 45 or 48 of the Internal Revenue Code of 1986, as amended, investment tax credits, production tax credits, depreciation, amortization, deduction, expense, exemption, preferential rate, and/or other tax benefit or incentive associated with the production of renewable energy and/or the operation of, construction, investments in or ownership of the Facility (including any cash payment or grant).
“Tax Credits” means the PTC, ITC and any other state, local or federal production tax credit, depreciation benefit, tax deduction or investment tax credit specific to the production of renewable energy or investments in renewable energy facilities or storage facilities. “Tax Equity Financing” means a transaction or series of transactions involving one or more investors seeking a return that is enhanced by tax credits and/or tax depreciation and 62 22
generally (i) described in Revenue Procedures 2001-28 (sale-leaseback (with or without “leverage”)), 2007- 65 (flip partnership) or 2014-12 (flip partnership and master tenant partnership) as those revenue procedures are reasonably applied or analogized to the Project or (ii) contemplated by Section 50(d)(5) of the Internal Revenue Code of 1986, as amended (a pass-through lease). “Terminated Transaction” has the meaning set forth in Section 11.2(a). “Termination Payment” has the meaning set forth in Section 11.3. “Test Energy” means any Facility Energy delivered (a) commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Facility Energy 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.
“Transmission Provider” means any entity or entities transmitting or transporting the Facility Energy on behalf of Seller or Buyer to or from the Delivery Point, including any Participating Transmission Owner or distribution provider. “Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, or the distribution facilities operated by a Participating Transmission Owner or other distribution provider, which provide energy transmission service downstream from the Delivery Point.
“Transmission System Outage” means an outage on the Transmission System, other than a System Emergency, that is not caused by Seller’s actions or inactions and that prevents Buyer or the CAISO (as applicable) from receiving System Energy onto the Transmission System. “Ultimate Parent” means your solar LLC.
“Variable Energy Resource” or “VER” has the meaning set forth in the CAISO Tariff. “Wildfire Smoke-Caused Output Reduction” means a reduction in the generation output of the facility that is caused by smoke clouds and aerosols from a wildfire, calculated pursuant to Section 4.6(f).
“Work” means (a) work or operations performed by a Party or on a Party’s behalf; and (b) materials, parts or equipment furnished in connection with such work or operations; including (i) warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “a Party’s work”; and (ii) the providing of or failure to provide warnings or instructions.
“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 (c)(e). 63 23
“WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of May 1, 2018, 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 work 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;
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(k) the expression “and/or” when used as a conjunction shall connote “any or all of”;
(l) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
(m) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

ARTICLE 2: TERM; CONDITIONS PRECEDENT

2.1 Contract Term.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions and any contract term extension provisions set forth herein (“Contract Term”); provided that that subject to Buyer’s obligations in Section 3.6, Buyer’s obligations to pay for or accept any Product are subject to Seller’s completion of the conditions precedent pursuant to Section 2.2.
(b) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality obligations of the Parties under Article 18 shall remain in full force and effect for two (2) years following the termination of this Agreement, and all indemnity and audit rights shall remain in full force and effect for one (1) year following the termination of this Agreement.

2.2 Conditions Precedent. The Delivery Term shall not commence until Seller completes each of the following conditions, which must be satisfied and delivered to Buyer at least forty-five (45) days before the Commercial Operation Date:
(a) Seller shall have provided to Buyer, by no earlier than ninety (90) days prior to the Commercial Operating Date, updated correct and complete copies of (A) Seller’s most recent annual report, audited consolidated financial statements, and unaudited consolidated financial statements; and (B) Seller’s organizational documents to confirm Seller’s and Seller’s Affiliate’s legal and financial relationship to and authority over the Facility (such as certifications of formation, certifications and articles of incorporation, charters, operating agreements, partnership agreements, bylaws, or similar documents) and any amendments thereto. (b) Seller shall have delivered to Buyer (i) a completion certificate from a Licensed Professional Engineer substantially in the form of Exhibit H and (ii) a certificate from a Licensed Professional Engineer substantially in the form of Exhibit I setting forth the Installed Capacity on the Commercial Operation Date.
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(c) A Participating Generator Agreement and a Meter Service Agreement 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;
(d) 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 delivered to Buyer;
(e) All applicable regulatory authorizations, approvals and permits necessary for the operation of the Facility have been obtained and shall be in full force and effect and all conditions thereof that are capable of being satisfied on the Commercial Operation Date shall have been satisfied;
(f) Seller shall have received CEC Precertification of the Facility (and reasonably expects to receive final CEC Certification and Verification for the Facility in no more than one hundred eighty (180) days from the Commercial Operation Date); (g) Seller shall have completed all applicable WREGIS registration requirements, including the completion and submittal of all applicable registration forms and supporting documentation, which may include applicable interconnection agreements, informational surveys related to the Facility, QRE service agreements, and other appropriate documentation required to effect Facility registration with WREGIS and to enable Renewable Energy Credit transfers related to the Facility within the WREGIS system; (h) Seller shall have submitted to Buyer a Facility Safety Plan; (i) Seller shall have delivered to Buyer all insurance documents required under Article 17;
(j) Seller shall have submitted to Buyer a Metering Diagram in the form of Exhibit R;
(k) If any applicable Governmental Authority required Seller to develop a decommissioning plan as part of any permitting process for the Facility, then Seller shall have provided such decommissioning plan to Buyer;
(l) Seller shall have delivered the Performance Security to Buyer in accordance with Section 8.8; and
(m) Seller shall have paid Buyer for all amounts owing under this Agreement, if any, including any Commercial Operation Delay Damages.

2.3 Progress Reporting. Within fifteen (15) days after the close of (i) each calendar quarter from the first calendar quarter following the Effective Date until the achievement of Construction Start, and (ii) each calendar month from the first calendar month following the achievement of Construction Start 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 monthly reports and discuss Seller’s construction progress. The form of the 66 26
Progress Report is set forth in Exhibit E. Seller shall also provide Buyer with any reasonable requested documentation (subject to confidentiality restrictions) directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request by Seller. For the avoidance of doubt, Seller is solely responsible for the design and construction of the Facility, including the location of the Site, the Facility layout, and the selection, procurement and installation of the equipment comprising the Facility.

2.4 Remedial Action Plan. If Seller misses three (3) or more Milestones, or misses any one (1) by more than ninety (90) days, except as the result of Force Majeure Event or Buyer Default, Seller shall submit to Buyer, within ten (10) Business Days of such missed Milestone completion date, a remedial action plan (“Remedial Action Plan”), which will describe in detail any delays (actual or anticipated) beyond the scheduled Milestone dates, including the cause of the delay (e.g., governmental approvals, financing, property acquisition, design activities, equipment procurement, project construction, interconnection, or any other factor), Seller’s detailed description of its proposed course of action to achieve the missed Milestones and all subsequent Milestones by the Guaranteed Commercial Operation Date. Subject to the provisions of Exhibit B, so long as Seller complies with its obligations under this Section 2.4, Seller shall not be considered in default of its obligations under this Agreement solely as a result of missing any Milestone.

ARTICLE 3: PURCHASE AND SALE

3.1 Purchase and Sale of Product. Subject to the terms and conditions of this Agreement, during the Delivery Term, Buyer will purchase all the Product produced by or associated with the Facility at the Contract Price and in accordance with Exhibit C, and Seller shall supply and deliver to Buyer all the Product produced by or associated with the Facility. At its sole discretion, Buyer may during the Delivery Term re-sell or use for another purpose all or a portion of the Product, provided that no such re-sale or use shall relieve Buyer of any obligations hereunder. During the Delivery Term, Buyer will have exclusive rights to offer, bid, or otherwise submit the Product, and/or any Capacity Attributes thereof, from the Facility after the Delivery Point for resale in the market, and retain and receive any and all related revenues. Subject to Buyer’s obligation to purchase Capacity Attributes and Storage Product in accordance with this Section ARTICLE 3 and Exhibit C, Buyer has no obligation to purchase from Seller any Product for which the associated Facility Energy is not or cannot be delivered to the Delivery Point as a result of an outage of the Facility, a Force Majeure Event, or a Curtailment Order.

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

3.3 Imbalance Energy. Buyer and Seller recognize that in any given Settlement Period the amount of Facility Energy may deviate from the amount of energy scheduled with the CAISO. To the extent there are such deviations, any costs or revenues from such imbalances shall be solely for the account of Buyer.

3.4 Ownership of Renewable Energy Incentives. Seller shall have all rights, 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 67 27
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.

3.5 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Effective Date, environmental attributes sold under this Agreement are restricted to Green Attributes; however, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Subject to the final sentence of this Section 3.5(a), and Sections

3.5(b) and 3.11, in such event, Buyer shall bear all costs associated with the transfer, qualification, verification, registration and ongoing compliance for such Future Environmental Attributes, but there shall be no increase in the Contract Price. Upon Seller’s receipt of Notice from Buyer of Buyer’s intent to claim such Future Environmental Attributes, the Parties shall determine the necessary actions and additional costs associated with such Future Environmental Attributes.

Seller shall have no obligation to alter the Facility unless the Parties have agreed on all necessary terms and conditions relating to such alteration.
(b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.5(a), the Parties agree to negotiate in good faith with respect to the development of further agreements and documentation necessary to effectuate the transfer of such Future Environmental Attributes, including agreement with respect to (i) appropriate transfer, delivery and risk of loss mechanisms, and (ii) appropriate allocation of any additional costs; provided that the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.

3.6 Test Energy. No less than fourteen (14) days prior to the first day on which Test Energy is expected to be available from the Facility, but in no case more than seventy-five (75) calendar days prior to the Expected Commercial Operation Date of the Facility, Seller shall notify Buyer of the availability of the Test Energy. If and to the extent the Facility generates Test Energy, Seller shall sell and Buyer shall purchase from Seller all Test Energy on an as-available basis. As compensation for such Test Energy, Buyer shall pay Seller an amount equal to fifty percent (50%) of the Generation Rate. For the avoidance of doubt, the conditions precedent in Section 2.2 are not applicable to the Parties’ obligations under this Section 3.6.

3.7 Capacity Attributes. Seller shall request Full Capacity Deliverability Status in the CAISO generator interconnection process. As between Buyer and Seller, Seller shall be responsible for the cost and installation of any Network Upgrades associated with obtaining such Full Capacity Deliverability Status.
(a) Throughout the Delivery Term and subject to Section 3.11, Seller grants, pledges, assigns and otherwise commits to Buyer all the Capacity Attributes from the Facility. (b) Throughout the Delivery Term and subject to Section 3.11, Seller shall use commercially reasonable efforts to maintain eligibility for Full Capacity Deliverability Status for the Facility from the CAISO and shall perform all actions necessary to ensure that the Facility 68 28
qualifies to provide Resource Adequacy Benefits to Buyer. Throughout the Delivery Term, and subject to Section 3.11, Seller hereby covenants and agrees to transfer all Resource Adequacy Benefits to Buyer.
(c) Seller acknowledges that Buyer intends to use this Agreement to comply with mandatory procurement obligations for incremental, zero-emissions capacity pursuant to D.21-06-035 as subsequently clarified by the CPUC’s Energy Division. In accordance with such requirements, Seller represents and warrants that the Facility will meet the following requirements throughout the Delivery Term, subject to Section 3.11:
(i) the Product qualifies as incremental capacity pursuant to D.21-06- 035 and any applicable public guidance documents issued by Energy Division; (ii) the Facility is a new resource, which had not achieved Commercial Operation as of the Effective Date of this Agreement;
(iii) the Facility is not a fossil-fueled generation facility and qualifies as a zero-emission resource under D.21-06-035; and
(iv) no load serving entity other than Buyer is permitted to claim any portion of the Product toward D.21-06-035 compliance obligations. (d) In furtherance of Buyer’s compliance and reporting obligations under D.21- 06-035 and without limiting Seller’s obligations under any other provision of this Agreement, Seller agrees to provide documentation reasonably requested by Buyer in connection with such compliance obligations, including but not limited to the following:
(i) evidence of interconnection, site control, notice to proceed with construction and other evidence of construction status and progress towards Commercial Operation;
(ii) engineering assessments demonstrating that the Facility satisfies the foregoing requirements; and
(iii) any other engineering assessments or contractual support required or requested by the CPUC pursuant to D.21-06-035.

3.8 Resource Adequacy Failure.
(a) RA Deficiency Determination. Except as specified in Section 3.8(c), for each RA Shortfall Month, Seller shall pay to Buyer as liquidated damages the RA Deficiency Amount, as set forth in Section 3.8(b), and/or provide Replacement RA, as set forth in Section

3.8(b), as the exclusive remedy for the Capacity Attributes that Seller failed to convey to Buyer. (b) RA Deficiency Amount Calculation. Except as specified in Section 3.8(c), for each RA Shortfall Month, Seller shall pay to Buyer an amount (the “RA Deficiency Amount”) equal to the difference, expressed in kW, of (i) the Qualifying Capacity of the Facility, minus (ii) the Net Qualifying Capacity of the Facility that may be included in Supply Plans by Buyer (the 69 29
“RA Shortfall Amount”), multiplied by the applicable RA Deficiency Multiplier, as designated on the Cover Sheet; provided that Seller may, as an alternative to paying RA Deficiency Amounts, provide Replacement RA in the amount of the RA Shortfall Amount with respect to such Showing Month, provided that any Replacement RA capacity is communicated by Seller to Buyer with Replacement RA product information in a written Notice substantially in the form of Exhibit M at least seventy-five (75) calendar days before the RA Shortfall Month. For avoidance of doubt, if the Net Qualifying Capacity has not been published by or otherwise established with the CAISO by the Notification Deadline for such RA Shortfall Month, then the Net Qualifying Capacity shall be deemed to be zero (0) MW.
(c) If the Facility has not achieved FCDS by the RA Guarantee Date, then the provisions of Section 3.8(a) and (b) shall be suspended and, as an alternative basis of liquidated damages, the Storage Rate shall be reduced to per kilowatt-month ($ /kW-month) for all subsequent months. If the Facility subsequently achieves FCDS, the Storage Rate shall be increased to per kilowatt-month ($ /kW-month) and the requirements of the Sections 3.8 (a) and (b) shall apply to all such months occurring after the Facility achieves FCDS.

3.9 CEC Certification and Verification. Subject to Section 3.11 and in accordance with the timing set forth in this Section 3.9, Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Certification and Verification for the Facility throughout the Delivery Term, including compliance with all applicable requirements for certified facilities set forth in the current version of the RPS Eligibility Guidebook (or its successor). Seller shall obtain CEC Precertification by the Commercial Operation Date. Within thirty (30) days after the Commercial Operation Date, Seller shall apply with the CEC for final CEC Certification and Verification. Seller must promptly notify Buyer and the CEC of any changes to the information previously submitted in Seller’s application for CEC Certification and Verification for the Facility.

3.10 California Renewables Portfolio Standard.
(a) Eligibility. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Facility qualifies and is certified by the CEC as an Eligible Renewable Energy Resource as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Facility Energy 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. As used in this Section 3.10(a), “certified by the CEC” means the Facility has received CEC Certification and Verification. (b) 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 70 30
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.
(c) Tracking of RECs in WREGIS. Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in WREGIS will be taken prior to the first delivery under this Agreement.

3.11 Change in Law.
(a) The Parties acknowledge that an essential purpose of this Agreement is to both provide Resource Adequacy Benefits that satisfy the requirements of the Resource Adequacy Rulings, including the requirements of D.21-06-035, and to provide renewable generation that meets the requirements of the California Renewables Portfolio Standard. Governmental Authorities, including the CEC, CPUC, CAISO, and WREGIS, may undertake actions to implement changes in Law. Seller agrees to use commercially reasonable efforts to cooperate with Buyer with respect to any subsequently requested changes, modifications, or amendments to this Agreement needed to satisfy requirements of Governmental Authorities associated with changes in Law, including changes, modifications, or amendments to this Agreement to: (i) amend the definition of Green Attributes and Capacity Attributes, including amendments to this Agreement to reflect any mandatory contractual language required by Governmental Authorities; (ii) require submission of any reports, data, or other information required by Governmental Authorities; or (iii) take any other commercially reasonable actions that may be requested by Buyer to assure that the Facility is an Eligible Renewable Energy resource under the California Renewables portfolio Standard; provided that Seller shall have no obligation to modify this Agreement, or take other actions not required under this Agreement, if such modifications or actions would materially adversely affect, or could reasonably be expected to have or result in a material adverse effect on, any of Seller’s rights, benefits, risks and/or obligations under this Agreement. (b) If a change in Law occurring after the Effective Date has increased Seller’s costs to comply with Seller’s obligations in excess of Seller’s known or reasonably expected costs (as of the Effective Date) with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of (as applicable), the items listed below (the “Compliance Actions”) the maximum amount of out-of-pocket costs and expenses (“Compliance Costs”) to be incurred by Seller under this Agreement shall be capped at the Compliance Expenditure Cap amount shown on the Cover Sheet over the Delivery Term in the aggregate (“Compliance Expenditure Cap”):
(i) CEC Certification and CEC Verification;
(ii) Green Attributes;
(iii) WREGIS;
(iv) Capacity Attributes;
(v) Eligibility as an Eligible Renewable Energy Resource; and (vi) California Renewables Portfolio Standard qualification. 71 31
(c) Seller’s internal administrative costs associated with obtaining, maintaining, conveying or effectuating Buyer’s use of (as applicable) any Product are excluded from the Compliance Expenditure Cap. If Seller reasonably anticipates the need to incur Compliance Costs in excess of the Compliance Expenditure Cap in order to take any Compliance Action, Seller shall provide Notice to Buyer of such anticipated Compliance Costs. (d) Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all or some portion of the costs that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs, the “Accepted Compliance Costs”), or (2) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller.
(e) If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall reimburse Seller for Seller’s actual costs to effect the Compliance Actions, not to exceed the Accepted Compliance Costs, within sixty (60) days from the time that Buyer receives an invoice and documentation of such costs from Seller. (f) Subject to the following sentence, to the extent that a change in Laws (including a UCAP Valuation) occurring after the Effective Date results in a reduction of the Facility’s Net Qualifying Capacity and either (i) Seller has completed the actions required to comply with its obligations under this Agreement, up to the Compliance Expenditure Cap or any Accepted Compliance Costs or (ii) Buyer has waived Seller’s obligations to take any actions required to comply with such change in Laws in accordance with this Section 3.11, then the Net Qualifying Capacity of the Facility shall be automatically deemed to refer to the Net Qualifying Capacity of the Facility immediately before the occurrence of the change in Laws. The Parties agree that if (A) a UCAP Valuation is adopted and (B) the otherwise available Capacity Attributes are reduced solely due to Seller’s failure to operate the Facility in accordance with the requirements of this Agreement, then, notwithstanding this Section 3.11, Seller’s obligation to deliver the applicable Contracted Storage Capacity will not be reduced on the basis of such reduction and the automatic adjustments described in the foregoing sentence shall not be implemented.

3.12 Change in Tax Law.
(a) If at any time prior to the end of the Delivery Term, Seller realizes any economic benefit from a Change in Tax Law with respect to the Facility (“Economic Benefit”), then Seller shall pay Buyer percent ( %) of such Economic Benefit realized each month, which amount shall be due to Buyer sixty days after the end of the month in which Seller realized such Economic Benefit, through the remainder of the Delivery Term. (b) Seller shall provide Notice to Buyer within seven (7) days after realizing any Economic Benefit.
(c) For purposes of determining when an Economic Benefit is realized under this Section 3.12, realization will have been deemed to have occurred upon the earliest occurrence of any of the following: (i) the closing of any Tax Equity Financing by Seller (ii) the transfer of 72 32
any income tax credits generated as a result of Change in Tax Law, (iii) the claiming of any income tax credits on the federal income tax return (on the date such return is filed) of any entity, or (iv) the date upon which Seller realizes an Economic Benefit not otherwise listed in this Section 3.12.

Determination of whether an Economic Benefit has been realized, and the extent of that Economic Benefit, shall be determined by Seller, in its sole discretion.

3.13 Facility Configuration. In order to optimize the benefits of the Facility, Buyer and Seller each agree that if requested by the other Party, then Buyer and Seller will discuss in good faith potential reconfiguration of the Facility or Interconnection Facilities; provided that neither Party shall be obligated to agree to any changes under this Agreement, or to incur any unreimbursed expense in connection with such changes, except under terms mutually acceptable to both Parties as set forth in a written agreement.

3.14 Additional Products.
(a) Over the Term, new or incremental opportunities may arise for the sale or transfer of additional products from the Facility that are not currently known to or contemplated by the Buyer or Seller, including capacity, reactive power, and ancillary services (collectively, “Additional Products”). To the extent that the sale or transfer of these Additional Products accruing during the Settlement Term becomes an option, either Party may notify the other regarding their availability. Buyer may request in writing for Seller to use commercially reasonable efforts, at Buyer’s cost, to monetize such Additional Products on behalf of Buyer (“Buyer’s Written Request”); provided that (i) neither the creation, registration, sale or transfer of such Additional Products (A) shall require Seller to make material modifications to the Facility (or the design thereof) or material upgrades or other material modifications to any interconnection or transmission facilities (other than those for which Buyer has agreed to fund) or (B) require Seller to reduce the generation of energy from the Facility and delivery thereof to the interconnection point (or restrict Seller’s flexibility in offering, bidding, planning and scheduling such energy) or (C) interfere with qualification, offering, bidding, planning, scheduling or other disposition of Environmental Attributes; and (ii) the sale or transfer of such Additional Products is permitted by (and capable of being implemented pursuant to) law. (b) If the CPUC adopts a Slice of Day reform, or another similar type of reform that results in a change in the RA capacity product, these additional attributes will not be considered Additional Products.

ARTICLE 4: OBLIGATIONS AND DELIVERIES

4.1 Delivery.
(a) Energy. Subject to the provisions of this Agreement, commencing on the Commercial Operation Date through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Point, and Buyer shall take delivery of the Product at the Delivery Point in accordance with the terms of this Agreement. Seller will be responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Facility Energy to the Delivery Point, including without limitation, Station Use, Electrical Losses, any costs associated with delivering the Charging Energy from the Generating Facility to the 73 33
Storage Facility, and any operation and maintenance charges imposed by the Transmission Provider directly relating to the Facility’s operations. Buyer shall be responsible for all costs, charges, and penalties, if any, imposed in connection with the delivery of Facility Energy at and after the Delivery Point, including without limitation transmission costs and transmission line losses and imbalance charges. Buyer shall be responsible for all costs, charges, and penalties, if any, imposed in connection with the delivery of Grid Energy to the Storage Facility. The Facility Energy will be scheduled to the CAISO by Buyer (or Buyer’s designated Scheduling Coordinator) in accordance with Exhibit D.
(b) Green Attributes. All Green Attributes associated with the Test Energy and the Facility during the Delivery Term are exclusively dedicated to and vested in Buyer. Seller represents and warrants that Seller holds the rights to all Green Attributes from the Facility, and Seller agrees to convey and hereby conveys all such Green Attributes to Buyer as included in the delivery of the Product from the Facility.

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

4.3 Forecasting. Seller shall provide the forecasts described below at Seller’s sole expense. Seller’s capacity forecasts shall include both Available Generating Capacity and Storage Capacity. Seller shall use commercially reasonable efforts to forecast the Available Generating Capacity and Storage Capacity accurately and to transmit such information in a format reasonably acceptable to Buyer (or Buyer’s designee).
(a) Annual Forecast of Energy. No less than forty-five (45) 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 and the SC a non-binding forecast of each month’s average-day Expected Energy, by hour, for the following calendar year in a form substantially similar to the table found in Exhibit F-1, or as reasonably requested by Buyer.
(b) Monthly Forecast of Energy and Available Generating Capacity. No less than thirty (30) days before the beginning of Commercial Operation, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer and the SC (if applicable) a non-binding forecast of the hourly expected Energy, Available Generating Capacity and Storage Capacity for each day of the following month in a form substantially similar to the table found in Exhibit F-2 (“Monthly Delivery Forecast”). (c) Day-Ahead Forecast. By 5:30 AM Pacific Prevailing Time on the Business Day immediately preceding the date of delivery, or as otherwise specified by Buyer consistent with Prudent Operating Practice, Seller shall provide Buyer with a non-binding forecast of 74 34
(i) Available Generating Capacity and (ii) Storage Capacity and (iii) hourly expected Energy, in each case, 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 estimate of (i) the Available Generating Capacity and (ii) the Storage Capacity and (iii) the hourly expected Energy.

These Day-Ahead Forecasts shall be sent to Buyer’s on-duty Scheduling Coordinator. If Seller fails to provide Buyer with a Day-Ahead Forecast as required herein for any period, then for such unscheduled delivery period only Buyer shall rely on any Real-Time Forecast provided in accordance with Section 4.3(d) or the Monthly Delivery Forecast or Buyer’s best estimate based on information reasonably available to Buyer.
(d) Real-Time Forecasts. During the Delivery Term, Seller shall notify Buyer of any changes from the Day-Ahead Forecast of one (1) MW or more in (i) Available Generating Capacity or (ii) Storage Capacity or (iii) hourly expected Energy, in each case, 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 Available Generating Capacity, Storage Capacity, or hourly expected Energy 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 Real-Time Forecasts of Energy shall be provided by an Approved Forecast Vendor and shall contain information regarding the beginning date and time of the event resulting in the change in Available Generating Capacity, Storage Capacity, or hourly expected Energy, as applicable, the expected end date and time of such event, 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 will affect either the duration of such outage or the availability of the Facility during or after the end of such outage. These Real-Time Forecasts shall be communicated in a method acceptable to Buyer; provided that 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 4.3(d), then Seller shall send such communications by telephone and e-mail to Buyer. (e) Forced Facility Outages. Notwithstanding anything to the contrary herein, Seller shall promptly notify Buyer’s on-duty Scheduling Coordinator of Forced Facility Outages and Seller shall keep Buyer informed of any developments that will affect either the duration of the outage or the availability of the Facility during or after the end of the outage. (f) Forecasting Penalties. Subject to a Force Majeure Event, in the event Seller does not in a given hour provide the forecast required in Section 4.3(d) and Buyer incurs a loss or penalty resulting from its scheduling activities with respect to Facility Energy during such hour, Seller shall be responsible for a “Forecasting Penalty” for each such hour equal to the product of (A) the absolute difference (if any) between (i) the expected Energy for such hour (which, for the avoidance of doubt, assumes no Charging Energy or Discharging Energy in such hour) set forth in the Monthly Delivery Forecast, and (ii) the actual Energy produced by the Generating Facility (absent any Charging Energy and Discharging Energy), multiplied by (B) the absolute value of the 75 35
Real-Time Price in such hour. Settlement of Forecasting Penalties shall occur as set forth in Article 8 of this Agreement.
(g) CAISO Tariff Requirements. Subject to the limitations expressly set forth in Section 3.11, to the extent such obligations are applicable to the Facility, Seller will comply with all applicable obligations for Variable Energy Resources under the CAISO Tariff and the Eligible Intermittent Resource Protocol, including providing appropriate operational data and meteorological data, and will fully cooperate with Buyer, Buyer’s SC, and CAISO, in providing all data, information, and authorizations required thereunder.

4.4 Curtailment.
(a) General. Seller agrees to reduce the amount of Facility Energy produced by the Facility, 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, provided that Seller is not required to reduce such amount to the extent it is inconsistent with the limitations of the Facility set out in the Operating Restrictions.
(b) Buyer Curtailment. Buyer shall have the right to order Seller to curtail deliveries of Facility Energy through Buyer Curtailment Orders, provided that Buyer shall pay Seller for all Deemed Delivered Energy associated with a Buyer Curtailment Period at the Generation Rate.
(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 by the Facility 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 excess MWh and, (B) is the sum, for all Settlement Intervals with a Negative LMP during the Buyer Curtailment Period or Curtailment Period, of the absolute value of the product of such excess MWh in each Settlement Interval and the Negative LMP for such Settlement Interval, and (C) is any penalties assessed by the CAISO or other charges assessed by the CAISO resulting from Seller’s failure to comply with the Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order.
(d) Seller Equipment Required for Curtailment 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 and follow instructions, including an electronic signal conveying real time and intra-day instructions, to operate the Facility as directed by the Buyer 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 methodology used to transmit such instructions as it may change from time to time. If at any time during the Delivery Term Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with then-current methodologies, Seller shall take the steps necessary to become compliant as soon as commercially reasonably possible. Seller shall be liable pursuant to Section 4.4(c) for failure to comply with a Buyer Curtailment Order, Buyer Bid Curtailment or Curtailment Order, during 76 36
the time that Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with methodologies. For the avoidance of doubt, 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.

4.5 Charging Energy Management.
(a) Upon receipt of a valid Charging Notice, Seller shall take any and all action necessary to deliver the Charging Energy or Grid Energy to the Storage Facility in order to deliver the Storage Product in accordance with the terms of this Agreement, including maintenance, repair or replacement of equipment in Seller’s possession or control used to deliver the Charging Energy from the Generating Facility or Grid Energy to the Storage Facility. (b) Buyer will have the right 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 that Buyer’s right to issue Charging Notices is subject to the requirements and limitations set forth in this Agreement, including the Operating Restrictions and the provisions of Section 4.5(a). 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. Buyer shall have the right to charge the Storage Facility with Grid Energy rather than Energy from the Generating Facility. (c) Seller shall not charge the Storage Facility during the Term other than pursuant to a valid Charging Notice, or in connection with a Storage Capacity Test, or pursuant to a notice from CAISO, the PTO, Transmission Provider, or any other Governmental Authority, or as reasonably determined to be necessary for maintenance or repairs consistent with Prudent Operating Practice. If, during the Contract Term, Seller (a) charges the Storage Facility to a Stored Energy Level greater than the Stored Energy Level provided for in the Charging Notice or (b) charges the Storage Facility in violation of the first sentence of this Section 4.5(c), then (x) Seller shall be responsible for all energy costs associated with such charging of the Storage Facility, (y) Buyer shall not be required to pay for the charging of such energy (i.e., Charging Energy), and (z) Buyer shall be entitled to discharge such energy and entitled to all of the benefits (including Storage Product) associated with such discharge.
(d) 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 Procedures. 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.
(e) 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 Charging Notices and Discharging Notices applicable to such Settlement Interval, and Seller shall have no liability for violation of this Section 4.5 or any Charging Notice or Discharging Notice if and to the extent such violation is caused by Seller’s compliance with any Curtailment Order, Buyer Curtailment Order, 77 37
Buyer Bid Curtailment or other instruction or direction from a Governmental Authority or the PTO or the Transmission Provider. 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 Procedures.

4.6 Reduction in Delivery Obligation. For the avoidance of doubt, and in no way limiting Section ARTICLE 3 or Exhibit G:
(a) Facility Maintenance.
(i) By no later than sixty (60) days prior to Commercial Operation Date, and by October 15 of each Contract Year, Seller shall provide Buyer with a non-binding written projection of all Planned Outages for the succeeding calendar year (the “Planned Outage Projection”). The Planned Outage Projection shall include information concerning all projected Planned Outages during such period, including (A) the anticipated start and end dates of each Planned Outage; (B) a description of the maintenance or repair work to be performed during the Planned Outage; and (C) the anticipated MW of operational capacity of the Facility, if any, during the Planned Outage. Seller shall use commercially reasonable efforts to notify Buyer of any change in the Planned Outage Projection as soon as practicable. (ii) In addition to the requirements of Section 4.6(a)(i), Seller shall provide Buyer with Notice of each Planned Outage at least one hundred twenty (120) days prior to the occurrence of such Planned Outage, provided that (i) no Notice is required for scheduled maintenance or any changes or extensions thereto which do not result in a shutdown of more than three percent (3%) of the Installed Facility Generation Capacity and three percent (3%) of the Installed Storage Capacity, and (ii) Seller may adjust the dates of any scheduled maintenance with fewer than one hundred and twenty (120) days’ prior Notice to Buyer so long as (X) Seller makes its request more than five (5) Business Days prior to the expected start date of such scheduled maintenance and (Y) the requested alternate date is reasonably acceptable to Buyer. To the extent notice is not already required under the terms hereof, Seller shall notify Buyer as soon as practicable of any extensions to scheduled maintenance and expected end dates thereof. Subject to the foregoing, Seller shall be permitted to reduce deliveries of Product during any period of scheduled maintenance on the Facility, provided that, between June 1 and September 30, Seller shall not schedule non-emergency maintenance 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 period of June 1 to September 30, (iii) such outage is required in accordance with Prudent Operating Practices, (iv) the Parties agree otherwise in writing, or (v) such outage is required to perform a Storage Capacity Test or measurement of the Actual Round- Trip Efficiency, in each case, performed at Seller’s request (any of the scheduled maintenance permitted by the foregoing Section 4.6(a), a “Planned Outage”).
(b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage.
(c) System Emergencies and other Interconnection Events. Seller shall be permitted to reduce deliveries of Product during any period of System Emergency, Transmission 78 38
System Outage, Buyer Curtailment Period or upon Notice of a Curtailment Order pursuant to the terms of this Agreement, the Interconnection Agreement or applicable tariff. (d) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event.
(e) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2. (f) Buyer Default. Seller shall be permitted to reduce deliveries to buyer of Product during any period in which there is a Buyer Default or sell such Product to third parties during such Buyer Default.
(g) Wildfire Smoke-Caused Output Reduction. Seller shall be permitted to reduce deliveries due to a Wildfire Smoke-Caused Output Reduction. In order to qualify for this Section 4.6(f), Seller shall provide Notice to Buyer demonstrating that (i) CalFIRE has designated a wildfire incident; (ii) the National Weather Service, or similar weather monitoring service, has issued a map showing that the smoke from the identified wildfire spread to cover area over the Facility; and (iii) the air pollution sensor maintained by the North Coast Unified Air Quality Management District produces an output reading exceeding two hundred (200) (ug/m3) for PM

2.5 during the applicable time period. Such Notice shall calculate the amount of Wildfire Smoke-Caused Output Reduction by demonstrating the difference between (i) the expected generation during the affected time period based on actual weather and irradiation data and (ii) the actual generation during the affected time period.

4.7 Guaranteed Energy Production. During the Delivery Term, Seller shall be required to deliver to Buyer an amount of Adjusted Facility Energy, not including any Excess MWh, equal to no less than the Guaranteed Energy Production (as defined below) in any period of two (2) consecutive Contract Years during the Delivery Term (“Performance Measurement Period”). “Guaranteed Energy Production” means an amount of Adjusted Facility Energy, as measured in MWh, equal to percent ( %) of the total Expected Energy for the two (2) Contract Years constituting such Performance Measurement Period. Seller shall be excused from achieving the Guaranteed Energy Production during any Performance Measurement Period only to the extent of any Buyer Default, or other Buyer failure to perform directly prevents Seller from being able to deliver Facility Energy to the Delivery Point or due to Force Majeure Events, System Emergency, Curtailment Periods, or Buyer Curtailment Periods. For purposes of determining whether Seller has achieved the Guaranteed Energy Production, Seller shall be deemed to have delivered to Buyer (1) any Deemed Delivered Energy and (2) Energy in the amount it could reasonably have delivered to Buyer but was prevented from delivering to Buyer by reason of any Force Majeure Events, System Emergency, Transmission System Outage, Wildfire Smoke-Caused Output Reduction, or Curtailment Periods (“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 G; provided that Seller may, as an alternative, provide Replacement Product (as defined in Exhibit G) delivered to Buyer within ninety (90) days after the conclusion of the applicable Performance Measurement Period in the event Seller fails to deliver the Guaranteed Energy Production during such Contract Years (i) upon a schedule reasonably acceptable to Buyer and (ii) provided that such deliveries do not impose additional costs upon Buyer for which Seller refuses to provide 79 39
reimbursement.

4.8 Storage Availability.
(a) During the Delivery Term, the Storage Facility shall maintain a Monthly Storage Availability during each month of no less than ninety-five percent (95%) (the “Guaranteed Storage Availability”), which Monthly Storage Availability shall be calculated in accordance with Exhibit P.
(b) If, the Monthly Storage Availability during any month is less than the Guaranteed Storage Availability, then Buyer’s payment for the Storage Product shall be calculated by reference to the Availability Adjustment (as determined in accordance with Exhibit C).

4.9 Storage Capacity Tests.
(a) Prior to the Commercial Operation Date, Seller shall schedule and complete a Storage Capacity Test in accordance with Exhibit O. Thereafter, Seller and Buyer shall have the right to run retests of the Storage Capacity Test in accordance with Exhibit O. (b) Buyer shall have the right to send one or more representative(s) to witness all Storage Capacity Tests. Buyer shall be responsible for all costs, expenses and fees payable or reimbursable to its representative(s) witnessing any Storage Capacity Test. All other costs of any Storage Capacity Test shall be borne by Seller.
(c) Following each Storage Capacity Test, Seller shall submit a testing report in accordance with Exhibit O. If the actual capacity determined pursuant to a Storage Capacity Test is less than the then current Contracted Storage Capacity, then the actual capacity determined pursuant to a Storage Capacity Test shall become the new Contracted Storage Capacity at the beginning of the day following the completion of the test for all purposes under this Agreement.

If, pursuant to this Section 4.9, the Contracted Storage Capacity is changed to a level below the Storage Capacity Default Threshold, such occurrence shall be an Event of Default pursuant to Section 11.1(b)(viii).

4.10 WREGIS
. Seller shall, at its sole expense, but subject to Section 3.11, 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 Facility Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefit. Seller shall transfer the Renewable Energy Credits to Buyer. Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. Seller shall be deemed to have satisfied the warranty in Section (c)(g), provided that Seller fulfills its obligations under Sections (c) (a) through (g) below. In addition:
(a) Prior to the Commercial Operation Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which 80 40
Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using “Forward Certificate Transfers” (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the Facility with WREGIS, establishing and maintaining Seller’s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account.
(b) Seller shall cause Forward Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules. Since WREGIS Certificates will only be created for whole MWh amounts of Facility Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate.
(c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Facility Energy for such calendar month as evidenced by the Facility’s metered data.
(d) Due to the ninety (90) day delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 8.2, Buyer shall make an invoice payment for a given month in accordance with Section 8.2 before the WREGIS Certificates for such month are formally transferred to Buyer in accordance with the WREGIS Operating Rules and this Section (c). Notwithstanding this delay, Buyer shall have all right and title to all such WREGIS Certificates upon payment to Seller in accordance with Section 8.2. (e) A “WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Facility Energy for the same calendar month (“Deficient Month”) caused by an error or omission of Seller. If any WREGIS Certificate Deficit is caused, or the result of any action or inaction by Seller, then the amount of Adjusted Facility 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 Contract Year; provided that that such adjustment shall not apply to the extent that Seller either (x) resolves the WREGIS Certificate Deficit within ninety (90) days after the Deficient Month or (y) provides Replacement Product (as defined in Exhibit G) within ninety (90) days after the Deficient Month (i) upon a schedule reasonably acceptable to Buyer and (ii) provided that such deliveries do not impose additional costs upon Buyer for which Seller refuses to provide reimbursement. Without limiting Seller’s obligations under this Section (c), if a WREGIS Certificate Deficit is caused solely by an error or omission of WREGIS, the Parties shall cooperate in good faith to cause WREGIS to correct its error or omission.
(f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section (c) after the Effective Date, the Parties promptly shall modify this Section (c) 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 Facility Energy in the same calendar month. 81 41
(g) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in WREGIS will be taken prior to the first delivery under this Agreement.

ARTICLE 5: TAXES

5.1 Allocation of Taxes and Charges. Seller shall pay or cause to be paid all Taxes on or with respect to the Facility or on or with respect to the sale and making available of Product to Buyer, that are imposed on Product prior to its delivery to Buyer at the time and place contemplated under this Agreement. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and after its delivery to Buyer at the time and place contemplated under this Agreement (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees). If a Party is required to remit or pay Taxes that are the other Party’s responsibility hereunder, such Party shall promptly pay the Taxes due and then seek and receive reimbursement from the other for such Taxes. In the event any sale of Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation 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 that that neither Party shall be obligated to incur any financial or operational burden to reduce Taxes for which the other Party is responsible hereunder without receiving due compensation therefor from the other Party. All Product delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Product.

ARTICLE 6: MAINTENANCE OF THE 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.

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

6.3 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities and Interconnection Facilities, and Seller’s rights and obligations under the Interconnection Agreement, may be subject to certain shared facilities and/or co-tenancy agreements to be entered into among Seller, the Participating Transmission Owner, Seller’s Affiliates, and/or third parties pursuant to which certain Interconnection Facilities may be subject to joint ownership and shared maintenance 82 42
and operation arrangements. Any such agreement is permissible only if it (i) permits Seller to perform or satisfy, and does not purport to limit, its obligations hereunder and (ii) provides for separate metering of the Facility. Without limiting the foregoing, Buyer acknowledges that the Facility may share a transformer with a separate, but neighboring energy generating or storage plant.

6.4 Decommissioning Facility and Other Costs. Buyer shall not be responsible for any cost of decommissioning or demolition of the Facility or any environmental or other liability associated with the decommissioning or demolition of the Facility without regard to the timing or cause of the decommissioning or demolition. Seller agrees to indemnify, defend, and hold harmless, Buyer for any costs incurred by Buyer if and to the extent that Seller’s actions or inactions causes Buyer to become required, whether statutorily or otherwise, to bear the cost of any decommissioning or demolition of the Facility or any environmental or other liability associated therewith, including, but not limited to, any investigations, actions, suits, claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) associated with clean-up costs and defense costs. The indemnity requirements set forth in this Section shall survive the termination of this Agreement.

6.5 Facility Safety Plan.
(a) Prior to Delivery Term. At least ninety (90) days prior to the Commercial Operation Date, Seller shall submit for Buyer’s review a Facility Safety Plan, in a format reasonably acceptable to Buyer, which must demonstrate (A) Seller’s plans to comply with the Safety Requirements as of and following the Commercial Operation Date and (B) Seller’s consideration of the Facility Safety Plan items in Exhibit L. Seller shall submit an attestation with the Facility Safety Plan. In the event Buyer provides Notice to Seller that the Facility Safety Plan or attestation is not acceptable to Buyer, then Buyer will identify the inconsistencies with the Safety Requirements in such Notice and such Notice shall constitute the occurrence of a Remediation Event for purposes of Section 6.5(d).
(b) Delivery Term. Throughout the Delivery Term, Seller shall update the Safeguards and the Facility Safety Plan as required by Safety Requirements or as necessitated by a Safety Remediation Plan. Seller shall provide such updated Facility Safety Plan to Buyer within thirty (30) days of any such updates. Throughout the Delivery Term, Buyer shall have the right to request Seller to provide its Facility Safety Plan, or portions thereof, and demonstrate its compliance with the Safety Requirements within thirty (30) days of Buyer’s Notice. (c) Reporting Serious Incidents. Seller shall provide Notice of a Serious Incident to Buyer within five (5) Business Days of occurrence. The Notice of Serious Incident must include the time, date, and location of the incident, the circumstances surrounding the incident, the immediate response and recovery actions taken, and a description of any impacts of the Serious Incident. Seller shall cooperate and provide reasonable assistance to Buyer with any investigations and inquiries by Governmental Authorities that arise as a result of the Serious Incident.
(d) Remediation.
(i) Seller shall resolve any Remediation Event within the Remediation Period. Within ten (10) days of the date of the first occurrence of any Remediation Event, Seller 83 43
shall provide a Safety Remediation Plan to Buyer for Buyer’s review. (ii) If the Remediation Event is an occurrence of an Exigent Circumstance with respect to the Facility or the Site, then Seller shall not deliver and Buyer will not accept, Product from the Facility until such Remediation Event is resolved in accordance with this Section 6.5.
(iii) Following the occurrence of any Remediation Event, Seller shall also provide an attestation to Buyer for Buyer’s review and acceptance. Seller shall cooperate with Buyer in order for Seller to provide an attestation, in a form and level of detail that is reasonably acceptable to Buyer which incorporates information, analysis, investigations or documentation, as applicable or as reasonably requested by Buyer.
(iv) Seller’s failure to resolve a Remediation Event, other than due to the occurrence of a Force Majeure Event as described in this Section 6.5(d)(iv), by obtaining Buyer’s written acceptance of the attestation, which shall not be unreasonably withheld, within the Remediation Period is a material breach of this Agreement; provided that that Seller may request to extend the Remediation Period by up to ninety (90) days. Buyer shall not unreasonably withhold approval of such extension. Seller may request an additional extension of the Remediation Period of up to ninety (90) days, which Buyer may approve in its reasonable discretion. Except as the result of a Force Majeure Event, the Remediation Period will not continue for more than two-hundred and seventy (270) days from the first occurrence of the Remediation Event. The number of days of the Buyer Remediation Review Period shall not be included in calculating the number of days of the Remediation Period. The Commercial Operation Date shall not occur during a Remediation Period. If Seller provides Notice to Buyer, in compliance with Section 10.3, demonstrating that a Remediation Event is a Force Majeure Event, and that Seller’s ability to resolve the Remediation Event is prevented by the Force Majeure Event, then the Remediation Period shall be extended on a day-for-day basis until Seller is no longer prevented from resolving the Remediation Event by the Force Majeure Event. This Section does not limit, reduce, or otherwise modify any rights of remedies of Buyer under any other provisions of this Agreement.

ARTICLE 7: METERING

7.1 Metering. Seller shall measure the amount of Facility Energy using the Facility Meter, which will be operated pursuant to applicable CAISO-approved calculation methodologies and subject to adjustment in accordance with applicable CAISO meter requirements, including to account for Electrical Losses and Station Use. The Facility Meter will be located on the high-voltage side of the transformer that serves the Facility (subject to Section 6.3). Seller shall measure the Charging Energy, Grid Energy, and the Discharging Energy using the Storage Facility Meters. To the extent not inconsistent with applicable CAISO-approved calculation methodologies or the requirements of this Agreement, all meters will be operated in accordance with Prudent Operating Practices. All meters will be maintained at Seller’s cost. All meters shall be programmed to adjust for all losses from such meter to the Delivery Point in a manner subject to Buyer’s prior written approval, not to be unreasonably withheld. Metering will be consistent with the Metering Diagram set forth as Exhibit R. The Facility Meter shall be kept under seal, such seals to be broken only when the meters are to be tested, adjusted, modified or relocated. In the event Seller breaks a seal, Seller shall notify Buyer as soon as practicable. In addition, Seller hereby agrees to provide all meter data to Buyer in a form 84 44
reasonably acceptable to Buyer, and consents to Buyer obtaining from CAISO the CAISO meter data directly relating to the Facility and all inspection, testing and calibration data and reports. Seller and Buyer, or Buyer’s Scheduling Coordinator, 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 Facility.

7.2 Meter Verification. Annually, if Seller has reason to believe there may be a meter malfunction, or upon Buyer’s reasonable request, Seller shall test the meter. The tests shall be conducted by independent third parties qualified to conduct such tests. Buyer shall be notified seven (7) days in advance of such tests and have a right to be present during such tests. If a meter is inaccurate, then it shall be promptly repaired or replaced.

ARTICLE 8: INVOICING AND PAYMENT; CREDIT

8.1 Invoicing. Seller shall make good faith efforts to deliver an invoice to Buyer for Product no sooner than fifteen (15) Business Days after the end of the prior monthly billing period.

Each invoice shall reflect (a) records of metered data, including CAISO metering and transaction data sufficient to document and verify the amount of Product delivered by the Facility for any Settlement Period during the preceding month, including the amount of Energy Generation produced by the Generating Facility as read by the Facility Meter, the amount of Charging Energy delivered to the Storage Facility, the amount of Grid Energy delivered to the Storage Facility, and the amount of Discharging Energy delivered from the Storage Facility, in each case, as read by the Storage Facility Meter, the amount of Replacement RA and Replacement Product delivered to Buyer (if any), the calculation of Adjusted Facility Energy, Deemed Delivered Energy and Adjusted Energy Production, the LMP prices at the Delivery Point for each Settlement Period, and the Contract Price applicable to such Product in accordance with Exhibit C; (b) access to any records, including invoices or settlement data from the CAISO, necessary to verify the accuracy of any amount; and (c) be in a format reasonably 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 thirty (30) 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. 85 45

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

8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Section 8.5 or an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO; provided that that there shall be no adjustments to prior invoices based upon meter inaccuracies. If the required adjustment is in favor of Buyer, Buyer’s next monthly payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller, Seller shall add the adjustment amount to Buyer’s next monthly invoice. Adjustments in favor of either Buyer or Seller shall bear interest, until settled in full, in accordance with Section 8.2, accruing from the date on which the adjusted amount should have been due.

8.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any arithmetic or computational error within twelve (12) months of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Inadvertent overpayments shall be returned via adjustments in accordance with Section 8.4. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 8.5 within twelve (12) months after the invoice is rendered or subsequently adjusted, except to the extent any misinformation was from a third party not affiliated with any Party and such third party corrects its information after the twelve-month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.

8.6 Netting of Payments. The Parties hereby agree that they shall discharge mutual debts and payment obligations due and owing to each other on the same date through netting, in which case all amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement or otherwise arising out of this Agreement, including any related damages calculated pursuant to Exhibits B, G, and P, interest, and payments or credits, shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it.

8.7 Seller’s Development Security. To secure its obligations under this Agreement, Seller shall deliver Development Security to Buyer within thirty (30) days of the Effective Date. Seller shall maintain the Development Security in full force and effect and Seller shall within ten (10) Business Days after any draw thereon 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 or a Termination Payment. Upon the earlier of (i) 86 46
Seller’s delivery of the Performance Security, or (ii) sixty (60) days after termination of this Agreement, Buyer shall return the Development Security to Seller, less the amounts drawn in accordance with this Agreement. If the Development Security is a Letter of Credit and the issuer of such Letter of Credit (i) fails to maintain the minimum Credit Rating specified in the definition of Letter of Credit, (ii) indicates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to the Commercial Operation Date, or (iii) fails to honor Buyer’s properly documented request to draw on such Letter of Credit by such issuer, Seller shall have ten (10) Business Days to either post cash or deliver a substitute Letter of Credit that meets the requirements set forth in the definition of Development Security.

8.8 Seller’s Performance Security. To secure its obligations under this Agreement, Seller shall deliver Performance Security to Buyer on or before the Commercial Operation Date. If the Performance Security is not in the form of cash or Letter of Credit, it shall be substantially in the form set forth in Exhibit K. Seller shall maintain the Performance Security in full force and effect, subject to any draws made by Buyer in accordance with this Agreement, until the following have occurred: (A) the Delivery Term has expired or terminated early; and (B) all payment obligations of the Seller then due and payable 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 both events, Buyer shall promptly return to Seller the unused portion of the Performance Security. If the Performance Security is a Letter of Credit and the issuer of such Letter of Credit (i) fails to maintain the minimum Credit Rating set forth in the definition of Letter of Credit, (ii) indicates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to the Commercial Operation Date, or (iii) fails to honor Buyer’s properly documented request to draw on such Letter of Credit by such issuer, Seller shall have ten (10) Business Days to either post cash or deliver a substitute Letter of Credit that meets the requirements set forth in the definition of Performance Security.

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):
(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;
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(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.

8.10 Seller Financial Information. If requested by Buyer, Seller shall deliver to Buyer (i) within one hundred twenty (120) days following the end of each of Seller’s fiscal years, a copy of Seller’s annual report containing unaudited consolidated financial statements for such fiscal year (or audited consolidated financial statements for such fiscal year if otherwise available) and (ii) within sixty (60) days after the end of each of its first three fiscal quarters of each fiscal year, a copy of Seller’s quarterly report containing unaudited consolidated financial statements for such fiscal quarter.

In all cases the statements shall be for the most recent accounting period and shall be prepared in accordance with Generally Accepted Accounting Principles; provided, however, that should any such statements not be available on a timely basis due to a delay in preparation or certification, such delay shall not be an Event of Default so long as Seller diligently pursues the preparation, certification and delivery of the statements.

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 on Exhibit N 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, five (5) 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 if concurrently with the transmittal of such electronic communication the sending Party provides a copy of such electronic Notice by hand delivery or express courier, at the time indicated by the time stamp upon delivery; 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. 88 48
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 the exercise of reasonable efforts, cannot be avoided by and is beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance. Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; epidemic; landslide; mudslide; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; or strikes or other labor difficulties caused or suffered by a Party or any third party except as set forth below. Force Majeure may include delays in performance or inability to perform or comply with the terms and conditions of this Agreement due to delays in obtaining necessary equipment, labor or materials or other issues caused by or attributable to pandemics or epidemics, COVID-19, if the elements of Force Majeure defined in this Section 10.1(a) (other than the requirement that the event or circumstance was not anticipated as of the date the Agreement was agreed to) have been satisfied; provided that that the general existence of COVID-19 shall not be sufficient to prove the existence of a Force Majeure absent a showing of other facts and circumstances which in the aggregate establish that a Force Majeure as defined in the first sentence hereof (other than the requirement that the event or circumstance was not anticipated as of the date the Agreement was agreed to) has occurred. (b) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions that render a Party’s performance of this Agreement at the Contract Price unprofitable or otherwise uneconomic (including Buyer’s ability to buy electric energy at a lower price, or Seller’s ability to sell the Product, or any component thereof, at a higher price, than under this Agreement); (ii) Seller’s inability to obtain permits or approvals of any type for the construction, operation, or maintenance of the Facility, except to the extent such inability is caused by a Force Majeure Event; (iii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above; (iv) a Curtailment Order; (v) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility except to the extent such inability is caused by a Force Majeure Event; (vi) a strike, work stoppage or labor dispute limited only to any one or more of Seller, Seller’s Affiliates, Seller’s contractors, their subcontractors thereof or any other third party employed by Seller to work on the Facility; (vii) any equipment failure except if such equipment failure is caused by a Force Majeure Event; or (viii) a Wildfire Smoke-Caused Output Reduction.

10.2 No Liability If a Force Majeure Event Occurs. Neither Seller nor Buyer shall be liable to the other Party in the event it is prevented from performing its obligations hereunder in whole or in part due to a Force Majeure Event. The Party rendered unable to fulfill any obligation by 89 49
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 that that 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 the impacted Party has claimed and received relief from performance of its obligations for a consecutive twelve (12) month period, then the non-claiming Party may terminate this Agreement upon 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 Party, save and except for those obligations specified in Section ARTICLE 1(b), and Buyer shall promptly return to Seller any Performance Security then held by Buyer, less any amounts drawn in accordance with this Agreement.

ARTICLE 11: DEFAULTS; REMEDIES; TERMINATION

11.1 Events of Default. An “Event of Default” shall mean, (a) with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following:
(i) the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof;
(ii) any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional thirty (30) days, if the Defaulting Party provides Notice demonstrating that the Defaulting Party is unable to remedy such default within such initial thirty (30)-day period despite exercising commercially reasonable efforts;
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(iii) the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default set forth in this Section ARTICLE 11; and except for (1) failure to achieve Full Capacity Deliverability Status by the Expected Full Capacity Deliverability Status Date or the RA Guarantee Date, the exclusive remedies for which are set forth in Section 3.8, (2) failures related to the Adjusted Energy Production that do not trigger the provisions of Section ARTICLE 11(b)(iii), the exclusive remedies for which are set forth in Section 4.7; and (3) failures related to the Monthly Storage Availability that do not trigger the provisions of Section ARTICLE 11(b)(iv), the exclusive remedies for which are set forth in Section 4.8) and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite exercising commercially reasonable efforts); (iv) such Party becomes Bankrupt;
(v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Section 14.2 or 14.3, as appropriate; 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 electric energy to the Delivery Point for sale under this Agreement that was not generated or discharged by the Facility, except for qualifying Replacement Product;
(ii) the failure by Seller to achieve Commercial Operation on or prior to the day that is one hundred eighty (180) calendar days after the Guaranteed Commercial Operation Date, as such date may be extended pursuant to Exhibit B; (iii) if, in any single Contract Year, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) for such period is less than sixty-five percent (65%) of the Expected Energy amount for such period;
(iv) if, in any two consecutive Contract Years, the Monthly Storage Availability is not, on average, at least seventy-five percent (75%); (v) failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 after Notice and expiration of the cure periods set forth therein, 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;
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(vi) 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 ten (10) 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 BBB by S&P or Baa2 by Moody’s; (B) the issuer of such Letter of Credit becomes Bankrupt; (C) the issuer of the outstanding Letter of Credit shall fail to comply with or perform its obligations under such Letter of Credit and such failure shall be continuing after the lapse of any applicable grace period permitted under such Letter of Credit; (D) the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; (E) the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit; (F) such Letter of Credit fails or ceases to be in full force and effect at any time; or
(G) Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than sixty (60) days prior to the expiration of the outstanding Letter of Credit.
vii. failure by Seller to maintain a Contracted Storage Capacity that is equal to or exceeds the Storage Capacity Default Threshold.

11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (“Non-Defaulting Party”) shall have the following rights:
(a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“Early Termination Date”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date;
(b) to accelerate all amounts owing between the Parties, and to collect as liquidated damages (i) the Damage Payment (in the case of an Event of Default by Seller occurring before the Commercial Operation Date), or (ii) the Termination Payment calculated in accordance with Section 11.3 below (in the case of any other Event of Default by either Party); 92 52
(c) to withhold any payments due to the Defaulting Party under this Agreement; (d) to suspend performance; 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 that payment by the Defaulting Party of the Damage Payment or Termination Payment, as applicable, shall constitute liquidated damages and the Non-Defaulting Party’s sole and exclusive remedy for any Terminated Transaction and the Event of Default related thereto.

11.3 Damage Payment; Termination Payment. If an Early Termination Date has been declared, the Non-Defaulting Party shall calculate, in a commercially reasonable manner, the Damage Payment or the Termination Payment, as applicable, in accordance with this Section 11.3.

Damage Payment Prior to Commercial Operation Date. If the Early Termination Date occurs before the Commercial Operation Date, and then the Damage Payment shall be calculated as follows.

If Seller is the Defaulting Party, then the Damage Payment shall be equal to the entire Development Security amount and 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, and any amount of Development Security that Seller has not yet posted with Buyer shall be immediately due and payable by Seller to Buyer. The Parties agree that Buyer’s damages in the event of an Early Termination Date prior to the Commercial Operation Date 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.

Damage Payment After Commercial Operation Date. The Termination Payment (“Termination Payment”) for a Terminated Transaction occurring after the Commercial Operation Date shall be the aggregate of all Settlement Amounts plus any or all other amounts due to or from the Non-Defaulting Party (as of the Early Termination Date) netted into a single amount. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. Third parties supplying information for purposes of the calculation of Gains or Losses may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information. The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (a) 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, (b) the Damage Payment or Termination Payment described in Section 11.2 or this Section 11.3 (as applicable) is a reasonable and appropriate approximation of such damages, and (c) the Damage Payment or Termination Payment described in Section 11.2 or this Section 11.3 (as applicable) 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.
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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 Damage Payment or 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 15.

11.6 Rights And Remedies Are Cumulative. Except as set forth in Section 4.8(b) and 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.

11.7 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 INCLUDED AS

PART OF AN EXPRESS REMEDY OR MEASURE OF DAMAGES HEREIN, OR PART OF AN ARTICLE 16 INDEMNITY CLAIM, OR INCLUDED IN A LIQUIDATED DAMAGES

CALCULATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ITS

INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR

CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE OR LOST

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

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

FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED.

THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL

LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO SELLER’S LIMITATION OF LIABILITY AND THE PARTIES’ WAIVER OF CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE

REMEDIES FOR BREACH OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE.
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FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE

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

MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO

REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY.

TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING UNDER SECTIONS 3.8, 4.7, 4.8, 11.2 AND 11.3, AND AS

PROVIDED IN EXHIBIT B, EXHIBIT G, AND EXHIBIT P, THE PARTIES ACKNOWLEDGE

THAT DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT

OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT, AND THAT

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

LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES

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

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

THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE

EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE

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

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

ARTICLE 13: REPRESENTATIONS AND WARRANTIES; AUTHORITY

13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and is qualified to conduct business in each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Seller.
(b) Seller has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller’s performance under this Agreement. The execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary limited liability company action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller. (c) The execution and delivery of this Agreement, consummation of the 95 55
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) Seller is responsible for obtaining all permits necessary to construct and operate the Facility and Seller or an Affiliate will be the applicant on any CEQA documents.

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.
(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 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’ 96 56
rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) The law of the State of California authorizes suits based on contract against Buyer, and Buyer agrees that it will not assert any immunity on the grounds of sovereignty or similar grounds (including sovereign immunity from suit or liability) that Buyer may have as a governmental entity against such lawsuits filed in state court relating to Buyer’s contractual obligations under this Agreement. Notwithstanding the foregoing, any claims against Buyer shall be filed in accordance with the California Government Claims Act (Cal. Gov’t Code § 810 et. seq.). Buyer does not waive any immunities or defenses it may have to lawsuits relating to allegations of injuries arising out of Buyer’s acts or omissions under this Agreement. (f) Buyer is a “local public entity” as defined in Section 6500 of the Government Code of the State of California, and as such any claims against Buyer shall be filed in accordance with the California Government Claims Act (Cal. Gov’t Code § 810 et. seq.). .

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 in material compliance with any Law.

ARTICLE 14: ASSIGNMENT

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

14.2 Collateral Assignment. Subject to the provisions of this Section 14.2, Seller has the right to assign this Agreement as collateral for any financing or refinancing of the Facility.

In connection with any financing or refinancing of the Facility by Seller, Buyer shall in good faith 97 57
work with Seller and Lender to agree upon a consent to collateral assignment of this Agreement (“Collateral Assignment Agreement”). The Collateral Assignment Agreement must be in form and substance agreed to by Buyer, Seller and Lender, with such agreement not to be unreasonably withheld, and must include, among others, the following provisions:
(a) Buyer shall give Notice of an Event of Default by Seller to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, before exercising its right to terminate this Agreement as a result of such Event of Default; provided that such notice shall be provided to Lender at the time such notice is provided to Seller and any additional cure period of Lender agreed to in the Collateral Assignment Agreement shall not commence until Lender has received notice of such Event of Default;
(b) Lender will have the right to cure an Event of Default on behalf of Seller, only if Lender sends a written notice to Buyer before the later of (i) the expiration of any cure period, and (ii) five (5) Business Days after Lender’s receipt of notice of such Event of Default from Buyer, indicating Lender’s intention to cure. Lender must remedy or cure the Event of Default within the cure period under this Agreement and any additional cure periods agreed in the Collateral Assignment Agreement up to a maximum of ninety (90) days (or one hundred eighty (180) days in the event of a bankruptcy of Seller or any foreclosure or similar proceeding if required by Lender to cure any Event of Default);
(c) Lender will have the right to consent before any termination of this Agreement which does not arise out of an Event of Default; (d) Lender will receive prior Notice of and the right to approve material amendments to this Agreement, which approval will not be unreasonably withheld, delayed or conditioned;
(e) If Lender, 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), Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided that, before such assumption, if Buyer advises Lender that Buyer will require that Lender cure (or cause to be cured) any Event of Default existing as of the possession date in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Event of Default, then Lender at its option, and in its sole discretion, may elect to either:
(i) Cause such Event of Default to be cured, or
(ii) Not assume this Agreement;
(g) If Lender elects to sell or transfer the Facility (after Lender directly or indirectly, takes possession of, or title to the Facility), or sale of the Facility occurs through the actions of Lender (for example, a foreclosure sale where a third party is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer. Such sale or transfer may be made only to an entity that meets the definition of Permitted Transferee; and 98 58
(h) Subject to Lender’s cure of any Events of Defaults under the Agreement in accordance with Section 14.2(e), if (i) this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith Lender shall have the right to elect within forty-five (45) days after such rejection or termination, to enter into a replacement agreement with Buyer having substantially the same terms as this Agreement for the remaining term thereof, or (ii) if Lender 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) after any such rejection or termination of this Agreement, promptly after Buyer’s written request, Lender must itself or must cause its designee to promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the remaining term thereof, provided that in the event a designee of Lender, 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), such designee shall be approved by Buyer, not to be unreasonably withheld.

14.3 Permitted Assignment by Seller. Seller may, without the prior written consent of Buyer, transfer or assign this Agreement to: (a) an Affiliate of Seller or (b) any Person succeeding to all or substantially all of the assets of Seller (whether voluntary or by operation of law); if, and only if:
(i) the assignee is a Permitted Transferee;
(ii) Seller has given Buyer Notice at least thirty (30) Business Days before the date of such proposed assignment; and
(iii) Seller has provided Buyer a written agreement signed by the Person to which Seller wishes to assign its interests that (x) provides that such Person will assume all of Seller’s obligations and liabilities under this Agreement upon such transfer or assignment and (y) certifies that such Person meets the definition of a Permitted Transferee.

Except as provided in the preceding sentence, any assignment by Seller, its successors or assigns under this Section 14.3 shall be of no force and effect unless and until such Notice and agreement by the assignee have been received.

ARTICLE 15: DISPUTE RESOLUTION

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

15.2 Dispute Resolution. In the event of any dispute arising under 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.
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15.3 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.

ARTICLE 16: INDEMNIFICATION

16.1 Indemnification.
(a) To the full extent permitted by law, Seller shall indemnify, defend and hold harmless Buyer, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including legal counsel fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, and/or caused in whole or in part by any negligent or wrongful act, error, or omission of Seller or by any individual or agency for which Seller is legally liable, including officers, agents, employees or subcontractors of Seller.
(b) Buyer shall defend, indemnify and hold harmless the Seller, its officers, agents, and representatives from and against any loss, injury, damage, claim, lawsuit, liability, expense, or damages of any kind or nature arising out of or in connection with (i) Buyer Scheduling Coordinator’s performance as Scheduling Coordinator for the Facility, or (ii) the negligent or willful misconduct of such Buyer or by any individual or agency for which such Buyer is legally liable, including officers, agents, or employees of Buyer. (c) Nothing in this Section 16.1 shall enlarge or relieve Seller or any Buyer of any liability to the other for any breach of this Agreement. No Party shall be indemnified for any damages resulting from its gross negligence, intentional acts, or willful misconduct or for the gross negligence, intentional acts, or willful misconduct of its Affiliates, directors, officers, employees and agents. These indemnity provisions shall not be construed to relieve any insurer of its obligation to pay claims consistent with the provisions of a valid insurance policy.

16.2 Claims. Promptly after receipt by a Party of any claim or Notice of the commencement of any action, administrative, or legal proceeding, or investigation as to which the indemnity provided for in this Article 16 may apply, the Indemnified Party shall notify the Indemnifying Party in writing of such fact. The Indemnifying Party shall assume the defense thereof with counsel designated by such Party and satisfactory to the Indemnified Party, provided that that if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to the Indemnifying Party, the Indemnified Party shall have the right to select and be represented by separate counsel, at the Indemnifying Party’s expense, unless a liability insurer is willing to pay such costs. If the Indemnifying Party fails to assume the defense of a claim meriting indemnification, the Indemnified Party may at the expense of the Indemnifying Party contest, settle, or pay such claim, provided that settlement or full payment of any such claim may be made only following consent of the Indemnifying Party or, absent such consent, written opinion of the Indemnified Party’s counsel that such claim is 100
60 meritorious or warrants settlement. Except as otherwise provided in this Article 16, in the event that a Party is obligated to indemnify and hold the other Party and its successors and assigns harmless under this Article 16, the amount owing to the Indemnified Party will be the amount of the Indemnified Party’s damages net of any insurance proceeds received by the Indemnified Party following a reasonable effort by the Indemnified Party to obtain such insurance proceeds.

16.3 Environmental Indemnity. Seller shall indemnify, defend and hold harmless Buyer, and any and all of its employees, officials and agents from and against any third party liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including legal counsel fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of or are in any way attributable to, and or caused by (a) any Release on the Site caused by Seller or Seller’s contractors or service providers or (b) any claim or legal proceeding pursuant to Environmental Law by any third party with regard to any violation or alleged violation of any Environmental Laws by Seller or the Seller’s contractors or service providers. For the purposes hereof, (A) “Release” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing, or dumping into the environment of Hazardous Materials introduced to the Facility by Seller or Seller’s contractors or service providers in violation of any Environmental Laws that are required to be investigated, remediated or otherwise cleaned up by a Governmental Authority; and (B) “Environmental Laws” shall mean all federal, state, and local laws, statutes, ordinances, and regulations now or hereafter in effect, and in each case as amended, and any binding judicial or administrative interpretation thereof relating to the protection of human health, safety, the environment and natural resources (including ambient air, surface water, groundwater, wetlands, land, surface or subsurface strata, wildlife, aquatic species and vegetation), including laws and regulations relating to Releases of Hazardous Materials or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials.

ARTICLE 17: INSURANCE

17.1 Insurance.
(a) General Liability. Seller shall maintain, or cause to be maintained at its sole expense, (i) commercial general liability insurance, including products and completed operations and personal injury insurance, in a minimum amount of One Million Dollars ($1,000,000) per occurrence, and an annual aggregate of not less than Two Million Dollars ($2,000,000), endorsed to provide contractual liability in said amount, specifically covering Seller’s obligations under this Agreement and including Buyer as an additional insured; and (ii) an umbrella insurance policy in a minimum limit of liability of Five Million Dollars ($5,000,000). Defense costs shall be provided as an additional benefit and not included within the limits of liability. Such insurance shall contain standard cross-liability and severability of interest provisions. (b) Employer’s Liability Insurance. Employers’ Liability insurance shall not be less than One Million Dollars ($1,000,000.00) for injury or death occurring as a result of each accident. With regard to bodily injury by disease, the One Million Dollar ($1,000,000) policy limit will apply to each employee.
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61 (c) Workers Compensation Insurance. Seller, if it has employees, shall also maintain at all times during the Contract Term workers’ compensation and employers’ liability insurance coverage in accordance with applicable requirements of Law. (d) Business Auto Insurance. Seller shall maintain at all times during the Contract Term business auto insurance for bodily injury and property damage with limits of One Million Dollars ($1,000,000) per occurrence. Such insurance shall cover liability arising out of Seller’s use of all owned (if any), non-owned and hired vehicles, including trailers or semi-trailers in the performance of the Agreement.
(e) Construction All-Risk Insurance. Seller shall maintain or cause to be maintained during the construction of the Facility prior to the Commercial Operation Date, construction all-risk form property insurance covering the Facility during such construction periods, and naming the Seller (and Lender if any) as the loss payee. (f) Seller’s Pollution Liability.
(i) If the scope of Work involves areas of known pollutants or contaminants, pollution liability coverage will be required to cover bodily injury, property damage, including clean-up costs and defense costs resulting from sudden, and accidental conditions, including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, hydrocarbons, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water. (ii) The limit will not be less than two million dollars ($2,000,000.00) each occurrence for bodily injury and property damage.
(iii) The policy will endorse Redwood Coast Energy Authority as an additional insured.
(g) Subcontractor Insurance. Seller shall require all of its subcontractors to carry: (i) comprehensive general liability insurance with a combined single limit of coverage not less than One Million Dollars ($1,000,000); (ii) workers’ compensation insurance and employers’ liability coverage in accordance with applicable requirements of Law; and (iii) business auto insurance for bodily injury and property damage with limits of one million dollars ($1,000,000) per occurrence. All subcontractors shall include Seller as an additional insured to insurance carried pursuant to clauses (f)(i) and (f)(iii). All subcontractors shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section ARTICLE 17(g).
(h) Evidence of Insurance. Commencing with the Construction Start Date 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. 102
62 (i) Failure to Comply with Insurance Requirements. If Seller fails to comply with any of the provisions of this Article 17, Seller, among other things and without restricting Buyer’s remedies under the Law or otherwise, shall, at its own cost and expense, act as an insurer and provide insurance in accordance with the terms and conditions above. With respect to the required general liability, umbrella liability and commercial automobile liability insurance, Seller shall provide a current, full and complete defense to Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, employees, assigns, and successors in interest, in response to a third-party claim in the same manner that an insurer would have, had the insurance been maintained in accordance with the terms and conditions set forth above. In addition, alleged violations of the provisions of this Article 17 means that Seller has the initial burden of proof regarding any legal justification for refusing or withholding coverage and Seller shall face the same liability and damages as an insurer for wrongfully refusing or withholding coverage in accordance with the laws of California.

ARTICLE 18: CONFIDENTIAL INFORMATION

18.1 Confidential Information.
(a) Each Party agrees, and shall use reasonable efforts to cause its parent, subsidiary and Affiliates, and its and their respective directors, officers, employees and representatives, as a condition to receiving confidential information hereunder, to keep confidential, except as required by Law, including without limitation the California Public Records Act (Government Code §§ 6250 et seq, “CPRA”), all documents, data (including operating data provided in connection with the scheduling of energy or otherwise pursuant to this Agreement), drawings, studies, projections, plans and other written information that relate to economic benefits to, or amounts payable by, any Party under this Agreement, and with respect to documents that are clearly marked “Confidential” at the time a Party shares such information with the other Party (“Confidential Information”). The provisions of this Section 18.1 shall survive and shall continue to be binding upon the Parties for a period of two (2) years following the date of termination or expiration of this Agreement. Notwithstanding the foregoing, information shall not be considered Confidential Information if such information (i) is disclosed with the prior written consent of the originating Party, (ii) was in the public domain prior to disclosure or is or becomes publicly known or available other than through the action of the receiving Party in violation of this Agreement, (iii) was lawfully in a Party’s possession or acquired by a Party outside of this Agreement, which acquisition was not known by the receiving Party to be in breach of any confidentiality obligation, or (iv) is developed independently by a Party based solely on information that is not considered confidential under this Agreement.
(b) Subject to the CPRA, either Party may, without violating this Section 18.1, disclose matters that are made confidential by this Agreement:
(i) to its counsel, accountants, auditors, advisors, other professional consultants, credit rating agencies, actual or prospective, co-owners, investors, purchasers, lenders, underwriters, contractors, suppliers, and others involved in construction, operation, and financing transactions and arrangements for a Party or its subsidiaries or Affiliates; 103
63 (ii) to governmental officials and parties involved in any proceeding in which a Party is seeking a Permit, certificate, or other regulatory approval or order necessary or appropriate to carry out this Agreement; and
(iii) to governmental officials or the public as required by any law, regulation, order, rule, order, ruling or other requirement of Law, including oral questions, discovery requests, subpoenas, civil investigations or similar processes and laws or regulations requiring disclosure of financial information, information material to financial matters, and filing of financial reports.
(c) If a Party is requested or required, pursuant to any applicable Law, regulation, order, rule, or ruling, discovery request, subpoena, civil investigation or similar process to disclose any of the Confidential Information, such Party shall provide prompt written notice (to the extent practical and permissible) to the other Party of such request or requirement so that at such other Party’s expense, such other Party can seek a protective order or other appropriate remedy concerning such disclosure.
(d) Notwithstanding the foregoing or any other provision of this Agreement, Seller acknowledges that Buyer is subject to disclosure as required by CPRA. Confidential Information of Seller provided to Buyer pursuant to this Agreement shall become the property of Buyer, and Seller acknowledges that Buyer shall not be in breach of this Agreement or have any liability whatsoever under this Agreement or otherwise for any claims or causes of action whatsoever resulting from or arising out of Buyer copying or releasing to a third party any of the Confidential Information of Seller pursuant to CPRA; provided that Buyer shall (i) provide notice to Seller prior to any such disclosure in accordance with Section 18.1.(c), (ii) endeavor, in good faith, not to disclose any of Seller’s “trade secrets” as consistent with the CPRA, and (iii) support, to the extent in compliance with Buyer’s rights and obligations under applicable laws, Seller in its efforts to obtain a protective order or other appropriate remedy with respect to the disclosure of operating data from the Facility or any engineering drawings, project plans, technical specifications or other similar information regarding the Facility. (e) Notwithstanding the foregoing or any other provision of this Agreement, Buyer may record, register, deliver and file all such notices, statements, instruments, and other documents as may be necessary or advisable to render fully valid, perfected and enforceable under all applicable law the credit support contemplated by this Agreement, and the rights, liens and priorities of Buyer with respect to such credit support. (f) If Buyer receives a CPRA request for Confidential Information of Seller, and Buyer determines that such Confidential Information is subject to disclosure under CPRA, then Buyer shall notify Seller of the request and its intent to disclose the documents. Buyer, as required by CPRA, shall release such documents unless Seller timely obtains a court order prohibiting such release. If Seller, at its sole expense, chooses to seek a court order prohibiting the release of Confidential Information pursuant to a CPRA request, then Seller undertakes and agrees to defend, indemnify and hold harmless Buyer and the indemnitees from and against all suits, claims, and causes of action brought against Buyer or any indemnitees for Buyer’s refusal to disclose Confidential Information of Seller to any person making a request pursuant to CPRA.

Seller’s indemnity obligations shall include, but are not limited to, all actual costs incurred by 104
64 Buyer and any indemnitees, and specifically including costs of experts and consultants, as well as all damages or liability of any nature whatsoever arising out of any suits, claims, and causes of action brought against Buyer or any indemnitees, through and including any appellate proceedings. Seller’s obligations to Buyer and all indemnitees under this indemnification provision shall be due and payable on a Monthly, on-going basis within thirty (30) days after each submission to Seller of Buyer’ invoices for all fees and costs incurred by Buyer and all indemnitees, as well as all damages or liability of any nature. (g) Each Party acknowledges that any disclosure or misappropriation of Confidential Information by such Party in violation of this Agreement could cause the other Party or their Affiliates irreparable harm, the amount of which may be extremely difficult to estimate, thus making any remedy at law or in damages inadequate. Therefore, each Party agrees that the non-breaching Party shall have the right to apply to any court of competent jurisdiction for a restraining order or an injunction restraining or enjoining any breach or threatened breach of this Agreement and for any other equitable relief that such non-breaching Party deems appropriate.

This right shall be in addition to any other remedy available to the Parties in law or equity, subject to the limitations set forth in Article 12.

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

ARTICLE 19: MISCELLANEOUS

19.1 Entire Agreement; Integration; Exhibits. This Agreement, together with the Cover Sheet and Exhibits attached hereto constitutes the entire agreement and understanding between Seller and Buyer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by reference. The headings used herein are for convenience and reference purposes only. 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.

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

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

19.4 No Agency, Partnership, Joint Venture or Lease. Seller and the agents and employees of Seller shall, in the performance of this Agreement, act in an independent capacity and 105
65 not as officers or employees or agents of Buyer. Under this Agreement, Seller and Buyer intend to act as energy seller and energy purchaser, respectively, and do not intend to be treated as, and shall not act as, partners in, co-venturers in or lessor/lessee with respect to the Facility or any business related to the Facility. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement) and/or, to the extent set forth herein, any Lender and/or Indemnified Party.

19.5 Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal or unenforceable provision(s) with legally acceptable clauses which correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as a whole.

19.6 Mobile-Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms or conditions of service of this Agreement proposed by a Party shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable law.

19.7 Service Contract. The Parties intend this Agreement to be considered as a service contract for the purposes of Section 7701(e) of the United States Internal Revenue Code of 1986, as amended.

19.8 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.

19.9 Electronic Delivery. This Agreement may be duly executed and delivered by a Party by electronic format (including portable document format (.pdf)). Delivery of an executed counterpart in .pdf electronic version shall be binding as if delivered in the original. The words “execution,” “signed,” “signature,” and words of like import in this Agreement shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity, or enforceability as a manually executed signature or the use of a paper-based record keeping system, as the case may be, to the extent and as provided for in any applicable law.

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

19.11 Forward Contract. The Parties acknowledge and agree that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and 106
66 Seller are “forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. § 366 in any bankruptcy proceeding wherein such Party is a debtor. In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. §366 or another provision of 11 U.S.C. § 101-1532.

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

19.13 Further Assurances. Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.

19.14 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. Upon delivery of such a request, Buyer and Seller shall engage in such negotiations in good faith. If Buyer and Seller are unable, within sixty (60) days after delivery of such request, to agree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then any Party may submit issues pertaining to changes to this Agreement to the dispute resolution process set forth in Article 15. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, or constitute, or form the basis of, a Force Majeure Event, and (ii) all of unaffected provisions of this Agreement shall remain in full force and effect during any period of such negotiation or dispute resolution. [Signatures on following page]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.

Foster Clean Power B LLC, a Delaware
limited liability company
By:

Name: Ardeshir Arian
Title: President & CEO
Redwood Coast Energy Authority, a
California joint powers authority
By:

Name: Matthew Marshall
Title: Executive Director

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Exhibit A - 1
EXHIBIT A: FACILITY DESCRIPTION
Site Name: Foster Clean Power B
Site includes all or some of the following APNs:

County: Humboldt
Type of Generating Facility: Solar Power
Operating Characteristics of Generating Facility: see Exhibit Q Type of Storage Facility: Lithium-ion Battery Energy Storage Facility Operating Characteristics of Storage Facility:

Maximum Charging Capacity (MW): 1.25 MW
Maximum Discharging Capacity (MW): 1.25 MW
Maximum Stored Energy Level (MWh): 5 MWh
Operating Restrictions of Storage Facility: see Exhibit Q Guaranteed Generation Capacity: 4 MW AC
Guaranteed Installed Storage Capacity: 1.25 MW AC
Maximum Output: The Facility cannot in any event deliver more than an aggregate of 4 MW AC to the Delivery Point at any point in time.

Delivery Point: Arcata 1105
Facility Meter: See Exhibit R
Storage Facility Meter Locations: See Exhibit R
P-node: ARCATA_6_N001
Participating Transmission Owner: PG&E
109

Exhibit B - 1
EXHIBIT B: FACILITY CONSTRUCTION AND COMMERCIAL OPERATION

1. Construction of the Facility and Interconnection Agreement. a. The Parties agree that time is of the essence with respect to a Party’s performance of its material obligations under this Agreement, unless such delayed performance has been expressly permitted or excused under this Agreement. For the avoidance of doubt, payment of Construction Start Delay Damages or Commercial Operation Delay Damages shall constitute an express excuse from the foregoing time is of the essence obligation.
b. “Construction Start” will occur following Seller’s execution of an EPC Contract related to the Facility and issuance of a Full Notice to Proceed with the construction of the Facility. The date of Construction Start will be evidenced by Seller’s delivery to Buyer of a certificate substantially in the form attached as Exhibit J hereto, and Buyer’s acceptance and written acknowledgement thereof, and the dated certified therein shall be the “Construction Start Date.” The Seller shall cause Construction Start to occur no later than the Guaranteed Construction Start Date.
c. If Construction Start is not achieved by the Guaranteed Construction Start Date, Seller shall pay Construction Start Delay Damages to Buyer on account of such delay.

Construction Start Delay Damages shall be payable for each day for which Construction Start has not begun by the Guaranteed Construction Start Date.

Construction Start Delay Damages shall be payable to Buyer by Seller until Seller reaches Construction Start of the Facility. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Construction Start 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 Construction Start Delay Damages set forth in such invoice. Construction Start Delay Damages shall be refundable to Seller pursuant to Section 2(b) of this Exhibit B. The Parties agree that Buyer’s receipt of Construction Start Delay Damages 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 receive a Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 11.2. d. Seller shall execute an Interconnection Agreement with the PTO for the Facility by no later than the date listed in the Cover Sheet.

2. Commercial Operation of the Facility. “Commercial Operation” means the condition existing when Seller has fulfilled all of the conditions precedent in Section 2.2, and Seller has provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”). The “Commercial Operation Date” shall be the date identified in the COD Certificate as the “Commercial Operation Date”.
a. Seller shall cause Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date. Seller shall notify Buyer at least forty-five (45) days before the anticipated Commercial Operation Date.
110
Exhibit B - 2
b. If Seller achieves Commercial Operation by the Guaranteed Commercial Operation Date, ninety-five percent (95%) of all Construction Start Delay Damages and Interconnection Agreement Delay Damages paid by Seller shall be refunded to Seller.

Seller shall include the request for refund of the Construction Start Delay Damages and Interconnection Agreement Delay Damages with the first invoice to Buyer after Commercial Operation.
c. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Buyer shall retain the Construction Start Delay Damages and Seller shall pay Commercial Operation Delay Damages for each day following the Guaranteed Commercial Operation Date until the Commercial Operation Date; provided that in no event shall Seller be obligated to pay aggregate Commercial Operation Delay Damages in excess of the Development Security amount required hereunder. The RA Guarantee Date shall automatically be extended on a day-for-day basis for each day for which Seller pays Commercial Operation Delay Damages.

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 receipt of Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s unexcused 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 in the event that such unexcused delay exceeds one hundred eighty (180) calendar days.

3. Extension of the Guaranteed Dates. The RA Guarantee Date and the Guaranteed Commercial Operation Date shall, subject to notice and documentation requirements set forth below, be automatically extended on a day-for-day basis (the “Development Cure Period”) for the duration of any and all delays arising out of the following circumstances:
a. Seller has not acquired by the Expected Construction Start Date all material permits, consents, licenses, approvals or authorizations from any Governmental Authority required for Seller to own, construct, interconnect, operate or maintain the Facility and to permit Seller and the Facility to make available and sell Product, despite the exercise of diligent and commercially reasonable efforts by Seller; or b. a Force Majeure Event occurs; or
c. The Interconnection Facilities or Network Upgrades, if applicable, are not complete and ready for the Project to connect and sell Product at the Delivery Point by the Expected Initial Delivery Date despite the exercise of commercially reasonable efforts by Seller; or
d. Buyer has not made all necessary arrangements to receive the Facility Energy at the Delivery Point by the Guaranteed Commercial Operation Date. 111
Exhibit B - 3
Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under Section 3 of this Exhibit B shall not exceed one hundred eighty (180) days, for any reason, including a Force Majeure Event. Notwithstanding the foregoing, no extension shall be given if the delay was the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines. Seller shall provide prompt written Notice to Buyer of a delay, but in no case more than thirty (30) days after Seller became aware of such delay. Upon request from Buyer, Seller shall provide documentation demonstrating to Buyer’s reasonable satisfaction that the delays described above did not result from Seller’s actions or failure to take commercially reasonable actions.

4. Buyer’s Right to Draw on Development Security. If Seller fails to timely pay any Commercial Operation Delay Damages, Buyer may draw upon the Development Security to satisfy Seller’s payment obligation thereof.

5. Cap on Seller Liability Prior to Commercial Operation Date. Seller’s aggregate liability prior to the Commercial Operation Date for any Damage Payment, Construction Start Delay Damages, Interconnection Agreement Delay Damages, and/or Commercial Operation Delay Damages shall be capped at an amount equal to one hundred percent (100%) of the Development Security amount. Such cap on Seller Liability shall not limit Seller’s obligations under Section 3.8.
112

Exhibit C - 1
EXHIBIT C: COMPENSATION
Buyer shall compensate Seller for the Product in accordance with this Exhibit C. (a) Generation Rate. Buyer shall pay Seller the Generation Rate for each MWh of Adjusted Facility Energy, plus Deemed Delivered Energy, if any, up to one hundred fifteen percent (115%) of the Expected Energy for such Contract Year.
(b) Excess Contract Year Deliveries in excess of %. If, at any point in any Contract Year, the amount of Facility Energy plus the amount of Deemed Delivered Energy exceeds percent ( %) of the Expected Energy for such Contract Year, for each additional MWh of Facility Energy (but not Deemed Delivered Energy, for which no additional compensation shall be paid), if any, delivered to Buyer in such Contract Year, the price to be paid shall be the lesser of (i) percent ( %) of the Generation Rate or (ii) the Day-Ahead price for the applicable Settlement Interval; provided that if there is a Negative LMP during such Settlement Interval, then then the price applicable to all such additional MWh of Facility Energy in such Settlement Interval shall be zero dollars ($0). (c) Excess Settlement Interval Deliveries. If during any Settlement Interval, Seller delivers Product amounts, as measured by the amount of Facility Energy, in excess of the product of the Guaranteed Generation 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 such excess MWh (“Negative LMP Costs”).
(d) Storage Rate. All Storage Product shall be paid at the Storage Rate x the current Contracted Storage Capacity x the Availability Adjustment x the Round-Trip Efficiency Rate Adjustment x 1000. Such payment constitutes the entirety of the amount due to Seller from Buyer for the Storage Product.
(i) Availability Adjustment. The “Availability Adjustment” or “AA” is calculated as follows:
(A) If the Monthly Storage Availability is greater than or equal to the Guaranteed Storage Availability, then:

AA = 100%
(B) If the Monthly Storage Availability is less than the Guaranteed Storage Availability, but greater than or equal to 70%, then:

AA = 100% - (95% - Monthly Storage Availability)
(C) If the Monthly Storage Availability is less than 70%, then:

AA = 0
113
Exhibit C - 2
(ii) Round-Trip Efficiency Rate Adjustment. The “Round-Trip Efficiency Rate Adjustment” is calculated as follows:
(A) If the Actual Round-Trip Efficiency is greater than or equal to the Minimum Round-Trip Efficiency, then:

Round-Trip Efficiency Rate Adjustment = 100%
(B) If the Actual Round-Trip Efficiency is less than the Minimum Round-Trip Efficiency, but greater than or equal to 75%, then:

Round-Trip Efficiency Rate Adjustment = 100% - [(Minimum Round-Trip Efficiency – Actual Round-Trip Efficiency) x .5]
(C) If the Actual Round-Trip Efficiency is less than 75%, then:

Round-Trip Efficiency Rate Adjustment = 0
(e) Test Energy. Test Energy is compensated in accordance with Section 3.6. 114
Exhibit D - 1
EXHIBIT D: SCHEDULING COORDINATOR RESPONSIBILITIES
Scheduling Coordinator Responsibilities.
(a) Buyer as Scheduling Coordinator for the Facility. Upon Initial Synchronization of the Facility to the CAISO Grid, 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 Test Energy and Product at the Delivery Point. At least thirty (30) days prior to the Initial Synchronization of the Facility to the CAISO Grid, (i) Seller shall take all actions and execute and deliver to Buyer and the CAISO all documents necessary to authorize or designate Buyer (or Buyer’s designee) as the Scheduling Coordinator for the Facility effective as of the Initial Synchronization of the Facility to the CAISO Grid, 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 the Initial Synchronization of the Facility to the CAISO Grid. On and after Initial Synchronization of the Facility to the CAISO Grid, 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 on a day-ahead, hour-ahead, fifteen-minute market or real time basis, as determined by Buyer. (b) Notices. 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 outages, forced 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.
(c) CAISO Costs and Revenues.
(i) Except as otherwise set forth below, 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), 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.
(ii) Seller shall be responsible for all CAISO penalties resulting from any failure by Seller to abide by the CAISO Tariff or the outage notification requirements set forth in 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). The Parties agree that any Availability Incentive Payments (as defined in the CAISO Tariff) are for the benefit of the Seller and for Seller’s account and that any Non-Availability Charges (as defined in the CAISO Tariff) are the responsibility of 115
Exhibit D - 2
the Seller and for Seller’s account. In addition, if during the Delivery Term, 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 failure by Seller to abide by the CAISO Tariff or the outage notification requirements set forth in this Agreement, 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. Buyer shall render a separate invoice to Seller for any CAISO payments, charges or penalties (“CAISO Charges Invoice”) for which Seller is responsible under this Agreement. 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 paragraph (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. 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 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 the Facility consistent with this Agreement. Neither Party shall change such data without the other Party’s prior written consent. (h) NERC Reliability Standards. 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. 116
Exhibit E - 1
EXHIBIT E: PROGRESS REPORTING FORM
Each Progress Report must include the following items, highlighting incremental progress or changes from the previous Progress Report:

1. Executive Summary.

2. Facility description.

3. Site plan of the Facility.

4. Description of any material planned changes to the Facility or the site.

5. Gantt chart schedule showing progress on achieving each of the Milestones.

6. Summary of activities during the previous calendar quarter or month, as applicable, including any OSHA labor hour reports.

7. Forecast of activities scheduled for the current calendar quarter.

8. 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.

9. Progress and schedule of all major agreements, contracts, permits, approvals, technical studies, financing agreements and major equipment purchase orders showing the start dates, completion dates, and completion percentages.

10. 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.

11. Any other documentation reasonably requested by Buyer. 117
Exhibit F-1 - 1
EXHIBIT F-1: AVERAGE EXPECTED ENERGY
[Average Expected Energy, MWh Per Hour]
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 JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
NOV
DEC
The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
118
Exhibit F-2 - 1
EXHIBIT F-2: AVAILABLE GENERATING CAPACITY
[Available Generating Capacity, MWh 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 in the month]
Day
29 Day
30 Day
31 The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.
119
Exhibit G - 1
EXHIBIT G: GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION In accordance with Section 4.7, if Seller fails to achieve the Guaranteed Energy Production during any Performance Measurement Period, a liquidated damages payment shall be due from Seller to Buyer, calculated as follows:
[(A – B) * (C – 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 in MWh
C = Replacement price for the Contract Year, in $/MWh, which is the sum of (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 the value of Replacement Green Attributes determined by using the average of three broker quotes
D = the Generation Rate for the Contract Year, in $/MWh The Parties agree that in the above calculation of Guaranteed Energy Production Damages, if the result of “(C-D)” is less than $ /MWh, then “(C-D)” will be replaced with $ /MWh. The Parties also agree that in the above calculation of Guaranteed Energy Production Damages, if the result of “(C-D)” is more than $ /MWh, the “(C-D)” will be replaced with $ /MWh. “Adjusted Energy Production” shall mean the sum of the following: Adjusted Facility Energy + Deemed Delivered Energy + Lost Output + Replacement Energy. “Lost Output” has the meaning given in Section 4.7 of the Agreement. The Lost Output shall be calculated in the same manner as Deemed Delivered Energy is calculated, in accordance with the definition thereof.
“Replacement Green Attributes” means Renewable Energy Credits of the same Portfolio Content Category (i.e., PCC1) as the Green Attributes portion of the Product and of the same timeframe for retirement as the Renewable Energy Credits that would have been generated by the Facility during the Performance Measurement Period for which the Replacement Green Attributes are being provided. To establish the value of Replacement Green Attributes, Buyer shall provide Seller with at least one independently-prepared estimate of the value of Replacement Green Attributes based, if available, on the most recently available actual contract and sales information.

Seller may provide an alternative estimate based on actual contract and sales information. 120
Exhibit G - 2
“Replacement Capacity Attributes” means Capacity Attributes, if any, equivalent to those that would have been provided by the Facility during the Performance Measurement Period for which the Replacement Product is being provided.
“Replacement Energy” means energy produced by a facility other than the Facility that, at the time delivered to Buyer, qualifies under Public Utilities Code 399.16(b)(1), and has Green Attributes that have the same or comparable value, including with respect to the timeframe for retirement of such Green Attributes, if any, as the Green Attributes that would have been generated by the Facility during the Contract Year for which the Replacement Energy is being provided. “Replacement Product” means (a) Replacement Energy, (b) Replacement Capacity Attributes, and (c) all Replacement Green Attributes.

No payment shall be due if the calculation of (A - B) or (C - D) yields a negative number.

Within sixty (60) days after each Contract Year, 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, provided that the amount of damages owing shall be adjusted to account for Replacement Product, if any, delivered after each applicable Performance Measurement Period. 121
Exhibit H - 1
EXHIBIT H: FORM OF COMMERCIAL OPERATION DATE CERTIFICATE This certification (“Certification”) of Commercial Operation is delivered by _______[licensed professional engineer] (“Engineer”) to Redwood Coast Energy Authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated [_____] (“Agreement”) by and between [_____] and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

As of _______[DATE]_____, Engineer hereby certifies and represents to Buyer the following:

1. The Generating Facility is fully operational, reliable and interconnected, fully integrated and synchronized with the Transmission System.

2. Seller has installed equipment for the Generating Facility with a nameplate capacity of no less than ninety-five percent (95%) of the Guaranteed Generation Capacity.

3. Seller has installed equipment for the Storage Facility with a nameplate capacity of no less than ninety-five percent (95%) of the Guaranteed Installed Storage Capacity.

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 Generation Capacity for the Generating Facility at the Delivery Point, as adjusted for ambient conditions on the date of the Facility testing, and such peak electrical output, as adjusted, was [peak output in MW].

5. The Storage Facility is fully capable of charging, storing and discharging energy up to no less than ninety-five percent (95%) of the Guaranteed Installed Storage Capacity and receiving instructions to charge, store and discharge energy, all within the operational constraints and subject to the applicable Operating Restrictions.

6. Authorization to parallel the Facility was obtained by the Participating Transmission Provider, [Name of Participating Transmission Owner as appropriate] on___[DATE]____.

7. The Transmission Provider has provided documentation supporting full unrestricted release for Commercial Operation by [Name of Participating Transmission Owner as appropriate] on _______[DATE]_____.

8. The CAISO has provided notification supporting Commercial Operation, in accordance with the CAISO Tariff on _______[DATE]_____.

EXECUTED by [LICENSED PROFESSIONAL ENGINEER]
this ________ day of _____________, 20__.
[LICENSED PROFESSIONAL ENGINEER]
By:
122
Exhibit H - 2
Its:

Date:
123
Exhibit I - 1
EXHIBIT I: FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity is delivered by [licensed professional engineer] (“Engineer”) to Redwood Coast Energy Authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated [_____] (“Agreement”) by and between [_____] and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

I hereby certify the following:
(a) The performance test for the Generating Facility demonstrated peak electrical output of __MW AC at the Delivery Point, as adjusted for ambient conditions on the date of the performance test (“Installed Generation Capacity”); (b) The Storage Capacity Test demonstrated a maximum dependable operating capability to discharge electric energy of __MW AC to the Delivery Point, in accordance with the testing procedures, requirements and protocols set forth in Section 4.9 and Exhibit O (the “Installed Storage Capacity”); and
(c) The sum of (a) and (b) is __MW AC and shall be the “Installed Capacity”. (d) As of the date of the performance test, the Facility is capable of producing the average daily generation set forth in Exhibit S (“Resource Generation Capability”), and is capable of delivering Discharging Energy to the Delivery Point as set forth in Exhibit S.

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

Its:

Date:
124

Exhibit J - 1
EXHIBIT J: FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification of Construction Start Date (“Certification”) is delivered by [______] (“Seller”) to Redwood Coast Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

Seller hereby certifies and represents to Buyer the following:

1. Construction Start (as defined in Exhibit B of the Agreement) has occurred, and a copy of the full notice to proceed that Seller issued to its contractor as part of Construction Start is attached hereto.

2. the precise Site on which the Facility is located is, which must include some or all of the previously identified APNs (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:
125
Exhibit K - 1
EXHIBIT K: FORM OF LETTER OF CREDIT
[Issuing Bank Letterhead and Address]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX]
Date:

Bank Ref.:

Amount: US$[XXXXXXXX]
Expiry Date:

Beneficiary:
[_____]
[_____]
Ladies and Gentlemen:

By the order of __________ (“Applicant”), we, [insert bank name and address] (“Issuer”) hereby issue our Irrevocable Standby Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) in favor of [_____] (“Beneficiary”), for an amount not to exceed the aggregate sum of U.S. $[XXXXXX] (United States Dollars [XXXXX] and 00/100), pursuant to that certain Renewable Power Purchase Agreement dated as of ______ and as amended (the “Agreement”) between Applicant and Beneficiary. This Letter of Credit shall become effective immediately and shall expire on __________ __, 201_.

Funds under this Letter of Credit are available to you against your draft(s) drawn on us at sight, marked thereon Letter of Credit No. [XXXXXXX] accompanied by the following documents:

1. the original of this Letter of Credit and its amendments, if any;

2. 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 will return the original of this Letter of Credit back to the Beneficiary after our endorsement on this Letter of Credit of our payment of each draft, provided there is balance undrawn under the Letter of Credit.

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 drawee at [insert bank address]. Payment shall be made by Issuer in U.S. dollars with Issuer’s own immediately available funds.
126
Exhibit K - 2
Partial draws are permitted under this Letter of Credit.

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 to the above address that we elect not to extend this Letter of Credit, in which case it will expire on its the date specified in such notice; provided that in no event shall the Letter of Credit be extended beyond the final expiration date referenced in the paragraph below. No presentation made under this Letter of Credit after such expiry date will be honored.

The final expiration date of this Letter of Credit is [XXXXXXXXX]. Upon this final expiration date, this Letter of Credit shall automatically become null and void whether or not the original of this Letter of Credit has been returned to us for cancellation and presentation made under this Letter of Credit after such date will not 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 Articles 14(b) and 36 of the UCP, in which case the terms of this Letter of Credit shall govern. If, for any of the reasons specified in Article 36 of the UCP, the Issuer’s place for presentation of the Letter of Credit is 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 Trade Services Department at [insert bank address information], referring specifically to Issuer’s Letter of Credit No. [XXXXXXX]. For telephone assistance, please contact Issuer’s Trade Services Department at [XXX-XXX-XXXX] and have this Letter of Credit available. [Bank Name]
___________________________
[Insert officer name]
[Insert officer title]
127
Exhibit K - 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 [_____], as beneficiary (the “Beneficiary”) of the Irrevocable Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) issued by [insert bank name] (the “Bank”) by order of __________ (the “Applicant”), hereby certifies to the Bank as follows:

1. Applicant and Beneficiary are party to that certain Renewable Power Purchase Agreement dated as of ___________, 20__ (the “Agreement”).

2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________ because a Seller Event of Default (as such term is defined in the Agreement) has occurred.

3. The undersigned is a duly authorized representative of [_____] and is authorized to execute and deliver this Drawing Certificate on behalf of Beneficiary.

You are hereby directed to make payment of the requested amount to [_____] by wire transfer in immediately available funds to the following account:
[Specify account information]
[_____]
_______________________________
Name and Title of Authorized Representative
Date___________________________
128
Exhibit L - 1
EXHIBIT L: FACILITY SAFETY PLAN AND DOCUMENTATION
Facility Safety Plan Elements:

Part One: Safety Requirements and Safety Programs
Identify the applicable safety-related Codes, Standards, and regulations (CSR) which govern the design, construction, operation, maintenance, and decommissioning of the Facility using the proposed technology.

Describe the Seller’s and the Seller’s Contractor(s)’ safety programs and policies. Describe Seller’s compliance with any safety-related industry standards or any industry certifications (American National Standards Institute (ANSI), International Organization for Standardization (ISO), etc.), if applicable.

Part Two: Facility Design and Description
Describe Seller’s safety engineering approach to select equipment and design systems and the Facility to reduce risks and mitigate the impacts of safety-related incidents, including cascading failures, excessive temperatures, thermal runaways, fires, explosions, disk fractures, hazardous chemical releases.

Describe the results of any failure mode effects analyses (FMEA) or similar safety engineering evaluations. In the case of lithium ion batteries, describe the safety-related reasons, including design features and historical safety records, for selecting particular anode and cathode materials and a particular manufacturer.

Provide a Safety Review Report for each product class and a list of major facility components, systems, materials, and associated equipment, which includes but is not limited to, the following information:
a) Equipment manufacturer’s datasheet, model numbers, etc., b) Technical specifications,
c) Equipment safety-related certifications (e.g. UL),
d) Safety-related systems, and
e) Approximate volumes and types of hazardous materials expected to be on Site.

Part Three: Facility Safety Management
Identify and describe any hazards and risks to life, safety, public health, property, or the environment due to or arising from the Facility. Describe the Seller’s applicable site-specific safety plans, risk mitigation, Safeguards and layers of protection, including but not necessarily limited to:
a) Engineering controls,
b) Work practices,
c) Administrative controls,
d) Personal protective equipment and procedures,
e) Incident response and recovery plans,
129
Exhibit L - 2
36685447v2
f) Contractor pre-qualification and management,
g) Operating procedures,
h) Emergency plans,
i) Training and qualification programs,
j) Disposal, recycle, transportation and reuse procedures, and k) Physical security measures.
130
Exhibit M - 1
EXHIBIT M: FORM OF REPLACEMENT RA NOTICE
This Replacement RA Notice (this “Notice”) is delivered by [_____] (“Seller”) to [_____] (“Buyer”) in accordance with the terms of that certain Renewable Power Purchase Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Notice but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

Pursuant to Section 3.8(b) of the Agreement, Seller hereby provides the below Replacement RA product information, and hereby certifies the unit is compliant with the requirements of D.21-06- 035, and in addition, meets the same sub-category attributes if contracted for one of the sub-categories of D.21-06-035:

Unit Information
Name
Location
CAISO Resource ID
Unit SCID
Prorated Percentage of Unit Factor
Resource Type
Point of Interconnection with the CAISO Controlled
Grid (substation or transmission line)
Path 26 (North or South)
Local Capacity Area (if any)
Deliverability restrictions, if any, as described in
most recent CAISO deliverability assessment
Run Hour Restrictions
Delivery Period
Month CAISO Unit

NQC (MW)
Unit Contract
Quantity (MW)
January
February
March
April
May
June
July
August
September
October
November
December
131
Exhibit M - 2
[SELLER ENTITY]
By:

Its:

Date:
132
Exhibit N - 1
EXHIBIT N: NOTICES
Seller Buyer
All Notices:

Attn: Ardeshir Arian
4675 Stevens Creek Blvd Suite 250,
Santa Clara, CA 95051
Phone:

Email:

All Notices:

Redwood Coast Energy Authority
Attn: Richard Engel
633 3rd St
Eureka, CA 95501
Phone:

Email:

With cc to
and
Reference Numbers:

Duns:

Federal Tax ID Number:

Reference Numbers:

DUNS:

Federal Tax ID Number:

Invoices and Payments:

Attn: Ardeshir Arian
Phone:

E-mail:

Invoices and Payments:

Attn: Accounting
Phone: 707-269-1700, ext.

Email:

Scheduling:

Attn: Uriel Ruiz
Phone:

Email:

Scheduling:

Attn: The Energy Authority designated as Buyer’s SC
Day Ahead Desk Phone:

Real Time Desk Phone:

Email:

Wire Transfer:

BNK: Bank of the West
ABA:

ACCT:

Wire Transfer:

BNK: Umpqua Bank
ABA:

ACCT:

Credit and Collections:

Attn: Ardeshir Arian
Phone:

E-mail:

Credit and Collections:

Attn: Lori Biondini, Director of Business Planning and
Finance
Phone:

Email:

Notice of an Event of Default to:

Attn: Ardeshir Arian
Phone:

E-mail:

Notice of an Event of Default to:

Attn: Lori Biondini
Director of Business Planning and Finance
Phone:

Facsimile: 707-269-1777
Email:
133
Exhibit N - 2
Seller Buyer
With additional Notices of an Event of
Default to:

Attn: Uriel Ruiz
Phone:

Email:

With additional Notices of an Event of Default to:

RCEA General Counsel
Nancy Diamond, Law Offices of Nancy Diamond
822 G Street, Suite 3
Arcata, CA 95521
Phone:

Facsimile:

Email:

Emergency Contact:

Attn: Ardeshir Arian
Phone:

Email:

Emergency Contact:

Attn: Jocelyn Gwynn
Phone:

Email:
134
Exhibit O - 1
EXHIBIT O: STORAGE CAPACITY TESTS AND ROUND-TRIP EFFICIENCY

MEASUREMENTS
Storage Capacity Test Notice and Frequency
A. Commercial Operation Date Storage Capacity Test. Upon no less than ten (10) Business Days prior Notice to Buyer, Seller shall schedule and complete a Storage Capacity Test prior to the Commercial Operation Date. Such initial Storage Capacity Test shall be performed in accordance with this Exhibit O and shall establish the initial Contracted Storage Capacity and the initial Actual Round-Trip Efficiency hereunder based on the actual capacity and capabilities of the Storage Facility determined during such Commercial Operation Date Storage Capacity Test.

B. Subsequent Storage Capacity Tests. Following the Commercial Operation Date, but not more than twice per Contract Year, upon no less than ten (10) Business Days prior Notice to Seller, Buyer shall have the right to require Seller to 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 written Notice to Seller if Buyer provides data with such Notice reasonably indicating that the Storage Capacity has varied materially from the results of the most recent Storage Capacity Test. Seller shall have the right to run a retest of any Storage Capacity Test upon five (5) Business Days’ prior written 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 and Actual Round-Trip Efficiency.

No later than five (5) days following any Storage Capacity Test, Seller shall submit a testing report detailing results and findings of the test. The report shall include meter readings and plant log sheets verifying the operating conditions and output of the Storage Facility. In accordance with Section 4.9(c) of the Agreement and Part II(I) below, the actual capacity determined pursuant to a Storage Capacity Test shall become the new Contracted Storage Capacity and Actual Round-Trip Efficiency Rate at the beginning of the day following the completion of the test for calculating the Storage Rate and all other purposes under this Agreement, except that if the actual capacity determined pursuant to a Storage Capacity Test exceeds the Guaranteed Storage Capacity, then the new Contracted Storage Capacity shall be equal to the Guaranteed Storage Capacity.

Storage Capacity Test Procedures
PART I. General.

Each Storage Capacity Test (including the initial Storage Capacity Test and all re-performances thereof) shall be conducted in accordance with Prudent Operating Practices and the provisions of this Exhibit O. For ease of reference, a Storage Capacity Test is sometimes referred to in this Exhibit O as a “SCT”. Buyer or its representative may be present for the SCT and may, for informational purposes only, use its own metering equipment (at Buyer’s sole cost). 135
Exhibit O - 2
PART II. Requirements applicable to all storage capacity tests and round-trip efficiency measurements.

A. Test Elements. Each SCT shall include the following test elements:
• Electrical output at Maximum Discharging Capacity (as defined in Exhibit A) at the Storage Facility Meter and concurrently at the Facility Meter (MW);
• Electrical input at Maximum Charging Capacity (as defined in Exhibit A) at the Storage Facility Meter (MW);
• Amount of time between the Storage Facility’s electrical output going from 0 to Maximum Discharging Capacity;
• Amount of time between the Storage Facility’s electrical input going from 0 to Maximum Charging Capacity;
• Amount of energy required to go from 0% State of Charge to 100% State of Charge charging at a rate equal to the Maximum Charging Capacity.

B. Parameters. During each SCT, the following parameters shall be measured and recorded simultaneously for the Storage Facility, at ten (10) minute intervals:
(1) Time;
(2) Net electrical energy output to the Storage Facility Meters (kWh) (i.e., to each measurment device making up the Storage Facility Meter); (3) Net electrical energy input from the Storage Facility Meters (kWh) (i.e., from each measurment device making up the Storage Facility Meter); (4) Stored Energy Level (MWh).

C. Site Conditions. During each SCT, the following conditions at the Site shall be measured and recorded simultaneously at thirty (30) minute intervals:
(1) Relative humidity (%);
(2) Barometric pressure (inches Hg) near the horizontal centerline of the Storage Facility; and
(3) Ambient air Temperature (°F).

D. Test Showing. Each SCT must demonstrate that the Storage Facility:
(1) successfully started;
136
Exhibit O - 3
(2) operated for at least four (4) consecutive hours at Maximum Discharging Capacity;
(3) operated for at least four (4) consecutive hours at Maximum Charging Capacity;
(4) has a Storage Capacity of an amount that is, at least, equal to the Maximum Stored Energy Level (as defined in Exhibit A); and
(5) is able to deliver Discharging Energy to the Delivery Point as measured by the Facility Meter for four (4) consecutive hours at a rate equal to the Maximum Discharging Capacity.

E. Test Conditions.
(i) General. At all times during a SCT, the Storage Facility shall be operated in compliance with Prudent Operating Practices and all operating protocols recommended, required or established by the manufacturer for operation at Maximum Discharging Capacity and Maximum Charging Capacity (as each is defined in Exhibit A).
(ii) Abnormal Conditions. If abnormal operating conditions that prevent the recordation of any required parameter occur during a SCT [(including a level of irradiance that does not permit the Generating Facility to produce sufficient Charging Energy)] [For PV technologies only], Seller may postpone or reschedule all or part of such SCT in accordance with Part II.F below.
(iii) Instrumentation and Metering. Seller shall provide all instrumentation, metering and data collection equipment required to perform the SCT. The instrumentation, metering and data collection equipment electrical meters shall be calibrated in accordance with Prudent Operating Practice.

F. Incomplete Test. If any SCT is not completed in accordance herewith, Buyer may in its sole discretion: (i) accept the results up to the time the SCT stopped; (ii) require that the portion of the SCT not completed, be completed within a reasonable specified time period; or (iii) require that the SCT be entirely repeated.

Notwithstanding the above, if Seller is unable to complete a SCT due to a Force Majeure Event or the actions or inactions of Buyer or the CAISO or the PTO or the Transmission Provider, Seller shall be permitted to reconduct such SCT on dates and at times reasonably acceptable to the Parties.

G. Final Report. Within fifteen (15) Business Days after the completion of any SCT, Seller shall prepare and submit to Buyer a written report of the results of the SCT, which report shall include:
(1) a record of the personnel present during the SCT that served in an operating, testing, monitoring or other such participatory role;
137
Exhibit O - 4
(2) the measured data for each parameter set forth in Part II.A through C, including copies of the raw data taken during the test; (3) the level of Storage Contract Capacity, Charging Capacity, Discharging Capacity and Stored Energy Level determined by the SCT, including supporting calculations; and
(4) Seller’s statement of either Seller’s acceptance of the SCT or Seller’s rejection of the SCT results and reason(s) therefor.

Within ten (10) Business Days after receipt of such report, Buyer shall notify Seller in writing of either Buyer’s acceptance of the SCT results or Buyer’s rejection of the SCT and reason(s) therefor.

If either Party rejects the results of any SCT, such SCT shall be repeated in accordance with Part II.F.

H. Supplementary Storage Capacity Test Protocol. No later than sixty (60) days prior to commencing Facility construction, Seller shall deliver to Buyer for its review and approval (such approval not to be unreasonably delayed or withheld) a supplement to this Exhibit O with additional and supplementary details, procedures and requirements applicable to Storage Capacity Tests based on the then current design of the Facility (“Supplementary Storage Capacity Test Protocol”).

Thereafter, from time to time, Seller may deliver to Buyer for its review and approval (such approval not to be unreasonably delayed or withheld) any Seller recommended updates to the then current Supplementary Storage Capacity Test Protocol. The initial Supplementary Storage Capacity Test Protocol (and each update thereto), once approved by Buyer, shall be deemed an amendment to this Exhibit O.

I. Adjustment to Storage Contract Capacity and Actual Round-Trip Efficiency. (a) The total amount of Discharged Energy delivered to the Delivery Point (expressed in MWh AC) during each of the first four hours of discharge shall be divided by four hours to determine the Contracted Storage Capacity, which shall be expressed in MW AC, and shall be the new Contracted Storage Capacity in accordance with Section 4.9(c) of the Agreement.
(b) The total amount of Discharging Energy above divided by the total amount of Charging Energy, and expressed as a percentage, shall be recorded as the new Actual Round-Trip Efficiency, and shall be used for the calculation of the Efficiency Rate Adjustment in Exhibit C until updated pursuant to a subsequent Capacity Test.
138
Exhibit P - 1
EXHIBIT P: STORAGE AVAILABILITY
Monthly Storage Availability
(a) Calculation of Monthly Storage Availability. Seller shall calculate the “Monthly Storage Availability” in a given month using the formula set forth below:

Monthly Storage Availability (%) =
[MNTHHRSm - UNAVAILHRSm ]
MNTHHRSm
where:
m = relevant month “m” in which availability is calculated; MNTHHRSm is the total number of hours for the month;
UNAVAILHRSm, is the total number of hours in the month during which the Storage Facility was unavailable to deliver Storage Product for any reason other than the occurrence of any of the following (each, an “Excused Event”): a Force Majeure Event, Buyer Bid Curtailment, Buyer Curtailment Orders, Buyer Default, Curtailment Orders, System Emergencies, or the Operating Restrictions in Exhibit Q. To be clear, hours of unavailability caused by any Excused Event will not be included in UNAVAILHRSm for such month. Any other event that results in unavailability of the Storage Facility for less than a full hour will count as an equivalent percentage of the applicable hour(s) for this calculation.

If the Storage Facility or any component thereof was previously deemed unavailable for an hour or part of an hour, and Seller provides a revised Notice indicating the Storage Facility is available for that hour or part of an hour by 5:00 a.m. of the morning Buyer schedules or bids the Storage Facility in the Day-Ahead Market, the Storage Facility will be deemed to be available to the extent set forth in the revised Notice.

If the Storage Facility or any component thereof was previously deemed unavailable for an hour or part of an hour and Seller provides a revised Notice indicating the Storage Facility is available for that hour or part of an hour at least sixty (60) minutes prior to the time the Buyer is required to schedule or bid the Storage Facility in the Real-Time Market, and the Storage Facility is dispatched in the Real-Time Market, the Storage Facility will be deemed to be available to the extent set forth in the revised Notice.
139
Exhibit Q - 1
EXHIBIT Q: OPERATING RESTRICTIONS
The Parties will develop and finalize the Operating Restrictions prior to the Commercial Operation Date, provided that the Operating Restrictions (i) will, at a minimum, include the rules, requirements and procedures set forth in this Exhibit Q, (ii) will include protocols and parameters for Seller’s operation of the Storage Facility in the absence of Charging Notices, Discharging Notices or other similar instructions from Buyer relating to the use of the Storage Facility, and (iii) may include Storage Facility Scheduling, Operating Restrictions and Communications Protocols.

1. Buyer shall not issue a Discharging Notice for more than the Storage Contract Capacity at any time during the Contract Term.

2. Buyer shall not issue a Discharging Notice instructing to discharge more Discharging Energy than the Stored Energy Level at the time of the Discharging Notice.

3. Total Discharging Energy for any single day (00:00 to 23:59) shall not exceed MWh, calculated as the sum of the difference in Stored Energy Level between the start and end of a Discharging Notice for all Discharging Notices within that single day.

4. Total Discharging Energy may not exceed the Maximum Discharging Energy amounts as stated in MWh set forth on the Cover Sheet.

5. State of Charge may not remain above 75% for more than 24 consecutive hours without a Discharging Notice that returns the State of Charge to 5%.

6. During operation, the Stored Energy Level shall always be in the range of % to % and the annual average State of Charge shall not exceed % during the Contract Term.

7. Advance notification required for a Buyer Bid Curtailment or Buyer Curtailment Order: 30 minutes prior to the beginning of the applicable Buyer Curtailment Period, unless the curtailment is effectuated through CAISO Automated Dispatch System (ADS), in which case the advanced notification required will match that provided by the CAISO ADS.

8. Minimum Buyer Curtailment Period: 30 minutes (i.e., six (6) consecutive Settlement Intervals).

9. Maximum ramp rate for Buyer Curtailment Periods: ten percent (10%) of the Installed Capacity per minute.

10. Notwithstanding the aggregate of the Guaranteed Generation Capacity and the Guaranteed Installed Storage Capacity, the Facility cannot in any event deliver more than an aggregate of 4 MW AC to the Delivery Point at any point in time.
140
Exhibit T - 1
EXHIBIT R: METERING DIAGRAM
141
Exhibit S - 1
EXHIBIT S: CONTRIBUTION TO MID-TERM RELIABILITY PROCUREMENT This contract adds incremental capacity that fulfills the CPUC’s mid-term reliability procurement order established in D.21-06-035. Details on the designed capability of these incremental resources in satisfying requirements for D.21-06-035 are stated below.

Installed Generation Annual P50 Energy (Excluding 5:00 – 10:00 p.m. PT): ___MWh Installed Generation Annual P50 Energy (5:00 – 10:00 p.m. PT): ___MWh Installed Generation Capacity: ___ MW
Installed Storage Capacity: ___ MW
Installed Storage Capacity Duration: 4-hours (___ MWh)
Actual Round-Trip Efficiency of storage: ___%
142
Foster Clean Power B
Solar + Storage PPA
Presentation to RCEA Board of Directors
April 22, 2024
Foster Clean Power B
• Second phase of project off Foster Avenue
near Arcata
• 4 MW solar photovoltaic generator paired
with 1.25 MW / 5 MWh battery energy
storage system
• Developer is Renewable America;
ownership will be transferred once project
is operational
• 20-year power purchase agreement
• Commercial operation expected Sept 2024,
guaranteed Dec 2024
• Pollinator habitat to accompany the project
Foster Contract Milestone Expected Date for Completion
Demonstrate Site Control Complete
Execute Interconnection Agreement Complete
Procure Major Equipment 6/1/2024
Obtain Conditional Use Permit Complete
Expected Construction Start Date 7/1/2024
Guaranteed Construction Start Date 8/1/2024
Expected Commercial Operation Date 9/30/2024
Guaranteed Commercial Operation Date 12/1/2024
Expected Full Capacity Deliverability
Status Date
3/31/2025
RA Guarantee Date 3/31/2026