Attachment B
Amendment No. 1 to the Renewable Power Purchase and
Sale Agreement with AM Wind Repower LLC
DocuSign Envelope ID: 9FA39AC6-7538-4CEF-BECB-F2F4615DBE83 AMENDMENT No. 1 TO
RENEWABLE POWER PURCHASE AGREEMENT
(AM WIND REPOWER LLC)
This is an amendment ("Amendment No. 1") to that certain Power Purchase Agreement ("PPA") made by and between the City of Victorville, a municipal corporation and Charter City organized and existing under the laws of the State of California, ("Buyer") and AM Wind Repower LLC a Delaware limited liability company, ("Seller") dated June 24, 2020. Capitalized terms used in this Amendment No.1, unless defined herein, are intended to have the definition ascribed to them in the PPA. This Amendment No. 1 is entered into as of July 18, 2023 (the "Effective Date").
RECITALS
WHEREAS, Industry Public Utilities, a public agency organized and existing under the laws of the State of California, and City of Corona a municipal corporation organized and existing under the laws of the State of California (collectively "Other Buyers") and Buyer jointly negotiated with Seller and entered into separate but substantially identical power purchase agreements with Seller the latest of which is dated June 24, 2020.
WHEREAS, Buyer and Other Buyers each executed a separate letter agreement with Seller on May 25, 2023 ("Termination Date Extension Letter"), in which Buyer and Other Buyers agreed to not pursue any right or remedy to terminate the PPA due to the Facility not having achieved Commercial Operation prior to or on the Guaranteed Commercial Operation Date and in exchange Seller agreed to pay Buyer and the Other Buyers Commercial Operation Delay Damages for each day after June 26, 2023 until August 31, 2023 that Commercial Operation is not achieved, with such damages to be paid through a netting of those amounts against the Monthly Cash Settlement Amounts owed by Buyer or Other Buyers to Seller pursuant to Section 8.1(b) of the PPA.
WHEREAS, Buyer and Seller desire to make certain changes to the PPA and to supersede the Termination Date Extension Letter.
NOW THEREFORE, in consideration of the mutual covenants, conditions and terms recited herein and made a material part hereof, the parties agree as follows:
1. Contract Price.
(a) Cover Sheet, Contract Price is hereby replaced by the following:
Contract Price:
Contract Year Contract Price ($/MWh)
$44.00 (flat) with no
escalation, subject to
1-25 reduction pursuant to Section
3.3(f) and Section 3.3(g).
(b) Article 8.1(b)(i) is hereby replaced by the following:
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 1 of 5
DocuSign Envelope ID: 9FA39AC6-7538-4CEF-BECB-F2F4615DBE83 "(i) An amount equal to the quantity of Energy delivered to the Delivery Point at the Contract Price minus the "Facility Energy Green Attribute Price." For example, for 3,000 MWh of Energy delivered to the Delivery Point during the month, the Contract Price minus the Facility Energy Green Attribute Price ($44.00-$13.00) equals $31.00 and the amount due would be $31.00 times 3,000 Mh or $93,000 for the Energy delivered that month."
(c) Exhibit C, Exhibit C is hereby replaced by the following:
CONTRACT PRICE
The Contract Price of the Product shall be:
Contract Year Contract Price (S/MWh)
$44.00 (flat) with no
escalation, subject to
1 - 25
reduction pursuant to Section
3.3(f) and Section 3.3(g).
2. Additional Extension of Commercial Operation Date.
(a) Article 1, Definitions, is hereby amended to add the following definitions:
"Additional COD Extension Delay Damages" means the amounts) that may be owed to Buyer from Seller pursuant to Section 2.3(c)(v) (A)-(B).
"Daily Incentive Payment" means the amounts) that may be owed to Seller from Buyer pursuant to Section 2.3(c)(v)(C).
(b) Section 2.3(c)(iii) is amended by deleting it in its entirety and replacing it to read as follows:
"(A) If Commercial Operation is not achieved by June 30, 2024 ("COD Termination Deadline"), as such date may be extended in accordance with Section 2.3(c)(iii)(B), Buyer may elect to terminate this Agreement, which termination shall be effective upon Notice to Seller.
(B) If the Interconnection Facilities are not expected to be complete and ready for the Facility to connect and sell Product at the Delivery Point by June 20, 2024 despite the exercise of diligent and commercially reasonable efforts by Seller, Seller may extend the COD Termination Deadline by up to 180 days by providing advance written notice to Buyer."
(c) Section 2.3, Facility Construction and Commercial Operation, is hereby amended to add a new subsection (c)(v) (Sections 2.3(a)-(c)(ii) and Section 2.3(c)(iv)) remain unchanged):
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 2 of 5
DocuSign Envelope ID: 9FA39AC6-7538-4CEF-BECB-F2F4615DBE83 "(v) Additional COD Extension Delay Damages and Daily Incentive Payment (A) Seller shall pay Buyer Additional COD Extension Delay Damages of $3,055.56 for each day after June 23, 2023 until (but excluding) August 31, 2023 that Commercial Operation is not achieved. Except as specified in Section (B) Seller shall pay Buyer Additional COD Extension Delay Damages of $3,055.56 for each day after March 22, 2024 until (but excluding) July 1, 2024 that Commercial Operation is not achieved. Except as specified in Section
2.3(c)(v)(D), Buyer shall be compensated for such Additional COD Extension Delay Damages through the netting of any such Commercial Operation Delay Damages amount owed against the Monthly Cash Settlement Amounts owed by Buyer to Seller pursuant to Section 8.1(b) of the PPA. For avoidance of doubt, no Additional COD Extension Delay Damages shall be due to Buyer for the period from August 30, 2023 until (but excluding) March 22, 2024. (C) Buyer shall pay Seller a Daily Incentive Payment of $3,055.56 for each day before December 31, 2023 that Commercial Operation is achieved. Seller shall be solely compensated for such Daily Incentive Payment through return of any Additional COD Extension Delay Damage paid to Buyer by Seller pursuant to this Section 2.3(c)(v).
(D) Buyer shall issue an invoice to Seller prior to the 10" calendar day of each month that specifies the outstanding Additional COD Extension Delay Damages owed to Buyer by Seller, as such amount may be offset by any Daily Incentive Payment amounts. If Commercial Operation is not achieved by June 30, 2024, regardless of whether such date has been extended pursuant to Section 2.3(c)(111), alle and payale to Buyar by Sole and Buyersy Dil no Es shalled to collecting such liquated damage through netting the amount owed against the Monthly (E) If the COD Termination Deadline is extended pursuant to Section 2.3(c)(iii)(B), Seller shall pay Buyer Additional COD Extension Delay Damages of $3,055.56 for each day after June 30, 2024 until the earlier to occur of (i) the date that Goadine. Bl Or sall sue achieved, to Silet pretende 10 calendar ayor ach month for such Additional COD Extension Delay Damages owed to Buy y Seller, and Seller shall pay Buyer for such Additional COD Extension Del Damages within thirty (30) days after receipt of such invoice.
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 3 of 5
DocuSign Envelope ID: 9FA39AC6-7538-4CEF-BECB-F2F4615DBE83
3. Sales from the Facility After Termination. Section 11.8, Limitations on Seller's and Seller's Affiliates' Ability to Make or Agree to Third Party Sales from the Facility after Specified Termination, subsection (a), is hereby replaced in its entirety with the following (the remaining subsections of Section
11.8 are unchanged):
"(a) If this Agreement is terminated as provided in Section 2.3(c)(iii) or 2.3(c)(v) or if Seller terminates this Agreement as provided in Section 10.4 (based on a Force Majeure Event as to which Seller is the claiming Party and the terminating Party), then, subject to Section 11.8(b), neither Seller nor Seller's Affiliates may sell, or enter into a contract to sell Energy, or Green Attributes generated by, associated with or attributable to a generating facility installed at the Site to a party other than Buyer for a period of two (2) years following the effective date of such termination (the "Restricted Period")."
4. Merger Clause. This Amendment constitutes the entire agreement between Buyer and Seller concerning the subject matter hereof, and supersedes all previous communications, representations or contracts, either written or oral, including the Termination Date Extension Letter, that purport to describe or embody the subject matter hereof. There are no oral understandings, terms, or conditions and neither Buyer nor Seller has relied upon any representation, express or implied, not contained in this Amendment.
5. Ratification of Agreement. The terms and conditions of the PPA, including all exhibits and attachments, are ratified in their entirety except to the extent inconsistent with the terms and provisions of this Amendment. In the event of such inconsistency, this Amendment shall control.
IN WITNESS WHEREOF, the parties have executed this Amendment No.1 effective as of the date written above.
(signatures follow on next page)
AMENDMENT No. I to AM WIND REPOWER PPA Page 4 of 5
DocuSign Envelope ID: 9FA39AC6-7538-4CEF-BECB-F2F4615DBE83 AM WIND REPOWER, LLC, Delaware limited liability company:
Name: Thomas Deedy
Title: Chief Operating Officer
City of Victorville, a California Municipal Corporation and Charter City -Ititions
Name: Debra Jones
Title: Mayor
ATTEST
Name: Jennifer Thompson
Title: City Clerk
APPROVAL AS TO FORM
- DocuSigned by:
By: Andre de Bortnowsky
- BB99CFEF322E42C...
Name: Andre de Bortnowsky
Title: City Attorney
CITY OF VICTORVILLE RISK MANAGEMENT
- DocuSigned by:
sandra bostick
-A1E4E3A9623641D...
Name: Sandra Bostrick
Title: Risk Manager
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 5 of 5
DocuSign
Certificate Of Completion
Envelope Id: 9FA39AC675384CEFBECBF2F4615DBE83 Status: Completed Subject: Complete with DocuSign: Alta Mesa Amendment 1 (VMUS) Partially Executed 7.25.23.pdf, Processing...
Source Envelope:
Document Pages: 7 Signatures: 2 Envelope Originator:
Certificate Pages: 5 Initials: 0 Kinda Salloum
AutoNav: Enabled [email protected]
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Status: Original Holder: Kinda Salloum Location: DocuSign 7/25/2023 8:47:18 AM [email protected]
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Andre de Bortnowsky - DocuSigned by. Sent: 7/25/2023 8:48:43 AM [email protected] Andre de Bortnowsky Viewed: 7/25/2023 10:39:56 AM Partner -BB99CFEF322E42C.. Signed: 7/25/2023 10:40:11 AM Security Level: Email, Account Authentication
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Sandra Bostick - DocuSigned by: Sent: 7/25/20238:48:43 AM [email protected] andra bostick Viewed: 7/25/20239:11:05 AM -A1E4E3A9623641D...
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Jennifer Thompson Sent: 7/25/2023 8:48:43 AM
COPIED Resent: 7/25/2023 8:56:20 AM
[email protected]
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Accepted: 7/25/2023 8:52:48 AM
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Certified Delivered Security Checked 7/25/2023 9:11:05 AM Signing Complete Security Checked 7/25/2023 9:12:30 AM
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