Moreno Valley City Council
December 19, 2023

The ATP Program consolidated existing federal and state transportation programs into a single program and is annually funded by approximately $123 million of various state and federal funds from appropriations in the annual Budget Act. The goals of the ATP include, but are not limited to, increasing the proportion of trips accomplished by walking and biking, increasing the safety and mobility of non-motorized users, advancing efforts of regional agencies to achieve greenhouse gas reduction goals, enhancing public health, and providing a broad spectrum of projects to benefit many types of users including disadvantaged communities.

The City submitted an application for ADA Curb Ramps Remediation Project as component of the Citywide Pavement Rehabilitation Program. This award will subsidize the City’s paving projects and build 66 pedestrian curb ramps.

The Program Supplement Agreement (PSA) provided at this time funds the first phase of environmental clearance. Subsequent project phases will be funded through PSA Amendments.

ALTERNATIVES

1. Approve and authorize the recommendations as presented in this report. This alternative will allow the projects to move forward in a timely manner and enable the city to receive reimbursement from Caltrans.

2. Do not approve the recommended actions as presented in this staff report. This alternative will increase cost of the City’s paving project by $1,523,000.

FISCAL IMPACT
The ADA Curb Ramps Remediation Project is funded by the Caltrans Cycle 6 Active Transportation Program (ATP) grant. The total project cost will be $1,523,000. The total grant amount of $1,523,000, will be allocated to Fund 2301 (Capital Projects Grants).

Local match is not required and there is no impact to the General Fund.

Category Fund GL Account No. Type Original Budget Proposed Adjustments Revised Budget
CIP Capital Projects Grants
(2301)
2301-99-99-92301-486010
Project No. 801 0109-2301-98 Rev $0 $1,523,000 $1,523,000 CIP Capital Projects Grants
(2301)
2301-70-76-80001-720199
Project No. 801 0109-2301-99 Exp $0 $1,523,000 $1,523,000

NOTIFICATION
Publication of agenda

PREPARATION OF STAFF REPORT
Prepared By: Department Head Approval:

Wei Sun, T.E., PTOE Melissa Walker, P.E
A.12
Packet Pg. 356

City Traffic Engineer Public Works Director/City Engineer

CITY COUNCIL GOALS
Public Facilities and Capital Projects. Ensure that needed public facilities, roadway improvements, and other infrastructure improvements are constructed and maintained.

CITY COUNCIL STRATEGIC PRIORITIES

1. Economic Development

2. Public Safety

3. Library

4. Infrastructure

5. Beautification, Community Engagement, and Quality of Life

6. Youth Programs

ATTACHMENTS
To view large attachments, please click your “bookmarks” on the left hand side of this document for the necessary attachment.

1. 5441082 PSA to Agency

2. DOTLAPG25A_City of Moreno Valley_ADA Curb Ramps

3. Project Locations-ADA Curb Ramps

APPROVALS
Budget Officer Approval ✓ Approved . 12/10/23 6:34 PM
City Attorney Approval ✓ Approved .

City Manager Approval ✓ Approved . 12/11/23 11:23 AM
A.12
Packet Pg. 357
00000A369
FOR STATE FUNDED PROJECTS NO 08-5441S21
0824000053
November 27, 2023
08-RIV-0-MORV
ATPL-5441(082)
5441
This Program Supplement, effective 10/19/2023, hereby adopts and incorporates into the Administering Agency-State Agreement No. 08-5441S21 for State Funded Projects which was entered into between the ADMINISTERING AGENCY and the STATE with an effective date of 02/14/2022 and is subject to all the terms and conditions thereof. This PROGRAM SUPPLEMENT is executed in accordance with Article I of the aforementioned Master Agreement under authority of Resolution No. approved by the ADMINISTERING AGENCY on (See copy attached).

The ADMINISTERING AGENCY further stipulates that as a condition to the payment by the State of any funds derived from sources noted below encumbered to this project, Administering Agency accepts and will comply with the Special Covenants and remarks set forth on the following pages.

Citywide- 27 city intersections for a total of 66 ramps.

Pedestrian Walkway 0.0(MILES)
Estimated Cost State Funds Matching Funds

CITY OF MORENO VALLEY
By ________________________________ By ________________________________ Title _______________________________
Date _______________________________
Attest _______________________________ Date _______________________________ Division of Local Assistance
I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance:

Accounting Officer _______________________ Date _______________ PROGRAM SUPPLEMENT NO.
to

ADMINISTERING AGENCY-STATE AGREEMENT
Adv. Project ID Date:

Location:

Project Number:

E.A. Number:

Locode:

PROJECT LOCATION:

TYPE OF WORK: LENGTH:

LOCAL OTHER
$100,000.00 $0.00 $0.00
Chief, Office of Project Implementation

STATE OF CALIFORNIA
Department of Transportation
$100,000.00
STATE $100,000.00
Program Supplement 08--544-A369- SERIAL 1Page of 4
11/27/2023
A.12.a
Packet Pg. 358 Attachment: 5441082 PSA to Agency (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA CURB RAMP REMEDIATION PROJECT)

SPECIAL COVENANTS OR REMARKS
08-RIV-0-MORV
ATPL-5441(082)

1. A. This PROJECT will be administered in accordance with the applicable CTC STIP guidelines and the Active Transportation Program guidelines as adopted or amended, the Local Assistance Procedures Manual (LAPM), the Local Assistance Program Guidelines (LAPG), and this PROGRAM SUPPLEMENT.

B. This PROJECT is programmed to receive State funds from the Active Transportation Program (ATP). Funding may be provided under one or more components. A component(s) specific fund allocation is required, in addition to other requirements, before reimbursable work can occur for the component(s) identified. Each allocation will be assigned an effective date and identify the amount of funds allocated per component(s).

This PROGRAM SUPPLEMENT has been prepared to allow reimbursement of eligible PROJECT expenditures for the component(s) allocated. Unless otherwise determined, the effective date of the component specific allocation will constitute the start of reimbursable expenditures.

C. STATE and ADMINISTERING AGENCY agree that any additional funds made available by future allocations will be encumbered on this PROJECT by use of a STATE-approved Allocation Letter and STATE Finance Letter. ADMINISTERING AGENCY agrees that STATE funds available for reimbursement will be limited to the amount allocated by the California Transportation Commission (CTC) and/or the STATE.

D. Upon ADMINISTERING AGENCY request, the CTC and/or STATE may approve supplementary allocations, time extensions, and fund transfers between components. Funds transferred between allocated project components retain their original timely use of funds deadlines, but an approved time extension will revise the timely use of funds criteria for the component(s) and allocation(s) requested. Approved supplementary allocations, time extensions, and fund transfers between components made after the execution of this PROGRAM SUPPLEMENT will be documented and considered subject to the terms and conditions thereof.

Documentation will consist of a STATE approved Allocation Letter, Fund Transfer Letter, Time Extension Letter, and Finance Letter, as appropriate.

E. This PROJECT is subject to the timely use of funds provisions enacted by the Active Transportation Program guidelines, as adopted or amended, and by approved CTC and State procedures as outlined below.

Funds allocated for the environmental & permits (E&P), plan specifications & estimate (PS&E), and right-of-way components are available for expenditure until the end of the second fiscal year following the year in which the funds were allocated.

Program Supplement 08--544-A369- SERIAL Page 2 of 4
A.12.a
Packet Pg. 359 Attachment: 5441082 PSA to Agency (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA CURB RAMP REMEDIATION PROJECT)

SPECIAL COVENANTS OR REMARKS
08-RIV-0-MORV
ATPL-5441(082)
Funds allocated for the construction component are subject to an award deadline and contract completion deadline. ADMINISTERING AGENCY agrees to award the contract within 6 months of the construction fund allocation and to complete and accept the construction within 36 months of award.

F. Award information shall be submitted by the ADMINISTERING AGENCY to the District Local Assistance Engineer immediately after project contract award and prior to the submittal of the ADMINISTERING AGENCY'S first invoice for the construction contract. Failure to do so will cause a delay in the State processing of invoices for the construction phase.

G. The ADMINISTERING AGENCY shall invoice STATE for environmental & permits (E&P), plans specifications & estimate (PS&E), and right-of-way costs no later than 180 days after the end of last eligible fiscal year of expenditure. For construction costs, the ADMINISTERING AGENCY has 180 days after project completion or contract acceptance to make the final payment to the contractor prepare the final Report of Expenditures and final invoice, and submit to STATE for verification and payment.

H. ADMINISTERING AGENCY agrees to submit the final report documents that collectively constitute a "Report of Expenditures" within one hundred eighty (180) days of PROJECT completion. Failure of ADMINISTERING AGENCY to submit a "Final Report of Expenditures" within 180 days of PROJECT completion will result in STATE imposing sanctions upon ADMINISTERING AGENCY in accordance with the current LAPM and the Active Transportation Program (ATP) Guidelines.

I. ADMINISTERING AGENCY indirect costs, as defined in 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, to be claimed must be allocated in accordance with an Indirect Cost Allocation Plan (ICAP), submitted, reviewed, and approved in accordance with Caltrans Audits and Investigations requirements which may be accessed at: www.dot.ca.gov/hq/audits/.

ADMINISTERING AGENCY agrees to comply with, and require all sub-recipients and project sponsors to comply with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, and all applicable Federal and State laws and regulations.

ADMINISTERING AGENCY agrees, and will assure that its contractors and subcontractors will be obligated to agree, that Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., and all applicable Federal and State laws and regulations, shall be used to determine the allowability of individual PROJECT cost items.

Any Fund expenditures for costs for which ADMINISTERING AGENCY has received Program Supplement 08--544-A369- SERIAL Page 3 of 4
A.12.a
Packet Pg. 360 Attachment: 5441082 PSA to Agency (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA CURB RAMP REMEDIATION PROJECT)

SPECIAL COVENANTS OR REMARKS
08-RIV-0-MORV
ATPL-5441(082)
payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 200, or 48 CFR, Chapter 1, Part 3, are subject to repayment by ADMINISTERING AGENCY to STATE. Should ADMINISTERING AGENCY fail to reimburse Funds due STATE within 30 days of demand, or within such other period as may be agreed in writing between the Parties hereto, STATE is authorized to intercept and withhold future payments due ADMINISTERING AGENCY from STATE or any third-party source, including, but not limited to, the State Treasurer, the State Controller, and the California Transportation Commission.

J. By executing this PROGRAM SUPPLEMENT, ADMINISTERING AGENCY agrees to comply with all reporting requirements in accordance with the Active Transportation Program guidelines, as adopted or amended.

K. This PROJECT has received funds from Active Transportation Program (ATP). The ADMINISTERING AGENCY agrees to administer the project in accordance with the CTC Adopted SB1 Accountability and Transparency Guidelines.

2. The ADMINISTERING AGENCY shall construct the PROJECT in accordance with the scope of work presented in the application and approved by the California Transportation Commission. Any changes to the approved PROJECT scope without the prior expressed approval of the California Transportation Commission are ineligible for reimbursement and may result in the entire PROJECT becoming ineligible for reimbursement.

Program Supplement 08--544-A369- SERIAL Page 4 of 4
A.12.a
Packet Pg. 361 Attachment: 5441082 PSA to Agency (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA CURB RAMP REMEDIATION PROJECT) STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION

ALLOCATION/TIME EXTENSION FORM
LAPG 25-A (REV 07/2022) Page 1 of 5
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].

This data form is to be completed by the local agency. Once the information has been provided, a Request for Funding Allocation/Extension will be generated automatically. The yellow highlighted fields and the fields with red boxes are required for the dynamic form to work properly.

Contact DLAE for assistance with completing this form.

CTC Meeting Date for
Request of Action 12/06/2023 View CTC Meeting Schedule
Today's Date 07/11/2023

BASIC INFORMATION
Agency City of Moreno Valley
Select from the drop-down list (a City a County);
Enter agency name if not a City or County.

County Riverside County
Caltrans District 08
Federal Project Number
PPNO
Advantage Project ID
Assembly District(s) 60
Senate District(s) 31
Project Location (be brief - max 180 characters)
Locations are citywide.

Project Description (be brief)
The project will provide the remediation of 27 non-ADA compliant curb ramps.

Output/Outcome (Action taken/quantifiable benefits results) (be brief - max 180 characters) This project will reconstruct a total of 66 total non-ADA compliant curb ramps. This is essential in order to promote safety and ensure equitable access to all individuals.

1. FUNDING PROGRAM
This request is for (must check one)
STIP - State Transportation Improvement Program
ATP - Active Transportation Program
Type of this ATP project (Check one)
Infrastructure (IF) Non-Infrastructure (NI) Combined IF & NI Plan LPP - Local Partnership Program
SCCP - Solutions for Congested Corridors Program
TCEP - Trade Corridor Enhancement Program
TCIF - Trade Corridors Improvement Fund
Choose Action Requested (must check one)
Allocation Request
Time Extension Request
A.12.b
Packet Pg. 362 Attachment: DOTLAPG25A_City of Moreno Valley_ADA Curb Ramps (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA CURB RAMP STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION

ALLOCATION/TIME EXTENSION FORM
LAPG 25-A (REV 07/2022) Page 2 of 5
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].

2. PROGRAMMED FUNDS
1) Enter the amounts of programmed funds by Fiscal Year Phase Programmed Amount Fiscal Year
PA&ED* $100,000 2023/24
Plans, Specifications & Estimate (PS&E) $170,000 2024/25 Right of Way (RW) $0
Construction (CON) $1,253,000 2025/26
Construction - Non-Infrastructure (CON-NI) ** $0
Total $1,523,000
*Project Approval & Environmental Document (PA&ED)
** Plan project types included in CON-NI phase
2) Total Project Funding Plan by Fiscal Year
List all OTHER funding sources not provided in the above table and their anticipated fund usage by year. If there are any funding conditions, describe type of conditions, i.e., proportional split of funds across all components, STIP/ATP/SB1 funds first, etc. (If attached Project Programming Request includes this detail and it is still current, it is not necessary to repeat the information here.) 3) Does this project have ANY federal funds (from the program or any other funding sources)? No If yes, federal regulations, e.g. NEPA, etc., apply to all phases of this project.

3. FUND ALLOCATION REQUEST
1) Allocation phase(s): Only PS&E and RW may be requested at the same time, otherwise, check only one box. For Combined projects, allocations for the CON-NI phase must be requested on a separate LAPG 25-A.

This allocation request is for (Corresponding cell(s) in Column "This Request" in the below table will be activated after selection):

PA&ED PS&E RW CON CON-NI
2) Amount(s) to Be Requested - Enter the amount(s) of funds of this request and of the previous allocations:

Component Previous This Request Total
PA&ED* $0 $100,000 $100,000
Plans, Specifications & Estimate (PS&E) $0 $0
Right of Way (RW) $0 $0
Construction (CON) $0 $0
Construction - Non-Infrastructure (CON-NI) ** $0 $0
Total $0 $100,000 $100,000
*Project Approval & Environmental Document (PA&ED)
** Plan project types included in CON-NI phase
A.12.b
Packet Pg. 363 Attachment: DOTLAPG25A_City of Moreno Valley_ADA Curb Ramps (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA CURB RAMP STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION

ALLOCATION/TIME EXTENSION FORM
LAPG 25-A (REV 07/2022) Page 3 of 5
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected]. 3) Indicate type of funding to be requested (One must be checked):

Federal/State Federal-only State-only "Federal/State" "Federal-only" may be checked only if the answer to Question 3) in the last section ("Does this project have ANY federal funds?") is "Yes".

Is the State-only funding approved by the Program Manager? Yes
No - This project is not eligible for State-only funds.

4. REQUEST FOR ADVANCE OF FUNDING
Is this request for funding programmed in a future Fiscal Year? No Provide justification below if yes.

7. ESTIMATED TIMELY USE OF FUNDS DEADLINES
06/30/2026
Expenditures after this date will not be reimbursed and no adjustment will be made to the county share balance for the underexpenditure unless the CTC extends the deadline.

This request is for Project Development costs (PA&ED, PS&E). The estimated expenditure deadline for this allocation is (June 30th of the end of the second fiscal year after the requested approval date)

8. RTPA/MPO CONCURRENCE
The RTPA must sign the Funding Allocation Request Letter if any of the below applies Will this request change the project description, scope, exceed the amount programmed, require an advance? Has the RTPA/MPO passed a resolution requiring their concurrence on all requests for ATP funding allocations? A.12.b
Packet Pg. 364 Attachment: DOTLAPG25A_City of Moreno Valley_ADA Curb Ramps (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA CURB RAMP STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION

ALLOCATION/TIME EXTENSION FORM
LAPG 25-A (REV 07/2022) Page 4 of 5
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected]. # Documentation PA&ED PS&E
R/W
Construction
(CON) CON-NI
1 CTC Allocation Form
(For MPO/RTPA awarded projects)
2 LAPG Exhibit 25-C: State-Only Finance Letter
(State-Only Funded Projects)
LAPM 3-A: Project Authorization/Adjustment
Request (Federal Funded Projects)
3 Copy of CTC Programming Action or CTIPS
showing programming of funds
4* CEQA and NEPA (federally funded)
5 R/W Certification
6** Plansheet Package (11X17 Plansheets, Crosssections and Engineer’s Estimate) 7 Approved NI Workplan or Plan Scope of Work
Click to Generate Allocation Request
Request for Allocation Funds (CTC)/Required Documents for Submittal *Plan projects need an environmental consideration letter **Applicable to all Enhanced Oversight SOF Projects, Fed, and Fed/State funded projects A.12.b
Packet Pg. 365 Attachment: DOTLAPG25A_City of Moreno Valley_ADA Curb Ramps (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA CURB RAMP ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].

A.12.b
Packet Pg. 366 Attachment: DOTLAPG25A_City of Moreno Valley_ADA Curb Ramps (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA CURB RAMP OBJECTID Location Number Intersection # of Ramps Type of Intersection 1 1 Heritage Way and Town Circle 2 3-Way Stop
2 2 Dracaea Ave and Snowbell Land 4 1-Stop
3 3 Dracaea Ave and Peashrub Ave 2 1-Stop
4 4 Peashrub Ave. and Lilac Ct. 2 1-Stop
5 5 Peashrub Ave. and Maidenhair St. 2 1-Stop
6 6 Maidenhair St. and Snowbell Lane 4 4-Stop
7 7 Elsworth St. and Larch St. 2 1-Stop
8 8 Maidenhair St. and Sassafras St. 2 1-Stop
9 9 Hawthorn Ave. and Snowbell Lane 2 1-Stop
10 10 Arbor Park Lane and Hawthorn Ave. 2 1-Stop
11 11 Arbor Park Lane and Witchhazel Ave. 4 2-Way Stop
12 12 Witchhazel Ave. and Glorybower St. 2 1-Way Stop
13 13 Glorybower St. and Black Gum St. 4 2-Way Stop
14 14 Witchhazel Ave. and Black Gum St. 2 1-Way Stop
15 15 Hickory Way and Witchhazel Ave. 2 1-Way Stop
16 16 Witchhazel Ave. and Cherrylaurel Ave. 2 1-Way Stop 17 17 Arbor Park Lane and Dracaea Ave 2 1-Way Stop
18 18 Dracaea Ave. and Cherrylaurel Ave. 2 1-Way Stop
19 19 Boeing St. and Adrienne Ave. 2 1-Way Stop
20 20 Adrienne Ave. and McDonnell St. 2 1-Way Stop
21 21 Pan Am Blvd and Adrienne Ave. 2 1-Way Stop
22 22 Adrienne Ave and Courage St. 4 4-Way Stop
23 23 Courage St. and Allies Pl. 2 1-Way Stop
24 24 Pan Am Blvd and Bay Ave 4 4-Way Stop
25 25 Pan Am Blvd and Abington Pl 2 Free Flow
26 26 Pan Am Blvd and Berkshire Ln 2 Free Flow
27 27 Courage St and Bay Ave 2 1-Way Stop
TOTAL 66
ATP Cycle 6: ADA Curb Ramps Remediation Project
A.12.c
Packet Pg. 367 Attachment: Project Locations-ADA Curb Ramps (6455 : ACCEPT ATP (CYCLE 6) FUNDS FOR ADA Report to City Council
ID#6469 Page 1
TO: Mayor and City Council
FROM: Melissa Walker, Public Works Director/City Engineer Jason Niccoli, Electric Utility Division Manager
AGENDA DATE: December 19, 2023
TITLE: APPROVAL OF POWER PURCHASE AGREEMENT FOR

RENEWABLE RESOURCES FROM GOLDEN FIELDS

SOLAR IV, LLC

RECOMMENDED ACTION
Recommendation:

1. Approve the Power Purchase Agreement for Renewable Resources between City of Moreno Valley (as Buyer) and Golden Fields Solar IV, LLC (as Seller)

2. Authorize the City Manager to execute the Power Purchase Agreement and to approve and execute any subsequent amendments subject to the approval of the City Attorney and within the previously Council approved budget.

SUMMARY
All publicly owned utilities must adopt a Renewables Portfolio Standard (RPS) program with mandated goals for purchasing energy generated through eligible renewable sources as required by state law, these programs must comply with the state’s aggressive renewables adoption strategy. Common renewable resources include biomass, water (small hydro), geothermal, wind, and solar energy. This report recommends approval of an agreement for Moreno Valley Utility (MVU) to purchase renewable energy from the Golden Fields solar generating facility.

DISCUSSION
On June 11, 2013, the City Council approved Resolution No. 2013-37 adopting a Renewable Energy Procurement Plan pursuant to Senate Bill 2-1X (SB 2X). SB 2X requires all publicly owned utilities to adopt an RPS program with prescribed goals for A.13
Packet Pg. 368

procuring renewable energy resources and the criteria for achieving such goals. The goals for procuring renewable energy are as follows:
• Procurement targets are described as a percentage of retail sales – • Compliance Period One: an average of 20% RPS eligible resource procurement
• Compliance Period Two: by December 31, 2016, 25% RPS eligible resource procurement
• Compliance Period Three: by December 31, 2020, 33% RPS eligible resource procurement
• Compliance Period Four: by December 31, 2024, 44% RPS eligible resource procurement
• Compliance Period Five: by December 31, 2027, 52% RPS eligible resource procurement
• Compliance Period Six: by December 31, 2030, 60% RPS eligible resource procurement
Beginning January 1, 2021, at least 65% of the renewable resources acquired for each compliance period must come from contracts that are at least 10 years in duration. Senate Bill 100, signed into law in 2018, requires all retail electricity in the state to be carbon-free by 2045.

In January 2022, a Request for Proposals for cost-effective Long-Term Eligible Renewable Energy Resource was issues to 19 firms. 4 firms submitted proposals. The Golden Fields project submitted by Clearway Energy was selected after extensive review.

Clearway’s Golden Fields project overall is a 10 MW photovoltaic power project in Kern County, California, with Moreno Valley’s fraction of the project at 60%, or 6 MW. The remaining share of the project will be 3 MW for Rancho Cucamonga, and 1 MW for Eastside Power Authority – two public agencies that Moreno Valley has shared renewable energy projects with previously. The expected commercial operation date of the Facility is June 1, 2025, which is when MVU will begin to receive energy from the project. To coordinate activities of the Golden Fields project buyers, each of the buyers has agreed to appoint Moreno Valley (which holds the largest project share) as the Buyers’ Facility Agent. Moreno Valley will act on behalf of all Buyers regarding certain rights and activities related to the Golden Fields project. The Buyers’ Facility Agent’s duties will include only administrative functions, and will not include activities that have a financial impact to the Buyers.

The Buyers’ Facility Agent Agreement also establishes a Material Actions Committee, whose purpose is to provide direction regarding activities that have a financial impact to each Buyer. The members of the Material Actions Committee will consist of one representative and one alternative from each Buyer. The voting share of each member will correspond to the Buyers’ percentage of output from the Facility. Each Buyer will share in the costs incurred by the Buyers’ Facility Agent based upon the Buyers’ percentage of output from the Facility. The term of the Buyers’ Facility Agent Agreement A.13
Packet Pg. 369

will run concurrent with the terms of the PPA.

The terms of the Power Purchase Agreement include a fixed price of $46 per MWh over 20 years for the energy and renewable attributes. MVU’s allocation in this project will count towards the renewable energy requirement as set forth in SB 350 and SB 100, and conforms to the policies established by the updated Integrated Resource Plan that the City Council approved on September 18, 2018.

ALTERNATIVES

1. Approve the Power Purchase Agreement for Renewable Resources between the City of Moreno Valley (as Buyer) and Golden Fields Solar IV LLC (as Seller) and approve the Buyers’ Facility Agent Agreement for the Golden Fields Solar Project authorize the City Manager to execute the Power Purchase. Staff recommends this alternative. The approval of this Agreement will help the City to comply with the State mandate for the purchase of renewable energy.

2. Do not approve the Power Purchase Agreement and do no authorize the City Manager to execute the Power Purchase Agreement. Staff does not recommend this alternative. The City could be found non-compliant with the State mandate for renewable energy.

FISCAL IMPACT
This project required no contributions to construction costs, and therefore will have no fiscal impact for Fiscal Year 2023/24, or Fiscal Year 2024/25. MVU will only pay for the actual energy received beginning in approximately June of 2025. The projected average annual cost in approximately $938,400 based on anticipated project output. This contract will be included in the Fiscal Year 2026/2027 budget.

NOTIFICATION
Posting of the Agenda.

PREPARATION OF STAFF REPORT
Prepared By: Department Head Approval:

Jason Niccoli Michael Lloyd
Electric Utility Division Manager Assistant City Manager Concurred By:

Melissa Walker
Public Works Director

CITY COUNCIL GOALS
None

CITY COUNCIL STRATEGIC PRIORITIES
A.13
Packet Pg. 370

1. Economic Development

2. Public Safety

3. Library

4. Infrastructure

5. Beautification, Community Engagement, and Quality of Life

6. Youth Programs

ATTACHMENTS
To view large attachments, please click your “bookmarks” on the left hand side of this document for the necessary attachment.

1. 20231203 Buyers Agent Agreement

2. WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7

APPROVALS
Budget Officer Approval ✓ Approved . 12/10/23 6:38 PM
City Attorney Approval ✓ Approved .

City Manager Approval ✓ Approved . 12/11/23 11:21 AM
A.13
Packet Pg. 371

BUYERS' FACILITY AGENT AGREEMENT
(related to the Power Purchase Agreement for the Golden Fields Solar Facility) AMONG

CITY OF MORENO VALLEY
(as "Buyers' Agent")
AND

CITY OF RANCHO CUCAMONGA
AND

EASTSIDE POWER AUTHORITY
(together, as ''Limited Buyers")
Dated as of _______________
("Effective Date")
A.13.a
Packet Pg. 372 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR)

BUYERS' FACILITY AGENT AGREEMENT
This BUYERS' FACILITY AGENT AGREEMENT (''Agreement"), dated as of _______________ 202_, is being entered into by and among the CITY OF MORENO VALLEY, a California municipal corporation organized under the laws of the State of California ("Moreno Valley"), as "Buyers' Agent," and the CITY OF RANCHO CUCAMONGA, a California municipal corporation organized and existing under the laws of the State of California ("Rancho Cucamonga"), and the EASTSIDE POWER AUTHORITY, a joint powers authority and a public entity organized under the laws of the State of California ("Eastside"). Collectively, Rancho Cucamonga and Eastside shall be referred to herein as "Limited Buyers." This Agreement relates to the administration of duties with respect to the "Buyers' Facility Agent" in the certain POWER PURCHASE AGREEMENTS of the respective Parties, relating to the Golden Fields Solar IV Facility (“GF Agreement"). Each Buyer Agent and Buyer isreferred to individually in this Agreement as a “Party” and together as the "Parties."

RECITALS
A. Capitalized terms in this Agreement shall have the meanings given to such terms (i) in the GF Agreement or (ii) in the body of this Agreement (as first identified in parentheses and underscored font).

B. In connection with the development and acquisition of their respective long-term renewable energy generation resources, the Buyers have identified a 10 MW solar photovoltaic facility ("Facility") to be developed by Golden Fields Solar IV LLC, a subsidiary of Clearway Energy ("Seller").

C. The Buyers have participated in negotiations for and have entered into the GF Agreement with Seller for the development of the Facility and the sale of Products from the Facility.

D. The GF Agreement includes provisions for Moreno Valley to act as Buyers' Agent, on its own behalf and for and on behalf of Eastside and Rancho Cucamonga in certain circumstances, as expressly provided in the GF Agreement.

E. Each of the Buyers intends by this Agreement to provide the manner and means to coordinate the exercise of certain of the Buyers' rights and activities with respect to the GF Agreement and to authorize Moreno Valley, acting as the Buyers' Agent, to provide such approvals, determinations,responses and other actions under the GF Agreement on behalf of the Buyers in order to carry out the applicable terms thereof and realize the related benefits thereunder.

A.13.a
Packet Pg. 373 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) 2 AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein, the mutual covenants and agreements herein set forth, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

ARTICLE 1
EFFECTIVE DATE;TERM

1.1 Effective Date. This Agreement shall be effective as of the date on which all Parties have executed this Agreement and the GF Agreement is effective (“Effective Date'').

Buyers' Agent shall confirm its acknowledgement of the Effective Date by electronic mail to the Limited Buyers as soon as reasonably practicable following the Effective Date, providing as attachments to such electronic mail transmittal electronic copies of (i) the cover page of this Agreement and (ii) a conformed copy of this Agreement.

1.2 Term. The term of this Agreement shall commence on the Effective Date and continue coterminous with the GF Agreement.

ARTICLE 2
APPOINTMENT OF BUYERS' AGENT; RELATIONSHIPS

2.1 Appointment and Acceptance. Subject to the terms and conditions of this Agreement, the Limited Buyers hereby appoint and authorize Moreno Valley to act as the Buyers' Agent on behalf of Buyers. The Limited Buyers acknowledge and agree that, by this appointment, Buyers' Agent has the power and authority to take such actions, grant such consents, and bind Buyers with respect to the matters provided for in the GF Agreement, subject to the processes described in this Agreement. Moreno Valley hereby accepts the appointment as Buyers' Agent and agrees to act as Buyers' Agent for and on behalf of the Limited Buyers as well as on its own behalf, all as provided in this Agreement.

2.2 Limitation on Appointment. Notwithstanding any provision to the contrary in this Agreement, Buyers' Agent shall not have any authority, duties or responsibilities except those expressly set forth herein and in the GF Agreement, and those duties and responsibilities reasonably incidental thereto. No fiduciary function, responsibility, duty, obligation or liability shall be read into this Agreement or otherwise exist against Buyers' Agent. The duties of Buyers' Agent are and shall be ministerial and administrative in nature and Buyers' Agent shall not, by reason of this Agreement or actions taken under this Agreement, be a trustee or fiduciary for the Limited Buyers.

2.3 Reliance by Buvers' Agent. Buyers' Agent shall be entitled to rely upon, and shall be fully protected in relying upon, (a) any notice, consent, certificate, affidavit, letter, fax, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and (b) advice and statements of legal counsel and other experts selected by Buyers' Agent. Buyers' Agent may seek the advice, concurrence or prior indemnification from the Limited Buyers concerning any matters of judgment or discretion. Buyers' Agent shall be justified in failing or refusing to take any action A.13.a
Packet Pg. 374 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) 3 unless Buyers' Agent shall first receive such advice, concurrence or assurance of the Limited Buyers (or an individual Limited Buyer, as the case may be), as Buyers' Agent shall reasonably determine to be necessary.

2.4 Non-Reliance on Buvers' Agent. The Limited Buyers each expressly acknowledge that Buyers' Agent has not made any representations or warranties to the Limited Buyers and that no action hereafter taken by Buyers' Agent shall be deemed to constitute a representation or warranty by Buyers' Agent. Each Limited Buyer represents to Buyers Agent and the other Limited Buyers that it has, independently and without reliance upon Buyers' Agent or any of the other Limited Buyers, and based on such documents and information as each Limited Buyer has deemed appropriate, made its own appraisal of and investigation into the GF Agreement and made its own decision to enter into this Agreement. Each Buyer also covenants that it will, independently and without reliance upon Buyers' Agent, continue to make its own decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to matters under the GF Agreement.

ARTICLE 3

BUYERS' AGENT'S DUTIES

3.1 General. Under the GF Agreement. Buyers' Agent is specified as the Buyer that shall receive notices from Seller, provide responses to certain action by the Seller and issue various approvals and determinations. Buyers' Agent's duties shall be classified under two categories: (a) administrative, which principally relates to the distribution and processing of notices and information under the GF Agreement (as further described in Section 3.2) and (b) material, which principally relates to the exercise of Buyers' material rights and activities with respect to the GF Agreement (as further described in Section 3.3). Additionally, Buyers' Agent shall be responsible for taking certain additional action that may be necessary or convenient to matters related to the GF Agreement (as further described in Section 3.4).

3.2 Administrative Actions. Unless an action is considered a Material Action, as described in Section 3.3, Buyers' Agent shall perform the actions required of a Buyers' Agent in the GF Agreement in a manner that Buyers' Agent believes to be reasonable, and without advance input from or notice to the Limited Buyers. For allsuch administrative actions, Buyers' Agent shall provide reasonably prompt notice to the Limited Buyers of action taken by Buyers' Agent or information received from Seller, as the case may be.

3.3 Material Actions. The following actions, and no other actions under the GF Agreement, shall constitute "Material Actions" and shall require direction from the Material Actions Committee, as defined and described in Article 4, in order for Buyers' Agent to perform such actions:
(a) Setting and approval of the Floor Price.
(b) Approval of Scheduled Maintenance schedules, and related actions. (c) Approval of any lien on any portion of the Facility or any other property or assets that are related to the operation, maintenance and use of the Facility.

A.13.a
Packet Pg. 375 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) 4 (d) Approval of the equation relating to Deemed Delivered Energy. (e) Negotiation and agreement of the Facility Lender consent. (f) Consent to any Change of Control.
(t) Determination as to whether Seller will defend Buyer Indemnified Parties from legal action.
(g) Approval of a different condition or use of the Facility following damage or destruction of the Facility.
(h) Consent to Seller's actions with respect to condemnation or other taking of the Facility.
(i) Notification to Seller as to whether to pursue or cancel their respective right of first offer.

3.4 Additional Actions. Buyers' Agent shall take the following actions that may be necessary or convenient to matters related to the GF Agreement:
(a) Buyers' Agent shall provide the MAC and MAC Representatives(assuch terms are defined and described in Article 4) information that may be useful to the MAC's decision with respect to a Material Action, including studies, material or services. (b) Buyers' Agent shall furnish any other reasonable assistance, service or information related to a matter under the GF Agreement, as reasonably requested by the MAC or a MAC Representative.

3.5 Delegation of Duties. Buyers' Agent may execute any of its duties under this Agreement by or through independent contractors, representatives, agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Buyers' Agent shall not be responsible for the negligence or misconduct of any independent contractors, representatives, agents or attorneys-in-fact selected by it; provided, however, Buyers' Agent shall use commercially reasonable care to ensure that such third-party providers (a) maintain errors and omission and liability insurance in a form and amount reasonably appropriate for the services provided and (b) indemnify the Limited Buyers for liability or costs incurred by the Limited Buyers as a result of negligent action or inaction by the third-party provider. The Limited Buyers shall be subrogated to all claims of Buyers' Agent against such independent contractors, representatives, agents or attorneys-in-fact.

A.13.a
Packet Pg. 376 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) ARTICLE 4

MATERIAL ACTIONS COMMITTEE

4.1 Establishment and Authorization of Material Actions Committee. The Material Actions Committee ("'MAC") is hereby established and authorized to act on behalf of each of the Buyers for the purposes of (a) providing coordination among the Buyers in carrying out certain collective actions related to Material Actions and (b) providing the manner and means for achieving agreement among the Buyers with respect to such collective actions.

4.2 MAC Representatives. The MAC shall consist of a single representative ("MAC Representative'") from each of the Buyers. Each of the Buyers shall, within thirty (30) days of the Effective Date of this Agreement, give notice to the other Buyers of its MAC Representative.

An alternate MAC Representative may be appointed to act on behalf of any MAC Representative by similar written notice. An alternate MAC Representative may attend all meetings of the MAC but may vote only if the MAC Representative for whom the alternate serves is absent.

4.3 Voting Shares; Effective Vote. The voting share associated with each MAC Representative shall correspond to the Buyers' Percentage of Facility Output, as follows: Moreno Valley (60%); Rancho Cucamonga (30%); and Eastside (10%). Unless all of the Buyers shall determine otherwise, actions of the MAC shall require the affirmative vote of MAC Representatives having a voting share equal to or greater than seventy percent (70%). Each of the Buyers agrees that the vote of the MAC Committee with respect to a Material Action shall be determinative as to such matter and shall constitute the agreement of the Buyers as to such matter for purposes of the GF Agreement.

4.4 Chairperson; Quorum. Unless all of the Buyers shall determine otherwise, the Chairperson of the MAC shall be Moreno Valley's MAC Representative, or the alternate thereto.

The Chairperson shall be responsible for calling and presiding over meetings of the MAC. For the purpose of conducting meetings, a quorum shall exist so long as MAC Representatives having a voting share equal to or greater than seventy percent (70%) are present. The conducting of MAC meetings, including voting at such meetings, may be by assembled meeting or by telephone or video conferencing, or by any combination thereof, to the extent permitted by law.

4.5 Use of Administrative Exhibits. Buyers' Agent may use exhibits to confirm or implement provisions of this Agreement or the GF Agreement. The Parties intend that such exhibits shall be ministerial or administrative in nature, and shall not affect a material right or obligation under this Agreement or the GF Agreement. Exhibits may be added to this Agreement, and modified or deleted, by an affirmative vote of MAC Representatives having a voting share equal to or greater than seventy percent (70%). Upon such affirmative vote, the exhibit shall become an integrated part of this Agreement. Buyers' Agent shall provide notice to the Buyers of the addition, modification or deletion of any exhibit. The then-current list of exhibits shall be contained in Exhibit A to this Agreement, as may be modified from time to time. In the event of any conflict between this document and any exhibit, the terms and provisions of this document, as may be amended from time to time, shall control. In the event of any conflict between or among the exhibits, the exhibit of latest date shall control.

4.6 Floor Price. Buyers’ Agent shall upon five days (5) notice to the Limited Buyers, adjust the Floor Price under the GF Agreement in its discretion. Any Limited Buyer may request that the floor price adjustment be subject to a vote of the MAC under Section 4.3. 5 A.13.a
Packet Pg. 377 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) 6 ARTICLE 5

SUCCESSOR BUYERS' AGENT
Subject to the terms of this Article 5 and the GF Agreement, Buyers' Agent may resign as Buyers' Agent upon no less than ninety (90) days' advance written notice to the Limited Buyers. Upon receipt of Buyers' Agent's notice, the Buyers shall work cooperatively and in good faith to appoint a successor Buyers' Agent. The Buyers may appoint another Buyer to act as successor Buyers' Agent upon satisfaction of the following conditions: (a) the Buyer agrees to assume Buyers' Agent's responsibilities and (b) the Buyer has been approved by MAC Representatives having a voting share equal to or greater than seventy percent (70%). Until such appointment is made, the Buyers shall act reasonably in appointing a new Buyers' Agent, and when necessary, the Buyers' Agent shall be the Buyer with the largest applicable MW share of the Facility.

ARTICLE6
COSTS

6.1 General. All reasonable and customary expenses, including, without limitation, reasonable attorneys' fees and legal expenses, incurred by Buyers' Agent in the performance of its duties hereunder shall be allocated to and paid by the Buyers, including Moreno Valley, based on each Buyers' Percentage of Facility Output, which presently is as follows: Moreno Valley (60%); Rancho Cucamonga (30%); and Eastside (10%). As requested by Limited Buyers from time to time, Buyers' Agent shall provide an estimate of future expenses.

6.2 Pavment and Audit. From time to time, and at such times as Buyers' Agent shall determine (not more frequently than monthly), Buyers' Agent shall submit to each Buyer a request and requisition for payment by such Buyer of its proportionate share of expenses under this Agreement. Each Buyer shall pay or cause to be paid the amount of such request and requisition within thirty (30) days after receipt thereof. If a Party fails to pay any such request or requisition when due, interest shall accrue, to the extent permitted by law, at a rate equal to the Interest Rate as defined in the GF Agreement until payment is made. At such reasonable times as shall be requested by a Buyer, the books and cost records of Buyers' Agent relevant to expenses under this Agreement shall be subject to audit by such Buyer, at such Buyer's sole cost and expense.

ARTICLE 7

LIABILITY

7.1 Exculpatory Provision. Buyers' Agent shall not be (a) liable for any action lawfully taken or omitted to be taken by Buyers' Agent under or in connection with this Agreement, except for Buyers' Agent's gross negligence or willful misconduct or (b) responsible in any manner for (i) warranties made by Seller in the GF Agreement or in any certificate, report, statement or other document referred to or received by Buyers' Agent under or in connection with the GF Agreement ("Seller Statements"), (ii) the validity, effectiveness, A.13.a
Packet Pg. 378 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) 7 genuineness, enforceability, priority or sufficiency of the Seller Statements, or (iii) any failure of Seller to perform its obligations under the GF Agreement.

7.2 Modifying or Explanatory Provisions.
(a) The exculpatory provision set forth in Section 7.1 shall apply to all types of claims or actions including, but not limited to, claims or actions based on contract or tort. (b) Except as expressly stated in the GF Agreement or this Agreement, Buyers' Agent shall not be under any obligation to ascertain or to inquire as to the observance or performance of Seller's obligations under the GF Agreement, or to inspect the books or records of Seller.
(c) For the avoidance of doubt, a Party may protect and enforce its rights under this Agreement by a suit or suits in equity for specific performance of any obligation or duty of any other Party and Buyers' Agent may enforce by any legal means its right to payment for costs incurred under this Agreement.
(d) The rights, obligations and liabilities of Moreno Valley, as Buyers' Agent under this Agreement and the GF Agreement shall not apply to or otherwise be affected by, and shall be deemed and interpreted to be legally separate from, the rights, obligations and liabilities of Moreno Valley as a Buyer under this Agreement and the GF Agreement.

7.3 Allocation of Liabilitv. Excluding liability or cost associated with the gross negligence or willful misconduct by Buyers' Agent, which shall be solely the responsibility of Buyers' Agent, all liability or cost under this Agreement, including liability or cost associated with Buyers' Agent performance of duties under this Agreement, shall be allocated in accordance with each Buyers' Percentage of Facility Output.

ARTICLES

DISPUTES

8.1 Dispute or Claim. Any action, claim or dispute that any Party may have against another Party or Parties arising out of this Agreement ("Dispute") shall be submitted in writing to the other Parties. The written submission of any Dispute shall include a concise statement of the question or issue in dispute together with a statement listing the relevant facts and documents that support the claim.

8.2 Good Faith Resolution; Informal Negotiation. The Parties agree to cooperate in good faith to attempt to achieve an expeditious resolution ofsuch a Dispute. Pending resolution of such Dispute, unless otherwise provided for under this Agreement, the Parties shall proceed diligently with the performance of their respective obligations pursuant to the terms of this Agreement. Prior to initiating litigation, as described in Section 8.3, the Parties shall first attempt in good faith to resolve any Dispute through settlement discussions among the MAC Representatives.

A.13.a
Packet Pg. 379 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) 8 8.3 Litigation Rights. Subject to Section 8.2, if the Parties are unable to satisfactorily resolve the Dispute within thirty (30) days from the receipt of notice of the Dispute, subject to any extensions of time as may be mutually agreed upon in writing, a Party may initiate litigation in a court of law with jurisdiction located in Riverside County, California, which shall be the exclusive venue to litigate disputes.

8.4 No Attornevs Fees. If any action is brought at law or in equity in any court or through any alternative mutually agreeable dispute resolution process to enforce any provision of this Agreement, or for damages by reason of any alleged breach of this Agreement, the Parties mutually agree that each Party to this Agreement shall bear its own attorneys fees and costs.

ARTICLE 9

MISCELANEOUS

9.1 Incorporation of the GF Agreement. By this reference, the GF Agreement is specifically incorporated herein and made a part hereof.

9.2 Entire Agreement. Subject to Section 4.5 and Section 9.1, this Agreement contains all representations and the entire understanding among the Parties with respect to the duties and functions of the Buyers' Agent. No other representations are intended or shall be implied. Any prior contemporaneous correspondence, memoranda, or agreements, whether oral or written, which are in conflict with this Agreement are intended to be replaced in total by this Agreement.

9.3 Governing Law. This Agreement was made and entered into in the State of California and shall be governed by, interpreted and enforced in accordance with the laws of the State of California, without regard to conflict of law principles.

9.4 Representation. The Parties acknowledge that each Party was represented by counsel in the negotiation and execution of this Agreement, and any uncertainty or ambiguity in this Agreement shall not be interpreted against a Party on the basis that the Party drafted the language, but shall be interpreted according to the application of the rules on interpretation of contracts.

9.5 Notice. Notices provided under this Agreement, including administrative notices that relate to the distribution and processing of information under the GF Agreement (as further described in Section 3.2), shall be in writing and sent via electronic mail (return receipt requested, if necessary or advisable) to the persons specified below:

Moreno Valley
Attention: Jason Niccoli and Dean Ayer
Email: [email protected] and [email protected]
A.13.a
Packet Pg. 380 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) 9 Eastside Power Authoritv
Attention: Cori Bradley
Email: [email protected]
Rancho Cucamonga
Attention: Fred Lyn
Email: [email protected]
By written notice given to the other Parties, a Party may change the name or electronic mail address of its representative, or may add additional recipients to whom notices under this Agreement should be provided.

9.6 Severability. In case any one or more of the provisions of this Agreement shall for any reason be held to be illegal or invalid by a court of competent jurisdiction, it is the intention of each of the Parties that such illegality or invalidity shall not affect any other provision, but rather that this Agreement shall be construed and enforced as if such illegal or invalid provision had not been contained, unless a court holds that the provisions are not separable from all other provisions of this Agreement.

9.7 Amendments. The Parties acknowledge and agree that any amendment to this Agreement shall be in writing and duly executed by the Parties.

A.13.a
Packet Pg. 381 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) 10 ARTICLE 10

SIGNATURES
IN WITNESS WHEREOF, the Parties hereto have duly caused this Agreement to be executed by their duly authorized representatives.

CITY OF MORENO VALLEY

CITY OF RANCHO

CUCAMONGA
By:

Name:

Title:

Date:

By:

Name:

Title:

Date:

EASTSIDE POWER

AUTHORITY
By:

Name:

Title:

Date:

A.13.a
Packet Pg. 382 Attachment: 20231203 Buyers Agent Agreement (6469 : APPROVAL OF POWER PURCHASE AGREEMENT WITH GOLDEN FIELDS SOLAR) Execution Version
i

POWER PURCHASE AGREEMENT

COVER SHEET
Seller: Golden Fields Solar IV, LLC, a Delaware limited liability company (“Seller”) Buyer: City of Moreno Valley (“Buyer”)
Buyer’s Fraction: 60%
Description of Facility: A dedicated and separately metered 10 MW AC photovoltaic electric generating facility located in Kern County, California, which is adjacent to a larger solar photovoltaic and energy storage facility being developed at the same Site, all located in Kern County, in the State of California, as further described in Exhibit A.

Milestones:

Milestone Completion Date
Evidence of Site Control Complete
CEC Pre-Certification Obtained August 1, 2024
Documentation of Conditional Use Permit if required:
[X] CEQA, [] Cat Ex, [] Neg Dec, [] Mitigated Neg Dec,
[X] EIR
Complete
Seller’s Receipt of Phase I and Phase II Interconnection study results for Seller’s Interconnection Facilities
Complete
Executed Interconnection Agreement Complete
Bridge Product Delivery Start Date January 1, 2024
Bridge Product Delivery End Date December 31, 2024
Expected Construction Start Date November 1, 2024
Initial Synchronization March 15, 2025
Network Upgrades Completed March 1, 2025
Expected Commercial Operation Date June 1, 2025
A.13.b
Packet Pg. 383 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT ii
Delivery Term: The period for Product delivery will be for fifteen (15) Contract Years.

Expected Energy:

Contract Year Expected Energy (MWh)
1 34,705
2 34,532
3 34,359
4 34,187
5 34,016
6 33,846
7 33,677
8 33,509
9 33,341
10 33,174
11 33,008
12 32,843
13 32,679
14 32,516
15 32,353
Guaranteed Capacity: 10 MW
Monthly Expected Energy:
1 1 This table reflects Buyer’s Fraction of Seller’s Expected Energy by calendar month in the first Contract Year, as if the first Contract Year begins on January first. The first Contract Year may begin on another date, per the terms of this Agreement.

A.13.b
Packet Pg. 384 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT iii
Month Expected Energy (MWh)
January 2,099.8
February 2,219.6
March 2,901.6
April 3,093.9
May 3,575.4
June 3,651.6
July 3,625.0
August 3,477.5
September 3,061.6
October 2,795.0
November 2,258.3
December 1,945.6
Contract Price:

Contract Year Contract Price ($/MWh)
1-15 $46.00 without escalation
Product:
 Energy
 Green Attributes
 Portfolio Content Category 1
 Capacity Attributes
A.13.b
Packet Pg. 385 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT iv
Scheduling Coordinator: Seller or Seller’s designated Scheduling Coordinator Development Security: Buyer’s Fraction multiplied by $80,000 per MW of Guaranteed Capacity (as of the Effective Date)
Performance Security: Buyer’s Fraction multiplied by $80,000 per MW of Installed Capacity [Signatures on following page.]
A.13.b
Packet Pg. 386 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT v
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.

SELLER
Golden Fields Solar IV, LLC
By:

Name:

Title:

BUYER
City of Moreno Valley
By:

Name:

Title:

A.13.b
Packet Pg. 387 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 1 RENEWABLE POWER PURCHASE AGREEMENT
This Renewable Power Purchase Agreement (“Agreement”) is entered into as of [___], 2023 (the “Effective Date”), between Seller and Buyer. Buyer and Seller are sometimes referred to herein individually as a “Party” and jointly as the “Parties.” All capitalized terms used in this Agreement are used with the meanings ascribed to them in Article 1 to this Agreement.

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

ARTICLE 1

DEFINITIONS

1.1 Contract Definitions. The following terms, when used herein with initial capitalization, shall have the meanings set forth below:
“AC” means alternating current.
“Accepted Compliance Costs” has the meaning set forth in Section 3.11. “Adjusted Energy Production” has the meaning set forth in Exhibit G. “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. For purposes of this Agreement, Clearway Energy, Inc. shall be deemed to be an Affiliate of Seller.
“Agreement” has the meaning set forth in the Preamble and includes any exhibits, schedules and any written supplements hereto, the Cover Sheet, and any designated collateral, credit support or similar arrangement between the Parties. “Ancillary Services” means all ancillary services, products and other attributes, if any, associated with the Facility.

A.13.b
Packet Pg. 388 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 2 “Availability Incentive Payment” has the meaning set forth in the CAISO Tariff. “Approved Forecast Vendor” means (x) the CAISO or (y) any vendor reasonably acceptable to both Buyer and Seller for the purposes of providing and verifying the forecasts under Section 4.3.
“Automated Dispatch System” or “ADS” has the meaning set forth in the CAISO Tariff. “Available Capacity” means the capacity from the Facility, expressed in whole MWs, that is available at a particular time to generate Energy.
“Bankrupt” means with respect to any entity, such entity that (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, (b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, (c) makes an assignment or any general arrangement for the benefit of creditors, (d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due. “Bridge Product” has the meaning set forth in Section 3.15. “Bridge Product Delivery Term” has the meaning set forth in Section 3.15(a). “Bridge Product Offer” has the meaning set forth in Section 3.15(c). “Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a Notice, or payment, or performing a specified action. “Buyer” has the meaning set forth on the Cover Sheet.
“Buyer’s Facility Agent” means an agent appointed by Buyer pursuant to a written agreement among buyers of the Facility output for the purpose of administering certain aspects of Facility operational issues and this Agreement which is detailed in the written agreement. The appointment may be changed from time to time with Notice thereof to Seller. As of the Effective Date, the Buyer’s Facility Agent shall be the City of Moreno Valley. If at any point during the Term of this Agreement no Buyer’s Facility Agent is appointed or such agent has resigned or is removed and is not replaced, then Buyer shall act as the Buyer’s Facility Agent for purposes of this Agreement until a replacement agent is appointed, except with respect to the Floor Price, which shall remain set at the most recent Floor Price communicated by the last authorized Buyer’s Facility Agent.
“Buyer’s Default” means an Event of Default of the Buyer. “Buyer’s Fraction” has the meaning set forth on the Cover Sheet. “Buyer’s WREGIS Account” has the meaning set forth in Section 4.8(a).

A.13.b
Packet Pg. 389 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 3 “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
“CAISO Approved Meter” means a CAISO approved revenue quality meter or meters, CAISO approved data processing gateway or remote intelligence gateway, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, all Facility Energy delivered to the Delivery Point.
“CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff.
“CAISO Operating Order” means the “operating order” defined in the CAISO Tariff. “CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and operating procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC.
“California Renewables Portfolio Standard” or “RPS” means the renewable energy program and policies established by California State Senate Bills 1038 (2002), 1078 (2002), 107 (2008), X-1 2 (2011), 350 (2015), and 100 (2018), codified in, inter alia, California Public Utilities Code Sections 399.11 through 399.31 and California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time. “Capacity Attribute” means any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of Energy that the Facility can generate and deliver to the Delivery Point at a particular moment, that can be purchased and sold under CAISO market rules.
“Capacity Damages” has the meaning set forth in Exhibit B. “CEC” means the California Energy Commission, or any successor agency performing similar statutory functions.
“CEC Certification and Verification” means that the CEC has certified (or, with respect to periods before the date that is up to one hundred eighty (180) days after the Commercial Operation Date, that the CEC has pre-certified) that the Facility is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard, meeting all applicable requirements for certified facilities set forth in the RPS Eligibility Guidebook, Ninth Edition (or its successor), and that all Energy generated by the Facility and delivered to the Delivery Point qualifies as generation from an Eligible Renewable Energy Resource. “CEC Precertification” means that the CEC has issued a precertification for the Facility indicating that the planned operations of the Facility would comply with applicable CEC requirements for CEC Certification and Verification.

A.13.b
Packet Pg. 390 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 4 “CEQA” means the California Environmental Quality Act, California Public Resources Code §§ 21000, et seq. and Chapter 3 of Division 6 of Title 14 of the California Code of Regulations.
“Change of Control” means any circumstance in which Ultimate Parent ceases to own, directly or indirectly through one or more intermediate entities, more than fifty (50%) of the outstanding equity interests in Seller; provided that a Change of Control will not have occurred if Ultimate Parent remains the Managing Member of the entity that owns, directly or indirectly through one or more intermediate entities, more than fifty percent (50%) of the outstanding equity interests in Seller; provided further that in calculating ownership percentages for all purposes of the foregoing:
(a) any ownership interest in Seller held by its Ultimate Parent indirectly through one or more intermediate entities shall not be counted toward the Ultimate Parent’s ownership interest in Seller unless the Ultimate Parent directly or indirectly owns more than fifty percent (50%) of the outstanding equity interests in each such intermediate entity; and
(b) ownership interests in Seller owned directly or indirectly by any Lender (including any tax equity provider) shall be excluded from the total outstanding equity interests in Seller.
“Claim” has the meaning set forth in Section 16.2(a).
“COD Certificate” has the meaning set forth in Exhibit B. “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute, including the rules or regulations promulgated thereunder, in each case as in effect from time to time. References to sections of the Code shall be construed to also refer to any successor sections.
“Collateral Assignment Agreement” has the meaning set forth in Section 14.2. “Commercial Operation” has the meaning set forth in Exhibit B. “Commercial Operation Date” has the meaning set forth in Exhibit B. “Commercial Operation Delay Damages” means a daily amount equal to (a) the Development Security amount required hereunder, divided by (b) one hundred eighty (180). “Compliance Actions” has the meaning set forth in Section 3.11. “Compliance Expenditure Cap” has the meaning set forth in Section 3.11. “Confidential Information” has the meaning set forth in Section 18.1. “Construction Delay Damages” means a daily amount equal to (a) the Development Security amount required hereunder, divided by (b) one hundred eighty (180).

A.13.b
Packet Pg. 391 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 5 “Construction Start” has the meaning set forth in Exhibit B. “Construction Start Date” has the meaning set forth in Exhibit B. “Contract Price” has the meaning set forth in the Cover Sheet. “Contract Price for Bridge Product” has the meaning set forth in Section 3.15(c). “Contract Quantity of Bridge Product” has the meaning set forth in Section 3.15(b). “Contract Term” has the meaning set forth in Section 2.1. “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commercial Operation Date, and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. “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.
“COVID-19” means the epidemic disease designated COVID-19 and the related virus designated SARS-CoV-2 and any mutations thereof, and the efforts of a Governmental Authority to combat such disease.
“CPUC” means the California Public Utilities Commission, or any successor agency performing similar statutory functions.
“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, Fitch, or Moody’s, as applicable. If ratings by S&P, Fitch, or Moody’s are not equivalent, the lower rating shall apply. “Curtailment Cap” is the yearly quantity per Contract Year, in MWh, equal to fifty (50) hours multiplied by the Installed PV Capacity.
“Curtailment Order” means any of the following:
(a) a curtailment ordered by CAISO, including through the ADS or a CAISO Operating Order, for the following reasons: (i) any System Emergency, or (ii) any warning of an anticipated System Emergency, or warning of an imminent condition or situation, which jeopardizes CAISO’s electric system integrity or the integrity of other systems to which CAISO is connected;
A.13.b
Packet Pg. 392 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 6 (b) a curtailment ordered by the Participating Transmission Owner for reasons including, but not limited to, (i) any situation that affects normal function of the electric system including, but not limited to, any abnormal condition that requires action to prevent circumstances such as equipment damage, loss of load, or abnormal voltage conditions, or (ii) any warning, forecast or anticipation of conditions or situations that jeopardize the Participating Transmission Owner’s electric system integrity or the integrity of other systems to which the Participating Transmission Owner is connected; (c) a curtailment ordered by CAISO or the Participating Transmission Owner due to scheduled or unscheduled maintenance on the Participating Transmission Owner’s transmission facilities that prevents (i) Buyer from receiving or (ii) Seller from delivering Facility Energy to the Delivery Point; or
(d) a curtailment in accordance with Seller’s obligations, or due to physical or operational limitations on the transfer of electric power, under its Interconnection Agreement with the Participating Transmission Owner or CAISO. “Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which generation from the Facility is reduced pursuant to a Curtailment Order; provided that the Curtailment Period shall be inclusive of the time required for the Facility to ramp down and ramp up.
“Damage Payment” means the dollar amount that is equal to the Development Security amount required hereunder.
“Day-Ahead Forecast” has the meaning set forth in Section 4.3(c). “Day-Ahead Market” has the meaning set forth in the CAISO Tariff. “Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff. “Dedicated Interconnection Capacity” has the meaning set forth in Section 4.10. “Deemed Delivered Energy” means Buyer’s Fraction of the amount of Energy expressed in MWh that the Facility would have produced and delivered to the Delivery Point, but that is not produced by the Facility and delivered to the Delivery Point during a Market Curtailment Period which amount shall be equal to (a) the VER Forecast expressed in MWh, applicable to the Market Curtailment Period, or (b) if there is no VER Forecast available, an industry-standard methodology agreed to by Buyer and Seller that utilizes meteorological conditions and relevant Facility data on the Site as input for the period of time during such curtailments or unexcused failure to take delivery of the Product; provided that any lost Production Tax Credit (expressed as the PTC Rate multiplied by the Deemed Delivered Energy) is added to the total Deemed Delivered Energy cost; provided further that in either case the amount of Facility Energy delivered to the Delivery Point during the Market Curtailment Period is subtracted from the total. “Defaulting Party” has the meaning set forth in Section 11.1(a). “Deficient Month” has the meaning set forth in Section 4.8(e).

A.13.b
Packet Pg. 393 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 7 “Delivered Energy” shall mean Buyer’s Fraction of all Energy produced from the Facility that is delivered to the Delivery Point as measured in MWh by the Project’s CAISO meter. “Delivery Point” has the meaning set forth in Exhibit A. “Delivery Term” shall mean the period of Contract Years specified on the Cover Sheet, beginning on the Commercial Operation Date, unless terminated earlier in accordance with the terms and conditions of this Agreement.
“Development Cure Period” has the meaning set forth in Exhibit B. “Development Security” means any of the following instruments, in the amount specified on the Cover Sheet and delivered and maintained in conformance with Section 8.7: (i) cash or (ii) a Letter of Credit.
“Disclosing Party” has the meaning set forth in Section 18.2. “Early Termination Date” has the meaning set forth in Section 11.2. “Economic Bid” has the meaning set forth in the CAISO Tariff. “Effective Date” has the meaning set forth on the Preamble. “Electrical Losses” means all transmission or transformation losses between the Facility and the Delivery Point.
“Eligible Renewable Energy Resource” has the meaning set forth in California Public Utilities Code Section 399.12(e) and California Public Resources Code Section 25741(a), as either code provision is amended or supplemented from time to time. “Energy” means metered electrical energy, measured in MWh, that is generated by the Facility.
“Energy Only Deliverability Status” has the meaning set forth in the CAISO Tariff. “Energy Supply Bid” has the meaning set forth in the CAISO Tariff. “Event of Default” has the meaning set forth in Section 11.1. “Excess MWh” has the meaning set forth in Section 3.14(c). “Expected Commercial Operation Date” is the date set forth on the Cover Sheet by which Seller reasonably expects to achieve Commercial Operation. “Expected Construction Start Date” is the date set forth on the Cover Sheet by which Seller reasonably expects to achieve Construction Start. “Expected Energy” means the quantity of Energy that Seller reasonably expects to be able to deliver to Buyer during each Contract Year in the quantity specified on the Cover Sheet.

A.13.b
Packet Pg. 394 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 8 “Facility” means the solar photovoltaic generating facility described on the Cover Sheet and more fully in Exhibit A attached hereto, located at the Site and including mechanical equipment, associated facilities, and equipment required to deliver Energy to the Delivery Point; provided that Shared Facilities are not included.
“Facility Energy” means Buyer’s Fraction of the Energy during any Settlement Interval or Settlement Period, net of Electrical Losses and Station Use, as measured by Facility Meters. “Facility Meter” means the CAISO Approved Meter that will measure all Facility Energy.

Without limiting Seller’s obligation to deliver Facility Energy to the Delivery Point, each Facility Meter will be located, and Facility Energy will be measured, at the low voltage side of the main step-up transformer and will be subject to adjustment in accordance with CAISO meter requirements and Prudent Operating Practices to account for Electrical Losses and Station Use, as it impacts Delivered Energy.
“FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Floor Price” has the meaning set forth in Exhibit P.
“FMM” or “Fifteen-Minute Market” have the meaning set forth in the CAISO Tariff. “FMM Schedule” has the meaning set forth in the CAISO Tariff. “Force Majeure Event” has the meaning set forth in Section 10.1. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility or any outage on the Transmission System that prevents Seller from generating Energy or making Facility Energy available at the Delivery Point and that is not the result of a Force Majeure Event.
“Form of Average Expected Energy Report” has the meaning set forth in Section 4.3(a). “Form of Monthly Delivery Forecast” has the meaning set forth in Section 4.3(b). “Forward Certificate Transfers” has the meaning set forth in Section 4.8(a). “Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff. “Future Environmental Attributes” shall mean any and all generation, emissions, air quality or other environmental attributes other than Green Attributes or Renewable Energy Incentives under the RPS regulations and/or under any and all other international, federal, regional, state or other law, rule, regulation, bylaw, treaty or other intergovernmental compact, decision, administrative decision, program (including any voluntary compliance or membership program), competitive market or business method (including all credits, certificates, benefits, and emission measurements, reductions, offsets and allowances related thereto) that are attributable, now, or in the future, to the generation of electrical energy by the Facility. Future Environmental Attributes do not include investment tax credits or production tax credits associated with the construction or A.13.b
Packet Pg. 395 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 9 operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation.
“Gains” means, with respect to the Non-Defaulting 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, which economic benefit (if any) shall be deemed the gain (if any) to such Non-Defaulting Party represented by, (a) if Buyer is the Non-Defaulting Party, the positive 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 any transaction(s) replacing this Agreement and (b) if Seller is the Non-Defaulting Party, the positive difference between the present value of the payments that would be required to be made under any transaction(s) replacing this Agreement and the present value of the payments required to be made during the remaining Contract Term of this Agreement. 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 includes the value of Green Attributes. “Governmental Action” means any delay in the performance of Seller’s obligations hereunder arising out of any of the following affecting the delivery of solar PV modules, inverters, and medium voltage transformers required for the Project, notwithstanding the foreseeability at any time: expropriation, requisition, confiscation, seizure, detention or nationalization; export or import restrictions by any Governmental Authority; embargoes or sanctions; rationing or allocation, at the request or insistence of any Governmental Authority. “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. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Facility, and its displacement of conventional energy generation. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (a) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (Sox), nitrogen oxides (Nox), carbon monoxide (CO) and other pollutants; (b) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by Law or laws, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; (c) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green A.13.b
Packet Pg. 396 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 10 Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) any other production tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. “Green Tag Reporting Rights” means the right of a purchaser of renewable energy to report ownership of accumulated “green tags” in compliance with and to the extent permitted by applicable Law and include, without limitation, rights under Section 1605(b) of the Energy Policy Act of 1992, and any present or future federal, state or local certification program or emissions trading program, including pursuant to the WREGIS Operating Rules. “Guaranteed Capacity” means the amount of generating capacity of the Facility, as measured in MW at the Delivery Point, set forth on the Cover Sheet, as the same may be adjusted pursuant to Exhibit B.
“Guaranteed Commercial Operation Date” means the Expected Commercial Operation Date, as such date may be extended by the Development Cure Period. “Guaranteed Construction Start Date” means the Expected Construction Start Date, as such date may be extended by the Development Cure Period. “Guaranteed Energy Production” means an amount of Energy, as measured in MWh, equal to eighty percent (80%) of the sum of the Expected Energy for the two (2) Contract Years in the applicable Performance Measurement Period.
“Guarantor” means, with respect to Seller, any Person that (a) Buyer does not already have any material credit exposure to under any other agreements, guarantees, or other arrangements at the time its Guaranty is issued, (b) is an Affiliate of Seller, or other third party reasonably acceptable to Buyer, (c) has a Credit Rating of BBB- or better from S&P or a Credit Rating of Baa3 or better from Moody’s or has a tangible net worth of at least One Hundred Million Dollars ($100,000,000), (d) is incorporated or organized in a jurisdiction of the United States and is in good standing in such jurisdiction, and (e) executes and delivers a Guaranty for the benefit of Buyer.
“Guaranty” means a guaranty from a Guarantor provided for the benefit of Buyer substantially in the form attached as Exhibit Q or in such other form and substance reasonably acceptable to Buyer.
“Imbalance Energy” means the amount of Energy, in any given Settlement Period or Settlement Interval, by which the amount of Facility Energy deviates from the amount of Scheduled Energy.
“Indemnifiable Loss(es)” has the meaning set forth in Section 16.1.

A.13.b
Packet Pg. 397 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 11 “Indemnified Party” has the meaning set forth in Section 16.1. “Indemnifying Party” has the meaning set forth in Section 16.1. “Initial Synchronization” means the initial delivery of Facility Energy to the Delivery Point.
“Installed Capacity” means the actual generating capacity of the Facility, as measured in MW(ac) at the Delivery Point, that achieves Commercial Operation, adjusted for ambient conditions on the date of the performance test, not to exceed the Guaranteed Capacity, as evidenced by a certificate substantially in the form attached as Exhibit I hereto provided by Seller to Buyer. “Interconnection Agreement” means the interconnection agreement entered into by Seller or an Affiliate pursuant to which the Facility will (a) be interconnected with the Transmission System and (b) will have capacity rights equal to or greater than the amount of the Guaranteed Capacity, and pursuant to which Seller’s Interconnection Facilities and any other Interconnection Facilities will be constructed, operated and maintained during the Contract Term. “Interconnection Facilities” means the interconnection facilities, control and protective devices and metering facilities required to connect the Facility with the Transmission System in accordance with the Interconnection Agreement.
“Interest Rate” has the meaning set forth in Section 8.2. “Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “ITC” means the investment tax credit established pursuant to Section 48 of the United States Internal Revenue Code.
“Law” means any applicable law, statute, rule, regulation, decision, writ, order, decree, judgment, permit, tariff, or any interpretation thereof, promulgated or issued by a Governmental Authority.
“Lender” means, collectively, any Person (i) providing senior or subordinated construction, interim, back leverage or long-term debt, equity or tax equity financing or refinancing for or in connection with the development, construction, purchase, installation or operation of the Facility, whether that financing or refinancing takes the form of private debt (including back-leverage debt), public debt, tax equity 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 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. “Letter(s) of Credit” means one or more irrevocable, standby letters of credit issued by a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a Credit Rating of at least A- with an outlook designation of “stable” from S&P or A3 with an outlook designation A.13.b
Packet Pg. 398 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 12 of “stable” from Moody’s, in a form substantially similar to the letter of credit set forth in Exhibit K.
“Licensed Professional Engineer” means an independent, professional engineer reasonably acceptable to Buyer, who is licensed in the State of California and has training and experience with facilities similar to the Facility.
“Locational Marginal Price” or “LMP” has the meaning set forth in the CAISO Tariff. “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.

Factors used in determining economic loss to a Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the NonDefaulting 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 must include the value of Green Attributes and Renewable Energy Incentives.
“Lost Output” has the meaning set forth in Section 4.7. “Managing Member” means the managing member in any tax equity, yieldco drop down or similar financing structure, so long as such managing member is responsible for administration of project agreements including this Agreement.
“Market Curtailment Period” has the meaning set forth in Exhibit P. “Market Price” means the Fifteen Minute Market Locational Marginal Price expressed in $/MWh at the Delivery Point for the specific interval. To the extent changes to the CAISO market rules eliminate a Fifteen Minute Market Locational Market Price at the Point of Delivery, then the Parties shall cooperate in good faith to select an alternate Market Price in order to preserve the mutually agreed-upon benefits, burdens, and obligations set forth in this Agreement as of the Effective Date.
“Milestones” means the development activities for significant permitting, interconnection, financing, and construction milestones set forth in the Cover Sheet. “Monthly Delivery Forecast” means the monthly forecast delivered by Seller pursuant to Section 4.3(b).
“Moody’s” means Moody’s Investors Service, Inc.
“MW” means megawatts measured in alternating current, unless expressly stated in terms of direct current.

A.13.b
Packet Pg. 399 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 13 “MWh” means megawatt-hour measured in alternating current, unless expressly stated in terms of direct current.
“Negative LMP” means, in any Settlement Period or Settlement Interval, the Fifteen Minute Market Price at the Facility’s PNode is less than zero dollars ($0). “Negative LMP Floor” means the Floor Price as defined in the Negative Pricing Bid Protocol given in Exhibit P.
“Negative Price Curtailment” is a curtailment of deliveries of Energy from the Facility to Buyer pursuant to the protocol for Negative Price Curtailment described in Exhibit P. “NERC” means the North American Electric Reliability Corporation or any successor entity performing similar functions.
“Network Upgrades” has the meaning set forth in the CAISO Tariff. “Non-Availability Charge” has the meaning set forth in the CAISO Tariff. “Non-Defaulting Party” has the meaning set forth in Section 11.2. “Notice” shall, unless otherwise specified in the Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail).
“Notice of Claim” has the meaning set forth in Section 16.2(a). “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 transmission lines and associated facilities and/or has entitlements to use certain transmission lines and associated facilities where the Facility is interconnected. For purposes of this Agreement, the Participating Transmission Owner is set forth in Exhibit A. “Party” or “Parties” has the meaning set forth in the Preamble. “Performance Measurement Period” means each two (2) consecutive Contract Year period during the Delivery Term.
“Performance Security” means any of the following instruments, in the amount specified on the Cover Sheet and delivered and maintained in conformance with Section 8.8: (i) cash, (ii) a Letter of Credit, or (iii) a Guaranty.
“Performance Security End Date” has the meaning set forth in Section 8.8. “Permitted Transferee” means (i) any Affiliate of Seller or (ii) any entity that satisfies, or is controlled by another Person that satisfies, the following requirements:

A.13.b
Packet Pg. 400 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 14 (a) A tangible net worth of not less than one hundred fifty million dollars ($150,000,000) or a Credit Rating of at least BBB- from S&P, BBB- from Fitch, or Baa3 from Moody’s; and (b) At least two (2) years of experience in the ownership and operations of power generation facilities similar to the Facility or has retained a third-party with such experience to operate the Facility.
“Person” means an individual, corporation, sole proprietorship, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, governmental entity or other entity.
“Planned Outage” has the meaning set forth in Section 4.6(a). “PNode” has the meaning set forth in the CAISO Tariff.
“Portfolio Content Category” means PCC1, PCC2 or PCC3, as applicable. “Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law.
“Portfolio Content Category 2” or “PCC2” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(2), as may be amended from time to time or as further defined or supplemented by Law.
“Portfolio Content Category 3” or “PCC3” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(3), as may be amended from time to time or as further defined or supplemented by Law.
“Product” the meaning set forth on the Cover Sheet, and for avoidance of doubt is in each of the following cases from and associated with the Facility Energy and includes (i) Energy, (ii) Green Attributes including PCC1 Green Attributes, (iii) Ancillary Services, and (iv) any Future Environmental Attributes as applicable in accordance with Section 3.5. “Progress Report” means a progress report including the items set forth in Exhibit E. “Prudent Operating Practice” means (a) the applicable practices, methods and acts required by or consistent with applicable Laws and reliability criteria, and otherwise engaged in or approved by a significant portion of the electric utility industry during the relevant time period with respect to grid-interconnected, utility-scale generating facilities with integrated storage in the Western United States, or (b) any of the practices, methods and acts which, in light of the facts A.13.b
Packet Pg. 401 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 15 known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Prudent Operating Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to acceptable practices, methods or acts generally accepted in the industry with respect to grid-interconnected, utility-scale generating facilities with integrated storage in the Western United States. Prudent Operating 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.
“PTC” means the production tax credit established pursuant to Section 45 of the Code. “PTC Rate” means the then-current rate for the PTCs ($/MWh) applicable to the Facility on an after-tax basis; provided that, the PTC Rate shall be $0/MWh to the extent the Facility is not then receiving any Production Tax Credits during the applicable period. Solely as an example, the current PTC Rate for solar projects that began construction as of the Effective Date, meet the prevailing wage test, and are not entitled to PTC adders is $27.50/MWh. “Qualified Buyer Assignee” means a third-party Person (a) whose long-term unsecured indebtedness is rated “BBB-” or higher by S&P Global Ratings or “Baa3” or higher by Moody’s Investors Service, Inc. and who is not on negative watch by S&P Global Ratings or Moody’s Investors Service, Inc., as applicable or (b) who is Eastside Power Authority or City of Rancho Cucamonga.
“Real-Time Forecast” means any Notice of any change to the Available Capacity or hourly expected Energy delivered by or on behalf of Seller pursuant to Section 4.4(d). “Real-Time Market” has the meaning set forth in the CAISO Tariff. “Real-Time Market Price” means the Resource-Specific Settlement Interval LMP defined in the CAISO Tariff. If there is more than one applicable Real-Time Price for the same period of time, Real-Time Price shall mean the price associated with the smallest time interval. “Receiving Party” has the meaning set forth in Section 18.2. “Remedial Action Plan” has the meaning in Section 2.4.
“Renewable Energy Credit” has the meaning set forth in California Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Law.
“Renewable Energy Incentives” means: (a) all federal, state, or local Tax credits or other Tax benefits associated with the construction, ownership, or production of electricity from the Facility (including credits under Sections 38, 45, 46 and 48 of the Code); (b) any federal, state, or local grants, subsidies or other like benefits relating in any way to the Facility; and (c) any other form of incentive relating in any way to the Facility that are not a Green Attribute or a Future Environmental Attribute.

A.13.b
Packet Pg. 402 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 16 “Replacement Energy” has the meaning given in Exhibit G. “Replacement Green Attributes” has the meaning given in Exhibit G. “Replacement Product” has the meaning given in Exhibit G. “Resource ID” has the meaning set forth in the CAISO Tariff. “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill Companies, Inc.).
“Schedule” has the meaning set forth in the CAISO Tariff, and “Scheduled” and “Scheduling” have a corollary meaning.
“Scheduled Energy” means the Facility Energy that clears under the applicable CAISO market based on the final Day-Ahead Schedule, FMM Schedule (as defined in the CAISO Tariff), or any other financially binding Schedule, market instruction or dispatch for the Facility for a given period of time implemented in accordance with the CAISO Tariff. “Scheduled Maintenance” means a planned interruption or reduction of the Facility’s generation required for inspection, or preventive or corrective maintenance, in accordance with Prudent Operating Practice.
“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. The Seller or an agent of Seller will be the Scheduling Coordinator for the Facility as set forth in the Cover Sheet.
“Security Interest” has the meaning set forth in Section 8.9. “Self-Schedule” has the meaning set forth in the CAISO Tariff. “Seller” has the meaning set forth on the Cover Sheet.
“Seller Permitted Party” means any actual or potential: (i) Lender, (ii) direct or indirect purchaser of all or any part of Seller or the Facility, (iii) engineering, procurement, and construction contractor, and (iv) operation and maintenance provider. “Seller’s WREGIS Account” has the meaning set forth in Section 4.8(a). “Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other. If the Non-Defaulting Party’s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to the Non-Defaulting Party. If the Non-Defaulting Party’s Gains exceed its Costs and Losses, then the Settlement Amount shall be zero dollars ($0). The Settlement Amount does not include consequential, incidental, punitive, exemplary or indirect or business interruption damages.

A.13.b
Packet Pg. 403 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 17 “Settlement Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff. “Shared Facilities” means the gen-tie lines, transformers, substations, switchyards, 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. “Site” means the real property on which the Facility is or will be located, as further described in Exhibit A, and as shall be updated by Seller at the time Seller provides an executed Construction Start Date certificate in the form of Exhibit J to Buyer. “Site Control” means that, for the Contract Term, Seller (or, prior to the Delivery Term, its Affiliate): (a) owns or has the option to purchase the Site; (b) is the lessee or has the option to lease the Site; or (c) is the holder of an easement or an option for an easement, right-of-way grant, or similar instrument with respect to the Site.
“SP-15” means the Existing Zone Generation Trading Hub for Existing Zone region SP 15 as set forth in the CAISO Tariff.
“Station Use” means:
(a) The Energy produced by the Facility that is used within the Facility to power the lights, motors, control systems and other electrical loads that are necessary for operation of the Facility; and
(b) The Energy produced by the Facility that is consumed within the Facility’s electric energy distribution system as losses.
“System Emergency” means any condition that requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) to preserve Transmission System reliability. “Tax” or “Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Tax Credits” means the PTC, ITC, and any other state, local, and/or federal tax credit, depreciation benefit, tax deduction or investment tax credit specific to the production of renewable energy or investments in renewable energy facilities.

A.13.b
Packet Pg. 404 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 18 “Terminated Transaction” has the meaning set forth in Section 11.2. “Termination Payment” has the meaning set forth in Section 11.3. “Test Energy” means the Facility Energy delivered (a) commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Facility Energy to the CAISO, (ii) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to parallel, and (iii) the end of the Bridge Product Delivery Term and (b) ending upon the occurrence of the Commercial Operation Date. “Test Energy Rate” has the meaning set forth in Section 3.6. “Transmission Provider” means any entity or entities transmitting or transporting the Facility Energy on behalf of Seller or Buyer to or from the Delivery Point. “Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service downstream from the Delivery Point.
“Ultimate Parent” means Clearway Energy Group LLC or Clearway Energy, Inc., or any successor ultimate parent of Seller that is approved by Buyer in accordance with Article 14. “Variable Energy Resource” or “VER” has the meaning set forth in the CAISO Tariff. “Variable Energy Resource Forecast” or “VER Forecast” means, for a given period, the final forecast of the Energy to be produced by the Facility prepared by the CAISO pursuant to the CAISO Tariff.
“WECC” means the Western Electricity Coordinating Council or its successor. “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
“WREGIS Certificate Deficit” has the meaning set forth in Section 4.8(e). “WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of January 4, 2021, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.

1.2 Rules of Interpretation. In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:
(a) headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement; A.13.b
Packet Pg. 405 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 19 (b) words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders; (c) the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified;
(e) a reference to a document or agreement, including this Agreement shall mean such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement;
(f) a reference to a Person includes that Person’s successors and permitted assigns;
(g) the term “including” means “including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided; (h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; (i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;
(j) references to any amount of money shall mean a reference to the amount in United States Dollars, and references to a LMP shall mean the LMP at the Delivery Point unless expressly provided otherwise;
(k) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and
(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.

A.13.b
Packet Pg. 406 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 20 ARTICLE 2
TERM; CONDITIONS PRECEDENT

2.1 Contract Term.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions set forth herein (“Contract Term”); provided, however, that subject to Buyer’s obligations in Section 3.6, Buyer’s obligations to pay for or accept any Product are subject to Seller’s completion of the conditions precedent pursuant to Section 2.2. (b) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality obligations of the Parties under Article 18 and all indemnity and audit rights shall remain in full force and effect for three (3) years following the termination of this Agreement.

2.2 Conditions Precedent. The Delivery Term shall not commence until Seller completes each of the following conditions:
(a) Seller shall have delivered to Buyer a completion certificate from a Licensed Professional Engineer substantially in the form of Exhibit I setting forth the Installed Capacity on the Commercial Operation Date;
(b) A Participating Generator Agreement and a Meter Service Agreement between Seller and CAISO shall have been executed and delivered and be in full force and effect, and a copy of each such agreement delivered to Buyer;
(c) An Interconnection Agreement between Seller and the PTO shall have been executed and delivered and be in full force and effect, and a copy of the Interconnection Agreement delivered to Buyer;
(d) All required regulatory authorizations, approvals and permits for the operation of the Facility have been obtained (or if not obtained, applied for and reasonably expected to be received within ninety (90) days) and all required conditions thereof that are capable of being satisfied on the Commercial Operation Date for commencement of operation of the Facility have been satisfied and shall be in full force and effect; (e) Seller has received CEC Precertification of the Facility (and reasonably expects to receive final CEC Certification and Verification for the Facility in no more than one hundred eighty (180) days from the Commercial Operation Date); (f) Seller (with the reasonable participation of Buyer) shall have completed (or, for items normally occurring after commercial operation of the Facility, expects to timely complete) all applicable WREGIS registration requirements, including the completion and submittal of all applicable registration forms and supporting documentation, which may include applicable interconnection agreements, informational surveys related to the Facility, QRE service agreements, and other appropriate documentation required to effect Facility registration with A.13.b
Packet Pg. 407 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 21 WREGIS and to enable Renewable Energy Credit transfers related to the Facility within the WREGIS system;
(g) Seller has delivered the Performance Security to Buyer in accordance with Section 8.8; and
(h) Seller has paid Buyer or authorized Buyer to draw on the Development Security for all amounts owing under this Agreement, if any, including Construction Delay Damages and Commercial Operation Delay Damages.

2.3 Development; Construction; Progress Reports. Within fifteen (15) days after the close of (i) each calendar quarter from the first calendar quarter following the Effective Date until the Construction Start Date, and (ii) each calendar month from the first calendar month following the Construction Start Date until the Commercial Operation Date, Seller shall provide to Buyer a Progress Report and agree to regularly scheduled meetings between representatives of Buyer and Seller to review such monthly reports and discuss Seller’s construction progress. The form of the Progress Report is set forth in Exhibit E. Seller shall also provide Buyer with any reasonable requested documentation (subject to confidentiality restrictions) directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request by Seller. For the avoidance of doubt, as between Seller and Buyer, Seller is solely responsible for the design and construction of the Facility, including the location of the Site, obtaining all permits and approvals to build the Facility, the Facility layout, and the selection and procurement of equipment comprising the Facility.

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

2.5 Termination Prior to the Commercial Operation Date. If Seller determines in its commercially reasonable discretion that either (a) it is no longer economically feasible for the Facility to achieve Commercial Operation or (b) the Facility will not be able to achieve Commercial Operation by the date that is one hundred and eighty (180) days after the Guaranteed Commercial Operation Date, the Seller will have the right, but not the obligation, to terminate this Agreement (the “Seller Termination Right”). Prior to exercising the Seller Termination Right, Seller shall provide Notice to Buyer of its intent to exercise such Seller Termination Right.

A.13.b
Packet Pg. 408 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 22 Following such Notice, Seller and Buyer shall discuss in good faith any amendments to this Agreement reasonably requested by Seller to address the events, circumstances, or causes giving rise to the Seller Termination Right. Prior to the exercise of the Seller Termination Right, Seller shall provide Notice to Buyer of a written proposal with the final material terms and conditions it seeks to include in any potential amendment to this Agreement in order to avoid exercising the Seller Termination Right (the “Seller Pre-Termination Offer Terms”). The Seller PreTermination Offer Terms may include, but are not limited to, adjustments to the Contract Price, the Milestones (except related to Bridge Product), and any other terms included in this Agreement, and may include additional benefits to Buyer, as determined by Seller in its commercially reasonable discretion. Seller shall not exercise the Seller Termination Right upon less than thirty (30) days’ Notice after delivery of the Seller Pre-Termination Offer Terms, or so long as the Parties are continuing to negotiate a proposed amendment in good faith, not to exceed sixty (60) days.

Seller shall satisfy its Bridge Product obligations under Section 3.15 prior to exercising the Seller Termination Right. Thereafter, if Seller exercises the Seller Termination Right, then Seller shall owe Buyer the Damage Payment plus any accrued and unpaid Construction Delay Damages and Commercial Operation Delay Damages, subject to Section 11.7, and payment of such amount shall constitute liquidated damages and, subject to Seller’s obligations set forth in Section 2.6, Buyer’s sole and exclusive remedy for the termination of this Agreement. Upon such termination and payment by Seller in accordance with this Section 2.5, neither Party will have any further liability to the other under this Agreement, save and except for those obligations set forth in Sections 2.1(b),

2.6 and 3.15, and Buyer shall promptly return to Seller any Development Security then held by Buyer.

2.6 Right of First Offer. If Seller exercises the Seller Termination Right, for a period of sixty (60) days following the effective date of Seller’s termination of this Agreement, neither Seller nor Seller’s Affiliates may agree, or enter into an agreement, to sell or deliver all of the Product to a party other than Buyer unless either (a) the terms and conditions of such sale are materially no more favorable to such party than the Seller Pre-Termination Offer Terms, as determined by Seller in its commercially reasonable discretion, or (b) (i) Seller or a Seller Affiliate has provided Buyer with a written offer to sell all of the Product to Buyer on terms and conditions that are materially no less favorable than what Seller or Seller’s Affiliates intend to agree to with a party other than Buyer (the “Offer”), and (ii) either (1) Buyer rejects the Offer or Buyer has not provided within ten (10) Business Days of Buyer’s receipt thereof a written acceptance of such Offer, or (2) Buyer delivers to Seller within ten (10) Business Days of Buyer’s receipt of the Offer a written acceptance of such Offer, which acceptance shall be subject to finalization and execution of a binding agreement by both Parties incorporating the terms of the Offer and any other provisions or amendments that are mutually acceptable to the Parties, but the Parties have not executed a binding agreement incorporating the terms of the Offer within forty-five (45) days after Buyer’s receipt of the Offer. Buyer’s rights pursuant to this Section 2.6 are limited to offers by Seller and Seller’s Affiliates to sell or deliver all of the Product under this Agreement. Seller and Seller’s Affiliates may, in its commercially reasonable discretion, enter into transactions with third parties for a portion of the Product without violating the terms of this Section 2.6.

A.13.b
Packet Pg. 409 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 23 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 Buyer’s Fraction of the Product produced by the Facility at the Contract Price and in accordance with Section 3.14, Seller shall sell and deliver to Buyer the Buyer’s Fraction of all such Product produced by the Facility (net of applicable losses). At its sole discretion, Buyer may during the Delivery Term re-sell or use for another purpose all or a portion of the Product, after title and risk of loss thereto has been transferred to Buyer, provided that no such resale or use shall relieve Buyer of any of obligations hereunder. During the Delivery Term, Buyer will have exclusive rights to offer, bid, or otherwise submit the Product, or any component thereof, from the Facility after the Delivery Point for resale in the market, and retain and receive any and all related revenues. In no event shall Seller have the right to procure any element of the Product from sources other than the Facility for sale or delivery to Buyer under this Agreement, except with respect to Replacement Product. Subject to Buyer’s obligation to purchase Product in accordance with this Section 3.1 and Section 3.14, Buyer has no obligation to pay Seller for any Product that is not delivered to the Delivery Point as a result of any circumstance, is not associated with Buyer’s Fraction of the Facility, or where the associated Facility Energy is not or cannot be delivered to the Delivery Point, including as a result of an outage of the Facility, a Force Majeure Event, or a Curtailment Order.

3.2 Sale of Green Attributes. During the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, Buyer’s Fraction of Green Attributes attributable to the Facility Energy generated by the Facility. Seller shall also sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, Buyer’s Fraction of Green Attributes associated with Test Energy generated by the Facility.

3.3 Imbalance Energy. Buyer and Seller recognize that in any given Settlement Period there may be Imbalance Energy. To the extent there is any Imbalance Energy, whether positive or negative, any and all costs, liabilities, revenue and payments related to such Imbalance Energy shall be for the account of Seller.

3.4 Ownership of Renewable Energy Incentives. Seller shall have all right, title, and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives, or values representing the same, are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to the same to be assigned or transferred to Seller without delay.

Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives.

3.5 Future Environmental Attributes.
(a) The Parties acknowledge and agree that as of the Effective Date, environmental attributes sold under this Agreement are restricted to Green Attributes; however, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Subject to the final sentence of this Section 3.5(a) and Sections A.13.b
Packet Pg. 410 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 24 3.5(b) and 3.11, in such event, Buyer shall bear all costs associated with the transfer, qualification, verification, registration and ongoing compliance for Buyer’s Fraction of such Future Environmental Attributes, but there shall be no increase in the Contract Price. Upon Seller’s receipt of Notice from Buyer of Buyer’s intent to claim such Future Environmental Attributes, the Parties shall determine the necessary actions and additional costs associated with such Future Environmental Attributes. Seller shall have no obligation to alter the Facility unless the Parties have agreed on all necessary terms and conditions relating to such alteration and Buyer has agreed to reimburse Seller for all costs, losses, and liabilities associated with such alteration. (b) If Buyer elects to receive Future Environmental Attributes pursuant to Section 3.5(a), the Parties agree to negotiate in good faith with respect to the development of further agreements and documentation necessary to effectuate the transfer of Buyer’s Fraction of such Future Environmental Attributes, including agreement with respect to (i) appropriate transfer, delivery and risk of loss mechanisms, and (ii) appropriate allocation of any additional costs to Buyer, as set forth above); provided, that the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement.

3.6 Test Energy. No less than fourteen (14) days prior to the first day on which Test Energy is expected to be available from the Facility, Seller shall notify Buyer of the availability of the Test Energy. If and to the extent the Facility generates and delivers Test Energy, Seller shall sell and Buyer shall purchase from Seller Buyer’s Fraction of all Test Energy and any associated Products on an as-available basis. As compensation for any such Test Energy and associated Product, Buyer shall remit to Seller an amount (“Test Energy Rate”) for each MWh of Test Energy equal to: (a) for up to ninety (90) days from the first delivery of Test Energy, an amount calculated in accordance with Section 3.14(a)(i), provided that only seventy five percent (75%) of the Contract Price shall apply; and (b) from the ninety-first (91st) day after the first delivery of Test Energy until the Commercial Operation Date, an amount calculated in accordance with Section 3.14(a)(i), provided that only fifty percent (50%) of the Contract Price shall apply. For the avoidance of doubt, the conditions precedent in Section 2.2 are not applicable to the Parties’ obligations under this Section 3.6.

3.7 Capacity Attributes. Seller may in its discretion elect to request Full Capacity Deliverability Status in the CAISO generator interconnection process. At a minimum, Seller will obtain and maintain Energy Only Deliverability Status for the Facility, or otherwise be equivalently authorized by the CAISO and Governmental Authorities to deliver Product to Buyer, throughout the Delivery Term. As between Buyer and Seller, (a) Seller shall be responsible for the cost and installation of any Network Upgrades associated with obtaining such Full Capacity Deliverability Status, and (b) Seller shall have sole claim and all right, title, and interest in and to Capacity Attributes and Seller may keep such Capacity Attributes for its own account or sell them to third parties, all in Seller’s sole discretion.

3.8 [Reserved].

3.9 CEC Certification and Verification. Subject to Section 3.11, Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Precertification and CEC Certification and Verification for the Facility, including compliance with all applicable requirements for certified facilities set forth in the current A.13.b
Packet Pg. 411 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 25 version of the RPS Eligibility Guidebook (or its successor). Seller shall obtain CEC Precertification by the Commercial Operation Date. Within thirty (30) days after the Commercial Operation Date, Seller shall apply with the CEC for CEC Certification and Verification. Within one hundred eighty (180) days after the Commercial Operation Date, and subject to Section 3.11, Seller shall obtain and maintain throughout the remainder of the Delivery Term the CEC Certification and Verification. Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s application for CEC Precertification or CEC Certification and Verification for the Facility.

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

3.10(a), “certified by the CEC” means the Facility has received CEC Certification and Verification.
(b) Transfer of Renewable Energy Credits. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the renewable energy credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, and as may be subsequently modified by any applicable Governmental Authority or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. (c) Tracking of RECs in WREGIS. Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in WREGIS will be taken prior to the first delivery under this Agreement.

3.11 Change in Law
(a) The Parties acknowledge that an essential purpose of this Agreement is to provide renewable generation that meets the requirements of the California Renewables Portfolio Standard, and that this Agreement is being used by Buyer to comply with mandatory procurement obligations of the CEC, and that Governmental Authorities, including the CEC, CPUC (if applicable to Buyer), CAISO and WREGIS, may undertake actions from time to time to implement a change in Law. Seller agrees to use commercially reasonable efforts to cooperate with Buyer with respect to any subsequently requested changes, modifications, or amendments to this Agreement needed to satisfy requirements of Governmental Authorities associated with changes in Law, including changes, modifications, or amendments to this Agreement to: (i) amend the Agreement to reflect any mandatory contractual language required by Governmental Authorities, A.13.b
Packet Pg. 412 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 26 including changes to the definition of Green Attributes; (ii) require submission of any reports, data, or other information required by Governmental Authorities; (iii) provide additional documentation or information to respond to data requests from the Governmental Authorities; (iv) satisfy new compliance requirements of Governmental Authorities; or (v) take any other actions that may be requested by Buyer to assure that the Generating Facility is an Eligible Renewable Energy Resource under the California Renewables Portfolio Standard; provided that Seller shall have no obligation to modify this Agreement, or take other actions not required under this Agreement, if such modifications or actions would materially adversely affect, or could reasonably be expected to have or result in a material adverse effect on, any of Seller’s rights, benefits, risks and/or obligations under this Agreement.
(b) If a change in Laws occurring after the Effective Date has increased Seller’s known or reasonably expected costs and expenses to comply with Seller’s obligations under this Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of (as applicable) any Product (any action required to be taken by Seller to comply with such change in Law, a “Compliance Action”), then the Parties agree that the maximum aggregate amount of costs and expenses Seller shall be required to bear during the Delivery Term to comply with all such Compliance Actions shall be capped at Buyer’s Fraction multiplied by Twenty Five Thousand Dollars ($25,000) per MW of Guaranteed Capacity in aggregate over the Contract Term (“Compliance Expenditure Cap”).
(c) If Seller reasonably anticipates the need to incur costs and expenses in excess of the Compliance Expenditure Cap in order to take any Compliance Action, Seller shall provide Notice to Buyer of such anticipated costs and expenses. (d) Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all of the costs that exceed the Compliance Expenditure Cap (such costs and expenses (including lost production, if any), the “Accepted Compliance Costs”), or (2) waive Seller’s obligation to take such Compliance Actions. (e) If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall complete the Compliance Actions covered by such Accepted Compliance Costs as agreed upon by the Parties, provided that under no circumstances shall Seller be obligated to incur costs and expenses in excess of the Accepted Compliance Costs that have been agreed to be reimbursed by Buyer.

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

For clarity, subject to Section 6.3 regarding the use of Shared Facilities, this Agreement does not restrict the installation by Seller’s Affiliates of energy storage not requiring reconfiguration of the Facility or any changes to this Agreement; so long as such installation does not impact the Expected Energy and Delivered Energy assurances provided under this Agreement, modify the A.13.b
Packet Pg. 413 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 27 hours on which Delivered Energy is expected to be provided (as expressed in Exhibit D), or otherwise materially impact the performance of the Facility.

3.13 [Reserved].

3.14 Compensation. Buyer shall compensate Seller each month for the Product in each Settlement Interval in the month in accordance with this Section 3.14 (the “Monthly Energy Payment”).
(a) Buyer shall pay Seller the Contract Price for each MWh of Product, as measured by the amount of Facility Energy plus Deemed Delivered Energy, if any, subject to payment calculations in this Section 3.14, up to one hundred fifteen percent (115%) of the Expected Energy for such Contract Year.
(i) The amount payable for each Settlement Interval shall be calculated as follows: for each Settlement Interval, the Monthly Energy Payment will be calculated as the sum of (Delivered Energy * Market Price) (the “Market Payment”) minus (Delivered Energy * Contract Price) (the “Contract Payment”):
(A) If the Monthly Energy Payment is greater than Zero Dollars ($0), the Seller will pay the Buyer the Monthly Energy Payment; (B) If the Monthly Energy Payment at the Delivery Point is less than Zero Dollars ($0), the Buyer will pay the Seller the absolute value of the Monthly Energy Payment;
(C) The Parties agree to follow the written protocol for Negative Price Curtailment as set forth in Exhibit P attached hereto. The Seller will deliver Energy and related Products to the Buyer during negative pricing conditions so long as the negative LMP is not less than the Negative LMP Floor, and the Buyer will pay for such energy as described in Exhibit P. If the negative LMP is less than the Negative LMP Floor, the Seller will curtail delivery of energy during such period, such period will be a Market Curtailment Period (except to the extent such period is subject to a Planned Outage, Forced Facility Outage, Force Majeure Event and/or Curtailment Order), and during such Market Curtailment Period, subject to the Curtailment Cap Buyer shall pay Seller the sum of (a) the Contract Price and (b) PTC Rate multiplied by the amount of energy (in MWh) that Seller would have delivered to Buyer pursuant to the terms of this Agreement. (D) During the Delivery Term, Seller shall receive no
compensation from Buyer for Curtailed Energy or Facility Energy that is delivered in violation of a Curtailment Order.
(b) If during any Settlement Interval, Seller delivers Product in amounts, as measured by the amount of Facility Energy, in excess of the product of the Installed Capacity and the duration of the Settlement Interval, expressed in hours (“Excess MWh”), then the price applicable to all such Excess MWh in such Settlement Interval shall be zero dollars ($0).

A.13.b
Packet Pg. 414 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 28 (c) Notwithstanding the foregoing, if, at any point in any Contract Year, the amount of Facility Energy, plus Deemed Delivered Energy, exceeds one hundred fifteen percent (115%) of the Expected Energy for such Contract Year, the price to be paid for additional Facility Energy or Deemed Delivered Energy shall be zero dollars per MWh ($0.00/MWh). (d) Test Energy is compensated in accordance with Section 3.6 and Bridge Product is compensated in accordance with Section 3.15. (e) The Parties agree that neither the Contract Price nor the Test Energy Rate are subject to adjustment or amendment if Seller fails to receive any Tax Credits, or if any Tax Credits expire, are repealed or otherwise cease to apply to Seller or the Facility in whole or in part, or Seller or its investors are unable to benefit from any Tax Credits. Seller shall bear all risks, financial and otherwise, throughout the Contract Term, associated with Seller’s or the Facility’s eligibility to receive Tax Credits or to qualify for accelerated depreciation for Seller’s accounting, reporting or Tax purposes. The obligations of the Parties hereunder, including those obligations set forth herein regarding the purchase and price for and Seller’s obligation to deliver Energy and other Product, shall be effective regardless of whether the sale of Energy is eligible for, or receives Tax Credits during the Contract Term.

3.15 Bridge Product. In addition to the Parties’ rights and obligations under this Agreement with respect to the Facility, Seller agrees to use commercially reasonable efforts to identify, source, and deliver in accordance with this Agreement and Buyer agrees to purchase the following qualifying bundled Portfolio Content Category 1 renewable energy product, including the energy, associated PCC1 green attributes, and the associated PCC1 Renewable Energy Credit (the PCC1 renewable energy product together, the “Bridge Product”) in accordance with the following terms and conditions:
(a) The “Bridge Product Delivery Term” shall commence on January 1, 2024 (“Delivery Start Date”) and end on December 31, 2024 (the “Delivery Cessation Date”); provided that the Bridge Product Delivery Term shall be extended solely for the purpose of transferring the WREGIS Certificates associated with the Bridge Product Delivered to Buyer prior to the Delivery Cessation Date.
(b) The “Contract Quantity of Bridge Product” for the Bridge Product Delivery Term is equal to Buyer’s Fraction multiplied by 30,000 MWh. The Bridge Product shall be provided to Buyer through transfers of WREGIS Certificates on or before the Delivery Cessation Date.
(c) For any Bridge Product generated at the Facility, Buyer shall pay Seller for the Bridge Product at the Contract Price per delivered MWh of Bridge Product up to the Contract Quantity of Bridge Product, with compensation provided in accordance with Section 3.14, provided that Buyer’s payment per delivered MWh of Bridge Product shall not exceed the Contract Price. For any Bridge Product generated from another facility, Buyer shall compensate Seller for the Bridge Product at a total of forty dollars ($40) per MWh delivered to Buyer until Buyer’s total Bridge Product received under this Agreement is at the Contract Quantity of Bridge Product. The Parties agree to update Exhibit C in a mutually agreeable manner to include any facilities used for the Bridge Product that are not the Facility.

A.13.b
Packet Pg. 415 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 29 (d) If Seller notifies Buyer on or before May 1, 2024 (“Delivery Confirmation Date”) that Seller cannot provide all or any quantity of the Bridge Product despite commercially reasonable efforts, then, as of January 1, 2024, Buyer shall purchase all Bridge Product made available by Seller and is authorized by Seller to procure any remaining quantity of Bridge Product as replacement for Buyer’s own account and at Buyer’s own cost. For clarity, Seller shall not be responsible for any of Buyer’s internal or third-party costs associated with Buyer’s procurement of Bridge Product which Seller, despite the exercise of commercially reasonable efforts, is unable to deliver to Buyer.
(e) Other terms and conditions regarding the Bridge Product:
(i) The Bridge Product shall meet the RPS compliance
requirements provided under California law, including the requirements for Portfolio Content Category 1 as set forth in California Public Utilities Code Section 399.16(b)(1)(A), as well the RPS laws, regulations, and requirements of applicable Governmental Authorities, including the Division 2, Chapter 13 of the California Code of Regulations. (ii) This Bridge Product is intended to qualify as a long-term contract pursuant to California Public Utilities Code Section 399.13(b)(1) and Division 2, Chapter 13 of the California Code of Regulations.
(iii) Seller, or its designated scheduling coordinator, will perform all scheduling requirements applicable to the Bridge Product at Seller’s cost. All scheduling shall be performed consistent with all applicable CAISO and WECC prevailing protocols.

ARTICLE 4

OBLIGATIONS AND DELIVERIES

4.1 Delivery.
(a) Energy. Subject to the provisions of this Agreement, commencing on the Commercial Operation Date through the end of the Contract Term, Seller shall supply and deliver the Product to Buyer at the Delivery Point, and Buyer shall take delivery of the Product at the Delivery Point in accordance with the terms of this Agreement. Seller will be responsible for paying or satisfying when due any costs or charges imposed in connection with the delivery of Facility Energy to the Delivery Point, including without limitation, Station Use, Electrical Losses, and any operation and maintenance charges imposed by the Transmission Provider directly relating to the Facility’s operations. Subject to the provisions of this Agreement, Buyer shall be responsible for costs, charges, and penalties, if any, imposed in connection with the delivery of Facility Energy at and after the Delivery Point, including without limitation transmission costs and transmission line losses and imbalance charges. The Facility Energy will be scheduled to the CAISO by Seller (or Seller’s designated Scheduling Coordinator) in accordance with Section 4.5. (b) Green Attributes. Buyer’s Fraction of all Green Attributes associated with the Facility during the Delivery Term are exclusively dedicated to and vested in Buyer. Seller represents and warrants that Seller holds the rights to all Green Attributes from the Facility, and Seller agrees to convey and hereby conveys Buyer’s Fraction of all such Green Attributes to Buyer as included in the delivery of the Product from the Facility.

A.13.b
Packet Pg. 416 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 30 4.2 Title and Risk of Loss.
(a) Energy. Title to and risk of loss related to the Facility Energy shall pass and transfer from Seller to Buyer at the Delivery Point. Seller warrants that all Product delivered to Buyer is free and clear of all liens, security interests, claims and encumbrances of any kind. (b) Green Attributes. Title to and risk of loss related to the Green Attributes shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS.

4.3 Forecasting. Seller shall provide the forecasts described below at its sole expense and in a format reasonably acceptable to Buyer (or Buyer’s designee). Seller shall use reasonable efforts to provide forecasts that are accurate and, to the extent not inconsistent with the requirements of this Agreement, shall prepare such forecasts, or cause such forecasts to be prepared, in accordance with Prudent Operating Practices. (a) Annual Forecast of Expected Facility Energy. No less than forty-five (45) days before (i) the first day of the first Contract Year of the Delivery Term and (ii) the beginning of each calendar year for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer or Buyer’s designee (if applicable) a non-binding forecast of each month’s average-day expected Facility Energy, by hour, for the following calendar year in a form reasonably acceptable to Buyer that is substantially similar to the table found in Exhibit F-1 (“Form of Average Expected Energy Report”), or as reasonably requested by Buyer. (b) Monthly Forecast of Facility Energy. No less than thirty (30) days before the beginning of Commercial Operation, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer or Buyer’s designee (if applicable) a non-binding forecast of the hourly expected Facility Energy for each day of the following month in a form substantially similar to the table found in Exhibit F-2 (“Form of Monthly Delivery Forecast”)
(c) Day-Ahead Forecast. If requested by Buyer, by 5:30 AM Pacific Prevailing Time on the Business Day immediately preceding the date of delivery, or as otherwise specified by Buyer consistent with Prudent Operating Practice, Seller shall provide Buyer or Buyer’s designee (if applicable) with a non-binding forecast of the hourly expected Facility Energy for each hour of the immediately succeeding day (“Day-Ahead Forecast”). A Day-Ahead Forecast provided in a day prior to any non-Business Day(s) shall include non-binding forecasts for the immediate day, each succeeding non-Business Day, and the next Business Day. Each Day-Ahead Forecast shall clearly identify, for each hour, Seller’s best estimate of the hourly expected Facility Energy.
(d) Real-Time Forecasts. During the Delivery Term, if requested by Buyer, Seller shall notify Buyer of any changes from the Day-Ahead Forecast of one (1) MW or more in Available Capacity or hourly expected Energy, in each case whether due to Forced Facility Outage, Force Majeure or other cause, as soon as reasonably possible, but no later than one (1) hour prior to the deadline for submitting Schedules to the CAISO in accordance with the rules for participation in the Real-Time Market. If the Available Capacity changes by at least one (1) MW A.13.b
Packet Pg. 417 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 31 as of a time that is less than one (1) hour prior to the Real-Time Market deadline, but before such deadline, then Seller must notify Buyer as soon as reasonably possible. Such Real-Time Forecasts of Energy shall be provided by an Approved Forecast Vendor and shall contain information regarding the beginning date and time of the event resulting in the change in Available Capacity, the expected end date and time of such event, the expected Available Capacity in MW, and any other information required by the CAISO or reasonably requested by Buyer. With respect to any Forced Facility Outage, Seller shall use commercially reasonable efforts to notify Buyer of such outage within ten (10) minutes of the commencement of the Forced Facility Outage. Seller shall inform Buyer of any developments that will affect either the duration of such outage or the availability of the Facility during or after the end of such outage. These Real-Time Forecasts shall be communicated in a method acceptable to Buyer; provided that Buyer specifies the method no later than sixty (60) days prior to the effective date of such requirement. In the event Buyer fails to provide Notice of an acceptable method for communications under this Section 4.4(d), then Seller shall send such communications by telephone and e-mail to Buyer. (e) Forced Facility Outages. Notwithstanding anything to the contrary herein, Seller shall promptly notify the on-duty Scheduling Coordinator of Forced Facility Outages and Seller shall keep Buyer informed of any developments that will affect either the duration of the outage or the availability of the Facility during or after the end of the outage. (f) Forecasting Penalties. If Seller incurs a loss or penalty resulting from its scheduling activities with respect to the Facility, Seller will be responsible for such loss or penalty. (g) CAISO Tariff Requirements. Subject to the limitations expressly set forth in Section 3.11, to the extent such obligations are applicable to the Facility, Seller will comply with all applicable obligations for Variable Energy Resources under the CAISO Tariff and the Eligible Intermittent Resource Protocol, including providing appropriate operational data and meteorological data, and will fully cooperate with Buyer and CAISO, in providing all data, information, and authorizations required thereunder.

4.4 Dispatch Down/Curtailment.
(a) General. Seller agrees to reduce the amount of Facility Energy produced by the Facility and delivered to the Delivery Point, by the amount and for the period set forth in any Curtailment Order.
(b) [Reserved].
(c) Failure to Comply. Subject to Section 4.4(a), if Seller fails to comply with a Curtailment Order, then, for each MWh of Facility Energy that is delivered by the Facility to the Delivery Point in contradiction to the Curtailment Order, Seller shall pay Buyer for each such MWh at an amount equal to the amount, if any, paid to Seller by Buyer for delivery of such excess MWh.
(d) Seller Equipment Required for Curtailment Instruction Communications.

Subject to the last sentence of this Section 4.4.(d), Seller shall acquire, install, and maintain such facilities, communications links and other equipment, and implement such protocols and practices, as necessary to respond and follow instructions, including an electronic signal conveying real time A.13.b
Packet Pg. 418 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 32 and intra-day instructions, to operate the Facility in accordance with this Agreement or a Governmental Authority, including to implement a Curtailment Order in accordance with the thencurrent methodology used to transmit such instructions as it may change from time to time. If at any time during the Delivery Term Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with then-current methodologies, Seller shall take the steps necessary to become compliant as soon as reasonably possible. Seller shall be liable pursuant to Section 4.4(c) for failure to comply with a Curtailment Order, during the time that Seller’s facilities, communications links or other equipment, protocols or practices are not in compliance with then-current methodologies. For the avoidance of doubt, a Curtailment Order communication via such systems and facilities shall have the same force and effect on Seller as any other form of communication. If Seller is directed by Buyer to install or implement facilities, communications links or other equipment, protocols or practices facilities pursuant to this Section 4.4(d) that are not otherwise required for the Facility pursuant to the CAISO Tariff or reasonably necessary for communication between Buyer and Seller, then the installation or implementation of such facilities, communications links or other equipment, protocols or practices facilities will be deemed Compliance Actions subject to the Compliance Expenditure Cap as set forth in Section

3.11. 4.5 Scheduling Coordinator Responsibilities.
(a) Seller as Scheduling Coordinator for the Facility. Upon Initial Synchronization of the Facility to the CAISO Grid and 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 both the delivery and the receipt of the Test Energy, if any, and applicable Products at the Delivery Point. Seller shall schedule or cause to be scheduled the Product in accordance with, and shall at all times comply with, all applicable CAISO requirements and scheduling protocols, WECC scheduling practices, and Prudent Operating Practice. Seller shall submit economic offers to CAISO into the Day-Ahead Market or Real-Time Market consistent with CAISO rules on economic bidding. At least thirty (30) days prior to the Initial Synchronization of the Facility to the CAISO Grid and prior to the generation of Test Energy, (i) Buyer shall take all actions and execute and deliver to Seller all documents necessary to authorize or designate Seller’s designated agent as the Scheduling Coordinator for the Facility effective as of the Initial Synchronization of the Facility to the CAISO Grid, and (ii) Seller shall, and shall cause its designee to, take all actions and execute and deliver to the CAISO all documents necessary to authorize or designate Seller or its designee as the Scheduling Coordinator for the Facility effective as of the Initial Synchronization of the Facility to the CAISO Grid. On and after Initial Synchronization of the Facility to the CAISO Grid, Seller shall not authorize or designate any other party to act as the Facility’s Scheduling Coordinator unless agreed to by Buyer, or upon the expiration or earlier termination of the Delivery Term. Seller (as SC for the Facility) shall submit Schedules to the CAISO in accordance with this Agreement and the applicable CAISO Tariff, protocols and Scheduling practices for Test Energy and Product on a day-ahead, hourahead, fifteen-minute market or real time basis, as reasonably acceptable to Buyer. Seller shall cause its Scheduling Coordinator to reasonably cooperate with Buyer during the testing and commissioning of the Facility prior to the Commercial Operation Date. (b) Notices. Seller (as the Facility’s SC) shall provide Buyer with access to a web-based system through which Seller shall submit to Buyer and the CAISO all notices and A.13.b
Packet Pg. 419 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 33 updates required under the CAISO Tariff regarding the Facility’s status, including, but not limited to, all outage requests, Forced Facility Outages, Forced Facility Outage reports, clearance requests, or must offer waiver forms. Seller will cooperate with Buyer to provide such notices and updates.

If the web-based system is not available, Seller shall promptly submit such information to Buyer and the CAISO (in order of preference) telephonically, by electronic mail, or facsimile transmission to the personnel designated to receive such information. (c) CAISO Costs and Revenues. Except as otherwise set forth below, Seller (as Scheduling Coordinator for the Facility) shall be responsible for all 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, Inter-SC Trade credits, or other credits in respect of the Product Scheduled or delivered from the Facility. Seller shall also be responsible for all CAISO penalties or fees resulting from any failure by Seller to abide by the CAISO Tariff or requirements set forth in this Agreement. The Parties agree that any Availability Incentive Payments are for the benefit of the Seller and for Seller’s account and that any Non-Availability Charges are the responsibility of the Seller and for Seller’s account. In addition, if during the Delivery Term, the CAISO implements or has implemented any sanction or penalty related to scheduling, forecasting, outage reporting, or generator operation, and any such sanctions or penalties are imposed upon the Facility or to Buyer due to any violation of CAISO rules or outage notification requirements set forth in this Agreement by Seller, the cost of the sanctions or penalties shall be the Seller’s responsibility.
(d) CAISO Settlements. Seller (as the Facility’s SC) shall be responsible for all settlement functions and payment functions with the CAISO related to the Facility, and shall conduct such activities in a timely manner.
(e) Dispute Costs. Seller (as the Facility’s SC), shall dispute CAISO settlements in a commercially reasonable manner. Seller agrees to pay Buyer’s costs and expenses (including reasonable attorneys’ fees) associated with its involvement with any CAISO disputes to the extent they relate to CAISO charges payable by Seller 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, not to be unreasonably withheld.
(g) NERC Reliability Standards. Seller (as Scheduling Coordinator) shall maintain compliance with NERC reliability standards, and shall cooperate with Buyer to ensure compliance with NERC reliability standards as reasonably requested by Buyer.

4.6 Reduction in Delivery Obligation. For the avoidance of doubt, and in no way limiting Section 3.1 or Exhibit G:
(a) Facility Maintenance. Seller will provide to Buyer written schedules for Scheduled Maintenance for the Facility for each Contract Year no later than thirty (30) days prior A.13.b
Packet Pg. 420 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 34 to the first day of the applicable Contract Year. Buyer may provide comments no later than ten (10) days of receiving any such schedule, and Seller will in good faith take into account any such comments. Seller will deliver to Buyer the final updated schedule of Scheduled Maintenance no later than twenty (20) days after receiving Buyer’s comments. Seller shall be permitted to reduce deliveries of Product during any period of Scheduled Maintenance on the Facility. Seller shall not schedule non-emergency maintenance between June 1 and September 30 that reduces the Energy generation of the Facility by more than ten percent (10%) during daylight hours, unless (i) such outage is required to avoid damage to the Facility, (ii) such maintenance is necessary to maintain equipment warranties and cannot be scheduled outside the period of June 1st to September 30th, (iii) such outage is required in accordance with Prudent Operating Practices, or (iv) the Parties agree otherwise in writing (any of the scheduled maintenance permitted by this Section 4.6(a), where the Facility is either in whole or in part not capable of providing service due to planned maintenance that has been scheduled in advance in accordance with Section 4.6(a), a “Planned Outage”).
(b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage.
(c) System Emergencies and other Interconnection Events. Seller shall be permitted to reduce deliveries of Product during any period of System Emergency or upon Notice of a Curtailment Order pursuant to the terms of this Agreement, the Interconnection Agreement or applicable tariff.
(d) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event.
(e) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2.

4.7 Guaranteed Energy Production. Seller shall be required to deliver to Buyer no less than the Guaranteed Energy Production in each Performance Measurement Period. For purposes of determining whether Seller has achieved the Guaranteed Energy Production, Seller shall be deemed to have delivered to Buyer (1) any Deemed Delivered Energy and (2) Energy in the amount it could reasonably have delivered to Buyer but was prevented from delivering to Buyer by reason of any Force Majeure Events, System Emergency, Buyer’s Default or other Buyer failure to perform, and Curtailment Periods (“Lost Output”). If Seller fails to achieve the Guaranteed Energy Production amount in any Performance Measurement Period, Seller shall pay Buyer damages calculated in accordance with Exhibit G; provided that Seller may, as an alternative, upon prior written consent of the Buyer and at the sole discretion of Buyer, provide Replacement Product (as defined in Exhibit G) that is (i) delivered to Buyer in manner acceptable to Buyer and (ii) does not impose any costs to Buyer that are not promptly reimbursed by Seller.

4.8 WREGIS. Seller shall, at its sole expense, take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Facility Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in A.13.b
Packet Pg. 421 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 35 a timely manner for Buyer’s sole benefit. Seller shall transfer the Renewable Energy Credits corresponding to all Facility Energy to Buyer. Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification, issuance, and transfer of such WREGIS Certificates to Buyer, and Buyer shall be given sole title to all such WREGIS Certificates. Seller shall be deemed to have satisfied the warranty in Section 3.10(c) provided that Seller fulfills its obligations under Sections 4.10(a) through (f) below. In addition:
(a) Prior to the Commercial Operation Date or as soon as reasonably practicable thereafter, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term.

Seller shall transfer the WREGIS Certificates using “Forward Certificate Transfers” (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the accounts of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the Facility with WREGIS, establishing and maintaining Seller’s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account. (b) Seller shall cause Forward Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules.

Because WREGIS Certificates will only be created for whole MWh amounts of Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for creation of a WREGIS Certificate.
(c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Facility Energy for such calendar month as evidenced by the Facility’s metered data.
(d) Due to the ninety (90) day delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 8.2, Buyer shall make an invoice payment for a given month in accordance with Section 8.2 before the WREGIS Certificates for such month are formally transferred to Buyer in accordance with the WREGIS Operating Rules and this Section 4.8. Notwithstanding this delay, Buyer shall have all right and title to all such WREGIS Certificates upon payment to Seller in accordance with Section 8.2. (e) A “WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates issued to Buyer for a calendar month as compared to the Facility Energy for the same calendar month (“Deficient Month”). If any WREGIS Certificate Deficit is caused by Seller, or the result of any action or inaction by Seller, and remains uncured following the later of (i) thirty (30) days after Notice from Buyer thereof or (ii) ninety (90) days after the Deficient Month, then the amount of Facility Energy in the Deficient Month shall be reduced by the amount of the WREGIS Certificate Deficit for purposes of calculating Buyer’s payment to Seller under Article 8 and the Guaranteed Energy Production for the applicable Performance Measurement Period; provided, however, that such adjustment shall not apply to Replacement Product (as defined in Exhibit G) that is (i) delivered to Buyer in manner acceptable to Buyer and (ii) does not impose any costs to Buyer that are not promptly reimbursed by Seller. Without limiting Seller’s obligations under this Section 4.8, if a WREGIS Certificate Deficit is caused solely by an error or A.13.b
Packet Pg. 422 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 36 omission of WREGIS, the Parties shall cooperate in good faith to cause WREGIS to correct its error or omission. Seller shall use commercially reasonable efforts to rectify any WREGIS Certificate Deficit as expeditiously as possible.
(f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.8 after the Effective Date, the Parties promptly shall modify this Section 4.8 as reasonably required to cause and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Facility Energy in the same calendar month.

4.9 Station Use. Seller will be solely responsible for any costs associated with the electricity required to operate the Facility.

4.10 Interconnection Capacity. Seller shall ensure during the Test Energy period and throughout the Delivery Term that (a) the Facility will have and maintain interconnection capacity available or allocable to the Facility under the Interconnection Agreement that is no less than the Guaranteed Capacity and (b) Seller shall have sufficient interconnection capacity and rights under the Interconnection Agreement to interconnect the Facility with the CAISO Grid and to fulfill Seller’s obligations under this Agreement, and to allow operation of the Facility in accordance with the CAISO Tariff and as contemplated under this Agreement (collectively, the “Dedicated Interconnection Capacity”).

ARTICLE 5
TAXES

5.1 Allocation of Taxes and Charges. Seller shall pay or cause to be paid all Taxes on or with respect to the Facility or on or with respect to the sale and making available of Product to Buyer, that are imposed on Product prior to its delivery to Buyer at the time and place contemplated under this Agreement. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and after its delivery to Buyer at the time and place contemplated under this Agreement (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees), if 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.

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

A.13.b
Packet Pg. 423 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 37 5.3 Ownership. Seller shall be the owner of the Facility for federal income tax purposes and, as such, Seller (or its Affiliates or Lenders) shall be entitled to all depreciation deductions associated with the Facility and to any and all Tax Credits or other tax benefits associated with the Facility, including any such tax credits or tax benefits under the Code and all Renewable Energy Incentives. The Parties intend this Agreement to be a “service contract” within the meaning of Section 7701(e)(3) of the Code. The Parties will not take the position on any tax return or in any other filings suggesting that it is anything other than a purchase of the Product from the Seller or that this agreement is anything other than a “service contract” within the meaning of Section 7701(e)(3) of the Code.

ARTICLE 6

MAINTENANCE OF THE FACILITY

6.1 Maintenance of the Facility. Seller shall comply with applicable Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product.

6.2 Maintenance of Health and Safety. Seller shall take reasonable safety precautions with respect to the operation, maintenance, repair and replacement of the Facility. If Seller becomes aware of any circumstances relating to the Facility that create an imminent risk of damage or injury to any Person or any Person’s property, Seller shall take prompt, reasonable action to prevent such damage or injury. Such action may include, to the extent reasonably necessary, disconnecting and removing all or a portion of the Facility, or suspending the supply of Facility Energy.

6.3 Shared Facilities. The Parties acknowledge and agree that certain of the Shared Facilities and Interconnection Facilities (including a transformer, substation and associated equipment and real property), and Seller’s rights and obligations under the Interconnection Agreement, may be subject to certain shared facilities or co-tenancy agreements (“Shared Facilities Agreements”) to be entered into among Seller, the Participating Transmission Owner, Seller’s Affiliates, or third parties pursuant to which certain Interconnection Facilities may be subject to joint ownership and shared maintenance and operation arrangements; provided that such Shared Facilities Agreements (i) shall permit Seller to perform or satisfy, and shall not purport to limit, its obligations hereunder, including providing the Dedicated Interconnection Capacity, (ii) continue to provide for separate metering and a separate Resource ID for the Facility, (iii) shall not allow any Affiliate of Seller or third party to use the Dedicated Interconnection Capacity if such use would have an adverse impact on Buyer’s rights related to the Facility, and (iv) shall allocate any instruction from the CAISO or the PTO to curtail energy deliveries on a pro rata basis based upon their respective energy delivery forecasts for the applicable period, except (A) when such pro rata allocation would be in violation of the applicable curtailment instruction, or (B) to the extent that the need for the curtailment can be attributed to the Facility. Without limiting the generality of the foregoing, Seller’s Affiliates may install energy storage which uses the Interconnection Facilities so long as such energy storage has a separate Resource ID, does not impact the Expected Energy and Delivered Energy assurances provided under this Agreement, does not modify the hours on which Delivered Energy is expected to be provided (as expressed in Exhibit D), does not otherwise materially impact the performance of the Facility, and does not interfere with Seller’s use of the Dedicated Interconnection Capacity to perform its obligations A.13.b
Packet Pg. 424 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 38 under this Agreement.

6.4 Decommissioning Facility and Other Costs. Buyer shall not be responsible for any cost of decommissioning or demolition of the Facility or any environmental or other liability associated with the decommissioning or demolition of the Facility without regard to the timing or cause of the decommissioning or demolition.

ARTICLE 7

METERING

7.1 Metering. Seller shall measure the amount of Facility Energy using the Facility Meters, which will be subject to adjustment in accordance applicable CAISO meter requirements and Prudent Operating Practices, including to account for Electrical Losses and Station Use. All meters will be installed and operated in accordance with the applicable Law and pursuant to applicable CAISO-approved calculation methodologies and maintained at Seller’s cost. Subject to meeting any applicable CAISO requirements, the meters shall be programmed to adjust for all losses from the Facility to the Delivery Point in a manner subject to Buyer’s prior written approval, not to be unreasonably withheld. Metering shall be consistent with the requirements set forth in this Agreement. Each meter shall be kept under seal, such seals to be broken only when the meters are to be tested, adjusted, modified or relocated. In the event that Seller breaks a seal outside of normal testing, Seller shall notify Buyer as soon as practicable. In addition, Seller hereby agrees to provide all meter data to Buyer in a form reasonably acceptable to Buyer, and consents to Buyer obtaining from CAISO the CAISO meter data directly relating to the Facility and all inspection, testing and calibration data and reports. Seller and Buyer shall cooperate to allow both Parties to retrieve the meter reads from the CAISO Operational Meter Analysis and Reporting (OMAR) web or directly from the CAISO meter(s) at the Facility. Seller shall obtain and maintain a single CAISO Resource ID dedicated exclusively to the Facility. Seller shall not obtain additional CAISO Resource IDs for the Facility without prior written consent of Buyer, which shall not be unreasonably withheld.

7.2 Meter Verification. If Seller has reason to believe there may be a meter malfunction, Seller shall test the meter. Seller shall also test the meter annually. 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 and/or review the results of such tests. If a meter is inaccurate it shall be promptly repaired or replaced by Seller. Seller shall be solely responsible for maintaining accurate meters and any costs arising from such inaccuracy.

ARTICLE 8
INVOICING AND PAYMENT; CREDIT

8.1 Invoicing. Seller shall deliver an invoice to Buyer for Product no later than fifteen (15) Business Days after the end of the prior monthly billing period. Each invoice shall provide Buyer (a) records of metered data, including CAISO metering and transaction data sufficient to document and verify the amount of Product delivered by the Facility for any Settlement Period during the preceding month, including the amount of Facility Energy in MWh produced by the Facility as read by the Facility Meter, the amount of Replacement Product delivered to Buyer, the A.13.b
Packet Pg. 425 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 39 calculation of Facility Energy, Deemed Delivered Energy and Adjusted Energy Production, the Fifteen Minute Market Price at the Delivery Point for each Settlement Period, and the Contract Price applicable to such Product; and (b) access to any records, including invoices or settlement data from the CAISO, necessary to verify the accuracy of any amount; and (c) be in a format reasonably specified by Buyer, covering the services provided in the preceding month determined in accordance with the applicable provisions of this Agreement.

8.2 Payment. Buyer shall make payment to Seller for Product by wire transfer or ACH payment to the bank account provided on each monthly invoice. Buyer shall pay undisputed invoice amounts within twenty-five (25) days after receipt of the invoice, or the end of the prior monthly delivery period, whichever is later. If such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. Payments made after the due date will be considered late and will bear interest on the unpaid balance. If the amount due is not paid on or before the due date or if any other payment that is due and owing from one Party to another is not paid on or before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement. Such late payment charge shall be calculated based on an annual interest rate equal to the prime rate published on the date of the invoice in The Wall Street Journal (or, if The Wall Street Journal is not published on that day, the next succeeding date of publication), plus two percent (2%) (the “Interest Rate”). If the due date occurs on a day that is not a Business Day, the late payment charge shall begin to accrue on the next succeeding Business Day.

8.3 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement and such records as may be required by Prudent Operating Practice, for a period of at least five (5) years or as otherwise required by Law. Either Party, upon five (5) Business Days’ Notice to the other Party, shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated pursuant to this Agreement. Seller acknowledges that in accordance with California Government Code Section 8546.7, Seller may be subject to audit by the California State Auditor with regard to Seller’s performance of this Agreement because the compensation under this Agreement exceeds Ten Thousand Dollars ($10,000).

8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Agreement, an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO, or there is determined to have been a meter inaccuracy sufficient to require a payment adjustment. If the required adjustment is in favor of Buyer, Buyer’s next monthly payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller, Seller shall add the adjustment amount to Buyer’s next monthly invoice. Adjustments in favor of either Buyer or Seller shall bear interest, until settled in full, in accordance with Section 8.2, accruing from the date on which the adjusted amount should have been due.

8.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice rendered under this Agreement, or adjust any invoice for any arithmetic or computational error, within twelve (12) months of the date the invoice, or adjustment A.13.b
Packet Pg. 426 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 40 to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Inadvertent overpayments shall be returned via adjustments in accordance with Section 8.4. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 8.5 within twelve (12) months after the invoice is rendered or subsequently adjusted, except to the extent any misinformation was from a third party not affiliated with any Party seeking the adjustment and such party corrects its information after the twelve-month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived.

8.6 Netting of Payments. The Parties hereby agree that they shall discharge mutual debts and payment obligations due and owing to each other pursuant to this Agreement 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 and Deemed Delivered Energy during the monthly billing period under this Agreement or otherwise arising out of this Agreement, including any related damages calculated pursuant to Exhibits B and G, interest, and payments or credits, shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it.

8.7 Seller’s Development Security. To secure Seller’s obligations under this Agreement, Seller shall deliver Development Security to Buyer within thirty (30) days after the Effective Date. Seller shall maintain the Development Security in full force and effect, provided that Seller shall have no obligation to replenish the Development Security in the event Buyer collects or draws down any portion of the Development Security for any reason permitted under this Agreement. Upon the earlier of (i) Seller’s delivery of the Performance Security, or (ii) sixty (60) days after termination of this Agreement, Buyer shall promptly return the Development Security to Seller, less the amounts drawn in accordance with this Agreement. Provided that no Event of Default has occurred and is continuing with respect to Seller, Seller may replace Development Security or change the form of Development Security to another form of Development Security from time to time upon reasonable prior written notice to Buyer. If the Development Security is a Letter of Credit and the issuer of such Letter of Credit (i) fails to maintain the minimum Credit Rating specified in the definition of Letter of Credit, (ii) indicates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to the Commercial Operation Date, or (iii) fails to honor Buyer’s properly documented request to draw on such Letter of Credit by such issuer, Seller shall have five (5) Business Days to either post cash or deliver a substitute Letter of Credit that meets the requirements set forth in the definition of Development Security.

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

Seller shall maintain the Performance Security in full force and effect until the date on which the following have occurred (“Performance Security End Date”): (A) the Delivery Term has expired or terminated early; and (B) all payment obligations of the Seller then due and payable A.13.b
Packet Pg. 427 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 41 under this Agreement, including compensation for penalties, Termination Payment, indemnification payments or other damages are paid in full (whether directly or indirectly such as through set-off or netting). Following the occurrence of the Performance Security End Date, Buyer shall promptly return to Seller the unused portion of the Performance Security, less the amounts drawn in accordance with this Agreement. 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 Performance Security End Date, or (iii) fails to honor Buyer’s properly documented request to draw on such Letter of Credit by such issuer, Seller shall have five (5) 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. If the Performance Security is a Guarantee, and Seller receives notice that the Guarantor at any point no longer meets any of the conditions within the definition of Guarantor, Seller shall have five (5) Business Days to either post cash, provide a replacement Guarantee, or deliver a substitute Letter of Credit that meets the requirements set forth in the definition of Performance Security.

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

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

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

A.13.b
Packet Pg. 428 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 42 ARTICLE 9

NOTICES

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

9.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered as follows: (a) if sent by United States mail with proper first class postage prepaid, three (3) Business Days following the date of the postmark on the envelope in which such Notice was deposited in the United States mail; (b) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; (c) if sent by electronic communication (including electronic mail, facsimile, or other electronic means), at the time indicated by the time stamp upon delivery; or (d) if delivered in person, upon receipt by the receiving Party. Notwithstanding the foregoing, Notices of outages or other scheduling or dispatch information or requests, may be sent by electronic communication and shall be considered delivered upon successful completion of such transmission. In addition, for any Notice sent pursuant to (a), (b) or (d) above, the Party sending such Notice shall send a courtesy copy via email to the email address provided on Exhibit N.

ARTICLE 10

FORCE MAJEURE

10.1 Definition.
(a) “Force Majeure Event” means any act or event that delays or prevents a Party from timely performing all or a portion of its obligations under this Agreement or from complying with all or a portion of the conditions under this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be avoided by and is beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance. (b) Without limiting the generality of the foregoing, except as set forth below, so long as an event otherwise satisfies the definition of a Force Majeure Event, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; epidemic, including COVID19; landslide; mudslide; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; Governmental Action; or strikes or other labor difficulties caused or suffered by a Party or any third party.

Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) 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; (ii) the inability of a Party to make payments when due under this Agreement, unless the cause of such A.13.b
Packet Pg. 429 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 43 inability is an event that would otherwise constitute a Force Majeure Event as described above that disables physical or electronic facilities necessary to transfer funds to the payee Party; (iii) a Curtailment Order, except to the extent such Curtailment Order is caused by a Force Majeure Event; (iv) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility except to the extent such inability is caused by a Force Majeure Event; (v) a strike, work stoppage or labor dispute limited only to any one or more of Seller, Seller’s Affiliates, Seller’s contractors, their subcontractors thereof or any other third party employed by Seller to work on the Facility; (vi) any equipment failure except if such equipment failure is caused by a Force Majeure Event; or (vii) 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 the Product, or any component thereof at a lower price, or Seller’s ability to sell the Product, or any component thereof, at a higher price, than under the Agreement).

10.2 No Liability If a Force Majeure Event Occurs. Neither Seller nor Buyer shall be liable to the other Party in the event it is prevented from performing its obligations hereunder in whole or in part due to a Force Majeure Event. The Party rendered unable to fulfill any obligation by reason of a Force Majeure Event shall take reasonable actions necessary to remove such inability. Nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has been removed. Neither Party shall be considered in breach or default of this Agreement if and to the extent that any failure or delay in the Party’s performance of one or more of its obligations hereunder is caused by a Force Majeure Event. 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 11.1(b)(ii) or (iv) and receive a Damage Payment upon exercise of Buyer’s remedies pursuant to Section 11.2.

10.3 Notice. In the event of any delay or nonperformance resulting from a Force Majeure Event, the Party suffering the Force Majeure Event shall (a) promptly notify the other Party in writing of the nature, cause, estimated date of commencement thereof, and the anticipated extent of any delay or interruption in performance, and (b) 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; provided, however, that a Party’s failure to give timely Notice shall not affect such Party’s ability to assert that a Force Majeure Event has occurred unless the delay in giving Notice materially prejudices the other Party. The Parties acknowledge and agree that the extent and impact of COVID-19 on the Parties’ performance hereunder may not be immediately or readily ascertainable, but that each Party shall promptly notify the other in accordance with this Section 10.3 once any impacts of COVID-19 result in any delay or nonperformance hereunder.

10.4 Termination Following Force Majeure Event. If a Force Majeure Event has occurred after the Commercial Operation Date that has caused either Party to be wholly or partially 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 nonclaiming Party may terminate this Agreement upon written Notice to the other Party experiencing A.13.b
Packet Pg. 430 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 44 the Force Majeure Event; provided, however, that Seller shall be entitled to up to an additional six (6) months to remedy the Force Majeure Event if (a) Seller has been unable to remedy the Force Majeure Event within the original twelve (12) month period despite exercising diligent efforts and (b) Seller provides to Buyer prior to the expiration of the original twelve (12) month period (i) a detailed plan reasonably acceptable to an independent, professional engineer selected by Buyer, licensed in the State of California, that explains how Seller will restore the Facility, (ii) a certificate from a Licensed Professional Engineer attesting that the Facility could not reasonably have been restored to operational status within the original twelve (12) month period but is reasonably likely to be restored to operational status within the additional six (6) month period by Seller’s execution of the plan described in Section 10.4(b)(i), (iii) detailed monthly reports (due no later than the 15th day of each month) describing the progress of Seller’s efforts to remedy the Force Majeure Event during the prior month, and (iv) Seller continues to make reasonable progress in implementing the detailed plan provided to Buyer, or in otherwise resolving the Force Majeure Event. Upon any such termination, neither Party shall have any liability to the other, save and except for those obligations specified in Section 2.1(b), and Buyer shall promptly return to Seller any Performance Security then held by Buyer, less any amounts drawn in accordance with this Agreement.

ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION

11.1 Events of Default. An “Event of Default” shall mean, (a) with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following:
(i) the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof;
(ii) any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional thirty (30) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) day period despite exercising commercially reasonable efforts); (iii) the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default, set forth in this Section 11.1; and except for failures related to the Adjusted Energy Production that do not trigger the provisions of Section 11.1(b)(v), 11.1(b)(vii), and 11.1(b)(viii), the exclusive remedies for which are set forth in Section 4.7), and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such failure within such initial thirty (30) day period despite exercising commercially reasonable efforts); (iv) such Party becomes Bankrupt;
(v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Article 14; or
A.13.b
Packet Pg. 431 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 45 (vi) such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. (b) with respect to Seller as the Defaulting Party, the occurrence of any of the following:
(i) if at any time, Seller delivers or attempts to deliver electric energy for sale under this Agreement that was not generated by the Facility, except for Replacement Product or Bridge Product;
(ii) the failure by Seller to achieve Commercial Operation within one hundred eighty (180) days after the Guaranteed Commercial Operation Date; (iii) if not remedied within ten (10) days after Notice thereof, the failure by Seller to deliver a Remedial Action Plan required under Section 2.4; (iv) the failure by Seller to achieve the Construction Start Date within one hundred eighty (180) days after the Guaranteed Construction Start Date; (v) if, in any consecutive six (6) month period, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) is not at least ten percent (10%) of the Expected Energy amount for such period in the applicable Contract Year, and Seller fails to either (x) demonstrate to Buyer’s reasonable satisfaction, within ten (10) Business Days after Notice from Buyer, a legitimate reason for the failure to meet the ten percent (10%) minimum, or (y) deliver to Buyer within ten (10) Business Days after Notice from Buyer a plan or report developed by Seller that describes the cause of the failure to meet the ten percent (10%) and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Operating Practices and capable of cure within a reasonable period of time, not to exceed one hundred and eighty (180) days;
(vi) failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 after Notice and expiration of the cure periods set forth therein; (vii) if beginning in the second Contract Year, the Adjusted Energy Production amount is not at least fifty percent (50%) of the Expected Energy amount in any Contract Year;
(viii) if, in any two (2) consecutive Contract Years during the Delivery Term, the Adjusted Energy Production amount is not at least sixty-five percent (65%) of the Expected Energy amount in each Contract Year;
(ix) with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer substitute Development or Performance A.13.b
Packet Pg. 432 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 46 Security, as applicable, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events:
(A) the issuer of the outstanding Letter of Credit shall fail to maintain a Credit Rating of at least “A-” by S&P or “A3” by Moody’s; (B) the issuer of such Letter of Credit becomes Bankrupt; (C) the issuer of the outstanding Letter of Credit shall fail to comply with or perform its obligations under such Letter of Credit and such failure shall be continuing after the lapse of any applicable grace period permitted under such Letter of Credit;
(D) the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; (E) the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit;
(F) such Letter of Credit fails or ceases to be in full force and effect at any time; or
(G) Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than forty-five (45) days prior to the expiration of the outstanding Letter of Credit.
(x) with respect to any Guaranty provided for the benefit of Buyer, the failure by Seller to provide for the benefit of Buyer (1) cash, (2) a replacement Guaranty from a different Guarantor meeting the criteria set forth in the definition of Guarantor, or (3) a replacement Letter of Credit from an issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events:
(A) if any representation or warranty made by the Guarantor in connection with this Agreement is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof; (B) the failure of Guarantor to make any payment required or to perform any other material covenant or obligation in any Guaranty; (C) the Guarantor becomes Bankrupt;
(D) the Guarantor shall fail to meet the criteria for an acceptable Guarantor as set forth in the definition of Guarantor; A.13.b
Packet Pg. 433 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 47 (E) the failure of the Guaranty to be in full force and effect (other than in accordance with its terms) prior to the
indefeasible satisfaction of all obligations of Seller hereunder; or
(F) the Guarantor shall repudiate, disaffirm, disclaim, or reject, in whole or in part, or challenge the validity of any Guaranty.

11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (“NonDefaulting 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 11.1(b)(ii) or

11.1(b)(iv)) or (ii) the Termination Payment calculated in accordance with Section 11.3 below (in the case of any other Event of Default by either Party); (c) to withhold any payments due to the Defaulting Party under this Agreement; (d) to suspend performance; or
(e) to exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief, except to the extent such remedies are expressly limited under this Agreement;
provided, that payment by the Defaulting Party of the Damage Payment or Termination Payment, as applicable, shall constitute liquidated damages and the Non-Defaulting Party’s sole and exclusive remedy for any Terminated Transaction and the Event of Default related thereto.

11.3 Termination Payment. The Termination Payment (“Termination Payment”) for a Terminated Transaction shall be the aggregate of all Settlement Amounts plus any or all other amounts due to the Non-Defaulting Party (as of the Early Termination Date) minus any and all other amounts due from the Non-Defaulting Party (as of the Early Termination Date) netted into a single amount. If the resulting value is negative, the Termination Payment shall be zero. The NonDefaulting 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 A.13.b
Packet Pg. 434 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 48 for purposes of the calculation of Gains or Losses may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information. The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (a) the actual damages that the Non-Defaulting Party would incur in connection with a Terminated Transaction would be difficult or impossible to predict with certainty, (b) the Damage Payment or Termination Payment described in this Section 11.2 or this Section 11.3 (as applicable) is a reasonable and appropriate approximation of such damages, and (c) the Damage Payment or Termination Payment described in this Section 11.2 or this Section 11.3 (as applicable) is the exclusive remedy of the Non-Defaulting Party in connection with a Terminated Transaction but shall not otherwise act to limit any of the Non-Defaulting Party’s rights or remedies if the NonDefaulting Party does not elect a Terminated Transaction as its remedy for an Event of Default by the Defaulting Party.

11.4 Notice of Payment of Termination Payment. As soon as practicable after a Terminated Transaction, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Damage Payment or Termination Payment and whether the Termination Payment is due to or from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount and the sources for such calculation.

The Termination Payment shall be made to or from the Non-Defaulting Party, as applicable, within ten (10) Business Days after such Notice is effective.

11.5 Disputes with Respect to Termination Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within five (5) Business Days of receipt of the Non-Defaulting Party’s calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding the Termination Payment shall be determined in accordance with Article 15.

11.6 Rights and Remedies are Cumulative. Except where an express and exclusive remedy or measure of damages is provided, the rights and remedies of a Party pursuant to this Article 11 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

11.7 Seller Pre-Commercial Operation Liability Limitations. Notwithstanding any other provision of this Agreement, if this Agreement is terminated in accordance with the terms and conditions of this Agreement prior to the Commercial Operation Date, Seller’s aggregate liability under this Agreement, including for any previously paid or accrued and unpaid Construction Delay Damages and Commercial Operation Delay Damages, shall be limited to an aggregate amount equal to the sum of (a) the Damage Payment plus (b) any previously paid or accrued and unpaid Construction Delay Damages and Commercial Operation Delay Damages (provided, that the total amount of previously paid or accrued and unpaid Construction Delay Damages and Commercial Operation Delay Damages shall be capped at an amount equal to the Damage Payment for purposes of calculating Seller’s limitation of liability hereunder).

A.13.b
Packet Pg. 435 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 49 11.8 Mitigation. Any Non-Defaulting Party shall be obligated to mitigate its Costs, Losses and damages resulting from any Event of Default of the other Party under this Agreement.

ARTICLE 12
LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES.

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

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

OPERATION DATE, THE VALUE OF ANY TAX BENEFITS, DETERMINED ON AN AFTER-TAX BASIS, LOST DUE TO BUYER’S DEFAULT (WHICH SELLER HAS NOT

BEEN ABLE TO MITIGATE AFTER USE OF REASONABLE EFFORTS) AND AMOUNTS

DUE IN CONNECTION WITH THE RECAPTURE OF ANY RENEWABLE ENERGY INCENTIVES, IF ANY, SHALL BE DEEMED TO BE DIRECT DAMAGES.

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

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

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

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

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

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

FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE

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

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

TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING THE DAMAGE PAYMENT UNDER SECTIONS 4.7, 11.2 AND

11.3, AND AS PROVIDED IN EXHIBIT B AND EXHIBIT G, THE PARTIES

ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO

DETERMINE, THAT OTHERWISE OBTAINING AN ADEQUATE REMEDY IS A.13.b
Packet Pg. 436 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 50 INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE

INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES

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

CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY,

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

THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE

EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE

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

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

ARTICLE 13
REPRESENTATIONS AND WARRANTIES; AUTHORITY

13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows:
(a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and is qualified to conduct business in 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, except where such failure does not have a material adverse effect on Seller’s performance under this Agreement. The execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary limited liability company action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller. (c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions 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.

A.13.b
Packet Pg. 437 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 51 (e) The Facility is located in the State of California, and will be designed to contain the capabilities provided in Exhibit A.
(f) Seller will be responsible for obtaining all permits necessary to construct and operate the Facility and Seller or an Affiliate will be the applicant on any CEQA documents. (g) Seller represents and warrants that it has not and will not knowingly utilize equipment or resources for the construction, operation or maintenance of the Facility that rely on work or services exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily (“Forced Labor”). The Parties acknowledge that pursuant to the business advisory jointly issued by the U.S. Departments of State, Treasury, Commerce and Homeland Security on July 1, 2020, equipment or resources sourced from the Xinjiang region of China are presumed to involve Forced Labor.

13.2 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows:
(a) Buyer is a public entity organized under the laws of the State 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. (e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim and affirmatively waives immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (1) suit, (2) jurisdiction of court (provided that such court is located within a venue permitted in law and under the Agreement), (3) relief by way of injunction, order for specific performance or recovery of property, (4) attachment of assets, or (5) execution or enforcement of any judgment; provided, A.13.b
Packet Pg. 438 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 52 however that nothing in this Agreement shall waive the obligations or rights set forth in the California Tort Claims Act (Government Code Section 810 et seq.). (f) Buyer is a “local public entity” as defined in Section 900.4 of the Government Code of the State of California.

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

ARTICLE 14

ASSIGNMENT

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

14.2 Collateral Assignment. Subject to the provisions of this Section 14.2, Seller has the right to assign this Agreement as collateral for any financing or refinancing of the Facility. In connection with any financing or refinancing of the Facility by Seller, Buyer shall in good faith work with Seller and Lenders to agree upon a consent to collateral assignment of this Agreement (“Collateral Assignment Agreement”). Each Collateral Assignment Agreement must be in form and substance agreed to by Buyer, Seller and the applicable Lender, such agreement not to be unreasonably withheld. Buyer will not be subject to obligations under more than one Collateral Assignment Agreement at any time. Each Collateral Assignment Agreement must include, among others, the following provisions unless otherwise agreed to by Buyer, Seller and the applicable Lender:
(a) Buyer shall give notice of an Event of Default by Seller to the Person(s) to be specified by Lender in the Collateral Assignment Agreement before exercising its right to A.13.b
Packet Pg. 439 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 53 terminate this Agreement as a result of such Event of Default; provided that such notice shall be provided to Lender at the time such notice is provided to Seller and any additional cure period of Lender agreed to in the Collateral Assignment Agreement shall not commence until Lender has received notice of such Event of Default;
(b) Lender will have the right to cure an Event of Default on behalf of Seller if Lender sends a written notice to Buyer before the later of (i) the expiration of any cure period, and (ii) five (5) Business Days after Lender’s receipt of notice of such Event of Default from Buyer, indicating Lender’s intention to cure. Lender must remedy or cure such Event of Default within the cure period under this Agreement and any additional cure periods agreed in the Collateral Assignment Agreement up to a maximum of ninety (90) days (or, in the event of a bankruptcy of Seller or any foreclosure or similar proceeding if required by Lender to cure any Event of Default, an additional reasonable period of time to complete such proceedings and effect such cure not to exceed one hundred eighty (180) days without the written consent of Buyer, which consent shall not be unreasonably withheld), provided that if Lender is prohibited by any court order or bankruptcy or insolvency proceedings from curing the Event of Default or from commencing or prosecuting foreclosure proceedings, the foregoing time periods shall be extended by the period of such prohibition;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller (or Lender, if Lender has provided the notice set forth in subsection (b) above) to provide to Buyer a report concerning:
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default;
(ii) Impediments to the cure plan or its development;
(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); and (iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan.

Seller or Lender 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; (d) Lender will have the right to consent before any termination of this Agreement which does not arise out of an Event of Default, which consent will not be unreasonably withheld, delayed or conditioned;
(e) Lender will receive prior notice of and the right to approve material amendments to this Agreement, which approval will not be unreasonably withheld, delayed or conditioned;
(f) If this Agreement is transferred to Lender pursuant to subsection (b) above, A.13.b
Packet Pg. 440 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 54 Lender must assume all of Seller’s obligations arising under this Agreement on and after the date of such assumption; provided, before such assumption, if Buyer advises Lender that Buyer will require that Lender cure (or cause to be cured) any Event of Default existing as of the transfer date in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Event of Default, then Lender at its option, and in its sole discretion, may elect to either:
(i) Cause such Event of Default to be cured (other than any Events of Default which relate to Seller’s bankruptcy or similar insolvency proceedings, to representations and warranties made by Seller or to Seller’s failure to perform obligations under other agreements, or which are otherwise personal to Seller), or
(ii) Not assume this Agreement.
(g) If Lender elects to transfer this Agreement, then Lender must cause the transferee to assume all of Seller’s obligations arising under this Agreement arising after the date of such assumption as a condition of the sale or transfer. Such sale or transfer may be made only to an entity that meets the definition of Permitted Transferee; (h) Subject to Lender’s cure of any Events of Defaults under the Agreement in accordance with Section 14.2(f), if (i) this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith Lender or its designee shall have the right to elect within ninety (90) days after such rejection or termination, to enter into a replacement agreement with Buyer having substantially the same terms as this Agreement for the remaining term thereof, and, promptly after Lender’s written request, Buyer must enter into such replacement agreement with Lender or Lender’s designee, or (ii) if Lender or its designee, directly or indirectly, takes possession of, or title to, the Facility after any such rejection or termination of this Agreement, promptly after Buyer’s written request, Lender must itself or must cause its designee to promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the remaining term thereof, provided that in the event a designee of Lender, directly or indirectly, takes possession of, or title to, the Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), if such designee is not an entity that meets the definition of Permitted Transferee then such designee shall be subject to the prior written approval of Buyer, such approval not to be unreasonably withheld; and
(i) The Parties shall negotiate any Collateral Assignment Agreement in good faith, including variations to the provisions set forth in this Section 14.2, and to the extent the Collateral Assignment Agreement executed by Buyer and Lender varies from such provisions, the terms of such Collateral Assignment Agreement shall be controlling. In addition, Buyer shall cooperate with Seller or any Lender to execute or arrange for delivery of estoppels reasonably requested by Seller or Lender.

14.3 Permitted Assignment by Seller. Seller may, upon prior written notice to, but without the prior written consent of, Buyer, transfer or assign this Agreement, including through a Change of Control, (x) to an Affiliate of Seller or (y) on or after the Construction Start Date, if:
(a) the transfer or assignment is to a Permitted Transferee; A.13.b
Packet Pg. 441 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 55 (b) Seller has given Buyer Notice at least fifteen (15) Business Days before the date of such proposed assignment, transfer, or Change of Control; (c) Except in the case of a Change of Control where all of Seller’s obligations and liabilities are directly or indirectly assumed, Seller has provided Buyer a written agreement or certificate signed by the Person to which Seller wishes to assign its interests that provides that such Person will assume all of Seller’s obligations and liabilities under this Agreement upon such transfer or assignment;
(d) Seller has provided Buyer with a certificate signed by the Person to which Seller wishes to assign its interests certifying that such Person meets the definition of a Permitted Transferee; and
(e) Such transfer or assignment is not in violation of applicable Law.

Any assignment by Seller, its successors or assigns under this Section 14.3 shall be of no force and effect unless and until the Notice under clause (b) and the agreements and certificates required under clauses (c) and (d), if applicable, by the assignee have been received by Buyer. For clarity, neither the transfer or assignment of this Agreement through foreclosure by any Lender on the assets of Seller or on the direct or indirect ownership interests in Seller nor the transfer or assignment of this Agreement or such ownership interests in Seller to any Lender in lieu of such foreclosure (including any transfer or assignment of this Agreement or such ownership interests in Seller subsequent to such foreclosure or transfer or assignment in lieu of foreclosure to a Permitted Transferee) shall require Buyer’s consent provided that clauses (a) through (e) are followed and completed.

14.4 Permitted Assignment by Buyer. Buyer may assign its interests in this Agreement without prior written consent of Seller to a Qualified Buyer Assignee. Notwithstanding the foregoing, in connection with any such assignment, such Qualified Buyer Assignee shall execute a written assumption agreement in favor of Seller pursuant to which any such Qualified Buyer Assignee shall assume all the obligations of such Buyer under this Agreement and agree to be bound by all the terms and conditions of this Agreement, thereby relieving the assignor Buyer from its duties and obligations hereunder and thereunder. Any modifications or amendments to this Agreement to accommodate the technical requirements of such Qualified Buyer Assignee (including as they relate to transmission and scheduling) shall require the consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed.

ARTICLE 15

DISPUTE RESOLUTION

15.1 Governing Law. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of Law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement. 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 A.13.b
Packet Pg. 442 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 56 arising out of this Agreement shall be brought in federal courts of the United States or the courts of the State of California sitting in the County of Riverside, California.

15.2 Dispute Resolution. In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a written Notice from either Party identifying such dispute, the Parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within the earlier of either thirty (30) days of initiating such discussions, or within forty (40) days after Notice of the dispute, either Party may seek any and all remedies available to it at Law or in equity, subject to the limitations set forth in this Agreement. The Parties may agree to submit the dispute to mediation prior to seeking any and all remedies available to it at Law in or equity. In the event of such an agreement to mediation, the Parties will cooperate in selecting a qualified neutral mediator selected from a panel of neutrals and in scheduling the time and place of the mediation as soon as reasonably possible, but in no event later than thirty (30) days after the request for mediation is made. The Parties agree to participate in the mediation in good faith and to share the costs of the mediation, including the mediator’s fee, equally, but such shared costs shall not include each Party’s own attorneys’ fees and costs, which shall be borne solely by such Party. If the mediation is unsuccessful, 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.

ARTICLE 16

INDEMNIFICATION

16.1 Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party and its Affiliates, directors, officers, employees and agents (collectively, the “Indemnified Party”) from and against all third-party claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees and expert witness fees) , howsoever described, to the extent arising out of, resulting from, or caused by (i) a violation of applicable Laws, (ii) negligent or tortious acts, errors, or omissions or (iii) intentional acts or willful misconduct in each case by or of the Indemnifying Party, its Affiliates, directors, officers, employees, or agents, excepting only such claims, demands, losses, liabilities, penalties and expenses to the extent solely caused by the willful misconduct or gross negligence of a member of the Indemnified Party (collectively, “Indemnifiable Losses”). 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.

These indemnity provisions shall not be construed to relieve any insurer of its obligation to pay claims consistent with the provisions of a valid insurance policy.

16.2 Claim Notice.
(a) 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 Indemnified Party has determined has given or could give rise to an Indemnifiable Loss under Section 16.1 (“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.

A.13.b
Packet Pg. 443 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 57 (b) Failure to Provide Notice. A failure to give timely Notice or to include any specified information in any Notice as provided in this Section 16.2 will not affect the rights or obligations of any Party hereunder except and only to the extent that, as a result of such failure, any Party which was entitled to receive such Notice 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 and, provided further, the Indemnifying Party is not obligated to indemnify the Indemnified Party for the increased amount of any Indemnifiable Loss which would otherwise have been payable to the extent that the increase resulted from the failure to deliver timely a Notice of Claim.

16.3 Defense of Claims. If, within ten (10) days after giving a Notice of Claim regarding a Claim to the Indemnifying Party pursuant to Section 16.2(a), the Indemnified Party receives Notice from such 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 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) calendar 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.

16.4 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 17

INSURANCE

17.1 Insurance.

A.13.b
Packet Pg. 444 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 58 (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 Two Million Dollars ($2,000,000) per occurrence, and an annual aggregate of not less than Four Million Dollars ($4,000,000), and include Buyer as an additional insured; and (ii) an umbrella and/or excess liability insurance policy in a minimum limit of liability of Five Million Dollars ($5,000,000). Defense costs shall be provided as an additional benefit and not included within the limits of liability. Such insurance shall contain standard contractual liability, cross-liability and severability of interest provisions. (b) Employer’s Liability Insurance. Employers’ Liability insurance shall not be less than One Million Dollars ($1,000,000.00) for injury or death occurring as a result of each accident. With regard to bodily injury by disease, the One Million Dollar ($1,000,000) policy limit will apply to each employee.
(c) Workers Compensation Insurance. Seller, if it has employees, shall also maintain at all times during the Contract Term workers’ compensation and employers’ liability insurance coverage in accordance with applicable requirements of California Law. (d) Business Auto Insurance. Seller shall maintain at all times during the Contract Term business auto insurance for bodily injury and property damage with limits of One Million Dollars ($1,000,000) per occurrence. Such insurance shall cover liability arising out of Seller’s use of all owned (if any), non-owned and hired vehicles, including trailers or semi-trailers in the performance of the Agreement.
(e) Construction All-Risk Insurance. Seller shall maintain or cause to be maintained during the construction or re-powering of the Facility prior to the Commercial Operation Date, construction all-risk form property insurance covering the Facility during such construction periods, and naming the Seller (and Lender if any) as the loss payee. (f) Contractor’s Pollution Liability. Seller shall maintain or cause to be maintained during the construction of the Facility prior to the Commercial Operation Date, Pollution Legal Liability Insurance in the amount of Two Million Dollars ($2,000,000) per occurrence and in the aggregate, naming Seller (and Lender if any) as additional insured. (g) Contractor Insurance. Seller shall require the contractor under its engineering, procurement, and construction contract for the Facility to carry: (i) commercial general liability insurance with a combined single limit not less than Two Million Dollars ($2,000,000); (ii) workers’ compensation insurance and employers’ liability coverage in accordance with applicable requirements of Law; and (iii) business auto insurance for bodily injury and property damage, in each case, with limits of One Million Dollars ($1,000,000) per occurrence.

The contractor shall name Seller as an additional insured to insurance carried pursuant to clauses (g)(i) and (g)(iii). The contractor shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 17.1(g). (h) Evidence of Insurance. Within thirty (30) 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 A.13.b
Packet Pg. 445 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 59 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.
(i) Failure to Comply with Insurance Requirements. If Seller fails to comply with any of the provisions of this Article 17, Seller, among other things and without restricting Buyer’s remedies under the Law or otherwise, shall, at its own cost and expense, act as an insurer and provide insurance in accordance with the terms and conditions above. With respect to the required general liability, umbrella liability and commercial automobile liability insurance, Seller shall provide a current, full and complete defense to Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, employees, assigns, and successors in interest, in response to a third-party claim in the same manner that an insurer would have, had the insurance been maintained in accordance with the terms and conditions set forth above. In addition, alleged violations of the provisions of this Article 17 means that Seller has the initial burden of proof regarding any legal justification for refusing or withholding coverage and Seller shall face the same liability and damages as an insurer for wrongfully refusing or withholding coverage in accordance with the laws of California.

ARTICLE 18

CONFIDENTIAL INFORMATION

18.1 Definition of Confidential Information. “Confidential Information,” means information, whether oral or written, that is delivered by Seller to Buyer or by Buyer to Seller including: (a) commercially-sensitive or proprietary information provided to Buyer in connection with the terms and conditions of, or proposals and negotiations related to, this Agreement; and (b) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” or words of similar import before disclosing it to the other. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of delivery; (iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement.

18.2 Duty to Maintain Confidentiality. Confidential Information 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 applicable Law, order, regulation, ruling, regulatory request, accounting disclosure rule or standard or any exchange, control area or independent system operator request or 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 A.13.b
Packet Pg. 446 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 60 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. Notwithstanding anything in this Agreement, Seller acknowledges and agrees that Buyer is required to make this Agreement available to the public in connection with the process of seeking approval from its governing body for execution of this Agreement. Buyer will use reasonable efforts to redact certain financial terms of this Agreement as part of any such public disclosure, to the extent permissible under Buyer’s policies and California law. 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 6250 et seq.). Buyer shall, to the extent permissible, notify Seller in writing in advance of any disclosure that a request or demand has been made; provided that, upon the advice of its counsel that disclosure is required, Buyer may disclose this Agreement or any other requested Confidential Information, whether or not advance written notice to Seller has been provided. Seller shall be solely responsible for taking whatever steps it deems necessary to protect Confidential Information that is the subject of any California Public Records Act request submitted by a third person to Buyer. 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.

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

18.4 Disclosure to Seller Permitted Party. Notwithstanding anything to the contrary in this Article 19, Confidential Information may be disclosed by Seller to any Seller Permitted Party or any of its agents, consultants or trustees, or by Buyer to any potential Buyer Qualified Assignee, so long as the Person to whom Confidential Information is bound by similarly restrictive confidentiality obligations as those contained in this Agreement, or agrees in writing to be bound by the confidentiality provisions of this Article 18 to the same extent as if it were a Party.

Notwithstanding anything to the contrary in this Article 18, Confidential Information may be disclosed by either Party to any nationally recognized credit rating agency (e.g., Moody’s Investors Service, Standard & Poor’s, or Fitch Ratings) in connection with the issuance of a credit rating for that Party or its affiliates, provided that any such credit rating agency agrees in writing to maintain the confidentiality of such Confidential Information in accordance with this Article 18.

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

A.13.b
Packet Pg. 447 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 61 ARTICLE 19

MISCELLANEOUS

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

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

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

19.4 No Agency, Partnership, Joint Venture or Lease. Seller and the agents and employees of Seller shall, in the performance of this Agreement, act in an independent capacity and 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 therein, any Lender.

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

19.6 Mobile-Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms or conditions of service of this Agreement proposed by a Party shall be the A.13.b
Packet Pg. 448 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT 62 “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable Law.

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

19.8 Electronic Delivery. This Agreement may be duly executed and delivered by a Party by 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.

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

19.10 [Intentionally Omitted]

19.11 Forward Contract. The Parties acknowledge and agree that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and Seller are “forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, to the extent permissible by Law at the time, such 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, to the extent permissible by Law at the time, further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. §366 or another provision of 11 U.S.C. § 101-1532.

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

A.13.b
Packet Pg. 449 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit A

EXHIBIT A

FACILITY DESCRIPTION
Site Name: Rosamond South Project
Site includes all or some of the following APNs:
359-331-16 359-332-06 359‐100‐05 359-332-24
359-331-22 374-020-16 359-020-49 359‐402‐11
359-332-10 374-450-01 359-403-09 359-332-12
359-332-03 359‐402‐13 359-403-08 359-332-13
359-332-09 359-402-19 359-350-21 359-332-14
359-331-21 359-331-20 359-020-07 359-041-20-00-2
359-332-04 359-401-20 359-121-54 359-041-11-00-6
359-332-30 359-401-21 359-350-21-00-8 359-041-07-00-5
359‐331‐23 359-401-22 261-196-09-00-8 261-260-20-00-7
359‐331‐06 359-401-23 359-041-01-00-7 261-260-22-00-3
359‐331‐07 374-020-02 359-402-20 261-260-23-00-6
359‐331‐12 374-020-15 359-402-21 261-120-01-00-1
359‐331‐13 374-460-12 359-402-22 261-120-09-00-5
359‐331‐15 359-332-35 359-402-15 261-120-05-00-3
359-332-11 359-331-18 359-402-16 261-120-06-00-6
359-332-31-00-5 359-332-05 359-402-17 261-120-07-00-9
359-332-02 359-332-01 359-402-18 261-120-08-00-2
359-175-05 359-332-07 359‐402‐14
This Agreement is specific to the Site and Seller may not materially change the location of the Site without Buyer’s prior written consent, which consent is in Buyer’s sole discretion; provided that Buyer’s consent is not required for changes to the Site size and shape so long as the Facility remains at the Facility Interconnection Point. Seller shall maintain Site Control throughout the Contract Term and shall provide Buyer with prompt Notice of any change in the status of Seller’s Site Control.

GPS Coordinates: 34.843101, -118.378120
County: Kern County
CEQA Lead Agency: Kern County
Type of Generating Facility: Solar photovoltaic electricity generating facility A.13.b
Packet Pg. 450 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit A
Operating Characteristics of Generating Facility: MW as-available solar photovoltaic Guaranteed Capacity: 10 MW AC (net, at the Delivery Point)] Interconnection Capacity: 56.87 MW AC
Facility Interconnection Point: SCE Whirlwind 230 kV
Delivery Point: the Facility PNode on the CAISO Grid
PNode: The PNode designated by CAISO for the Facility at the Whirlwind 230 kV substation.

CAISO Queue Number: Q1327
Participating Transmission Owner: Southern California Edison Company One-Line Diagram: Included on the following page.

A.13.b
Packet Pg. 451 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit B

EXHIBIT B

FACILITY CONSTRUCTION AND COMMERCIAL OPERATION

1. Construction of the Facility.
a. “Construction Start” will occur upon satisfaction of the following: (i) Seller has acquired the applicable regulatory authorizations, approvals and permits required for the commencement of construction of the Facility, (ii) Seller has engaged all contractors and ordered all essential equipment and supplies as, in each case, can reasonably be considered necessary so that physical construction of the Facility may begin and proceed to completion without foreseeable interruption of material duration, and (iii) Seller has executed an engineering, procurement, and construction contract and issued thereunder a full notice to proceed that authorizes the contractor to mobilize to Site and begin physical construction at the Site. The date of Construction Start will be evidenced by and subject to Seller’s delivery to Buyer of a certificate substantially in the form attached as Exhibit J 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 for each day for which Construction Start has not begun after the Guaranteed Construction Start Date.

Construction Delay Damages shall be payable to Buyer by Seller until Seller reaches Construction Start of the Facility. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Construction Delay Damages, if any, accrued during the prior month and, within ten (10) days following Seller’s receipt of such invoice, Seller shall pay Buyer the amount of the Construction Delay Damages set forth in the invoice. Construction Delay Damages shall be refundable to Seller pursuant to Section 2(b) of this Exhibit B. The Parties agree that Buyer’s receipt of Construction 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

11.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) or 11.1(b)(iv) and receive a Damage Payment upon exercise of Buyer’s rights pursuant to Section 11.2.

2. Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice from a Licensed Professional Engineer to Buyer substantially in the form of Exhibit H (the “COD Certificate”) and (ii) Seller has notified Buyer in writing that is has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation. The “Commercial Operation Date” shall be the later of (x) sixty (60) days prior to the Expected Commercial Operation Date or (y) the date on which Commercial Operation is achieved.

A.13.b
Packet Pg. 452 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit B
a. Seller shall use commercially reasonable efforts to cause Commercial Operation for the Facility to occur by 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 Facility by the Guaranteed Commercial Operation Date, all Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include the request for refund of the Construction Delay Damages with the first invoice to Buyer after the Commercial Operation Date.
c. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Buyer shall retain Construction Delay Damages and Seller shall pay Commercial Operation Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if any, accrued during the prior month and within ten (10) days following Seller’s receipt of such invoice, Seller shall pay Buyer the amount of the Commercial Operation Delay Damages set forth in such invoice. If Seller fails to timely pay any Construction Delay Damages or Commercial Operation Delay Damages, Buyer may draw upon the Development Security to satisfy Seller’s payment obligation thereof. The Parties agree that Buyer’s receipt of Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s unexcused delay in achieving the Commercial Operation Date on or before the date that is one hundred and eighty (180) days after the Expected Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section

11.1 and (y) not limit Buyer’s right to receive a Damage Payment upon exercise of Buyer’s remedies pursuant to Section 11.2.

3. Termination for Failure to Timely Achieve Commercial Operation. If the Facility has not achieved Commercial Operation within one hundred eighty (180) days after the Expected Commercial Operation Date, Buyer may elect to terminate this Agreement pursuant to Sections 11.1(b)(ii) and 11.2.

4. Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall, subject to notice and documentation requirements set forth below, be automatically extended on a day-for-day basis (the “Development Cure Period”) for the duration of any delay arising out of any of the following circumstances:
a. a Force Majeure Event occurs, including a Force Majeure Event that delays Seller from acquiring all material permits consents, licenses, approvals or authorizations from any Governmental Authority required for Seller to own, construct, interconnect, operate or maintain the Facility; or
A.13.b
Packet Pg. 453 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit B
b. the Interconnection Facilities or Network Upgrades are not complete and ready for the Facility to connect and sell Product at the Delivery Point by the Guaranteed Commercial Operation Date, despite the exercise of best efforts by Seller.

Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under Section 4(a) and 4(b) of this Exhibit B under the Development Cure Period shall not exceed one hundred eighty (180) days, for any reason, including a Force Majeure Event. No extension shall be given if (i) the delay was the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines, (ii) Seller failed to provide the requested documentation as provided below, or (iii) Seller failed to provide the written Notice to Buyer as required in the next sentence. Seller shall provide prompt written Notice to Buyer of a delay, but in no case more than thirty (30) days after Seller became aware of an actual delay affecting the Facility, 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 written Notice within seven (7) Business Days of Seller becoming aware of such delay. As used in the preceding sentence, “actual delay” does not include Seller’s receipt of generic notices of potential delays. Upon request from Buyer, Seller shall provide documentation demonstrating to Buyer’s reasonable satisfaction that the delays described above did not result from Seller’s actions or failure to take commercially reasonable actions.

5. Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. In the event that the Installed Capacity is still less than the Guaranteed Capacity as of such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Buyer’s Fraction multiplied by Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordingly.

A.13.b
Packet Pg. 454 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit C

EXHIBIT C

BRIDGE PRODUCT FACILITIES
Bridge Product Facilities List:

1. The Facility (listed in Exhibit A).

Form for Additional Facilities (if any)
Unit Name:

RPS ID:

CAISO Resource ID:

WREGIS ID:

Facility Location: County
Facility Location: State
Facility Location: Country
Facility Location: Longitude
Facility Location: Latitude
Balancing Authority Interconnection:

Facility Fuel Type:

A.13.b
Packet Pg. 455 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit D

EXHIBIT D

HOURLY EXPECTED ENERGY
Hour
Ending Jan Feb Mar April May June July Aug Sep OctNov Dec 01 02
03 04
05 06
07 08
09 10
11 12
13 14
15 16
17 18
19 A.13.b
Packet Pg. 456 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit D
20 21
22 23
24 A.13.b
Packet Pg. 457 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit E

EXHIBIT E

PROGRESS REPORTING FORM
Each Progress Report must include the following items:

1. Executive Summary.

2. Facility description.

3. Site plan of the Facility.

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

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

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

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

8. Written description about the progress relative to Seller’s Milestones, including whether Seller has met or is on target to meet the Milestones.

9. List of issues that are likely to potentially affect Seller’s Milestones.

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

11. Prevailing wage reports as required by Law.

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

13. Pictures, in sufficient quantity and of appropriate detail, in order to document construction and startup progress of the Facility, the interconnection into the Transmission System and all other interconnection utility services.

14. Any other documentation reasonably requested by Buyer.

A.13.b
Packet Pg. 458 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit F-1
EXHIBIT F-1

FORM OF AVERAGE EXPECTED ENERGY REPORT
Average Expected Energy, MWh Per Hour
The foregoing table is provided for informational purposes only, and it shall not constitute, or be deemed to constitute, an obligation of any of the Parties to this Agreement.

A.13.b
Packet Pg. 459 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF Exhibit F
-2
EXHIBIT F-2

FORM OF MONTHLY DELIVERY FORECAST
Day
HE
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 123456789
10 11
12 13
A.13.b
Packet Pg. 460 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF Exhibit F
-2
14 15
16 17
18 19
20 21
22 23
24 A.13.b
Packet Pg. 461 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF Exhibit G

EXHIBIT G

GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION
In accordance with Section 4.7, if Seller fails to achieve the Guaranteed Energy Production during any Performance Measurement Period, a liquidated damages payment shall be due from Seller to Buyer, calculated as follows:
[(A – B) * (C – D)]
where:

A = the Guaranteed Energy Production amount for the Performance Measurement Period, in MWh
B = the Adjusted Energy Production amount for the Performance Measurement Period, in MWh
C = Replacement price for the Contract Year, in $/MWh, which is the sum of (a) the weighted average of the Integrated Forward Market hourly price for all the Reference Hours in the Performance Measurement Period, as published by the CAISO, for the Existing Zone Generation Trading Hub (as defined in the CAISO Tariff) for the Delivery Point weighted by hourly and monthly volumes in most recently delivered Average Expected Energy Report, plus (b) the lesser of (x) $50/MWh and (y) the market value of Replacement Green Attributes, as reasonably determined by Buyer.

D = the Contract Price
“Adjusted Energy Production” shall mean the sum of the following: Facility Energy + Deemed Delivered Energy + Lost Output + Replacement Product – Excess MWh. “Lost Output” has the meaning given in Section 4.7 of the Agreement. “Reference Hour” means any hour from hour-ending 0700 to hour-ending 2200 (i.e., 7:00 AM to 9:59 PM) on Monday through Sunday, Pacific Prevailing Time, excluding North American Reliability Council (NERC) holidays.
“Replacement Green Attributes” means Renewable Energy Credits of the same Portfolio Content Category (e.g., PCC1) as the Product and of the same timeframe for retirement as the Renewable Energy Credits that would have been generated by the Facility during the Performance Measurement Period for which the Replacement Green Attributes are being provided. “Replacement Energy” means energy and associated Green Attributes produced by a facility other than the Facility that, at the time delivered to Buyer, qualifies under Public Utilities Code 399.16(b)(1), and has Green Attributes that have the same or comparable value, including with respect to the timeframe for retirement of such Green Attributes, if any, as the Green A.13.b
Packet Pg. 462 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit G
Attributes that would have been generated by the Facility during the Contract Year for which the Replacement Energy is being provided.
“Replacement Product” means (a) Replacement Energy, and (b) all Replacement Green Attributes.

No payment shall be due if the calculation of (A – B) or (C - D) yields a negative number. Buyer will send Seller Notice of the amount of damages owing, if any, which amount shall be payable to Buyer within thirty (30) days from the date of such Notice.

A.13.b
Packet Pg. 463 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit H

EXHIBIT H

FORM OF COMMERCIAL OPERATION DATE CERTIFICATE
This certification (“Certification”) of Commercial Operation is delivered by _______[licensed professional engineer] (“Engineer”) to the [Buyer] (“Buyer”) in accordance with the terms of that certain Power Purchase Agreement dated _______ (“Agreement”) by and between [Seller] and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

As of [Date], Engineer hereby certifies and represents to Buyer the following:
(1) The Facility is fully operational, reliable and interconnected, fully integrated and synchronized with the Transmission System.
(2) Seller has installed equipment for the Facility with a nameplate capacity of no less than ninety-five percent (95%) of the Guaranteed Capacity.
(3) Seller has commissioned all equipment in accordance with its respective manufacturer’s specifications.
(4) The Facility’s testing included a performance test demonstrating peak electrical output of no less than ninety-five percent (95%) of the Guaranteed Capacity for the Facility at the Delivery Point, as adjusted for ambient conditions on the date of the Facility testing, and such peak electrical output, as adjusted, was [peak output in MW].
(5) Authorization to parallel the Facility was obtained by the PTO, [Name of PTO as appropriate] on___[DATE]____.
(6) The PTO has provided documentation supporting full unrestricted release for Commercial Operation by [Name of PTO as appropriate] on _______[DATE]_____. (7) The CAISO has provided notification supporting Commercial Operation, in accordance with the CAISO tariff on _______[DATE]_____.

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

Its:

Date:

A.13.b
Packet Pg. 464 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit I

EXHIBIT I

FORM OF INSTALLED CAPACITY CERTIFICATE
This certification (“Certification”) of Installed Capacity is delivered by _______[licensed professional engineer] (“Engineer”) to the [Buyer] (“Buyer”) in accordance with the terms of that certain Power Purchase Agreement dated _______ (“Agreement”) by and between [Seller] and [Buyer]. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

I hereby certify the performance test for the Facility demonstrated peak electrical output of __ MW AC at the Delivery Point, as adjusted for ambient conditions on the date of the performance test (“Installed Capacity”).

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

Its:

Date:

A.13.b
Packet Pg. 465 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit J

EXHIBIT J

FORM OF CONSTRUCTION START DATE CERTIFICATE
This certification (“Certification”) of the Construction Start Date is delivered by [SELLER ENTITY] (“Seller”) to the [Buyer] (“Buyer”) in accordance with the terms of that certain Power Purchase Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

Seller hereby certifies and represents to Buyer of 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 the Construction Start is attached hereto;

2. the precise Site on which the Facility is located is, which must include some or all of the previously identified APNs (such description shall amend the description of the Site in Exhibit A):
_____________________________________________________________________ IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as of the ___ day of ________.
[SELLER ENTITY]
By:

Its:

Date:

A.13.b
Packet Pg. 466 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit K

EXHIBIT K

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

Bank Ref.:

Amount: US$[XXXXXXXX]
Expiry Date:

APPLICANT DETAILS TO BE PROVIDED
Beneficiary: [Buyer]
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 [Buyer] (“Beneficiary”), for an amount not to exceed the aggregate sum of U.S. $[XXXXXX] (United States Dollars [XXXXX] and 00/100), pursuant to that certain Renewable Power Purchase Agreement dated as of [Date of Contract / Agreement should be in the past or on the date of issuance. In case of future contract date the Letter of Credit text will be adjusted to reflect this change] and as amended (the “Agreement”) between Applicant and Beneficiary. This Letter of Credit shall become effective immediately and shall expire on [XXXXXX] 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 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, or (b) facsimile to [bank fax number [XXX-XXX-XXXX]] confirmed by [email to [bank email address]] (if presented by fax it must be followed up by a phone call to us at [XXXXXX] or [XXXXXX] to confirm receipt) with the originals to follow via courier. The drawing will be effective upon our receipt of the original documents at the above noted address.

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.

A.13.b
Packet Pg. 467 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit K
We hereby agree with the Beneficiary that documents presented under and in compliance with 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 registered mail or 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.

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

This Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision) International Chamber of Commerce Publication No. 600 (the “UCP”), except to the extent that the terms hereof are inconsistent with the provisions of the UCP, including but not limited to Articles 14(b) and 36 of the UCP, in which case the terms of this Letter of Credit shall govern. In the event of an act of God, riot, civil commotion, insurrection, war or any other cause beyond Issuer’s control (as defined in Article 36 of the UCP) that interrupts Issuer’s business and causes the place for presentation of the Letter of Credit to be closed for business on the last day for presentation, the Expiration Date of the Letter of Credit will be automatically extended without amendment to a date thirty (30) calendar days after the place for presentation reopens for business. Please address all correspondence regarding this Letter of Credit to the attention of the Letter of Credit Department at [insert bank address information], referring specifically to Issuer’s Letter of Credit No. [XXXXXXX]. For telephone assistance, please contact Issuer’s Standby Letter of Credit Department at [XXX-XXX-XXXX] and have this Letter of Credit available.

All notices to Beneficiary shall be in writing and are required to be sent by certified letter, overnight courier, or delivered in person to: [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]
A.13.b
Packet Pg. 468 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit K
Exhibit A: (DRAW REQUEST SHOULD BE ON BENEFICIARY’S LETTERHEAD) Drawing Certificate
[Insert Bank Name and Address]
Ladies and Gentlemen:

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

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

2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________ because a Seller Event of Default (as such term is defined in the Agreement) 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 forty-five (45) days prior to such expiration date.

3. The undersigned is a duly authorized representative of [Buyer] 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 [Buyer] by wire transfer in immediately available funds to the following account:
[Specify account information]
_______________________________
Name and Title of Authorized Representative
Date___________________________
A.13.b
Packet Pg. 469 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit L

EXHIBIT L

INTENTIONALLY OMITTED
A.13.b
Packet Pg. 470 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit M

EXHIBIT M

INTENTIONALLY OMITTED
A.13.b
Packet Pg. 471 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit N

EXHIBIT N

NOTICES
GOLDEN FIELDS SOLAR IV, LLC, a
Delaware limited liability company
(“Seller”)

CITY OF MORENO VALLEY
(“Buyer”)
All Notices:

Street: 4900 Scottsdale Road, Suite 5000
c/o Solar Asset Management LLC
City: Scottsdale, AZ 85251
Attn: Asset Management
Phone: 480-424-1300
Email: [email protected]
With a copy to:
5780 Fleet Street, Suite 130
Carlsbad, CA 9200
Attn: Legal Department
Phone: 760-710-3837
Email: [email protected]
All Notices:

Street: 14331 Frederick Street
City: Moreno Valley, CA 92553
Attn: Jason Niccoli and Dean Ayer
Phone: 951-413-3502
Email: [email protected] &
[email protected]
With a copy to:

Cameron-Daniel, P.C.
101 Morris Street, Suite 201
Sebastopol, CA 95472
Attn: Dan Griffiths
Phone: 916-471-9518
[email protected]
Reference Numbers:

Duns: 079640339
Federal Tax ID Number: 26-4322315
Reference Numbers:

Duns: 1771341860000
Federal Tax ID Number: 33-0076484
Invoices:

Attn: Accounts Payable
Phone: 480-424-1300
E-mail:

[email protected]
Invoices:

Attn: Electric Utility Division Manager
Phone: 951-413-3502
E-mail: [email protected]
Scheduling:

Attn: Asset Management
Phone: 480-424-1300
E-mail: [email protected]
Scheduling:

Attn: Jason Niccoli and Dean Ayer
Phone: 951-413-3502
E-mail: [email protected] &
[email protected]
A.13.b
Packet Pg. 472 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit N
GOLDEN FIELDS SOLAR IV, LLC, a
Delaware limited liability company
(“Seller”)

CITY OF MORENO VALLEY
(“Buyer”)
Confirmations:

Attn: Asset Management
Phone: 480-424-1300
E-mail: [email protected]
Confirmations:

Attn: Jason Niccoli and Dean Ayer
Phone: 951-413-3502
E-mail: [email protected] &
[email protected]
Payments:

Attn: Accounts Payable
Phone: 480-424-1300
E-mail:

[email protected]
Payments:

Attn: Jason Niccoli and Dean Ayer
Phone: 951-413-3502
E-mail: [email protected] &
[email protected]
Wire Transfer:

BNK: CitiBank
ABA: 031100209
ACCT: 38891478
Wire Transfer:

BNK: Wells Fargo Bank
ABA: 121000248
ACCT: 4159282847
With additional Notices of an Event of
Default to:

Attn: Asset Management
Phone: 480-424-1300
E-mail: [email protected]
With a copy to:
5780 Fleet Street, Suite 130
Carlsbad, CA 9200
Attn: Legal Department
Phone: 760-710-3837
Email: [email protected]
With additional Notices of an Event of
Default to:

Attn: Jason Niccoli
Phone: 951-413-3502
Email: [email protected]
With a copy to:

Cameron-Daniel, P.C.
101 Morris Street, Suite 201
Sebastopol, CA 95472
Attn: Dan Griffiths
Phone: 916-471-9518
[email protected]
Emergency Contact:

Attn: Asset Management
Phone: 480-424-1300
E-mail: [email protected]
Emergency Contact:

Attn: Jason Niccoli and Dean Ayer
Phone: 951-413-3502
E-mail: [email protected] &
[email protected]
A.13.b
Packet Pg. 473 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit O

EXHIBIT O

SAMPLE CALCULATION OF COMPENSATION
Example A – Positive Market Price less than Contract Price If the applicable Market Price is $25/MWh, Delivered Energy for the Settlement Interval is 7 MWh, and Contract Price is $46/MWh;
Then, the amount payable to Seller for purposes of determining the compensation for the Settlement Interval pursuant to Section 3.14 (a) (i) (B) is $147, which is equal to the absolute value of (7 MWh * $25/MWh) – (7 MWh * $46/MWh).

Example B – Positive Market Price greater than Contract Price If the Market Price is $50.00/MWh, Delivered Energy for the Settlement Interval is 7 MWh, and Contract Price is $46/MWh;
Then, the amount payable to Buyer for purposes of determining the compensation for the Settlement Interval pursuant to Section 3.14 (a) (i) (A) is $28, which is equal to (7 MWh * $50/MWh) – (7/MWh * $46/MWh).

Example C – Negative Market Price greater than Negative LMP Floor If the applicable Market Price is negative $10/MWh, the applicable Negative LMP Floor is negative $13/MWh, Delivered Energy for the Settlement Interval is 7 MWh, and Contract Price is $46/MWh;
Then, the amount payable to Seller for purposes of determining the compensation pursuant to Section 3.14 (a) (i) (B) is $392, which is equal to the absolute value of (7 MWh * -$10/MWh) – (7/MWh * $46/MWh).

Example D – Market Curtailment Period
If the Market Price is negative $15/MWh, the applicable Negative LMP Floor is negative $13/MWh, Deemed Delivered Energy for the Settlement Interval is 7 MWh, and Contract Price is $46 / MWh;
Then the amount payable to Seller for purposes of determining the compensation pursuant to Exhibit P shall equal to 7 MWh * ($46/MWh + PTC Rate).

Example E – Deemed Delivered Energy within Curtailment Cap If the Market Price is negative $46/MWh, Deemed Delivered Energy for the current Settlement Interval within the Curtailment Cap is 7 MWh, and Contract Price = $46 / MWh; Then the amount payable to Seller for purposes of determining the compensation pursuant to Section 4.4(b) and Exhibit P is $0.

A.13.b
Packet Pg. 474 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit P

EXHIBIT P

NEGATIVE PRICE CURTAILMENT PROTOCOL
Principal Concept:

Pursuant to Section 3.14 of the Agreement, the Parties establish this mutually agreed written protocol for negative price curtailment (the “Protocol”). The Parties agree that there is value in developing a process to facilitate a negative pricing bid strategy Protocol to capture Renewable Energy Credits. This Protocol may be revised by a subsequent written agreement among the Parties. Capitalized terms not defined in this Exhibit P have the meanings given to them in the Agreement.

Details:
• The Protocol will be in effect each Contract Year starting at Commercial Operations Date. • Buyer’s Facility Agent will establish and may from time to time revise a negative price for the Economic Bid (“Floor Price”) and will communicate it in writing to the Scheduling Coordinator and Seller no later than five (5) Business Days in advance of each month of the Contract Year. In no event shall the Floor Price exceed $0/MWh. The initial Floor Price shall be -$38/MWh until revised by Buyer’s Facility Agent. Should Buyer’s Facility Agent fail to update the Floor Price, Seller shall use the last Floor Price communicated by Buyer.

Buyer’s Facility Agent may not establish a Floor Price that is lower than the minimum floor price permitted in the CAISO Tariff.
• For each of the settlement scenarios presented below, the Parties will operate as follows:
o In each Settlement Interval in which the Market Price is below the Floor Price, Seller shall curtail deliveries of Facility Energy (such interval, a “Market Curtailment Period”) and such Market Curtailment Period shall count toward the Curtailment Cap. o In the Event of a Market Curtailment Period before the Curtailment Cap is reached, Buyer shall pay Zero Dollars ($0) for any resulting Deemed Delivered Energy. o In the Event of a Market Curtailment Period after the Curtailment Cap is reached, with respect to all resulting Deemed Delivered Energy Buyer shall pay Seller the sum of (a) the Contract Price and (b) PTC Rate multiplied by the amount of energy (in MWh) that Seller could have delivered to Buyer but was prevented from delivering to Buyer due to Market Curtailment Period.
o In each Settlement Interval in which the Market Price is below the Floor Price, in the event and to the extent that such period is subject to a Planned Outage, Forced Facility Outage, Force Majeure Event and/or Curtailment Order, the notwithstanding anything in this Exhibit P to the contrary, no Market Curtailment Period shall be deemed to have occurred, no hours will be counted against the Curtailment Cap, and no payment will be due for Deemed Delivered Energy.

A.13.b
Packet Pg. 475 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit P
• The Parties may by mutual written agreement modify this Protocol from time to time to ensure that the economic benefits and costs are consistent with the Parties’ expectations under this Agreement.

A.13.b
Packet Pg. 476 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit Q

EXHIBIT Q

FORM OF GUARANTY
This Guaranty (this “Guaranty”) is entered into as of [_____] (the “Effective Date”) by and between [_____], a [______] (“Guarantor”), and [ (together with its successors and permitted assigns, “Buyer”). ]
Recitals
A. Buyer and Golden Fields Solar IV, LLC, a Delaware limited liability company (“Seller”), entered into that certain Renewable Power Purchase Agreement (as amended, restated or otherwise modified from time to time, the “PPA”) dated as of [____], 20___.

B. Guarantor is entering into this Guaranty as Performance Security to secure Seller’s obligations under the PPA, as required by Section 8.8 of the PPA.

C. It is in the best interest of Guarantor to execute this Guaranty inasmuch as Guarantor will derive substantial direct and indirect benefits from the execution and delivery of the PPA.

D. Initially capitalized terms used but not defined herein have the meaning set forth in the PPA.

Agreement

1. Guaranty. For value received, Guarantor does hereby unconditionally, absolutely and irrevocably guarantee, as primary obligor and not as a surety, to Buyer the full, complete and prompt payment by Seller of any and all amounts and payment obligations now or hereafter owing from Seller to Buyer under the PPA, including, without limitation, compensation for penalties, the Termination Payment, indemnification payments or other damages, as and when required pursuant to the terms of the PPA (the “Guaranteed Amount”), provided, that Guarantor’s aggregate liability under or arising out of this Guaranty shall not exceed ________ Dollars ($___________). The Parties understand and agree that any payment by Guarantor or Seller of any portion of the Guaranteed Amount shall thereafter reduce Guarantor’s maximum aggregate liability hereunder on a dollar-for-dollar basis. This Guaranty is an irrevocable, absolute, unconditional and continuing guarantee of the full and punctual payment and performance, and not of collection, of the Guaranteed Amount and, except as otherwise expressly addressed herein, is in no way conditioned upon any requirement that Buyer first attempt to collect the payment of the Guaranteed Amount from Seller, any other guarantor of the Guaranteed Amount or any other Person or entity or resort to any other means of obtaining payment of the Guaranteed Amount. In the event Seller shall fail to duly, completely or punctually pay any Guaranteed Amount as required pursuant to the PPA, Guarantor shall promptly pay such amount as required herein.

2. Demand Notice. For avoidance of doubt, a payment shall be due for purposes of this Guaranty only when and if a payment is due and payable by Seller to Buyer under the terms and conditions of the Agreement. If Seller fails to pay any Guaranteed Amount as required pursuant to the PPA for five (5) Business Days following Seller’s receipt of Buyer’s written notice of such failure (the A.13.b
Packet Pg. 477 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit Q
“Demand Notice”), then Buyer may elect to exercise its rights under this Guaranty and may make a demand upon Guarantor (a “Payment Demand”) for such unpaid Guaranteed Amount. A Payment Demand shall be in writing and shall reasonably specify in what manner and what amount Seller has failed to pay and an explanation of why such payment is due and owing, with a specific statement that Buyer is requesting that Guarantor pay under this Guaranty. Guarantor shall, within five (5) Business Days following its receipt of the Payment Demand, pay the Guaranteed Amount to Buyer.

3. Scope and Duration of Guaranty. This Guaranty applies only to the Guaranteed Amount.

This Guaranty shall continue in full force and effect from the Effective Date until the earlier of the following: (x) all Guaranteed Amounts have been paid in full (whether directly or indirectly through set-off or netting of amounts owed by Buyer to Seller), (y) replacement Performance Security is provided in an amount and form required by the terms of the PPA, or (z) one hundred eighty (180) days after the early termination of the PPA or expiration of the PPA by its terms.

Further, this Guaranty (a) shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of this Guaranty, and (b) subject to the preceding sentence, shall be discharged only by complete performance of the undertakings herein. Without limiting the generality of the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged, or otherwise affected and this Guaranty shall not be invalidated or impaired or otherwise affected for the following reasons:
(i) the extension of time for the payment of any Guaranteed Amount, or (ii) any amendment, modification or other alteration of the PPA, or (iii) any indemnity agreement Seller may have from any party, or (iv) any insurance that may be available to cover any loss, except to the extent insurance proceeds are used to satisfy the Guaranteed Amount, or
(v) any voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, Seller or any of its assets, including but not limited to any rejection or other discharge of Seller’s obligations under the PPA imposed by any court, trustee or custodian or any similar official or imposed by any law, statue or regulation, in each such event in any such proceeding, or
(vi) the release, modification, waiver or failure to pursue or seek relief with respect to any other guaranty, pledge or security device whatsoever, or
(vii) any payment to Buyer by Seller that Buyer subsequently returns to Seller pursuant to court order in any bankruptcy or other debtor-relief proceeding, or (viii) those defenses based upon (A) the legal incapacity or lack of power or authority of any Person, including Seller and any representative of Seller to enter into the PPA or perform its A.13.b
Packet Pg. 478 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit Q
obligations thereunder, (B) lack of due execution, delivery, validity or enforceability, including of the PPA, or (C) Seller’s inability to pay any Guaranteed Amount or perform its obligations under the PPA, or
(ix) any other event or circumstance that may now or hereafter constitute a defense to payment of the Guaranteed Amount, including, without limitation, statute of frauds and accord and satisfaction;
provided that, subject to Guarantor’s payment of a Guaranteed Amount in accordance with Paragraph 2, Guarantor reserves the right to assert for itself in a subsequent proceeding any defenses, setoffs or counterclaims that Seller is or may be entitled to assert against Buyer (except for such defenses, setoffs or counterclaims that may be asserted by Seller with respect to the PPA, but that are expressly waived under any provision of this Guaranty).

4. Waivers by Guarantor. Guarantor hereby unconditionally waives as a condition precedent to the performance of its obligations hereunder, with the exception of the requirements in Paragraph 2, (a) notice of acceptance, presentment or protest with respect to the Guaranteed Amounts and this Guaranty, (b) notice of any action taken or omitted to be taken by Buyer in reliance hereon, (c) any requirement that Buyer exhaust any right, power or remedy or proceed against Seller under the PPA, and (d) any event, occurrence or other circumstance which might otherwise constitute a legal or equitable discharge of a surety. Without limiting the generality of the foregoing waiver of surety defenses, it is agreed that the occurrence of any one or more of the following shall not affect the liability of Guarantor hereunder:
(i) at any time or from time to time, without notice to Guarantor, the time for payment of any Guaranteed Amount shall be extended, or such performance or compliance shall be waived; (ii) the obligation to pay any Guaranteed Amount shall be modified, supplemented or amended in any respect in accordance with the terms of the PPA; (iii) subject to Paragraph 9, any (a) sale, transfer or consolidation of Seller into or with any other entity, (b) sale of substantial assets by, or restructuring of the corporate existence of, Seller or (c) change in ownership of any membership interests of, or other ownership interests in, Seller; or (iv) the failure by Buyer or any other Person to create, preserve, validate, perfect or protect any security interest granted to, or in favor of, Buyer or any Person.

5. Subrogation. Notwithstanding any payments that may be made hereunder by the Guarantor, Guarantor hereby agrees that until the earlier of payment in full of all Guaranteed Amounts or expiration of the Guaranty in accordance with Paragraph 3, it shall not be entitled to, nor shall it seek to, exercise any right or remedy arising by reason of its payment of any Guaranteed Amount under this Guaranty, whether by subrogation or otherwise, against Seller or seek contribution or reimbursement of such payments from Seller.

6. Representations and Warranties. Guarantor hereby represents and warrants that (a) it has all necessary and appropriate [limited liability company][corporate] powers and authority and the A.13.b
Packet Pg. 479 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit Q
legal right to execute and deliver, and perform its obligations under, this Guaranty, (b) this Guaranty constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting enforcement of creditors’ rights or general principles of equity, (c) the execution, delivery and performance of this Guaranty does not and will not contravene Guarantor’s organizational documents, any applicable Law or any contractual provisions binding on or affecting Guarantor, (d) there are no actions, suits or proceedings pending before any court, governmental agency or arbitrator, or, to the knowledge of the Guarantor, threatened, against or affecting Guarantor or any of its properties or revenues which may, in any one case or in the aggregate, adversely affect the ability of Guarantor to enter into or perform its obligations under this Guaranty, and (e) no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or Governmental Authority, and no consent of any other Person (including, any stockholder or creditor of the Guarantor), that has not heretofore been obtained is required in connection with the execution, delivery, performance, validity or enforceability of this Guaranty by Guarantor.

7. Notices. Notices under this Guaranty shall be deemed received if sent to the address specified below: (i) on the day received if served by overnight express delivery, and (ii) four Business Days after mailing if sent by certified, first class mail, return receipt requested. If transmitted by facsimile, such notice shall be deemed received when the confirmation of transmission thereof is received by the party giving the notice. Any party may change its address or facsimile to which notice is given hereunder by providing notice of the same in accordance with this Paragraph 7.

If delivered to Buyer, to it at
If delivered to Guarantor, to it at
[____]
Attn: [____] Fax: [____]
[____]
Attn: [____] Fax: [____]

8. Governing Law and Forum Selection. This Guaranty shall be governed by, and interpreted and construed in accordance with, the laws of the United States and the State of California, excluding choice of law rules. The Parties agree that any suit, action or other legal proceeding by or against any party (or its affiliates or designees) with respect to or arising out of this Guaranty shall be brought in the federal courts of the United States or the courts of the State of California sitting in the County of Riverside, California.

9. Miscellaneous. This Guaranty shall be binding upon Guarantor and its successors and assigns and shall inure to the benefit of Buyer and its successors and permitted assigns pursuant to the PPA. No provision of this Guaranty may be amended or waived except by a written instrument executed by Guarantor and Buyer. This Guaranty is not assignable by Guarantor without the prior A.13.b
Packet Pg. 480 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Exhibit Q
written consent of Buyer. No provision of this Guaranty confers, nor is any provision intended to confer, upon any third party (other than Buyer’s successors and permitted assigns) any benefit or right enforceable at the option of that third party. This Guaranty embodies the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings of the parties hereto, verbal or written, relating to the subject matter hereof. If any provision of this Guaranty is determined to be illegal or unenforceable (i) such provision shall be deemed restated in accordance with applicable Laws to reflect, as nearly as possible, the original intention of the parties hereto and (ii) such determination shall not affect any other provision of this Guaranty and all other provisions shall remain in full force and effect. This Guaranty may be executed in any number of separate counterparts, each of which when so executed shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Guaranty may be executed and delivered by electronic means with the same force and effect as if the same was a fully executed and delivered original manual counterpart. [Signature on next page]
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed and delivered by its duly authorized representative on the date first above written.

GUARANTOR:
[_______]
By:______________________________
Printed Name:__________________ Title:____________________________ BUYER:
[_______]
By:______________________________ Printed Name:__________________ Title:____________________________
By:______________________________
Printed Name:__________________ Title:____________________________ A.13.b
Packet Pg. 481 Attachment: WITHOUTSLD_Clearway-Small POU PPA (MVU) 4890-7055-6818 v.7 (6469 : APPROVAL OF POWER PURCHASE AGREEMENT Report to City Council
ID#6434 Page 1
TO: Mayor and City Council
FROM: Sean P. Kelleher, Community Development Director
AGENDA DATE: December 19, 2023
TITLE: GATEWAY HEIGHTS 108 UNIT CONDOMINIUM PROJECT

RECOMMENDED ACTION
Recommendations: That the City Council:

1. ADOPT Resolution 2023-XX:

1. CERTIFYING the Initial Study/Mitigated Negative Declaration prepared for the Proposed Project consisting of General Plan Amendment (PEN20-0095), Change of Zone (PEN20-0096), Tentative Tract Map 38459 (PEN22-0127) and Conditional Use Permit (PEN21-0066); and

2. ADOPTING the Mitigation Monitoring and Reporting Program prepared for the Mitigated Negative Declaration; and

2. ADOPT Resolution 2023-XX:

1. APPROVING General Plan Amendment (PEN20-0095), Tentative Tract Map 38459 (PEN22-0127) and Conditional Use Permit (PEN21-0066); and

3. INTRODUCE Ordinance No. [next in order]:

1. Approving a Change of Zone (PEN20-0096) and corresponding amendment to the City’s Zoning Atlas.

SUMMARY
Staff recommends approving the Proposed Project consisting of General Plan Amendment (PEN20-0095), Change of Zone (PEN20-0096), Tentative Tract Map 38459 (PEN22-0127), and Conditional Use Permit (PEN21-0066), for the development of a 108-unit townhouse condominium project and associated amenities and public F.1
Packet Pg. 482