HomeMy WebLinkAboutClean Energy Alliance; 2025-09-09;Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
POWER PURCHASE AGREEMENT
COVERSHEET
Attachment A
~: Carlsbad Municipal Water District, a municipal water district and subsidiru.y district of
the City of Carlsbad
Buyer: Clean Energy Alliance, a California joint powers authority
Description of Facility: Maerkle Hydro Generating Facility located at 5300 Sunny Creek Road,
Carlsbad, California
Delivery Term: Five (5) Contract Years from the Delive1y Te1m Sta1t Date
Expected Energy:
Contract Year Expected Energy (MWh) -1
2
3
4
5
Guaranteed Capacity: 100 kW
Contract Capacity: 100 kW
-
Contract Price: The Contract Price of the Product shall be:
Product:
L ntractYear
1-5
------'~
[8] Facility Energy
420
420
420
420
420
[8] Green Attributes (Po1tfolio Content Catego1y 1) associated with Facility Energy
D Capacity Attributes
D Ancillru.y Services
1
Sept. 9, 2025 Item #3 Page 6 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS ........................................................................................................... 1
1.1 CONTRACT DEFINITIONS .................................................................................................. 1
1.2 RULES OF INTERPRETATION ............................................................................................. 7
ARTICLE 2 TERM; CONDITIONS PRECED ENT ...................................................................... 8
2.1 CONTRACT TERM ............................................................................................................. 8
2.2 CONDITION PRECEDENT ................................................................................................... 9
ARTICLE 3 PURCHASE AND SALE .......................................................................................... 9
3 .1 PuRCHASE AND SALE OF PRODUCT .................................................................................. 9
3.2 SALE OF GREEN ATTRIBUTES ........................................................................................... 9
3.3 RESERVED ........................................................................................................................ 9
3.4 FUTuRE ENVIRONMENTAL ATTRIBUTES .......................................................................... 9
3.5 RESERVED ...................................................................................................................... 10
3.6 RESERVED ...................................................................................................................... 10
3.7 RESERVED ...................................................................................................................... 10
3.8 CEC CERTIFICATION AND VERIFICATION ...................................................................... 10
3.9 RESERVED ...................................................................................................................... 10
3.10 NON-MODIFIABLE STANDARD TERMS AND CONDITIONS ............................................... 10
ARTICLE 4 OBLIGATIONS AND DELIVERIES ..................................................................... 11
4.1 DELIVERY ...................................................................................................................... 11
4.2 TITLE AND RISK OF Loss ............................................................................................... 11
4.3 RESERVED ...................................................................................................................... 12
4.4 RESERVED ...................................................................................................................... 12
4.5 RESERVED ...................................................................................................................... 12
4.6 REDUCTION IN DELIVERY OBLIGATION ......................................................................... 12
4. 7 RESERVED ...................................................................................................................... 12
4.8 WREGIS ....................................................................................................................... 12
ARTICLE 5 TAXES ..................................................................................................................... 13
5.1 ALLOCATION OF TAXES AND CHARGES ......................................................................... 13
5.2 COOPERATION ................................................................................................................ 14
ARTICLE 6 MAINTENANCE OF THE FACILITY .................................................................. 14
6.1 MAINTENANCE OF THE FACILITY ................................................................................... 14
6.2 MAINTENANCE OF HEALTH AND SAFETY ....................................................................... 14
6.3 RESERVED ...................................................................................................................... 14
ARTICLE 7 METERING ............................................................................................................. 14
7.1 METERING ..................................................................................................................... 14
7.2 METER VERIFICATION ................................................................................................... 14
ARTICLE 8 INVOICING AND PAYMENT ; CREDIT .............................................................. 15
Sept. 9, 2025 Item #3 Page 7 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
8.1 BILLING STATEMENT ..................................................................................................... 15
8.2 PAYMENT ....................................................................................................................... 15
8.3 BOOKS AND RECORDS .................................................................................................... 15
8.4 PAYMENT ADJUSTMENTS; BILLING ERRORS .................................................................. 15
8.5 BILLING D ISPUTES ......................................................................................................... 15
ARTICLE 9 NOTICES ................................................................................................................. 16
9.1 ADDRESSES FOR THE DELIVERY OF NOTICES ................................................................. 16
9.2 ACCEPTABLE MEANS OF DELIVERING NOTICE .............................................................. 16
ARTICLE 10 FORCE MAJEURE ............................................................................................... 16
10.1 DEFINITION .................................................................................................................... 16
10.2 No LIABILITY IF A FORCE MAJEURE EVENT OCCURS .................................................... 17
10.3 NOTICE .......................................................................................................................... 17
ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ....................................................... 18
11.1 EVENTSOFDEFAULT ..................................................................................................... 18
11.2 REMEDIES; DECLARATION OF EARLY TERMINATION DATE ........................................... 18
11.3 TERMINATION PAYMENT ............................................................................................... 19
11.4 NOTICE OF PAYMENT OF TERMINATION PAYMENT ........................................................ 19
11.5 D ISPUTES WITH RESPECT TO TERMINATION PAYMENT .................................................. 20
11.6 RIGHTS AND REMEDIES ARE CUMULATIVE ................................................................... 20
ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES ........... 20
12.1 No CONSEQUENTIAL DAMAGES ..................................................................................... 20
12.2 WAIVER AND EXCLUSION OF OTHER DAMAGES ............................................................ 20
ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY ............................ 21
13.1 SELLER'S REPRESENTATIONS AND WARRANTIES ........................................................... 21
13.2 BUYER'S REPRESENTATIONS AND WARRANTIES ........................................................... 22
13.3 GENERAL COVENANTS ................................................................................................... 23
ARTICLE 14 ASSIGNMENT ...................................................................................................... 23
14.1 GENERAL PROHIBITION ON ASSIGNMENTS ..................................................................... 23
ARTICLE 15 DISPUTE RESOLUTION ..................................................................................... 23
15.1 VENUE ........................................................................................................................... 23
15.2 D ISPUTE RESOLUTION .................................................................................................... 23
ARTICLE 16 RESERVED ........................................................................................................... 24
ARTICLE 17 RESERVED ........................................................................................................... 24
ARTICLE 18 CONFIDENTIAL INFORMATION ..................................................................... 24
18.1 DEFINITION OF CONFIDENTIAL INFORMATION ............................................................... 24
18.2 DUTY TO MAINTAIN CONFIDENTIALITY ......................................................................... 24
18.3 IRREPARABLE INJURY; REMEDIES .................................................................................. 25
ARTICLE 19 MISCELLANEOUS .............................................................................................. 25
11
Sept. 9, 2025 Item #3 Page 8 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
19.1 ENTIRE AGREEMENT; INTEGRATION; EXHIBITS ............................................................. 25
19.2 AMENDMENTS ................................................................................................................ 25
19.3 No WAIVER ................................................................................................................... 25
19.4 No AGENCY, PARTNERSHIP, JoINTVENTUREORLEASE ................................................ 25
19.5 SEVERABILITY ............................................................................................................... 25
19.6 MOBILE-SIERRA ............................................................................................................. 26
19.7 COUNTERPARTS; ELECTRONIC SIGNATURES .................................................................. 26
19.8 BINDING EFFECT ............................................................................................................ 26
19.9 No RECOURSE TO MEMBERS OF BUYER ......................................................................... 26
19.10 FORWARD CONTRACT ................................................................................................ 26
19.11 FURTHERASSURANCES .............................................................................................. 26
lll
Sept. 9, 2025 Item #3 Page 9 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
Exhibits:
Exhibit A
Exhibit B
Exhibit C
ExhibitD
Exhibit E
Exhibit F-1
ExhibitF-2
ExhibitG
ExhibitH
Sept. 9, 2025
Facility Description
Reserved
Compensation
Reserved
Reserved
Reserved
Reserved
Notices
Metering Diagram
iv
Item #3 Page 10 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
POWER PURCHASE AGREEMENT
This Power Purchase Agreement ("Agreement") is entered into as of September 9, 2025
(the "Effective Date"), between Buyer and Seller. Buyer and Seller are sometimes referred to
herein individually as a "Party" and jointly as the "Parties." All capitalized te1ms used in this
Agreement are used with the meanings ascribed to them in Alticle 1 to this Agreement.
RECITALS
WHEREAS, Seller owns and operates the Facility; and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, on the te1ms and
conditions set fo1t h in this Agreement, the Product.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and for other good and valuable consideration, the sufficiency and adequacy of which
are hereby acknowledged, the Paities agree to the following:
ARTICLE 1
DEFINITIONS
1.1 Contract Definitions. The following te1ms, when used herein with initial
capitalization, shall have the meanings set fo1th below:
"~" means alternating cmTent.
"Agreement" has the meaning set fo1t h in the Preamble and includes any Exhibits,
schedules and any written supplements hereto, and the Cover Sheet.
"Ancillary Services" means all ancilla1y services, products and other attributes, if any,
associated with the Contract Capacity of the Facility.
"Available Generating Capacity" means the capacity of the Facility, expressed in whole
kWs, that is mechanically available to generate Energy.
"Bankrupt" means with respect to any entity, such entity that (a) files a petition or
othe1w ise commences, authorizes or acquiesces in the commencement of a proceeding or cause of
action under any bankrnptcy, insolvency, reorganization or similai· Law, (b) has any such petition
filed or commenced against it which remains unstayed or undisrnissed for a period of ninety (90)
days, (c) makes an assignment or any general a1rnngement for the benefit of creditors, (d)
othe1w ise becomes bankrupt or insolvent (however evidenced), ( e) has a liquidator, administrator,
receiver, trnstee, conservator or similai· official appointed with respect to it or any substantial
po1t ion of its prope1ty or assets, or (f) is generally unable to pay its debts as they fall due.
"Business Day" means any day except a Saturday, Sunday, or a Federal Rese1ve Bank
holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. Pacific Standard
Time (PST) for the Paity sending a Notice, or payment, or perfo1ming a specified action.
1
Sept. 9, 2025 Item #3 Page 11 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
"Buyer" means Clean Energy Alliance, a California joint powers authority.
"Buyer's WREGIS Account" has the meaning set forth in Section 4.8(a).
"CAISO" means the California fudependent System Operator Corporation, or any
successor entity perfo1ming similar functions.
"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) as codified in, inter alia, California Public
Utilities Code Sections 399.11 through 399.31 and California Public Resources Code Sections
25740 through 2575 1, as such provisions are amended or supplemented from time to time.
"CEC" means the California Energy Commission, or any successor agency perfo1ming
similar statuto1y functions.
"CEC Certification and Verification" means that the CEC has certified that the Facility
is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio
Standard and that all Facility Energy delivered to the Delive1y Point qualifies as generation from
an Eligible Renewable Energy Resource.
"Confidential Information" has the meaning set forth in Section 18.1.
"Contract Capacity" means the amount of generating capacity of the Facility, as measured
in kW at the Delive1y Point, set forth on the Cover Sheet.
"Contract Price" has the meaning set forth on the Cover Sheet.
"Contract Term" has the meaning set forth in Section 2.l (a).
"Contract Year" means a period of twelve (12) consecutive months, with the first Contract
Year beginning on the Delive1y T e1m Start Date and the last Contract Year ending at midnight at
the end of the day prior to the anniversa1y of the Delive1y Te1m Sta1t Date.
"~" means, with respect to the Non-Defaulting Pa1ty, brokerage fees, commissions and
other similar third-pa1ty transaction costs and expenses reasonably incuned by such Pa1ty either
in te1minating any atTangement pursuant to which it has hedged its obligations or entering into
new airnngements which replace the Agreement; and all reasonable attorneys' fees and expenses
incuned by the Non-Defaulting Party in connection with te1minating the Agreement.
"Cover Sheet" means the cover sheet to this Agreement, which is incorporated into this
Agreement.
"CPUC" means the California Public Utilities Commission or any successor agency
perfo1ming similar statuto1y fonctions.
"Defaulting Party" has the meaning set fo1th in Section 11.1 (a).
2
Sept. 9, 2025 Item #3 Page 12 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
"Deficient Month" has the meaning set forth in Section 4.8(d).
"Delivery Term" has the meaning set fo1ih on the Cover Sheet.
"Facility Energy" the Energy generated by the Facility and delivered to the Delive1y Point,
as measured by the Facility Meter.
"Delivery Point" has the meaning set fo1ih in Exhibit A.
"Delivery Term" shall mean the period of Contract Years set fo1ih on the Cover Sheet
beginning on the Delive1y Te1m Staii Date set forth on the Cover Sheet, unless te1minated earlier
in accordance with the te1ms and conditions of this Agreement.
"Delivery Term Start Date" shall mean the date that Buyer provides Notice to Seller that
Buyer 's agent has received all necessa1y approvals and authorizations to act as the Qualified
Repo1i ing Entity for the pmpose of renewable generation data to WREGIS for the Facility.
"Disclosing Party" has the meaning set fo1ih in Section 18.2.
"Early Termination Date" has the meaning set fo1i h in Section l 1.2(a).
"Effective Date" has the meaning set fo1ih on the Preamble.
"Eligible Renewable Energy Resource" has the meaning set fo1ih in California Public
Utilities Code Section 399.1 2(e) and California Public Resources Code Section 2574l(a), as either
code provision is amended or supplemented from time to time.
"Event of Default" has the meaning set fo1ih in Section 11 .1.
"Expected Energy" means the quantity of Facility Energy attributable to the Contract
Capacity that Seller expects to be able to deliver from the Facility during each Contract Year in
the quantity specified on the Cover Sheet.
"Facility" means the hydroelectric generating facility described on the Cover Sheet and in
Exhibit A, located at the Site and including mechanical equipment and associated facilities and
equipment required to deliver Energy to the Delive1y Point.
"Facility Energy" means the energy that is delivered to the Delive1y Point and measured
by the Facility Meter in accordance with Prndent Operating Practices.
"Facility Meter" means the revenue quality meter dedicated exclusively to the Facility
that will measure all electric energy generated by the Facility and delivered to the Delive1y Point.
"FERC" means the Federal Energy Regulato1y Commission or any successor government
agency.
"Force Maieure Event" has the meaning set fo1i h in Section IO.I.
3
Sept. 9, 2025 Item #3 Page 13 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
"Forced Facility Outage" means an unexpected failure of one or more components of the
Facility that prevents Seller from generating Energy or making Facility Energy available at the
Delive1y Point and that is not the result of a Force Majeure Event.
"Future Environmental Attributes" shall mean any and all emissions, air quality or other
environmental attributes other than Green Attributes or Renewable Energy fucentives under the
RPS regulations or under any and all other international, federal, regional, state or other law, rnle,
regulation, bylaw, treaty or other intergovernmental compact, decision, administrative decision,
program (including any voluntaiy compliance or membership program), competitive market or
business method (including all credits, ce1iificates, benefits, and emission measurements,
reductions, offsets and allowances related thereto) that ai·e attributable, now, or in the future, to the
generation of electrical energy by the Facility and its displacement of conventional energy
generation. Future Environmental Attributes do not include (i) any energy, capacity, reliability or
other power attributes from the Facility, or (ii) investment tax credits or production tax credits
associated with the construction or operation of the Facility, or other financial incentives in the
f01m of credits, reductions, or allowances associated with the Facility that are applicable to a state
or federal income taxation obligation.
"~" means the economic benefit, if any (exclusive of Costs), resulting from the
te1mination of this Agreement for the remaining Contr·act Te1m.
"Governmental Authority" means any federal, state, provincial, local or municipal
government, any political subdivision thereof or any other governmental, congressional or
parliamenta1y, regulato1y, or judicial instrumentality, authority, body, agency, depaiiment, bureau,
or entity with authority to bind a Paiiy at law; provided, however, that "Governmental Authority"
shall not in any event include any Paiiy.
"Green Attributes" means any and all credits, benefits, emissions reductions, offsets, and
allowances, howsoever entitled, atti·ibutable to the generation from the Facility and its
displacement of conventional energy generation. Green Atti·ibutes include but are not limited to
Renewable Energy Credits, as well as: (1) any avoided emissions of pollutants to the air, soil or
water such as sulfur oxides (SOx), nitr·ogen oxides (NOx), cai·bon monoxide (CO) and other
pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitr·ous oxide,
hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs)
that have been dete1mined by the United Nations futergovernmental Panel on Climate Change, or
othe1wise by law, to contr·ibute to the actual or potential threat of altering the Earth's climate by
tr·apping heat in the atmosphere; (3) the repo1iing rights to these avoided emissions, such as Green
Tag Repo1iing Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents
the Green Atti·ibutes associated with one (1) MWh of Energy. Green Atti·ibutes do not include (i)
any energy, capacity, reliability or other power attr·ibutes from the Facility, (ii) production tax
credits associated with the construction or operation of the Facility and other financial incentives
in the f01m 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 ce1iain fuels, or local subsidies received by the generator for the
destruction of paiiiculai· 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 or air quality pe1mits.
4
Sept. 9, 2025 Item #3 Page 14 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
"Green Tag Reporting Rights" means the right of a purchaser of renewable energy to
repo1t ownership of accumulated "green tags" in compliance with and to the extent pe1mitted by
applicable Law and include, without limitation, rights under Section l 605(b) of the Energy Policy
Act of 1992, and any present or future federal, state or local ceitification program or emissions
trading program, including pursuant to the WREGIS Operating Rules.
"Guaranteed Capacity" has the meaning set fo1t h on the Cover Sheet.
"Interest Rate" has the meaning set fo1th in Section 8.2.
"Joint Powers Act" means the Joint Exercise of Powers Act of the State of California
(Government Code Section 6500 et seq.).
"Joint Powers Agreement" means that ce1tain Joint Powers Agreement dated November
4, 2019, as amended and restated from time to time, under which Buyer is organized as a Joint
Powers Authority in accordance with the Joint Powers Act.
"kW" means kilowatts in alternating cmTent, unless expressly stated in te1ms of direct
CUITent.
"Law" means any applicable law, statute, rnle, regulation, decision, writ, order, decree or
judgment, pe1mit or any interpretation thereof, promulgated or issued by a Governmental
Authority.
"Losses" means the economic loss, if any ( exclusive of Costs), resulting from te1mination
of this Agreement for the remaining Contract Te1m.
"MW" means megawatts in alternating cunent, unless expressly stated in te1ms of direct
CUITent.
".MlY!!," means megawatt-hour measured in alternating cmTent, unless expressly stated in
te1ms of direct cmTent.
"Non-Defaulting Party" has the meaning set fo1th in Section 11 .2.
"Notice" shall, unless othe1w ise specified in the Agreement, mean written communications
by a Party to be delivered by hand delive1y, United States mail, overnight courier service, or email
with acknowledged receipt or copy by another acceptable delive1y method.
"Participating Transmission Owner" or "PTO" means an entity that owns, operates and
maintains transmission or distribution lines and associated fa cilities or has entitlements to use
ce1tain transmission or distribution lines and associated facilities where the Facility is
interconnected. For purposes of this Agreement, the Pait icipating Transmission Owner is set fo1th
in Exhibit A.
"Party" or "Parties" has the meaning set fo1t h in the Preamble.
5
Sept. 9, 2025 Item #3 Page 15 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
"Person" means any individual, sole proprietorship, corporation, limited liability
company, limited or general partnership, joint venture, association, joint-stock company, trust,
inco1porated organization, institution, public benefit c01p oration, uninco1porated organization,
government entity or other entity.
"Portfolio Content Category" means PCCI, PCC2 or PCC3, as applicable.
"Portfolio Content Category 1" or "PCCl" means any Renewable Energy Credit
associated with the generation of electr-icity from an Eligible Renewable Energy Resource
consisting of the po1tfolio content set fo1th in California Public Utilities Code
Section 399.1 6(b)(l), as may be amended from time to time or as fmt her defined or supplemented
by Law.
"Product" has the meaning set fo1t h on the Cover Sheet.
"Prudent Operating Practice" means (a) the applicable practices, methods and acts
required by or consistent with applicable Laws and reliability criteria, and othe1w ise engaged in
or approved by a significant po1tion of the electr·ic utility and independent power producer industry
during the relevant time period with respect to hydroelecb.'ic generating facilities in the Western
United States, or (b) any of the practices, methods and acts which, in the exercise of reasonable
judgement in light of the facts known at the time the decision was made, could have been expected
to accomplish the desired result at a reasonable cost consistent with good business practices,
reliability, safety and expedition. Prndent 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 generating facilities in the
Western United States. Prndent Operating Practice includes compliance with applicable Laws,
applicable reliability criteria, and the criteria, rnles and standards promulgated in the National
Elecb.'ic Safety Code and the National Electrical Code, as they may be amended or superseded
from time to time, including the criteria, rnles and standards of any successor organizations.
"Qualified Reporting Entity" has the meaning set fo1th in the WREGIS Operating Rules.
"Recurring Certificate Transfers" has the meaning set fo1th in Section 4.8(a).
"Renewable Energy Credit" has the meaning set fo1th in California Public Utilities Code
Section 399.12(h), as may be amended from time to time or as fmther 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 elecb.'icity from the
Facility (including credits under Sections 38, 45, 46 and 48 of the Internal Revenue Code of 1986,
as amended); (b) any federal, state, or local grants, subsidies or other like benefits relating in any
way to the Facility; and (c) any other f01m of incentive relating in any way to the Facility that is
not a Green Attribute or a Future Environmental Atb.'ibute.
"~" has the meaning set fo1th on the Cover Sheet.
"Seller's WREGIS Account" has the meaning set fo1th in Section 4.8(a).
6
Sept. 9, 2025 Item #3 Page 16 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
"Settlement Amount" means the Non-Defaulting Paiiy's Costs. The Settlement Amount
does not include Gains, Losses, consequential, incidental, punitive, exempla1y or indirect or
business inte1n1ption damages.
"~" means the real prope1iy on which the Facility is located, as further described in
Exhibit A.
"System Emergency" means any condition that requires, as dete1mined and declai·ed by
CAISO or the PTO, automatic or immediate action to cmiail operation of the Facility.
"Tax" or "Taxes" means all U.S. federal, state and local and any foreign taxes, levies,
assessments, surcharges, duties and other fees and chai·ges of any nature imposed by a
Governmental Authority, whether cmTently in effect or adopted during the Contract Te1m,
including ad valorem, excise, franchise, gross receipts, import/export, license, prope1iy, sales and
use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding,
deficiency, penalty, additions, interest or assessment related thereto.
"Terminated Transaction" has the meaning set fo1ih in Section l l .2(a).
"Termination Payment" has the meaning set fo1ih in Section 11 .3.
"WREGIS" means the Western Renewable Energy Generation Info1mation System or any
successor renewable energy tracking program.
"WREGIS Certificate Deficit" has the meaning set fo1ih in Section 4.8(d).
"WREGIS Certificates" has the same meaning as "Ce1iificate" as defined by WREGIS
in the WREGIS Operating Rules and ai·e designated as eligible for complying with the California
Renewables Portfolio Standard.
"WREGIS Operating Rules" means those operating rnles and requirements adopted by
WREGIS as of October 2022, as subsequently amended, supplemented or replaced (in whole or in
paii) from time to time.
1.2 Rules of Interpretation. In this Agreement, except as expressly stated othe1w ise
or unless the context othe1w ise requires:
(a) headings and the rendering of text in bold and italics are for convenience
and reference pmposes only and do not affect the meaning or inte1pretation of this Agreement;
(b) words impo1iing the singulai· 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 impo1i
shall refer to this Agreement as a whole and not to any paiiicular provision of this Agreement;
7
Sept. 9, 2025 Item #3 Page 17 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
(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
othe1wise specified;
( e) a reference to a document or agreement, including this Agreement means
such document, agreement or this Agreement including any amendment or supplement to, or
replacement, novation or modification of this Agreement, but disregarding any amendment,
supplement, replacement, novation or modification made in breach of such document, agreement
or this Agreement;
(f) a reference to a Person includes that Person 's successors and pe1mitted
assigns;
(g) the te1m "including" means "including without limitation" and any list of
examples following such te1m 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 statuto1y 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, instrnments, orders and regulations for the time
being made thereunder or deriving validity therefrom unless the context othe1wise requires;
(i) in the event of a conflict, a mathematical fo1mula or other precise
description of a concept or a te1m shall prevail over words providing a more general description
of a concept or a te1m;
(j) references to any amount of money shall mean a reference to the amount in
United States Dollars;
(k) words, phrases or expressions not othe1w ise defined herein that (i) have a
generally accepted meaning in Prndent Operating Practice shall have such meaning in this
Agreement or (ii) do not have well known and generally accepted meaning in Prndent Operating
Practice but that have well known and generally accepted technical or tr·ade meanings, shall have
such recognized meanings; and
(1) each Party acknowledges that it was represented by cmmsel in connection
with this Agreement and that it or its cmmsel reviewed this Agreement and that any rnle of
construction to the effect that ambiguities are to be resolved against the drafting party shall not be
employed in the inte1pretation of this Agreement.
ARTICLE2
TERM; CONDITIONS PRECEDENT
2.1 Contract Term.
(a) The te1m of this Agreement shall commence on the Effective Date and shall
remain in full force and effect until the conclusion of the Delive1y Te1m, subject to any early
te1mination provisions set fo1th herein ("Contract Term"); provided, that Buyer's obligations to
8
Sept. 9, 2025 Item #3 Page 18 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
pay for or accept any Product are subject to Seller 's completion of the condition precedent pursuant
to Section 2.2. At least ninety (90) days prior to the expiration of the Delive1y Te1m either Party
may request that the other Patiy enter into good faith negotiations to extend this Agreement and
reach agreement on price and other te1ms for any extension period. If the Pa1ties fail to reach
agreement on the extension period te1ms, then this Agreement shall te1minate at the conclusion of
the Delive1y Te1m.
(b) Applicable provisions of this Agreement shall continue in effect after
te1mination, including early te1mination, to the extent necessaty to enforce or complete the duties,
obligations or responsibilities of the Patties arising prior to te1mination. The confidentiality
obligations of the Patties under Alticle 18 and all indemnity and audit rights shall remain in full
force and effect for four (4) yeat·s following the te1mination of this Agreement.
(c) Either Paiiy may te1minate this Agreement upon ninety (90) days' prior
Notice to the other Patiy; provided, however, that such te1mination shall not affect or excuse the
perfo1mance of either Patiy of their respective obligations arising prior to such te1mination and,
provided fmther, that this Agreement and any other documents executed and delivered hereunder
shall remain in effect until both Patties have fulfilled all of their obligations arising prior to such
te1mination. Upon any such te1mination, neither Patiy shall have any liability to the other Party,
save and except to the extent arising from obligations at·ising prior to such te1mination and those
obligations specified in Section 2.1 (b ).
2.2 Condition Precedent. Buyer's obligations to pay for or accept any Product shall
not commence until Buyer's agent has been authorized to act as the Qualified Repo1t ing Entity for
the Facility for the purpose of transfening RECs to Buyer under this Agreement.
ARTICLE3
PURCHASE AND SALE
3.1 Purchase and Sale of Product. Subject to the te1ms and conditions of this
Agreement, during the Delive1y T e1m, Buyer will purchase and receive all the Product produced
by or associated with the Facility at the Contract Price and in accordance with Exhibit C, and Seller
shall supply and deliver to Buyer all the Product produced by or associated with the Facility (net
of applicable losses). At its sole discretion, Buyer may during the Delive1y Te1m re-sell or use for
another pmpose all or a po1t ion of the Product, provided that no such re-sale or use shall relieve
Buyer of any obligations hereunder. Buyer has no obligation to purchase from Seller any Product
for which the associated Facility Energy is not or cannot be delivered to the Delive1y Point for any
reason.
3.2 Sale of Green Attributes. During the Delive1y Te1m, Seller shall sell and deliver
to Buyer, and Buyer shall purchase and receive from Seller, all Green Attributes attributable to the
Facility Energy generated by the Facility.
3.3
3.4
Sept. 9, 2025
Reserved.
Future Environmental Attributes.
9
Item #3 Page 19 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
(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 3.4(a), and Section
3.3(b ), in such event, Buyer shall bear all costs and risks associated with the transfer, qualification,
verification, registration and ongoing compliance for such Future Environmental Attributes, but
there shall be no increase in the Contract Price. Upon Seller's receipt of Notice from Buyer of
Buyer's intent to claim such Future Environmental Attributes, the Parties shall detennine the
necessa1y actions and additional costs associated with such Future Environmental Attributes.
Seller shall have no obligation to alter the Facility or the operation of the Facility unless the Patties
have agreed on all necessa1y tenns and conditions relating to such alteration or change in operation
and Buyer has agreed to reimburse Seller for all costs, losses, and liabilities associated with such
alteration or change in operation.
(b) If Buyer elects to receive Future Environmental Attributes pursuant to
Section 3.4(a), the Patties agree to negotiate in good faith with respect to the development of
fmther agreements and documentation necessaiy to effectuate the transfer of such Future
Environmental Attributes, including agreement with respect to (i) appropriate transfer, delive1y
and risk of loss mechanisins, and (ii) appropriate allocation of any additional costs to Buyer, as set
fo1th above; provided, that the Pa1ties acknowledge and agree that such te1ms are not intended to
alter the other material te1ms of this Agreement.
3.5
3.6
3.7
Reserved.
Reserved.
Reserved.
3.8 CEC Certification and Verification. Seller shall take all necessaty steps
including, but not limited to, making or suppo1ting timely filings with the CEC to maintain CEC
Ce1tification and Verification for the Facility throughout the Delive1y Te1m, including compliance
with all applicable requirements for certified facilities set folih in the cmTent version of the RPS
Eligibility Guidebook ( or its successor).
3.9 Reserved.
3.10 Non-Modifiable Standard Terms and Conditions.
(a) Eligibility: Seller, and, if applicable, its successors, represents and wan ants
that throughout the Delive1y Te1m of this Agreement that: (i) the Project qualifies and is ce1tified
by the CEC as an Eligible Renewable Energy Resource ("ERR") as such te1m is defined in Public
Utilities Code Section 399.12 or Section 399.16; and (ii) the Project's output delivered to Buyer
qualifies under the requirements of the California Renewables Po1tfolio Standai·d. To the extent a
Change in Law occurs after execution of this Agreement that causes this representation and
watrnnty to be materially false or inisleading, it shall not be an Event of Default if Seller has used
commercially reasonable effo1ts to comply with such change in law. [STC 6].
Sept. 9, 2025 Item #3 Page 20 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
(b) Transfer of Renewable Energy Credits : Seller and, if applicable, its
successors, represents and wanants that throughout the Delive1y Te1m of this Agreement the
Renewable Energy Credits transfened to Buyer confo1m to the definition and attributes required
for compliance with the California Renewables Po1tfolio Standard, as set fo1th in California Public
Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the
California Public Utilities Commission or by subsequent legislation. To the extent a change in law
occurs after execution of this Agreement that causes this representation and wananty to be
materially false or misleading, it shall not be an Event of Default if Seller has used commercially
reasonable effo1ts to comply with such change in law. [STC REC-1].
(c) Tracking of RECs in WREGIS: Seller waITants that all necessa1y steps to
allow the Renewable Energy Credits transferred to Buyer to be tracked in the Western Renewable
Energy Generation Info1mation System will be taken prior to the first delive1y under the contract.
[STC REC-2].
( d) Applicable Law: Governing Law. This Agreement and the rights and duties
of the Pa1ties hereunder shall be governed by and construed, enforced and peifo1med 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 Paity waives its respective right to any jmy trial with respect
to any litigation arising under or in connection with this Agreement. [STC 17].
4.1 Delivery.
ARTICLE4
OBLIGATIONS AND DELIVERIES
(a) Energy. Subject to the provisions of this Agreement, commencing on the
Delive1y T e1m Sta1t Date and through the end of the Conti·act Te1m, Seller shall supply and deliver
the Product to Buyer at the Delive1y Point, and Buyer shall take delive1y of the Product at the
Delive1y Point in accordance with the te1ms of this Agreement. Seller will be responsible for
paying or satisfying when due any costs or charges imposed in connection with the delive1y of
Facility Energy to the Delive1y Point.
(b) Green Attributes. All Green Atti·ibutes associated with the Facility Energy
during the Delive1y Te1m are exclusively dedicated to and will be conveyed to Buyer. Seller
represents and wanants that Seller holds the rights to all Green Attributes associated with the
Facility Energy, and Seller agrees to convey and hereby conveys all such Green Atti·ibutes to Buyer
as included in the delive1y of the Product from the Facility.
4.2 Title and Risk of Loss.
(a) Facility Energy. Title to and risk ofloss related to the Facility Energy, shall
pass and transfer from Seller to Buyer at the Delive1y Point. Seller waiTants that all Product
delivered to Buyer is free and cleai· of all liens, security interests, claims and encumbrances of any
kind.
11
Sept. 9, 2025 Item #3 Page 21 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
(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
4.4
4.5
4.6
Reserved.
Reserved.
Reserved.
Reduction in Delivery Obligation.
(a) Forced Facility Outage. Seller shall be pennitted to stop or reduce
deliveries of Product during any Forced Facility Outage.
(b) Water Operations. Seller shall be pe1mitted to stop or reduce deliveries of
Product based on water system needs. Seller has represented and disclosed to Buyer that the project
generates the Product only when sufficient water resources are available to operate the Facility,
and that sufficient water resources are frequently not available or are available in reduced
quantities such that maximum Facility Energy is not regularly achieved. Seller makes no warranty
or guarantee as to the frequency or quantity of Product, other than the maximums and capacities
as stated herein.
(c) System Emergencies and other Curtailment Events. Seller shall be
pe1mitted to stop or reduce deliveries of Product during any period of System Emergency, or upon
notice of a curtailment order pursuant to the applicable tariff.
( d) Force Majeure Event. Seller shall be pe1mitted to stop or reduce deliveries
of Product during any Force Majeure Event.
( e) Buyer Event of Default. Seller shall be pe1mitted to stop or reduce
deliveries of Product during any period of Buyer Event of Default.
(f) Health and Safety. Seller shall be pe1mitted to stop or reduce deliveries of
Product as necessaiy to maintain health and safety pursuant to Section 6.2.
4.7
4.8
Reserved.
WREGIS. Seller shall take all actions and execute all documents or instmments
necessa1y to ensure that (a) all WREGIS Certificates associated with all Renewable Energy Credits
conesponding to all Facility Energy ai·e issued and tracked for pmposes of satisfying the
requirements of the California Renewables Po1tfolio Standai·d and transfened in a timely manner
to Buyer for Buyer's sole benefit, and (b) Buyer's agent is the Qualified Repo1ting Entity for the
Facility during the Te1m. Seller shall comply with all Laws, including the WREGIS Operating
Rules, regai·ding the ce1tification and transfer of such WREGIS Ceitificates to Buyer and Buyer
shall be given sole title to all such WREGIS Ce1tificates. In addition:
12
Sept. 9, 2025 Item #3 Page 22 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
(a) Buyer 's agent shall transfer the WREGIS Certificates using "Recurring
Certificate Transfers" (as described in the WREGIS Operating Rules) from Seller's WREGIS
Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies
by Notice to Seller ("Buyer's WREGIS Account"). Seller shall be responsible for all expenses
associated with registering the Facility with WREGIS, establishing and maintaining Seller's
WREGIS Account, paying WREGIS Ce1i ificate issuance and transfer fees, and transfening
WREGIS Ce1iificates from Seller's WREGIS Account to Buyer's WREGIS Account.
(b) Buyer shall cause RecmTing Certificate Transfers to occm on a monthly
basis in accordance with the ce1iification procedure established by the WREGIS Operating Rules.
Since WREGIS Ce1iificates will only be created for whole MWh amounts of Facility Energy
generated, any fractional MWh amounts (i.e., kWh) will be canied fo1ward until sufficient
generation is accumulated for the creation of a WREGIS Celiificate.
(c) Buyer shall have all right and title to all such WREGIS Ce1iificates upon
payment to Seller in accordance with Section 8.2.
( d) A "WREGIS Certificate Deficit" means any deficit or sho1i fall in
WREGIS Celiificates delivered to Buyer for a calendar month as compared to the Facility Energy
for the same calendar month ("Deficient Month") caused by an en or or omission of Seller. If any
WREGIS Ce1i ificate Deficit is caused, or the result of any action or inaction by Seller, then the
amount of Facility Energy in the Deficient Month shall be reduced by the amount of the WREGIS
Ce1i ificate Deficit for pm-poses of calculating Buyer's payment to Seller under Aliicle 8; provided,
however, that such adjustment shall not apply to the extent that Seller resolves the WREGIS
Ce1i ificate Deficit within ninety (90) days after the Deficient Month. Without limiting Seller 's
obligations under this Section 4.8, if a WREGIS Certificate Deficit is caused solely by an en or or
omission of WREGIS, the Pa1iies shall cooperate in good faith to cause WREGIS to con ect its
en or or ormss10n.
(e) IfWREGIS 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 Paiiies promptly shall modify this Section 4.8 as reasonably required to cause
and enable Seller to transfer to Buyer's WREGIS Account a quantity ofWREGIS Ce1i ificates for
each given calendar month that con esponds to the Facility Energy in the same calendar month.
ARTICLES
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 delive1y 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 delive1y to and purchase by Buyer of Product that are imposed on Product at and
after its delive1y 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 Paiiy is required to remit or pay Taxes that are the other Paiiy's responsibility hereunder, such
Paiiy shall promptly pay the Taxes due and then seek and receive reimbmsement from the other
13
Sept. 9, 2025 Item #3 Page 23 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
for such Taxes. fu the event any sale of Product hereunder is exempt from or not subject to any
paiiicular Tax, Buyer shall provide Seller with all necessaiy documentation within thi1iy (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 ha1mless from any liability
with respect to Taxes from which Buyer claims it is exempt.
5.2 Cooperation. Each Party shall use reasonable effo1ts 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 Paiiy is materially adversely affected by such efforts. The Paiiies shall cooperate to
minimize Tax exposure; provided, however, that neither Paiiy shall be obligated to incur any
financial or operational burden to reduce Taxes for which the other Paiiy is responsible hereunder
without receiving due compensation therefor from the other Paiiy. All Product delivered by Seller
to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Product.
ARTICLE6
MAINTENANCE OF THE FACILITY
6.1 Maintenance of the Facility. Seller shall comply with Law and Prndent 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 injmy to any Person or any Person's prope1iy, Seller shall take prompt, reasonable action to
prevent such damage or injmy and shall give Notice to Buyer's emergency contact identified on
Exhibit G of such condition. Such action may include, to the extent reasonably necessaiy ,
disconnecting and removing all or a po1i ion of the Facility, or suspending the supply of Facility
Energy to Buyer.
6.3 Reserved.
ARTICLE 7
METERING
7.1 Metering. Metering will be consistent with the Metering Diagram to be set fo1ih
as Exhibit H. Each meter shall be kept under seal, such seals to be broken only when the meters
are to be tested, adj usted, modified or relocated. fu the event Seller breaks a seal, Seller shall notify
Buyer as soon as practicable. fu addition, Seller hereby agrees to provide all meter data to Buyer
in a f01m reasonably acceptable to Buyer, and consents to Buyer obtaining meter data directly
relating to the Facility and all inspection, testing and calibration data and repo1is.
7.2 Meter Verification. Annually, if Seller has reason to believe there may be a meter
malfunction, or upon Buyer's reasonable request, Seller shall cause the meter to be tested. The
tests shall be conducted by independent third paiiies qualified to conduct such tests. Buyer shall
be notified seven (7) days in advance of such tests and have a right to be present during such tests.
If a meter is inaccurate it shall be promptly repaired or replaced.
14
Sept. 9, 2025 Item #3 Page 24 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
ARTICLES
INVOICING AND PAYMENT; CREDIT
8.1 Billing Statement. Buyer or Buyer's agent shall be responsible for the collection
of meter data and calculation of the invoice for the prior monthly billing period. Buyer or Buyer 's
agent shall make good fa ith effo1ts to deliver a billing statement to Seller for Product within ten
(10) days after the end of the prior monthly billing period. Each billing statement shall reflect (a)
records of metered data and the calculation of Facility Energy, and the Contract Price. Seller shall
provide notice accepting or disputing the billing statement to Buyer within ten (10) Business Days
of receipt of the billing statement. Upon Seller's acceptance of a billing statement, such billing
statement shall be deemed an invoice for the purposes of this Alticle 8. Seller's dispute of a billing
statement shall be resolved pursuant to Section 8.5.
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. Payment for undisputed invoice
amounts shall be due to the applicable Patty twenty (20) Business Days from the date of Seller 's
acceptance of the billing statement. 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 Patty to another is not paid on or before its
applicable due date, a late payment charge shall be applied to the unpaid balance and shall be
added to the next billing statement. Such late payment charge shall be calculated based on the
annualized 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 accme on the next succeeding Business Day.
8.3 Books and Records. To facilitate payment and verification, each Party shall
maintain all books and records necessaty for billing and payments, including copies of all invoices
under this Agreement, for a period of at least four ( 4) years or as othe1w ise required by Law. Upon
ten (10) Business Days' Notice to the other Patty, either Patty shall be granted reasonable access
to the accounting books and records within the possession or control of the other Patty pe1taining
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 perfo1mance of this Agreement because the compensation under
this Agreement exceeds $10,000.
8.4 Payment Adjustments; Billing Errors. Payment adj ustments shall be made if
Buyer or Seller discovers there have been good faith inaccuracies in invoicing that are not
othe1w ise disputed under Section 8.5. 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 adj ustment
is in favor of Seller, Seller shall add the adj ustment amount to Buyer's next monthly billing
statement. Adj ustments in favor of either Buyer or Seller shall bear interest, until settled in full,
in accordance with Section 8.2, accming from the date on which the adjusted amount should have
been due.
8.5 Billing Disputes. A Patty may, in good faith, dispute the con ectness of any invoice
or any adjustment to an invoice rendered under this Agreement or adjust any invoice for any
15
Sept. 9, 2025 Item #3 Page 25 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
arithmetic or computational eITor within twelve (I 2) months of the date the invoice, or adjustment
to an invoice, was rendered. fu the event an invoice or po1tion thereof, or any other claim or
adjustment arising hereunder, is disputed, payment of the undisputed po1tion 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 ten (10) Business Days of such resolution along with interest accrned at the
futerest Rate from and including the original due date to but excluding the date paid. fua dve1tent
overpayments shall be returned via adjustments in accordance with Section 8.4. Any dispute with
respect to an invoice is waived if the other Pa1ty is not notified in accordance with this Section 8. 5
within twelve (12) months after the invoice is rendered or subsequently adj usted, except to the
extent any misinfonnation was from a third patty not affiliated with any Patty and such third party
coITects its info1mation after the twelve-month period. If an invoice is not rendered within twelve
(12) months after the close of the month during which perfonnance occuITed, the right to payment
for such perfo1mance is waived.
ARTICLE9
NOTICES
9.1 Addresses for the Delivery of Notices Any Notice required, pe1mitted, or
contemplated hereunder shall be in writing, shall be addressed to the Patty to be notified at the
address set fo1th on Exhibit G or at such other address or addresses as a Patty may designate for
itself from time to time by Notice hereunder.
9.2 Acceptable Means of Delivering Notice. Each Notice required, pe1mitted, 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 delive1y can-ier with delive1y
fees either prepaid or an aITangement with such canier made for the payment of such fees, the next
Business Day after the same is delivered by the sending Patty to such catTier; (c) if sent by
electronic communication (including electronic mail or other electronic means) and if concuITently
with the transmittal of such electronic communication the sending Pa1ty provides a copy of such
electronic Notice by hand delive1y or express courier, or if receipt is acknowledged by the other
Patty, at the time indicated by the time stamp upon delive1y ; or (d) if delivered in person, upon
receipt by the receiving Party. Notwithstanding the foregoing, Notices of outages or other
scheduling or dispatch info1mation or requests, may be sent by electronic communication and shall
be considered delivered upon successful completion of such transmission.
10.1 Definition.
ARTICLE 10
FORCE MAJEURE
(a) "Force Majeure Event" means any act or event that delays or prevents a
Patty from timely perfo1ming all or a po1tion of its obligations under this Agreement or from
complying with all or a po1t ion of the conditions under this Agreement if such act or event, despite
16
Sept. 9, 2025 Item #3 Page 26 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
the exercise of reasonable effo1ts, 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, nonperfo1mance, or noncompliance.
(b) Without limiting the generality of the foregoing, so long as the following
events, despite the exercise of reasonable effo11s, cannot be avoided by, and are beyond the
reasonable control (whether direct or indirect) of and without the fault or negligence of the Patty
relying thereon as justification for such delay, nonperfo1mance or noncompliance, a Force Majeure
Event may include a change in water conditions or operational restrictions that limits Facility
operations or causes the Facility to no longer be capable of generating energy; an act of God or the
elements, such as flooding, lightning, hmTicanes, tornadoes, or ice sto1ms; explosion; fire; volcanic
emption; flood; epidemic; landslide; mudslide; sabotage; ten orism; eatthquake; or other
cataclysmic events; an act of public enemy; war; blockade; civil insmTection; riot; civil
disturbance; or strikes or other labor difficulties caused or suffered by a Patty or any third patty
except as set fo11h below.
(c) Notwithstanding the foregoing, the te1m "Force Maieure Event" does not
include (i) economic conditions that render a Patty's perfo1mance of this Agreement at the
Contract Price unprofitable or othe1w ise uneconomic (including an increase in component costs
for any reason, including foreign or domestic tat·iffs, Buyer's ability to buy electric energy at a
lower price, or Seller 's ability to sell the Product, or any component thereof, at a higher price, than
under this Agreement); (ii) Seller's inability to obtain pe1mits or approvals of any type for the
operation or maintenance of the Facility, except to the extent such inability is caused by a Force
Majeure Event; (iii) the inability of a Pa1ty to make payments when due under this Agreement,
unless the cause of such inability is an event that would othe1w ise constitute a Force Majeure Event
as described above that disables physical or electronic facilities necessaty to transfer funds to the
payee Patty; or (iv) a Curtailment Order, unless caused by a Force Majeure Event.
10.2 No Liability If a Force Maieure Event Occurs. Neither Seller nor Buyer shall
be liable to the other Patty in the event it is prevented from perfo1ming its obligations hereunder
in whole or in pat1 due to a Force Majeure Event. The Patty rendered unable to fulfill any
obligation by reason of a Force Majeure Event shall take reasonable actions necessa1y to remove
such inability. Nothing herein shall be construed as pe1mitting that Patty to continue to fail to
perfo1m after said cause has been removed. Neither Patty shall be considered in breach or default
of this Agreement if and to the extent that any failure or delay in the Party's perfo1mance of one
or more of its obligations hereunder is caused by a Force Majeure Event.
10.3 Notice. fu the event of any delay or nonperfo1mance resulting from a Force
Majeure Event, the Patty suffering the Force Majeure Event shall (a) as soon as practicable notify
the other Patty in writing of the nature, cause, estimated date of commencement thereof, and the
anticipated extent of any delay or intenuption in perfo1mance, and (b) notify the other Paity in
writing of the cessation or te1mination of such Force Majeure Event, all as known or estimated in
good faith by the affected Patty; provided, however, that a Patty's failure to give timely Notice
shall not affect such Pa1ty's ability to asse11 that a Force Majeure Event has occmTed unless the
delay in giving Notice materially prejudices the other Patty.
17
Sept. 9, 2025 Item #3 Page 27 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
ARTICLE 11
DEFAULTS; REMEDIES; TERMINATION
11 .1 Events of Default. An "Event of Default" shall mean,
(a) with respect to a Paiiy (the "Defaulting Party") that is subject to the Event
of Default the occunence of any of the following:
(i) the failure by such Paiiy 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 wananty made by such Pa1iy herein is false or
misleading in any material respect when made or when deemed made or repeated, and such default
is not remedied within thniy (30) days after Notice thereof ( or such longer additional period, not
to exceed an additional sixty (60) days, if the Defaulting Paiiy is unable to remedy such default
within such initial thi1iy (30) days period despite exercising commercially reasonable effo1is);
(iii) the failure by such Paiiy to perfo1m any material covenant or
obligation set fo1i h in this Agreement (except to the extent constituting a separate Event of Default
set fo1ih in this Section 11 .1) and such failure is not remedied within thi1iy (30) days after Notice
thereof ( or such longer additional period, not to exceed an additional ninety (90) days, if the
Defaulting Party is unable to remedy such default within such initial thniy (30) days period despite
exercising commercially reasonable efforts);
(iv) such Paiiy becomes Bankmpt;
(v) such Party assigns this Agreement or any of its rights hereunder
other than in compliance with Section 14 .1; or
(vi) such Paiiy 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 paiiy by operation of Law or pursuant to an agreement reasonably satisfacto1y to the other Paiiy.
(b) with respect to Seller as the Defaulting Paiiy, the occmTence of any of the
following:
(i) if at any time during the Delive1y Te1m, Seller delivers or attempts
to deliver electric energy to the Delive1y Point for sale under this Agreement that was not generated
by the Facility; and
(ii) the failure by Seller to begin deliveries of Facility Energy within
sixty (60) days after the Delive1y Te1m Sta1i Date.
11.2 Remedies; Declaration of Early Termination Date. If an Event of Default with
respect to a Defaulting Paiiy shall have occmTed and be continuing, the other Pa1iy ("Non-
18
Sept. 9, 2025 Item #3 Page 28 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
Defaulting Party") shall have the following rights:
(a) to send Notice, designating a day, no earlier than the day such Notice is
deemed to be received and no later than twenty (20) days after such Notice is deemed to be
received, as an early termination date of this Agreement ("Early Termination Date") that
te1minates this Agreement (the "Terminated Transaction") and ends the Delive1y Te1m effective
as of the Early Te1mination Date;
(b) to accelerate all amounts owing between the Pa1ties, and to collect as
liquidated damages the Te1mination Payment calculated in accordance with Section 11.3 below;
( c) to withhold any payments due to the Defaulting Patty under this Agreement;
( d) to suspend perfo1mance; or
(e) to exercise any other right or remedy available at law or in equity, including
specific perfo1mance or injunctive relief, except to the extent such remedies are expressly limited
under this Agreement;
provided, that payment by the Defaulting Patty of the T e1mination Payment, as applicable, shall
constitute liquidated damages and the Non-Defaulting Patty's sole and exclusive remedy for any
Te1minated Transaction and the Event of Default related thereto.
11.3 Termination Payment. The te1mination payment ("Termination Payment") for
a Te1minated Transaction shall be the aggregate of all Settlement Amounts plus any or all other
amounts due to or from the Non-Defaulting Patty (as of the Eat·ly Te1mination Date) netted into a
single amount. The Non-Defaulting Patty shall calculate, in a commercially reasonable manner,
a Settlement Amount for the Te1minated Transaction as of the Early Te1mination Date. The
Settlement Amount shall not include Gains, Losses, consequential, incidental, punitive,
exempla1y, indirect or business intenuption damages. Without prejudice to the Non-Defaulting
Patty's duty to mitigate, the Non-Defaulting Pa1ty shall not have to enter into replacement
transactions to establish a Settlement Amount. Each Patty agrees and acknowledges that (a) the
actual damages that the Non-Defaulting Patty would incur in connection with a Te1minated
Transaction would be difficult or impossible to predict with ce1tainty, (b) the Te1mination Payment
described in this Section 11.3 is a reasonable and appropriate approximation of such damages, and
(c) the Te1mination Payment described in this Section 11.3 is the exclusive remedy of the Non-
Defaulting Patty in connection with a T e1minated Transaction but shall not othe1wise act to limit
any of the Non-Defaulting Patty's rights or remedies if the Non-Defaulting Patty does not elect
the Te1mination Payment (as applicable) as its remedy for an Event of Default by the Defaulting
Patty.
11.4 Notice of Payment of Termination Payment. As soon as practicable after a
Te1minated Transaction, Notice shall be given by the Non-Defaulting Patty to the Defaulting Pa1ty
of the amount of the Te1mination Payment and whether the Te1mination Payment is due to or from
the Non-Defaulting Patty. The Notice shall include a written statement explaining in reasonable
detail the calculation of such amount and the sources for such calculation. The Te1mination
Payment shall be made to or from the Non-Defaulting Pa1ty, as applicable, within ten (10) Business
Days after such Notice is effective.
19
Sept. 9, 2025 Item #3 Page 29 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
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 paii,
the Defaulting Paiiy shall, within five (5) Business Days ofreceipt of the Non-Defaulting Paiiy's
calculation of the Te1mination Payment, provide to the Non-Defaulting Pa1iy a detailed written
explanation of the basis for such dispute. Disputes regai·ding the T e1mination Payment shall be
dete1mined in accordance with Aliicle 15.
11.6 Rights And Remedies Are Cumulative Except where an express and exclusive
remedy or measure of liquidated damages is provided, the rights and remedies of a Paiiy pursuant
to this Aliicle 11 shall be cumulative and in addition to the rights of the Pa1iies othe1wise provided
in 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 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, BY STATUTE, IN TORT OR
CONTRACT.
12.2 Waiver and Exclusion of Other Damages. EXCEPT AS EXPRESSLY SET
FORTH HEREIN, THERE IS NOW ARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE
DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND
MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE
ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO
SELLER'S LIMITATION OF LIABILITY AND THE PARTIES' WAIVER OF
CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES FOR BREACH
OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO "FAIL OF THEIR
ESSENTIAL PURPOSE" OR ARE OTHERWISE HELD TO BE INVALID OR
UNENFORCEABLE.
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE
REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR
MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE
OBLIGOR'S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND
ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO
REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE
OBLIGOR'S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY.
20
Sept. 9, 2025 Item #3 Page 30 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE
LIQUIDATED, INCLUDING UNDER SECTIONS 4.8, 11.2 AND 11.3, THE PARTIES
ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO
DETERMINE, THAT OTHERWISE OBTAINING AN ADEQUATE REMEDY IS
INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES CONSTITUTE A
REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE
INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES
AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR
CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY,
WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR
PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS
AS AN UNREASONABLE PENALTY.
THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE
EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE
BREACH BY THE OTHER OF THE TERMS OF THIS AGREEMENT, AND EACH PARTY
WAIVES ANY RIGHT IT MAY HA VE 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 wanants as follows:
(a) Seller is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its fo1mation, and is qualified to conduct business in the state of
California.
(b) Seller has the power and authority to enter into and perfo1m this Agreement
and is not prohibited from entering into this Agreement or discharging and perfo1ming all
covenants and obligations on its paii to be perfo1med under and pursuant to this Agreement, except
where such failure does not have a material adverse effect on Seller's perfonnance under this
Agreement. The execution, delive1y and perfo1mance of this Agreement by Seller has been duly
authorized by all necessa1y limited liability company action on the pa1i of Seller and does not and
will not require the consent of any tmstee or holder of any indebtedness or other obligation of
Seller or any other paiiy to any other agreement with Seller.
(c) The execution and delive1y of this Agreement, consummation of the
transactions contemplated herein, and folfillment 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 pe1mits that have not yet been
obtained by Seller, the documents of fo1mation of Seller or any outstanding tmst indenture, deed
of tmst, m01igage, loan agreement or other evidence of indebtedness or any other agreement or
instrument to which Seller is a pa1iy or by which any of its prope1iy is bound.
21
Sept. 9, 2025 Item #3 Page 31 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
( 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
te1ms, except as limited by laws of general applicability limiting the enforcement of creditors'
rights or by the exercise of judicial discretion in accordance with general principles of equity.
(e) The Facility is located in the State of California.
(f) As between Buyer and Seller, Seller will be responsible for obtaining all
pe1mits and pe1missions necessaiy to operate and maintain the Facility, including taking all
necessa1y actions to pe1mit the Facility to export Facility Energy.
13.2 Buyer's Representations and Warranties As of the Effective Date, Buyer
represents and wanants as follows:
(a) Buyer is a joint powers authority and a validly existing community choice
aggregator, duly organized, and in good standing under the laws of the State of California and the
rnles, regulations and orders of the California Public Utilities Commission, and is qualified to
conduct business in each jurisdiction of the Joint Powers Agreement members. All Persons making
up the governing body of Buyer ai·e the elected or appointed incumbents in their positions and hold
their positions in good standing in accordance with the Joint Powers Agreement and other Law.
(b) Buyer has the power and authority to enter into and perfo1m this Agreement
and is not prohibited from entering into this Agreement or discharging and perfo1ming all
covenants and obligations on its paii to be perfo1med under and pursuant to this Agreement, except
where such failure does not have a material adverse effect on Buyer's perfo1mance under this
Agreement. The execution, delive1y and perfo1mance of this Agreement by Buyer has been duly
authorized by all necessa1y 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 paiiy to any
other agreement with Buyer.
(c) The execution and delive1y of this Agreement, consummation of the
ti·ansactions 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 fo1mation of Buyer or any
outstanding tiust indenture, deed of tiust, m01igage, loan agreement or other evidence of
indebtedness or any other agreement or insti11ment to which Buyer is a paiiy 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
te1ms, 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 wa1rnnts and covenants that with respect to its conn-actual obligations
under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds
with respect to itself or its revenues or assets from (1) suit, (2) jurisdiction of comi (provided that
such comi is located within a venue pe1mitted in law and under the Agreement), (3) relief by way
of injunction, order for specific perfo1mance or recove1y of prope1iy, ( 4) attachment of assets, or
22
Sept. 9, 2025 Item #3 Page 32 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
(5) execution or enforcement of any judgment; provided, however that nothing in this Agreement
shall waive the obligations or rights set fo1th in the California To1t Claims Act (Government Code
Section 810 et seq.).
(f) Buyer is a "local public entity" as defined m Section 900.4 of the
Government Code of the State of California.
13.3 General Covenants Each Paity covenants that commencing on the Effective Date
and continuing throughout the Contract Te1m:
(a) It shall continue to be duly organized, validly existing and in good standing
under the laws of the jurisdiction of its fo1mation and to be qualified to conduct business in
California and each jurisdiction where the failure to so qualify would have a material adverse effect
on its business or financial condition;
(b) It shall maintain ( or obtain from time to time as required) all regulato1y
authorizations, approvals, and pe1mits necessaiy for it to legally perfo1m its obligations under this
Agreement; and
(c) It shall perfo1m its obligations under this Agreement in compliance with all
te1ms and conditions in its governing documents and in material compliance with any Law.
ARTICLE 14
ASSIGNMENT
14.1 General Prohibition on Assignments. Neither Pa1ty may vohmtarily assign this
Agreement or its rights or obligations under this Agreement, without the prior written consent of
the other Patty, such consent not to be unreasonably withheld. Any assignment made without
required written consent, or in violation of the conditions to assignment set out below, shall be null
and void.
ARTICLE 15
DISPUTE RESOLUTION
15 .1 Venue. The Patties agree that any suit, action or other legal proceeding by or
against any patty ( or its affiliates or designees) with respect to or at·ising out of this Agreement
shall be brought in the federal courts of the United States or the courts of the State of California
sitting in San Diego COlmty, 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 Patty identifying such
dispute, the Pa1ties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly,
info1mally and inexpensively. If the Patties are unable to resolve a dispute arising hereunder
within the eat·lier of either thi1ty (30) days of initiating such discussions, or within fo1ty ( 40) days
after Notice of the dispute, the Patties shall submit the dispute to mediation prior to seeking any
and all remedies available to it at Law in or equity. The Patties 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 thiity (30) days after the
23
Sept. 9, 2025 Item #3 Page 33 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
request for mediation is made. The Parties agree to paiiicipate 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 Pa1iy's own attorneys' fees and costs, which shall be borne solely by such
Paiiy. If the mediation is unsuccessful, then either Paiiy may seek any and all remedies available
to it at law or in equity, subject to the limitations set fo1ih in this Agreement.
ARTICLE 16
RESERVED
ARTICLE 17
RESERVED
ARTICLE 18
CONFIDENTIAL INFORMATION
18.1 Definition of Confidential Information. The following constitutes "Confidential
Information," whether oral or written which is delivered by Seller to Buyer or by Buyer to Seller
including: (a) the te1ms and conditions of, and proposals and negotiations related to, this
Agreement, and (b) info1mation that either Seller or Buyer stamps or othe1w ise identifies as
"confidential" or "proprietaiy" before disclosing it to the other. Confidential Info1mation does not
include (i) info1mation that was publicly available at the time of the disclosure, other than as a
result of a disclosure in breach of this Agreement; (ii) info1mation that becomes publicly available
through no fault of the recipient after the time of the delive1y ; (iii) info1mation that was rightfully
in the possession of the recipient (without confidential or proprieta1y restriction) at the time of
delive1y or that becomes available to the recipient from a source not subject to any restriction
against disclosing such info1mation to the recipient; and (iv) info1mation that the recipient
independently developed without a violation of this Agreement.
18.2 Duty to Maintain Confidentiality. Confidential Info1mation will retain its
character as Confidential Info1mation but may be disclosed by the recipient (the "Receiving
Party") if and to the extent such disclosure is required (a) to be made by any requirements of Law,
(b) pursuant to an order of a comi or ( c) in order to enforce this Agreement. If the Receiving Paiiy
becomes legally compelled (by inte1rngatories, requests for info1mation or documents, subpoenas,
summons, civil investigative demands, or similai· processes or othe1wise in connection with any
litigation or to comply with any applicable law, order, regulation, rnling, regulato1y request,
accounting disclosure rnle or standai·d or any exchange, control area or independent system
operator request or rnle) to disclose any Confidential Info1mation of the disclosing Pa1iy (the
"Disclosing Party"), Receiving Paiiy shall provide Disclosing Party with prompt notice so that
Disclosing Paiiy, at its sole expense, may seek an appropriate protective order or other appropriate
remedy. If the Disclosing Paiiy takes no such action after receiving the foregoing notice from the
Receiving Paiiy, the Receiving Pa1iy is not required to defend against such request and shall be
pe1mitted to disclose such Confidential Info1mation of the Disclosing Paiiy, with no liability for
any damages that ai·ise from such disclosure. Each Paiiy hereto acknowledges and agrees that
info1mation and documentation provided in connection with this Agreement is subject to the
California Public Records Act (Government Code Section 7920 et seq.) and the California Civil
Discove1y Act (California Code of Civil Procedure Section 2016.010).
24
Sept. 9, 2025 Item #3 Page 34 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
18.3 Irreparable Injury; Remedies. Receiving Party acknowledges that its obligations
hereunder are necessaiy and reasonable in order to protect Disclosing Party and the business of
Disclosing Paiiy, and expressly acknowledges that moneta1y damages would be inadequate to
compensate Disclosing Pa1iy for any breach or threatened breach by Receiving Pa1iy of any
covenants and agreements set fo1ih in this Aliicle 18. Accordingly, Receiving Paiiy acknowledges
that any such breach or threatened breach will cause ineparable injmy to Disclosing Paiiy and
that, in addition to any other remedies that may be available, in law, in equity or othe1w ise,
Disclosing Paiiy will be entitled to obtain injunctive relief against the threatened breach of this
Aliicle 18 or the continuation of any such breach, without the necessity of proving actual damages.
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 subj ect matter hereof and supersedes all prior
agreements relating to the subject matter hereof, which are of no fmiher force or effect. The
Exhibits attached hereto are integral paits hereof and are made a pait of this Agreement by
reference. The headings used herein are for convenience and reference pmposes 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 con ected accordingly. This Agreement shall be considered for all pmposes as prepared
through the joint effo1is of the Pa1iies and shall not be construed against one Paiiy or the other
Paiiy 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 electr·onic mail
communications.
19.3 No Waiver. Waiver by a Party of any default by the other Paiiy 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 perfonnance 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 pm-chaser, respectively, and do not intend to be u-eated
as, and shall not act as, paitners in, co-ventmers in or lessor/lessee with respect to the Facility or
any business related to the Facility. This Agreement shall not impaii any rights enforceable by any
third paiiy ( other than a permitted successor or assignee bound to this Agreement or, to the extent
set fo1i h herein, any Lender or Indemnified Paiiy).
19.5 Severabili!,y. In the event that any provision of this Agreement is unenforceable
or held to be unenforceable, the Paii ies agree that all other provisions of this Agreement have force
and effect and shall not be affected thereby. The Paiiies shall, however, use their best endeavors
to agree on the replacement of the void, illegal or unenforceable provision(s) with legally
25
Sept. 9, 2025 Item #3 Page 35 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
acceptable clauses which con espond 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 paiiy seeking, to prospectively or retroactively
revise the rates, tenns 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 Pru.ties. Fmther,
absent the prior written agreement in writing by both Pa1ties, the standai·d of review for changes
to the rates, tenns or conditions of service of this Agreement proposed by a Pa1iy shall be the
"public interest" standard of review set fo1t h in United Gas Pipe Line Co. v. Mobile Gas Service
Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Siena 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 standai·d pe1missible under applicable law.
19.7 Counterparts; Electronic Signatures. This Agreement may be executed in one
or more counterpa1ts, all of which taken together shall constitute one and the same instIUlllent and
each of which shall be deemed an original. The Paities may rely on documents signed with digital
signatures as originals.
19.8 Binding Effect. This Agreement shall inure to the benefit of and be binding upon
the Pa1ties and their respective successors and pe1mitted assigns.
19.9 No Recourse to Members of Buyer. Buyer is organized as a Joint Powers
Authority in accordance with the Joint Exercise of Powers Act of the State of California
(Government Code Section 6500, et seq.) pursuant to its Joint Powers Agreement and is a public
entity separate from its constituent members. Buyer shall solely be responsible for all debts,
obligations and liabilities accming and arising out of this Agreement. Seller shall have no rights
and shall not make any claims, take any actions or asse1t any remedies against any of Buyer's
constituent members, or the employees, directors, officers, consultants or advisors or Buyer or its
constituent members, in connection with this Agreement.
19 .10 Fonvard Contract. The Pru.ties acknowledge and agree that this Agreement
constitutes a "fo1wai·d conti·act" within the meaning of the U.S. Bankmptcy Code, and Buyer and
Seller are "fo1wai·d conti·act merchants" within the meaning of the U.S . Bankmptcy Code. Each
Paiiy fmther agrees that, for all purposes of this Agreement, each Pa1iy waives and agrees not to
asse1t the applicability of the provisions of 11 U.S.C. § 366 in any bankmptcy proceeding wherein
such Paiiy is a debtor. In any such proceeding, each Pa1iy fmther waives the right to asse1t that
the other Pa1iy is a provider of last reso1t to the extent such te1m relates to 11 U.S.C. §366 or
another provision of ll U.S .C. § 101-1532 .
19.11 Further Assurances. Each of the Pru.ties hereto agree to provide such info1mation,
execute and deliver any instIUlllents and documents and to take such other actions as may be
necessa1y or reasonably requested by the other Paiiy 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 cany out the intent of
this Agreement.
26
Sept. 9, 2025 Item #3 Page 36 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
{Signatures on following page}
27
Sept. 9, 2025 Item #3 Page 37 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the
Effective Date.
CARLSBAD MUNICIPAL WATER
DISTRICT, a municipal water district
and subsidiary district of the City of
Carlsbad
By:
Name:
Title:
Date:
Keith Blackburn
President
Sept 1Q 2025
Approved as to form:
CINDIE K. McMAHON, General Counsel
By:
Name: Tim Lyons
Title: Assistant General Counsel
Sept. 9, 2025
CLEAN ENERGY ALLIANCE, a
California joint powers authority
By:
Name:
Title:
Date:
c.,;;·~ tJa&
4AAOEA2701994CC ... ~~-o~~J •• ~~-
Chief Executive Officer
8/8/2025
Approved as to form:
By:
Name:
Title:
Johanna N . Canlas
General Counsel
Item #3 Page 38 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
EXIDBIT A
FACILITY DESCRIPTION
Site Name: Maerkle Pressure Control Hydroelectric Generator
Site includes all or some of the following APNs: 7601668600
County: San Diego
Type of Facility: Hydroelectric Facility
Operating Characteristics of Facility:
Contract Capacity: 100 kW
Total Facility Capacity: 100 kW (net, at the Delive1y Point)
Delivery Point: the Facility Meter
Participating Transmission Owner: San Diego Gas & Electric Company
Exhibit A -1
Sept. 9, 2025 Item #3 Page 39 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
Sept. 9, 2025
EXHIBITB
RESERVED
Exhibit B -1
Item #3 Page 40 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
EXIDBITC
COMPENSATION
Buyer shall compensate Seller for the Product in accordance with this Exhibit C.
(a) Facility Energy. For each MWh of Facility Energy in each month, Buyer shall
pay Seller the Contract Price.
Exhibit C -1
Sept. 9, 2025 Item #3 Page 41 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
Sept. 9, 2025
EXIDBITD
RESERVED
Exhibit D -1
Item #3 Page 42 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
Sept. 9, 2025
EXHIBITE
RESERVED
Exhibit E -1
Item #3 Page 43 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
Sept. 9, 2025
EXHIBITF-1
RESERVED
Exhibit F-1 -1
Item #3 Page 44 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
Sept. 9, 2025
EXHIBITF-2
RESERVED
Exhibit F-2 -1
Item #3 Page 45 of 47
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
Carlsbad Municipal Water District
All Notices:
Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008
Attn: Amanda L. Flesse, General Manager
Phone: (442) 339-2722
Email: amanda.flesse~rlsbadca.~
Reference Numbers:
Invoices:
Attn: Accounts Payable
Phone:760-339-2722
Email: water@carlsbadca.gov;
j eanette. brown~arlsbadc~gov
Confirmations:
Attn: Dave Padilla
Phone: (760) 331-3586
Email: dave.padilla@£ilrlsbadca.gQ_v
Payments:
Attn: Jeanette Brown
Phone: (760) 339-2722
Email: jeanette.brown~arlsbadc~g£V
Wire Transfer:
With additional Notices of an Event of
Default to:
Attn: General Counsel
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Phone: 442.339.2891
E-mail: attomey@carlsbadca.gov
Sept. 9, 2025
EXHIBIT G
NOTICES
Clean Energy Alliance
All Notices:
Clean Energy Alliance
5857 Owens Ave, Suite 2023
Carlsbad, CA 92008
Attn: Grego1y Wade, CEO
Phone: (760) 209-6177
Email~gwade@thecleanenergyalliance.org
Reference Numbers:
Invoices:
Attn: Accounts Payable
Phone: (760) 209-6177
Email: accountspayable@thecleanenergyalliance.org:
L cea.invoices@pacificea.com
Confirmations:
Attn: Grego1y Wade, CEO
Phone: (760) 209-6177
Emait_gwade@thecleanenergyalliance.org_·------1
Payments:
Attn: Andy Stem, Chief Financial Officer
Phone: (760) 209-6177
Email: astem@thecleanenergyalliance.org
Wire Transfer:
With additional Notices of an Event of Default to:
Attn: Johanna Canlas, General Counsel
Phone: (619) 814-58 13
Email: jcanlas@bwslaw.com
with a copy to:
Hall Energy Law PC
Attn: Stephen Hall
Phone: (503) 313-0755
Email: steve@hallenergylaw.com
Exhibit G -1
Item #3 Page 46 of 47
-
Docusign Envelope ID 632CAD73-DF58478C-9O10-607ECF4FE996
I
-l-1 •
-t 1
,i
Sept. 9, 2025
EXHIBITH
METERING DIAGRAM
r~~,-~:----
• I
-----------: ~
:0
i I ~ I
• I /
I
I
I
'--------
!1
' '
'o/1" f
• -i '~ !i.h ;! •
!/
I!
-t Ii
I J
Ii-.;~ hi
Exhibit H -1 Item #3 Page 47 of 47