Agenda packet — Silicon Valley Clean Energy Board of Directors, April 12, 2023 (part 2 of 3)

Staff Report – Item 1e
Item 1e: Adopt Resolution to Approve SVCE’s Amended Files and Records Management Policy and Authorize the Chief Executive Officer to Make Future Updates to the Policy and Records Retention Periods in Consultation with General Counsel From: Girish Balachandran, CEO
Prepared by: Andrea Pizano, Board Clerk/Executive Assistant Kevin Armstrong, Deputy Director of Administrative Services Date: 4/12/2023

RECOMMENDATION
Staff recommends the SVCE Board of Directors adopt Resolution 2023-05 to approve the amendments to the FP12 policy, Files & Records Management, and authorize the Chief Executive Officer to make any future updates to the policy and records retention periods with input from General Counsel.

BACKGROUND
The purpose of the files and records management policy is to ensure that SVCE’s records are retained and disposed of in accordance with legal requirements; adherence to the policy strengthens SVCE’s operational effectiveness.

SVCE’s Files & Records Management policy, FP12, was adopted in August 2017. The policy outlined filing guidelines, retention of permanent and non-permanent files, long-term storage, and instruction for record destruction. A detailed Master File Guide Index was identified that listed categories of records and how they would be filed. No amendments have been made to this policy since its adoption.

ANALYSIS & DISCUSSION
In staff’s review of this policy, many of the files listed in the Master File Guide Index did not pertain directly to SVCE’s work and the policy did not reflect staff’s desire to move to digital recordkeeping as opposed to retaining physical copies. In consultation with SVCE’s general counsel, amendments to this policy are being proposed that focus more on electronic records and a more tailored records retention periods table.

Allowing the Chief Executive Officer the ability to make future updates to the retention periods and policy, in consultation with General Counsel, will provide additional flexibility to make updates as new records are identified or changes are needed.

STRATEGIC PLAN
Amending this policy supports SVCE Strategic Plan Goal 21 – “Enable data-driven decision-making across the organization; automate, integrate, and streamline business processes to minimize operational risk and move organization toward industry best practices from its startup phase”.

FISCAL IMPACT
No fiscal impact as a result of amending the current policy.

ATTACHMENTS

1. Resolution 2023-05 Approving SVCE’s Amended Files and Records Management Policy and Authorizing the Item 1e
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Agenda Item: 1e Agenda Date: 4/12/2023

Page 2 of 2 ends

Chief Executive Officer to Make Future Updates to the Policy and Records Retention Periods in Consultation with General Counsel

2. Proposed Amended FP12 Policy, Files & Records Management (Clean Copy)

3. Current FP12 Policy, Files & Records Management (Redline with proposed changes) Item 1e

SILICON VALLEY CLEAN ENERGY AUTHORITY
RESOLUTION No. 2023-05

A RESOLUTION OF THE BOARD OF DIRECTORS

OF THE SILICON VALLEY CLEAN ENERGY AUTHORITY APPROVING
SVCE’S AMENDED FILES AND RECORDS MANAGEMENT POLICY

AND AUTHORIZING THE CHIEF EXECUTIVE OFFICER TO MAKE

FUTURE UPDATES TO THE POLICY AND RECORDS RETENTION

PERIODS IN CONSULTATION WITH GENERAL COUNSEL
WHEREAS, the maintenance of numerous records is expensive, slows document retrieval, and is not necessary after a certain period of time for the effective and efficient operation of the Silicon Valley Clean Energy Authority (“SVCE”); and WHEREAS, Section 34090 of the Government Code of the State of California provides a procedure whereby any City record which has served its purpose and is no longer required may be destroyed; and
WHEREAS, the State of California has adopted guidelines specifying retention periods for various government records; and
WHEREAS, the Board of Directors of SVCE desire to amend SVCE’s Files and Records Management Policy and adopt an updated records retention schedule to ensure efficient and effective maintenance of its various documents and records.

NOW, THEREFORE, THE BOARD OF DIRECTORS OF THE SILICON VALLEY CLEAN ENERGY AUTHORITY, DOES HEREBY RESOLVE AS FOLLOWS:

SECTION 1. The records of SVCE, as set forth in the Records Retention Periods, attached hereto as “Exhibit A”, are hereby authorized to be destroyed as provided by Section 34090 et seq. of the Government Code of the State of California and in accordance with the provision of said schedule upon the request of the Chief Executive Officer or their designee and with the consent in writing of the General Counsel, without further action by the Board of Directors of SVCE.

SECTION 2. With the consent of the Chief Executive Officer or their designee and the General Counsel, updates are hereby authorized to be made to the Files and Records Management Policy and Records Retention Periods without further action by the Board of Directors.

SECTION 3. The term “records” as used herein shall include documents, instructions, books, microforms, electronic files, magnetic tape, optical media, or papers; as defined by the California Public Records Act.

SECTION 4. This resolution shall become effective immediately upon its passage and adoption.

Item 1e
Attachment 1
Added 4/11/23
Resolution 2023-05 Page 2 of 2
ADOPTED AND APPROVED this 12
th day of April 2023, by the following vote:

JURISDICTION NAME AYE NO ABSTAIN ABSENT
City of Campbell Director Scozzola
City of Cupertino Director Mohan
City of Gilroy Director Hilton
City of Los Altos Director Meadows
Town of Los Altos Hills Director Tyson
Town of Los Gatos Director Rennie
City of Milpitas Director Chua
City of Monte Sereno Director Mekechuk
City of Morgan Hill Alternate Director Carothers
City of Mountain View Director Abe-Koga
County of Santa Clara Director Lee
City of Saratoga Director Walia
City of Sunnyvale Alternate Director Srinivasan
________________________________
Chair
ATTEST:
__________________________________
Andrea Pizano, Board Clerk
Item 1e
Attachment 1
Added 4/11/23

RECORDS RETENTION PERIODS
Record Series Title Retention Period Description/Comments Accounts payable/receivable 5 years Ledgers, paid bills, purchase orders, bank statements, checks, and deposit slips, wires,
expense reports/reimbursements, uncollectible
accounts and write offs, depreciation schedules,
1099 Forms
Invoices 2 years Vendor invoices for payment
Budget Permanent Forecasts & projections, Financial statements (end-of-year trial balances)
Audit 5 years Financials, controller reports, IT audit reports Customer Information and Data 5 years Electronic information and reporting from Director of Customer Care, customer bill
analyses, customer consent for third-party
disclosures
Insurance records 30 years Accident reports, claims, policies, workers comp Loan documents Permanent Line/letter of credit documents, applications Employee Records 10 - 30 years Offer letter, benefits, evaluations, personnel change request
Recruitment 6 years from close Employment application, resume, cover letters, job descriptions, interview evaluations
Payroll 7 years Records and summaries, reports (federal, state, tax), W-2 forms, W-4 forms, garnishments, I9’s,
retirement plan
Board and Committee Meeting Materials Permanent Final Board and Committee Meeting materials, and additional SVCE approved sub-committee
materials
Board Approved Decisions Permanent Adopted Resolutions, final meeting minutes Contracts Expiration +7 years Leases, agreements, amendments, power supply contracts, etc.

Correspondence (general) 3 years Email & written correspondence not containing materials related to invoices, budgets, audits,
insurance records, loans, personnel recruitment
and employee records, board and committee
materials, or contracts, marketing or solicitation
materials.

Marketing Collateral 7 years Publications, promotional brochures, flyers, newsletters & alerts
Solicitations 7 years Request for proposals, bids, quotes, etc.

Non-Disclosure Agreements 7 years Agreements with advisors, board members or vendors
Item 1e
Exhibit A
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FP12
Category: FINANCE
Page | 1 Adopted: 8/09/2017
Proposed Amendment: 4/12/2023

FILES & RECORDS MANAGEMENT
I. PURPOSE
The Agency will retain records in an orderly fashion for time periods that comply with legal and governmental requirements and as needed for general business requirements; to outline the methods for filing, retaining, and disposing of business records necessary to support our work (including opinions, resolution of differences, conclusions and research utilized in analysis), our correspondence with customers/clients, our work product and items of continuing significance.

II. SCOPE
This procedure applies to all business documentation generated by the Agency. However, this does not necessarily cover internal or certain day-to-day business correspondence.

Drafts or other documents not utilized should not be retained.

Documents and records transmitted as attachments via email should be considered separately from the email messages to which they are attached.

III. POLICY
A. DIGITAL FILES
• Electronic documents and emails shall be maintained on a secure server or secure web site.
• Agency files or information should not be stored on personal electronic devices to the extent possible.
• Employee hard drives shall be password protected.
• Customer correspondence created/maintained for documentation purposes should be stored upon the Customer Records
Management (CRM) system whenever possible.
• Collection letters, invoices and other customer correspondence will Item 1e
Attachment 2
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FP12
Category: FINANCE
Page | 2 Adopted: 8/09/2017
Proposed Amendment: 4/12/2023
be maintained in CRM when feasible or within pertinent folders where appropriate (i.e., collection letters with collections files). • Confidential and Sensitive files should be watermarked or include a header noting the words “CONFIDENTIAL” or “SENSITIVE” or “Subject to NDA”, or similar notation, whenever possible.

B. PAPER FILES
• Whenever possible, the Agency should maintain records electronically.
• Confidential and sensitive paper records or correspondence should be maintained in file cabinets with locking capability when not in use.
• Certain documents, whenever possible, as a practical matter, shall be stamped, watermarked or headed “CONFIDENTIAL”,
“SENSITIVE”, or “Subject to NDA”, or similar notation.
• Files labeled with employee names shall be considered confidential personnel files, and shall be accessed only by those who are in the direct line of supervisory authority, or those who are responsible for payroll or other human resource duties, and shall be accessed on a need-to-know basis.
• Files labeled with an energy counterparty name shall be considered confidential.

C. FILING SYSTEM
• To ensure efficient access, filing centers will be established. To reduce the amount of duplicate and unnecessary record
retention, individual desk files should be avoided unless they are used in daily operations. All other departmental or agency records should be filed in the departmental central filing areas. • Unless necessary, records should only be kept by the originator or sender and not by the receiver to avoid duplicate filing systems.

Item 1e
Attachment 2
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FP12
Category: FINANCE
Page | 3 Adopted: 8/09/2017
Proposed Amendment: 4/12/2023
D. RECORD RETENTION AND LONG-TERM STORAGE
• Non-permanent physical files will be stored in cardboard file boxes. Each file box will be labeled on the front with the contents, dates covered, and destruction date if applicable.

Permanent physical records will be maintained in metal fire-resistant file cabinets. • Files should be stored only in boxes with similar items, dates and retention periods. This will allow easier access and purging of records. A general rule to keep in mind is that it is better to only half-fill a file box than to file dissimilar types of files in the same box.
• An employee designated by the Chief Executive Officer will be responsible for categorizing and maintaining a listing of records maintained and the location.
• An employee designated by the Chief Executive Officer will be responsible for coordinating the creation, and maintenance of record retention periods, and will maintain and issue the “Records Retention Periods” as appropriate.
• Maintain all files for as long as is necessary but only to the extent they serve a useful purpose or satisfy business or legal requirements. “Records Retention Periods” provides a guide. • The Chief Executive Officer may make further updates to the Retention Periods, to this Files and Records Management policy, and to any Retention and Destruction Policy.

E. RECORD DESTRUCTION
• An employee designated by the Chief Executive Officer will circulate a listing of file categories to be destroyed to all employees thirty days prior to destruction, for review and comment.
• Three to six months after each year-end, an employee
designated by the Chief Executive Officer will proceed with destruction of all files that have exceeded their recognized holding period.
• Destruction of physical files will be performed by an Item 1e
Attachment 2
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FP12
Category: FINANCE
Page | 4 Adopted: 8/09/2017
Proposed Amendment: 4/12/2023
independent, outside service for shredding and disposal. Any paper with a social security number, a federal ID number, confidential information or sensitive data, or a client name on it must be destroyed in this manner.

F. DISPOSAL OF RECORDS INTO THE AGENCY’S GENERAL TRASH

SERVICE IS NOT ALLOWED
• Electronic documents are destroyed by deleting them from the medium on which they are stored, and then purging the medium itself.
• Email messages not saved for filing in the correspondence file or other appropriate folder should be deleted.

IV. ATTACHMENTS

1. Records Retention Periods
Item 1e
Attachment 2
rA'\ SILICON VALLEY ~ CLEAN ENERGY

Marketing Collateral 7 years Publications, promotional brochures, flyers, newsletters & alerts
Solicitations 7 years Request for proposals, bids, quotes, etc.

II. SCOPE
This procedure applies to all business documentation generated by the Agency. However, this does not necessarily cover internal or certain day-to-day business correspondence.

Drafts or other documents not utilized should not be retained.

Documents and records transmitted as attachments via email should be considered separately from the email messages to which they are attached.

III. POLICY
A. DIGITAL FILES
• Electronic documents and emails shall be maintained on a secure server or secure SharePoint web site.

Sensitive or confidential information should be maintained in files and folders which are restricted by password to allow access only to authorized individuals or on an as needed basis.
• Agency files or information should not be stored on personal electronic devices to the extent possible.
• Employee hard drives shall be password protected.
• Customer correspondence created/maintained for documentation Item 1e
Attachment 3
© SILICON VALLEY

CLEAN ENERGY
FP12
Category: FINANCE
Page | 2 Adopted: 8/09/2017
FP12
Category: FINANCE
Page | 2 Adopted: 8/09/2017
Proposed Amendment: 4/12/2023
purposes should be stored upon the Customer Records
Management (CRM) system whenever possible.
• Collection letters, invoices and other customer correspondence will be maintained in CRM when feasible or within pertinent folders where appropriate (i.e., collection letters with collections files).

Account numbers should be redacted to primary minus the last 3 digits for all correspondence.
• Confidential and Sensitive files should be watermarked or include a header noting the words “CONFIDENTIAL” or “SENSITATIVE” or “Subject to NDA”, or similar notation, whenever possible.

B. PAPER FILES
• Whenever possible, the Agency should maintain records electronically.
• Confidential and sensitive paper records or correspondence should be maintained in file cabinets with locking capability when not in use.
• Certain documents, whenever possible, as a practical matter, shall be stamped, watermarked or headed “CONFIDENTIAL”,
“SENSTITIVE”, or “Subject to NDA”, or similar notation. • Files labeled with employee names shall be considered confidential personnel files, and shall be accessed only by those who are in the direct line of supervisory authority, or those who are responsible for payroll or other human resource duties, and shall be accessed on a need-to-know basis.
• Files labeled with an energy counterparty name shall be considered confidential.

A.C. FILING SYSTEM
• To ensure efficient access, filing centers will be established. To reduce the amount of duplicate and unnecessary record
retention, individual desk files should be avoided unless they are used in daily operations. All other departmental or agency Item 1e
Attachment 3
© SILICON VALLEY

CLEAN ENERGY
FP12
Category: FINANCE
Page | 3 Adopted: 8/09/2017
FP12
Category: FINANCE
Page | 3 Adopted: 8/09/2017
Proposed Amendment: 4/12/2023
records should be filed in the departmental central filing areas. • Unless necessary, records should only be kept by the originator or sender and not by the receiver to avoid duplicate filing systems.

Item 1e
Attachment 3
© SILICON VALLEY

CLEAN ENERGY
FP12
Category: FINANCE
Page | 4 Adopted: 8/09/2017
FP12
Category: FINANCE
Page | 4 Adopted: 8/09/2017
Proposed Amendment: 4/12/2023
• The following filing guidelines should be adhered to optimize filing efficiency and records access:
o All file cabinets and files should follow recognized rules of order, such as Left to Right, Top to Bottom, Front to Back, and in the case of chronological records, Newest to Oldest. o File markers or label headings should always be placed at the beginning or front of a file or group of files.
o Alphabetical files should always be filed under broad topical categories. Files should never be filed under individual employee names (except Human Resources records) to avoid confusion and re-filing in the event of turnover. Files should always be filed under the “proper” or agency names whenever appropriate. In the case of individuals, files should be maintained according to the person’s last name, then first name and middle initial.
o Alphanumeric codes should be attached to colored end tabs of all file sets to show type of file by subject area and sub-category. For instance, all files dealing with Accounting will have a green end tab on the lateral file folder with the alpha code of AC followed by a three digit numeric code to
designate the category (i.e. Financial Planning is AC-200, General Accounting is AC-300, Payroll is AC-340, etc.).

Payroll is a function of Accounting thus the AC, payroll is a function of General Accounting (under Accounting) thus the 300 series numeric, and under General Accounting the Payroll file is series number 40, which translates to a file of AC-340.

Refer to “Master File Guide Index.”
o Extra care should be used for sensitive or private information.

Agency financial data or personnel records that contain performance reviews, salary information, or any health-related information should be kept in a secure area with limited access to only those that have a “need to know,” such as the Chief Executive Officer or Director of Administration and Finance.
o Documents attached to and transmitted by email should be stored in machine readable format in the Agency’s electronic Item 1e
Attachment 3
© SILICON VALLEY

CLEAN ENERGY
FP12
Category: FINANCE
Page | 5 Adopted: 8/09/2017
Proposed Amendment: Adopted: XX/XX/XXXX 4/12/2023
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o document management system within the appropriate client folders.

B.D. RECORD RETENTION AND LONG-TERM STORAGE
• Non-permanent physical files will be stored in cardboard file boxes. Each file box will be labeled on the front with the contents, dates covered, and destruction date if applicable.

Permanent physical records will be maintained in metal fire-resistant file cabinets. • Files should be stored only in boxes with similar items, dates and retention periods. This will allow easier access and purging of records. A general rule to keep in mind is that it is better to only half-fill a file box than to file dissimilar types of files in the same box.
• An employee designated by the Chief Executive Officer The Administrative Analyst will be responsible for categorizing and maintaining a listing of records maintained and the location. • The Administrative Analyst, or otherAn employee designated by the Chief Executive Officer, will be responsible for coordinating the creation, amendment, and maintenance of record retention periods, and will maintain and issue the “Records Retention Periods” as appropriate.
• Maintain all files for as long as is necessary but only to the extent they serve a useful purpose or satisfy business or legal requirements. “Records Retention Periods” provides a guide. • The Chief Executive Officer may make further updates to the Retention Periods, to this Files and Records Management policy, and to any Retention and Destruction Policy.

C.E. RECORD DESTRUCTION
• The Administrative Analyst, or otherAn employee designated by the Chief Executive Officer, will circulate a listing of file categories to be destroyed to all employees thirty days prior to destruction, for review and comment. The actual listing of records destroyed will be maintained permanently for future Item 1e
Attachment 3
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CLEAN ENERGY
----====--A--
FP12
Category: FINANCE
Page | 6 Adopted: 8/09/2017
Proposed Amendment: Adopted: XX/XX/XXXX 4/12/2023
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reference.
• Three to six months after each year-end, the Administrative Analystan employee designated by the Chief Executive Officer will proceed with destruction of all files that have exceeded their recognized holding period.
• Destruction of thephysical files will be performed by an independent, outside service for shredding and disposal. Any paper with a social security number, a federal ID number, confidential information or sensitive data, or a client name on it must be destroyed in this manner.

Item 1e
Attachment 3
. © SILICON VALLEY

CLEAN ENERGY
I .-----) __ _
FP12
Category: FINANCE
Page | 7 Adopted: 8/09/2017
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D.F. DISPOSAL OF RECORDS INTO THE AGENCY’S GENERAL

TRASH SERVICE IS NOT ALLOWED
• Electronic documents are destroyed by deleting them from the medium on which they are stored, and then purging the medium itself.
• Email messages not saved for filing in the correspondence file or other appropriate folder should be deleted.

IV. ATTACHMENTS

1. Master File Guide Index

2.1. Records Retention Periods
Item 1e
Attachment 3
. © SILICON VALLEY

CLEAN ENERGY
----A--
FP12
Category: FINANCE
Page | 8 Adopted: 8/09/2017
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MASTER FILE GUIDE INDEX

AC ACCOUNTING
AC-100 Accounts Administration
AC-200 Financial Planning
AC-300 General Accounting
AC-310 Checking Account Register
AC-320 Accounts Payable
AC-330 Accounts Receivable
AC-340 Payroll
AC-350 Local, State, Federal taxes {FUTA, FICA, etc.}
AC-360 Banking Services
AC-370 Fixed Assets
AC-400 Employee Benefit Programs
AC-500 Employee Expense Accounts
AC-600 Agency Loan Management
AC-700 Grants Account Management
AC-800 Purchasing
AC-900 Open

AD ADMINISTRATION
AD-100 General
AD-200 Organizational Manual
AD-300 Organizational Charts
AD-400 Agency Correspondence Manual
AD-500 Policies and Procedures
AD-600 Records Management and Retrieval
AD-700 Chief Executive Officer Administrative Memorandums AD-800 Interoffice Staff Administrative Memorandums
AD-900 Open

BU BUSINESS
BU-100 Feasibility Study
BU-200 Project Management
BU-300 Business Executive Summaries
Item 1e
Attachment 3
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CLEAN ENERGY
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FP12
Category: FINANCE
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CS COMPUTER INFORMATION SYSTEMS
CS-100 General
CS-200 Equipment
CS-300 Operation and Maintenance
CS-400 Training in Systems Operation
CS-500 Open

PS POWER SUPPLY
PS-100 General
PS-200 Contracts
PS-300 Power Purchase Agreements
PS-400 Risk Management
PS-500 Request for Information
PS-600 Request for Quote/Price
PS-700 Open
PS-800 Open

IN INSURANCE
IN-100 General Administration of Insurance
IN-200 Plant and Equipment Policies
IN-300 Agency Officer Policies
IN-400 Agency Vehicles Policies
IN-500 Health Program Policies
IN-600 Life Insurance Programs for Employees
IN-700 Employment Coverage
IN-800 Data Breach Coverage
IN-900 Open

LG LEGAL
LG-100 General
LG-200 Reports
LG-300 Contracts
LG-400 Litigation
LG-500 Disputes
LG-600 Legal Personnel Issues
Item 1e
Attachment 3
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CLEAN ENERGY
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FP12
Category: FINANCE
Page |
10 Adopted: 8/09/2017
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LG-700 Agreements/Partnerships
LG-800 Open

MA MARKETING
MA-100 General
MA-200 Reports/Studies
MA-300 Marketing Plans
MA-400 Customer Relations
MA-500 Programs

OF OFFICE MANAGEMENT
OF-100 General
OF-200 Procedures
OF-300 Equipment/Furnishings/Telecommunications
OF-400 Information Processing/Communications Procedure
OF-500 Property Lease/Management Agreement
OF-600 Fax/Reproduction/Printing Procedures
OF-700 Protocol to Visitors
OF-800 Building Maintenance
OF-900 Open

PE PERSONNEL
PE-100 General
PE-200 Reports
PE-300 Employee Records
PE-400 Organizational Charts
PE-500 Recruiting
PE-600 Training
PE-700 Benefit Programs
PE-800 Open
PE-900 Open

PP PERMITS AND PLANS
PP-100 Permits
PP-200 Reports
PP-300 Open
Item 1e
Attachment 3
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CLEAN ENERGY
I .-----A--~
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Category: FINANCE
Page |
11 Adopted: 8/09/2017
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PP-400 Open
PP-500 Open

PR PUBLIC RELATIONS
PR-100 General
PR-200 Reports and Studies
PR-300 Agency Releases
PR-400 List of Industry Contacts
PR-500 Open

RG REGULATORY DATA
RG-100 General
RG-200 Reports
RG-300 Correspondence
RG-400 Acts/Laws/Bills
RG-500 Regulations
RG-600 Agreements
RG-700 Guidelines/Policies/Resolutions
RG-800 Open
Item 1e
Attachment 3
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CLEAN ENERGY
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Category: FINANCE
Page | 12 Adopted: 8/09/2017

RECORDS RETENTION PERIODS
Accident reports and claims (settled cases) ................................. 7 years Accounts payable ledgers, schedules, and trial balances ................ 7 years Accounts receivable ledgers, schedules, and trial balances ............. 7 years Assignments .......................................................................... 3 years Audit reports of accountants ..................................................Permanently Bank reconciliations ................................................................ 2 years Bank statements, cancelled checks, and deposit slips.................... 7 years Cash books.........................................................................Permanently Cash receipts and disbursements............................................... 7 years Chart of accounts.................................................................Permanently Checks (cancelled, all other)..................................................... 7 years Checks (cancelled, for important payments, i.e. taxes, property purchases, special contracts, etc. File checks with the transaction papers)..........Permanently Contracts and leases (expired).................................................. 7 years Contracts and leases still in effect......................................Expiration +7 years Agency records and minutes..................................................Permanently Correspondence (legal and important matters only)...................Permanently Correspondence general .......................................................... 3 years CPE records ...................................................................7 years (after term) Credit Applications (Business) ....................................... 1 year (after notification) Depreciation schedules ............................................................ 7 years Duplicate deposit slips .............................................................. 1 year Electronic fund transfer documents ............................................ 7 years Employee personnel records (after termination) ........................... 7 years Item 1e
Attachment 3
r/t\ SILICON VALLEY
~CLEAN ENERGY
FP12
Category: FINANCE
Page | 13 Adopted: 8/09/2017
Employment applications.......................................................... 3 years Equipment records & invoices ........................................... 5 years (after disp) Expense reports, analyses and distribution schedules.................... 7 years Expired contracts and notes receivable ....................................... 7 years Expired purchase contracts....................................................... 7 years Federal, state and local tax returns.........................................Permanently Financial statements (end-of-year trial balances) ......................Permanently Fixed asset records and appraisals..........................................Permanently Forecasts & projections............................................................ 7 years Forms W-4 ............................................................................ 7 years Garnishments......................................................................... 3 years General Ledgers (end-of-year trial balances) ............................Permanently I-9s (after termination)............................................................ 2 years Insurance records, current accident reports, claims, policies, etc. Permanently Interim and year-end financial statements and trial balances ......Permanently Invoices ................................................................................ 7 years Journals .............................................................................Permanently Licenses .............................................................................Permanently Litigation support files ............................................................. 3 years Loan documents, notes.........................................................Permanently Marketing publications, promotional brochures, newsletters & alerts7 years Minute books of directors, including bylaws and charter..............Permanently Monthly trial balances...........................................................Permanently Paid bills and vouchers ............................................................ 7 years Payroll journals ...................................................................... 7 years Item 1e
Attachment 3
r/t\ SILICON VALLEY
~CLEAN ENERGY
FP12
Category: FINANCE
Page | 14 Adopted: 8/09/2017
Payroll records and summaries.................................................. 7 years Payroll reports (federal & state) ................................................ 7 years Physical inventory records........................................................ 7 years Physical inventory tags ............................................................ 7 years Property records including costs, depreciation schedules, blueprints, plans ..................................................................................................................... ..........................................................Permanently Property titles and mortgages ................................................Permanently Purchase journals ................................................................... 7 years Purchase orders ..................................................................... 7 years Receiving sheets..................................................................... 2 years Retirement plan (401 (a) plan info).........................................Permanently Requisitions ........................................................................... 7 years Sales journals ........................................................................ 7 years Sales records ......................................................................... 7 years Subsidiary ledgers .................................................................. 7 years Tax exemption documents, including application for exemptions .Permanently Uncollectible accounts and write offs.......................................... 7 years Vendors’ invoices & paid bills ..............................................................................7 years Voucher for payments to vendors, employees, etc.
(includes all allowances and reimbursement of employees, officers)7 years W-4 forms............................................................................. 4 years W-2 or 1099 forms.................................................................. 7 years Workman’s comp documents ............................................................................ 11 years Item 1e
Attachment 3
r/t\ SILICON VALLEY
~CLEAN ENERGY

Page 1 of 1 ends

Staff Report – Item 1f
Item 1f: Receive Q1 2023 Decarbonization Programs Update From: Girish Balachandran, CEO
Prepared by: Justin Zagunis, Director of Decarbonization Programs and Policy Nupur Hiremath, Manager of Community Programs
Date: 4/12/2023

RECOMMENDATION
Staff recommends the Board accept the Q1 2023 Update of the Decarbonization Strategy & Programs Roadmap.

BACKGROUND
To achieve its mission to reduce dependence on fossil fuels by providing carbon-free, affordable and reliable electricity and innovative programs for the community, SVCE established a decarbonization strategy and programs roadmap (abbv. “Roadmap”). In December 2018, the Board approved the Roadmap, and since that time, staff have been working on implementation.

ANALYSIS & DISCUSSION
Attachment 1 is the most recent quarterly update, covering January through March 2023. The quarterly update includes a table with a summary of updates and next steps for each initiative.

STRATEGIC PLAN
This item supports SVCE’s 2022-2023 Strategic Plan Goal 10, to “coordinate development of decarbonization and resilience strategy, lead design of local policy, and design and deploy programs,” to support achieving energy and transportation GHG reductions of 30% from the 2015 baseline by 2021, 40% by 2025, and 50% by 2030.

FISCAL IMPACT
Accepting the Q1 2023 Update of the Decarbonization Strategy & Programs Roadmap has no fiscal impact.

ATTACHMENTS

1. Decarbonization Strategy & Programs Roadmap – Q1 2023 Update Item 1f
/ A"\ SILICON VALLEY
~CLEAN ENERGY
Decarbonization Strategy & Programs Roadmap
Q1 2023 Update
April 12, 2023 BOD Meeting
Sector Program Q1 2023 Q2 2023 Outlook Power Supply
C&I Clean Power Offerings
Develop, market and sell additional
SVCE power offerings to address
large C&I customers seeking to buy
clean power at competitive rates.
• Launch 24x7 carbon-free product.
• Operationalize billing and carbon-free energy (CFE)
tracking relative to performance of 24/7 product.
• Prospect for additional clean power offerings candidates. • Close EcoInvest contract with large corporate customer. • Streamline operations of billing and CFE relative to 24/7 product.
• Develop framework for standardized key accounts
outreach cadence.
• Prospect for additional clean power offerings candidates.

Built Environment
Reach Codes
Provide model energy code
supportive of all-electric design and
EV infrastructure to member
agencies along with consultant
support.
• Provided final support to Milpitas in their adoption
process.
• Provided information to Los Altos for their reach code redesign.
• Reviewed consultant materials developed to support
reach code implementation.
• Monitor the code development process and
implementation by member agencies as needed.
• Begin laying groundwork for future efforts.

Electric Showcase Awards
Showcase electric retrofit buildings
in preparation for existing building
policy conversations with member
agencies.
• Applications opened in March 2023.
• Reviewed applications received.
• Select and announce finalists. Provide awards.
• Develop case studies and videos.

FutureFit Heat Pump Water Heaters
Provide incentives for electric heat
pump water heaters and service
panel upgrades to residents using
natural gas currently.
• Close HPWH program by March 31 as it has been rolled
into the FutureFit Homes program.
• Straggling customers permitted to complete projects
under existing incentive structure.
• (COMPLETED)
•
Item 1f
Attachment 1
1 Sector Program Q1 2023 Q2 2023 Outlook
Permit Modernization Effort
Benchmark and streamline member
agency’s permitting and inspection
processes to identify barriers and
opportunities to electrification.
• Finalized jurisdiction interviews.
• Began contractor interviews.
• Continued to inform Building Officials about legislative and regulatory requirements.
• Supported jurisdictions in applying for State grants. • Began development of program recommendations.
• Finalize contractor interviews.
• Identify prioritized menu of assistance programs desired by jurisdictions.
• Oversee development of report detailing program
recommendations.
• Continue to inform Building Officials about legislative and regulatory requirements.
• Support jurisdictions in applying for State grants.

Building Decarb Joint Action Plan
Develop a joint action plan with
member agencies to prioritize
strategies and programs to advance
building decarbonization.
• (COMPLETED)
Community Resilience Program
Increase the individual and collective
capacity of SVCE and our member
agencies to reduce the adverse
impacts of power outages.
• Continue to provide technical assistance to member
agencies to identify potential capex projects.
• Updating Community Resilience website to include
developing and finished projects.
• Assessing Resilient Site Selection Tool hosting
capabilities.
• Launch new website and Community Resilience
Framework.
• Close technical assistance and agreement with Buro
Happold.

FutureFit Fundamentals
Provide financial relief to contractors
by expanding their knowledge of
electrification technologies.
• 92 contractors have completed the course.
• Assessed responses from mid-program survey to inform
program next steps and contractor engagement goals.
• Developing additional contractor incentive.
• Continue to enroll contractors into course.
• Explore and expand digital outreach with new marketing strategies.

CRCR Bill Relief
Provide immediate bill relief to
residential CARE/FERA customers,
and to qualifying small business
customers.
• Begin process to roll out 2023 low-income credits • Continue roll out.

FutureFit Homes & Buildings
Provide comprehensive assistance to
SVCE customers in navigating and
accessing the many existing and
forthcoming, non-SVCE led energy
programs providing financial
assistance for building
decarbonization and energy
efficiency.
• Expanded M&O activities, including SVCE newsletter,
direct emails, and social media posts.
• Up to 160 active reservations.
• Drafted concierge RFP, which will expand FFH support to include technical assistance & electrification
assessments.
• Ongoing program updates, including rebate into
layering, clarification on prewiring requirements, etc. • Issue concierge RFP & evaluate responses. Select
consultant for implementation.

Item 1f
Attachment 1
2 Sector Program Q1 2023 Q2 2023 Outlook
Regional Coordination
SVCE will initiate regular regional
stakeholder convenings to
coordinate program alignment
across building decarbonization
workstreams.
• Began existing building decarbonization stakeholder
meetings with community leaders. Held in-person
meeting for member agencies – 11 jurisdictions
attended.
• Began plans for elected officials joint event with the Cities Association
• Develop formalized meeting structure for ongoing
coordination.

Accessible Financing
Assess feasibility of financing
mechanisms to unlock equitable
financing for energy efficiency and
electrification across the region,
particularly for low-income
communities.
• Continued pilot planning with newly selected program
operator and identify billing system needs for tariff
charges.
• Ongoing support of CPUC Clean Energy Finance proposal • Continue pilot planning including data share agreement with TECH and revised pilot budget.
• Anticipating proposed decision from CPUC on the CEF
proposal.

Existing Building Policy
Experimentation
Assess and support potential policy
levers Member Agencies can explore
to mitigate emissions from existing
buildings.
• Consultant team held stakeholder meetings to gather
input on program design.
• Program launch pushed back to June.
• Program launch tentative for June.

Feasibility Assessment for Natural
Gas Phase Out By 2045
Carry out a feasibility assessment to
identify technical, legal and
economic barriers and opportunities
for phasing out natural gas service by
2045, in the SVCE service territory.
• Conducting internal needs assessment to determine
what analysis is needed by when.
• Assessing potential for local policies to contribute to carbon reduction in buildings.
• Create and plan to distribute RFP for consultant in 2023 Q3 or Q4.

Mobility
EV Infrastructure Strategy & Plan
Develop a near- to mid-term strategy
for EV infrastructure and a set of
program implementation plans.
• (COMPLETED)
California Electric Vehicle
Infrastructure Project (CALeVIP)
Work with California Energy
Commission to launch a regional
CALeVIP project.
• Opened eligibility for Year 2 and Year 3 SVCE funds (total $1.5M) to expand to DCFC in addition to L2.
• Program operator began processing waitlisted
applications (DCFC and combination DCFC + L2) given the shift in eligibility.
• Continue to work with program operator on completing
existing projects with reserved funds.

Priority Zone DCFC
Competitive application to receive an
additional incentive (on top of
CALeVIP) for DCFC in “priority zones”
that support nearby SVCE-designated
multifamily housing clusters.
• Selected 5 sites to award DCFC installation incentives and worked with site hosts to sign agreements.
• Announce DCFC sites once agreements are executed.
• Begin DCFC installation process for selected sites.
• Collaborate with awardees on pilot preferred pricing
options for MUD residents living nearby DCFC
installation sites.

Item 1f
Attachment 1
3 Sector Program Q1 2023 Q2 2023 Outlook
MUD & S/M Workplace Technical
Assistance (FutureFit Assist)
Technical assistance and help
applying for pertinent CALeVIP
rebates for charging at multifamily
housing and small and medium
workplace properties.
• Enrolled 2 new commercial and 1 new multifamily
properties in the program.
• Continued to site visits and drafted solution reports for participants.
• Conduct ongoing outreach.
• Continue to develop site assessments for participating properties.
• Continue to connect customers to relevant rebates and incentive opportunities.

MUD Charging Incentives
Develop incentive program for EV
charging at hard-to-reach multifamily
properties.
• Since launch, 17 MUD properties have reserved funds for a total of 138 L1 and L2 ports.
• Updated program terms and increased incentive levels
available to participants.
• Added new incentive category for new construction
affordable housing meeting reach code requirements.
• Continue outreach to eligible MUD properties.
• Promote new incentive category to affordable housing
developers.
• Track progress of applications.
• Adjust program terms as needed.

Fleet Electrification Grants
Competitive application for SVCE’s
fleet electrification planning support
and funding for site upgrades.

Targeting a broad set of fleet types,
to create widely applicable fleet
electrification planning templates
• Continue to identify private fleets for program.
• Program launched and began work with identified public fleets. Program has reached its target of five public
fleets.
• Continue to identify private fleets for program.
• Facilitate public fleets moving through the fleet
electrification planning process.

Silicon Valley Transportation
Electrification Clearinghouse
(SVTEC)
Regional group of key stakeholders
focused on information sharing,
solving critical issues, and attracting
external funding to the SVCE
community in support of EV
infrastructure deployment.
• Assessed grant opportunities.
• Interviewed EVI companies on permitting challenges.
• Host quarterly meeting.

Energy Efficiency &
Grid Integration
GridShift: EV Charging
Managed EV charging app that
optimizes charging to reduce
associated costs and emissions. In-app “events” support additional emission reductions and load
flexibility
• Set enrollment targets for 2023.
• Ran a month-long sign-up incentive promotion. Now at
1,000 EVs!
• Continued marketing efforts.
• Scoped out charger rebate requirements.
• Launch charger rebate.
• Continue marketing efforts.
• Wrap up low-carbon events season.
• Launch Critical GridShift Hours season.

Item 1f
Attachment 1
4 Sector Program Q1 2023 Q2 2023 Outlook
Other Virtual Power Plant Programs
Support “virtual power plants”
(VPPs) made up of cloud-based
aggregations of customer-sited
resources to support grid integration
and monetize value from connected,
controllable loads
• Explored thermostat VPP concept and approach for
near-term options.
• Continued work with Sunrun on dispatch plan and
contract discussions.
• Explored next steps for 2023 actions and worked on
SVCE’s vision for the “grid of the future.”
• Issue solicitation and request for information for
thermostat VPP to learn more about options.
• Work on SVCE’s vision for the “grid of the future” to shape future VPP efforts and program designs.
• Finalize Sunrun materials.

Education & Outreach
Customer Resource Center (eHub)
Develop online customer resource
center to enable engagement,
education and action related to clean
electricity, EVs and home
electrification.
• 208,561 Unique eHub Engagements since launching in
Sept. 2020 to Feb. 2023.
• eHub Metrics Feb.1 - Feb.28, 2023:
- 855 unique visits to SVCE eHub webpages
- 379 unique visits to the EV Assistant tool
- 254 unique visits to the Solar+Battery Assistant
tool
- 3,541 unique visits to the Appliances Assistant
tool
• Ended ‘Go Electric Holiday Sweepstakes’ (12/19/2022-
1/18/2023) where 4,840 customers participated and
there were 24,095 actions completed and 114,152
entries. 7/10 winners chose the $600 energy bill credit as their prize and 3/10 winners chose an e-bike as their prize.
• Delivered email campaigns:
- 'Go Electric’ Holiday Sweepstakes (Dec/Jan)
- Community Summary Email (Feb)
- All-Electric Yard Care Promotion (Mar)
- Information about new Net Billing Tariff (Mar)
• Launched ‘All-Electric’ Yard Care Promotion on
2/10/2023 - 5/31/2023.
• Launched Used EV tool on the EV Assistant in February. • Continue running the Yard Care Promotion until May 31st 2023.
• Continue tracking eHub engagement metrics.
• Developing HPWH concierge service and EV Charger
concierge service with Electrum.
• Planning to launch a ‘Go Electric’ Summer Kickoff
Sweepstakes in mid-May and Summer Resiliency
Promotion in mid-June.
• Upcoming monthly emails to educate customers on the
resources available on eHub:
- Yard Care Promotion Reminder
- Go Electric campaign for Earth Month
- Used EV tool on the EV Assistant
- ‘Go Electric’ Summer Kickoff Sweepstakes
- HPWH Assistant Launch
- Summer Resiliency Promotion
Note: Engagements are driven largely by marketing
campaigns delivered within the quarter. Distribution of metrics will vary.

Community Engagement Grants
Partner with local organizations in
hard-to-reach customer segments to
promote SVCE offerings and
programs
• Identity next steps for program implementation. • Continue grant administration.

Item 1f
Attachment 1
5 Sector Program Q1 2023 Q2 2023 Outlook
Portable Batteries for Medical
Baseline Customers
Pilot program to deploy ~50 portable
batteries to qualified customers who
rely on power for medical
equipment.
• Sent out 2 emails, 2 mailers, and a round of phone calls to the 50 customers who qualify for the pilot program.
• 14 batteries claimed so far.
• Sending out final email April with “heat season”
messaging.
• Delivering more batteries in the next few weeks.
• If participation continues to stay static, we will open it up to a larger audience.

Innovation
Innovation Partners
Engage with key strategic partners to
participate in the local innovation
ecosystem and provide a voice for
SVCE customers and the decarb
mission.
• No planned activities for Q1. • No planned activities for Q2.

Innovation Onramp
Provide small grants to support
innovation through pilot projects
with external partners
• Wrapping up final deliverable for NeoCharge pilot, the last active I/O pilot.
• No planned activities for Q2.

Item 1f
Attachment 1
6

Page 1 of 2 ends

Staff Report – Item 1g
Item 1g: Authorize the Chief Executive Officer to Execute Amendment to Agreement with Pisenti & Brinker, LLP for Financial Audit Services
From: Girish Balachandran, CEO
Prepared by: Amrit Singh, CFO and Director of Administrative Services Kevin Armstrong, Deputy Director of Administrative Services Date: 4/12/2023

RECOMMENDATION
Staff recommends that the Board authorize the CEO to execute an amendment to the current agreement with Pisenti & Brinker, LLP to extend the term through September 30, 2027, and increase compensation not to exceed limit to $180,450.

BACKGROUND
Financial Policy #1 (“FP1”) states that an independent certified public accountant shall perform an annual audit of basic financial statements that are accompanied by required supplemental information. Pisenti & Brinker, LLP performed SVCE’s audits for Fiscal Years 2016 - 2021 under an earlier agreement.

FP1 also states that audit services shall be competitively bid at least every five years. To comply with FP1, in mid-2022, staff conducted an open Request for Proposals for audit services, per the requirements. After evaluating four proposals, staff recommended selecting Pisenti & Brinker, LLP from the pool of proposals and the Board approved the current agreement at the September 14, 2022, Board meeting. As Pisenti & Brinker, LLP was required to transition audit partners under California State Law, staff recommended a single-year term, intending to return later for an amendment to extend the term, if performance warranted.

ANALYSIS & DISCUSSION
Staff recommends this amendment to the audit agreement and the extension of the term for an additional four years, based on the continued success of working Pisenti & Brinker, LLP. The institutional knowledge the Independent Auditor has gained from SVCE combined with the familiarity of the Community Choice Aggregator (“CCA”) model by performing audit services for other CCA’s results in an efficient audit process.

This recommendation to extend the term of the agreement complies with Board Policy FP1, and staff will plan to hold a new competitive solicitation for audit services at the end of this agreement.

STRATEGIC PLAN
The recommendation supports the financial goals of the strategic plan.

ALTERNATIVE
Staff is open to alternatives from the Board or the Pubic.

Item 1g
/ A"\ SILICON VALLEY
~CLEAN ENERGY
Agenda Item: 1g Agenda Date: 4/12/2023

Page 2 of 2 ends

FISCAL IMPACT
The current agreement with Pisenti & Brinker, LLP is for a total of $32,900 and it expires on September 30, 2023. This amendment will extend the term of the contract to September 30, 2027, and increase the contract amount by $147,550, to a new contract total of $180,450. The recommendation results in a fiscal impact of $33,950 to Fiscal Year 2023-24, $35,050 to Fiscal Year 2024-25, $36,200 to Fiscal Year 2025-26, $37,350 to Fiscal Year 2026-27, with an additional $5,000 contingency for additional unexpected meetings, letters, and filings. All future expenditures are subject to continued Board funding approval in each Fiscal Year budget.

ATTACHMENTS

1. Amendment to the current agreement with Pisenti & Brinker, LLP

2. Existing agreement with Pisenti & Brinker, LLP
Item 1g
-1-

FIRST AMENDMENT TO AGREEMENT WITH PISENTI & BRINKER, LLP WHEREAS, the SILICON VALLEY CLEAN ENERGY AUTHORITY, an independent public agency (“Authority”), and PISENTI & BRINKER, LLP entered into that certain agreement entitled FINANCIAL AUDIT SERVICES, effective on September 14, 2022, hereinafter referred to as “Original Agreement”; and
WHEREAS, Authority and PISENTI & BRINKER, LLP have determined it is in their mutual interest to amend certain terms of the Original Agreement.

NOW, THEREFORE, FOR VALUABLE CONSIDERATION, THE PARTIES AGREE AS FOLLOWS:

1. Term Section of Original Agreement shall be amended to read as follows:

The term of this Agreement shall commence on September 15, 2022, and shall terminate on September 30, 2027, unless terminated earlier as set forth herein.

2. Compensation to Consultant Section of Original Agreement shall be amended to read as follows:

Consultant shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed one hundred eighty thousand, four hundred and fifty dollars ($180,450.00) based on the rates and terms set forth in Exhibit "C," which is attached hereto and incorporated herein by this reference.

3. Exhibit C Compensation Section of Original Agreement shall be amended to read as follows:

Authority shall compensate Consultant for professional services in accordance with the terms and conditions of this Agreement based on the rates and compensation schedule set forth below.

Compensation shall be calculated based on the hourly rates set forth below up to the not to exceed budget amount set forth below.

The compensation to be paid to Consultant under this Agreement for all services described in Exhibit “A” and reimbursable expenses shall not exceed a total of one hundred eighty thousand, four hundred and fifty dollars ($180,450.00) as set forth below. Any work performed, or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to Authority unless previously approved in writing by Authority.

Amended Values
Fiscal periods
ending
Financial Statement
Audit (incl
Management
Letter)
Single Audit (if
necessary)
Total Proposed Fees
September 30, 2022 $27,600 $5,300 $32,900
September 30, 2023 $28,650 $5,300 $33,950
September 30, 2024 $29,750 $5,300 $35,050
Item 1g
Attachment 1
-2-
September 30, 2025 $30,900 $5,300 $36,200
September 30, 2026 $32,050 $5,300 $37,350
Contingency $5,000 $5,000
TOTAL $180,450

4. This Amendment shall be effective on April 13, 2023.

5. Except as expressly modified herein, all of the provisions of the Original Agreement shall remain in full force and effect. In the case of any inconsistencies between the Original Agreement and this Amendment, the terms of this Amendment shall control.

6. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the dates set forth besides their signatures below.

RECOMMENDED FOR APPROVAL
_________________________________________
Amrit Singh, CFO and Director of Administrative Services

CONSULTANT NAME

PISENTI & BRINKER, LLP
By: __________________________
Name: ________________________
Title: _________________________
Date: __________________________

SILICON VALLEY CLEAN ENERGY

AUTHORITY
A Joint Powers Authority
By: ___________________________
Name: Girish Balachandran
Title: Chief Executive Officer
Date: __________________________
APPROVED AS TO FORM:
__________________
Counsel for Authority
Item 1g
Attachment 1
-3-
ATTEST:
___________________
Authority Clerk
Item 1g
Attachment 1
2/2022 Version

AGREEMENT BETWEEN THE SILICON VALLEY CLEAN ENERGY AUTHORITY AND

PISENTI & BRINKER, LLP
FOR

FINANCIAL AUDIT SERVICES
14th day of September, 2022, by
and between the SILICON VALLEY CLEAN ENERGY AUTHORITY, an independent public agency, ("Authority"), and Pisenti & Brinker, LLP, a California corporation whose address is 3562 Round Barn Circle, Suite 200, Santa Rosa, CA 95403 (hereinafter referred to as "Consultant") (collectively refer
RECITALS:

A. Authority is an independent public agency duly organized under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq
B. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement pursuant to the terms and conditions described herein.

C. Authority and Consultant desire to enter into an agreement for financial audit services upon the terms and conditions herein.

NOW, THEREFORE, the Parties mutually agree as follows:

1. TERM
The term of this Agreement shall commence on September 15, 2022, and shall terminate on September 30, 2023, unless terminated earlier as set forth herein.

2. SERVICES TO BE PERFORMED
Consultant shall perform each and every service set forth in Exhibit "A" pursuant to the schedule of performance set forth in Exhibit "B," both of which are attached hereto and incorporated herein by this reference.

3. COMPENSATION TO CONSULTANT
Consultant shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed Thirty-two thousand, nine hundred dollars ($32,900.00) based on the rates and terms set forth in Exhibit "C," which is attached hereto and incorporated herein by this reference.

4. TIME IS OF THE ESSENCE
Consultant and Authority agree that time is of the essence regarding the performance of this Agreement.

Item 1g
Attachment 2
1 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D THIS AGREEMENT ("Agreement"), is entered into this
red to as the "Parties" and individually as a "Party") . . ) ("Act") with the power to conduct its business and enter into agreements. 2/2022 Version

5. STANDARD OF CARE
Consultant agrees to perform all services required by this Agreement in a manner commensurate with the prevailing standards of specially trained professionals in the San Francisco Bay Area under similar circumstances and in a manner reasonably satisfactory to Authority and agrees that all services shall be performed by qualified and experienced personnel. Consultant shall be responsible to Authority for any errors or omissions in the performance of work pursuant to this Agreement. Should any errors caused by Consultant be found in such services or products, Consultant shall correct the errors at no additional charge to Authority by redoing the professional work and/or revising the work product(s) called for in the Scope of Services to eliminate the errors.

Should Consultant fail to make such correction in a reasonably timely manner, such correction may be made by Authority, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, Authority may deduct the cost of such correction from any retention amount held by Authority or may withhold payment otherwise owed Consultant under this Agreement up to the amount of the cost of correction.

6. INDEPENDENT PARTIES
Authority and Consultant intend that the relationship between them created by this Agreement is that of an independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by compensation plans, vacation and sick leave are available from Authority to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. Consultant shall indemnify and hold harmless Authority and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of Authority officials, from any and all liability, damages, claims, costs and have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to Authority from Consultant as a result of
Authority any reimbursement or indemnification arising under this section.

7. NO RECOURSE AGAINST CONSTITUENT MEMBERS OF AUTHORITY Authority is organized as a Joint Powers Authority in accordance with the Joint Powers Act of the State of California (Government Code Section 6500 et seq.) pursuant to a Joint Powers Agreement dated March 31, 2016, and is a public entity separate from its constituent members.

Authority shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Consultant shall have no rights and shall not make any claims, take any this Agreement.

8. NON-DISCRIMINATION
In the performance of this Agreement, Consultant, and any subconsultant under the Consultant, shall not discriminate against any employee, subcontractor or applicant for Item 1g
Attachment 2
2 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D Authority to its employees, including but not limited to, unemployment insurance, workers' expenses of any nature to the extent arising from Consultant's personnel practices. Authority shall Consultant's failure to promptly pay to
actions or assert any remedies against any of Authority's constituent members in connection with 2/2022 Version
employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information, sexual orientation, military or veteran status, or other basis prohibited by law, except as provided in Government Code section 12940. Consultant shall have responsibility for compliance with this Section.

9. HOLD HARMLESS AND INDEMNIFICATION
A. General Indemnification. Consultant agrees to accept responsibility for loss or damage to any person or entity, including the Authority, and to defend, indemnify, hold harmless, and release the Authority, its officers, agents, and employees, from and against any and all actions, claims, damages, liabilities, or expenses, that may be asserted by any person or entity, including Consultant, arising out of or in connection with the negligent performance or willful misconduct of Consultant hereunder, whether or not there is concurrent negligence on the part of the Authority, but excluding liability arising out of or due to active negligence or willful misconduct. This indemnification obligation is limited to the total professional fees paid to and/or incurred by Consultant hereunder; provided, however, that such indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Consultant or its agents under workers compensation acts, disability benefits acts, or other employee benefit acts. The parties hereto understand and agree that the foregoing is not intended to abrogate, limit or violate any terms and conditions of Consultant's existing general and professional liability insurance coverages, nor reduce or limit the amount otherwise payable from such policies relating to or on account of a claim falling within the scope of this section.

B. Intellectual Property Indemnification. Consultant hereby certifies that it owns, controls, or licenses and retains all right, title, and interest in and to any intellectual property it uses in relation to this Agreement, including the design, look, feel, features, source code, content, and other technology relating to any part of the services and including all related patents, inventions, trademarks, and copyrights, all applications therefor, and all trade names, service expressly provided by this Agreement. Consultant warrants that the services to be provided pursuant to this Agreement do not infringe, violate, trespass, or constitute the unauthorized use or misappropriation of any IP Rights of any third party. Consultant shall indemnify, defend, and hold Indemnitees, harmless from and against any Liabilities by a third party that the services to be provided pursuant to this Agreement infringe or violate any third-party such right is enforceable in the United States. Such costs and expenses shall include reasonable litigation.

C. The acceptance of the services by Authority shall not operate as a waiver of these rights of indemnification. The hold harmless and indemnification provisions of this Section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liability.

D.
expiration or termination of this Agreement.

10. INSURANCE
A. General Requirements. On or before the commencement of the term of this Item 1g
Attachment 2
3 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D the Authority's
marks, know how, and trade secrets ( collectively referred to as "IP Rights"), except as otherwise 's IP Rights, provided any
attorneys' fees of counsel of Authority's choice, expert fees and all other costs and fees of Consultant's indemnifications and obligations under this section shall survive the 2/2022 Version
Agreement, Consultant shall furnish Authority with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with the requirements listed in Exhibit "D," which is attached hereto and incorporated herein by this reference. Such insurance and certificates, which do not obligations under this Agreement, shall also contain substantially the following statement:
"Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereo
advance written notice to the Authority by certified mail, Attention: Chief Executive Officer." Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to Authority and licensed to do insurance business in the State of California.

Endorsements naming the Authority as additional insured shall be submitted with the insurance certificates.

B. Subrogation Waiver. Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her/its insurance for recovery. Consultant hereby grants to Authority, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or Authority with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of Consultant may acquire against Authority by virtue of the payment of any loss under such insurance.

C. Failure to Secure or Maintain Insurance. If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, Authority shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid.

D. Additional Insured. Authority, its members, officers, employees and volunteers shall be named as additional insureds under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.

E. Sufficiency of Insurance. The insurance limits required by Authority are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant.

F. Maximum Coverage and Limits. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the additional insureds. Furthermore, the requirements for coverage and limits shall be the minimum coverage and limits specified in this Agreement, or the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured, whichever is greater.

11. CONFLICT OF INTEREST
Consultant warrants that it, its officers, employees, associates and subcontractors, presently Item 1g
Attachment 2
4 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D limit Consultant's indemnification
f, the insurer affording coverage shall provide thirty (30) days' 2/2022 Version
have no interest, and will not acquire any interest, direct or indirect, financial or otherwise, that would conflict in any way with the performance of this Agreement, and that it, its officers, employees, associates and subcontractors, will not employ any person having such an interest.

Consultant and its officers, employees, associates and subcontractors, if any, shall comply with all conflict of interest statu
Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant may perform similar services for other clients, but Consultant and its officers, employees, associates and subcontractors shall person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this section into any subcontract that Consultant executes in connection with the performance of this Agreement. Consultant understands that it may be required to fill out a conflict of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions or serve in a staff Authority, as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations.

12. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of Authority. Any attempt to do so without such consent shall be null and void, and any assignee, sublessee, pledgee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Consultant from Authority under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to Authority by Consultant.

The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation.

13. SUBCONTRACTOR APPROVAL
Unless prior written consent from Authority is obtained, only those persons and subcontractors whose names are attached to this Agreement shall be used in the performance of this Agreement.

In the event that Consultant employs subcontractors, such subcontractors shall be required neral,
automobile and professional liability insurance in substantial conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement.

Consultant agrees to include within their subcontract(s) with any and all subcontractors the same requirements and provisions of this Agreement, including the indemnity and insurance s work. Subcontractors
hired by Consultant shall agree to be bound to Consultant and Authority in the same manner and Item 1g
Attachment 2
5 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D tes of the State of California applicable to Consultant's services under this not, without the Authority Representative's prior written approval, perform work for another to furnish proof of workers' compensation insurance and shall also be required to carry ge requirements, to the extent they apply to the scope of the subcontractor' 2/2022 Version
to the same extent as Consultant is bound to Authority under this Agreement. Subcontractors shall agree to include these same provisions within any sub-subcontract. Consultant shall provide a copy of the Indemnity and Insurance provisions of this Agreement to any subcontractor. Consultant shall require all subcontractors to provide valid certificates of insurance and the required endorsements prior to commencement of any work and will provide proof of compliance to Authority.

14. REPORTS
A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of Authority. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to Authority the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of Authority, and all publication rights are reserved to Authority. Consultant may retain a copy of any Report furnished to the Authority pursuant to this Agreement.

B. All Reports prepared by Consultant may be used by Authority in execution or implementation of: (1) The original project for which Consultant was hired; (2) Completion of the original project by others; (3) Subsequent additions to the original project; and/or (4) Other Authority projects as Authority deems appropriate in its sole discretion.

C. Consultant shall, at such time and in such form as Authority may require, furnish reports concerning the status of services required under this Agreement.

D. All Reports shall also be provided in electronic format, both in the original file format (e.g., Microsoft Word) and in PDF format.

E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement that has not been publicly released shall be made available to any individual or organization by Consultant without prior approval by Authority.

F. Authority shall be the owner of and shall be entitled upon request to immediate possession of accurate reproducible copies of Reports or other pertinent data and information gathered or computed by Consultant prior to termination of this Agreement or upon completion of the work pursuant to this Agreement.

15. RECORDS
Consultant shall maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by Authority that relate to the performance of services under this Agreement, in sufficient detail to permit an evaluation of the services and costs. All such records shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of Authority or its designees at all proper times, and gives Authority the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a minimum period of five (5) years after Consultant receives final payment from Authority for all services required under this agreement

16. PARTY REPRESENTATIVES
Item 1g
Attachment 2
6 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D The Chief Executive Officer ("Authority Representative") shall represent the Authority in 2/2022 Version
all matters pertaining to the services to be performed under this Agreement. Kellin Gilbert be performed under this Agreement.

17. CONFIDENTIAL INFORMATION AND DOCUMENTS
A. Consultant covenants that all data, reports, documents, discussion, or other performance of this Agreement are deemed confidential and shall not be disclosed or released by Consultant without prior written authorization by Authority. Authority shall grant such authorization if applicable law requires disclosure. Consultant, its officers, employees, agents, or subcontractors shall not without written authorization from the Authority Representative or unless requested in writing by the Authority Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement or relating to any project or property located within the Authority. gives Authority notice of such court order or subpoena.

B. Consultant shall promptly notify Authority should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the Authority. Authority may, but has no obligation to, represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with Authority and to provide Authority with the opportunity to review any response to discovery requests provided by Consultant. However, control, direct or rewrite the response.

C. then
as to all data identified in such notice, Consultant shall, at no additional cost to Authority, isolate and preserve all such data pending receipt of further direction from the Authority.

D. Consultant agrees to comply with the confidentiality and data protection provisions E.
termination of this Agreement.

18. NOTICES
Any notice, consent, request, demand, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective:
(a) on personal delivery, (b) on confirmed delivery by courier service du mail, by first class mail, postage prepaid, and addressed to the Party to be notified as set forth below:

Item 1g
Attachment 2
7 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D (Consultant Representative") shall represent Consultant in all matters pertaining to the services to information ( collectively "Data") developed or received by Consultant or provided for Response to a subpoena or court order shall not be considered "voluntary," provided Consultant Authority's right to review any such response does not imply or mean the right by Authority to In the event Authority gives Consultant written notice of a "litigation hold", set forth in Exhibit "E," attached hereto and incorporated herein by this reference.

Consultant's covenants under this section shall survive the expiration or ring Consultant's and
Authority's regular business hours, or (c) three Business Days after deposit in the United States 2/2022 Version
TO AUTHORITY:
333 W. El Camino Real
Suite 330
Sunnyvale CA 94087
Attention: Chief Executive Officer
TO CONSULTANT:

Kellin Gilbert, CPA, Partner
Pisenti & Brinker, LLP
3562 Round Barn Circle, Ste 200
Santa Rosa, CA 95403

19. TERMINATION
In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If Consultant fails to cure the default within the time specified (which shall be determined by the Authority but shall be not less than 10 days) and according to the requirements the Authority by law, the Authority Representative may terminate the Agreement by giving Consultant written notice thereof, which shall be effective immediately. The Authority Representative shall also have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) calendar days' prior written notice to Consultant as provided herein. Upon receipt of any notice of termination, Consultant shall immediately discontinue performance.
due to no fault or failure of
performance by Consultant, Authority shall pay Consultant for services satisfactorily performed up to the effective date of termination. Upon termination, Consultant shall immediately deliver to the Authority any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by Consultant or given to Consultant, in connection with this Agreement. Such materials shall become the property of Authority.

Consultant shall have no other claim against Authority by reason of such termination, including any claim for compensation.

20. COMPLIANCE WITH LAWS
Consultant shall keep itself informed of all applicable federal, state and local laws, ordinances, codes, regulations and requirements which may, in any manner, affect those employed by it or in any way affect the performance of its services pursuant to this Agreement. Consultant shall, at all times, observe and comply with all such laws and regulations, including, but not limited to the Americans with Disabilities Act, the Stored Communications Act, 18 U.S.C. Section 2701, et seq., California Civil Code Sections 1798.80 through 1798.84, and the California Consumer Privacy Act, Civil Code Section 1798.100 et seq. Authority, and its officers and employees, shall not be liable at law or in equity by reason of the failure of the Consultant to comply with this paragraph.

Consultant represents and agrees that all personnel engaged by Consultant in performing services are and shall be fully qualified and are authorized or permitted under state and local law to perform such services. Consultant represents and warrants to Authority that it has all licenses, Item 1g
Attachment 2
8 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D set forth in Authority's written notice of default, and in addition to any other remedy available to In the event of Authority's termination of this Agreement 2/2022 Version
permits, certificates, qualifications, and approvals required by law to provide the services and work required to perform services under this Agreement, including a business license. Consultant further represents and warrants that it shall keep in effect all such licenses, permits, and other approvals during the term of this Agreement.

21. CONFLICT OF LAW
This Agreement shall be interpreted under, and enforced by the laws of the State of California. The Agreement and obligations of the Parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the Superior Court of the County of Santa Clara, State of California.

22. ADVERTISEMENT
Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from Authority to do otherwise.

23. WAIVER
A waiver by Authority of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.

24. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by a written document signed by both Authority and Consultant.

25. AUTHORITY
The individual(s) executing this Agreement represent and warrant that they have the legal Authority and authority to do so on behalf of their respective legal entities.

26. INSERTED PROVISIONS
Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either Party.

27. CAPTIONS AND TERMS
The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.

Item 1g
Attachment 2
9 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D 2/2022 Version

28. Authority reserves the right to employ other consultants in connection with the subject matter of the Scope of Services.

29. EXHIBITS
The Exhibits referenced in this Agreement are attached hereto and incorporated herein by this reference as though set forth in full in the Agreement. If any inconsistency exists or arises between a provision of this Agreement and a provision of any exhibit, or between a provision of control.

30. FORCE MAJEURE
Consultant shall not be liable for any failure to perform its obligations under this failure was due to acts of God, embargoes, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other c
act by Consultant.

31. FINAL PAYMENT ACCEPTANCE CONSTITUTES RELEASE
The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of Authority from all claims and liabilities for compensation to make a written extra
compensation claim within ten calendar days of the receipt of that check. However, approval or payment by Authority shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, subcontractors and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by Authority for any defect or error in the work prepared by Consultant, its employees, subcontractors and agents.

32. ATTORNEY FEES
In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations fees, and other costs actually incurred in connection with such litigation or other proceeding, in addition to all other relief to which that Party may be entitled.

33. SEVERABILITY
If any provision in this Agreement is held by a court of competent jurisdiction to be illegal, invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

34. SUCCESSORS AND ASSIGNS
The terms and conditions of this Agreement shall be binding on the successors and assigns Item 1g
Attachment 2
10 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D

AUTHORITY'S RIGHTS TO EMPLOY OTHER CONSULTANTS
this Agreement and a provision of Consultant's proposal, the provisions of this Agreement shall Agreement if Consultant presents acceptable evidence, in Authority's sole judgment, that such asualty, or other causes beyond Consultant's reasonable control and not due to any Consultant for anything done, furnished or relating to Consultant's work or services. Acceptance of payment shall be any negotiation of Authority's check or the failure to under this Agreement, the prevailing Party shall be entitled to recover all attorneys' fees, experts' 2/2022 Version
of the Parties to this Agreement.

35. NO THIRD PARTY BENEFICIARIES INTENDED
This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.

36. COUNTERPARTS; FACSIMILE/PDF/ELECTRONIC SIGNATURE
This Agreement may be executed in multiple counterparts, all of which shall be deemed an original, and all of which will constitute one and the same instrument. The Parties agree that a facsimile, PDF or electronic signature may substitute for and have the same legal effect as the original signature.

37. DRAFTING PARTY
This Agreement shall be construed without regard to the Party that drafted it. Any ambiguity shall not be interpreted against either Party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.

IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed as of the date set forth above.

RECOMMENDED FOR APPROVAL
__________________________________________________________ Amrit Singh, Chief Financial Officer/Director of Administrative Services Item 1g
Attachment 2
11 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D 2/2022 Version

CONSULTANT NAME
Pisenti & Brinker, LLP
By: ________________________
Name: ____________________
Title: _________________________
Date: ______________________

SILICON VALLEY CLEAN ENERGY

AUTHORITY
A Joint Powers Authority
By: ______________________
Name: Girish Balachandran
Title: Chief Executive Officer
Date: ____________________
APPROVED AS TO FORM:
_______________________
Counsel for Authority
ATTEST:
_____________________
Authority Clerk
Item 1g
Attachment 2
12 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D r-; ocuSigned by:
~ 2sf;:;:!f rJ
Partner
9/15/2022
9/15/2022
2/2022 Version
Exhibit A
Scope of Services
Perform audits of the basic financial statements of the Silicon Valley Clean Energy Authority (Authority) as set forth below for the period October 1, 2021 to September 30, 2022. Perform the audit in accordance with auditing standards generally accepted in the United States of America as set forth by the American Institute of Certified Public Accountants. If necessary, perform a Single Audit of the California Arrearage Payment Program (CAPP) according to Uniform Guidance.

Reports to be prepared include:

Report on the fair presentation of the financial statements of the Authority; Management letter of comments;
Report on significant deficiencies or material weaknesses in internal control, if any are identified;
Other communications to those charged with governance as required by professional standards.

Report on internal control over financial reporting and on compliance and other matters based on an audit of financial statements performed in accordance with Government Auditing Standards (if a single audit is required);
Report on compliance for each major federal program and report on internal control over compliance required by the Uniform Guidance (if a single audit is required); Schedule of findings and questioned costs and schedule of prior audit findings and responses (if a single audit is required).

PISENTI & BRINKER, LLP will retain all working papers and reports for a minimum of seven years. Working papers are available upon request to the government agencies with oversight over the Authority.

During the audits, PISENTI & BRINKER, LLP will observe the adequacy of the system of internal control relevant to the basic financial statements of the Authority. At the conclusion of the audits, PISENTI & BRINKER, LLP will make a presentation to the board or other representatives of the Authority if requested and present the audit report, findings, and make other communications as required by professional standards.

During the audits, PISENTI & BRINKER, LLP will provide routine progress reports to the audit committee, SVCE staff and outside accountant on the status of the engagement.

The Management Letter of Comments will address the following:

Areas where operational processes can be streamlined and made more efficient; Compliance with other laws and regulations applicable to the Authority.

Should any irregularities or illegal acts come to the attention of the audit team during the course of the audits, PISENTI & BRINKER, LLP will make an immediate written report to Management and the Governing Board, unless they are clearly inconsequential.

Item 1g
Attachment 2
13 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D •
•
•
•
•
•
•
• Areas where the Authority's internal controls can be enhanced; •
•
2/2022 Version
Exhibit B
Schedule of Performance
We propose to perform the services according to the following timeline for the audit of the period October 1, 2021, through September 30, 2022. Subsequent years will be modified as mutually agreed upon.

September 2022:

Execute contract and provide arrangement letter to SVCE Provide SVCE staff with a preliminary list of documents for the audits Early December 2022 Entrance Conference and Preliminary Planning Phase:

Planning meetings with SVCE management and finance staff Provide SVCE with a preliminary audit plan and discuss questions regarding documents and audit procedures
Risk Assessment and Testing:
related internal controls of finance and accounting functions Testing of significant year end balances and transaction cycles Perform compliance testing in connection with laws and regulations Perform compliance testing in connection with the Single Audit, if applicable; Prior to January 16, 2023 Complete Post Fieldwork & Deliver Draft Reports:

Deliver to SVCE management:
o Draft of audited financial statements
o Draft of management letter and other communications
Meet with SVCE management as needed to discuss draft reports Prior to January 31, 2023 Reporting and Wrap Up:

Meet with SVCE finance committee to discuss draft reports Present and report on audit to SVCE board of directors (at a time and place to be designated by SVCE)
Deliver all final reports and communications
Completed Single Audit reports, if applicable.

Please note that this timeline is contingent upon our timely receipt of all documents, schedules, and other information necessary to complete the audits. Additionally, we will work with SVCE Item 1g
Attachment 2
14 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D •
•
• Kick-off meeting with audit committee
•
•
Mid-December 2022 - Fieldwork-
• Perform "walk-throughs" in order to obtain an understanding of the significant processes and •
•
•
•
•
•
•
•
•
staff to fine-tune a mutually agreeable schedule.
2/2022 Version
Exhibit C
Compensation
Authority shall compensate Consultant for professional services in accordance with the terms and conditions of this Agreement based on the rates and compensation schedule set forth below.

Compensation shall be calculated based on the hourly rates set forth below up to the not to exceed budget amount set forth below.

The compensation to be paid to Consultant under this Agreement for all services described in thirty-two thousand nine
hundred dollars ($32,900), as set forth below. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to Authority unless previously approved in writing by Authority.

Task Estimated Budget

1. Financial Statement Audit (incl Management Letter) $ 27,600

2. Single Audit (if necessary) $ 5,300

3. Total $ 32,900
Rates
Personnel Title Hourly
Kellin Gilbert Partner 390
Brett Bradford Partner 390
Jenna Blanchard Supervisor 220
Aliandra Schaffer Senior 180
Invoices
Monthly Invoicing: In order to request payment, Consultant shall submit monthly invoices to the Authority describing the services performed and the applicable charges (including a summary of the work performed during that period, personnel who performed the services, hours worked, task(s) for which work was performed). Authority shall pay all undisputed invoice amounts within thirty (30) calendar days after receipt up to the maximum compensation set forth herein. Authority does not pay interest on past due amounts.

Reimbursable Expenses
Administrative, overhead, secretarial time or overtime, word processing, photocopying, in house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. Travel expenses must be authorized in advance in writing by Authority
Item 1g
Attachment 2
15 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D Exhibit "A" and reimbursable expenses shall not exceed a total of 2/2022 Version
Additional Services
Consultant shall provide additional services outside of the services identified in Exhibit A only by advance written authorization from Authority Representative prior to commencement of any additional services.
written proposal including a description of the scope of additional services, schedule, and proposed maximum compensation. Any changes mutually agreed upon by the Parties, and any increase or decrease in compensation, shall be incorporated by written amendments to this Agreement.

Item 1g
Attachment 2
16 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D Consultant shall submit, at the Authority Representative's request, a detailed 2/2022 Version
Exhibit D
Insurance Requirements and Proof of Insurance
Consultant shall maintain the following minimum insurance coverage:

A. COVERAGE:
(1) Workers' Compensation:

Statutory coverage as required by the State of California. (2) Liability:

Commercial general liability coverage with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury and property damage.

ISO occurrence Form CG 0001 or equivalent is required.

(3) Automotive:

Comprehensive automotive liability coverage with minimum limits of $1,000,000 per accident for bodily injury and property damage. ISO Form CA 0001 or equivalent is required.
(4) Professional Liability
Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000,000. (5) Privacy and Cybersecurity Liability
Privacy and cybersecurity liability (including costs arising from data destruction, hacking or intentional breaches, crisis management activity related to data breaches, and legal claims for security breach, privacy violations, and notification costs of at least $5,000,000 US per occurrence.

Item 1g
Attachment 2
17 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D 2/2022 Version
Exhibit E
Confidentiality and Data Security Requirements
Subject to the terms and conditions of the Agreement, current proprietary and confidential from time to time in connection herewith solely for the purposes set forth in the Agreement. Such disclosure is subject to the following legal continuing representations and warranties by Consultant:

1. The Confidential Information disclosed to Consultant in connection herewith may include, without limitation, the following information about Authority Customers: (a) names; (b) addresses; (c) telephone numbers and email addresses; (d) service agreement numbers and account numbers; (e) meter and other identification numbers; (f) Authority-designated account numbers; (g) electricity and gas usage (including monthly usage, monthly maximum demand, electrical or gas consumption, HP load, and other data detailing electricity or gas needs and patterns of usage); (h) billing information (including rate schedule, baseline zone, CARE participation, end use code (heat source) service voltage, medical baseline, meter cycle, bill cycle, balanced payment plan and other plans); (i) payment / deposit status; (j) number of units; and (k) other similar information specific to Authority Customers individually or in the aggregate. Confidential Information shall also include specifically any copies, drafts, revisions, analyses, summaries, extracts, memoranda, reports and other materials prepared by Consultant or its representatives that are derived from or based on Confidential Information disclosed by Authority, regardless of the form of media in which it is prepared, recorded or retained.

2. Except for electric and gas usage information provided to Consultant pursuant to this Agreement, Confidential Information does not include information that Consultant proves (a) was properly in the possession of Consultant at the time of disclosure; (b) is or becomes publicly known through no fault of Consultant, its employees or representatives; or (c) was independently developed by Consultant, its employees or representatives without access to any Confidential Information.

3. From the Effective Date, no portion of the Confidential Information may be disclosed, disseminated or appropriated by Consultant, or used for any purpose other than the purposes set forth in the Agreement.

4. Consultant shall, at all times and in perpetuity, keep the Confidential Information in the strictest confidence and shall take all reasonable measures to prevent unauthorized or improper disclosure or use of Confidential Information. Consultant shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure and prohibits the use of the data for purposes not set forth in the Agreement. Specifically, Consultant shall restrict access to Confidential Information, and to materials prepared in connection therewith, to those employees or representatives their duties with respect to the Consultant program and who agree to be bound by the nondisclosure and confidentiality obligations of this Agreement. Prior to disclosing any Item 1g
Attachment 2
18 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D information of Authority regarding customers of Authority ("Authority Customers") and/or other confidential information ( collectively "Confidential Information") may be disclosed to Consultant of Consultant who have a "need to know" such Confidential Information in the course of 2/2022 Version
Confidential Information to its employees or representatives, Consultant shall require such employees or representatives to whom Confidential Information is to be disclosed to review this Agreement and to agree to be bound by the terms of this Agreement. Consultant shall not disclose Confidential Information or otherwise make it available, in any form or manner, to any o
further described herein, Consultant shall be responsible for establishing, maintaining, and providing a written description to Authority of, a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that comply with or are substantial similar to the security controls identified in the current version of NIST SP800-53, and that is designed to: (a) ensure the security and icipated threats or
hazards to the security or integrity of the Data; (c) protect against unauthorized disclosure, access to, or use of the Data; (d) ensure the proper disposal of Data; and, (e) ensure that all employees, agents, and subcontractors of Consultant, if any, comply with all of the security program used to protect Data be less stringent than the safeguards used by Consultant for its own data. If the services include handling credit card information, then the Consultant shall comply at all times with all applicable Payment Card Industry Data Security Standards (PCI-DSS). Consultant agrees and warrants that it is responsible for the environment adversely affected by any failure of Company to maintain compliance with provisions of the PCI-DSS applicable to the services. No less than annually, Consultant shall conduct a comprehensive independent third-party audit of its data privacy and information security program and provide such audit findings to Authority. The required audit shall be a SAS-70 (or successor standard) compliant audit, and Consultant shall provide the audit findings in the form of an SAS-70 Type II report.

5. Notwithstanding the above, Consultant may disclose Confidential Information to the extent required by an order, subpoena, or lawful process requiring the disclosure of such Confidential Information issued by a court or other governmental authority of competent jurisdiction, provided that Consultant notifies Authority immediately upon receipt thereof to allow Authority to seek protective treatment for such Confidential Information.

6. In the event of any act, error or omission, negligence, misconduct, or breach that permits any unauthorized access to, or that compromises or is suspected to compromise the security, confidentiality, or integrity of Data or the physical, technical, administrative, or organizational safeguards put in place by Consultant that relate to the protection of the security, confidentiality, or integrity of the Data, Consultant shall, as applicable: (a) notify Authority as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence; (b) cooperate with Authority in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by Authority; (c) in the case of Confidential Information, at Authority election, (i) notify the affected individuals who comprise the Confidential Information as Item 1g
Attachment 2
19 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D ther person or entity that is not Consultant's employee or representative ( a "Third Party"), except where that Third Party has separately entered into a nondisclosure agreement with Authority. Without limiting Consultant's obligation of confidentiality as confidentiality of the Authority's Data; (b) protect against any ant foregoing. In no case shall the safeguards of Consultant's data privacy and information security of "cardholder data" that Consultant possesses, stores, processes or transmits on behalf of the Authority, and for any impact on the security of Authority's cardholder data the Authority's
's sole
2/2022 Version
soon as practicable but no later than is required to comply with applicable law including, but not limited to, the provisions of California Civil Code Section 1798.82, or, in the absence of any legally required notification period, within five (5) calendar days of the occurrence; or, (ii) reimburse Authority for any costs in notifying the affected individuals; (d) in the case of Confidential Information, provide third-party credit and identity monitoring services to each of the affected individuals who comprise the Confidential Information for the period required to comply with applicable law, or, in the absence of any legally required monitoring services, for no less than twelve (12) months following the date of notification to such individuals; (e) perform or take any other actions required to comply with applicable law as a result of the occurrence; (f) without limiting Consultant
Agreement, indemnify, defend, and hold harmless Authority for any and all Claims (as thereto, which may be suffered by, accrued against, charged to, or recoverable from Authority in connection with the occurrence; (g) be responsible for recreating lost Data in the manner and on the schedule set by Authority without charge to Authority; (h) provide to Authority a detailed plan within ten (10) calendar days of the occurrence describing the measures Consultant will undertake to prevent a future occurrence and (i) upon conclusion of the occurrence, or at Authority Authority a comprehensive summary of the occurrence, including reason for occurrence, details of occurrence, how occurrence was addressed and any other information required by Authority, which shall be executed by Consultant and may be relied upon by Authority as a true and accurate account of the occurrence. Notification to affected individuals, as described above, shall comply with applicable law, be written in plain language, and contain, at a minimum: name and contact information of Consultant description of the nature of the loss; a list of the types of data involved; the known or approximate date of the loss; how such loss may affect the affected individual; what steps Consultant has taken to protect the affected individual; what steps the affected individual can take to protect himself or herself; contact information for major credit card reporting agencies; and, information regarding the credit and identity monitoring services to be provided by Consultant. This Section shall survive the termination of this Agreement.

7. It shall be considered a material breach of this Agreement if Consultant engages in a pattern or practice of accessing, storing, using, or disclosing the Confidential Information in violation of the contractual obligations described herein. Consultant understands that if Authority finds that Consultant is engaged in a pattern or practice of accessing, storing, using, or disclosing Confidential Information in violation of this Agreement Authority shall promptly cease all disclosures of Confidential Information to Consultant. Consultant misuse of data or other violation of the Disclosure Provisions, Authority shall promptly Public Utilities Commission of the complaint.

8. Consultant shall be liable for the actions of, or any disclosure or use by, its employees or representatives contrary to this Agreement; however, such liability shall not limit or prevent any actions by Authority directly against such employees or representatives for Item 1g
Attachment 2
20 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D 's obligations of indemnification as further described in this defined herein), including reasonable attorneys' fees, costs, and expenses incidental 's request, provide to
's representative; a
further understands that if Authority receives a customer complaint about Consultant's cease disclosing that customer's information to Consultant and shall notify the California 2/2022 Version
improper disclosure and/or use. In no event shall Consultant or its employees or representatives take any actions related to Confidential Information that are inconsistent with holding Confidential Information in strict confidence. Consultant shall immediately notify Authority in writing if it becomes aware of the possibility of any misuse or misappropriation of the Confidential Information by Consultant or any of its employees or representatives. However, nothing in this Agreement shall obligate the Authority to

9. Consultant shall comply with the consumer protections concerning subsequent disclosure and use set forth in Attachment B to California Public Utilities Commission (CPUC) Decision No. 12-08-045.

10. In addition to any other requirements set forth in the Agreement, within ten (10) business either return to Authority all tangible Confidential Information, including but not limited to all electronic files, documentation, notes, plans, drawings, and copies thereof, or will provide Authority with written certification that all such tangible Confidential Information of Authority has been destroyed.

11. Consultant acknowledges that disclosure or misappropriation of any Confidential Information could cause irreparable harm to Authority and/or Authority Customers, the amount of which may be difficult to assess. Accordingly, Consultant hereby confirms that the Authority shall be entitled to apply to a court of competent jurisdiction or the California Public Utilities Commission for an injunction, specific performance or such other relief (without posting bond) as may be appropriate in the event of improper disclosure or misuse of its Confidential Information by Consultant or its employees or representatives. Such right shall, however, be construed to be in addition to any other remedies available to the Authority, in law or equity.

12. In addition to all other remedies, Consultant shall indemnify and hold harmless Authority, its officers, employees, or agents from and against and claims, actions, suits, liabilities, disbursements) attributable to actions or non-actions of Consultant and/or its employees and/or its representatives in connection with the use or disclosure of Confidential Information.

13. When Consultant fully performs the purposes set forth in the Agreement, or if at any time Consultant ceases performance or Authority requires Consultant cease performance of the purposes set forth in the Agreement, Consultant shall promptly return or destroy (with written notice to Authority itemizing the materials destroyed) all Confidential Information then in its possession at the direction of Authority. Notwithstanding the foregoing, the nondisclosure obligations of this Agreement shall survive any termination of this Agreement.

Item 1g
Attachment 2
21 DocuSign Envelope ID: 839D52DC-0BC1-4BFA-8653-CD133888229D monitor or enforce the Consultant's compliance with the terms of this Agreement. days of receipt of Authority's written request, and at Authority's option, Consultant will damages, losses, expenses and costs (including reasonable attorneys' fees, costs and

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Staff Report – Item 1h
Item 1h: Executive Committee Report
To: Silicon Valley Clean Energy Board of Directors
Prepared by: Tina Walia, Executive Committee Chair
Date: 4/12/2023
The Executive Committee met March 24, 2023 at our first in-person meeting since 2020 to consider recommendations regarding an amendment to SVCE’s Operating Rules and Regulations, recommend the Board of Directors approve a power purchase agreement with Middle River Power, recommend the Board of Directors approve a power purchase agreement with Rio Bravo Fresno, provide feedback on an electrification discount design, and receive information on the Member Agency Programs and Workgroup Activities.

Board Clerk Andrea Pizano presented an item requesting the Executive Committee’s support in recommending an amendment to SVCE’s Operating Rules and Regulations to expand the Executive Committee’s membership to up to six Board members. The committee voted to support staff’s recommendation, which will be on the agenda for the April board meeting.

Monica Padilla, COO and Director of Power Resources, and Charles Grinstead, Senior Manager of Power Resources, presented two items: 1) an item requesting the Committee recommend that the Board of Directors approve a power purchase agreement (PPA) with Middle River Power to meet resource adequacy and mid-term reliability procurement order requirements, and 2) an item requesting the Committee recommend that the Board of Directors approve a PPA with Rio Bravo Fresno to meet renewable portfolio standard and resource adequacy requirements.

Staff’s recommendation for the Executive Committee to recommend that the SVCE Board of Directors approve the Middle River Power PPA included three parts: 1) delegate authority to the CEO to finalize and execute a PPA with Middle River Power for its Hybrid Natural Gas Power Plant with Battery Energy Storage System, 2) approve exception to the Energy Risk Management Policy to enable gas transactions needed to manage Hanford PPA, and 3) direct staff to develop a policy and/or guidelines to set aside funds to be used for programs and/or projects to mitigate emissions associated with energy produced by the Hanford project resulting from the Hanford PPA. The committee had a robust discussion with staff and voted to support the recommendation, which will be presented by staff to the Board at the April meeting.

Staff’s recommendation for the Rio Bravo Fresno Renewable Biomass project was requested as the agreement is needed to meet Renewable Portfolio Standard and Resource Adequacy requirements for calendar years 2023, 2024 and 2025. Rio Bravo Fresno is also not an enabled counterparty with SVCE and therefore the Board-approval or delegation of authority to the CEO is necessary. The committee voted to support staff’s recommendation to delegate authority to the CEO to negotiation and execute the PPA which will also be presented at the April meeting.

Peter Mustacich, Energy Services Lead, presented an item requesting feedback from the committee on the design of an electrification discount; committee members provided initial feedback to staff who will bring it Item 1h
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Agenda Item: 1h Agenda Date: 4/12/2023

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back to the Board of Directors at our April board meeting for a vote on a proposed “TOU Super” discount design structure.

Lastly, Anthony Eulo, Senior Manager of Public Sector Services, presented an update on Member Agency Programs and Workgroup Activities.

Materials from this meeting can be found on SVCE’s website: SVCE Executive Committee Meeting, March 24, 2023
The next meeting of the Executive Committee is scheduled for April 28, 2023 at 10:00 a.m.; materials will be posted no later than 72 hours in advance of the meeting.

Item 1h

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Staff Report – Item 1i
Item 1i: Legislative Response to Industry Transition 2023 Ad Hoc Committee Report To: Silicon Valley Clean Energy Board of Directors
Prepared by: Yvonne Martinez Beltran, Committee Chair
Date: 4/12/2023
The Legislative Response to Industry Transition 2023 Ad Hoc Committee held its first meeting March 29, 2023.

I was selected as Chair, and Director Klein was selected as Vice Chair of the committee.

The committee received information from staff on the state and federal legislative landscape and discussed priority legislation aligned with SVCE’s 2023 Legislative Policy Platform and focus areas.

The next meeting of the Committee is expected to be held in June and will be scheduled based on member availability.

Item 1i
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Staff Report – Item 1j
Item 1j: California Community Power Report
To: Silicon Valley Clean Energy Board of Directors
From: Girish Balachandran, CEO
Date: 4/12/2023
Per direction from the SVCE Board on December 9, 2020 for the CEO to provide a report of the ongoing activities of California Community Power (CC Power) after each of its meetings, this is to report CC Power held a regular board meeting on Wednesday, March 15, 2023.

Attached is a summary report from General Manager Alex Morris; materials from the March board meeting can be found here on the CC Power website: CC Power Meeting, 3/15/23 The next meeting of the board will be April 19, 2023 at 1:00 p.m.; meeting materials can be found on the CC Power website: https://cacommunitypower.org/meetings/
ATTACHMENTS:

1. CA Community Power Board Meeting Summary from General Manager Alex Morris, March 15, 2023 Item 1j
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California Community Power
70 Garden Court, Suite 300, Monterey, CA 93940 | cacommunitypower.org A Joint Powers Agency whose members are:

Central Coast Community Energy | CleanPowerSF | East Bay Community Energy | MCE | Peninsula Clean Energy | Redwood Coast Energy Authority | San José Clean Energy | Silicon Valley Clean Energy | Sonoma Clean Power | Valley Clean Energy
TO: CC Power Board of Directors and Alternates DATE: 3/17/2023 FROM: Alex Morris – General Manager
SUBJECT: Report on CC Power Regular Board of Directors Meeting – March 15, 2023 The CC Power Board of Directors held its regularly scheduled meeting on Wednesday, March 15, 2023, via Zoom. Details on the Board packet, presentation materials, and public comment letters can be found under the Meetings tab at the CC Power website: https://cacommunitypower.org Highlights of the meeting included the following:
• Matters subsequent to posting the Agenda. None.
• Public Comment. None.
• Consent Calendar - The Board unanimously approved the following items:
o Minutes of the Regular Board Meeting held on February 15, 2023. • Discussion of Offshore Wind Development – The Board authorized the General Manager to work with the Offshore Wind ad hoc committee to develop and possibly issue the Offshore Wind Request for Information in February. General Manager Morris updated the Board on activities of the subcommittee and the projected timeline. Board members expressed a continued interest in participating in the project and suggested the schedule be accelerated. The board took no action.
• Near-Term Workplan and Preliminary 2023-2024 Budget Briefing – CC Power is transitioning from a Calendar Year budget to July – June fiscal year to better align with Member budgeting. General Manager Morris presented his work plan and his initial thoughts on the FY ‘23/24 as part of that alignment. Mr. Morris noted that the Board-Approved Strategic plan provides direction for CC Power work plans and resourcing levels in developing the budget. He reviewed the direction provided by the Strategic plan, the value-add work areas that have been identified, the trajectory CC Power is on, and the budget implications. The Board members expressed an interest that the work plan and budget remain grounded in the Strategic plan but recognize the dynamic nature of the industry and an openness to modifications built on a business case. • Other items
o Director Marshall informed the Board the [tribe] has become a member of Redwood Coast Energy Authority
o Director Pepper informed the Board that she will retire effective at the end of June Item 1j
Attachment 1

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Staff Report – Item 1k
Item 1k: Additional Committee Reports
To: Silicon Valley Clean Energy Board of Directors
Prepared by: Andrea Pizano, Board Clerk/Executive Assistant Date: 4/12/2023
There are no reports for the 1) Finance and Administration Committee, and 2) Audit Committee, as they have not met since February 2023.

The next meetings for these committees are expected in the coming months.

Item 1k
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Staff Report – Item 2
Item 2: CEO Report
To: Silicon Valley Clean Energy Board of Directors
Prepared by: Girish Balachandran, CEO
Date: 4/12/2023
REPORT
Staff Updates
Alex Krause joined the SVCE team on March 13, 2023 as a Senior Quantitative Analyst. He will be working on risk quantification, enhancing strategies, and creating financial models. Prior to joining SVCE, Alex was a risk manager at a credit hedge fund, where he built models to reduce risk, increase yield, and hedge tail scenarios. He also worked as a risk manager in the prime brokerage of Bank of America, evaluating institutional client portfolios and developing analytical tools. Alex received a B.S. in Engineering from Harvey Mudd College, specializing in Structural Dynamics and Systems Engineering, and an M.S. in Financial Engineering from Baruch College.

Leanna Huynh joined SVCE March 27, 2023 as a Senior Programs Specialist and will be supporting the implementation of SVCE’s building decarbonization programs. Prior to joining SVCE, Leanna developed and implemented residential electrification programs at City of Palo Alto Utilities including a turnkey installation program for heat pump water heaters and an online solar and electric vehicle cost calculator tool. Leanna has a B.S. degree in Environmental Science from UCLA and an MBA in Sustainable Management from Presidio Graduate School.

Jessica Feng joined SVCE on March 31, 2023 as the Power Resource Planner in the Power Resources Department. Jessica will lead SVCE’s load forecasting function to aid in planning and procurement for demand and supply-side resources. Additionally, Jessica will also support long-term planning and policy efforts, assist with development of distributed energy programs and provide analytical support to the Policy, Planning, Procurement, Regulatory and Operations team as needed. Prior to joining SVCE, Jessica spent time at two large investor owned utilities most recently with Pacific Gas and Electric as Expert Strategic Analyst for Clean Energy Programs and before that with Pacificorp as a Market Fundamentals Consultant. Jessica holds multiple degrees including a Master of Science in Computer Science from College of William and Mary; Master of Science in Applied Economics and Statistics from Clemson University; and a Bachelor of Science in Economics from Peking University.

Eric Rodriguez joined the Decarbonization Programs and Policy team April 3, 2023 as a program lead. Eric joins us from the Building Electrification Institute where he has been supporting cities from across the nation electrify buildings. Prior to joining SVCE, he worked at the City of San Jose. Eric has a background in community organizing and he will play a key role in building engagement with a broad set of community groups and organizations.

Kaley Dodson joined the ESCR team as an Energy Services Specialist on April 10th. She will focus on the Energy Services side enabling us expand our customer engagement plans. Kaley comes to us with 5 years of experience in ecological conservation, most recently with the Northern Sierra Partnership, a collective conservation effort comprising The Nature Conservancy, Trust for Public Land, and three regional organizations. She is a Stanford Item 2
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Agenda Item: 2 Agenda Date: 4/12/2023

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grad with a BS in Earth Systems and master’s from the UCSB Bren School of Environmental Science specializing in Energy and Climate.

Personnel Officer Update
SVCE's recruiting efforts continue to pay off, with two new Power Analysts joining the 4PRO team in late April, beyond the five new staff being introduced at this April meeting. Staff is putting finishing touches on the upcoming quarterly retreat on April 13th and 14th, and we hope to see some of you for dinner on Thursday evening. The remaining six positions are in various stages of recruitment, and staff hopes to present more hiring announcements at the May Board Meeting.

Website Navigation Update
The SVCE website navigation was updated in March to improve the user experience for customers and key stakeholders. SVCE website traffic has grown 70% from 2019 – 2022, as a result of our digital engagement efforts. The new navigation offers more details about SVCE, our story, how Community Choice Energy works, and makes customer rebates more forward-facing. These updates were informed by user testing and a survey that was performed last year. The footer of the website includes direct links for stakeholders and industries looking to do business with SVCE.

New webpages of interest:
• Member Agency Resources - created specifically for our member communities and board members (https://svcleanenergy.org/member-agencies/)
• Community Resilience webpage – showcases the community energy resilience projects starting to come online, that support our member jurisdictions from SVCE-provided grant funding (https://svcleanenergy.org/community-resilience/)
Additional updates, including a new filtering tool for customer rebates, are in development and will be launching soon.

DynaFLEX Grant Application
In March, SVCE joined a grant submission lead by the Electric Power Research Institute (EPRI) for a U.S.

Department of Energy’s Grid Resilience and Innovation Partnerships (GRIP) opportunity through the federal Bipartisan Infrastructure Law. The Dynamic Rates Deployment Project to Support Grid Reliability, Flexibility and Resilience (DynaFLEX) proposal will deploy machine-readable dynamic price signals to Automated Service Providers. The goal of the project is to increase the reliability, efficiency, and flexibility of the grid, and aligns and furthers existing state efforts on real-time pricing. As part of the grant submission, SVCE plans to commit to a $1,000,000 cost share in the form of cash and in-kind services over 3 years if DOE awards the grant. We anticipate hearing back from EPRI on the status of the grant application by mid-summer 2023. SVCE’s commitment letter is attached to this report.

CEO Agreements Executed
The following agreements have been executed by the CEO, consistent with the authority delegated by the Board:
1) Silicon Valley Independent Living Center, Amendment: The Portable Battery Program for Medical Baseline Customer, date extension to April 17, 2024
2) SMUD, Task Order: SMB Program Support, not to exceed $40,500 3) City of Milpitas, Grant Agreement: Decarbonization Grant Program Agreement, not to exceed $95,000 4) Joint Venture Silicon Valley, Amendment: Convening Support for Silicon Valley Transportation Electrification Clearinghouse and Regional Electric Vehicle Leadership Recognition Programs Services, extends date to 12/31/23
5) Municipal Resource Group, Amendment: Organizational Team Training Services, not to exceed $90,000, extends date to 12/31/23
6) City of Sunnyvale, Grant Agreement: Decarbonization Grant Program Agreement, not to exceed $500,000, 3/21/23 – 12/31/24
7) NewGen Strategies & Solutions, Amendment: Advice and expert testimony to PG&E 2020-22 GRC, extends date to 4/30/24
Item 2
Agenda Item: 2 Agenda Date: 4/12/2023

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8) Evgo, Incentive Program Agreement: Priority Zone DC Fast Charging Incentive Program Incentive Agreement, not to exceed $200,000
9) Abbot, Stringham & Lynch, Amendment: AMI Data Consulting, extends date to 12/31/23 10)United Pacific, Incentive Program Agreement: Priority Zone DC Fast Charging Incentive Program Incentive Agreement, not to exceed $100,000
11)NP Energy, LLC, Amendment: Management and Policy Consulting, extends date to 6/30/23 Item 2

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CEO Power Supply Agreements Executed
Counterparty Name Execution/Effective Date Transaction Type Product Start Date End Date Notional Value TransAlta 2/24/2023 Purchase Hedge Energy 4/1/2023 12/31/2025 $44,666,325.75 Direct Energy 2/23/2023 Purchase Resource Adequacy 6/1/2023 6/30/2023 $235,000 Calpine 3/6/2023 Purchase Resource Adequacy 6/1/2023 6/30/2023 $282,000 Sonoma Clean Power 3/17/2023 Purchase Carbon-Free Energy 4/1/2023 12/31/2023 $375,000 Clean Power Alliance 3/9/2023 Purchase Resource Adequacy 6/1/2023 6/30/2023 $1,441,500 Constellation 3/15/2023 Purchase Resource Adequacy 6/1/2023 6/30/2023 $1,410,000 Long Beach 3/20/2023 Purchase Resource Adequacy 1/1/2024 12/31/2026 $15,750,000 Peninsula Clean Energy 3/1/2023 Purchase Import Allocation Rights 6/1/2023 6/30/2023 $46,000 Constellation 3/2/2023 Purchase Import Allocation Rights 6/1/2023 6/30/2023 $84,000 Constellation 3/2/2023 Purchase Import Allocation Rights 6/1/2023 6/30/2023 $4,000 Bonneville Power 2/17/2023 Purchase Resource Adequacy 6/1/2023 6/30/2023 $1,525,160 Bonneville Power 2/17/2023 Purchase Resource Adequacy 6/1/2023 6/30/2023 $2,832,440 Calpine 3/23/2023 Purchase Renewable Energy PCC-1 4/1/2023 12/31/2023 $4,800,000 These agreements are included in the Board packet as Appendix A.

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Presentations & Relevant Meetings Attended by CEO
- Participated in CalCCA Monthly board, executive, and legislative meetings; - CC Power Board Meeting, March 15, 2023, report included on the Consent Calendar

ATTACHMENTS

1. SVCE Letter of Commitment for the EPRI Proposal, 3/15/23

2. Clean Power Update, April 2023

3. Decarb Programs & Policy Update, April 2023

4. Energy Services & Community Relations Update, April 2023

5. Regulatory and Legislative Update, April 2023

Dear Mr. Amarnath:

Silicon Valley Clean Energy (SVCE) is pleased to offer this letter of commitment for DynaFLEX - Dynamic Rates Deployment Project to Support Grid Reliability, Flexibility and Resilience
As background, SVCE is a community-owned agency serving the majority of Santa Clara County communities, acquiring clean, carbon-free electricity on behalf of more than 270,000 mission. In addition to purchasing clean energy to support the grid, we have also taken advantage of our Silicon Valley location to explore how demand management approaches and technology can help support the grid. Gridshift: EV Charging Program helps subscribers to charge their EVs when the grid is cleanest and lowest-cost.

The DynaFLEX project will deploy the CalFUSE dynamic pricing framework and expand it to a larger scale, deploying machine-readable dynamic price signals to Automated Service Providers whose smart load-shaping technologies respond to the price in a way that increases the electric $1,000,000 cost share will be in the form of both cash and in-kind services.

Any other potential support provided by SVCE is conditioned upon the successful negotiation of mutually acceptable contractual arrangements that may be required. SVCE looks forward to participating with the EPRI Team in this effort. If you have questions, please contact Don Bray at [email protected].

Sincerely,
Girish Balachandran
Chief Executive Officer
Item 2
Attachment 1
DocuSign Envelope ID: 3A8290F6-DF51-45CF-8A98-371 F4FCB09D2 r,'\ SILICON VALLEY ~ CLEAN ENERGY
Power Research Institute, lnc.'s (EPRI) Proposal in
0002740 "Bipartisan Infrastructure Law Section 40107
EPRl's II
" proposal.
residential and commercial customers. Supporting grid reliability is important part of SVCE's As an example, SVCE's __________ _
power systems' flexibility, efficiency, reliability, and resilience.

SVCE' s proposed
• Subtitle
New SV Clean Energy
PowerPoint Template
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Attachment 2
Clean Power Update, April 2023
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•
•
•
•
•
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Attachment 2
Clean Power Update, April 2023
Seller Project Name Technology Generation MW
Storage
MW
Approximate %
of Annual load
in 2025 Term (years)
Lifetime Not
to Exceed
Authority
(MM$)
SVCE
Board
Approval Status
1 MN8 Slate Solar + Storage 93.0 46.5 6.7% 17 $198 Oct-18 Online 2 Ormat Casa Diablo Geothermal 7.0 1.4% 10 $43 Feb-20 Online 3 Atlantica Coso Geothermal 43.8 9.6% 15 $331 Mar-20 Online 4 Leeward Rabbitbrush Solar + Storage 40.0 8 3.0% 15 $64 Apr-20 Online 5 NextEra Yellow Pine Solar + Storage 50.0 26 4.1% 20 $128 May-20 Construction 6 Avantus Aratina Solar + Storage 80.0 20 6.6% 20 $174 Jun-20 Pre-construction 7 174 Power Global Atlas Solar 50.0 0 3.8% 10 $27 Jan-21 Pre-construction 8 SB Energy Angela Solar + Storage 20.0 10 1.4% 15 $35 Mar-21 Pre-construction 9 AES Mountain View Wind 33.3 3% 20 $128 Apr-21 Online
10 Origis San Luis West Solar + Storage 62.5 15.625 4% 15 $74 Apr-21 Pre-construction 11 Clearway Victory Pass Solar + Storage 100.0 25 8% 15 $149 May-21 Construction 12 Terra-Gen Cameron Crest Wind 77.7 5% 15 $150 May-21 Online 13 Rev Renewables Tumbleweed Long Duration Storage 15.9375 n/a 15 $100 Feb-22 Pre-construction 14 Onward Goal Line Long Duration Storage 14.2 n/a 15 $100 Mar-22 Pre-construction 15 Ormat Geothermal Portfolio Geothermal 16.75 3.3% 20 $256 Jun-22 Pre-construction 16 OME Fish Lake Geothermal 1.82 0.4% 20 $30 Jun-22 In-development Item 2
Attachment 2
Clean Power Update, April 2023
O SVCE Long-Term Clean Energy Contracts
••••••
Item 2
Attachment 2
Clean Power Update, April 2023
••
Item 2
Attachment 2
Clean Power Update, April 2023
Item 2
Attachment 2
Clean Power Update, April 2023
Permit Simplification Effort
Resilience at Community Facilities
FutureFit Homes & Buildings
Regional Coordination
Click for More Information Active In Development Complete C&I Clean Power Offerings
Electric Showcase Awards
FutureFit Heat Pump Water Heater
FutureFit Fundamentals
Accessible Financing
Existing Building Policy Experimentation
Feasibility Assessment - Natural Gas Phase Out By 2045
CA Electric Vehicle Infrastructure Project (CALeVIP)
Priority Zone DCFC
Future Fit Assist
Fleet Electrification Program
SV Transportation Electrification Clearinghouse (SVTEC) Other Virtual Power Plant
Customer Resource Center (eHub)
Innovation Onramp Pilots

DECARBONIZATION PROGRAMS
POWER
SUPPLY
GRID

INTEGRATION

EDUCATION &

OUTREACH
BUILT

ENVIRONMENT

MOBILITY

INNOVATION
Reach Codes
CRCR Bill Relief
Lights On Silicon Valley
GridShift EV Charging
Data Hive
Medical Baseline Battery Program
Building Decarbonization Demonstration Grants
Decarbonization Engagement Grants
SV Building Electrification Clearinghouse (SVBEC)
Multifamily EV Charging Installation Incentive Program

AT A GLANCE
Item 2
Attachment 3
-
DPP Update, April 2023 Update
.......... .

Updates to our Multifamily EV Charging Installation
Incentive Program
New SVCE incentives are now available to fund the incremental EV charging costs associated with new EV codes for new construction affordable housing. Additionally, existing multifamily buildings seeking to install EV charging can now access higher incentives aimed to address rising material and labor costs. Since this program launched last June, we have seen high interest and approved hundreds of projects.

You can learn more about these incentives and apply here.

Spring is finally here, and with it comes time to start thinking about your yard care routine. If you are tired of dealing with gas fumes and loud machinery, perhaps it’s time to upgrade your yard care equipment and go electric. Right now, Silicon Valley Clean Energy (SVCE) customers can get $50 off electric lawn mowers and leaf blowers through the Appliances Assistant.

When you upgrade your traditional gas-powered yard care equipment to electric, you are choosing the cleaner, more efficient solution. Upgrade your yard care routine and experience the many benefits of electric yard care for yourself at
https://svcleanenergy.org/electric-home/#electric-yard-care.

Upgrade Your Yard Care Routine and Get $50 Off

DECARBONIZATION PROGRAMS UPDATE

MARCH HIGHLIGHTS
Item 2
Attachment 3
DPP Update, April 2023 Update
fa, SILICON VALLEY \.:!:.,/ CLEAN ENERGY
10/22 11/22 12/22 1/23 2/23
400
300
200
100
0 Rebates claimed*: $1.06M
Rebates reserved: $392.5K
ONGOING METRICS Q1 2023
Future Fit Homes
Provide incentives to residents for electric heat
pump water heaters (HPWH), heat pump HVAC
systems, service panel upgrades, and pre-wiring
upgrades to replace gas appliances
Future Fit Assist
Assistance in site assessment, preliminary
design, and applying to rebates for charging at
multifamily housing and small and medium
workplace properties.

Cumulative Applications
Total $Funds Reserved (in thousands)
0 10 20 30 40
Commercial business
Government
Multifamily
School/Nonprofit
Charging Installation
Incentive Program
Incentive program for L1 and L2 EV
charging infrastructure at multifamily
properties
*Under old program FY20** -2022
Funds Reserved: $707K
Approved Reservations: 17
Dec Jan Feb
0 10 20 30 40
HPWH

HP HVAC
Panel Upgrades
Pre-wiring
Meter Removals
Number of Reservations
K
K
K
K
Goal: 35 Sites, 150 ports
Item 2
Attachment 3
DPP Update, April 2023 Update
•
I
I
• • •
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[2ltr [CJi [CJi [2ltr [CJi [2Jli [2Jli
CALeVIP
Level 2 DCFC
500,000
000,000
500,000
0 11/21
12/21
1/22
2/223/224/225/226/22
7/228/229/22
10/223/23
200
150
100
50 0

ONGOING METRICS
Provide incentives for electric vehicle (EV) chargers
as part of a regional program
= 25 Level 2 Installations
150 Participants Complete
the Course (Phase 1)
Goal:

Funding: $1.5M
Completions
FutureFit Fundamentals
Provide financial relief to contractors by
expanding their knowledge of electrification
technologies
1K Level 2 + 85 DC Fast
Chargers by 2023
Goal:

Funding: $11.58M
= 5 Participants Complete Course
= 5 DCFC Installations
Reserved Waitlisted
Funds Issued
(To be released
in future years)
$3.44M $5.02M
$1.5M
$891K $420K
72 $6M
$4M
$2M
Being Processed
$1.25M
$560K
Q1 2023
Registrations
156
Item 2
Attachment 3
DPP Update, April 2023 Update
■
■
•
■
■
•
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1 1. Outreach Events & Sponsorships
Date Sponsorship Location
4/15/2023 Sunnyvale Earth Day
12 p.m. – 3 p.m.

Tabling
Sunnyvale Public Library
665 W Olive Ave, Sunnyvale, CA 94086
4/19/2023 Western Digital Earth Day Vendor Fair
11:30am- 1:30pm
Tabling
Western Digital Milpitas Campus
951 Sandisk Dr, Milpitas, CA 95035
4/20/2023 Supervisor Otto Lee's District 3 April Roundtable 7:00 p.m.

Presentation
Virtual
4/21/2023 Saratoga Elementary Earth Day
9:00 a.m. – 12:00 p.m.

Tabling and presentation
Saratoga Elementary
14592 Oak St, Saratoga, CA 95070
4/22/2023 Cupertino Earth Day
11:00 a.m. – 3:00 p.m.

Event stage sponsor + tabling
Library Field Park
10400 Torre Avenue
Cupertino, CA 95014
4/22/2023 Milpitas Earth Day
10:00 a.m. – 12:00 p.m.

Tabling
Milpitas Selwyn Park
Item 2
Attachment 4
ESCR Update, April 2023
2 1. Outreach Events & Sponsorships
Date Sponsorship Location
4/22/2023 Mountain View Earth Day
9:00 a.m. – 1:00 p.m.

Tabling
Mountain View Community Center Redwood Hall
201 S Rengstorff Ave, Mountain View, CA 94040
4/22/2023 Sunshine Gardens Earth Day
3:30am- 5:30pm
Tabling
Sunshine Garden Apartment Complex
132-150 Dana St Mountain View, CA 94041
4/22/2023 American Association of University Women
Community Earth Day Festival
10:00 a.m. – 3:00 p.m.

Brand recognition
Morgan Hill Community Cultural Center amphitheater
17000 Monterey Hwy, Morgan Hill, CA 95037
4/23/2023 Los Gatos Spring Into Green
10:00 a.m. – 1:00 p.m.

Tabling
Town Plaza Park
Montebello Way, Los Gatos, CA 95030
4/24-28/2023 Fremont Unified School District Earth Day Presentations Time: TBD
Homestead High School, Fremont High School, Cupertino High School Monta Vista High School
4/29/2023 Saratoga Blossom Festival
10:00 a.m. – 4:00 p.m.

Tabling
Heritage Orchard and Saratoga Civic Center
(13777 Fruitvale Avenue in Saratoga, CA).

Item 2
Attachment 4
ESCR Update, April 2023
3 Participation Rate
Overall Participation
Rate
Residential 96.33%

96.36%
Commercial 96.72%

2. Customer Participation
Item 2
Attachment 4
ESCR Update, April 2023
rA, s1L1coN VALLEY ~ CLEAN ENERGY
4 The recent MAWG meeting was held in person on March 23, 2023 and was attended by 12 different agencies and organizations with a total of 33 participants.

The following agenda items were presented and discussed:
• State Policy Keynote - Ken Branson, Senior Policy Advisor for Climate, Energy, and Environmental Issues for State Senator Josh Becker
• SVCE Existing Building Electrification Overview
• Electrification Policy Experimentation: Summary & Prioritization • City of San Jose Building Decarbonization Activities
• BAAQMD Implementation Work Group
• Upcoming EPA Grant Collaboration Opportunity

3. Member Agency Working Group – March
Update
Item 2
Attachment 4
ESCR Update, April 2023
5 4. EmpowerSV Scholarship Competition
2023 competition is about going electric &
community participation
• Students create and submit clean energy
short films for an opportunity to win up to
$3,000
• This year’s competition open to middle &
high school students
• Accepting submissions March 17 – May 12,
2023
• More info at
https://svcleanenergy.org/empower-sv/
Item 2
Attachment 4
ESCR Update, April 2023
Create a short-film and win
scholarship prizes
Get creative with clean
energy concepts!
6 5. Electrification Ad Campaign
New ad campaign is launching this month to promote electrification awareness.
• Goal is to get customers to think about planning ahead and avoiding emergency replacements.
• Ads send customers to the electric appliances page of eHub and the FutureFit Homes and Buildings rebates.

Creative drafts - not final
Item 2
Attachment 4
ESCR Update, April 2023
. \' ~, • : I lj , .',) " , • I
7 6. Press & Media
Media
• Energy efficiency rewards, The Mercury News (Campbell, Milpitas, Saratoga, Sunnyvale), 02-26-23 • Mountain View City Council member Margaret Abe-Koga announces 2024 bid for county supervisor, Palo Alto Online, 03-07-2023
• Your devices are going to make charging decisions for you - starting with your iPhone, SF Gate, 03-15- 2023
• Campbell gets $5.2M million in grants for new library, The Mercury News & East Bay Times, 03-26-2023 •
California Community Electricity Providers Issue $5 Billion in Bonds for Clean Energy Projects, YubaNet.com, 03-27-2023
• Morgan Hill earns clean energy grants, Morgan Hill Times, 03-27-23 “Silicon Valley Clean Energy provided $500,000 toward efforts to eliminate natural gas usage in the 24,000-square-foot Campbell Library. These improvements have the potential to reduce long-term maintenance costs while enhancing citywide energy conservation efforts.”
Item 2
Attachment 4
ESCR Update, April 2023
• Subtitle
New SV Clean Energy
PowerPoint Template
Item 2
Attachment 5
Leg/Reg Update, April 2023
Item 2
Attachment 5
Leg/Reg Update, April 2023
Regulatory Update:

1. Load Management Standards
Legislative Update:

1. Budget Trailer Bill

2. Key Legislation
2 Item 2
Attachment 5
Leg/Reg Update, April 2023
Item 2
Attachment 5
Leg/Reg Update, April 2023
Proceeding
Load Management
Standards
Purpose
To increase efficiency and
demand flexibility in
California's electricity
grid.
-----------
Status
Although the Load Management Standards rulemaking at the California Energy Commission (CEC) has concluded, stakeholders continue to work with CEC staff on the implementation of the regulations that resulted from the rulemaking. In Summer of 2023, all investor owned utilities (IOUs), publicly owned utilities (POUs), and large community choice aggregators (CCAs) are required to upload their time-dependent rates into the CEC's Market Informed Demand Automation Server (MIDAS). MIDAS is a database that will provide consumers with access to time-dependent rates. SVCE is currently working with IOUs, POUs, and other CCAs on resolving various implementation issues surrounding the Summer 2023 requirement.
4 Item 2
Attachment 5
Leg/Reg Update, April 2023
Item 2
Attachment 5
Leg/Reg Update, April 2023
Governor is proposing energy policy changes through the budget process Key Provisions
1) Central Procurement: Would allow the CPUC to direct the IOUs or Dept. of Water Resources to centrally procure resources.

Challenge: Very broad CPUC authority to order central procurement of any resources. 2) Expanded CPUC Authority: Broad expansion of CPUC's authority over CCAs.

Challenge: Infringes on CCA Board governance.
3) Capacity Payments: Additional payment on top of CPUC's RA penalties for when state back-up resources are used for reliability.

Challenge: Double-penalty doesn't change behavior - impacts affordability. 6 Item 2
Attachment 5
Leg/Reg Update, April 2023
Staff is reviewing bills around interconnection, Brown Act, EV, and Building Decarb bills.

Bill
AB 538 (Holden)
SB 410 (Becker)
AB 643 (Berman)
SB 411 (Portantino), AB 557 (Hart), and
SB 537 (Becker)
Summary
Directs CAISO to present a governing plan to the CEC on regionalization.

Requires IOUs to provide data to the CPUC on response time to provide upgraded electrical service for building electrification, EV charger, or solar installations.

Requires CPUC to submit report to legislature with information on interconnection timelines for customer-sited energy generation/storage resources.

Would make changes to the Brown Act to allow more flexibility in remote Board participation.
7 Item 2
Attachment 5
Leg/Reg Update, April 2023
Status of the bills that SVCE has taken positions on
Bill
AB 625
(Aguiar-Curry)
SB 488
(Alvarado-Gil)
Summary
Extends sunset date of the
BioMA T program
Allows CCAs to participate in the
BioRAM program.

Legislative
Platform Policy
Competitive Equity
Competitive Equity
SVCE Position Bill Status
Support Asm. Natural
Resources
Support Senate Energy
8 •
•
•
•
•
•
•
•
•
•
•
Item 2
Attachment 5
Leg/Reg Update, April 2023
January 4 Legislature Reconvenes
February 17 Last day for bills to be introduced
April 28 - Last day for policy committees to vote on fiscal bills May 5 - Last day for policy committees to vote on non-fiscal bills May 19 - Last day for fiscal committees to hear bills introduced in that house June 2 - Last day for each house to pass bills introduced in that house June 15 - Budget bill must pass by midnight
July 14 - Last day for policy committees to vote on bills September 1 - Last day for fiscal committees to vote on bills September 14 - Last day for each house to pass bills
October 14 - Last day for Governor to sign bills
9 SVCE Agenda Look Ahead
April - August 2023
APRIL 2023 MAY 2023 June 2023 July 2023 August 2023
Board of Directors, April 12: Board of Directors, May 10:

Consent:

Minutes
March 2023 Treasurer Report
Committee Reports
Reinstate SVCE's Delinquent Accounts &
Collections Policy
Insurance Coverage
Water Heater Loaner Contract
Regular Calendar:

Hedging Analysis
Board of Directors, June 14:

Consent:

Minutes
April 2023 Treasurer Report
Program Portfolio Management software
contract
FFH Concierge Contract
FF Assist Contract
Committee Reports
Regular Calendar:

Stress Test Analysis
Strategic Plan Update
Board of Directors, Cancelled Board of Directors, August 9:

Consent:

Minutes
May 2023 Treasurer Report
SVCE 2022 Annual Power Source
Disclosure Report Attestation
Committee Reports
Regular Calendar:

Budget Preview
Executive Committee, April 28:

Hedging Analysis
Insurance Coverage
Program Snapshot
Executive Committee, May 26:

Stress Test Analyses
Intro to 2024 Strategic Plan
Program Snapshot
Executive Committee, June 23:

FY Budget Framework
Program Snapshot
Executive Committee, Cancelled Executive Committee, August 25:

Budget Preview
Program Snapshot
4/6/23
Item 2
Attachment 6

Page 1 of 3 ends

Staff Report – Item 3
Item 3: Delegate Authority to the Chief Executive Officer to Execute a Power Purchase Agreement for Biomass Project Rio Bravo Fresno
From: Girish Balachandran, CEO
Prepared by: Monica Padilla, Chief Operating Officer
Charles Grinstead, Senior Manager of Power Resources
Date: 4/12/2023

RECOMMENDATION
Staff recommends that the Silicon Valley Clean Energy Authority’s (SVCE) Board of Directors delegate authority to SVCE’s Chief Executive Officer (CEO) to negotiate and execute a Power Purchase Agreement (PPA) with the Rio Bravo Fresno (RBF) Renewable Biomass project with the following parameters:

1. 25 MW of existing biomass qualifying as Portfolio Content Category One (PCC1) renewable energy and approximately 20 MW of Resource Adequacy (RA) qualifying capacity;

2. Contract term two years and seven months with an expected start date of May 2023; and

3. Total amount not-to-exceed $60,000,000
Approval of this authorization is necessary to help meet SVCE’s Renewable Portfolio Standard (RPS) mandates and goals and Resource Adequacy obligations. Typically, these types of resources for this term are executed through the CEO’s existing authority as delegated to the CEO through established enabling agreements with preapproved counterparties, however RBF is not a preapproved counterparty and therefore the Board is being asked to delegate the authority to the CEO.

EXECUTIVE COMMITTEE RECOMMENDATION
At the March 24, 2023 Executive Committee meeting, staff presented the RBF project. The Executive Committee unanimously voted to recommend that the Board approve staff’s recommendation to delegate authority to the CEO to negotiate and execute the RBF PPA as described herein.

BACKGROUND
As a load serving entity in California, SVCE must adhere to certain obligations including an RPS mandate which sets how much of SVCE’s retail sales must be met from RPS eligible resources, such as wind, solar, geothermal and biomass. The state mandated RPS for 2023, 2024 and 2025 is approximately 41%, 44% and 47%, respectively. Additionally, the SVCE Board has established an aggressive annual 100% Clean Energy target consisting of approximately 50% and 50% carbon-free, non-RPS, resources such as large hydro. SVCE is slightly short in its RPS position relative to the Board’s target of 50%.

The California Public Utilities Commission (CPUC) Resource Adequacy (RA) program requires that LSEs, such as SVCE demonstrate sufficient capacity to meet peak demands and demonstrate compliance on a year ahead and month ahead basis. SVCE is currently short RA in many months through 2025.

In March 2023, SVCE issued a Request for Offers (RFO) for short-term eligible resources and carbon free energy to meet 2023 and 2024 RPS and clean energy requirements. Additionally, SVCE has issued multiple Item 3
/ A"\ SILICON VALLEY
~CLEAN ENERGY
Agenda Item: 3 Agenda Date: 4/12/2023

Page 2 of 3 ends

34910991v1
RFOs for RA capacity for the 2023 through 2025 period. The RFOs have not materialized in sufficient clean energy and RA capacity and as such staff has had to reach out to the market through bilateral discussions to try to meet the various obligations. RBF was offered to SVCE through a bilateral discussion to meet SVCE’s RPS and RA requirements. The price is consistent with other offers seen through previous RFOs.

DISCUSSION AND ANALYSIS
IHI Americas and North American Cogeneration, Inc. owns, operates, and markets the power and capacity attributes associated with Rio Bravo Fresno Renewable Biomass. RBF was built in June 1988, is located within Fresno County, and operates in the CAISO balancing authority. The fuel source at RBF is renewable biomass.

Agricultural pruning and urban wood are the two major sources of biomass used at the facility. Much of the material has historically been open burned or land filled resulting in atmospheric pollution, waste of landfill space, and underutilization of our renewable resources. The circulating fluidized bed (CFB) boiler technology used at RBF allows for a more complete and efficient burn of the biomass, thus air pollutants are dramatically reduced. RBF plans to operate consistently throughout the year each hour of the day supplying renewable energy when it is most needed.

Project Overview
Project Name: Rio Bravo Fresno
Owner/Operator: IHI Americas, Inc. & North American Cogeneration, Inc.

Technology: Renewable Biomass (Wood Pruning and Urban Wood for feedstock)
Nameplate MW: 25
Expected Annual Dispatched Energy MWhs: 175,000
Expected Commercial Operation Date & Term: May 2023 – December 2025 Location: Fresno, California
Price terms: Fixed Price
SVCE’s primary interest from this project is to help meet its renewable goals as well as providing valuable RA capacity in summer months. This resource will operate as a “baseload” generator where it will generate unconstrained into the market and as such is expected to deliver approximately 20 MWs of RA qualifying capacity.

Overall, RBF provides a complete offering of economic renewable energy, capacity, and given the term of the contract, a bridge into SVCE’s long term goals of providing 100% clean energy from technologies such as solar, wind and geothermal.

ALTERNATIVES
The SVCE Board can decide not to authorize execution of the RBF PPA and direct SVCE staff to continue to seek resources to meet RPS and RA requirements. Given the demand for such products and current pricing, staff does not recommend this alternative as it increases SVCE’s risk of non-compliance and therefore penalties for both the RPS and RA mandates.

STRATEGIC PLAN
Execution of the RBF PPA supports the goals of the Board adopted Fiscal Year 2022-23 Strategic Plan including:
• Goal 1: Plan for resources to meet SVCE’s mission while balancing multiple stakeholder objectives • Goal 2: Acquire clean and reliable electricity in a cost effective, equitable and sustainable manner • Goal 3: Manage and optimize power supply resources to meet affordability, GHG reduction and reliability objectives
Item 3
Agenda Item: 3 Agenda Date: 4/12/2023

Page 3 of 3 ends

34910991v1

FISCAL IMPACT
The RBF PPA, if executed, will begin delivery in May 2023. Fiscal Year (FY) 2022-23 Operating Budget already accounts for the cost of meeting RPS and RA requirements. For future fiscal years, the cost associated with RBF PPA will be included in the Operating Budget.

Item 3

Page 1 of 7 ends

Staff Report – Item 4
Item 4: Adopt Resolution Authorizing the Chief Executive Officer to Finalize Negotiations and Execute Power Purchase Agreement with Middle River Power for the Hanford Hybrid Natural Gas Power Plant and Battery Energy Storage System; Allowing for an Exception to the Board-adopted Energy Risk Management Policy; and Directing Staff to Return with a Policy and Guidelines for Establishing a Fund to Mitigate the Impacts of Emissions Associated with the Hanford PPA
From: Girish Balachandran, CEO
Prepared by: Monica Padilla, COO and Director of Power Resources Charles Grinstead, Sr. Manager of Power Resources
Date: 4/12/2023

RECOMMENDATION
Staff recommends that the Board consider approval of Resolution No. 2023-06 (Attachment 1) which provides for the following:

1. Delegates authority to the Chief Executive Officer (CEO) to finalize negotiations and execute a Power Purchase Agreement (PPA) with Middle River Power, or its affiliate MRP Pacifica Marketing LLC, for Resource Adequacy with Dispatchable Energy from its Hanford Hybrid Natural Gas Power Plant and Battery Energy Storage System (“Hanford”) for a term not to exceed twelve years and in an amount not to exceed $280,000,000 over the life of the PPA with the following parameters:
a. Resource Adequacy (RA) capacity from existing Hanford Natural Gas Power Plant of 99.4 megawatts (MW)
b. Additional RA capacity from a new Battery Energy Storage System (BESS) of 16 MW sited adjacent to Hanford with an expected 13.97 MW to count towards the Mid-term Reliability Procurement Order and with expected commercial on-line date of April 1, 2024 date and delivery through April 30, 2036.
c. Dispatchable energy from the Natural Gas Peaker Power Plant subject to operating constraints and to meet demand under certain market and grid conditions

2. Provides for an exception to the Board-approved Energy Risk Management Policy to allow for the procurement of natural gas to manage risk associated with the Natural Gas Peaker Plant Toll portion of the Hanford project, if necessary.

3. Directs staff to develop a policy and/or guidelines to set aside funds to be used for programs and/or projects to mitigate emissions associated with energy produced by the Hanford project resulting from this PPA and return to the Board by the December 2023 Board meeting with a recommendation.

Finalization and execution of the Hanford PPA is necessary to ensure SVCE can meet its RA Program obligations as mandated by California and to further help meet its obligations under the Mid-term Reliability Procurement Order. The inclusion of an option to dispatch energy will enable SVCE to meet load requirements under certain critical market conditions and provide for grid reliability. While the investment in a natural gas power plant is not consistent with SVCE’s greenhouse gas reduction goals, the amount of energy expected to Item 4
Amended
4/11/23
Agenda Item: 4 Agenda Date: 4/12/2023

Page 2 of 7 ends

be generated is minimal. Further, support of hybrid natural gas resources with BESS is necessary to support a smooth transition to a cleaner grid and to ensure SVCE can meet its affordability and reliability objectives.

EXECUTIVE COMMITTEE RECOMMENDATION
At the March 24, 2023 Executive Committee meeting, staff presented the Hanford project to seek support for its recommendation to the Board. The Executive Committee unanimously voted to recommend that the Board approve staff’s recommendation to delegate authority to the CEO to finalize negotiations and execute the Hanford PPA as described herein.

BACKGROUND
In 2006, the California Public Utilities Commission (CPUC) launched a Resource Adequacy compliance program (“RA Program”) for all CPUC-jurisdictional load serving entities (LSE) based on the RA policy framework adopted in 2004 to ensure the reliability of electric service in California.1 SVCE is a CPUC jurisdictional LSE and therefore must adhere to the CPUC’s RA Program requirements or face penalties.

In addition to the RA Program, the CPUC launched the Integrated Resource Planning (IRP) Program in 2018 to not only establish greenhouse gas emissions (GHG) reduction targets for the electric sector but also identify procurement needed to ensure the GHG reduction targets and reliability needs of the electric system are met.2 In the 2020 cycle of the IRP, the CPUC identified the need for additional clean energy resources and capacity, including firm and/or baseload clean resources, and storage resources to enable the grid integration of the large fleet of intermittent resources being used to meet GHG emissions targets, to replace several natural gas once-through-cooling (OTC) power plants that are scheduled to be shut down, and to replace the Diablo Canyon Nuclear Power Plant (DCPP), which had been slated to retire between in 2024 and 20253.

This identification of need resulted in the CPUC issuing Decision (D.) 21-06-035, the Mid-term Reliability Procurement Order (MTR Order), requiring CPUC-jurisdictional LSEs, such as SVCE, to procure and/or develop a collective 11,500 MW of new capacity by 2026. In February 2023, the CPUC issued D.23-02-040, the Supplemental Mid-term Reliability Procurement Order (Supplemental MTR Order), requiring an additional 4,000 MW of new clean capacity to come online by 2027. SVCE’s total share of the MTR Order and Supplemental MTR Order is 317 MW, which was determined based on SVCE’s load ratio share of the CPUC’s jurisdictional load in the Pacific Gas and Electric transmission access area. SVCE has made significant progress towards meeting its MTR obligations and continues to seek new clean resources to fully comply.

At the February 2023 Board meeting, staff provided a presentation describing reliability challenges in California given the changing nature of the grid driven by California’s aggressive GHG reduction goals. Staff further explained how changes to the grid have necessitated changes to the RA Program to ensure adequate capacity supply is available to always meet demand, including days of extreme demand as witnessed during the 2020 and 2022 heatwaves. These changes include a reduction in the amount of qualifying capacity associated with intermittent renewable resources, such as solar and wind, changes to rules for use out-of-state resources, and an increase in obligations for LSEs as demonstrated through an increase in the planning reserve margin (PRM). These changes along with massive delays in bringing new clean capacity online have created a shortage of RA capacity available for California LSEs. As such, for the 2023 year-ahead RA filing period SVCE, along with many other LSEs, is facing large deficiencies and potential penalties. SVCE continues to make all efforts to procure RA for 2023 and minimize the extent of the penalties.

Additional changes to the RA Program are being considered through two active workstreams in the RA proceeding at the CPUC (Rulemaking 21-10-002): the Implementation Track Phase 3 and the Phase 2 Reform 1 Decision 04-10-035.
2 Decision 18-02-018.
3 SB 846 passed in 2022 allows for the extension of DCPP to meet grid reliability needs and shifts the cost of operating from Pacific Gas and Electric ratepayers to California’s taxpayers. The state is in the process of seeking relicensing of DCPP.

Item 4
Amended
4/11/23
Agenda Item: 4 Agenda Date: 4/12/2023

Page 3 of 7 ends

Track. If the proposals currently being deliberated are adopted and implemented, the RA Program framework will become much more complex and complicate an LSE’s ability to meet RA Program requirements due to the proposals likely leading to increased capacity scarcity. SVCE expects these RA Program reforms will make it increasingly difficult to meet RA obligations until new clean capacity can be brought online.

ANALYSIS & DISCUSSION
California through Senate Bill 100 (SB100) has set an aggressive goal to achieve a carbon free grid by 2045.

SVCE since it first launched has set its own goal to be 100% carbon free on an annual basis with a directive to evaluate pathways to carbon-free on a 24 hour by 7 days (“24x7”) a week basis to support decarbonization efforts. The transition away from natural gas to cleaner sources of electricity to meet both energy and capacity needs for reliability will likely happen over the next ten to twenty years. A portion of the fleet of natural gas power plants will likely hybridize with clean BESS or clean hydrogen while certain peaker4 plants will be retained until otherwise instructed to retire.

While SVCE has provided a 100% carbon-free source of energy since 2018, SVCE has met its RA Program requirements primarily through natural gas RA-only capacity contracts of terms of three years or less. RA-only contracts provide SVCE counting rights towards the RA Program by ensuring that these resources are available to the California Independent System Operator (CAISO) to be dispatched at any time of the day.

SVCE is not entitled to the energy produced from facilities under RA-only contracts. These short-term natural gas RA-only contracts provide for a high amount of RA counting capacity on a per megawatt basis and up until recently, market supply was sufficient and prices were relatively stable.

SVCE’s Portfolio of RA Capacity
SVCE has contracted for over two billion dollars in clean sources of energy and capacity. By 2025, assuming projects come on-line as planned, sixty-five percent of SVCE’s load will be met through long-term renewable PPAs including geothermal, solar and wind. Additionally, SVCE has 451 MW of storage either paired with solar or standalone with the ability to shift 1,806 MWh. In total, SVCE has 900 MW of clean nameplate capacity.

The CPUC’s counting rules for intermittent or renewable resources are such that only 30% or less of the nameplate capacity may be counted towards RA Program requirements. This number is expected to decrease over time as the grid becomes saturated with intermittent resources and storage and the CPUC revisits the effectiveness.

Short-term natural gas RA-only capacity contracts account for the vast majority of SVCE’s RA portfolio. In 2022, 80% of SVCE’s requirements were from RA-only contracts. For 2025, staff estimates that natural gas RA-only contracts will continue to play a major role in meeting RA program needs. Table 1 is an illustration of SVCE’s energy and capacity portfolio in 2025.
4 Peaking generating units help to meet electricity demand when demand is at its highest, or peak, such as in late afternoon and as when electricity use for air conditioning and heating increases during hot weather and cold weather respectively.

Item 4
Amended
4/11/23
Agenda Item: 4 Agenda Date: 4/12/2023

Page 4 of 7 ends

Table 1: Energy and RA Capacity Portfolio – Estimated for 2025 Estimated for 2025
Annual Energy
(GWhs)
Energy Source as a Percent
of Total Retail Sales
Capacity Source as a
Percent of Total RA
Requirement
Biomass 175 4.4% 2%
Geothermal 507 12.8% 7%
Solar 1,292 32.8% 1%
Wind 584 14.8% 2%
Large Hydroelectric 1,375 35.2% 0%
Battery Storage 0 0% 30%
Natural Gas 0 0% 58%
Total 3,933 100% 100%
Over time SVCE’s reliance on natural gas RA contracts will decrease as additional storage and clean resources are added to meet RPS, MTR and the Board’s clean energy directives.

Hanford
Middle River Power (MRP) owns, operates and markets the power and capacity attributes associated with Hanford. Hanford is a natural gas peaker power plant with a heat rate of 10.2 MMBtus/MWh. Hanford was built in 2001 and is located in Fresno County and within the CAISO balancing authority. The project operates under a carbon emissions limitation and is permitted with the ability to run up to 2,000 hours per year or

22.8% of the time.

SVCE is primarily interested in Hanford to meet RA Program requirements however, the project owner plans to hybridize the facility by adding a new BESS to the site. The BESS is expected to be on-line in April 2024 and will grid charge and provide arbitrage value to SVCE. The existing gas peaker is able to dispatch energy under certain market conditions and within certain operating constraints and as such MRP is selling Hanford with a toll option. The toll option gives SVCE the right, but not the obligation, to dispatch energy from the plant.

The main components of the proposed Hanford PPA include:

1. 99.4 MW of capacity from existing Hanford Natural Gas Power Plant Capacity (“gas peaker unit”);

2. 131.4 MW of new one-hour BESS; and

3. Up to 198,800 MWh of dispatchable energy per year from gas peaker unit (“toll”) Project Overview
Project Name Hanford
Owner/Operator MRP Pacifica Marketing LLC
Technology Natural Gas Peaker Power Plant with BESS
Existing Natural Gas Power Plant Nameplate
Capacity and RA Capacity

99.4 MWs
New BESS Nameplate Capacity and RA Capacity 131.4 MWs & 15.4 MWs Maximum and Expected Dispatched Energy Maximum: 198 GWhs Expected: 8 GWhs
Expected Commercial Operation Date & Term April 2024; 12 Years Location Fresno, California
Price terms Fixed Price Energy Toll & Resource Adequacy Item 4
Amended
4/11/23
Agenda Item: 4 Agenda Date: 4/12/2023

Page 5 of 7 ends

RA Capacity
The gas peaker unit is expected to provide 115.4 MW of RA eligible capacity. Because the fuel source is not intermittent, the counting capacity is relatively high or 100% of nameplate capacity. The new BESS will provide an additional 16 MW of qualifying RA capacity or 12% of nameplate. In total, SVCE will be able to demonstrate 115.4 MW of RA capacity starting in April 2024. Future RA capacity value is dependent on CPUC RA Program rules and highly susceptible to change especially for renewables and storage resources. The counting capacity for the gas peaker unit is expected to remain high throughout the term of the PPA.

BESS
Over the life of the contract, the Hanford’s BESS is expected to displace the runtime of the peaking gas facility due to the responsiveness of storage and the low-cost benefits they provide the CAISO in planning grid reliability. The expectation for the BESS is that it will charge during low emission hours, primarily when solar is generating and will shift that power to when peaking natural gas plants are generally being dispatched today. The battery system will charge and discharge once daily to complete a “cycle” of shifting energy to when it is most needed. SVCE sees this cannibalization effect of storage and gas playing out on a larger spectrum of the CAISO market and by placing the battery at the same project, the battery can further displace the Peaker by competing for the same transmission onto the grid.

Toll Option
SVCE will only dispatch the natural gas peaking facility when the CAISO market signals it is needed to sustain grid reliability. To aid in this, SVCE is acquiring optimization software to help analyze when these peak grid conditions are expected, which is made important by the limited run hours the resource can utilize over a calendar year. Lastly, extensive analysis was performed to understand the utilization rates for Hanford’s peaking facility, which shows run hours to decline over the contract term.

In order to operate the facility for the next day, gas usage will be forecasted using the optimization software to estimate how much should be delivered for the peaking unit. Because the gas is delivered via pipeline and not stored, any excess or additional gas needed will be managed after-the-fact. SVCE may exercise the option to procure forward gas in order to hedge against market price volatility.

Source: CAISO System September 9, 2022
Project Merits
Overall, the economics of the project add value to SVCE’s portfolio and reduce risk associated with meeting regulatory requirements for RA and MTR Procurement Order.

Item 4
Amended
4/11/23
Agenda Item: 4 Agenda Date: 4/12/2023

Page 6 of 7 ends

With the inclusion of Hanford, the portion of capacity coming from natural gas resources in 2025 is expected to decrease by 2% due to the addition of the BESS for a total of 54% of capacity coming from clean resources. Natural gas energy coming from the project is expected to be less than a percent of load. Table 2 is an illustration of SVCE’s energy and capacity portfolio in 2025 with the inclusion of Hanford.

Table 2: Energy and RA Capacity Portfolio with Hanford – Estimated for 2025 Estimated for 2025
Annual Energy
(GWh)
Energy Source as a Percent
of Total Retail Sales
Capacity Source as a
Percent of Total RA
Requirement
Biomass 175 4.4% 2%
Geothermal 507 12.8% 7%
Solar 1,292 32.8% 1%
Wind 584 14.8% 2%
Large Hydroelectric 1,375 35.2% 0%
Battery Storage (Includes
Hanford BESS) 0 0% 32%
Natural Gas RA-only 0 0% 40%
Hanford – Natural Gas Est. 8 .2% 16%
Total 3,933 100% 100%
Middle River Power
Middle River Power is a private equity sponsored asset management platform focused on US power generation assets. Their team consists of power industry veterans with deep experience in the acquisition, development, operations, management, financing, and economic optimization of energy assets. Notable assets that MRP manages include High Desert Power Plant and CalPeak.

Energy Risk Management Policy
Through Resolution 2021-25, the Board approved the latest version of the Energy Risk Management Policy (“ERM Policy”). Included in the ERM Policy is a list of products the Board has authorized the CEO to enter into.

Tolling agreements are included in the list; however gas tolling agreements are not explicitly called out. By authorizing the CEO to execute the Hanford PPA, the Board will be authorizing a gas tolling transaction.

Additionally, the structure of the gas toll is such that natural gas must be purchased to run the peaker unit.

The PPA will enable MRP, or its designated scheduling coordinator, to buy natural gas to run the peaker unit, however the ERM Policy does not allow for the purchase of natural gas. As such, the Board will need to make an exception to the ERM Policy to enable the procurement of natural gas to effectively manage the Hanford PPA as reflected in the attached resolution.

Emissions Mitigation Proposal
SVCE’s stated mission is to “Reduce dependence on fossil fuels by providing carbon free, affordable, and reliable electricity and innovative programs for the SVCE community”. Should the Board approve execution of the Hanford PPA, there will be a slight increase in emissions due to the dispatchable energy from the gas peaker unit representing less than a percent of load and 5,000 MTCO2 emissions. While these emissions are expected to decrease over time, as the BESS pushes out the peaker unit, SVCE is concerned about the impacts of the project in the near term.

Item 4
Amended
4/11/23
Agenda Item: 4 Agenda Date: 4/12/2023

Page 7 of 7 ends

To mitigate the emissions, staff proposes to develop a fund to provide for local community benefits. The funding amount and types of programs and initiatives will be determined based on needs and stakeholder input. Approval of the staff recommendation will direct staff to return to the Board with a policy and guidelines for an emission mitigation fund associated with the Hanford PPA.

STRATEGIC PLAN
Execution of the Hanford PPA supports the goals of the Board adopted Fiscal Year 2022-23 Strategic Plan including:
• Goal 1: Plan for resources to meet SVCE’s mission while balancing multiple stakeholder objectives • Goal 2: Acquire clean and reliable electricity in a cost effective, equitable and sustainable manner • Goal 3: Manage and optimize power supply resources to meet affordability, GHG reduction and reliability objectives
The Strategic Plan also includes Strategic Focus Area:
• 24x7 CLEAN ENERGY: Explore 24x7 clean energy delivery at scale, to improve on the current 100% clean energy goal
The impacts of including the Hanford PPA in SVCE’s portfolio, primarily for RA capacity, will be assessed as this Strategic Focus Area is developed.

ALTERNATIVES
The Board can decide not to approve staff’s recommendation to negotiate and execute the Hanford PPA and as an alternative direct staff to find new clean sources of RA capacity. While this is consistent with SVCE’s current efforts to meet a future clean grid and MTR obligations, the amount of capacity needed and therefore cost of relying exclusively on new clean capacity will not meet SVCE’s affordability goals and will result in a suboptimal portfolio. Additionally, to bring new clean capacity on-line, three to five years are needed. SVCE’s RA capacity needs are more immediate and failure to procure sufficient RA capacity will put SVCE at risk of non-compliance and therefore penalties.

Alternatively, SVCE could continue its current practice of short-term RA-only capacity contracts, however given the lack of resources and market prices, staff does not believe this to be a viable and therefore prudent alternative.

FISCAL IMPACT
Should the Board approve staff’s recommendation including delegating authority to the CEO to execute the Hanford PPA and staff is able to effectively execute the PPA, the cost associated will be incorporated in the fiscal year 2023-2024 Operating Budget and subsequent years as required.

ATTACHMENTS

1. Resolution 2023-06 Authorizing the Chief Executive Officer to Finalize Negotiations and Execute Power Purchase Agreement with Middle River Power for the Hanford Hybrid Natural Gas Power Plant and Battery Energy Storage System; Allowing for an Exception to the Board-adopted Energy Risk Management Policy; and Directing Staff to Return with a Policy and Guidelines for Establishing a Fund to Mitigate the Impacts of Emissions Associated with the Hanford PPA

2. Draft PPA with Middle River Power
Item 4
Amended
4/11/23
Resolution 2023-06 -1-

SILICON VALLEY CLEAN ENERGY AUTHORITY
RESOLUTION NO. 2023-06

A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SILICON VALLEY

CLEAN ENERGY AUTHORITY AUTHORIZING THE CHIEF EXECUTIVE OFFICER

TO FINALIZE NEGOTIATIONS AND EXECUTE POWER PURCHASE

AGREEMENT WITH MIDDLE RIVER POWER FOR THE HANFORD HYBRID NATURAL GAS POWER PLANT AND BATTERY ENERGY STORAGE SYSTEM;

ALLOWING FOR AN EXCEPTION TO THE BOARD-ADOPTED ENERGY RISK MANAGEMENT POLICY; AND DIRECTING STAFF TO RETURN WITH A POLICY

AND GUIDELINES FOR ESTABLISHING A FUND TO MITIGATE IMPACTS OF

EMISSIONS ASSOCIATED WITH THE HANFORD PPA

THE BOARD OF DIRECTORS OF THE SILICON VALLEY CLEAN ENERGY AUTHORITY HEREBY RESOLVES AS FOLLOWS:

WHEREAS, the Silicon Valley Clean Energy Authority (“SVCE”) was formed on March 31, 2016, pursuant to a Joint Powers Agreement to promote, develop, conduct, operate, and manage energy programs in Santa Clara County; WHEREAS, launch of service for Phase I occurred in April 2017, and launch of service for the remaining Phases occurred in July 2017; WHEREAS, the SVCE Board of Directors wishes to delegate authority to the Chief Executive Officer (“CEO”) to finalize negotiations and execute a Power Purchase Agreement (“PPA”) with Middle River Power, or its affiliate MRP Pacifica Marketing LLC, for Resource Adequacy with Dispatchable Energy from its Hanford Hybrid Natural Gas Power Plant and Battery Energy Storage System for a term not to exceed twelve years and in an amount not to exceed $280,000,000 over the life of the PPA with the following parameters:
a. Resource Adequacy (RA) capacity from existing Hanford Natural Gas Power Plant of 99.4 megawatts (MW)
b. Additional RA capacity from a new Battery Energy Storage System (BESS) of 16 MW sited adjacent to Hanford with an expected 13.97 MW to count towards the Mid-term Reliability Procurement Order and with expected commercial on-line date of April 1, 2024 date and delivery through April 30, 2036
c. Dispatchable energy from the Natural Gas Peaker Power Plant subject to operating constraints and to meet demand under certain market and grid conditions;
WHEREAS, SVCE first adopted an Energy Risk Management Policy in February 2017, which allowed SVCE to transact in the California Independent System Operator (CAISO) congestion market;
Item 4
Attachment 1
Resolution 2023-06 -2-
WHEREAS, in 2017, 2019, and 2021, the Board approved revisions to the Policy;
WHEREAS, Staff has identified that by authorizing the CEO to execute the Hanford Hybrid Natural Gas Power Plant and Battery Energy Storage System, the Board will be authorizing a gas tolling transaction which is not explicitly called out in the existing Policy;
WHEREAS, the Board will need to make an exception to the Policy to enable the procurement of natural gas to effectively manage the Hanford PPA; WHEREAS, the Board wishes to direct staff to develop a policy and/or guidelines to set aside funds to be used for programs and/or projects to mitigate emissions associated with energy produced by the Hanford project resulting from this PPA and return to the Board by the December 2023 Board meeting with a recommendation.

NOW, THEREFORE, THE BOARD OF DIRECTORS OF THE SILICON

VALLEY CLEAN ENERGY AUTHORITY DOES HEREBY RESOLVE, DETERMINE, AND ORDER AS FOLLOWS:

Section 1. The Board hereby delegates authority to the Chief Executive Officer (CEO) to finalize negotiations and execute a Power Purchase Agreement (PPA) with Middle River Power, or its affiliate MRP Pacifica Marketing LLC, for Resource Adequacy with Dispatchable Energy from its Hanford Hybrid Natural Gas Power Plant and Battery Energy Storage System (“Hanford”) for a term not to exceed twelve years and in an amount not to exceed $280,000,000 over the life of the PPA with the following parameters:
a. Resource Adequacy (RA) capacity from existing Hanford Natural Gas Power Plant of 99.4 megawatts (MW)
b. Additional RA capacity from a new Battery Energy Storage System (BESS) of 16 MW sited adjacent to Hanford with an expected 13.97 MW to count towards the Mid-term Reliability Procurement Order and with expected commercial on-line date of April 1, 2024 date and delivery through April 30, 2036
c. Dispatchable energy from the Natural Gas Peaker Power Plant subject to operating constraints and to meet demand under certain market and grid conditions;
Section 2. The Board provides for an exception to the Board-approved Policy to allow for procurement of natural gas to manage risk associated with the Natural Gas Peaker Plant toll portion of the Hanford project, if necessary; and Section 3. The Board directs staff to develop a policy and/or guidelines to set aside funds to be used for programs and/or projects to mitigate emissions associated with energy produced by the Hanford project resulting from this PPA and return to the Board by the December 2023 Board meeting with a recommendation.

Item 4
Attachment 1
Resolution 2023-06 -3-
ADOPTED AND APPROVED this 12
th day of April 2023, by the following vote:

RA Reservation Payment:

Energy Contract Quantity: 131.4 MW
Energy Reservation Price:

Energy Reservation
Payment:

Variable O&M Rate:

Milestone Completion Date
Expected Commercial Operation Date
System RA Start Date
Local RA Start Date
Local Area Fresno
Item 4
Attachment 2
Added 4/11/23

APPROVAL VERSION
7 APRIL 2023

DISPATCHABLE ENERGY AND ENERGY STORAGE AGREEMENT

COVER SHEET
(Hanford)
Seller: MRP Pacifica Marketing LLC, a Delaware limited liability company Buyer: Silicon Valley Clean Energy Authority, a California joint powers authority Effective Date: [____________], 2023
Facility Descriptions: a natural gas-fired power plant with a nameplate capacity of 99.4 MW and a battery energy storage system (BESS) with a nameplate capacity of 131.4 MW, co-located in Kings County, California, as further described in Exhibit A (the “Facility”). 2 Gas Turbine Specifications
Generating Capacity (MW) 99.4
Guaranteed Heat Rate
Daily Start Limit
Annual Run Hour Limit
Point of Interconnection
Thermal Resource PNode GWFPWR_1_UNITSAPND

BESS Specifications
Storage Contract Capacity (MW/1 hr. discharge) 131.4 MW Storage Energy (MWh) 131.4 MWh
Guaranteed Storage Availability
Guaranteed Efficiency Rate
Annual Cycle Limit
Point of Interconnection
BESS Resource PNode To be provided prior to COD
Gas Distribution Utility
Gas Distribution Utility Southern California Gas Co.

Gas Utility Receipt Point SoCal City Gate
Delivery Term: Twelve (12) Contract Years following the System RA Start Date.

Product:
☒ Resource Adequacy Benefits
☒ Facility Energy
☒ Ancillary Services
Scheduling Coordinator: Seller or Seller’s agent
Seller Payment Security:

Development Security:

Performance Security:

Item 4
Attachment 2
Added 4/11/23
3 Special Provisions:

1. End of Term Shutdown Option. Provided that this Agreement is not terminated due to an Event of Default or Force Majeure Event, at the expiration of the Delivery Term, Buyer shall have the option to direct Seller to decommission the Thermal Resource (the “Shutdown Option”). To exercise the Shutdown Option, Buyer must The decommissioning of the Thermal Resource shall be performed in accordance with all applicable Laws and Seller shall take such actions are necessary or appropriate to ensure that future electricity generating facilities developed at the Facility site have no “Scope 1” carbon emissions as defined in the World Resource Institute’s “The Greenhouse Gas Protocol” in effect on the date the Thermal Resource is decommissioned.

2. Right of First Offer.

Item 4
Attachment 2
Added 4/11/23

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

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

1.2 Rules of Interpretation .......................................................................................... 15 ARTICLE 2 TERM; COMMERCIAL OPERATION; OPTIMIZATION SERVICES ............... 16

2.1 Contract Term. ...................................................................................................... 16

2.2 Conditions Precedent ............................................................................................ 16

2.3 Scheduling Services .............................................................................................. 17

2.4 Forecasting Services ............................................................................................. 18

2.5 Financial Responsibility for Scheduling and Forecasting Services ...................... 19 ARTICLE 3 PURCHASE AND SALE ........................................................................................ 19

3.1 Purchase and Sale of Product ............................................................................... 19

3.2 Ownership of Standalone Energy Storage Incentives .......................................... 20

3.3 Capacity Attributes ............................................................................................... 20

3.4 Variable O&M ...................................................................................................... 20

3.5 Reservation Payment ............................................................................................ 20

3.6 Test Energy ........................................................................................................... 20

3.7 Emissions .............................................................................................................. 20

3.8 CPUC Mid-Term Reliability Requirements ......................................................... 21 ARTICLE 4 OBLIGATIONS AND DELIVERIES ..................................................................... 22

4.1 Product Delivery ................................................................................................... 22

4.2 Transfer of Resource Adequacy Benefits. ............................................................ 22

4.3 Seller’s Option To Provide Alternate Capacity .................................................... 23

4.4 Buyer’s Re-Sale of RA Product ............................................................................ 24

4.5 Hold-Back and Substitute Capacity ...................................................................... 25

4.6 Resource Adequacy Failure .................................................................................. 25

4.7 Gas Supply ............................................................................................................ 26

4.8 Charging Energy Management ............................................................................. 26

4.9 Reduction in Deliveries ........................................................................................ 28

4.10 Storage Availability .............................................................................................. 28

4.11 Storage Capacity Tests ......................................................................................... 28

4.12 Efficiency Guaranty .............................................................................................. 29

4.13 Heat Rate Guaranty .............................................................................................. 29

4.14 Cycle Limits ......................................................................................................... 29

4.15 Interconnection Capacity ...................................................................................... 29

4.16 Title and Risk of Loss ........................................................................................... 29 ARTICLE 5 RESERVED CAPACITY ........................................................................................ 29

5.1 Retained Right and Resale of Reserved Capacity ................................................ 29 ARTICLE 6 TAXES .................................................................................................................... 30

6.1 Allocation of Taxes and Charges .......................................................................... 30

6.2 Cooperation .......................................................................................................... 30 Item 4
Attachment 2
Added 4/11/23
ii
ARTICLE 7 MAINTENANCE OF THE FACILITY .................................................................. 30

7.1 Maintenance of the Facility .................................................................................. 30

7.2 Maintenance of Health and Safety ........................................................................ 30

7.3 Shared Facilities. .................................................................................................. 31 ARTICLE 8 METERING ............................................................................................................. 31

8.1 Metering ................................................................................................................ 31

8.2 Meter Verification ................................................................................................ 31

8.3 Meter Adjustments ............................................................................................... 31 ARTICLE 9 INVOICING AND PAYMENT; CREDIT .............................................................. 31

9.1 Contract Price ....................................................................................................... 31

9.2 Statements and Invoicing ...................................................................................... 32

9.3 Payment ................................................................................................................ 32

9.4 Books and Records ............................................................................................... 32

9.5 Invoice Adjustments ............................................................................................. 32

9.6 Billing Disputes .................................................................................................... 33

9.7 Netting of Payments ............................................................................................. 33

9.8 Payment Security .................................................................................................. 33

9.9 Use of Financial Security ..................................................................................... 34 ARTICLE 10 NOTICES .............................................................................................................. 35

10.1 Addresses for the Delivery of Notices .................................................................. 35

10.2 Acceptable Means of Delivering Notice .............................................................. 35 ARTICLE 11 FORCE MAJEURE ............................................................................................... 35

11.1 Definition .............................................................................................................. 35

11.2 Termination Following Force Majeure Event ...................................................... 36

11.3 Notice for Force Majeure. .................................................................................... 36 ARTICLE 12 DEFAULTS; REMEDIES; TERMINATION ....................................................... 37

12.1 Events of Default .................................................................................................. 37

12.2 Remedies; Declaration of Early Termination Date. ............................................. 38

12.3 Termination Payment ........................................................................................... 38

12.4 Notice of Payment of Termination Payment ........................................................ 39

12.5 Disputes With Respect to Termination Payment .................................................. 39

12.6 Rights And Remedies Are Cumulative ................................................................ 39 ARTICLE 13 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES .......... 39

13.1 No Consequential Damages .................................................................................. 39

13.2 Waiver and Exclusion of Other Damages ............................................................ 39 ARTICLE 14 REPRESENTATIONS AND WARRANTIES; AUTHORITY ............................ 40

14.1 Seller’s Representations and Warranties .............................................................. 40

14.2 Buyer’s Representations and Warranties .............................................................. 41

14.3 General Covenants ................................................................................................ 42 ARTICLE 15 ASSIGNMENT ...................................................................................................... 42 Item 4
Attachment 2
Added 4/11/23
iii

15.1 General Prohibition on Assignments .................................................................... 42

15.2 Collateral Assignment .......................................................................................... 42

15.3 Buyer Limited Assignment ................................................................................... 44 ARTICLE 16 DISPUTE RESOLUTION ..................................................................................... 45

16.1 Governing Law ..................................................................................................... 45

16.2 Dispute Resolution ............................................................................................... 45

16.3 Arbitration ............................................................................................................ 45 ARTICLE 17 INDEMNIFICATION ........................................................................................... 46

17.1 Indemnity .............................................................................................................. 46

17.2 Notice of Claim .................................................................................................... 46

17.3 Failure to Provide Notice ...................................................................................... 46

17.4 Defense of Claims ................................................................................................ 46

17.5 Rights and Remedies are Cumulative ................................................................... 47 ARTICLE 18 INSURANCE ........................................................................................................ 47

18.1 Insurance ............................................................................................................... 47 ARTICLE 19 CONFIDENTIAL INFORMATION ..................................................................... 48

19.1 Definition of Confidential Information ................................................................ 48

19.2 Duty to Maintain Confidentiality ......................................................................... 49

19.3 Irreparable Injury; Remedies ................................................................................ 49

19.4 Disclosure to Financing Parties, Etc. .................................................................... 49

19.5 Press Releases ....................................................................................................... 49 ARTICLE 20 MISCELLANEOUS .............................................................................................. 50

20.1 Entire Agreement; Integration; Exhibits ............................................................... 50

20.2 Amendments ......................................................................................................... 50

20.3 No Waiver ............................................................................................................. 50

20.4 No Agency, Partnership, Joint Venture or Lease ................................................. 50

20.5 Severability ........................................................................................................... 50

20.6 Mobile-Sierra ........................................................................................................ 50

20.7 Counterparts .......................................................................................................... 51

20.8 Electronic Delivery ............................................................................................... 51

20.9 Binding Effect ....................................................................................................... 51

20.10 No Recourse to Members of Buyer ...................................................................... 51

20.11 Forward Contract .................................................................................................. 51

20.12 Further Assurances ............................................................................................... 51

20.13 Change in Electric Market Design ........................................................................ 52

Item 4
Attachment 2
Added 4/11/23
iv
Exhibits:

Exhibit A Facility Description
Exhibit B Facility Construction and Commercial Operation Exhibit C Heat Rate and Efficiency Guaranty
Exhibit D Form of Letter of Credit
Exhibit E Storage Availability
Exhibit F Storage Capacity Tests
Exhibit G Notices
Exhibit H Operating Procedures
Exhibit I Maintenance Intervals
Exhibit J [Reserved]
Exhibit K Form of Construction Start Certificate
Exhibit L Form of Commercial Operation Date Certificate Exhibit M Form of Installed Capacity Certificate
Exhibit N Scheduling Coordinator Responsibilities
Item 4
Attachment 2
Added 4/11/23

DISPATCHABLE ENERGY AND ENERGY STORAGE AGREEMENT
This Dispatchable Energy and Energy Storage Agreement (“Agreement”) is entered into as of 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 or its Affiliates owns and operates the Thermal Resource; WHEREAS, Seller or its Affiliates intends to, develop, design, permit, construct, own, and operate the BESS Resource; 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:
“Accepted Compliance Costs” has the meaning set forth in Section 3.7(e). “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”, “controlled by”, and “under common control with”, as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person.
“Agreement” has the meaning set forth in the Preamble 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. “Alternating Current” or “AC” means alternating current. “Ancillary Services” has the meaning set forth in the CAISO Tariff. “Annual Cycle Limit” means the maximum number of times the BESS Resource can be Cycled each Contract Year as set forth on the Cover Sheet.

Item 4
Attachment 2
Added 4/11/23
2 “Annual Run Hour Limit” means the maximum number of hours the Thermal Resource can be operated each year as set forth on the Cover Sheet. “Available” means that the BESS Resource is available either to be charged or discharged. “Availability Adjustment Factor” has the meaning set forth in Exhibit E. “Availability Incentive Payments” has the meaning set forth in the CAISO Tariff. “Bankrupt” means with respect to any entity, such entity (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, (b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, (c) makes an assignment or any general arrangement for the benefit of creditors, (d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due. “Baseline Net Qualifying Capacity” means that amount of capacity identified on the Cover Sheet as the “Baseline Net Qualifying Capacity”, which capacity is not required to be Incremental Capacity.
“BESS Resource” means the battery energy storage plant identified in Exhibit A as the “BESS Resource” at the Facility as further described in Exhibit A. “BESS Resource Meter” means the meter used to measure Charging Energy and the Discharging Energy.
“BESS Resource Metering Point” means the location or locations of the BESS Resource Meters.
“BESS Resource PNode” means the BESS Resource PNode identified on the Cover Sheet, as such location may be redesignated from time to time. “Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 AM and ends at 5:00 PM Pacific Prevailing Time (PPT).
“Buyer” has the meaning set forth on the Cover Sheet.
“Buyer Default” means an Event of Default of Buyer.
“CAISO” means the California Independent System Operator Corporation. “CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.

Item 4
Attachment 2
Added 4/11/23
3 “CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures (as such term is defined in Appendix A to the CAISO Tariff), including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC; provided that if there is a conflict between the BPMs, the CAISO Operating Agreement (as such term is defined in Appendix A to the CAISO Tariff) or the Operating Procedures, on the one hand, and the CAISO Tariff, on the other hand, the CAISO Tariff will control.
“Capacity Attribute” means any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power that the Facility can accept at or deliver to the applicable Delivery Point at a particular moment and that can be purchased and sold under CAISO market rules, including Resource Adequacy Benefits. “Carbon Allowances” means compliance instruments identified in Title 17 California Code of Regulations Sections 95820 and 95821, and any replacements thereof, eligible for use to comply with the California Cap and Trade Program (Title 17 California Code of Regulations Sections 95801-96022), as the same may be amended or modified from time to time. “Carbon Emission Regulations” means those regulations that may be adopted from time to time by the State of California pertaining to limiting, taxing, charging for or otherwise regulating carbon dioxide emissions including, but not limited to, California Cap and Trade Program (Title 17 California Code of Regulations Sections 95801-96022). “Change in Law” means the adoption, promulgation, taking effect of, implementation or modification of any Law by a Governmental Authority after the Effective Date that relates to the regulation or control of any emissions associated with the Thermal Resource. “Charging Energy” means (i) the Energy delivered to the BESS Resource from the CAISO Grid pursuant to a Charging Notice as measured at the BESS Resource Metering Point by the BESS Resource Meter, as such meter readings are adjusted by the CAISO for any applicable Electrical Losses.
“Charging Notice” means the operating instruction, and any subsequent updates, given by the SC or the CAISO to the Facility, directing the Facility to charge at a specific MW rate for a specified period of time or amount of MWh, provided that any such operating instruction shall be in accordance with the Operating Procedures. For the avoidance of doubt, any Buyer request to initiate a Storage Capacity Test shall not be considered a Charging Notice. “CIRA Tool” means the CAISO Customer Interface for Resource Adequacy. “Claim” has the meaning set forth in Section 17.2.
“COD Delay Damages” means an amount equal to

“Commercial Operation” means the conditions for commercial operation of the BESS Resource set forth in Exhibit B have been satisfied.

Item 4
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4 “Commercial Operation Date” means the date on which Commercial Operation is achieved and the conditions set forth in Section 2.2 have been satisfied. “Compliance Actions” has the meaning set forth in Section 3.7(c). “Compliance Costs” has the meaning set forth in Section 3.7(c). “Compliance Expenditure Cap” has the meaning set forth in Section 3.7(c). “Compliance Showings” means the (a) the Resource Adequacy Requirements compliance or advisory showings (or similar or successor showings), and (b) if applicable, the Local RAR compliance or advisory showings (or similar or successor showings) that Buyer is required to make to the CPUC (and, to the extent authorized by the CPUC, to the CAISO), pursuant to the Resource Adequacy Rulings, to the CAISO pursuant to the CAISO Tariff, or to any Governmental Authority having jurisdiction.
“Confidential Information” has the meaning set forth in Section 19.1. “Construction Delay Damages” means an amount equal to
.
“Contract Price” has the meaning set forth in Section 9.1. “Contract Term” has the meaning set forth in Section 2.1. “Contract Year” means a period of twelve (12) consecutive months beginning on the System RA Start Date or an anniversary thereof and ending at midnight at the end of the day prior to the applicable anniversary of such System RA Start Date. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred by 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, which is incorporated into this Agreement.
“CPI-U” means the Consumer Price Index for All Urban Consumers published monthly by the U.S. Bureau of Labor Statistics.
“CPM Capacity” has the meaning set forth in the CAISO Tariff. “CPM Capacity Payment” has the meaning set forth in the CAISO Tariff. “CPUC” means the California Public Utilities Commission or any successor agency performing similar statutory functions.

Item 4
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5 “CPUC Filing Guide” is the document issued annually by the CPUC which sets forth the guidelines, requirements and instructions for load serving entities to demonstrate compliance with the CPUC’s resource adequacy program.
“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.
“Daily Start Limit” means the maximum number of times the Thermal Resource can be started each day as set forth on the Cover Sheet.
“Damage Payment” means the dollar amount that equals the amount of the Development Security less any Construction Delay Damages and COD Delay Damages received by Buyer. “Dealer” means an entity or person that buys or sells power and takes title to the power at some point.
“Defaulting Party” has the meaning set forth in Section 12.1(a). “Delivery Point” shall mean the Thermal Resource PNode or the BESS Resource PNode, as applicable.
“Delivery Term” has the meaning set forth on the Cover Sheet. “Development Security” means (i) cash or (ii) a Letter of Credit, in each case in the amount set forth on the Cover Sheet for “Development Security”. “Discharging Energy” means all Energy delivered to the Delivery Point from the BESS Resource, net of the Electrical Losses, as measured at the BESS Resource Metering Point by the BESS Resource Meter. All Discharging Energy will have originally been delivered to the BESS Resource from the CAISO Grid as Charging Energy.
“Discharging Energy Meter” means the meter used to measure the Discharged Energy. “Discharging Notice” means the operating instruction, and any subsequent updates, given by Buyer to Seller, directing the 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.
“Dispatchable Energy” means all Energy delivered by the Thermal Resource. “Drawing Party” has the meaning set forth in Section 9.9. “Early Termination Date” has the meaning set forth in Section 12.2(a).

Item 4
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6 “Efficiency Rate” means the round-trip efficiency of the BESS Resource determined in accordance with Exhibit C.
“Effective Date” has the meaning set forth on the Cover Sheet. “Electrical Losses” means, subject to meeting any applicable CAISO requirements and in accordance with Section 8.1, losses of Energy along with all transmission or transformation losses between the Delivery Point and the Facility.
“Energy” means alternating current electrical energy measured in MWh. “Energy Contract Quantity” has the meaning set forth on the Cover Sheet. “Energy Meter” means the meters used to measure Charging Energy, Discharging Energy and Dispatchable Energy, as applicable.
“Energy Reservation Payment” has the meaning set forth on the Cover Sheet. “Energy Reservation Price” has the meaning set forth on the Cover Sheet. “Environmental Attributes” means any and all environmental characteristics, environmental claims, environmental credits, environmental benefits, environmental emissions reductions, environmental offsets, environmental allowances and environmental allocations, existing now or in the future, howsoever characterized, denominated, measured or entitled, attributable to the generation of Energy from the Facility. “Excused Event” has the meaning set forth in Exhibit E. “Expected Commercial Operation Date” has the meaning set forth on the Cover Sheet. “Event of Default” has the meaning set forth in Section 12.1. “Facility” means the energy generation and storage facility described on the Cover Sheet and in Exhibit A (including the operational requirements of the energy generation and storage facility), located at the Site and related generation, storage and mechanical equipment and associated facilities and equipment required to deliver Product (but excluding any Shared Facilities), and as such generation and storage facility may be expanded or otherwise modified from time to time in accordance with the terms of this Agreement. This equipment includes but is not limited to gas turbine engines, transformers, batteries, fire suppression, thermal management, enclosures, and inverters.
“Facility Energy” means the Discharging Energy and the Dispatchable Energy. “FERC” means the Federal Energy Regulatory Commission.
“Financial Security” means the Development Security or the Performance Security, as applicable.

Item 4
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7 “Financing Party” means, collectively, any Person (i) providing senior or subordinated construction, interim, back leverage and/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 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 or (iii) participating in a lease financing (including a sale leaseback or leveraged leasing structure) with respect to the Facility. “Forecasting Agreement” has the meaning set forth in Section 2.4(a). “Flexible Capacity Category” shall be as described in the annual CPUC Filing Guide, as such may be modified, amended, supplemented or updated from time to time. “Force Majeure Event” has the meaning set forth in Section 11.1. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility or any outage of the Transmission System that prevents Seller from making Facility Energy available at the applicable Delivery Point and that is not the result of a Force Majeure Event.
“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., SP-15), all of which should be calculated for the remaining Contract Term, and include the value of Capacity Attributes.
“Gas Distribution Utility” has the meaning set forth on the Cover Sheet. “Gas Utility Receipt Point” has the meaning set forth on the Cover Sheet. “Gas Meter” means the measuring the natural gas supplied to the Thermal Resource. “Governmental Approval” means all authorizations, consents, approvals, waivers, exceptions, variances, filings, permits, orders, licenses, exemptions, notices to and declarations of or with any Governmental Authority and shall include (i) with respect to Seller, those siting and operating permits and licenses, and any of the foregoing under any applicable environmental Law, that are required for the use and operation of the Project and (ii) with respect to Buyer, those federal Item 4
Attachment 2
Added 4/11/23
8 licenses and state market participation agreements necessary or appropriate to take delivery of and resell electricity.
“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, however, that “Governmental Authority” shall not in any event include any Party. “Guaranteed Commercial Operation Date” has the meaning set forth in Exhibit B. “Guaranteed Efficiency Rate” means the percentage specified on the Cover Sheet. “Guaranteed Heat Rate” means the percentage specified on the Cover Sheet. “Guaranteed Storage Availability” has the meaning set forth on the Cover Sheet. “Heat Rate” has the meaning set forth in Exhibit C.
“Hold-Back Capacity” has the meaning set forth in Section 4.5. “Indemnifiable Loss(es)” has the meaning set forth in Section 17.1. “Incremental Capacity” means that quantity of capacity identified on the Cover Sheet as Incremental Capacity, which capacity was not included in the CPUC’s 2019-2020 IRP RESOLVE/SERVM baseline generator list identified in CPUC Decision 21-06-035. “Interconnection Agreement” means the interconnection agreements among Seller (or Seller’s Affiliate), the CAISO, and the Participating Transmission Owner, pursuant to which (i) the Thermal Resource will be interconnected with the Transmission System, providing for interconnection capacity available or allocable to the Thermal Resource that is no less than the Baseline Net Qualifying Capacity, (ii) the BESS Resource will be interconnected with the Transmission System, providing for interconnection capacity available or allocable to the BESS Resource that is no less than the Energy Contract Quantity, and pursuant to which the applicable Interconnection Facilities and any other Interconnection Facilities have or will be constructed, operated and maintained during the Delivery Term.
“Interconnection Delays” means any delay in achieving Commercial Operation due to any delay in obtaining the Interconnection Agreement or completing the Interconnection Facilities under the Interconnection Agreement provided that in either case Seller has taken actions consistent with Prudent Industry Practices to obtain the Interconnection Agreement and cause the applicable Interconnection Facilities to be completed.
“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 9.3.

Item 4
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9 “Investment Grade Credit Rating” means a Credit Rating of (i) BBB- or higher by S&P and Baa3 or higher by Moody’s if the Person is rated by both agencies, or (ii) a Credit Rating of BBB- or higher by S&P or Baa3 or higher by Moody’s if the Person is rated by only one of the agencies.
“Joint Powers Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.).
“Joint Powers Agreement” means that certain Joint Powers Agreement dated March 31, 2016, 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, permit or any interpretation thereof, promulgated or issued by a Governmental Authority.
“Letter(s) of Credit” means one or more irrevocable, standby letters of credit issued by a U.S. commercial bank, or U.S. branch of a foreign bank, with such bank having a Credit Rating of at least A- with an outlook designation of “stable” from S&P or A3 with an outlook designation of “stable” from Moody’s, in a form substantially similar to the letter of credit set forth in Exhibit D.
“Local RA Start Date” has the meaning set forth on the Cover Sheet. “Local RAR” means the local resource adequacy requirements established for load serving entities by the CPUC pursuant to the Resource Adequacy Rulings, the CAISO pursuant to the CAISO Tariff, or by any other Governmental Authority having jurisdiction. “Local RAR Attributes” means, with respect to the Facility, any and all Resource Adequacy Benefits of the Facility, as may be identified from time to time by the CPUC, CAISO, or other Governmental Authority having jurisdiction over Local RAR that can be counted toward Buyer’s Local RAR.
“Losses” means, with respect to the Non-Defaulting Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner, which economic loss (if any) shall be deemed to be the loss (if any) to such Party represented by the difference between the present value of the payments required to be made during the remaining Contract Term of this Agreement and the present value of the payments that would be required to be made under transaction(s) replacing this Agreement. Factors used in determining economic loss to a Party may include reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including 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 Capacity Attributes.

Item 4
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10 “Monthly Storage Availability” has the meaning set forth in Exhibit E. “Moody’s” means Moody’s Investors Service, Inc.
“MTR Mandate” means the mandatory procurement obligations pursuant to the CPUC Decision No. 21-06-036 for procurement of capacity that was not included in the CPUC’s 2019- 2020 IRP RESOLVE/SERVM baseline generator list identified in CPUC Decision 21-06-035. “Must Offer Obligations” means the obligation to bid or cause the SC to bid the applicable resource into the CAISO Markets in order for the applicable resource to qualify to deliver Resource Adequacy Benefits.
“MW” means megawatts in alternating current, unless expressly stated in terms of direct current.
“MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Non-Availability Charges” has the meaning set forth in the CAISO Tariff. “Non-Defaulting Party” has the meaning set forth in Section 12.2. “Notice” shall, unless otherwise specified in the Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, or email in accordance with Article 10.
“Notice of Claim” has the meaning set forth in Section 17.2. “Notification Deadline” means twenty (20) Business Days before the relevant deadlines for the corresponding Compliance Showings applicable to the relevant Showing Month. “Operating Procedures” means those rules, requirements, and procedures developed pursuant to Section 2.2 consistent with Exhibit H, as the same may be modified from time to time in accordance with this Agreement.
“Pacific Prevailing Time” means the prevailing standard time or daylight savings time, as applicable, in the Pacific time zone.
“Participating Transmission Owner” or “PTO” means an entity that owns, operates and maintains transmission or distribution lines and associated facilities 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 for the Facility is set forth in Exhibit A.
“Party” or “Parties” has the meaning set forth in the Preamble. “Performance Security” means (i) cash, (ii) a Letter of Credit or (iii) guaranty in form and substance acceptable to Buyer, acting reasonably and in good faith, in each case in the amount Item 4
Attachment 2
Added 4/11/23
11 set forth on the Cover Sheet for “Performance Security. “Permitted Transferee” means (i) any Affiliate of Seller (ii) any entity that has, or is controlled by another Person that has at least three (3) years of experience in the ownership and operations of power generation and storage facilities similar to the Facility, or has retained a third-party with such experience to operate the Facility, or (iii) any other entity approved in writing by Buyer acting reasonably and in good faith.
“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” has the meaning set forth in Exhibit I. “Present Value Rate” has the meaning set forth in Section 12.3(b)(ii). “Product” has the meaning set forth on the Cover Sheet. “Prudent Industry 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 or standalone storage facilities in the Western United States, or (b) any of the practices, methods and acts which, 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 Industry 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 or stand-alone storage in the Western United States.

Prudent Industry Practice includes compliance with applicable Laws, applicable reliability criteria, and the criteria, rules and standards promulgated in the National Electric Safety Code and the National Electrical Code, as they may be amended or superseded from time to time, including the criteria, rules and standards of any successor organizations. “RA Contract Quantity” has the meaning set forth on the Cover Sheet. “RA Delivered Quantity” means the RA Contract Quantity less any Resource Adequacy Benefits that are unavailable from the Facility due to the acts or omissions of Seller in breach of the CAISO Tariff or this Agreement plus any Replacement RA, but in any event not to exceed the RA Contract Quantity.
“RA Product” has the meaning set forth in Section 4.2(a). “RA Reservation Payment” has the meaning set forth on the Cover Sheet. “RA Reservation Price” has the meaning set forth on the Cover Sheet.

Item 4
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12 “Replacement RA” means Resource Adequacy Benefits, if any, equivalent to those that would have been provided by the Facility with respect to the applicable Showing Month, including, as applicable, Resource Category and Flexible Capacity Category, and any successor criteria applicable to the Facility, and any Local RAR; provided that any Replacement RA capacity must be communicated by Seller to Buyer with Replacement RA product information in a Notice to Buyer no later than the Notification Deadline. In addition, if the CPUC issues a decision that requires Replacement RA to be provided by an incremental resource for purposes of CPUC Decision 21-06-035 in order for Buyer’s purchase of the Incremental Capacity to satisfy the MTR Mandate, then the Replacement RA must also be provided by an incremental resource for purposes of CPUC Decision 21-06-035.
“Replacement Unit” has the meaning set forth in Section 4.3. “Reserved Capacity” has the meaning set forth in Section 5.1. “Resource Adequacy Benefits” means the rights and privileges attached to the Facility associated with the RA Contract Quantity that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and includes any local, zonal or otherwise locational attributes associated with the Facility, in addition to flex attributes. “Resource Adequacy Plan” has the meaning set forth in the CAISO Tariff. “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, and any other existing or subsequent decisions, resolutions, or rulings related to resource adequacy, including, without limitation, the CPUC Filing Guide, in each case as may be amended from time to time by the CPUC, and any other existing or subsequent ruling or decision, or any other resource adequacy Law, however described, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time throughout the Delivery Term.
“Resource Category” shall be as described in the annual CPUC Filing Guide, as such may be modified, amended, supplemented or updated from time to time. “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill Companies, Inc.).
“SC Agreement” has the meaning set forth in Section 2.3(a). “Schedule” has the meaning set forth in the CAISO Tariff, and “Scheduled” has a corollary meaning.
“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.
“Seller” has the meaning set forth on the Cover Sheet.

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13 “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).
“Shared Facilities” means the gen-tie lines, transformers, substations, or other equipment, permits, contract rights, and other assets and property (real or personal), in each case, as necessary to enable delivery of Energy from the Facility (which is excluded from Shared Facilities) to the point of interconnection, including the Interconnection Agreement itself, that are used in common with third parties.
“Shared Facilities Agreement” has the meaning set forth in Section 6.3. “Showing Month” means the calendar month of the Delivery Term that is the subject of the Compliance Showing, as set forth in the Resource Adequacy Rulings and outlined in the CAISO Tariff. For illustrative purposes only, pursuant to the CAISO Tariff and Resource Adequacy Rulings in effect as of the Effective Date, the monthly Compliance Showing made in June is for the Showing Month of August.
“Shown Unit” means the Thermal Resource, the BESS Resource, or any Replacement Unit, as applicable.
“Site” means the applicable real property on which the Facility is or will be located, as further described in Exhibit A.
“Standalone Energy Storage Incentives” means: (a) all federal, state, or local Tax Credits or other Tax benefits associated with the construction or ownership of the BESS Resource (including credits under Sections 38, 45, 46 and 48 of the Internal Revenue Code of 1986, as amended); (b) any federal, state, or local grants, subsidies or other like benefits relating in any way to the BESS Resources; and (c) any other form of incentive relating in any way to the BESS Resources that is not an Environmental Attribute associated with Charging Energy. “Station Power” means:
(a) The Energy produced or discharged by the Facility that is used within the Facility to power the lights, motors, cooling equipment, 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. “Storage Capacity” means the maximum dependable capability of the BESS Resource to discharge Energy at a particular moment.
“Storage Capacity Test” means any test or retest of the capacity of the BESS Resource and/or Efficiency Rate conducted in accordance with the testing procedures, requirements and protocols set forth in Section 4.11 and Exhibit F.

Item 4
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14 “Storage Contract Capacity” has the meaning set forth on the Cover Sheet. “Storage Energy” means the total quantity of electric energy measured in MWh that can be stored by the BESS Resource as set forth on the Cover Sheet. “Stored Energy Level” means, at a particular time, the amount of Energy in the Facility available to be discharged as Discharging Energy, expressed in MWh. “Subsequent Buyer” means the purchaser of RA Product from Buyer in a re-sale of RA Product by Buyer.
“Substitute Capacity” means “RA Substitute Capacity” as defined in the CAISO Tariff. “Substitute Capacity Request” has the meaning set forth in Section 4.5(b). “Supply Plan” has the meaning set forth in the CAISO Tariff. “System Emergency” means any condition that requires, as determined and declared by CAISO or the 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. “System RA Start Date” has the meaning set forth in the Cover Sheet. “Tax” or “Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Terminated Transaction” has the meaning set forth in Section 12.1(a). “Termination Payment” has the meaning set forth in Section 12.3. “Test Energy” has the meaning set forth in Section 3.6. “Thermal Resource” means the natural gas-fired turbine electricity generating power plant at the Facility as described in Exhibit A.
“Thermal Resource PNode” means the BESS Resource PNode identified on the Cover Sheet, as such location may be redesignated from time to time. “Transmission Provider” means any entity or entities transmitting or transporting Facility Energy on behalf of Seller or Buyer from the applicable Delivery Point. “Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service downstream from the Delivery Points.

Item 4
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15 “Unavailable” means that the BESS Resource is not available to be charged nor to be discharged.
“Variable O&M Rate” has the meaning set forth on the Cover Sheet.

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 means 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;
Item 4
Attachment 2
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16 (k) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Industry Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Industry Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
(l) 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; COMMERCIAL OPERATION; OPTIMIZATION SERVICES

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”).
(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 and all indemnity and audit rights shall remain in full force and effect for five (5) years following the termination of this Agreement.

2.2 Conditions Precedent. The Commercial Operation Date shall not occur until the following conditions have been satisfied:
(a) Seller has delivered to Buyer (i) a certificate from a Licensed Professional Engineer substantially in the form of Exhibit L and (ii) a certificate from a Licensed Professional Engineer substantially in the form of Exhibit M setting forth the Installed Capacity on the Commercial Operation Date;
(b) A Participating Generator Agreement and/or a Participating Load Agreement and a Meter Service Agreement for the BESS Resource 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;
(c) An Interconnection Agreement between Seller (or its Affiliate or a third party transmission entity, if a sharing arrangement permitted by this Agreement is in effect) 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;
(d) All applicable regulatory authorizations, approvals and permits required for operation of the BESS Resource have been obtained (or if not obtained, applied for and reasonably expected to be received within 90 days) and all conditions thereof that are capable of being satisfied Item 4
Attachment 2
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17 on the Commercial Operation Date have been satisfied and shall be in full force and effect, and Seller has delivered to Buyer an attestation certificate from an officer of Seller certifying to the satisfaction of this condition;
(e) Seller has obtained all real property rights, including Site Control, required for the operation of the BESS Resource during the Delivery Term, and Seller has provided evidence of such rights to Buyer;
(f) Insurance requirements for the Facility pursuant to Article 17 have been met, with evidence provided in writing to Buyer; and
(g) Seller has delivered the Performance Security to Buyer in accordance with Section 9.8; and
(h) Seller has paid Buyer for all amounts then owing under this Agreement, if any, including Construction Delay Damages and COD Delay Damages.

At least ninety (90) days prior to the Commercial Operation Date, Seller shall deliver Notice to Buyer of the anticipated Commercial Operation Date and the proposed Operating Procedures, which Operating Procedures shall be consistent with, and no less restrictive than, the technical, operational and decision-making parameters or procedures described in Exhibit H. The Parties shall meet periodically upon the written request of either Party, but in any event no less than once per Contract Year, to evaluate potential changes to the Operating Procedures.

2.3 Scheduling Services.
(b) During the Delivery Period, Seller’s designee under the SC Agreement shall be responsible for performing all obligations under this Agreement that are appropriate or required to be performed by a Scheduling Coordinator. Buyer shall provide guidance and direction directly to the Scheduling Coordinator to optimize the dispatch of the Facility and procure natural gas, and Buyer’s instructions shall be controlling. During the Delivery Period, Seller shall take, or cause the Facility’s SC to take, all necessary steps to qualify itself and the Facility in such other manner identified and approved by the CAISO and CPUC that permits Seller to sell and deliver any and all Resource Adequacy Benefits and other Capacity Attributes to Buyer. In addition to the requirements of Exhibit N, Seller shall cause the Facility’s SC to comply, with all applicable CAISO Tariff provisions, CPUC Decisions and all other applicable rules, requirements or Laws, including any bidding of the Facility to meet any Must Offer Obligations, in order to deliver or maintain the right to deliver Resource Adequacy Benefits and other Capacity Attributes to Buyer.

Item 4
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18 (c) Seller and Buyer shall conduct meetings on a quarterly basis or as otherwise reasonably requested by Buyer to discuss the overall performance of the provider under the SC Agreement. Based on the information exchanged during such discussions, Seller shall use commercially reasonable efforts to implement any changes to the overall strategy or performance objectives identified in this meeting.
(d) If Buyer determines that the Scheduling Coordinator is not performing its obligations under the SC Agreement to Buyer’s reasonable satisfaction, Buyer shall have the right to request that Seller replace the Scheduling Coordinator. Following receipt of such notice, Seller shall use reasonable commercial efforts to identify an alternate service provider and negotiate a new SC Agreement but shall not enter into the new SC Agreement until and unless Buyer has approved such agreement in writing. Following such approval, Seller shall use reasonable commercial efforts to promptly terminate the existing SC Agreement such that the new SC Agreement starts on termination of the existing SC Agreement. Buyer shall be liable for the termination penalties under the SC Agreement, except to the extent arising due to the negligence or misconduct of Seller, provided, however that (i) Seller shall use reasonable commercial efforts to minimize any penalties and enforce any rights to terminate for cause and without liability to Buyer and (ii) if the existing SC Agreement is terminated at Buyer’s direction without cause, notwithstanding any provision to the contrary herein, Buyer’s maximum liability for any associated termination penalty shall not exceed an amount equal to the monthly recurring fees under SC Agreement for the period following termination of the SC Agreement.

2.4 Forecasting Services.
(a)

(c) Seller and Buyer shall conduct meetings on a quarterly basis or as otherwise reasonably requested by Buyer to discuss the overall performance of the provider under the Forecasting Agreement. Based on the information exchanged during such discussions, Seller shall use commercially reasonable efforts to implement any changes Item 4
Attachment 2
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19 2.5 Financial Responsibility for Scheduling and Forecasting Services. (a)
(b) The Parties acknowledge and agree that Seller will not be directly performing SC services. Seller shall not be responsible for the financial results of Buyer’s dispatch instructions to the SC, but shall be responsible for the SC’s failure to implement such instructions in accordance with the requirements of this Agreement, including Prudent Industry Practice and the requirements of the CAISO Tariff. Seller will use reasonable efforts to ensure that the SC Agreement has a provision identifying Buyer as a third-party beneficiary of the SC Agreement and entitling Buyer to have direct recourse against the SC for remedies, including breach of contract and indemnification.

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 associated with the Facility at the Contract Price, and Seller shall supply and deliver to Buyer all the Product associated with the Facility. During the Delivery Term, Buyer will have exclusive rights, subject to compliance with the Operating Procedures, to offer, bid, or otherwise submit the Product from the Facility for sale in the available markets, and retain and receive any and all related revenues. (a) Facility Energy. Buyer’s right to Facility Energy is limited to the maximum quantity of Energy that can be produced by the Energy Contract Quantity. Buyer may elect to schedule any combination of Dispatchable Energy and Discharge Energy, but the total quantity may not exceed the Energy Contract Quantity in any hour. (b) Ancillary Services. Buyer’s right to Ancillary is limited to those Ancillary Services that can be provided from Energy up to the Energy Contract Quantity, and specifically excludes any Ancillary Services that interfere or conflict with the ability to supply the Resources Adequacy Benefits. Buyer may elect to schedule Ancillary Services from any combination of Dispatchable Energy and Discharge Energy, but the total quantity may not exceed the quantity of Ancillary Services that can be provided from the Energy Contract Quantity in any hour. (c) Environmental Attributes. Buyer shall own all Environmental Attributes associated with (i) the generation of electricity by the Thermal Resource and (ii) the Charging Energy.

Item 4
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20 3.2 Ownership of Standalone Energy Storage Incentives. Seller shall own and may assign or sell, in its sole discretion, all right, title and interest to any Standalone Energy Storage Incentives associated with or resulting from the development, installation, ownership or operation of the Facility or the production, sale, purchase or use of the Charging Energy or Discharging Energy, in each case that currently exist or as may become available due to any change in Law.

3.3 Capacity Attributes. Seller shall own and may assign or sell, in its sole discretion, all right, title and interest to any Capacity Attributes associated with or resulting from the development, installation, ownership or operation of the Facility or the production, sale, purchase or use of the Facility Energy, in each case that currently exist or as may become available due to any change in Law, except to the extent such Capacity Attributes are necessary to deliver the RA Contract Quantity. Buyer shall cooperate with Seller in connection with Scheduling any such Capacity Attributes sold to third parties.

3.4 Variable O&M. During the Delivery Term, Buyer shall pay the Variable O&M to Seller for all Dispatchable Energy pursuant to the invoicing and payment provisions set forth in Section 9.1.

3.5 Reservation Payment. During each month of the Delivery Term, Buyer shall pay the monthly RA Reservation Payment and, following the Commercial Operation Date, the Energy Reservation Payment, to Seller pursuant to the invoicing and payment provisions set forth in Section 9.1.

3.6 Test Energy. To the extent any electricity is delivered to Buyer from the Facility prior to the Commercial Operation Date (“Test Energy”), delivery of such Test Energy shall not be evidence that Commercial Operation has been achieved or that the BESS Resource has been placed in service.

3.7 Emissions.
(a) Carbon Emissions. The Parties acknowledge and agree that presently the cost for the Facility complying with the Carbon Emission Regulations is included in the tariffs charged by the Gas Distribution Utility. To the extent there is any change in the operations of the Facility or any Change in Law that changes how the Carbon Emission Regulations are being implemented, Seller shall be responsible for taking those actions necessary or appropriate to comply with any such Change in Law and Buyer shall reimburse Seller for the reasonable and documented costs associated therewith in accordance with and, except with respect to Carbon Allowances, subject to Section 3.7(c) below. With respect to Carbon Allowances, Buyer shall reimburse Seller for the reasonable and documented costs associated therewith without regard to Section 3.7(c) below.
(b) Other Air Emissions. Seller represents and warrants that presently the Facility has the necessary air emission permits (excluding those associated with Carbon Emission Regulations) to operate as it has historically operated. To the extent there is any change in the operations of the Facility or any Change in Law that changes the air emission permits or Seller’s cost of complying with such air emission permits, Seller shall be responsible for taking those actions necessary or appropriate to comply with any such Change in Law and Buyer shall Item 4
Attachment 2
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21 reimburse Seller for the reasonable and documented costs associated therewith in accordance with and subject to Section 3.7(c) below.
(c)
(d) 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. (e) 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 Compliance 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. (f) 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. (g) If Buyer does not pay the Compliance Costs in excess of the Compliance Expenditure Cap, or if it is not possible for Seller to achieve compliance with a Change in Law through the payment or incurrence of costs, then Seller shall be excused from the corresponding Compliance Actions under this Agreement and may, without liability to Buyer or any reduction in Buyer’s payment obligations, suspend performance under this Agreement, including obligations to offer, schedule or dispatch the Facility and any Products, to the extent performance is restricted by the Change in Law.

3.8 CPUC Mid-Term Reliability Requirements. The Parties acknowledge that Buyer is entering into this Agreement to satisfy a portion of its obligations to procure capacity to meet mid-term reliability requirements specified by the CPUC in CPUC Decision 21-06-035.

Seller represents and warrants to Buyer that, except with respect to the Reserved Capacity:
(a) The Product includes the exclusive right to claim the Capacity Attributes of the BESS Resource as an incremental resource for purposes of CPUC Decision 21-06-035; (b) Seller has not and will not sell, assign or transfer the right to claim procurement of the Capacity Attributes of the BESS Resource as an incremental resource for purposes of CPUC Decision 21-06-035 to any other person or entity during the Delivery Term; and
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22 (c) Seller will provide additional information and documentation to Buyer if necessary to enable Buyer to demonstrate that the Incremental Capacity of the BESS Resource meets the procurement mandates set forth in CPUC Decision 21-06-035.

ARTICLE 4

OBLIGATIONS AND DELIVERIES

4.1 Product Delivery. Subject to the provisions of this Agreement, during the Delivery Term:
(a) Seller shall supply and deliver the Product to Buyer, and Buyer shall accept and pay for the Product, in accordance with the terms of this Agreement. Notwithstanding anything herein to the contrary, Seller shall have no obligation to deliver any Resource Adequacy Benefits prior to the System RA Start Date, to deliver any Local RAR Attributes prior to the Local RA Start Date, or to make the BESS Resource available prior to the Commercial Operation Date. (b) Seller will be responsible for paying or satisfying when due any costs or charges imposed in connection with Station Power.
(c) Buyer shall be responsible for all costs, charges and penalties, if any, imposed in connection with: (i) the delivery of Charging Energy to the Delivery Point for the BESS Resource (including the cost of the Charging Energy itself and associated Electrical Losses), and (ii) the acceptance and transmission of Discharging Energy and Dispatchable Energy at and from the applicable Delivery Point, including without limitation, transmission costs and transmission line losses with regard to (i) and (ii). Charging Energy, Discharging Energy, Dispatchable Energy, Resource Adequacy Benefits and other Products will be Scheduled and delivered to the CAISO by the Scheduling Coordinator.

4.2 Transfer of Resource Adequacy Benefits.
(a) Seller shall transfer the Resource Adequacy Benefits and, if applicable, Replacement RA from Replacement Units (the “RA Product”) to Buyer by submitting Supply Plans to CAISO for the Shown Unit(s).
(b) Seller shall cause all Supply Plans to meet and be filed in conformance with the requirements of the CPUC and the CAISO Tariff. Seller shall submit, or cause the Shown Unit’s SC to submit, on a timely basis with respect to each applicable Showing Month, Supply Plans in accordance with the CAISO Tariff and CPUC requirements to identify and confirm the RA Product delivered in accordance with Buyer’s instructions for each Showing Month of the Delivery Term.
(c) If CAISO rejects the Supply Plan or the Resource Adequacy Plan with respect to any part of the RA Product for the Facility in any Showing Month, the Parties shall confer, make such corrections as are necessary for acceptance, and resubmit the corrected Supply Plan for validation before the applicable deadline for the Showing Month. (d) The RA Product is received when the CIRA Tool shows that the Supply Plan submitted in compliance with Buyer’s instructions, including Buyer’s instructions to withhold Item 4
Attachment 2
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23 all or part of the RA Product for such Showing Month, has been accepted for the RA Product from the Shown Unit(s) by CAISO. Seller has failed to transfer the RA Product under this Section 4.2 if (i) Buyer has elected to submit the RA Product from the Shown Unit(s) in its Resource Adequacy Plan and such submission is accepted by the CPUC and the CAISO but the Supply Plan and Resource Adequacy Plan are not matched in the CIRA Tool and are rejected by CAISO due to the acts or omissions of Seller notwithstanding performance of the Parties’ obligations in Section

4.2(c) or (ii) Seller fails to submit the volume of RA Product for any Showing Month in such amount as instructed by Buyer for the applicable Showing Month. Seller will not have failed to properly transfer the RA Product if Buyer fails or chooses not to submit the Shown Unit(s) and the RA Product in its Resource Adequacy Plan with the CPUC or CAISO. (e) Hold-Back Capacity, if any, is deemed RA Product received by Buyer, unless utilized under Section 4.5 as Substitute Capacity, then RA Product is considered received according to the requirements therein.

4.3 Seller’s Option To Provide Alternate Capacity. If Seller is unable to provide the Resource Adequacy Benefits from the Facility for a Showing Month for any reason, including, without limitation, as provided in Section 4.9, then Seller may, at no cost to Buyer, provide Buyer with Replacement RA from one or more replacement units having the same Capacity Attributes as the Facility (each such unit, a “Replacement Unit”) in an amount such that the total amount of RA Product provided to Buyer from the Facility and any Replacement Unit(s) for each Showing Month is not more than the RA Contract Quantity, provided that in each case:
(a) Seller shall notify Buyer in writing of its intent to provide Replacement RA and shall identify the proposed Replacement Units from which such Replacement RA shall be provided no later than the Notification Deadline for Buyer’s Compliance Showings related to such Showing Month;
(b) The proposed Replacement Units must (i) be accepted by the CAISO, and (ii) otherwise satisfy the requirements of this Agreement; (c) Seller shall, or shall cause the SC to submit, a Supply Plan for each Showing Month and, if applicable, annual filing, no later than the Notification Deadline for Buyer’s Compliance Showings;
(d) If Seller does not comply with the requirements of Sections 4.3(a), (b) and (c) for the applicable Showing Month and, if applicable, annual filing, then any such Replacement Units shall not be deemed a Replacement Unit for purposes of this Agreement for that Showing Month; and
(e) The designation of any Replacement Unit(s) by Seller shall be subject to Buyer’s prior written approval, which shall not be unreasonably withheld. (f) In no event shall a Replacement Unit utilize coal or coal materials as a source of fuel. A Replacement Unit must be a specific resource that is connected directly to the CAISO-controlled grid or be under the operational control of CAISO. A Replacement Unit may not be an unspecified import.

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24 (g) Once Seller has identified in writing any Replacement Units that meet the requirements of this Section 4.3 and Buyer has approved such Replacement Units as consistent with this Agreement, then any such Replacement Units shall be deemed a Shown Unit for purposes of this Agreement for that Showing Month. Buyer’s approval of a Replacement Unit as to a given Showing Month shall not be construed as approval of such Replacement Unit for any subsequent Showing Month.

4.4 Buyer’s Re-Sale of RA Product.
(a) Buyer may re-sell all or part of the RA Product; provided that any such re-sale must not increase Seller’s obligations hereunder other than as set forth in this Section 4.4. For any such resale, the Resource Adequacy Plan of Buyer as used herein will refer to the Resource Adequacy Plan of the Subsequent Buyer. Seller shall, or shall cause the Shown Unit’s SC, to follow Buyer’s instructions with respect to providing such resold RA Product to Subsequent Buyers, to the extent such instructions are consistent with Seller’s obligations under this Agreement. Seller shall, and shall cause the Shown Unit’s SC, to take all commercially reasonable actions and execute all documents or instruments reasonably necessary to allow such Subsequent Buyers to use such resold RA Product in a manner consistent with Buyer’s rights under this Agreement. If Buyer incurs any liability to a Subsequent Buyer due to the failure of Seller or the Shown Unit’s SC to comply with this Agreement, Seller will be liable to Buyer for the amounts Seller would have owed Buyer under this Agreement if Buyer had not resold the RA Product. (b) Buyer shall notify Seller in writing of any resale of RA Product and the Subsequent Buyer no later than two (2) Business Days before the deadline for the Compliance Showing for each Showing Month for which Buyer has resold the RA Product. Buyer shall notify Seller of any subsequent changes or further resales no later than two (2) Business Days before the deadline for the Compliance Showing for each Showing Month for which Buyer has resold the RA Product.
(c) If CAISO or CPUC develops a centralized capacity market, Buyer will have exclusive rights to direct the Seller or the Shown Unit’s SC to offer, bid, or otherwise submit the RA Product for re-sale into such market, and Seller and the Shown Unit’s SC shall comply with the Buyer’s direction and Buyer shall retain and receive all revenues from such re-sale. (d) Buyer shall have the exclusive right to direct the Seller or the Shown Unit’s SC to offer, bid, or otherwise submit the RA Product into the CAISO Competitive Solicitation Process (CSP) for CPM Capacity. Seller and the Shown Unit’s SC shall comply with the Buyer’s direction and, to the extent that the CAISO designates the RA Product as CPM Capacity, Buyer shall be entitled to retain and receive the CPM Capacity Payment. Unless otherwise instructed by Buyer, (i) Seller shall not, and shall cause the Shown Unit’s SC to not, offer any portion of the RA Product to CAISO as CPM Capacity and (ii) if CAISO designates any portion of the Incremental Capacity as CPM Capacity, then Seller shall, and shall cause the Shown Unit’s SC to, promptly (and in any event within one (1) Business Day of the time Seller receives notification from CAISO) notify Buyer of such designation, and if CAISO makes such a designation, Seller shall not, and shall cause the Shown Unit’s SC to not, accept any such designation by CAISO unless and until Buyer has agreed to accept such designation.

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25 4.5 Hold-Back and Substitute Capacity.
(a) No later than three (3) Business Days before the relevant deadline for the initial Compliance Showing with respect to a particular Showing Month, Buyer may request in writing that Seller not list, or cause the Shown Unit’s SC not to list, in the Shown Unit’s Supply Plan a portion or all of the RA Product for such Showing Month (“Hold-Back Capacity”). The amount of RA Product that is the subject of Buyer’s request for Hold-Back Capacity shall be deemed RA Product received by Buyer consistent with Section 4.2 for purposes of calculating the payments due hereunder, unless utilized under Section 4.5(b) as Substitute Capacity, then RA Product is considered received according to the requirements therein. Seller shall, or shall cause the Shown Unit’s SC to, comply with Buyer’s request under this Section 4.5. (b) In any Showing Month in which Buyer has designated Hold-Back Capacity, Buyer may request, in writing, that Seller make the Hold-Back Capacity available for Buyer’s use as Substitute Capacity within the respective Showing Month (“Substitute Capacity Request”) with the following schedule:
(i) For Buyer’s Substitute Capacity Requests that are to be scheduled with CAISO prior to the Showing Month (e.g., through the CAISO RA Substitute Capacity Assessment), the Substitute Capacity Request shall be received by Seller at least two (2) Business Days prior to the applicable CAISO scheduling deadline. Seller shall, or shall cause the Unit’s Scheduling Coordinator to, comply with Buyer’s request under this Section 4.5(b), provided that to the extent Seller is unable to provide the requested Substitute Capacity from the Facility due to a Planned Outage or a Forced Outage, Seller shall not have any liability for such failure. (ii) For Buyer’s Substitute Capacity Requests that are to be scheduled with CAISO after the commencement of the Showing Month, the Substitute Capacity Request shall be received by Seller at least five (5) Business Days before Buyer submits its Substitute Capacity in the CIRA Tool. Seller shall, or shall cause the Replacement Unit’s Scheduling Coordinator to, comply with Buyer’s request under this Section 4.5(b), provided that to the extent Seller is unable to provide the requested Substitute Capacity from the Facility due to a Planned Outage or a Forced Outage, Seller shall not have any liability for such failure.

4.6 Resource Adequacy Failure.
(a) RA Deficiency Determination. For each RA Shortfall Month, Seller shall pay to Buyer the RA Deficiency Amount as liquidated damages or provide Replacement RA for the Capacity Attributes Seller failed to make available to Buyer. Payment of the RA Deficiency Amount shall be Seller’s sole and exclusive liability for any failure to properly submit Supply Plans in accordance with Section 4.2 or otherwise make available any Resource Adequacy Benefits.
(b) RA Deficiency Amount Calculation. For each RA Shortfall Month, Seller shall pay to Buyer an amount (the “RA Deficiency Amount”) equal to the product of (i) the difference, expressed in kW, of (A) RA Contract Quantity, and (B) the Delivered RA Quantity (such difference, the “RA Shortfall”), multiplied by
Item 4
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26 ; provided that Seller may, as an alternative to paying RA Deficiency Amounts, provide Replacement RA in accordance with Section 4.3.

4.7 Gas Supply.
(a) Gas Utility Connection. Seller will, at its sole cost and expense, maintain the interconnection of the Thermal Resource and gas meter to the Gas Distribution Utility. (b) Supply of Gas.
(i) Seller will cause the Scheduling Coordinator to procure a sufficient quantity of natural gas for the continuous operation of the Thermal Resource consistent with the dispatch schedule for the Thermal Resource and to deliver such natural gas to the Gas Utility Receipt Point; and
(ii) Buyer will pay all costs associated with the procurement and delivery of natural gas to the Facility, excluding any costs, charges or penalties incurred due to the Seller’s failure to perform its actions under this Agreement or Seller’s failure to comply with the tariffs, agreements or other requirements of the Gas Distribution Utility.

4.8 Charging Energy Management.
(a) Generally. Buyer shall be solely responsible, at its sole cost, for procuring Charging Energy. Buyer shall be solely responsible, at its sole cost, for arranging transmission and wheeling required to deliver Charging Energy to the Delivery Point for the BESS Resource and to accept Discharging Energy at the Delivery Point for the BESS Resource. Except as expressly set forth in this Agreement, including Sections 4.8(c) and (e) and Section 4.11(b), Buyer shall be responsible for paying all CAISO costs and charges associated with charging of the BESS Resource. If CAISO rules or protocols become inconsistent with such understanding, the Parties shall reasonably coordinate to amend or modify this Agreement to carry out the intent hereof, such agreement not to be unreasonably delayed, conditioned or withheld. (b) Charging Notices. The BESS Resource will have the capability to be charged seven (7) days per week and twenty-four (24) hours per day (including holidays), through Charging Notices sent electronically, provided, that the right to issue Charging Notices is subject to the requirements and limitations set forth in this Agreement including the Operating Procedures; provided, however, that the sole and exclusive remedy for any failure of the BESS Resource to be available is the Availability Adjustment Factor. Each Charging Notice issued in accordance with this Agreement will be effective unless and until Buyer’s SC or CAISO modifies such Charging Notice by providing Seller with an updated Charging Notice. Seller shall comply with all Charging Notices, subject to the requirements and limitations set forth in this Agreement. Each Charging Notice issued in accordance with this Agreement will be effective unless and until such Charging Notice is modified with an updated Charging Notice (including as automatically updated in accordance with the definition of Charging Notice). Notwithstanding the foregoing, Buyer shall be solely responsible for causing sufficient Charging Notices to be issued to (i) support any Discharging Notices and (ii) ensure the eligibility of the Resource Adequacy Benefits for purchase and sale under the CAISO market rules, and (iii) otherwise participating in any CAISO markets.

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27 (c) No Unauthorized Charging. Seller shall not charge the BESS Resource during the Delivery Term other than pursuant to a valid Charging Notice, or in connection with a Storage Capacity Test, or pursuant to a notice from CAISO. If, during the Contract Term, Seller (i) charges the BESS Resource to a Stored Energy Level greater than the Stored Energy Level provided for in the Charging Notice or (ii) charges the BESS Resource in violation of the first sentence of this Section 4.8(c), then (x) Seller shall be responsible for all Energy costs associated with such charging of the BESS Resource, (y) Buyer shall not be required to pay for such Energy, and (z) Buyer shall be entitled to discharge such Energy and entitled to the Product associated with discharging such Energy.
(d) Discharging Notices. Buyer will have the right to discharge the BESS Resource 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 provided, however, that the sole and exclusive remedy for any failure of the BESS Resource to be available is the Availability Adjustment Factor. Seller shall comply with all Discharging Notices, subject to the requirements and limitations set forth in this Agreement. Each Discharging Notice issued in accordance with this Agreement will be effective unless and until Buyer’s SC or CAISO modifies such Discharging Notice by providing Seller with an updated Discharging Notice. (e) No Unauthorized Discharging. Seller shall not discharge the BESS Resource during the Delivery Term other than pursuant to a valid Discharging Notice, or in connection with a Storage Capacity Test, or pursuant to a notice from the CAISO. If, during the Delivery Term, Seller (i) discharges the BESS Resource other than as provided for in the Discharging Notice or (ii) discharges the BESS Resource in violation of the first sentence of this Section 4.8(e), then (x) Seller shall be responsible for all Energy costs associated with such discharging of the BESS Resource, (y) Buyer shall not be required to pay for the Charging Energy that was discharged, and (z) Buyer shall be entitled to the Product associated with such discharge. (f) Scheduling Charging Energy and Discharging Energy. Seller (or Seller’s SC) shall schedule Charging Energy and Discharging Energy in accordance with the Charging Notices and Discharging Notices, subject to the requirements of this Agreement. In the event that Seller (or Seller’s SC) fails to schedule the Charging Energy or Discharging Energy in accordance with Buyer’s instructions and the requirements of this Agreement, the payment amounts owed to Buyer by Seller shall equal the net revenue Buyer would have received had Seller (or Seller’s SC) properly Scheduled the Charging Energy or Discharging Energy, as applicable. Payment of such amount shall be Seller’s sole and exclusive liability for any failure to schedule the Charging Energy or Discharging Energy, except as provided in Exhibit N. (g) Pre-Commercial Operation Date Period; Coordination Regarding Commissioning and Storage Capacity Tests. Prior to the Commercial Operation Date, Buyer shall have no rights to issue or cause to be issued Charging Notices or Discharging Notices, and Seller shall have exclusive rights to test, charge and discharge the BESS Resource. Seller is responsible to procure, at its own cost, any Energy required for commissioning purposes and to arrange to discharge such Energy into the grid. Seller shall be entitled to all CAISO revenues and other amounts paid by CAISO in respect of the BESS Resource testing for periods prior to the Commercial Operation Date. Both prior to and after the Commercial Operation Date, (i) Buyer Item 4
Attachment 2
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28 shall reasonably coordinate and cooperate with Seller with respect to BESS Resource commissioning and Storage Capacity Tests, and (ii) Seller shall reasonably coordinate and cooperate with Buyer with respect to BESS Resource commissioning and Storage Capacity Tests so as to minimize direct and opportunity costs to the Buyer associated with such activities.

4.9 Reduction in Deliveries.
(a) Facility Maintenance. Seller will deliver to Buyer the expected schedule for performing maintenance on the Facility in accordance with Exhibit I. (b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage.
(c) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event.
(d) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 7.2.

4.10 Storage Availability.
(a) During the Delivery Term, the Facility shall maintain a Monthly Storage Availability during each month of no less than the Guaranteed Storage Availability, which Monthly Storage Availability shall be calculated in accordance with Exhibit E. (b) If the Monthly Storage Availability during any month is less than the Guaranteed Storage Availability, then Buyer’s payment for the Product shall be calculated by reference to the Availability Adjustment Factor (as determined in accordance with Exhibit E).

4.11 Storage Capacity Tests.
(a) Prior to the Commercial Operation Date, Seller shall schedule and complete a Storage Capacity Test in accordance with Exhibit F. Thereafter, Seller and Buyer shall have the right to run retests of the Storage Capacity Test in accordance with Exhibit F. (b) Buyer shall have the right to send one or more representative(s) to witness all Storage Capacity Tests. Alternatively, to the extent that any Storage Capacity Tests are done remotely, and no representatives are needed on Site, Seller shall arrange for both Parties to have access to all data and other information arising out of such tests. Buyer shall be responsible for all costs, expenses and fees payable or reimbursable to its representative(s) witnessing any Storage Capacity Test. For any Storage Capacity Tests initiated by Seller, Seller shall (i) not be entitled to the payment for associated Charging Energy, (ii) be liable for all CAISO costs and charges for associated Charging Energy and (iii) be entitled to any CAISO revenues associated with Discharging Energy. For any Storage Capacity Tests initiated by Buyer, Buyer shall (x) procure the associated Charging Energy, (y) be liable for all CAISO costs and charges for the associated Charging Energy, and (z) be entitled to any CAISO revenues associated with the associated Discharging Energy. No Charging Notices or Discharging Notices shall be issued during any Item 4
Attachment 2
Added 4/11/23
29 Storage Capacity Test except as reasonably requested by Seller or Buyer to implement the applicable test.
(c) Following each Storage Capacity Test, Seller shall submit a testing report in accordance with Exhibit F. If the actual capacity or efficiency rate determined pursuant to a Storage Capacity Test varies from the then current Storage Capacity and/or Efficiency Rate, as applicable, then the actual capacity and/or efficiency rate, as applicable, determined pursuant to a Storage Capacity Test (not to exceed the initial Energy Contract Quantity set forth on the Cover Sheet) shall become the new Energy Contract Quantity at the beginning of the day following the completion of the test for all purposes under this Agreement.

4.12 Efficiency Guaranty. On a monthly basis, if the Efficiency Rate of the BESS Resource exceeds the Guaranteed Efficiency Rate, Seller shall reimburse Buyer for the incremental cost of purchasing Charging Energy calculated in accordance with Exhibit C.

4.13 Heat Rate Guaranty. On a monthly basis, if the Heat Rate of the Thermal Resource exceeds the Guaranteed Heat Rate, Seller shall reimburse Buyer for the incremental cost of purchasing natural gas for the Thermal Resource calculated in accordance with Exhibit C.

4.14 Cycle Limits. Buyer may not exceed the Daily Start Limit or Annual Run Hour Limit of the Thermal Resource or the Annual Cycle Limit of the BESS Resource. In the event that Buyer exceeds the preceding limits or its usage is below the preceding limits, Buyer shall, if and to the extent applicable, be assessed additional fees or credits in accordance with Exhibit J.

4.15 Interconnection Capacity. Throughout the Delivery Term, Seller shall have and maintain interconnection capacity available or allocable (a) to the Facility that is no less than the Baseline Net Qualifying Capacity, (b) to the BESS Resource that is no less than the Energy Contract Quantity, and (iii) to the Incremental BESS Resource that is no less than the Incremental Capacity. Seller shall be responsible for all costs of interconnecting the Facility and the Incremental BESS Resource to the Transmission System. Seller shall hold Buyer harmless from any penalties, imbalance energy charges, or other costs from CAISO or the Gas Distribution Utility or under this Agreement resulting from Seller’s breach of this Section 4.15. Buyer shall use commercially reasonable efforts to mitigate the damages from such breach.

4.16 Title and Risk of Loss. As between Buyer and Seller, Buyer shall have risk of loss for all natural gas prior to delivery to gas meter for the Thermal Resource, and Seller shall have risk of loss thereafter. Risk of loss related to the Charging Energy will pass and transfer from the Buyer to the Seller when the Charging Energy is delivered to the Delivery Point. Title and risk of loss related to the Facility Energy will pass and transfer from the Seller to the Buyer when Facility Energy is delivered to the Delivery Point.

ARTICLE 5

RESERVED CAPACITY

5.1 Retained Right and Resale of Reserved Capacity. Buyer acknowledges and agrees that the Product and Buyer’s rights to any Capacity Attributes from the thirty-two (32) MW BESS Resource do not include the Capacity Attributes associated with sixteen (16) MW of the BESS Resource that are incremental for purposes of CPUC Decision 21-06-035 (the “Reserved Item 4
Attachment 2
Added 4/11/23
30 Capacity”). Seller may re-sell all or part of the Reserved Capacity; provided that any such re-sale shall not limit Seller’s obligations to Buyer under this Agreement and shall not increase Buyer’s obligations hereunder.

ARTICLE 6
TAXES

6.1 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 any.

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.

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

ARTICLE 7

MAINTENANCE OF THE FACILITY

7.1 Maintenance of the Facility. Seller shall comply with Law and Prudent Industry Practice relating to the operation and maintenance of the Facility, the generation and sale of Product.

7.2 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 action to prevent such damage or injury and shall give Notice to Buyer’s emergency contact identified on Exhibit G of such condition. Such action may include, to the extent reasonably necessary, disconnecting and removing all or a portion of the Facility, or suspending the supply of Energy, Dispatching Energy or Discharging Energy to Buyer.

Item 4
Attachment 2
Added 4/11/23
31 7.3 Shared Facilities. The Parties acknowledge and agree that certain of the Interconnection Facilities, Seller’s rights and obligations under the Interconnection Agreement and Seller’s rights and obligations under transmission service agreements with a Transmission Provider, may be subject to certain shared facilities and/or co-tenancy agreements (“Shared Facilities Agreements”) to be entered into among two or more of Seller, the Participating Transmission Owner, Seller’s Affiliates, and/or third parties pursuant to which certain Interconnection Facilities, interconnection service and/or transmission service may be subject to joint ownership and/or shared maintenance and operation arrangements; provided that such Shared Facilities Agreements shall permit Seller to perform or satisfy, and shall not purport to limit, its obligations hereunder, including providing interconnection capacity for the Facility in an amount not less than the Energy Contract Quantity.

ARTICLE 8

METERING

8.1 Metering. Seller shall obtain and maintain a CAISO Resource ID for each of the BESS Resource and the Thermal Resource. At Seller’s expense, Seller shall install and maintain all necessary Energy Meters and telemetry required by the CAISO to deliver the Product. At Seller’s expense, Seller shall install and maintain the Gas Meter as required for the Thermal Resource to receive natural gas service from the Gas Distribution Utility.

8.2 Meter Verification. If Seller has reason to believe there may be an Energy Meter or a Gas Meter malfunction, or upon Buyer’s reasonable request, Seller shall test the Energy Meter or the Gas 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. Meter accuracy shall be determined based on CAISO or Gas Distribution Utility standards, as appliable. If a meter is inaccurate it shall be promptly repaired or replaced at Seller’s expense. If the meter test was performed by Buyer’s request and the meter(s) provided to be accurate, Buyer shall reimburse Seller for the costs and expenses associated with the test.

8.3 Meter Adjustments. If a meter provided to be inaccurate, the procedures used by the CAISO or the Gas Distribution Utility, as applicable, shall be used to adjust payments due hereunder. If no such procedures are applicable, Seller shall, acting reasonably and in good faith, determine when the inaccuracy first became effective and calculate the resulting adjustments. If Seller cannot reasonably determine when the inaccuracy first occurred, it will be assumed to have occurred halfway between the previous test and the current test (not to exceed 6 months).

ARTICLE 9
INVOICING AND PAYMENT; CREDIT

9.1 Contract Price. The contract price (the “Contract Price”) shall be calculated monthly, in arrears, as follows:
(a) The RA Reservation Payment, plus
(b) The Energy Reservation Payment, plus
(c) The product of (i) the Variable O&M and (ii) the Dispatchable Energy Item 4
Attachment 2
Added 4/11/23
32 delivered in the applicable month; plus
(d) The costs incurred by Seller from the Gas Distribution Utility for receipt of any natural gas associated with Dispatchable Energy excluding any costs, charges or penalties incurred due to the Seller’s failure to perform its actions under this Agreement or Seller’s failure to comply with the tariffs, agreements or other requirements of the Gas Distribution Utility.

9.2 Statements and Invoicing. Seller shall deliver an invoice to Buyer within ten (10) days after the end of the prior monthly delivery period. Each invoice shall (a) include records of metered data, including the amount of Charging Energy, Discharging Energy and Dispatchable Energy delivered to Buyer (if any), the RA Reservation Payment, the Energy Reservation Payment and the total Contract Price; (b) reflect 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 acceptable to Buyer, covering the services provided in the preceding month determined in accordance with the applicable provisions of this Agreement. The invoice shall be delivered by electronic mail in accordance with Exhibit G.

9.3 Payment. Buyer shall make payment to Seller for Product by wire transfer or ACH payment to the bank account designated by Seller in Exhibit G, which may be updated by Seller by Notice hereunder; provided, however, that changes to invoice, payment, wire transfer and other banking information in the Agreement must be made in writing and delivered via certified mail and shall include contact information for an authorized person who is available by telephone to verify the authenticity of such requested changes to the Agreement. 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 the 3-Month prime rate (or any equivalent successor rate accepted by a majority of major financial institutions) 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.

9.4 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 five (5) years or as otherwise required by Law. Upon five (5) Business Days’ Notice to the other Party, either Party shall be granted 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.

9.5 Invoice Adjustments. Invoice adjustments shall be made if (a) there have been good faith inaccuracies in invoicing or payment that are not otherwise disputed under Section 9.6, (b) an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO, or pursuant to a Storage Capacity Test, or (c) there have been meter inaccuracies; Item 4
Attachment 2
Added 4/11/23
33 provided, however, that there shall be no adjustments to prior invoices based upon meter inaccuracies except to the extent that such meter adjustments are accepted by CAISO for revenue purposes. 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 9.3, accruing from the date on which the adjusted amount should have been due. Unless otherwise agreed by the Parties, no adjustment of invoices shall be permitted after twelve (12) months from the date of the invoice.

9.6 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 9.5. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 9.6 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.

9.7 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, without limitation, liquidated damage payments under Exhibit B, CAISO Costs and Revenues calculated pursuant to Exhibit N, interest, payments, and credits shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it.

9.8 Payment Security.
(a) Seller’s Security.
(i) Seller’s Development Security. To secure its obligations under this Agreement, Seller shall deliver the Development Security to Buyer within thirty (30) days after the Effective Date. Seller shall maintain the Development Security in full force and effect.

Upon the earlier of (i) 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 (x) fails to maintain the minimum Credit Rating Item 4
Attachment 2
Added 4/11/23
34 specified in the definition of Letter of Credit, (y) indicates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to the Commercial Operation Date, or (z) 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. (ii) Seller’s Performance Security. To secure its obligations under this Agreement, Seller shall deliver Performance Security to Buyer on or before the Commercial Operation Date. Seller shall maintain the Performance Security in full force and effect, and Seller shall within ten (10) Business Days after any draw thereon replenish the Performance Security in the event Buyer collects or draws down any portion of the Performance Security for any reason permitted under 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. (iii) 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 in, and lien on (and right to net against), and assignment of the Development Security and Performance Security to the extent provided in the form of cash, and any other cash collateral and cash equivalent collateral posted pursuant to Section 9.8(a) 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 granted under this Section 9.8(a)(iii) in, and lien on (and right to net against), such collateral and any and all proceeds resulting therefrom or from the liquidation thereof.
(b) Reserved.

9.9 Use of Financial Security. 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 Financial Security provided by Seller, Buyer may do any one or more of the following (in each case subject to the final sentence of this Section 9.9):
(a) Exercise any of its rights and remedies with respect to the Financial Security, including any such rights and remedies under Law then in effect; Item 4
Attachment 2
Added 4/11/23
35 (b) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held by Buyer as Financial Security; and
(c) Liquidate the applicable Financial Security 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 the Seller’s obligations under this Agreement and Seller shall remain liable for any amounts owing to Buyer after such application, subject to Buyer’s obligation to return any surplus proceeds remaining after these obligations are satisfied in full.

ARTICLE 10

NOTICES

10.1 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 G or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder.

10.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered if sent by electronic mail at the time indicated by the time stamp upon delivery, except that if received after 5 PM Pacific Prevailing Time, it shall be deemed received on the next Business Day.

Notwithstanding the foregoing, Notices of outages or other scheduling or dispatch information or requests, may be sent by electronic mail, or any other mutually acceptable form of electronic communication, and shall be considered delivered upon successful completion of such transmission (or, in the case of electronic mail, if no notice of delivery failure is received). Notices of claimed breach of this Agreement or an Event of Default must concurrently be sent by hand delivery or overnight carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees.

ARTICLE 11

FORCE MAJEURE

11.1 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. (b) Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance, a Force Majeure Item 4
Attachment 2
Added 4/11/23
36 Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; landslide; mudslide; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; epidemic; pandemic; or strikes or other labor difficulties caused or suffered by a Party or any third party except as set forth below. (c) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions that render a Party’s performance of this Agreement at the Contract Price unprofitable or otherwise uneconomic (including an increase in component costs for any reason, including foreign or domestic tariffs, Buyer’s ability to buy storage capacity 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) 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; or (v) any equipment failure except if such equipment failure is caused by a Force Majeure Event.

11.2 Termination Following Force Majeure Event. If a Force Majeure Event has occurred after the Commercial Operation Date that has caused either Party to be wholly or partially 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 Notice to the other Party. In addition, if a Force Majeure Event causes the Facility to be materially damaged such that returning the Facility to the full operational status that existing prior to the Force Majeure Event is reasonably expected to take more than twelve (12) months, Seller may terminate this Agreement upon Notice to Buyer.

Upon any such termination, neither Party shall have any liability to the other Party, save and except for those obligations specified in Section 2.1(b). Notwithstanding the foregoing, the occurrence and continuation of a Force Majeure Event shall not (a) suspend or excuse the obligation of a Party to make any payments due hereunder, (b) suspend or excuse the obligation of Seller to achieve the Guaranteed Construction Start Date or the Guaranteed Commercial Operation Date beyond the extensions provided in Exhibit B, or (c) limit Buyer’s right to declare an Event of Default pursuant to Section 12.112.1(b)(i) or (ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section 12.2.

11.3 Notice for Force Majeure. Within two (2) Business Days of the Party becoming aware of that a Force Majeure Event will impact the Party’s performance under this Agreement, the claiming Party shall provide the other Party with oral notice of the Force Majeure Event, and within two (2) weeks thereafter the claiming Party shall provide the other Party with Notice in the form of a letter describing in detail the occurrence giving rise to the Force Majeure Event, including the nature, cause, estimated date of commencement thereof, and the anticipated extent of any delay or interruption in performance. Failure to provide timely Notice shall not constitute a waiver of the Force Majeure Event, but the relief granted shall be based on the date Notice is provided rather than the date of the Force Majeure Event. Upon written request from Buyer, Seller shall provide documentation demonstrating to Buyer’s reasonable satisfaction that each day of the Item 4
Attachment 2
Added 4/11/23
37 claimed delay was the result of a Force Majeure Event and did not result from Seller’s actions or failure to exercise due diligence or take reasonable actions. The claiming party shall promptly 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. The suspension of performance due to a claim of a Force Majeure Event must be of no greater scope and of no longer duration than is required by the Force Majeure Event.

ARTICLE 12
DEFAULTS; REMEDIES; TERMINATION

12.1 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; (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 12.1) and such failure is not remedied within thirty (30) days after Notice thereof;
(iv) such Party becomes Bankrupt;
(v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Section 15.2 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) the failure by Seller to achieve Commercial Operation by ;
(ii) Seller sells, assigns, or otherwise transfers, or commits to sell, assign, or otherwise transfer, the Product, or any portion thereof, during the Delivery Term to any party other than Buyer except as expressly permitted under this Agreement; Item 4
Attachment 2
Added 4/11/23
38 (iii) except to the extent excused by an Excused Event, if Seller fails to maintain an average Storage Capacity equal
or
(iv) failure by Seller to provide and maintain Financial Security pursuant to Section 9.8 after Notice and expiration of the cure periods set forth therein, including the failure to replenish amounts in accordance with this Agreement.

12.2 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, including an Event of Default under Section 12.1(b)(i)), or (ii) the Termination Payment calculated in accordance with Section 12.3 below (in the case of any other Event of Default by either Party);
(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 monetary remedy for any termination of this Agreement and the Event of Default related thereto.

12.3 Termination Payment. The Termination Payment (“Termination Payment”) for the Terminated Transaction owed pursuant to Section 12.2(b)(ii) shall be the aggregate of the Settlement Amount 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 Item 4
Attachment 2
Added 4/11/23
39 Amount. Each Party agrees and acknowledges that (a) the actual damages that the Non-Defaulting Party would incur in connection with the Terminated Transaction would be difficult or impossible to predict with certainty, (b) the Damage Payment or Termination Payment described in Section

12.2 or this Section 12.3 (as applicable) is a reasonable and appropriate approximation of such damages, and (c) the Damage Payment or Termination Payment described in Section 12.2 or this Section 12.3 (as applicable) is the exclusive remedy of the Non-Defaulting Party in connection with the 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.

12.4 Notice of Payment of Termination Payment. As soon as practicable after termination of this Agreement, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Damage Payment or Termination Payment, as applicable, and whether the Termination Payment 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.

12.5 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.

12.6 Rights And Remedies Are Cumulative. Except where an express and exclusive remedy or measure of damages is provided, the rights and remedies of a Party pursuant to this Article 12 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

ARTICLE 13
LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES.

13.1 No Consequential Damages. EXCEPT TO THE EXTENT 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,

OR ARISING FROM FRAUD OR INTENTIONAL MISREPRESENTATION, 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.

13.2 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 Item 4
Attachment 2
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40 MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN

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

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

FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE

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

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

TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE

LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT

OR IMPOSSIBLE TO DETERMINE, THAT OTHERWISE OBTAINING AN ADEQUATE

REMEDY IS INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE

INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES

AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR

CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY,

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

THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE

EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE

BREACH BY THE OTHER OF THE TERMS OF 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 14
REPRESENTATIONS AND WARRANTIES; AUTHORITY

14.1 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 the state of California and 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. The Item 4
Attachment 2
Added 4/11/23
41 execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary limited liability company action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller.
(c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions 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 has, or will have prior to the Delivery Term, all necessary Governmental Approvals to perform its obligations hereunder.

14.2 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a joint powers authority, duly organized, validly existing and in good standing under the laws of California.
(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, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Buyer is a party or by which any of its property is bound.
(d) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity.

Item 4
Attachment 2
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42 (e) Buyer has, or will have prior to the Delivery Term, all necessary Governmental Approvals to perform its obligations hereunder.

14.3 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 California and 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 15

ASSIGNMENT

15.1 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, conditioned or delayed. Any purported assignment made without required written consent, or in violation of the conditions to assignment set out below, shall be null and void.

15.2 Collateral Assignment. Subject to the provisions of this Section 15.2, 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, upon request of Seller, Buyer shall in good faith work with Seller and Financing Party to agree upon a consent to collateral assignment of this Agreement (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall include the following provisions:
(a) Buyer shall give Notice of an Event of Default by Seller to the Person(s) to be specified by Financing Party 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 Financing Party at the time such Notice is provided to Seller and the additional cure period of Financing Party agreed to in the Collateral Assignment Agreement shall not commence until Financing Party has received Notice of such Event of Default; (b) Following an Event of Default by Seller under this Agreement, Buyer may require Seller or Financing Party to provide to Buyer a report concerning:
(i) The status of efforts by Seller or Financing Party to develop a plan to cure the Event of Default;
(ii) Impediments to the cure plan or its development;
Item 4
Attachment 2
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43 (iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented);
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; and (v) Seller or Financing Party must provide the report to Buyer within ten (10) Business Days after Notice from Buyer requesting the report. Buyer will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured;
(c) Financing Party will have the right to cure an Event of Default on behalf of Seller, only if Financing Party sends a Notice to Buyer before the later of (i) the expiration of any cure period, and (ii) fifteen (15) Business Days after Financing Party’s receipt of Notice of such Event of Default from Buyer, indicating Financing Party’s intention to cure. Financing Party 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, which shall not exceed a maximum of one hundred twenty (120) days (or one hundred eighty (180) days in the event of a bankruptcy of Seller, or any foreclosure or similar proceeding if required by Financing Party to cure any Event of Default);
(d) Financing Party will have the right to consent before any termination of this Agreement which does not arise out of an Event of Default; (e) Financing Party 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;
(f) If Financing Party, 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), Financing Party or its designee 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 Financing Party as set forth in the Collateral Assignment Agreement); provided, before such assumption, if Buyer advises Financing Party that Buyer will require that Financing Party cure (or cause to be cured) any Event of Default existing as of the possession date which are capable of being cured 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 Financing Party at its option, and in its sole discretion, may elect to either:
(i) Cause such Event of Default to be cured (other than any Events of Default which relate to Seller’s bankruptcy or similar insolvency proceedings), or (ii) Not assume this Agreement;
(g) If Financing Party elects to sell or transfer the Facility (after Financing Party directly or indirectly, takes possession of, or title to the Facility), or sale of the Facility occurs through the actions of Financing Party (for example, a foreclosure sale where a third party is the Item 4
Attachment 2
Added 4/11/23
44 buyer, or otherwise), then Financing Party shall 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 (i) meets the definition of Permitted Transferee and (ii) is an entity that Buyer is permitted to contract with under applicable Law; and
(h) Subject to Financing Party’s cure of any Events of Defaults under the Agreement in accordance with Section 15.2(f), if (i) this Agreement is rejected in Seller’s bankruptcy or otherwise terminated in connection therewith Financing Party shall have the right to elect within one hundred eighty (180) days after such rejection or termination, to cause Buyer to enter into a replacement agreement with Seller having the same terms as this Agreement for the remaining term thereof, or (ii) if Financing Party 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, Financing Party must itself or must cause its designee to promptly enter into a new agreement with Buyer having the same terms as this Agreement for the remaining term thereof, provided that in the event a designee of Financing Party, 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 (i) meet the definition of Permitted Transferee and (ii) be an entity that Buyer is permitted to contract with under applicable Law. (i) In addition, Buyer agrees to otherwise cooperate in a timely manner with the due diligence efforts of any such Lender and to deliver reasonable and customary estoppel certificates to the extent requested or required by a Lender in connection with a financing or tax equity financing.

15.3 Buyer Limited Assignment. Buyer shall have the right to make a limited assignment in connection with a municipal prepayment transaction to an entity (“Limited Assignee”) that has, or provides a parent guaranty in form and substance reasonably acceptable to Seller from an entity with, an Investment Grade Credit Rating, of Buyer’s right to receive Product and Buyer’s obligation to make payments to the Seller. The limited assignment shall be expressly subject to the Limited Assignee’s timely payment of amounts due under this Agreement. Buyer shall pay Seller for any payments not timely made by the Limited Assignee, and Buyer shall remain obligated to perform all of its obligations under this Agreement notwithstanding the limited assignment. Any failure by the Limited Assignee to make payments to Seller when due hereunder shall be a Buyer Event of Default if not cured within the applicable cure period specified herein.

Subject to the foregoing, Buyer may make such assignment upon not less than thirty (30) days’ advance Notice by delivering to Seller a written request for Seller’s consent to such assignment, which request must include a proposed assignment agreement in form and substance reasonably acceptable to Seller. Provided that Buyer delivers a proposed assignment agreement complying with the previous sentence, Seller agrees to (i) comply with Limited Assignee’s reasonable requests for know-your-customer and similar account opening information and documentation with respect to Seller, including but not limited to information related to forecasted generation, credit rating, and compliance with anti-money laundering rules, the Dodd-Frank Act, the Commodity Exchange Act, the Patriot Act and similar rules, regulations, requirements and corresponding policies; and (ii) promptly execute such assignment agreement and implement such assignment as contemplated thereby, subject only to the countersignature of Limited Assignee and Item 4
Attachment 2
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45 Buyer.

ARTICLE 16

DISPUTE RESOLUTION

16.1 Governing Law. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of Law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement. The Parties agree that any suit, action or other legal proceeding by or against any Party (or its affiliates or designees) with respect to or arising out of this Agreement shall be brought in the federal courts of the United States or the courts of the State of California sitting in the County of Santa Clara, California.

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

16.3 Arbitration. In the event of a dispute under Section 20.13, or upon the agreement of both Parties, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, shall be determined by final, non-appealable binding arbitration in San Francisco, California before three (3) arbitrators.

The arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures. Within fifteen (15) days after the commencement of arbitration, each of Buyer and Seller shall select one person to act as arbitrator, and the two so-selected arbitrators shall select a third arbitrator (the “chairperson”) within thirty (30) days of the commencement of the arbitration. If either Seller or Buyer is unable or fails to select one person to act as arbitrator, such arbitrator shall be appointed by JAMS. If the Seller and Buyer-selected arbitrators are unable or fail to agree upon a chairperson, the chairperson shall be appointed by JAMS. The chairperson shall be a person who has experience in renewable energy-related transactions, and none of the arbitrators shall have been previously employed by any Party or have any direct pecuniary interest in any Party or the subject matter of the arbitration, unless such conflict is expressly acknowledged and waived in writing by all of the Parties. The Parties shall maintain the confidential nature of the arbitration proceeding and any award, including any hearing(s), except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. Any arbitration proceedings, decision or award rendered hereunder and the validity, effect and interpretation of this arbitration provision shall be governed by the Federal Arbitration Act. The arbitrator(s) shall have no authority to award consequential, treble, exemplary, or punitive damages of any type or kind regardless of whether such damages may be available under any law or right, with the Parties hereby affirmatively waiving their rights, if any, to recover or claim such damages. The responsibility for compensation Item 4
Attachment 2
Added 4/11/23
46 and expenses of the three arbitrators and all other expenses charged by JAMS shall be equally split by Buyer and Seller. Notwithstanding the foregoing provisions of this Section 16.3, any costs incurred by a Party in seeking judicial enforcement of any written decision of the arbitrators shall be chargeable to and borne exclusively by the Party against whom such court order is obtained.

The award shall be final and binding on the Parties and judgment upon any award may be entered in any court of competent jurisdiction.

ARTICLE 17

INDEMNIFICATION

17.1 Indemnity. Each Party (the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other Party, its directors, officers, agents, attorneys, consultants, employees and representatives (the “Indemnified Party”) from and against all third party claims, demands, losses, liabilities, penalties, and expenses, including reasonable attorneys’ and expert witness fees (collectively, “Indemnifiable Losses”) for (a) personal injury or death to Persons, (b) damage to the property of any third party, (c) any fines or penalties imposed by any Governmental Authority, and (d) the loss or failure to deliver Resource Adequacy Benefits or other Capacity Attributes due to (i) Buyer’s failure to meet its obligations set forth in Section 4.8, or (ii) arising out of or relating to or in any way connected with the Indemnifying Party’s or its Affiliates’ breach of this Agreement, negligence or willful misconduct. Nothing in this Section 16.1 shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. Neither Party shall be indemnified for its damages to the extent resulting from its negligence, intentional acts or willful misconduct. These indemnity provisions shall not be construed to relieve any insurer of its obligation to pay claims consistent with the provisions of a valid insurance policy.

17.2 Notice of Claim. Subject to the terms of this Agreement and upon obtaining knowledge of an Indemnifiable Loss for which it is entitled to indemnity under this Article 16, the Indemnified Party will promptly provide Notice to the Indemnifying Party in writing of any damage, claim, loss, liability or expense which the Indemnified Party has determined has given or could give rise to an Indemnifiable Loss under Section 17.1 (“Claim”). The Notice is referred to as a “Notice of Claim.” A Notice of Claim will specify, in reasonable detail, the facts known to the Indemnified Party regarding the Indemnifiable Loss.

17.3 Failure to Provide Notice. A failure to give timely Notice or to include any specified information in any Notice as provided in Section 17.2 will not affect the rights or obligations of the Indemnified Party except and only to the extent that, as a result of such failure, the Indemnifying Party was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise materially damaged as a direct result of such failure.

17.4 Defense of Claims. If, within ten (10) days after giving a Notice of Claim regarding a Claim to the Indemnifying Party pursuant to Section 17.2, the Indemnified Party receives Notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Claim, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Claim within ten (10) days after receiving Notice from the Indemnified Party that the Indemnified Party believes the Indemnifying Party has failed to take such steps, or if the Item 4
Attachment 2
Added 4/11/23
47 Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all Indemnifiable Losses relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses, including attorneys’ fees, paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; provided, however, that the Indemnifying Party may accept any settlement without the consent of the Indemnified Party if such settlement provides a full release to the Indemnified Party and no requirement that the Indemnified Party acknowledge fault or culpability. If a firm offer is made to settle a Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agrees to such offer, the Indemnifying Party will give Notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within ten (10) days after its receipt of such Notice, the Indemnified Party may continue to contest or defend such Claim and, in such event, the maximum liability of the Indemnifying Party to such Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnified Party up to the date of such Notice.

17.5 Rights and Remedies are Cumulative. Except for express remedies already provided in this Agreement, the rights and remedies of a Party pursuant to this Article 16 are cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

ARTICLE 18

INSURANCE

18.1 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 per occurrence, and an annual aggregate of not less than 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 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 for injury or death occurring as a result of each accident. With regard to bodily injury by disease, the policy limit will apply to each employee.
(c) Workers Compensation Insurance. Seller, if it has employees, shall also maintain at all times during the Contract Term workers’ compensation and employers’ liability insurance coverage in accordance with applicable requirements of California Law.

Item 4
Attachment 2
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48 (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 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 BESS Resource prior to the Commercial Operation Date, construction all-risk form property insurance covering the BESS Resource during such construction periods, and naming the Seller (and Financing Party if any) as the loss payee. (f) Contractor’s Pollution Liability. Seller shall maintain or cause to be maintained during the construction of the BESS Resource to the Commercial Operation Date, Pollution Legal Liability Insurance in the amount of per occurrence and in the aggregate, naming the Seller (and Financing Party if any) as additional named insured.
(g) Subcontractor Insurance. Seller shall require all of its Major Subcontractors to carry at least the same levels of insurance as Seller, provided Major Subcontractors shall not be required to carry construction all-risk form property insurance. All Major Subcontractors shall include Seller as an additional insured to (i) comprehensive general liability insurance; (ii) workers’ compensation insurance and employers’ liability coverage; and (iii) business auto insurance for bodily injury and property damage. All Major Subcontractors shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 18.1(g).
(h) Evidence of Insurance. Within sixty (60) days after execution of the Agreement and upon annual renewal thereafter, Seller shall deliver to Buyer certificates of insurance evidencing such coverage. These certificates shall specify that Buyer shall be given at least thirty (30) days prior Notice by Seller in the event of 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.

ARTICLE 19

CONFIDENTIAL INFORMATION

19.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written which is delivered by Seller to Buyer or by Buyer to Seller including: (a) the terms and conditions of, and proposals and negotiations related to, this Agreement, and (b) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” before disclosing it to the other. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of the delivery; (iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction Item 4
Attachment 2
Added 4/11/23
49 against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement.

19.2 Duty to Maintain Confidentiality. Confidential Information will retain its character as Confidential Information but may be disclosed by the recipient (the “Receiving Party”) if and to the extent such disclosure is required (a) to be made by any requirements of Law, (b) pursuant to an order of a court or (c) in order to enforce this Agreement. If the Receiving Party becomes legally compelled (by interrogatories, requests for information or documents, subpoenas, summons, civil investigative demands, or similar processes or otherwise in connection with any litigation or to comply with any Law, order, regulation, ruling, regulatory request, accounting disclosure rule or standard or any exchange, control area or independent system operator rule) to disclose any Confidential Information of the disclosing Party (the “Disclosing Party”), Receiving Party shall provide Disclosing Party with prompt Notice so that Disclosing Party, at its sole expense, may seek an appropriate protective order or other appropriate remedy. If the Disclosing Party takes no such action after receiving the foregoing Notice from the Receiving Party, the Receiving Party is not required to defend against such request and shall be permitted to disclose such Confidential Information of the Disclosing Party, with no liability for any damages that arise from such disclosure. The provisions of this Article 18 shall survive and shall continue to be binding upon the Parties for period of one (1) year following the date of termination of this Agreement. Each Party hereto acknowledges and agrees that information and documentation provided in connection with this Agreement may be subject to the California Public Records Act (Government Code Section 7920 et seq.).

19.3 Irreparable Injury; Remedies. Receiving Party acknowledges that its obligations hereunder are necessary and reasonable in order to protect Disclosing Party and the business of Disclosing Party, and expressly acknowledges that monetary damages would be inadequate to compensate Disclosing Party for any breach or threatened breach by Receiving Party of any covenants and agreements set forth herein. Accordingly, Receiving Party acknowledges that any such breach or threatened breach will cause irreparable injury to Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Disclosing Party will be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.

19.4 Disclosure to Financing Parties, Etc.. Notwithstanding anything to the contrary in this Article 18, Confidential Information may be disclosed by Seller to any actual or potential Financing Party or any of its Affiliates, and Seller’s actual or potential agents, advisors, actual or potential investors, consultants, contractors, or trustees, so long as the Person (other than a Person that has an ethical duty to Seller) to whom Confidential Information is disclosed agrees in writing to be bound by confidentiality provisions no less stringent than those in this Article 18 (subject to customary survival terms). Seller shall provide Notice to Buyer of any disclosure of Confidential Information pursuant to this Section 19.4, including the identity of the party receiving such Confidential Information.

19.5 Press Releases. Neither Party shall issue (or cause its Affiliates to issue) a press release regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such public statement. A Party’s consent shall not be unreasonably withheld, conditioned or delayed.

Item 4
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50 ARTICLE 20

MISCELLANEOUS

20.1 Entire Agreement; Integration; Exhibits. This Agreement, together with the Cover Sheet and Exhibits attached hereto constitutes the entire agreement and understanding between Seller and Buyer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by reference. The headings used herein are for convenience and reference purposes only. In the event of a conflict between the provisions of this Agreement and those of the Cover Sheet or any Exhibit, the provisions of first the Cover Sheet, and then this Agreement shall prevail, and such Exhibit shall be corrected accordingly.

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

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

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

20.5 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.

20.6 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.

Item 4
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Added 4/11/23
51 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable Law.

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

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

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

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

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

20.12 Further Assurances. Seller agrees to use commercially reasonable efforts to cooperate with respect to any future changes to this Agreement needed to satisfy requirements of Governmental Authorities associated with changes in law to maximize benefits to Buyer, including: (i) modification of the description of Capacity Attributes as may be required, including updating the Agreement to reflect any mandatory contractual language required by Governmental Authorities; or (ii) submission of any reports, data, or other information required by Governmental Authorities; 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. 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 Item 4
Attachment 2
Added 4/11/23
52 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.

20.13 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 either Party may request that the other Party 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, provided, however that Seller shall have no obligation to agree to any amendment that results in an unreimbursed reduction of forecast revenue Seller expects to generate under this Agreement. 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 Section 16.3. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, and (ii) all of the unaffected provisions of this Agreement shall remain in full force and effect during any period of such negotiation or dispute resolution.
[Signatures on following page]
Item 4
Attachment 2
Added 4/11/23
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.

MRP PACIFICA MARKETING LLC,
a Delaware limited liability company

SILICON VALLEY CLEAN ENERGY
AUTHORITY, a California joint powers
authority
By:

Name:

Title:

By:

Name:

Title:

Item 4
Attachment 2
Added 4/11/23
Exhibit A - 1

EXHIBIT A

FACILITY DESCRIPTION
Site Name Hanford
County Kings County, CA
Site APNs To be determined
Facility Type Natural gas-fired plant and battery energy storage system (BESS)
Participating Transmission Owner
Thermal Resource
Description 2 X LM6000 simple cycle gas turbine engines Generating Capacity (MW) 99.4
Heat Rate 10.2 MMBtu/MWh
Resource ID
BESS Resource
Type Lithium Ion Battery Energy Storage System
Operating Characteristics
Operating Procedures See Exhibit H
Maximum Charging Capacity (MWh) 149.3
Maximum Discharging Capacity (MWh) 131.4
Maximum Stored Energy Level (MWh) 131.4
Incremental Capacity (MW)
The BESS Resource has 32 MW (4-hour
discharge) of Incremental Capacity of which 16
MW is allocated to Buyer under this Agreement.

Resource ID To be determined by CAISO
Item 4
Attachment 2
Added 4/11/23
Exhibit B - 1

EXHIBIT B

FACILITY CONSTRUCTION AND COMMERCIAL OPERATION

1. Thermal Resource. The Thermal Resource is operational.

2. BESS Resource.
a. “Construction Start” will occur following Seller’s execution of one or more engineering, procurement, and construction (EPC) contracts related to the BESS Resource and issuance of a full Notice to proceed with the construction of the BESS Resource under such EPC contracts that includes authorization of mobilization to the Site by Seller and/or its designees and authorization of the physical movement of soil at the Site. The date of Construction Start will be evidenced by and subject to Seller’s delivery to Buyer of a certificate substantially in the form attached as Exhibit K hereto, and the date certified therein shall be the “Construction Start Date.” The Seller shall cause Construction Start to occur no later than the Guaranteed Construction Start Date.
b. If Construction Start is not achieved by the Guaranteed Construction Start Date, Seller shall pay Construction Delay Damages to Buyer on account of such delay.

Construction Delay Damages shall be payable to Buyer
by Seller until Seller reaches Construction Start of the BESS Resource. Buyer shall invoice Seller for Construction 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 Delay Damages set forth in such invoice.

The Parties agree that Buyer’s receipt of
Construction Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s unexcused delay in achieving the Construction Start Date on or before the Guaranteed Construction Start Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section

12.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 12.1(b)(i) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section 12.2.

3. Commercial Operation of the BESS Resource. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section

2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit L (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Commercial Operation has been achieved. Subject to Buyer’s confirmation in Section 3(iii) of this Exhibit B, the “Commercial Operation Date” shall be the later of (x) the Expected Item 4
Attachment 2
Added 4/11/23
Exhibit B - 2
Commercial Operation Date or (y) the date in the COD Certificate on which Seller confirmed to Buyer that Commercial Operation was achieved. a. Seller shall cause Commercial Operation for the BESS Resource to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date.
b. If Seller achieves Commercial Operation for the BESS Resource within thirty (30) days after the Guaranteed Commercial Operation Date
c. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, as it may be extended pursuant to the Development Cure Period, Seller shall pay COD Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date,

d. If Commercial Operation is achieved during a month for which Seller has paid COD Delay Damages, Buyer shall repay to Seller the amount of COD Delay Damages paid to Buyer that are not owed by Seller for such month. Seller may include such amounts owed by Buyer in its invoices to Buyer hereunder. e. The Parties agree that Buyer’s receipt of COD Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve 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 12.1 and (y) not limit Buyer’s right to receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section 12.2.

4. Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall, subject to Notice and documentation requirements set forth below, be automatically extended on a day-for-day basis (the Item 4
Attachment 2
Added 4/11/23
Exhibit B - 3
“Development Cure Period”) for the duration of any and all delays arising out of the following circumstances:
a. a Force Majeure Event;
b. Interconnection Delays; and
c. Event of Default of Buyer.

Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period, other than any delays due to (c), shall not exceed , for any reason, including a Force Majeure Event.

For clarity, the permitted extensions under the Development Cure Period extend each of the Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date simultaneously. No extension shall be given under the Development Cure Period if, and to the extent that, the delay was due to Seller’s failure to take commercially reasonable actions to meet its requirements and deadlines. Seller shall provide prompt Notice to Buyer of a delay, but in no case more than thirty (30) days after Seller became aware of such delay, except that in the case of a delay occurring within sixty (60) days of the Expected Commercial Operation Date, or after such date, Seller must provide Notice within five (5) Business Days of Seller becoming aware of such delay. Upon request from Buyer, Seller shall provide documentation for delays demonstrating to Buyer’s reasonable satisfaction that such delay did not result from Seller’s failure to take commercially reasonable actions.

5. Failure to Reach Storage Contract Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Storage Contract Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) one hundred percent (100%) of the Storage Contract Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit G hereto specifying the new Installed Capacity. If Seller fails to construct the Storage Contract Capacity by such date, Seller shall pay Capacity Damages to Buyer, in an amount equal to for each MW that the Storage
Contract Capacity exceeds the Installed Capacity, and the Storage Contract Capacity and other applicable portions of the Agreement, including the Storage Contract Capacity table in the Cover Sheet, shall be adjusted accordingly.

6. Commercial Operation Conditions: Commercial Operation of the BESS Resource shall occur once the following conditions are satisfied:
a. The BESS Resource is fully operational, reliable and interconnected, fully integrated and synchronized with the Transmission System. b. Seller has installed equipment for the BESS Resource. c. Seller has commissioned all equipment in accordance with its respective manufacturer’s specifications.

Item 4
Attachment 2
Added 4/11/23
Exhibit B - 4
d. Seller has demonstrated functionality of the BESS Resource’s communication systems and automatic generation control (AGC) interface to operate the BESS Resource as necessary to respond and follow instructions, including an electronic signal conveying real time and intra-day instructions, directed by the Buyer in accordance with the Agreement and/or the CAISO.
e. The BESS Resource is fully capable of charging, storing and discharging energy and receiving instructions to charge, store and discharge Energy, all within the operational constraints and subject to the applicable Operating Protocols. f. Authorization was received from the CAISO and the Participating Transmission Owner to operate the BESS Resource is parallel with the Transmission System. g. The PTO has provided documentation supporting Commercial Operation. h. The CAISO has provided notification supporting Commercial Operation, in accordance with the CAISO Tariff.

Item 4
Attachment 2
Added 4/11/23
Exhibit C - 1

EXHIBIT C

HEAT RATE AND EFFICIENCY GUARANTY
Thermal Resource Heat Rate Guaranty
Heat Rate Testing: The heat rate (“Heat Rate”) of the Thermal Resource shall be determined by performing thermal performance testing generally in accordance with the American Society of Mechanical Engineers’ Standard PTC 22 and Prudent Industry Practice. The Heat Rate will be first tested no later than thirty (30) days prior to the System RA Start Date and thereafter, the Heat Rate will be tested annually upon Buyer’s request. [In addition, Buyer shall have the right to require a test or retest of the Heat Rate at any time upon no less than ten (10) Business Days prior written Notice to Seller if Buyer reasonably believes that the current Heat Rate has varied materially from the results of the most recent Heat Rate test.] All costs or revenues associated with any Heat Rate test shall be borne by, or accrue to, Buyer, as applicable.

Heat Rate Liquidated Damages: In the event the Heat Rate is lower than the Guaranteed Heat Rate, Seller will pay to Buyer, as liquidated damages and not a penalty, the sum of (a) Buyer’s average cost of purchasing additional natural gas during the period since the last Heat Rate Test to power the Thermal Resource as compared with the quantity that would have been purchased had the Heat Rate equaled the Guaranteed Heat Rate and (ii) the incremental costs associated with the distribution of such additional natural gas from the Gas Utility Receipt Point to the Thermal Resource during the period since the last Heat Rate Test. For each monthly period after any Heat Rate test demonstrating a Heat Rate lower than the Guaranteed Heat Rate, Heat Rate Liquidated Damages shall be calculated and paid on a monthly basis, and shall be reflected as a credit on the monthly invoice in accordance with Section 9.7.

BESS Resource Efficiency Guaranty
Efficiency Guaranty Testing:

The “Efficiency” of the BESS Resource shall be calculated as follows:

𝐸𝑓𝑓𝑖𝑐𝑖𝑒𝑛𝑐𝑦 = MWh delivered + Stored Energy!"#
MWh received + Stored Energy$%&'%
Where:
(i) MWhdelivered = all measured and recorded Discharge Energy delivered from the BESS Resource at the Metering Point for the Facility during the Measurement Period.
(ii) MWhreceived = all measured and recorded Charging Energy received during charging of the BESS Resource at the Metering Point for the Facility during the Measurement Period.

Item 4
Attachment 2
Added 4/11/23
Exhibit C - 2
(iii) Stored Energyend = available electric energy in the BESS Resource at the end of the Measurement Period.
(iv) Stored Energystart = available electric energy in the BESS Resource at the start of the Measurement Period.
(v) “Measurement Period” means a calendar month.

Liquidated Damages for Failure to Achieve Guaranteed Efficiency Rate.

If during any month during the Delivery Term, the Efficiency Rate for such month is less than the Guaranteed Efficiency Rate, Seller shall owe liquidated damages to Buyer, which damages shall be calculated by

Item 4
Attachment 2
Added 4/11/23
Exhibit D - 1

EXHIBIT D

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

Bank Ref.:

Amount: US$[XXXXXXXX]
Expiration Date:

Beneficiary:
[________]
[________]
Attn: [________]
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 [__________], a [________] (“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 Dispatchable Energy and Energy Storage 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 [Insert Date] which is one year after the issue date of this Letter of Credit, or any expiration date extended in accordance with the terms hereof (the “Expiration Date”).

Funds under this Letter of Credit are available to Beneficiary by valid presentation on or before the Expiration Date of a dated statement purportedly signed by 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, referencing our Letter of Credit No. [XXXXXXX] (“Drawing Certificate”).

The Drawing Certificate may be presented by (a) physical delivery, (b) as a PDF attachment to an e-mail to [bank email address] or (c) facsimile to [bank fax number] confirmed by [e-mail to [bank email address]]. Transmittal by facsimile or email shall be deemed delivered when received.

The original of this Letter of Credit (and all amendments, if any) is not required to be presented in connection with any presentment of a Drawing Certificate by Beneficiary hereunder in order to receive payment.

We hereby agree with the Beneficiary that all documents presented under and in compliance with Item 4
Attachment 2
Added 4/11/23
Exhibit D - 2
the terms of this Letter of Credit will be duly honored upon presentation to the Issuer on or before the Expiration Date. All payments made under this Letter of Credit shall be made with Issuer’s own immediately available funds by means of wire transfer in immediately available United States dollars to Beneficiary’s account as indicated by Beneficiary in its Drawing Certificate or in a communication accompanying its Drawing Certificate.

Partial draws are permitted under this Letter of Credit, and this Letter of Credit shall remain in full force and effect with respect to any continuing balance.

It is a condition of this Letter of Credit that the Expiration Date shall be deemed automatically extended without an amendment for a one year period beginning on the present Expiration Date hereof and upon each anniversary for such date, unless at least one hundred twenty (120) days prior to any such Expiration Date we have sent to you written notice by overnight courier service that we elect not to extend this Letter of Credit, in which case it will expire on the date specified in such notice. No presentation made under this Letter of Credit after such Expiration Date will be honored.

This Letter of Credit is issued subject to the rules of the ‘International Standby Practices 1998’, International Chamber of Commerce Publication No. 590 (“ISP98”) and, as to matters not addressed by ISP98, shall be governed and construed in accordance with the laws of state of California.

Notwithstanding any reference in this Letter of Credit to any other documents, instruments or agreements (other than as set forth in the immediately prior paragraph), this Letter of Credit contains the entire agreement between Beneficiary and Issuer relating to the obligations of Issuer hereunder.

Please address all correspondence regarding this Letter of Credit to the attention of the Letter of Credit Department at [insert bank address information], referring specifically to Issuer’s Letter of Credit No. [XXXXXXX]. For telephone assistance, please contact Issuer’s Standby Letter of Credit Department at [XXX-XXX-XXXX] and have this Letter of Credit available.

All notices to Beneficiary shall be in writing and are required to be sent by certified letter, overnight courier, or delivered in person to: [________], Attn: [________], [Insert Address]. Only notices to Beneficiary meeting the requirements of this paragraph shall be considered valid. Any notice to Beneficiary which is not in accordance with this paragraph shall be void and of no force or effect.
[Bank Name]
___________________
[Insert officer name]
[Insert officer title]
Item 4
Attachment 2
Added 4/11/23
Exhibit D - 3
Exhibit A
Drawing Certificate
(DRAW REQUEST SHOULD BE ON BENEFICIARY’S LETTERHEAD)
[Insert Bank Name and Address]
Ladies and Gentlemen:

The undersigned, a duly authorized representative of [_________], a [________], [Insert Address], as beneficiary (the “Beneficiary”) of the Irrevocable Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) issued by [insert bank name] (the “Bank”) by order of [_________], a [________] (the “Applicant”), hereby certifies to the Bank as follows:

1. Applicant and Beneficiary are party to that certain Dispatchable Energy and Energy Storage 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 Buyer Default (as such term is defined in the Agreement) has occurred or other occasion provided for in the Agreement where Beneficiary is authorized to draw on the Letter of Credit has occurred.

OR
Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________, which equals the full available amount under the Letter of Credit, because Applicant is required to maintain the Letter of Credit in force and effect beyond the Expiration Date of the Letter of Credit but has failed to provide Beneficiary with a replacement Letter of Credit or other acceptable instrument within thirty (30) days prior to such Expiration Date.

3. The undersigned is a duly authorized representative of [_________] 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___________________________
Item 4
Attachment 2
Added 4/11/23
Exhibit E - 1

EXHIBIT E

STORAGE AVAILABILITY

1. 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 (%) = !"#$%&# ()*$%&# +%,%-.)/ ()*$%&# +*0)$%-) +%,%-.)/
where:

Average Storage Capacity = ∑!"#$%=>?@A?BAC D?E?F@GH
IJKLM
Where:

Hours = All hours in the month
Available Capacity = for each hour of the month:
(i) the capacity Seller reports to Buyer as being
Available to be scheduled; and
(ii) any capacity from the BESS resources that is
Unavailable to be scheduled due to Force Majeure
Events, System Emergencies, acts or omissions of
Buyer or Planned Outages (collectively, “Excused
Events”).

If the BESS Resource is Unavailable for less than a full hour, the Available Capacity shall be the average capacity that was Available during that hour.

If the BESS Resource or any component thereof was previously deemed Unavailable for an hour or part of an hour, and Seller provides a revised notice indicating the BESS Resource is Available for that hour or part of an hour by 5:00 a.m. of the morning Buyer schedules or bids the Product in the Day-Ahead Market (as defined in the CAISO Tariff), the BESS Resource will be deemed to be Available to the extent set forth in the revised notice.

If the BESS Resource or any component thereof was previously deemed Unavailable for an hour or part of an hour and Seller provides a revised notice indicating the BESS Resource 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 Item 4
Attachment 2
Added 4/11/23
Exhibit E - 2
Product in the Real-Time Market (as defined in the CAISO Tariff), the BESS Resource will be deemed to be Available to the extent set forth in the revised Notice.

2. Availability Adjustment Factor
The applicable “Availability Adjustment Factor” or “AAF” is calculated as follows:
(i) If the Monthly Storage Availability is greater than or equal to the Guaranteed Storage Availability, then:
(ii) If the Monthly Storage Availability is less than the Guaranteed Storage Availability, then:

Item 4
Attachment 2
Added 4/11/23
Exhibit F - 1

EXHIBIT F

STORAGE CAPACITY TESTS
The “Storage Capacity Test” shall be performed by Seller by maintaining Discharging Energy from the BESS Resource for one (1) hour and the “Effective Discharge Capacity” in megawatts (MW) shall be determined as the quotient of the aggregate quantity of Discharging Energy (MWh) at the end of the one (1) hour test period, as measured at the Delivery Point for the BESS Resource, divided by one (1); provided, however, that the Effective Discharge Capacity cannot exceed the Storage Capacity set forth in Exhibit A (“Capacity Limit”).

Within the first quarter of each Contract Year, upon no less than five (5) Business Days’ prior notice to Buyer, Seller shall schedule and complete a Storage Capacity Test (the “Annual Storage Capacity Test”) In addition, Buyer shall have the right to require a retest of the Storage Capacity Test at any time upon five (5) Days prior Notice to Seller if Buyer reasonably believes that the Effective Storage Capacity or the Effective Discharge Capacity has varied materially from the results of the most recent tests. Seller shall have the right to run up to three (3) retests of the Storage Capacity Test at any time upon five (5) days prior Notice to Buyer (or any shorter period reasonably acceptable to Buyer consistent with Prudent Practices). Except for establishing the Storage Capacity for purposes of achieving Commercial Operation, Seller may demonstrate the Effective Storage Capacity or the Effective Discharge Capacity by reference to operational data from a meter at the Delivery Point for the BESS Resource in lieu of conducting a Storage Capacity Test. For the avoidance of doubt, the Annual Storage Capacity Test may not result in an Effective Discharge Capacity greater than the Capacity Limit.

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 from the Delivery Point for the BESS Resource and plant log sheets verifying the operating conditions and output of the Facility. The actual capacity determined pursuant to a Storage Capacity Test shall become the new Energy Contract Quantity at the beginning of the day following the completion of the test for all purposes under this Agreement.

Item 4
Attachment 2
Added 4/11/23
Exhibit G - 1

EXHIBIT G

NOTICES
MRP Pacifica Marketing LLC Silicon Valley Clean Energy Authority All Notices:

Street:

City:

Attn:

Phone:

Email:

All Notices:
333 W. El Camino Real, Suite 330
Sunnyvale, CA 94087
Attn: Girish Balachandran, CEO and Monica
Padilla, COO and Director of Power Resources
Phone: (408) 721-5301
Email: [email protected] and
[email protected]
Reference Numbers:

Duns:

Federal Tax ID Number:

Reference Numbers:

Duns:

Federal Tax ID Number:

Invoices:

Attn:

Phone:

Email:

Invoices:

Attn: Power Supply Group
Phone: (408) 721-5301
Email: [email protected]
Scheduling:

Attn:

Phone:

Email:

Scheduling:

Attn: ZGlobal
Phone: (916) 221-4064 (Jamil Labban) and
(916) 235-9193 (Nicole Ramos)
Email: [email protected] and
[email protected]
Confirmations:

Attn:

Phone:

Email:

Confirmations:

Attn:

Phone:

Email:

Payments:

Attn:

Phone:

Email:

Payments:

Attn: Finance Group
Phone: (408) 721-5301
Email: [email protected]
Wire Transfer:

BNK:

ABA:

ACCT:

Wire Transfer:

BNK:

ABA:

ACCT:

Credit and Collections:

Attn:

Phone:

Email:

Credit and Collections:

Attn: Finance Group
Phone: (408) 721-5301
Email: [email protected]
Item 4
Attachment 2
Added 4/11/23
Exhibit G - 2
MRP Pacifica Marketing LLC Silicon Valley Clean Energy Authority With additional Notices of an Event of
Default to:

Attn:

Phone:

Facsimile:

Email:

With additional Notices of an Event of Default or
Force Majeure Event to:

Hall Energy Law PC
Attn: Stephen Hall
Phone: (503) 313-0755
Email: [email protected]
and to:

Attn: Monica Padilla, Director of Power Resources
Email: [email protected]
Attn: Amrit Singh, Chief Financial Officer/Director
of Administrative Services
Email: [email protected]
Item 4
Attachment 2
Added 4/11/23
Exhibit H - 1

EXHIBIT H

OPERATING PROCEDURES
The Thermal Resource shall be subject to the following technical operating restrictions:

Description Value Notes

1. Generating Capacity MW

2. Daily Dispatch Limits

3. Start-up Ramp rate MW/min

4. Interconnection Capacity Limit [__] MW

5. Ancillary Services
Regulation Up,
Regulation Down,
Voltage Support,
Spinning Reserve,
and Non-spinning
Reserve.

The BESS Resource shall be subject to the following technical operating restrictions:

Description Value Notes

1. Storage Capacity

2. Maximum Stored Energy Level

4. Maximum Charging Capacity

5. Minimum Charging Capacity

6. Maximum Discharging Capacity

7. Minimum Discharging Capacity

8. Maximum State of Charge (SOC)
during Charging

9. Minimum State of Charge (SOC)
during Discharging

10. Minimum Discharge Duration

11. Minimum Charging Duration

12. Daily Dispatch Limits

13. Start-up Ramp rate
Item 4
Attachment 2
Added 4/11/23
Exhibit H - 2

14. Charging energy source

15. Interconnection Capacity Limit

16. Ancillary Services
Item 4
Attachment 2
Added 4/11/23
Exhibit I - 1

EXHIBIT I

MAINTENANCE INTERVALS

1.1 Maintenance Plans
(a) Not later than ninety (90) days before the beginning of each Contract Year the Seller shall prepare and submit to the Buyer its proposed maintenance plan (a “Maintenance Plan”) for that Contract Year; provided that the Maintenance Plan for the first Contract Year shall be prepared and submitted by the Seller to the Buyer not later than sixty (60) days after the System RA Start Date. Seller shall periodically update the Maintenance Plan as necessary or appropriate during the applicable Contract Year. Outages identified in the Maintenance Plan, as it is updated from time to time, are referred to herein as “Planned Outages”.

1.2 Scheduled Outages
(a)
(b) The Parties shall coordinate, acting reasonably and in good faith, to establish reasonable maintenance schedules for the various components of the Thermal Resource and the BESS Resource.
(c) Seller and Buyer shall use reasonable commercial efforts to coordinate all forecasted maintenance to coincide with Buyer’s forecasted dispatch schedules to minimize any loss of revenue.

1.3 Major Overhauls During Peak Summer Months
(a) Major Overhauls may not be scheduled during
As used herein “Major Overhaul” means a
major overhaul or its equivalent as defined in the applicable original equipment manufacturer’s manual.

2. Reporting Scheduled Maintenance
(a) Buyer must be informed, in advance, any time Seller is planning to perform scheduled maintenance on the Thermal Resource or the BESS Resource (each a “Resource” and together, the “Resources”). The advance notification requirements are as follows:

Item 4
Attachment 2
Added 4/11/23
Exhibit I - 2
24 Hours
7 Days
3 Months
Emergency

2.1 Limited Generation Due to Maintenance
(a) Maintenance may be performed while the applicable Resource is operating at reduced (limited) generation.
(b) Maintenance may be performed on one Resource, or a unit thereof, while the other Resource, or unit(s) thereof, respectively, is operating.

2.2 Allowance for Planned Outages
(a)

2.3 Application of Maintenance Hours
Item 4
Attachment 2
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Exhibit J - 1

EXHIBIT J
[RESERVED]
Item 4
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Exhibit K - 1

EXHIBIT K

FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification of Construction Start Date (“Certification”) is delivered by MRP Pacifica Marketing LLC (“Seller”) to Silicon Valley Clean Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Dispatchable Energy and Energy Storage 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 notice to proceed that Seller issued to its contractor as part of Construction Start is attached hereto;
2 the Construction Start Date occurred on _____________ (the “Construction Start Date”); and
3 the precise Site on which the Facility is located is, which must be within the boundaries of the previously identified Site:
_____________________________________________________________________.

IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as this ________ day of _____________, 20__.

MRP Pacifica Marketing LLC
By:

Printed Name:

Title:

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Exhibit L - 1

EXHIBIT L

FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by [LICENSED PROFESSIONAL ENGINEER] (“Engineer”) to Silicon Valley Clean Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Dispatchable Energy and Energy Storage Agreement dated _________ (“Agreement”) by and between MRP Pacifica Marketing LLC (“Seller”) and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

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

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

2. Seller has installed equipment for the BESS Resource with a nameplate capacity of no less than ninety-five percent (95%) of the Storage Contract Capacity.

3. Seller has commissioned all equipment in accordance with its respective manufacturer’s specifications.

4. Seller has demonstrated functionality of the BESS Resource’s communication systems and automatic generation control (AGC) interface to operate the BESS Resource as necessary to respond and follow instructions, including an electronic signal conveying real time and intra-day instructions, directed by the Buyer in accordance with the Agreement and/or the CAISO.

5. The BESS Resource is fully capable of charging, storing and discharging energy up to no less than ninety-five percent (95%) of the Storage Contract 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 BESS Resource was obtained from the Participating Transmission Owner.

7. The Transmission Provider has granted any necessary approvals for Commercial Operation.

8. The CAISO has provided notification supporting Commercial Operation, in accordance with the CAISO Tariff.

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

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Exhibit L - 2
[LICENSED PROFESSIONAL ENGINEER]
By:

Printed Name:

Title:

Item 4
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Exhibit M - 1

EXHIBIT M

FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity is delivered by [LICENSED PROFESSIONAL ENGINEER] (“Engineer”) to Silicon Valley Clean Energy Authority, a California joint powers authority (“Buyer”) in accordance with the terms of that certain Dispatchable Energy and Energy Storage Agreement dated _________ (“Agreement”) by and between MRP Pacifica Marketing LLC (“Seller”) and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

I hereby certify the following:

The Storage Capacity Test demonstrated a maximum dependable operating capability that can be sustained for one hour to discharge electric energy of __ MW AC to the Delivery Point for the BESS Resource, in accordance with the testing procedures, requirements and protocols set forth in Section 4.7 and Exhibit F (the “Installed Capacity”).

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

Printed Name:

Title:

Item 4
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Exhibit N - 1

EXHIBIT N

SCHEDULING COORDINATOR RESPONSIBILITIES
(a) Seller as Scheduling Coordinator for the Facility. During the Delivery Term, Seller shall be the Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO for the Facility for the delivery of the Product at the Delivery Point and for the purposes of conducting Storage Capacity Tests. As directed by Buyer, Seller (as the Facility’s SC) shall submit Schedules and Supply Plans to the CAISO in accordance with this Agreement and the applicable CAISO Tariff, protocols and Scheduling practices for Product, including on a day-ahead, hour-ahead, fifteen-minute market or real time basis. (b) Notices. Seller (as the Facility’s SC) shall use a web-based system through which Seller shall submit to 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 Buyer access to 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, transmission to the personnel designated to receive such information. (c) CAISO Costs and Revenues. Except during a Storage Capacity Test or as otherwise set forth below, Buyer shall be responsible for CAISO costs (including penalties, Imbalance Energy costs, and other charges) and shall be entitled to all CAISO revenues (including credits, Imbalance Energy revenues, and other payments), including revenues associated with CAISO dispatches, bid cost recovery, or other credits in respect of the Product Scheduled or delivered from the Facility, provided, that Seller shall be responsible for CAISO costs (including penalties, Imbalance Energy costs, and other charges) to the extent such CAISO costs are due to Seller’s failure to schedule the Charging Energy or Discharging Energy in accordance with Buyer’s instructions and the requirements of this Agreement. 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. 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 the Seller and for Seller’s account. Buyer shall use reasonable efforts to avoid submitting bids that cause Seller to incur Non-Availability Charges. 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 Seller 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. Subject to the foregoing, Seller shall pass through to Buyer all CAISO costs and revenues associated with the Facility, which shall be reflected as a credit on the monthly invoices provided to Buyer in accordance with the invoicing and payment provisions of Article 9, including the netting provisions of Section 9.7. (d) CAISO Settlements. Seller (as the Facility’s SC) shall be responsible for all settlement functions with the CAISO related to the Facility.

Item 4
Attachment 2
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Exhibit N - 2
(e) Dispute Costs. Seller (as the Facility’s SC) may be required to dispute CAISO settlements in respect of the Facility. If Buyer has directed Seller to dispute a CAISO settlement, Buyer agrees to pay Seller’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 Buyer with respect to the Facility.
(f) 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. (g) NERC Reliability Standards. Seller (as Scheduling Coordinator) shall comply with NERC reliability standards.

Item 4
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Silicon Valley Clean Energy Board of DirectorsApril 12, 2023

Silicon Valley Clean Energy Board of Directors
April 12, 2023