Agreement for the Purchase and Sale of Renewable Energy Certificates

NYSERDA Agreement No. 178503

Execution Version

AGREEMENT FOR THE PURCHASE AND SALE

OF RENEWABLE ENERGY CERTIFICATES

This Agreement for the Purchase and Sale of Renewable Energy Certificates (“Agreement”) is

executed on December 17, 2021 (“Effective Date”) by and between the New York State Energy

Research and Development Authority, a public benefit corporation, having a principal business

address of 17 Columbia Circle, Albany, New York 12203 (“NYSERDA”), and the City of New

York (“City”), a municipal corporation formed pursuant to the laws of the State of New York.

NYSERDA and City are each referred to herein as a “Party” and are collectively referred to

herein as the “Parties.”

WHEREAS, on August 1, 2016, the New York State Public Service Commission

(“PSC”) adopted a Clean Energy Standard (“CES”) to achieve a statewide deployment goal of

50% renewable generation resources by 2030;

WHEREAS, Mayor de Blasio’s One New York: The Plan for a Strong and Just City sets

goal for New York City to achieve 100 percent clean electricity by 2040 and carbon neutrality by

2050;

WHEREAS, certain manifestations of climate change, including sea level rise, longer

and more frequent periods of extreme hot temperatures and more frequent and intense storms,

present a clear and present danger to the life, safety and economic welfare of the citizens and

infrastructure of New York City, and electricity generated from renewable resources and

delivered into New York City will reduce reliance on in-City fossil-fueled electric generating

facilities and reduce emissions from such facilities that contribute to climate change and poor

health;

WHEREAS, on October 15, 2020 the PSC modified the CES to establish a new Tier 4,

which has the goal of increasing the consumption of renewable energy within New York City in

furtherance of the Climate Leadership and Community Protection Act requirements that 70% of

electric generation consumed in the State in 2030 be renewable and that the State achieve a zero

emission electric system by 2040;

WHEREAS, pursuant to the 2020 CES Order NYSERDA conducted a competitive

solicitation in the form of T4RFP21-1 to procure Tier 4 RECs (defined below);

WHEREAS, NYSERDA, pursuant to awards made under T4RFP21-1, entered into (i)

that certain Tier 4 Renewable Energy Certificate Purchase and Sale Agreement, dated as of

November 29, 2021 (the “CHPE Agreement”), with H.Q. Energy Services (U.S.) Inc., a

Delaware corporation (“HQ”), and (ii) that certain Tier 4 Renewable Energy Certificate Purchase

and Sale Agreement, dated as of November 29, 2021 (the “CPNY Agreement” and, together with

Cases 15-E-0302, et al., Proceeding on Motion of the Commission to Implement a Large-

Scale Renewable Program and a Clean Energy Standard, Order Adopting A Clean Energy

Standard (issued August 1, 2016).

Case 15-E-0302, supra, Order Adopting Modifications to the Clean Energy Standard (issued

October 15, 2020).

the CHPE Agreement, the “Purchase Agreements”), with Clean Path New York LLC, a

Delaware limited liability company (“CPNY”), which Purchase Agreements have been

submitted to and are subject to the PSC’s approval;

WHEREAS, City wishes to make voluntary purchases from NYSERDA of Tier 4 RECs

created under the Purchase Agreements to catalyze large-scale development and delivery of

renewable energy into New York City, and NYSERDA wishes to sell Tier 4 RECs to City as a

voluntary purchaser in accordance with the 2020 CES Order, pursuant to the terms and

conditions set forth in this Agreement;

WHEREAS, City has filed a notice with the PSC regarding its intention to procure

renewable energy from offshore wind resources and Tier 4 resources in a quantity equal to its

ongoing energy consumption; and

WHEREAS, City and NYSERDA are entering this Agreement to memorialize the terms

of City’s long term purchase of Tier 4 RECs.

NOW THEREFORE, in consideration of the mutual covenants set forth herein, and for

such other good and valuable consideration, the receipt and sufficiency of which are hereby

acknowledged, and intending to be legally bound, the Parties agree as follows:

ARTICLE 1: DEFINITIONS

1.1 Definitions. In addition to any other terms defined herein, the following terms shall have

the meaning ascribed to them below:

(a) “Actual Quantity” means, for any period, an amount of Tier 4 RECs equal to the

sum of (i) City’s Metered Electric Load for such period, minus (ii) the City Actual OREC Load

Share for such period.

(b) “Adder” means the per-REC amount charged by NYSERDA to purchasers of Tier

4 RECs for the sole purpose of recouping NYSERDA’s costs to administer the Tier 4 REC

program, which shall be calculated based on the amount, if any, approved by the PSC to be

charged by NYSERDA to PSC-jurisdictional load-serving entities for such purpose.

NYSERDA of City’s Forecast Electric Load and Metered Electric Load for the previous calendar

year, which will set forth the variance between the projected and actual usage for each month.

(d) “CHPE Monthly Tier 4 REC Price” means the monthly prices NYSERDA pays

CHPE for each Tier 4 REC pursuant to the CHPE Agreement.

(e) “CHPE Project” means the combination of the portfolio of renewable resources

and transmission lines HQ will utilize to deliver renewable energy into New York City pursuant

to the CHPE Agreement.

(f) “City Actual OREC Load Share” means, for any period, the City’s load share

allocation of the total statewide quantity of Offshore Wind RECs generated in such period based

on its Metered Electric Load for the same period (measured in MWh), as calculated by

NYSERDA using the same methodology used by NYSERDA to determine the load share

allocation of jurisdictional load-serving entities for purposes of CES compliance for such period,

but only to the extent the City pays for such load share allocation of Offshore Wind RECs,

whether directly to NYSERDA or indirectly through its load-serving entity or otherwise.

(g) “City Fiscal Year” means the 12-month period commencing on July 1 and ending

on June 30.

(h) “City Forecast OREC Load Share” means, for any period, NYSERDA’s

reasonable forecast of the City’s load share allocation of the total statewide quantity of Offshore

Wind RECs generated in such period.

(i) “City NYGATS Account” means the NYGATS account established by City into

which NYSERDA shall transfer Tier 4 RECs and (if applicable) Offshore Wind RECs as

performance under this Agreement.

(j) “CPNY Monthly Tier 4 REC Price” means the monthly prices NYSERDA pays

CPNY for each Tier 4 REC other than Tier 4 RECs for which CPNY is compensated based on a

share of revenues earned by NYSERDA from sales of such Tier 4 RECs to voluntary purchasers

other than the City pursuant to the CPNY Agreement.

(k) “CPNY Project” means the combination of the portfolio of renewable resources

and transmission line CPNY will utilize to deliver renewable energy into New York City

pursuant to the CPNY Agreement.

(l) “Contract Delivery Term” means a period of twenty-five (25) years commencing

upon the later of (i) the date NYSERDA first purchases Tier 4 RECs pursuant to the Purchase

Agreements and (ii) the Inside Date as defined in Section 2.6.

(m) “Delivery” or “Deliver” means NYSERDA’s electronic delivery of Tier 4 RECs

via the NYGATS to the City NYGATS Account in accordance with the NYGATS Operating

Rules, or such other form or matter of crediting Tier 4 RECs as may be approved or directed by

the PSC.

(n) “Forecast Electric Load” means City’s projection of its monthly electric usage

(measured in MWh) for the subsequent calendar year.

(o) “Forecast Quantity” means, for any period, an amount of Tier 4 RECs equal to the

sum of (i) City’s Forecast Electric Load for such period, minus (ii) the City Forecast OREC Load

Share for such period.

(p) “Metered Electric Load” means City’s monthly electric usage (measured in

MWh) as reflected in the version 2 monthly invoices issued by the NYISO to City’s load-serving

entity, which monthly invoices include four-month true-ups of usage data. Such information

shall be provided to NYGATS by the NYISO or City’s load-serving entity, as appropriate.

(q) “Monthly Obligation Payment” has the meaning set forth in Section 2.2.

(r) “Monthly Tier 4 REC Price” has the meaning set forth in Section 2.2.

(s) “New York Generation Attribute Tracking System” or “NYGATS” means the

tracking system that records electricity generation attribute information within New York State,

and processes generation attribute information from energy imported or produced and consumed

within New York State, as a basis for creating tradable generation attribute certificates, including

Tier 4 RECs and Offshore Wind RECs.

(t) “New York State Public Service Commission” or “PSC” means the administrative

body established by the New York State Legislature pursuant to Article 1 of the New York

Public Service Law.

(u) “NYGATS Operating Rules” means the rules governing the operation of the

NYGATS by NYSERDA and its designated NYGATS Administrator, and the participation in

and use of the NYGATS by users. The Operating Rules describe how the system is operated and

delineate the roles, requirements and responsibilities of all users.

(v) “NYISO” means New York Independent System Operator, Inc.

(w) “NYPA” means the New York Power Authority.

(x) “Reconciliation Invoice” shall have the meaning set forth in Section 2.3(b).

(y) “Renewable Energy Certificate” or “REC” means the instrument created by

NYGATS that represents the environmental attributes of one MWh of electricity generation from

a renewable resource.

(z) “Tier 4 REC” has the meaning given to that term in the 2020 CES Order and as

created pursuant to the Purchase Agreements.

ARTICLE 2: PURCHASE AND SALE OF RENEWABLE ENERGY CERTIFICATES

2.1 Determination of City’s Electric Load. No later than the June 1 prior to each year of the

Contract Delivery Term, City shall provide NYSERDA a preliminary projection of its Forecast

Electric Load, and no later than September 1 prior to each year of the Contract Delivery Term,

City shall provide NYSERDA its Forecast Electric Load; provided that such requirements shall

not apply to the period described in Section 2.6(c).

2.2 Monthly Tier 4 REC Price; Monthly Obligation Payment. The price payable by City to

NYSERDA for each Tier 4 REC generated in a month and purchased hereunder (the “Monthly

Tier 4 REC Price”) shall be an amount equal to the sum of (A) the lesser of (i) the weighted

average of the CHPE Monthly Tier 4 REC Price and the CPNY Tier 4 REC Price, and (ii) the

CHPE Monthly Tier 4 REC Price; plus (B) an Adder. City shall pay NYSERDA each month an

amount (the “Monthly Obligation Payment”) equal to the product of (x) the Monthly Tier 4 REC

Price for such month and (y) the Forecast Quantity for such month. Details regarding the

calculation of the Monthly Tier 4 REC Price and Monthly Obligation Payment are set forth in

Schedule 2.2, which schedule may be updated and revised over the term of this Agreement upon

mutual consent of the Parties.

annual basis, within fifteen (15) calendar days following receipt of payment of the Reconciliation

Invoice from City, NYSERDA shall Deliver to the City NYGATS Account Tier 4 RECs in a

quantity equal to the Actual Quantity for the prior calendar year, as set forth in the Annual

Reconciliation. To the extent that such Actual Quantity varies from the number of Tier 4 RECs

that had been set aside or designated for such calendar year, NYSERDA shall Deliver to City

additional Tier 4 RECs so that NYSERDA shall have Delivered to City Tier 4 RECs equal to the

Actual Quantity for such calendar year.

(b) Upon notification of Delivery by NYSERDA, City shall be obligated to accept

Delivery in NYGATS within 10 calendar days. NYSERDA shall transfer title to the Tier 4 RECs

to City free and clear of any lien or other encumbrance at the time of Delivery.

number of Tier 4 RECs NYSERDA is able to Deliver to City, City shall have the option of

purchasing Offshore Wind RECs in an amount equal to the balance of Tier 4 RECs that were not

Delivered. The purchase price for such Offshore Wind RECs shall be set at the price of Offshore

Wind RECs charged to other load-serving entities for the same period of time.

(d) Each year, NYSERDA shall not Deliver Tier 4 RECs to any voluntary purchaser

other than City until it has fulfilled the Delivery to City as set forth in this Section 2.5.

2.6 Stub Year.

(a) The Parties recognize that either or both of the CHPE and CPNY Projects may

commence commercial operation and begin producing Tier 4 RECs at a point in time that differs

from the annual periods contemplated in this Agreement. The Parties agree that all requirements

set forth herein for the first year of the Contract Delivery Term shall be addressed in the same

manner as such requirements are addressed in any program NYSERDA adopts with respect to

jurisdictional load-serving entity purchases of Tier 4 RECs, provided that such provisions for the

Stub Year are in accordance with City’s appropriations requirements and procedures.

(b) Notwithstanding anything to the contrary in Section 2.6(a), no later than March 1

falling immediately prior to the City Fiscal Year in which NYSERDA reasonably expects it

could first purchase Tier 4 RECs pursuant to the Purchase Agreements, NYSERDA shall provide

written notice to City setting forth the earliest date on which NYSERDA reasonably expects it

could first purchase Tier 4 RECs pursuant to the Purchase Agreements (the “Inside Date”). If

NYSERDA first purchases Tier 4 RECs pursuant to the Purchase Agreements prior to the Inside

Date, the Contract Delivery Term shall nonetheless not commence until the Inside Date.

in Section 2.6(b), City shall provide a Forecast Electric Load for the period commencing on the

Inside Date and ending on December 31 of the same year, which NYSERDA shall use for

purposes of calculating the Forecast Quantity for such period; provided that if the Inside Date

occurs during the subsequent calendar year, City shall provide its Forecast Electric Load

pursuant to Section 2.1 for the period commencing on the Inside Date and ending on December

31 of the same year.

2.7 Taxes/Fees. NYSERDA shall pay any taxes or other fees, if any, imposed on the creation,

or ownership of Tier 4 RECs and Offshore Wind RECs up to the date of Delivery. City will pay

any taxes or other fees, if any, imposed on the receipt or ownership of Tier 4 RECs and Offshore

Wind RECs on and after the date of Delivery to the extent that City would be subject to such

taxes or fees.

2.8 Term. This Agreement shall be effective as of the Effective Date and shall terminate on

the sooner to occur of (i) the expiration of the Contract Delivery Term, and (ii) the effective date

of termination in accordance with applicable provisions of this Agreement.

2.9 Cessation of CHPE Purchases.

(a) In the event City asserts that NYSERDA has breached the commitments

regarding Indigenous Communities in Quebec set forth in Schedule 2.9 hereof (“Indigenous

Communities Obligations”), it shall deliver written notice of such assertion to NYSERDA, which

notice shall include a reasonably detailed description of the alleged breach of such Indigenous

Communities Obligations. Within fifteen (15) calendar days of NYSERDA’s receipt of such

written notice, NYSERDA shall cause HQ to participate with NYSERDA and City in good faith

discussions of such alleged breach and negotiations of possible cures thereof. Upon the Parties’

mutual agreement, the City or NYSERDA may invite representatives of the Indigenous

Communities to participate in these discussions. In the event that, after thirty (30) calendar days

from commencement of such good faith discussions and negotiations, the existence of a breach

remains unresolved, or possible cures to a claimed or acknowledged breach have not been agreed

upon, a mediator reasonably acceptable to the Parties shall be promptly appointed to assist

further good faith discussions among City, HQ and NYSERDA of City’s assertions. In the event

that, after thirty (30) calendar days from the commencement of such mediation, the existence of

a breach remains unresolved, or possible cures to a claimed or acknowledged breach have not

been agreed upon, each Party shall be permitted to exercise its legal and equitable rights as it

deems appropriate.

(b) In the event the Parties agree, whether as a result of their good faith discussions,

mediated discussions, or otherwise, that NYSERDA has breached the Indigenous Communities

Obligations, City, as its exclusive remedy for such breach, shall not be obligated to purchase

from NYSERDA any Tier 4 RECs created under the CHPE Agreement effective as of the date of

such agreement. In the event either Party exercises its legal rights and receives a judicial

decision that NYSERDA has breached the Indigenous Communities Obligations, City, as its

exclusive remedy for such breach, shall not be obligated to purchase from NYSERDA any Tier 4

RECs created under the CHPE Agreement effective as of the date of such decision.

during any month, there are insufficient RECs created under the CPNY Agreement to equal the

Forecast Quantity for such month (a “Monthly REC Shortfall”), NYSERDA shall set aside or

designate Offshore Wind RECs in the amount of such Monthly REC Shortfall but shall charge

City the Monthly Tier 4 REC Price for the entire Forecast Quantity (i.e., inclusive of the

Monthly REC Shortfall). If City’s assertion is determined to be valid, whether as a result of an

agreement or judicial decision, NYSERDA shall be required to compensate City for all amounts

paid by City in excess of the applicable monthly prices of Offshore Wind RECs charged to other

load-serving entities with respect to all Offshore Wind RECs purchased by City pursuant to this

Section 2.9(c) (the “Excess OREC Payments”). If City’s assertion is determined to be invalid,

whether as a result of an agreement or judicial decision, NYSERDA shall be entitled to retain all

Excess OREC Payments.

2.10 Obligations Subject to Budget Allocation. In recognition that the long-term nature of this

Agreement, requiring payment by the City in subsequent fiscal years after the fiscal year that

includes the Effective Date, this Agreement is subject to the appropriation of funds for such

subsequent City fiscal year. The City shall have no obligation to purchase Tier 4 RECs beyond

the amount of funds appropriated that can be used for such purpose. Notwithstanding anything

to the contrary set forth herein, the City shall include in its preliminary and executive budgets for

each fiscal year the monetary obligations set forth in this Agreement anticipated to become due

in such fiscal year.

ARTICLE 3: REPRESENTATIONS AND WARRANTIES

3.1 NYSERDA Representations and Warranties. NYSERDA hereby represents and warrants

to City as follows:

(a) NYSERDA has and, at all times during the Term will have, all necessary power

and authority to execute this Agreement and to perform its obligations hereunder.

(b) The execution of and performance under this Agreement by NYSERDA has been

duly authorized by all necessary action and does not violate any of the terms or conditions of

NYSERDA governing documents, or any contract to which it is a party, or any law, rule,

regulation, order, judgment or other legal or regulatory determination applicable to NYSERDA.

This Agreement constitutes the valid and binding obligation of NYSERDA enforceable against it

in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization,

moratorium and similar laws affecting enforcement of creditors’ rights and remedies generally

and to general principles of equity.

arbitration or administrative proceeding that materially adversely affects NYSERDA’s ability to

perform its obligations under this Agreement.

3.2 City Representations and Warranties. City hereby represents and warrants to NYSERDA

as follows:

(a) City has received all required approvals from the New York City Corporation

Counsel, the New York City Mayor’s Office of Contract Services, and the New York City Office

of Management and Budget in connection with this Agreement as provided herein.

(b) The execution and delivery by City of this Agreement do not, and the

performance by the City of its obligations hereunder will not, violate or conflict with any

constitutional provisions or law of the State of New York or administrative regulation or the

provisions of any judgment, loan agreement, note, resolution or agreement to which City is a

party or otherwise subject.

proceeding or investigation is pending or, to the knowledge of the signatory of this Agreement

on behalf of City without conducting an investigation, threatened against City in any court or

before any Governmental Authority (i) seeking to restrain or enjoin the execution or delivery of

this Agreement or in any way contesting or affecting the validity of this Agreement or contesting

the powers of City to perform its obligations contained in this Agreement; or (ii) in which a final

adverse decision would materially adversely affect the performance by City of its obligations

contained in this Agreement. The term “Governmental Authority” means and refers to any

legislative body or governmental official, department, commission, board, bureau, agency,

instrumentality, or body having jurisdiction over City.

ARTICLE 4: EVENTS OF DEFAULT

4.1 Events of Default. For purposes of and during the Term, each of the following shall

constitute an event of default (“Event of Default”) by a Party:

(a) if a Party materially breaches any or all of its obligations as described in this

Agreement and such breach is not cured within thirty (30) calendar days of written notice of such

breach from the other Party or upon the termination of any extension to the initial 30 calendar

day cure period as mutually agreed to by the parties;

(b) if any representation or warranty made by a Party in Article 3 of this Agreement

proves to have been misleading or false in any material respect when made;

under this Agreement;

(d) if NYSERDA is unable to deliver a combination of Tier 4 RECs and Offshore

Wind RECs to City over a period of two consecutive calendar years equal to the Actual Quantity

for the same period; provided that such event shall not constitute an Event of Default until after

City first engages in good faith negotiations with NYSERDA for a period of at least thirty (30)

calendar days regarding a potential cure or other means to resolve this deficiency; and/or

(e) if a Party:

(i) makes an assignment or any general arrangement for the benefit of its

creditors; files a petition or otherwise commences, authorizes or acquiesces in the

commencement of a proceeding or cause under any bankruptcy or similar law for the protection

of creditors, or has such a petition filed against it; or

(ii) otherwise becomes bankrupt or insolvent (however evidenced); or

becomes unable to pay its debts as they become due.

ARTICLE 5: REMEDIES UPON DEFAULT AND TERMINATION

5.1 Remedies. Upon an Event of Default, the non-defaulting Party may (a) terminate this

Agreement upon written notice to the defaulting Party, (b) withhold any payments due in respect

of this Agreement, (c) withhold Delivery of Tier 4 RECs or Offshore Wind RECs otherwise

required under this Agreement, and/or (d) exercise its legal rights to secure payment of amounts

due and owing to the non-defaulting Party by the defaulting Party. Notices by the Parties

pursuant to this section shall be in accordance with Section 6.1.

5.2 Exclusive Remedy and Limitation of Liability. The remedies set forth in this Article 5

shall be the sole and exclusive remedies of the Parties if there is an Event of Default, and a

Party's liability shall be limited as set forth in this Article. In no event shall any other liability be

incurred by either Party for any obligations that arise under this Agreement, including, but not

limited to, liability for consequential, incidental, punitive, exemplary, or indirect damages in tort,

contract, or otherwise. All other remedies or damages at law are hereby waived.

5.3 Obligation to Mitigate. Each Party shall make reasonable efforts to mitigate its economic

losses associated with an Event of Default by the other Party. Reasonable efforts on the part of

City shall include, at a minimum, attempting to purchase RECs from renewable resources

directly connected to the electric grid within New York City. Reasonable efforts on the part of

NYSERDA shall include, at a minimum, attempting incremental voluntary sales of the Tier 4

RECs that would reduce the cost of the Tier 4 program to New York State ratepayers.

5.4 Termination for PSC Determination. This Agreement shall terminate thirty (30) calendar

days after the PSC makes a determination, by Order, that City’s continued performance under

this Agreement and concurrent non-participation in CES tiers other than Offshore Wind no

longer results in net financial savings to New York ratepayers, provided that this termination

shall be suspended in the event either Party challenges the PSC’s Order, and such suspension

shall continue until all appeal rights have been exhausted.

5.5 Termination for Failure to Approve Purchase Agreements. Each Party’s obligations under

this Agreement are subject to NYSERDA obtaining PSC approval of both Purchase Agreements.

The City shall have the right to terminate this Agreement upon written notice to NYSERDA

delivered not more than thirty (30) calendar days after the PSC issues an Order containing a

determination not to approve both Purchase Agreements, provided that if one or more timely

petitions for rehearing of the PSC Order is submitted, this right shall arise subsequent to the date

of issuance of a PSC Order on the rehearing petition(s).

5.6 Termination for Failure to Commence Operations. The City shall have the right to

terminate this Agreement, in its sole discretion, upon written notice to NYSERDA, in the event

both the CHPE Project and CPNY Project have not commenced commercial operation by June

30, 2031.

5.7 Termination of Purchase Agreements. In the event that both Purchase Agreements are

terminated in accordance with the terms thereof, NYSERDA shall immediately notify City and

City shall have the option, in its sole discretion, to convert this Agreement to a purchase

agreement for Offshore Wind RECs with the purchase price for such Offshore Wind RECs set at

the price of Offshore Wind RECs charged to load-serving entities for the same period of time,

and appropriate adjustments to other terms. If City exercises this option, the Parties agree to

meet and negotiate in good faith regarding changes to the terms of this Agreement necessary, if

any, to effectuate City’s decision. If City declines to exercise this option, this Agreement shall

terminate immediately.

5.8 Termination Upon Final Determination of Breach of Indigenous Communities

Obligations. In the event that (a) a final binding determination has been made in accordance

with Section 2.9 that NYSERDA has breached the Indigenous Communities Obligations, and (b)

the CPNY Project fails to commence generating Tier 4 RECs by June 30, 2031 or fails to

produce Tier 4 RECs over two consecutive calendar years equal to the Actual Quantity for the

same period, City shall have the right, upon written notice to NYSERDA, either to (i) terminate

this Agreement, or (ii) convert this Agreement to a purchase agreement for Offshore Wind RECs

with the purchase price for such Offshore Wind RECs set at the price of Offshore Wind RECs

charged to load-serving entities for the same period of time, and appropriate adjustments to other

terms.

5.9 Termination Upon Mutual Agreement. This Agreement may be terminated upon the

mutual agreement of the Parties.

5.10 Liability Upon Termination. Upon termination of this Agreement for any reason set forth

in Article 5, neither Party shall have any further obligation or liability to the other Party other

than that (i) City shall be obligated to pay for Tier 4 RECs accrued on its behalf pursuant to this

Agreement prior to termination, and (ii) NYSERDA will Deliver to City NYGATS Account any

Tier 4 RECs for which City has made payment prior to termination.

5.11 Exceptions. None of Sections 5.2 or 5.10 shall apply to any Event of Default arising from

(i) City’s failure to comply with its obligations under Section 2.10 or (ii) an act of willful

misconduct of either Party.

ARTICLE 6: NOTICES

6.1 Notices.

(a) All notices, requests, consents, approvals and other communications which may

or are required to be given by either party to the other under this Agreement shall be in writing

and shall be transmitted either:

(i) via certified or registered United States mail, return receipt requested;

(ii) by personal delivery;

(iii) by expedited delivery service; or

(iv) by e-mail, return receipt requested.

(b) Such notices shall be addressed as follows, or to such different addresses as the

parties may from time-to-time designate as set forth in paragraph (c) below:

To City: Department of Citywide Administrative Services

Attn: Deputy Commissioner, Energy Management

1 Centre Street

New York, New York 10007-1602

Email: [email protected]

With a copy to: Department of Citywide Administrative Services

Attn: Office of General Counsel

1 Centre Street

New York, New York, 10007-1602

Email: [email protected]

To NYSERDA: NYSERDA

Attn: Office of the General Counsel

17 Columbia Circle

Albany, New York 12203-6399

Email: [email protected]

With a copy to: NYSERDA

Attn: Large Scale Renewables

17 Columbia Circle

Albany, New York 12203-6399

Email: [email protected]

delivery or, in the case of expedited delivery service or certified or registered United States mail,

as of the date of first attempted delivery at the address and in the manner provided herein, or in

the case of email, upon receipt of an email acknowledgement of receipt.

(d) Each Party may, from time to time, specify any new or different address in the

United States as its address for purpose of receiving notice under this Agreement by giving

fifteen (15) calendar days written notice to the other Party sent in accordance herewith. The

Parties agree to mutually designate individuals as their respective representatives for the

purposes of receiving notices under this Agreement. Additional individuals may be designated in

writing by the Parties for purposes of implementation and administration/billing, resolving issues

and problems and/or for dispute resolution.

ARTICLE 7: MISCELLANEOUS

7.1 Force Majeure.

(a) “Force Majeure” for purposes of this Agreement means an event or circumstance

that was not reasonably anticipated as of the Effective Date: (i) that was not within the control of

the Party claiming its occurrence; (ii) that could not have been prevented or avoided by such

Party through the exercise of reasonable diligence; and (iii) that directly prohibits or prevents

such Party from performing its obligations under this Agreement. A Force Majeure event for

purposes of this Agreement shall include a Force Majeure event affecting the CHPE Project or

CPNY Project. For avoidance of doubt, to the extent meeting the foregoing requirements,

examples of events that may constitute Force Majeure include:

acts of God, an act or threatened act of the public enemy, war (imminent, declared

or otherwise), blockade, accidents of navigation or breakdown or injury of

vessels, accidents to harbors, docks, canals or other assistances to, or adjuncts of,

shipping or navigation, perils of the sea, air crash, shipwreck, train wrecks or

other failures or delays of transportation, nuclear emergency, radioactive

contamination, cyber-attack, ionizing radiation, release of hazardous waste or

materials, sabotage, terrorist acts, invasion, insurrection, riot, non-site specific

industrial disturbance by a union or organized labor (including any non-site

specific strike or boycott), pandemics (and actions undertaken by governments in

response thereto), fire, flood, lightning, earthquake, hurricane, tornado, waves or

winds of extreme force, extreme accumulation of snow or ice, epidemic,

explosion or any similar cataclysmic occurrence, acts, inaction or restraints of a

governmental authority (excluding the Parties) which temporarily or permanently

prevent required performance under this Agreement.

Under no circumstances shall Force Majeure include (x) any occurrence or event that

merely increases the costs or causes an economic hardship to a Party, or (y) any occurrence or

event that was caused by or contributed to by the Party claiming the Force Majeure. In addition,

a delay or inability to perform attributable to a Party’s lack of preparation, a Party’s failure to

timely obtain and maintain all necessary approvals, a failure to satisfy contractual conditions or

commitments, or lack of or deficiency in funding or other resources shall each not constitute a

Force Majeure or be the basis for a claim of Force Majeure, except in each case if any such

failure is caused by an underlying Force Majeure.

(b) If either Party is unable, wholly or in part, by Force Majeure to perform

obligations under this Agreement, such performance shall be excused and suspended so long as

the circumstances that give rise to such inability exist or would exist if the Party claiming the

Force Majeure used commercially reasonable efforts to cure such circumstances, but for no

longer period. The Party whose performance is affected shall give prompt notice thereof; such

notice may be given orally or in writing but, if given orally, it shall be promptly confirmed in

writing, providing details regarding the nature, extent and expected duration of the Force

Majeure, its anticipated effect on the ability of such party to perform obligations under this

Agreement, and the estimated duration of any interruption in service or other adverse effects

resulting from such Force Majeure, and shall be updated or supplemented to keep the other Party

advised of the effect and remedial measures being undertaken to overcome the Force Majeure.

Such inability shall be promptly corrected to the extent it may be corrected through the exercise

of commercially reasonable due diligence. Neither Party shall be liable for any losses or damages

arising out of a suspension of performance that occurs because of Force Majeure.

perform its obligations, as described in Section 7.1(b), persists for more than twenty-four (24)

consecutive months. Any such termination shall be with no further obligation or liability to the

other Party other than that NYSERDA will Deliver to City NYGATS Account any Tier 4 RECs

for which City has made payment prior to termination.

(d) In the event NYSERDA is unable to perform its obligations under this Agreement

due to a Force Majeure, and the Force Majeure persists for more than six (6) months, City shall

have the option of purchasing Offshore Wind RECs in an amount equal to the quantity of Tier 4

RECs that would have been set aside or designated for future Delivery to City for any continuing

portion of such period of Force Majeure after such initial six (6) months and shall use

commercially reasonable efforts to make Offshore Wind RECs available to City to purchase

covering the initial six (6) month period. The invoicing, pricing, and Delivery provisions of

Sections 2.3, 2.4, and 2.5 shall apply during the period this provision is in effect, and the pricing

shall be as set forth in Section 2.5(c).

7.2 Approvals. This Agreement shall be neither binding nor effective unless and until it is

registered pursuant to New York City Charter § 328.

7.3 Severability. If any provision of this Agreement shall be declared by any court of

competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement

shall not be affected and shall remain in full force and effect provided that the rights or

obligations of any Party under this Agreement will not be materially and adversely affected

thereby. If any provision of this Agreement is so broad as to be unenforceable, that provision

shall be interpreted to be only so broad as will enable it to be enforced. In lieu of any illegal, void

or unenforceable provision, the Parties will endeavor to add to this Agreement a legal, valid and

enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as

may be possible.

7.4 Waiver. No delay or omission by a Party in the exercise of any right under this

Agreement shall be taken, construed or considered as a waiver or relinquishment thereof, and

any such right may be exercised from time to time and as often as may be deemed expedient. If

any of the terms and conditions hereof are breached and thereafter waived by a Party, such

waiver shall be limited to the particular breach so waived and is not deemed to waive any other

breach hereunder.

7.5 Offshore Wind REC Option. The Parties acknowledge that, City’s ability to purchase

and NYSERDA’s ability to sell Offshore Wind RECs as provided in Sections 2.5(c), 2.9(c), 5.7,

5.8 and 7.1(d) of this Agreement is subject to the creation of a sufficient number of Offshore

Wind RECs for Delivery to City at such time as such option is exercised.

7.5 Dispute Resolution. The Parties shall use good faith efforts to settle all disputes arising

under this Agreement. In the event that a dispute cannot be resolved in the normal course of

business, there will be an attempt to resolve the dispute by negotiation between representatives

who have the authority to settle the controversy. To the extent the dispute is not resolved under

this process, non-binding mediation may be elected by said representatives by written notice.

The dispute may be submitted to an expedited, non-binding mediation proceeding before a

qualified mediator in accordance with the mediation rules of the American Arbitration

Association. Any mediation will be considered an effort to settle the dispute and no written

decision will be issued. The Parties reserve the right to seek judicial relief at any time.

7.6 Assignment. Except as specifically provided otherwise in this Section 7.6, the

assignment, transfer, conveyance, subcontracting or other disposal of this Agreement or any of

either Party’s rights, obligations, interests or responsibilities hereunder, in whole or in part,

without the express consent in writing of the other Party shall be void and of no effect as to such

Party. Such consent shall not be unreasonably withheld.

Either Party may, upon written notice, assign its rights and obligations hereunder, or transfer

such rights and obligations by operation of law, to any entity with which or into which such

Party shall merge or consolidate or to which such Party shall transfer all or substantially all of its

assets, provided that such other entity agrees to be bound by the terms hereof and provided

further, that such other entity’s creditworthiness is comparable to or higher than that of such

Party at the time this Agreement was executed.

7.7 Entire Agreement; Amendment. This Agreement embodies the entire agreement and

understanding between the Parties and supersedes all prior agreements and understandings

relating to the subject matter hereof. Except as otherwise expressly provided for herein, this

Agreement may be amended, modified, changed, waived, discharged or terminated only by an

instrument in writing, signed by both Parties.

7.8 Further Assurances. The Parties agree to cooperate and execute supplementary

documents and take additional actions, in each such case, that are reasonably requested by the

other Party, which may be necessary or appropriate to give full force and effect to the basic terms

and intent of this Agreement. Each Party shall have discretion to determine which requests by

the other Party are reasonable. If, through mistake, oversight or otherwise, any provision of law

required by the laws of the State or City of New York is not contained herein, or is not contained

herein in correct form, this Agreement shall, upon the application of either Party, promptly be

amended so as to comply with the laws of the State and City of New York with respect to the

inclusion in this Agreement of all such provisions.

7.9 Governing Law/Venue. This Agreement shall be governed by and construed in

accordance with the laws of the State of New York applicable to contracts executed and to be

performed in New York State without regard to its conflicts of laws principles. Subject to any

applicable requirements of the New York Civil Practice Laws and Rules, the parties irrevocably

acknowledge and accept that all actions arising under or relating to this Agreement, and the

transactions contemplated hereby and thereby shall be brought exclusively in a United States

District Court or New York State Court located in New York County, New York having subject

matter jurisdiction over such matters, and each of the Parties hereby consents to and accepts such

personal jurisdiction of, and waives any objection as to the laying of venue in, such courts for

purposes of such action.

7.10 Headings. The Article and Section titles in this Agreement are only for purposes of

convenience and do not form a part of this Agreement and will not be taken to qualify, explain or

affect any provision thereof.

7.11 Construction. This Agreement is the product of negotiation and joint effort between the

Parties. Accordingly, the language, terms and conditions of this Agreement shall not be

construed more strictly against either of the Parties in the event a question of interpretation,

construction or meaning should hereafter arise.

7.12 No Third-Party Beneficiaries. Nothing herein is intended to or should be construed to

create any rights of any kind whatsoever in third persons not parties to this Agreement.

7.13 Freedom of Information Law. The Parties acknowledge that both Parties are subject to

and must comply with the requirements of New York’s Freedom of Information Law (“FOIL;”

see Public Officers’ Law Article 6); 21 NYCRR Part 501. The FOIL Law (Public Officers Law §

87(d)(2)) provides an exception to disclosure for records or portions thereof for numerous

reasons, including but not limited to protected material that “are trade secrets or are submitted to

an agency by a commercial enterprise or derived from information obtained from a commercial

enterprise and which if disclosed would cause substantial injury to the competitive position of

the subject enterprise.” If either Party receives a request from a third party for information or a

document received from the other Party which has been marked “Confidential” or “Proprietary,”

the Parties agree that they will process such request under the procedures provided by FOIL

regulations (21 NYCRR Part 501).

7.14 Claim of Confidentiality. Information of any tangible form including any document that

either Party wishes to be protected from disclosure to third parties, including this Agreement

must be marked “Confidential” or “Proprietary” at the time such information is provided to the

other Party. Notwithstanding the foregoing, NYSERDA, in accordance with the provisions of the

CES Order, shall be permitted to report to the New York State Department of Public Service

through its Records Access Officer seeking confidential treatment as appropriate, as to the

amounts received from City for REC purchases as against the total due each month and on City

compliance or non-compliance, generally, with the terms of this Agreement.

7.15 Counterparts. This Agreement may be executed in counterparts each of which shall be

deemed an original, but all of which taken together shall constitute one and the same instrument.

[Signature Page Follows]

SCHEDULE 2.2

CALCULATIONS OF MONTHLY TIER 4 REC PRICE AND

AND MONTHLY OBLIGATION PAYMENT

1. Weighted Average REC Price

Each month, the weighted average price of Tier 4 RECs (“WAP”) shall be calculated as

follows:

CHPE Monthly Tier 4 REC Price * Monthly Volume of Tier 4 RECs purchased by NYSERDA from the CHPE Project

Monthly Summation of the Volume of Tier 4 RECs purchased by NYSERDA

from the CHPE and CPNY Projects other than RECs compensated based on a share

of revenues earned by NYSERDA from sales of such Tier 4 RECs to voluntary

purchasers

CPNY Monthly Tier 4 REC Price * Monthly Volume of Tier 4 RECs purchased by NYSERDA from the CPNY Project

Monthly Summation of the Volume of Tier 4 RECs purchased by NYSERDA

from the CHPE and CPNY Projects other than RECs compensated based on a share

of revenues earned by NYSERDA from sales of such Tier 4 RECs to voluntary

purchasers

3. Monthly Obligation Payment

(a) If the WAP < CHPE Monthly Tier 4 REC Price,

Monthly Obligation Payment = (WAP + Adder) * Quantity

(b) If the WAP > CHPE Monthly Tier 4 REC Price,

Monthly Obligation Payment = (CHPE Monthly Tier 4 REC Price + Adder) * Quantity

Schedule

2.2-1

SCHEDULE 2.9

INDIGENOUS COMMUNITY COMMITMENTS AND OBLIGATIONS MADE BY HQ

NYSERDA shall cause HQ to undertake the following obligations and commitments with

respect to Indigenous Communities:

Definitions:

As used in this Schedule 2.9, the following terms will have the following meanings:

“Additional QRE Resource” means a generation facility that has first achieved QRE Commercial

Operation (including after refurbishment or other repowering) after October 15, 2020 and that

produces electricity from solar energy, onshore wind energy or any other energy source from

technology that would qualify for Tier 1 of the New York State Clean Energy Standard.

“QRE Commercial Operation” means a state of operational readiness under which (i) generating

capacity is available and physically producing electric energy, and (ii) all rights, abilities, permits

and approvals to schedule and deliver energy to the point of transmission system interconnection

have been obtained.

1. HQ will cause Hydro-Québec (“HQ Parent”) to abide by the terms of its memorandum of

understanding dated May 10, 2021 with the Mohawk Council of Kahnawà:ke concerning the

establishment between them of a joint ownership arrangement with respect to the Québec portion

of the transmission line that is part of the CHPE Project (“Québec Transmission Line”). Key

terms of this ownership arrangement are expected to include:

(a) The Mohawk Council of Kahnawà:ke will acquire an equity or equivalent stake in

the ownership of the Québec Transmission Line, and as such will be entitled to distributions

reflecting that participation.

(b) HQ Parent will use commercially reasonable efforts to foster certain contracting

opportunities for Kahnawà:ke contractors in relation to the construction of the Québec

Transmission Line.

that the perspective of the Mohawks of Kahnawà:ke is taken into account in the environmental

assessment related to the Québec Transmission Line, namely the archaeological potential study,

the archeological surveys and, if required, the archeological excavations.

2. HQ will cause HQ Parent to fulfill its obligations under the contract to purchase the

electricity to be produced by the approximate 204 MW Apuiat wind farm, which will be a

generation facility that has first achieved commercial operation after October 15, 2020 and that

produces electricity from solar energy, onshore wind energy or any other energy source from

technology that would qualify for CES Tier 1 and is jointly owned by several Québec Innu

communities and Boralex Inc. Key elements of that project and/or the contract include:

Schedule 2.9-1

(a) The wind farm will be built within the limits of the Nitassinan, which the Innu

Takuaikan Uashat mak Mani-utenam (First Nation) considers to be its traditional territory, on

public lands in the City of Port-Cartier in the Côte-Nord Region.

(b) The Québec Innu communities and Boralex are 50-50 partners in the project. The

partners will equally share the profits generated by the sale of electricity as per the terms of their

contract with HQ Parent.

the Apuiat wind farm under a 30-year contract.

3. HQ will cause HQ Parent:

(a) To maintain its efforts to prioritize actions taking into account the rights, interests

and perspectives of Indigenous peoples in a manner consistent with any principles or

declarations regarding Indigenous peoples that the Canadian Government, Québec Government

or HQ Parent may adopt, particularly regarding the use of their traditional territories.

(b) In relation to any new power transmission line(s) to be constructed by HQ Parent

to connect any Additional QRE Resource added to the CHPE Project pursuant to Section 2.7 of

the CHPE Agreement to HQ Parent’s existing power transmission network, to consult any

Indigenous groups identified by Canadian government authorities as having filed a credible

comprehensive land claim and/or any Indigenous groups identified according to Canadian

constitutional law as having established rights or credible but unproven claims to the land where

said power transmission line(s) are located, with the objective of reaching agreement on proper

accommodation measures taking into consideration the strength of the prima facie Aboriginal

claim and the seriousness of the impact on the underlying Aboriginal or treaty right. Such

consultation shall be documented including with appropriate environmental evaluations in view

of the contemplated power transmission line and undertaken to assess potential impacts on the

relevant Indigenous group(s) and proper accommodation. Upon request by NYSERDA or HQ,

and if agreed to by the Indigenous group(s) involved, said documentation will be made available

to NYSERDA, HQ, and City.

Agreement and leading to (i) the replacement or modification of technical equipment that will

result in changes in maximum or minimum water levels in the watercourse or (ii) material

environmental impacts, to consult any Indigenous groups identified by Canadian government

authorities as having filed a credible comprehensive land claim and/or any Indigenous groups

identified according to Canadian constitutional law as having established rights or credible but

unproven claims to the land where said existing power plant is located, with the objective of

reaching agreement on proper accommodation measures taking into consideration the strength of

the prima facie Aboriginal claim and the seriousness of the impact on the underlying Aboriginal

or treaty right. Such consultation shall be documented including with appropriate environmental

evaluations in view of the contemplated refurbishment and undertaken to assess potential

impacts on the relevant Indigenous group(s) and proper accommodation. Upon request by

NYSERDA or HQ, and if agreed to by the Indigenous group(s) involved, said documentation

will be made available to NYSERDA, HQ, and City.

Schedule 2.9-2

(d) To conduct whenever required under applicable Québec (provincial) and

Canadian (federal) statutory requirements, an impact assessment regarding:

(i) the construction by HQ Parent of any new power transmission line(s) to

connect any Additional QRE Resource added to the CHPE Project pursuant to Section 2.7 of the

CHPE Agreement to HQ Parent’s existing power transmission network; or

(ii) any refurbishment of an existing power plant identified in the CHPE

Agreement and leading to the replacement or modification of technical equipment that will result

in changes in maximum or minimum water levels in the watercourse, the results of which will be

shared in a timely manner with the relevant Indigenous groups identified according to Canadian

constitutional law who will be invited to provide their comments and concerns, if any. If

requested by the Indigenous group, such comments and responses may be made public on the

HQ Parent website or through means agreed upon between HQ Parent and the relevant

Indigenous groups.

Schedule 2.9-3