Agenda Item C.2
DISCUSSION/ACTION ITEM
Meeting Date: May 16, 2023
TO: Mayor and Councilmembers
FROM: Peter Imhof, Planning and Environmental Review Director
CONTACT: Dana Murray, Sustainability Manager
Angeline Foshay, Sustainability Management Assistant
SUBJECT: Home Solar and Battery Storage Program City Participation Agreement through the Sustainable Community Network Program
RECOMMENDATION:
Authorize the City Manager to enter into a Program Participation Agreement with Electriq Power, Inc. for City participation in the Sustainable Community Network Program.
BACKGROUND:
The Sustainable Community Network Program (SCN) is closely aligned with the City’s Sustainability goals. Investing in the development and installation of clean energy infrastructure is identified in the City’s budget priorities and Strategic Plan as a means of promoting environmental vitality and supporting the City’s transiti on to a clean energy future. Identified as the Sustainability Program’s second priority for upcoming projects in the Planning & Environmental Review Department’s 2022-2023 Annual Work Program, developing and implementing a home solar and battery storage pr ogram would help expand community access to renewable energy and improve energy resilience.
Additionally, participation in SCN supports the City’s Strategic Energy Plan (SEP), which includes a goal of moving community -wide electricity supply to 100% renewa ble energy by 2030.
Providing sustainable off -grid energy to a greater portion of the community not only contributes to Goleta’s energy goals, but also its resilience goals. Of the goals identified during community outreach for the SEP, community resilience, improved reliance on local resource generation, and improving public safety were among the most important goals cited by stakeholders and residents. City partnership in this program will continue to strengthen Goleta’s clean energy resilience and infrastructure.
Electriq Power (EP) has created the Sustainable Community Network Program (SCN) to provide residential solar -microgrid, behind –the-meter smart home battery and solar photovoltaic install ation to participants through a Power Purchase Agreement (PPA). 1 Meeting Date: May 16, 2023
Unlike traditional PPAs, the SCN PPA has no FICO requirement, no property lien, and no deposit or other upfront cost, and is easy to buy out or transfer to a new property owner.
SCN provides the program through a partnership with a local stakeholder (city or county government) to ensure the PPA is validated and to support programmatic outreach into the local community.
An important goal of th e SCN program is to improve resilience and protect against the worst impacts of power outages. Planned and unexpected power outages can occur throughout Goleta and the local region at any time and for multiple reasons. Our region faces significant threats to re liability and resiliency due to its geographic location at the end of Southern California Edison’s (SCE’s) high-voltage transmission lines. The area is at risk of experiencing a prolonged electrical outage should the two transmission lines serving the area, but which share the same tower alignment, experience a simultaneous disruption, as happened during the Thomas Fire. An emergency such as wildfire, debris flow, earthquake or other catastrophic event is a risk to maintaining continued electrical service. When dangerous weather conditions create a high risk for wildfire, SCE may proactively shut off power to customers to reduce the threat of wildfires. Such intentional power outages are called Public Safety Power Shutoffs. Whole communities can be left without power, and individual electricity consumers have no recourse unless they are able to provide their own resilient, backup source of electricity, such as through solar - microgrids provided by the SCN program.
Extremely hot weather drives up electricity use, which strains the grid, sometimes resulting in rolling blackouts to ensure the grid does not fail. These “heat events” and the associated stress on the grid usually peak towards the evening hours, when solar generation declines and consumers are returning home, increasing demand for electricity.
When this occurs, Flex Alerts are issued and consumers are asked to adjust thermostats, unplug unused electronic devices, and turn off unnecessary lights. Every power outage creates hardships for customers and communities, especially with the increase in people working from home. Such power outages are particularly impactful for vulnerable members of the community, such as children and seniors.
In addition to reducing carbon emissions, residential solar mic rogrid (RSM) systems are designed to offer customers of all income levels more secure electrical power. The SCN provides RSM systems without the usual financial barriers that disproportionately affect members of low- and moderate -income communities. SCN ensures access to these systems by anyone in the community regardless of credit score or income. RSM systems can act as a backup power supply in the event of an outage and can also reduce stress on the grid by providing local renewable power sources, making outages less likely in the first place and mitigating their impact when they happen.
Thus far, the City of Santa Barbara is the only other local jurisdiction in the County to have endorsed this program, but EP is conducting outreach to other local gove rnment jurisdictions. EP recently announced an agreement with San Luis Obispo Climate Coalition, a climate change aligned Community Based Organization in San Luis Obispo County, and will be rolling out the SCN program in that region through their partnership.
Unlike the PACE solar financing programs that needed local government approval to 2 Meeting Date: May 16, 2023
operate, SCN can operate anywhere in the county, including Goleta, right now regardless of endorsements. However, EP is seeking partnerships and endorsements fr om local governments to help promote the SCN program so more people trust it and so there are more microgrids built, and thus more local energy resiliency. The City of Santa Barbara is the first jurisdiction to partner and endorse, and Goleta has the opportunity to be the second city.
Currently, the revenue that is generated by projects through SCN in Goleta (and anywhere in Santa Barbara County) is going to the City of Santa Barbara only, until another jurisdiction signs on to a program participation agre ement. Once another jurisdiction (like Goleta) partners with EP in the SCN , the local city will receive revenue from projects enrolled in the program after the date the Participation Agreement is executed; at which point Santa Barbara would no longer get t he revenue from new projects within the City of Goleta.
In advance of bringing this program to City Council and Goleta residents, staff brought the item to the Energy and Green Issues Standing Committee (Green Committee) on January 23, 2023 to consider City participation. The Green Committee recommended City participation in the program. Following the Green Committee’s recommendation, the City and EP negotiated a program participation agreement, and the City’s legal team reviewed the standardized PPA entered into between SCN and the local property owners, as well as the SCN program participation agreement between the City and EP.
DISCUSSION:
By enrolling in the program, Goleta would provide support for improving local equitable access to renewable and resilient energy, as laid out and prioritized in the City’s Strategic Energy Plan. SCN aligns with this vision, enabling residents to access sol ar energy generation and battery storage systems in their homes, regardless of financial qualifications. SCN is designed to ensure everyone can participate in the clean energy transition, removing traditional financial barriers that many experience when pu rsuing solar and battery systems. Renters can also benefit; however, homeowner/landlord authorization and involvement would be required for rental homes.
For the City to participate and partner in the program, Goleta would need to enter into a program participation agreement with EP for SCN participation (Attachment 1). Under this agreement, the City would not need to commit any funds to the program and would instead earn a share of revenue ( 5%) from all PPAs under the program within the City, once a spe cified minimum threshold balance in the revenue sharing escrow account is reached and maintained. This escrow account threshold balance serves as a financial security against risk of customer late payment or default and allows the program to do away with any FICO requirement or property -specific lien. Use of this financial structure enables the PPA to be offered to the entire community, regardless of access to credit and traditional financial instruments, thereby unlocking participation in the clean energy transition to all.
3 Meeting Date: May 16, 2023
The 5% revenue share begins to accrue into the escrow account as soon as the PPA payments begin. Although the exact timing is difficult to estimate precisely, SCN expects it will take about two years before it meets the minimum thres hold and revenue begins flowing to the City. This timing depends on the rates of default and the economics of the individual systems in the program. Even before the City begins to receive a revenue share, the SCN program will contribute to local investment and jobs, climate change benefits, and community engagement opportunities.
SCN is enabled in a community through a partnership with a local stakeholder, usually a city or county, that serve s local constituents. The City of Santa Barbara already participates as the first partner with SCN through its “Santa Barbara Home Power Program.” Local government partners in SCN enter into a program participation agreement, which describes the stakeholder role in the SCN program. The City of Goleta SCN participation agreement is attached along with a model PPA (Attachment 2). Note that the City would not be a direct party to the PPA between EP’s SCN and residential customers. A model PPA is attached so participating residents can know whether the PPA they sign match es the one the City reviewed to ensure transparency and consistency.
The City of Goleta would agree to support the program through public outreach, marketing, workshops, newsletters, and listing on the City ’s website, etc. This outreach would direct interested residents to the programmatic/enrollment website that would be created with Goleta branding, including Goleta's logo, similar to the one created for the City of Santa Barbara.
GOLETA STRATEGIC PLAN:
Investing in the development and installation of clean energy infrastructure is identified in the City’s budget priorities and Strategic Plan as a means of promoting environmental vitality and supporting the City’s transition to a clean energy future. This item aligns with the following sections of the 2021-2023 Goleta Strategic Plan:
2021-2023 Strategic Plan:
City-Wide Strategy: 1. Support Environmental Vitality
Strategic Goal: 1.1 Promote renewable energy, energy conservation and local energy resiliency
FISCAL IMPACTS:
There is no cost to the City by entering into the SCN program participation agreement.
However, should the Council authorize participation, the City may accrue revenue as a program partner.
For its participation in the program, 5% of the monthly revenue collected from the PPAs enrolled in SCN will be deposited into a bank account (Escrow) established and managed by EP for distribution to the City according to the terms and conditions detailed in the 4 Meeting Date: May 16, 2023
agreement (Attachment 1). The revenue share for the applicable PPAs owed to the City would be deposited into Escrow , contingent upon conditions being met and maintained including a minimum balance of $30,000 (Threshold Balance) . When the conditions are satisfied, the funds in Escrow would be distributed to the City for unconditional use.
ALTERNATIVE:
The Council may elect not to enter into the SCN program participation agreement and the City would not be an official partner with the program, not promote or co -brand the program, and would not accrue revenue. The SCN program would still operate in Goleta but the revenue would go to the City of Santa Barbara instead.
Reviewed By: Legal Review By: Approved By:
___________________ ___________________ _________________ Kristine Schmidt Megan Garibaldi Robert Nisbet
Assistant City Manager City Attorney City Manager
ATTACHMENTS:
1. SCN Program Participation Agreement
2. SCN Sample Power Purchase Agreement
3. Staff Presentation
5 ATTACHMENT 1
Sustainable Community Network (SCN) Program Participation Agreement 6 SUSTAINABLE COMMUNITY NETWORK PROGRAM PARTICIPATION AGREEMENT
This Goleta Sustainable Community Network Programmatic Participation Agreement (“Agreement”) entered into on this day, _____________, 2023 is between the City of Goleta (the “Participant” or the “ City”), a City in the State of California and Electriq Power Inc., (“ EP”) with a principal place of business of 1937 Davis St., A1, San Leandro, CA 94577, collectively, the “Parties”.
RECITALS:
Whereas: EP’s Sustainable Community Network Program is a Public-Private partnership that works with various stakeholders, such as Participant, to provide a Power Purchase Agreement, financed through one or more System Owner(s) (each a “PPA”), behind-the-meter solar-residential microgrid (the “System”) to residential electricity consumers in, or identifying with, Participant’s jurisdiction, without typical credit checks as a means to establish the eligibility of a residential consumer or property liens (the “ Program”); and,
Whereas: Participant wishes to participate in the Program, including an endorsement that the PPA or PPAs have no credit check requirement as a means to establish the eligibility of a residential consumer or property liens associated with it, as well as other potential programmatic services that may enhance the Program, for the benefit of local residents and community; and,
Whereas: Participation in this Public -Private partnership may enable Participant to adopt, advance, and achieve various local sustainability, resiliency, and climate change goals, as well as receive a share of the PPA revenue as set forth below; and,
Whereas: the Parties understand their collective involvement as described in the Agreement is important for the Program’s success and it is the intent of the Parties t o share PPA revenue as described below to bring about the shared programmatic goals of bringing sustainable and resilient energy to local communities;
NOW, THEREFORE, in consideration of the mutual covenants, undertakings and conditions set forth below, the Parties hereby agree as follows:
1. Programmatic Participation.
a. Endorsement. The Participant (i) agrees to review the Program’s potential System Owner’s standard form PPAs and publicly endorse, in a method and manner agreed upon by the Parties, the presented standard form PPA and the fact that such PPA requires no credit check as a requirement to establish eligibility of a residential consumer or property lien for participation in the Program and (b) as requested by EP, the Participant shall also, through events and other promotional means, including at a minimum authorizing the use of the Participant’s identifying logo on official PPA and Program related materials (the “ Endorsement”), support the dissemination of information related to the Program to its residents so as to enhance market awareness of the Program, alerting them to the Program’s existence, across the community served by Participant, or as otherwise defined by this Agreement, all as described in Exhibit 1 “Programmatic Participation” . This Endorsement shall be attached as an Exhibit to each PPA entered into by residents participating in the Program within Participant’s jurisdiction.
b. Program Administration. The Participant will participate in Program Administration according to the details provided in Exhibit 1. Programmatic Administration, if any, may accelerate the timing 7 and increase the revenue earned by Participant for providing these services which may include participant registration, invoice and collections, PPA notices, document an d programmatic management; from time to time and as necessary to support the Program and the purchase and sale of electricity between the residents and the Sellers.
2. Revenue Earned by Participant, Terms of Distribution, Use of Revenue Share Prior to Distribution.
a. Revenue Earned by Participant . For its participation in the Program 5% of the monthly revenue collected from the PPAs enrolled in the Program endorsed by Participant (the “ Revenue Share”) shall be deposited into a bank account (the “Escrow”) established and managed by EP or the then current owner of the applicable Systems (the “System Owner” or “Seller”) for distribution to the Participant according to the terms and conditions detailed below in Section 2.b of this Agreement.
Participant shall execute and deliver all agreements, certificates, instruments and documents, as EP or the System Owner may reasonably request, in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contempla ted hereby, including but not limited to an Escrow agreement.
Participant acknowledges and agrees that its Revenue Share deposited into Escrow shall provide a First Loss Reserve that will be used to ensure that EP or the System Owner does not experience a reduction in their anticipated revenues in the event of late payments or PPA defaults. During each Disbursement Period during the Term, the “ First Loss Reserve” shall be calculated by EP or the System Owner as the total sum of all lost Expected Revenue due to late payments or PPA defaults during such Disbursement Period. For the purposes of this Agreement, (i) “ Expected Revenue” means the PPA price (for each applicable PPA during the Disbursement Period) multiplied by the expected output (as defined in Exhi bit B of each such applicable PPA during the Disbursement Period), and (ii) “ Disbursement Period” means a calendar year during the Term. Participant acknowledges that Revenue Share earned under this Agreement is, along with other credit enhancement attributes associated with the Program, critical to the ability for the Program to offer its PPA without a credit check requirement as a means to establish the eligibility of a residential consumer or property liens.
Participant shall have reasonable and unint errupted Escrow account activity access, including balances, deposits, and debits, during the Term of the Program. For purposes of this Agreement, the “Term” of the Program shall commence once the first System under a qualifying PPA achieves system activation and shall terminate upon the last qualifying PPA to terminate or expire. The Revenue Share for the applicable PPAs owed to the Participant shall be deposited into Escrow within fifteen (15) days of the end of the prior calendar month and such deposit s hall continue for the remainder of the term of such applicable PPAs provided Participation is not interrupted or the applicable PPAs or this Agreement is not otherwise terminated. b. Terms of Distribution. Disbursement of Revenue Share to Participant from Es crow is contingent upon the following conditions being met and maintained:
i. A minimum balance of $30,000 (the “Threshold Balance”) in the Escrow has been achieved and maintained;
ii. A minimum of $500 per home enrolled in the Program is held in Escrow; iii. The default rate for any three consecutive months (the “Rolling Default Rate”) of the homes enrolled in the Program is less than the Revenue Share for six months; 8 iv. In the event the Escrow has been exhausted, all amounts owed to the System Owner are paid in full prior to resumption of Revenue Share deposits; and v. The Participant has, in the reasonable judgment of EP and the System Owner, met its responsibilities and obligations as described in Exhibit 1.
When the above conditions are satisfied, EP or the System Owner shall, within ninety (90) days of the closing of the Disbursement Period in which the above conditions were satisfied, disburse the funds in Escrow to the Participant for unconditional use; provided such disbursement shall not be made more than once per calendar year.
c. Use of Escrow funds Prior to Distribution. Prior to distribution of Revenue Share from Escrow to the Participant, EP or the System Owner may use the funds in Escrow, without notice to Participant, to make up for any late or defa ulted payment that would otherwise and ordinarily be made to EP or the System Owner. For the avoidance of doubt the funds in the Escrow may be used by EP or the System Owner, provided, however, such use is to cover late or defaulted PPA payment owed to EP or the System Owner as if all PPA payments were made per the terms of the PPA. Escrow funds are intended to be used to make up for late or defaulted PPA payments and if such use causes the Escrow fund to drop below the Terms of Distribution in Section 2(b) above then no distribution shall be made prior to Escrow returning to compliance. Further, if Escrow funds are expended but late payments or defaults continue that would otherwise have been covered by the Escrow, EP or the System Owner shall recover these amounts before the Revenue Share distributions resume. If a PPA payment arrives after the withdrawal of funds have been made from the Escrow to complete normal payments to EP or the System Owner the PPA payment shall be paid directly, in full, into Escrow so as to avoid double payments to EP or the System Owner.
3. Assignment. This Agreement may be assigned in whole or in part (including collateral assignment of this Agreement to financing parties) by EP or future System Owners, without the prior written consent of Participant, provided such assignment preserves the terms of the Agreement. In the event of any such assignment the Assignor shall be released from all its liabilities and other obligations under this Agreement. This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees.
4. No Legal Advice or Professional Services. Neither the Participant nor EP is providing legal or professional advice about the Program.
5. Indemnification. Each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and the directors, officers, shareholders, partners, members, agents and employees of such other Party, and the respective affiliates of each thereof (collectively, the “Indemnified Parties”), from and against all loss, damage, expense, liability and other claims, including court costs and reasonable attorneys’ fees (collectively, “Liabilities”) resulting from any third party actions relating to the breach of any representation, warranty, or covenant set forth in this Agreement, and from injury to or death of persons, and damage to or loss of property to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees) in connection with this Agreement; provided, however, that nothing herein shall require the Indemnifying Party to indemnify the Indemnified Party for any Liabilities to the extent caused by or ar ising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnified Party. Participant is specifically indemnified for any damages or liabilities alleged or found in judgment by residents whose participation in the Program was induced by Participant’s involvement in the Program and the Parties agree Participant shall not be liable for any activity or participation associated with the Program unless such liability is directly linked to willful misconduct or grossly 9 negligent activity by Participant. Participant waives, to the fullest extent permitted by applicable law, any claim for sovereign immunity associated with liability under this Agreement.
6. Choice of Law. The law of the state where the System is located shall govern this Agreement without giving effect to conflict of laws principles.
7. Disputes, Arbitration and Attorneys’ Fees. Any dispute arising from or relating to this Agreement shall be settled first by good -faith negotiations between the parties around the principles de scribed in the recitals of the Agreement. Good faith negotiations shall begin and be pursued using commercially reasonable and time is of the essence standards commencing within 15 days of a Party delivering written notice to the other Party of the dispute. If no resolution is agreed to within 90 days following notice of dispute, the parties may agree to settle the issue by arbitration; venue to be in the County jurisdiction where the Participant is located and administered according to the American Arbitra tion Association (“AAA”), pursuant to its then current Commercial Arbitration Rules with a sole neutral arbitrator selected in accordance with the AAA Commercial Arbitration Rules. Judgment on the dispute, and on any award that may be determined by the Arbiter, may be entered in any court of competent jurisdiction.
If the Parties agree, any dispute may be mediated prior to arbitration subject to any party’s right to initiate arbitration of the dispute. The prevailing party, as determined by the arbitrator, in any dispute arising out of this Agreement shall be entitled to reasonable attorneys’ fees, costs, AAA administrative fees, and arbitrator’s fees and expenses.
8. Notices. All notices under this Agreement shall be in writing and shall be by personal deliver y, electronic mail, overnight courier, or regular, certified, or registered mail, return receipt requested, and deemed received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with over night courier, or five (5) days after deposit in the mail.
Notices shall be sent to the person identified in this Agreement at the addresses set forth in this Agreement or such other address as either Party may specify in writing. Each Party shall deem a document emailed or electronically sent in PDF form to it as an original document.
9. Survival. Provisions of this Agreement that should reasonably be considered to survive termination of this Agreement shall survive.
10. Further Assurances. Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.
11. Right of Waiver. Each Party, in its sole discre tion, shall have the right to waive, defer or reduce any of the requirements to which the other Parties is subject under this Agreement at any time (other than with respect to and/or relating to the obligation to make any payment due under this Agreement); provided, however that a Party shall not be deemed to have waived, deferred or reduced any such requirements unless such action is in writing and signed by the waiving Party.
12. Liability Limitation. Except as it relates to a Party’s indemnity obligations under this Agreement, in no event shall any Party be liable to the other Parties, whether in contract, tort or otherwise, for payment of any special, indirect, incidental, consequential, exemplary, punitive or similar damages.
13. No Partnership . No provision of this Agreement shall be construed or represented as creating a partnership, trust, joint venture, fiduciary or any similar relationship between the Parties.
14. Full Agreement, Modification, Invalidity, Counterparts, Captions. This Agreement, together with any Exhibits, completely and exclusively states the agreement of the Parties regarding its subject matter 10 and supersedes all prior proposals, agreements, or other communications between the Parties, oral or written, regarding its subject matter. This Agreement may be modified only by a writing signed by the Parties and approved in advance, in writing, by the System Owner(s). If any provision of this Agreement is found unenforceable or invalid, such unenforceability or invalidity shall not render this Agr eement unenforceable or invalid as a whole. In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. This Agreement may be execute d in any number of separate counterparts and each counterpart shall be considered an original and together shall comprise the same Agreement. The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement.
Participant: City of Goleta
Signature:
Printed Name: Robert Nisbet
Title: City Manager
Date: ____________________
Electriq Power Inc.
Signature:
Printed Name: ________________
Title: ____________________
Date: ____________________
11 Exhibit 1: Programmatic Participation
a. Program Information and Promotion . The City agrees to provide Program information and promotional materials as follows:
i. Notice of Program availability on the City’s Sustainability Program webpage and other websites. The notice will advise potential Customers: (1) that the Program enables disadvantaged and otherwise underserved communities potential access to sustainable and resilient electricity for broader community participation in the clean energy transition, (2) that the Program does not require a Customer credit check or risk potential property liens for participation in the Program, (3) that systems, such as those prov ided by the Program, may provide back -up power to the homeowner during utility outages, (4) that the Program is financed through PPAs between EP and Customers, and (5) that the Program aligns with the City’s sustainability and resiliency goals;
ii. Support the dissemination of information related to the Program to potential Customers so as to enhance market awareness of the Program and educate them on the Program, through events and other promotional means, such as the City’s existing community outreach and engagement channels (including websites, newsletters mailers, social media, public outreach events, etc.).
Support may include dissemination of Program information and marketing materials provided by EP as Participant determines appropriate; and
iii. Authorize EP to use the City’s name and other identifying information on Program -related materials, subject to approval by the City not to be unreasonably withheld. b. Customer Acquisition. The City shall support a Customer Acquisition and Program Administration, in a cooperative and consultative capacity, including:
i. Involvement in and contribution to development of Program specific materials, including their creation, distribution, and follow-up, or other activity, that is intended to result in Customer Acquisition.
ii. Community outreach and programmatic activity specifically created for the Program (but not otherwise already existing into which the Program is simply added). c. Sharing of Data . EP shall provide a monthly report to the City which includes the following information relating to the Program: (i) total capacity of solar energy generation and battery energy storage installed, (ii) total kWh produced, (iii) total revenue collected, and (iv) any other items mutually agreed upon by the Parties.]
12 ATTACHMENT 2
Sustainable Community Network (SCN) Sample Power Purchase Agreement
13 Contract ID # [___________]
1 Power Purchase Agreement: Part I – Payment Terms and Summary This Power Purchase Agreement (“Agreement”) is given to you by [Provider] (sometimes referred to as “we”, “us”, or “our”).
Under the Agreement you agree to buy and we agree to sell all the electric energy generated by a solar power system and related services from a battery storage system that we will own (the “System”), to be installed at your home (the “Property”) as described more fully Part II – Terms and Conditions (“Part II” or “Standard Terms”) of the Agreement. This Part I provides answers to some important questions you may have regarding the terms of the Agreement. The answers to the questions below in this Part I are not intended to answer all questions you may have about the Agreement, and only summarize certain terms of the Agreement. Please read the entire Agreement carefully.
Property Owner(s):
Property Address:
Property Owner Contact Information:
Provider:
--------------------------------------------------
--------------------------------------------------
Payment Terms: $.24/kWh
Monthly Payment:*
Annual Percentage Increase:
(the “Annual Increase”)
[____________]
[___2.9%_________]
*Plus applicable taxes and fees, if any.
What services will we provide?
● We will insure, monitor, operate, maintain and repair the System at no cost to you. ● We will bill you the total monthly payment amount set forth above for each month of the Term. Annual price increases are capped at 2.9% for the full term of the Agreement.
● This Agreement is offered as a part of a program that avoids credit requirements for qualifying, property liens, or hidden costs.
We are able to accomplish this by working with your home city/town, namely [City] (“City”), to support the program (“Program”).
The terms of the City’s participation in the Program are memorialized separately in a Sustainable Community Network Agreement between Us and the City.
What happens if you want to sell your home?
You have three options if you sell your home as described in Part II, Section 6 of the Agreement:
● Assign this Agreement to the buyer if the buyer agrees to assume the obligations herein; or ● Purchase the System from us; or
● Prepay all monthly payments through the remaining term of the Agreement, in which case the buyer would have no additional payment obligations under the Agreement.
Can you end the Agreement early?
● The Term of the Agreement is twenty-five (25) years.
● The only ways to end the Agreement early are if you sell your home or if you purchase the System as described in Part II, Section 7 of the Agreement.
What happens at the end of the Term?
● You may purchase the System as described in Part II, Section 7 of the Agreement; or ● You may ask us to remove the System at no cost to you, as described in Part II, Section 9(c) of the Agreement; or ● The Agreement may automatically renew for up to ten (10) one-year renewal terms as described in Part II, Section 8(a) of the Agreement.
What happens to tax credits, incentives, renewable energy credits and other benefits associated with the System? ● We will own all federal, state and local tax credits, incentives, renewable energy credits, green tags, carbon offset credits , utility rebates or other attributes of and related energy storage services from the System; including renewable energy certificates and any similar environmental attributes associated with the electricity output from the System. 14 Contract ID # [___________]
2 The Payment Terms outlined above are only valid if you sign and return the Agreement to us within thirty (30) days of [ DATE ], which date may be extended at our sole discretion.
By signing below, you agree that you:
● Have read the entire Agreement including any/all Exhibits; ● Agree to all the terms of the Agreement and the Exhibits, including without limitation the arbitration provisions in Part II, Section 19 of the Agreement;
● Are eighteen (18) years of age or older;
● Unless signing as a co-signer, are either a United States resident or are not exempt from paying Federal U.S. income taxes;
● Are the owner of legal title to the home and that every person or entity with an ownership interest in the home has agreed to be bound by the terms of the Agreement;
● Have understood that Provider has the right to obtain and use your consumer report, but this will not impact eligibility;
● Agree that Provider will make a final determination of the property eligibility in its sole discretion; ● Acknowledge that you are responsible for making all payments under the terms of this Agreement; ● Acknowledge that Provider will communicate with you via email and that you must maintain a working email address in order to receive these communications;
● Acknowledge that you will continue to receive a monthly bill from your local utility; ● Acknowledge that the System is owned by Provider and/or its affiliates; and ● Acknowledge that you have been advised of your right to cancel this Agreement.
REST OF PAGE INTENTIONALLY LEFT BLANK
15 Contract ID # [___________]
3 California Right to Cancel Notice:
You, the buyer, may cancel this transaction at any time prior to midnight of the fifth day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right.
BY SIGNING BELOW, YOU ATTEST THAT YOU HAVE RECEIVED A COMPLETELY FILLED -IN COPY OF THIS AGREEMENT AND THE EXHIBITS, AND TWO (2) COPIES OF A NOTICE OF CANCELLATION.
Property Owner’s Name: Co-Owner’s Name (if any):
Signature: Signature:
Date: Date:
TERMS OF AUTOMATIC RENEWAL
PROVIDED THAT (I) YOU ARE NOT IN DEFAULT UNDER THIS AGREEMENT (SEE SECTION 16 IN PART
II) AND (II) YOU HAVE NOT GIVEN US WRITTEN NOTICE OF YOUR INTENT TO PURCHASE THE SYSTEM AT THE END OF THE TERM (AS DESCRIBED IN SECTION 7(A) OF PART II), THIS AGREEMENT SHALL
AUTOMATICALLY RENEW UNLESS WE RECEIVE NOTICE FROM YOU TO THE CONTRARY OR UNTIL THE MAXIMUM NUMBER OF RENEWALS IS REACHED.
TO PREVENT AN AUTOMATIC RENEWAL FROM OCCURRING, WE MUST RECEIVE FROM YOU WRITTEN NOTICE AT LEAST THIRTY (30), BUT NOT MORE THAN NINETY (90), CALENDAR DAYS BEFORE THE SCHEDULED COMMENCEMENT OF AN AUTOMATIC RENEWAL THAT YOU DO NOT WISH TO RENEW.
THIS AGREEMENT WILL RENEW AT A MONTHLY PAYMENT EQUAL TO THE MONTHLY PAYMENT FOR YEAR 25 ESCALATING ANNUALLY AT THE APPLICABLE ANNUAL INCREASE RATE.
AT THE END OF THE ORIGINAL TERM, THIS AGREEMENT WILL RENEW FOR ONE (1) OR MORE ADDITIONAL ONE (1) YEAR RENEWAL TERM(S) FOR A MAXIMUM OF TEN (10) RENEWAL TERMS.
WE WILL SEND YOU A NOTICE AT LEAST THIRTY (30), BUT NOT MORE THAN SIXTY (60), CALENDAR
DAYS PRIOR TO THE END OF THE TERM TO (I) REMIND YOU OF YOUR END OF TERM OPTIONS AN D (II) DISCLOSE TO YOU THE MONTHLY PAYMENT FOR THE FIRST AUTOMATIC RENEWAL TERM AND
THE RATE AT WHICH THE MONTHLY PAYMENT WILL AUTOMATICALLY ESCALATE FOR ANY FUTURE AUTOMATIC RENEWAL TERMS.
16 Contract ID # [___________]
4 Power Purchase Agreement: Part II – Terms and Conditions THESE TERMS AND CONDITIONS (“STANDARD TERMS” OR “PART II”) ARE INCORPORATED BY REFERENCE INTO THE POWER PURCHASE AGREEMENT: PART I – PAYMENT TERMS AND SUMMARY (“PART I”) BETWEEN PROVIDER AND THE PROPERTY OWNER. IN THE EVENT OF A CONFLICT BETWEEN THESE STANDARD TERMS AND PART I, THESE STANDARD TERMS SHALL GOVERN. THESE STANDARD TERMS AND PART I ARE COLLECTIVELY REFERRED TO HEREIN AS THE “AGREEMENT.”
1. General.
(a) Introduction. This Agreement is the agreement
between each Property Owne r who s igns Part I of this Agreement (individually and together referred to in this Agreement as “you” and “your”) and [Insert Provider]
(together with its successors and assigns, “Provider” or “we”, “us” or “our”), for the sale to you of the electric energy (“Energy”) generated by a solar energy generation and battery storage system that we will own, which
includes solar panels, mounting systems, inverters,
energy monitoring systems, batteries and other
equipment (collectively, the “ System”) to be installed at your reques t at the Property Address shown on Part I
pursuant to an installation agreement between you and a licensed contractor (“Installer”). Because of your
agreement to purchase Energy and related battery
storage services pursuant to this Agreement, Provider
has agreed, at your request, to purchase the System from Installer following installation. This Agreement refers to the location of the installed System as the “Property”.
Provider agrees to sell to you, and you agree to buy from Provider, all of the Energy generated by the System on the terms and conditions described in this Agreement. By signing this Agreement, you confirm that you are a
Property Owner signing on behalf and with the
consent and authorization of all Property Owners of
the Property, a trustee if the Property is owned by a
trust, or an attorney in fact or agent authorized under a written power of attorney to sign on behalf of the
Property Owners.
(b) In-Service Date. The In-Service Date is the first day after all of the following have been achieved: the System has been installed and is capable of generating
Energy and providing battery storage services, all permits necessary to operate the System have been
obtained, the System has been interconnected with the
local utility’s electric gri d, all inspections, back -up documentation, and certificates required under applicable law or by the local utility have been provided to Provider and all conditions listed in Section 10 have been
satisfied.
(c) Term of Agreement . The “Term” of this
Agreement begins on the In -Service Date and runs for
twenty five (25) years (300 full calendar months) plus, if the In-Service Date is not on the first day of a calendar month, the number of days left in that partial calendar month. If the In -Service Date is any day other than the first day of a calendar month, the resulting partial month is included along with the subsequent twelve (12) full
calendar months in the first year of the Term. Each
subsequent year of the Term begins on the first day of the calendar month immediately after the anniversary date of the In-Service Date.
(d) This Agreement is intended to be a “service
contract” within the meaning of Section 7701(e) of the Internal Revenue Code of 1986, as amended.
2. Purchase and Sale of Energy; Monitoring;
Other System Use; Data
(a) Payments. You agree to pay the “Monthly
Payment” as set forth on Exhibit B.
(b) Monthly Bills. Each month, we will prepare a
written or electronic bill for the preceding billing cycle. We may send your monthly bills via email unless you contact us directly to request that your monthly bills be sent
through the U.S. mail.
Your billing cycles run on a monthly basis. Your monthly bill will reflect the Monthly Payment from the applicable monthly billing period plus any applicable taxes and fees.
You agree to review each monthly bill promptly for any
errors. If you inform us that an error exists on your
monthly bill, we will attempt to correct that error prior to your next monthly bill. If you fail to promptly notify us in writing about an error on your monthly bill, we shall bear no liability or responsibility for any losses incurred to the extent permitted by law. Our sole liability to you shall be our obligation to make any appropriate changes after we receive your notification.
(c) Monthly Payments. The first Monthly Payment
due date will be at least thirty (30) calendar days after the In-Service Date. All other Monthly Payments will be due on the same day of each following month as the first
Monthly Payment; provided, if the due date of the first Monthly Payment is the last day of the month and such
date does not exist in all subsequent months, then each subsequent due date shall be the last day of the
applicable month. For example, (i) If the In -Service Date occurs on February 17, the first Monthly Payment will be due no earlier than March 17 and (ii) if the due date for the first Monthly Payment is March 31, then the due date for the second Monthly Payment will be April 30. We will send you written notice of the first Monthly Pa yment due date and amount after the In-Service Date
Monthly Payments are payable to us (i) by automatic
withdrawal from your checking or savings account or (ii) by cash or check drawn on a United States bank account.
By providing your automatic payment i nformation where
indicated on Exhibit D, you agree to make all Monthly
Payments through an automatic payment from your
checking or savings account. Alternatively, if you choose to make your Monthly Payments in the form of cash or
17 Contract ID # [___________]
5 check, you will be required to pay the payment processing fee as set forth on Exhibit D. You agree to send Monthly Payments to us at the address shown on Exhibit D or to
any other address or person specified in a written notice we send to you.
(c) Additional Energy. If you need mo re electric
energy than is being generated by the System, you will be solely responsible for purchasing that electric energy
(“Additional Energy”) from an additional supplier, such as your local utility provider or retail electric supplier.
During the term of this Agreement, you should expect to purchase Additional Energy from your local utility or retail electric supplier from time to time. Provider will not be in default of this Agreement and will not be responsible for any Additional Energy purchased b y you to augment the
Energy generated by the System.
(d) Monitoring. During installation or at any time
during the Term, we may install, and from time to time
repair or replace, monitoring equipment to monitor the
battery system charging, battery system dis charging,
energy production and energy consumption, including at
the interconnection point with the local utility company.
We will collect monitoring data remotely or use our
personnel to collect such information and will make the data available to you upon request. We may also access data regarding your energy consumption from your utility company or from electric usage data storage sites and
you agree to execute any necessary third -party access
agreement if requested. You agree to allow our personnel access to your Property to collect such information from the monitoring equipment. You agree not to tamper with, damage or modify the energy monitoring equipment in
any way. You will be responsible for any damage or
inaccuracies in the energy monitoring equipment that are caused by you or any other person unrelated to Provider. (e) Other System Uses . We may, from time to
time, administer and operate the System to optimize your home’s energy production, storage and consumption, as
well as for demand response, energy storage or other
utility-based programs designed to reduce your electricity costs or to maintain the reliability of your local electrical grid (if available in your utility area). In support of these programs, we may use the energy stored in the ba tteries to reduce strain on the electrical grid at times of high energy demand in your region, or for similar purposes.
(f) Data Usage and Disclosure. We may combine
the Energy usage data and System production and
performance data with other data, includin g, without
limitation, personally identifiable information (collectively, “Data”). Our possible uses and disclosure of the Data are described in Exhibit E. We will never sell any personally identifiable Data to a third party without your prior written consent.
(g) Batteries. The System includes one or more
batteries. Each battery will have a storage -enabled
inverter/charger capable of providing electricity
dependent upon the current state of battery charge. Each battery will draw its charge from the photovol taic system and will provide backup electricity in the event of an
electricity outage within the limitations of the System, as determined by us. You will ensure battery settings are set to draw charge from the photovoltaic system . Not all
electrical loads are suitable for backup operation. You will be responsible for failure or damage (including to the
System) caused due to backing up more loads than we
approved. and/or changing settings from initial install conditions. EACH BATTERY WILL POWER ITS
DESIGNATED CIRCUITS ONLY AND NOT YOUR
ENTIRE HOME. We do not take responsibility for system
failure caused due to excessive loads.
You may be able to obtain backup power from the battery in the event of a power outage. We will establish a
reasonable reserve level for your battery (at a minimum, 20% of the total capacity of the battery) so that your
battery will have a certain amount of power available in the event of an outage.
WHILE WE BELIEVE THE BATTERY WILL BE ABLE TO
PROVIDE LIMITED BACKUP ELECTRICITY DU RING
AN ELECTRICITY OUTAGE, WE PROVIDE NO
GUARANTEE OR WARRANTY THAT ALL OR ANY
PORTION OF YOUR ELECTRIC LOAD WILL BE
SUPPORTED BY THE BATTERY SYSTEM DURING
EVERY ELECTRICITY OUTAGE. YOU AGREE THAT
WE WILL NOT BE LIABLE IN THE EVENT THE
BATTERIES FAIL TO P ROVIDE BACKUP
ELECTRICITY, AND WE DISCLAIM ANY SUCH
LIABILITY, IRRESPECTIVE OF THE REASON FOR
SUCH FAILURE. DO NOT DEPEND ON BATTERY
BACKUP ELECTRICITY FOR LIFE SUPPORT OR
OTHER MEDICAL EQUIPMENT. IF YOU HAVE
CRITICAL MEDICAL EQUIPMENT ELECTRICITY
NEEDS DU RING AN ELECTRICITY OUTAGE,
CONTACT YOUR LOCAL EMERGENCY SERVICES OR
DIAL 911.
Please notify us at 877 -425-5201 or by email at
[email protected] in the event your battery
system does not provide backu p electricity during an
electricity outage.
Under normal conditions of use, the battery should pose no danger to you. However, if mishandled, the battery
may become dangerous and could pose dangers related,
but not limited, to fire hazards, high-voltage hazards, and mechanical damage, among other dangers.
For the duration of the Term, you agree that you will not connect any other power generation or energy storage
resource (including any backup systems) to the home’s
electrical panel including any such resource using diesel, natural gas, gasoline, propane or liquefied petroleum gas.
Agreed and accepted by: _____ (Initials)
3. Performance Guarantee.
(a) Guaranteed Output. Subject to the conditions
set forth in this Section 3(a), we guarantee that the
System will generate, on a 24 -month basis, no less than the output as set forth in Exhibit C (the “Guaranteed
Output”). Subject to the conditions set forth in this Section 18 Contract ID # [___________]
6 3(a), we will issue you a credit if the System does not generate the Guaranteed Output.
We will not issue you a credit for any System under -
performance arising from any of the following:
(i) Under-performance arising from your failure to
comply with your obligations under the
Agreement.
(ii) Under-performance arising from shading
conditions (other t han weather) different from
those that were present at the Property at the
commencement of installation.
(iii) Under-performance as a result of a grid failure
disabling the System.
(iv) Under-performance arising from you causing or
requesting the System to be shut down or to
generate significantly less electric energy.
(v) Under-performance arising from damage to the
System caused by Property Owner negligence or
foreign objects acting on the System (hail, golf
balls, etc.).
WE MAKE NO OTHER REPRESENTATION,
WARRANTY OR GUARANTEE OF ANY KIND
REGARDING THE SYSTEM’S ACTUAL OR EXPECTED
OUTPUT OR PERFORMANCE AND ANY OTHER
EXPRESS OR IMPLIED WARRANTIES ARE HEREBY
DISCLAIMED.
(b) Over-generation. If, over the course of the
Term, the System generates more energy than the
Guaranteed Output, then the extra energy will be yours at no additional cost. We may use this over -generation
amount to offset future under -performance in a given
period should the Actual Output attributable to such
period be less than the Guaranteed Output attributable to such period.
(c) Actual Output and Credits . On the 24 - month
anniversary of the In-Service Date and on every 24-month anniversary thereafter indicated on Exhibit C (each, a
“Guarantee Date”), we will calculate the “Actual Output” of the System during the preceding 24-month period. For the purposes of this Agreement, “Actual Output” shall
mean the amount of Energy generated by the System to
date plus any kWh for which you have previously received a credit. Subject to Section 3(a), if the Actual O utput is less than the Guaranteed Output for that Guarantee Date set forth on Exhibit C, we will issue you a credit. This credit will be calculated by subtracting the Actual Output for that Guarantee Date from the Guaranteed Output for that
Guarantee Date, and multiplying the applicable Credit per kWh for that year set forth on Exhibit C. If the energy monitoring system is malfunctioning or otherwise
inoperable for a period of time, we may calculate your
Actual Output using the estimated kWh that would have
likely been generated during that period based on the
historic amount of Energy generated by the System.
Agreed and accepted by: _____ (Initials)
4. Provider’s Additional Obligations. We agree
to:
(a) utilize a web -based performance monitoring
system to accurately measure the amount of Energy the
System delivers to you;
(b) maintain the System in good operating condition
at our cost and expense;
(c) insure the System against all damage or loss
unless that damage or loss is caused by you, your guests, contractors or agents; and
(d) operate the System in material compliance with
all applicable laws and permits and local utility providers’ requirements.
5. Your Additional Obligations.
(a) System and Property Maintenance. You
agree to:
(i) maintain and make available, at your cost, a
functioning indoor internet connection with one
available wire Ethernet port and standard AC
power outlet within eighty (80) feet of the
System’s AC/DC inverter(s) at all times during the
Term;
(ii) maintain in good condition and repair the roof of
your home and any structural elements or utility
interconnections necessary to support the
operation of the System;
(iii) not move, tamper with, or disturb the System, or
permit anyone else to do so, unless previously
authorized by Provider;
(iv) not modify, permit or allow structures on your
Property in a way that shades, blocks or restricts
the System’s access to direct sunlight;
(v) keep trees, bushes and hedges trimmed so that
the System receives as much sunlight as it did
when the System was installed;
(vi) be responsible for any conditions at your Property that affect the installation or maintenance of the
System (e.g., blocking access to the roof, or
removing a tree or other natural or man -made
object(s) that block access to the roof and /or to
sunlight) at your sole cost and expense;
(vii) prevent damages to the System from foreign
objects such as golf balls, frisbees, rocks;
(viii) permit Provider, after we give you reasonable
notice, to inspect the System for proper operation
as we reasonably determine necessary;
(ix) use the Energy the System generates primarily
for personal, family, or household purposes, but
not to heat a swimming pool (if you have a
swimming pool, the load relating to the swimming
pool may be excluded for purposes of sizing the
System);
19 Contract ID # [___________]
7 (x) not remove any markings or identification tags on the System;
(xi) not do anything that would, or permit or allow to
exist any condition or circumstance that would,
cause the System not to operate as intended at
the Property; and
(xii) pay for any reasonable removal, storage and
reinstallation costs in the event the System needs
to be removed in order for you to repair or replace
the roof on your home; you agree to notify System
Provider of the same so that arrangements can
be made for such removal, storage a nd
reinstallation.
(b) Fees; Late Charges; Checks; Automatic
Payment. In addition to the other amounts you agree to pay in this Agreement, you agree to pay the fees as set forth on Exhibit D. In addition, except to the extent
prohibited by applicable law, you will also be responsible for any third -party charges we incur in the course of
administering this Agreement. If you refinance your
mortgage, you will also be responsible for related
administrative charges incurred as a result of the
refinancing.
(c) Taxes. The payments specified in Exhibit B
and Exhibit D do not include taxes.
(i) If any taxes (including, but not limited to, sales
and transaction taxes and including any
associated interest and penalties) are assessed
on these payments, the sale of Energy, the
property, or the transaction itself, and are paid by
Provider rather than y ou, you agree to pay or
reimburse Provider for all such taxes, except to
the extent that you are prohibited from doing so
by applicable laws.
(ii) In addition, you agree to reimburse Provider for
any taxes, including any associated interests and
penalties, assessed on the System that Provider
may incur.
(iii) To the extent that Provider seeks reimbursement
from you, you agree that Provider may seek a full
reimbursement from you for the total amount
incurred by Provider, impose a surcharge on your
monthly invoice t o recover the total amount
incurred by Provider over a period to be
determined by Provider, or, at its sole discretion,
set up a separate payment plan with you to
recover the total amount incurred by Provider.
(d) Filings. You agree that the System will b e
Provider’s personal property under the Uniform
Commercial Code and at our reasonable request you will
notify any mortgagee or holder of a deed of trust on the Property of the installation and existence of the System and that the System constitutes personal property and not fixtures (or real property). You also agree that the System is not a real property fixture. However, you agree tha t Provider may file UCC-1 financing statements and/or real property fixture filings related to our ownership interest i n the System, and any other notices permitted or required by law. Provider may assign such filings and any
assignee may also file UCC -1 financing statements
and/or real property fixture filings related to the System.
You also authorize Provider to make corrections to any utility paperwork to conform to this Agreement or any
revisions or amendments to this Agreement that you and
we both agree upon.
(e) No Alterations . You agree that you will not
make any modifications, improvements, revisions or
additions to the System or take any other action that could void the manufacturer warranty on the System without
Provider’s prior written consent. If you make any
modifications, improvements, revisions or additions to the System after receiving such prior written consent, they will become part of the System and shall be Provider’s
property.
(f) Access to the System.
(i) Provider or its representatives shall give you
reasonable notice of our need to access the
Property whenever commercially reasonable.
You grant to Provider and our employees, agents,
representatives, designees and independent
contractors (and any inspecto rs under any state
incentive program) the right to reasonably access
all of the Property as necessary for the purposes
of (A) operating, owning, repairing, maintaining,
removing and replacing the System or making
any additions to the System or installing
complementary technologies on or about the
location of the System; (B) enforcing Provider’s
rights as to this Agreement and the System; or
(C) taking any other action reasonably necessary
in connection with the operation, maintenance,
removal or repair of t he System. This access
right shall continue for up to ninety (90) days after
the expiration of this Agreement in order to
provide Provider with reasonable time to remove
the System after the end of this Agreement.
(ii) During the time that Provider has acces s rights,
you shall ensure that such access rights are
preserved and shall not interfere with or permit
any third party to interfere with Provider’s access
rights.
(g) Indemnity. To the fullest extent permitted by
law, you shall indemnify, defend, protect, save and hold harmless Provider, our employees, officers, directors,
agents, successors and assigns from any and all third - party claims, actions, costs, expenses (including
reasonable attorneys’ fees and expenses), damages,
liabilities, penalties, losses, obligations, injuries, demands and liens of any kind or nature arising out of, connected with, relating to or resulting from damage to the System caused by you or your guests, contractors or agents;
provided that nothing herein shall require you to indemnify Provider for our own negligence or willful misconduct.
The provisions of this paragraph shall survive
termination or expiration of this Agreement.
(h) Monthly Payments . You agree that the
obligation to pay all Monthly Payments and all other
20 Contract ID # [___________]
8 amounts due under this Agreement shall be absolute and unconditional under all circumstances and shall not be
subject to any abatement, defense, counterclaim, setoff, recoupment or reduction for any reason whatsoever, it
being the express intent of the parties that all amounts payable by you hereunder shall be and continue to be
payable in all events, including by your heirs and estate, and, except as set forth below in Section 10 and in the accompanying Notice of Cancellation, you hereby waive
all rights you may have to reject or cancel this Agreement, to revoke acceptance of the System, or to grant a security interest in the System.
(i) Notices. You agree to:
(i) notify Provider immediately upon your discovery
of an emergency condition relating to the System,
damage to the System or theft of the System;
(ii) notify Provider of the sale of your home (see
Section 6 below); and
(iii) notify Provider before changing your electric
power supplier.
See Section 20 below for information about sending
notices to Provider.
6. Options When Selling Your Property.
(a) If you (or your estate or your heirs, as
applicable) sell your Property you must choose one of the following three (3) options:
(i) Transfer this Agreement and the Monthly
Payments. The buyer may sign a transfer
agreement assuming all of your rights and
obligations under this Agreement, including the
obligation to pay Monthly Payments. You will also
be responsible for any related administrative
charges we incur as a result of the transfer, such
as filing, amending or terminating any UCC or
fixture filings.
(ii) Purchase the System Outright . Pursuant to
Section 7 below.
(iii) Prepay the remaining Monthly Payments and
Transfer only the Use of the System . If you
prepay the remaining Monthly Payments, the
person(s) buying your Property will only ne ed to
sign a transfer agreement to assume your rights
and obligations (other than the obligation to make
Monthly Payments through the Term) under this
Agreement. The System stays at your Property;
the buyer does not have to make any Monthly
Payments through the Term but otherwise will be
required to comply with the remainder of this
Agreement and Provider’s obligations under this
Agreement will continue through the remainder of
the Term and as described in Section 9.
(b) If you sell your Property, you must n otify us, in writing, at least thirty (30) days, but no more than ninety (90) days, prior to the scheduled closing date indicating which of the options in Section 6(a) you have chosen.
(c) If you (or your estate or your heirs, as
applicable) sell your Property and do not comply with one of the options in Section 6(a) above, you will be in default under this Agreement. (See Sections 16 and 17 below).
7. Option to Purchase the System.
(a) You have the option to purchase the System at
the following times during the Term:
(i) at any time after the sixth (6 th) anniversary of the In-Service Date (see Section 1(b) above);
(ii) at the end of the Term of this Agreement (see
Section 1(c) above);
(iii) if you sell your Property during the Term (see
Section 6 above); or
(iv) with Provider’s wr itten consent (which Provider
may withhold in Provider’s sole discretion) at
another time not described above.
(b) To purchase the System pursuant to
Section 7(a), you must notify us in writing at least thirty (30) days, but no more than ninety (90) days, prior to the desired purchase date and deliver payment to Provider
within thirty (30) days of receiving an invoic e from
Provider for the purchase price.
(c) The purchase price you will pay for the System
(“Buyout Price”) shall be the greater of: (i) the System’s appraised fair market value (“Fair Market Value”) at such time; or (ii) the amount set forth in the “Purcha se Option” column on Exhibit B that corresponds with the year in
which the purchase is to occur, plus all applicable taxes and fees relating to the purchase and sale of the System.
Provider will determine Fair Market Value by reference
sources such as an industry guide listing retail prices of used photovoltaic systems installed in your local utility district that are the same as (or substantially similar to) the System, or if none, by use of an appraisal prepared by an independent appraiser at Provider’s expense. The independent appraiser will, on a desktop basis, assume
the System will be exchanged between a willing and
informed buyer (taking into account an assumption by the buyer of the remaining obligations under this Agreement) and a willing and info rmed seller, taking into account current and projected market conditions.
(d) If you exercise the option to purchase the
System, you will be purchasing the System “AS IS,
WHERE IS” and Provider will assign you any product
and/or workmanship warranties still in effect for the
System. However, Provider will not provide any
maintenance or repair services after you purchase the
System, unless you enter into a separate agreement with Provider, at your expense, for such services. If you
exercise the option to pur chase the System, this
Agreement will terminate effective as of the date of such purchase.
8. Option to Prepay Agreement.
(a) At any time during the Term, you can prepay this
Agreement in full. Such prepayment will not terminate this Agreement, nor limit any of your rights or obligations
21 Contract ID # [___________]
9 (other than your obligation to make Monthly Payments
during the Term).
(b) In order to prepa y this Agreement, you must
notify us in writing at least thirty (30) days, but no more than ninety (90) days, prior to the desired prepayment
date. The amount you prepay (the “Prepayment Price”)
will be based on the following: (i) all accrued but unpaid Monthly Payments, taxes, late charges, penalties, interest and all or any other sums then accrued or due and owing, plus (ii) the amount set forth on Exhibit B in the column titled “Prepay Option” (which reflects an amount
discounted to present value at 5% per year), plus (iii) any applicable taxes.
(c) If you exercise the option to pay the Prepayment
Price, Provider’s obligations under this Agreement will continue through the remainder of the Term and as
described in Section 9.
9. Options at the End of the Term.
(a) Automatic Renewal. Provided that (i) you are
not in default under this Agreement (see Section 16
below) and (ii) you have not given us written notice of your intent to purchase the System at the end of the Term (as described in Section 7(a)), this A greement shall
automatically renew at the end of the Term for one (1) or more additional one (1) year renewal term(s) (each an
“Automatic Renewal Term”) at a Monthly Payment equal
to the Monthly Payment for year 25 escalating annually at the applicable Annual Increase rate for a maximum of ten (10), one -year Automatic Renewal Terms, unless and
until we receive from you written notice at least thirty (30), but not more than ninety (90), calendar days before the scheduled commencement of an Automatic Renewal
Term that you do not wish to renew. Provider will send you a notice at least sixty (60) days prior to the end of the Term to (i) remind you of your end of term options and (ii) disclose to you the Monthly Payment for the first
Automatic Renewal Term and t he rate at which the
Monthly Payment will automatically escalate for any future Automatic Renewal Terms.
(b) Purchase the System. You also have the right
to purchase the System at the end of the Term. See
Section 7 for a detailed explanation.
(c) If you choo se not to renew this Agreement or
purchase the System, then the Provider will have the
option to remove the System from your Property at no
cost to you.
(d) If at the end or termination of this Agreement
you are in default (see Section 16), and Provider removes the System from your Property, then you agree to pay
Provider the reasonable expense of removing the System
from your Property.
(e) In the event that we remove the System from
your Property for any reason as permitted or
contemplated hereunder we will return the roof area within three inches of the mounting penetrations to a waterproof condition.
10. Termination Rights Prior to Installation of
the System.
(a) Termination of this Agreement Before
System Installation. Provider’s obligation to sell you the Energy the System generates is conditioned on the
following items having been completed to our reasonable satisfaction:
(i) completion of the engineering site audit (a
thorough physical inspection of the Property,
including if applicable geotechnical work), and
real estate due diligence to confirm the suitability
of the Property for the construction, installation
and operation of the System;
(ii) confirmation of availability of rebates, tax credits, renewable energy credits and other incentives in
the amount used to c alculate the Monthly
Payment amounts set forth in this Agreement;
(iii) [Reserved];
(iv) confirmation that Provider will obtain all
applicable benefits referred to in Section 12;
(v) receipt of all necessary zoning, land use and
building permits; and
(vi) completion of any re novations, improvements or
changes reasonably required on the Property, at
your sole cost and expense (e.g., removal of a
tree or necessary roof repairs to enable us to
safely install the System).
Provider may terminate this Agreement without any
liability if, in our reasonable judgment, any of the above listed conditions will not be satisfied for reasons beyond our reasonable control.
(b) Right to Terminate this Agreement for
Significant Delays.
If, in Provider’s reasonable judgment, the installation of the System is not likely to occur in a timely manner for any reason, Provider may terminate this Agreement by written notice to you, which notice will be effective upon your receipt of such notice.
(c) Consumer Agreement Revision for
Significant Changes.
If Provider recalculates the Guaranteed Output, Provider may provide you with an updated Part I of this Agreement (a “Consumer Agreement Revision”) that will reflect
changes to certain terms affected by the revised
estimated output and a summary of the terms changed by
such Consumer Agreement Revision. You will have the
right to either sign the Consumer Agreement Revision and agree to the revised terms, or terminate this Agreement.
11. Assignment.
(a) Assignment by Provider . Provider may
assign, sell or transfer the System and this Agreement, or any part of this Agreement, without your consent and
without notice. Assignment, sale or transfer generally means that Provider would transfer certain of our rights and/or certain of our obligations under this Agreement to 22 Contract ID # [___________]
10 another party. Any assignment of Provider’s rights and/or obligations under this Agreement shall not result in any change to your rights and obligations under this
Agreement.
(b) Assignment by You. Except as set forth in this
Agreement, you will not assign, sell, pledge or in any other way transfer your interest in the Energy generated by the System, or in this Agreement, without our prior written consent, which shall not be unreasonably withheld.
12. OUR OWNERSHIP O F THE SYSTEM; TAX
CREDITS AND REBATES . YOU UNDERSTAND AND
AGREE THAT THIS IS NOT A CONTRACT TO SELL
OR LEASE THE SYSTEM TO YOU. PROVIDER WILL
OWN THE SYSTEM FOR ALL PURPOSES,
INCLUDING ANY DATA GENERATED FROM THE
SYSTEM. YOU SHALL AT ALL TIMES KEEP THE
SYSTEM FREE AND CLEAR OF ALL LIENS, CLAIMS,
CHARGES, LEVIES AND LEGAL PROCESSES NOT
CREATED BY PROVIDER, AND SHALL AT YOUR
EXPENSE PROTECT AND DEFEND PROVIDER
AGAINST THE SAME.
YOU UNDERSTAND AND AGREE THAT ANY AND ALL
FEDERAL, STATE AND LOCAL TAX CREDITS,
INCENTIVES, RENEWABLE ENERGY CREDITS,
GREEN TAGS, CARBON OFFSET CREDITS, UTILITY
REBATES OR ANY OTHER ATTRIBUTES OF THE
SYSTEM ARE THE PROPERTY OF AND FOR THE
BENEFIT OF PROVIDER, USABLE AT OUR SOLE
DISCRETION. PROVIDER SHALL HAVE THE
EXCLUSIVE RIGHT TO ENJOY, USE AND TRANSFER
ALL SUCH BENEFITS, WHETHER SUCH BENEFITS
EXIST NOW OR IN THE FUTURE. YOU AGREE NOT
TO CLAIM OR TAKE ANY ACTION OR FAIL TO TAKE
ANY ACTION THAT MAY JEOPARDIZE PROVIDER’S
ABILITY TO RECEIVE SUCH BENEFITS, INCLUDING,
WITHOUT LIMITATION, CLAIMING ANY TAX CREDITS
WITH RESPECT TO THE SYSTEM ON ANY TAX
RETURN AND/OR ENTERING INTO ANY AGREEMENT
WITH YOUR UTILITY THAT WOULD ENTITLE YOUR
UTILITY TO CLAIM ANY SUCH BENEFITS. YOU
AGREE TO REASONABLY COOPERATE WITH
PROVIDER SO THAT WE MAY CLAIM AND TRANSFER
ANY FEDERAL, STATE OR LOCAL TAX CREDITS,
RENEWABLE ENERGY CREDITS, REBATES,
CARBON OFFSET CREDITS OR ANY OTHER
BENEFITS FROM THE SYSTEM. THIS MAY INCLUDE
TO THE EXTENT ALLOWABLE BY LAW, ENTERING
INTO NET METERING AGREEMENTS,
INTERCONNECTION AGREEMENTS, AND FILING
RENEWABLE ENERGY/CARBON OFFSET CREDIT
REGISTRATIONS AND/OR APPLICATIONS FOR
REBATES FROM THE FEDERAL, STATE OR LOCAL
GOVERNMENT OR A LOCAL UTILITY AND GIVING OR
ASSIGNING THESE TAX CREDITS, RENEWABLE
ENERGY/CARBON CREDITS, REBATES OR OTHER
BENEFITS OR THEIR CASH EQUIVALENT TO
PROVIDER.
13. Loss or Damage; Insurance.
(a) Loss or Damage . Unless you or your guests,
contractors or agents cause or permit damages to the
System, or as otherwise provided in this Agreement,
Provider will bear all of the risk of loss, damage, theft, destruction or similar occurrence to any or all of the
System.
(b) Insurance. Provider will insure the System
against all damage or loss unless that damage or loss is caused or permitted by you or your guests, contractors or agents. You agree to carry homeowner’s insurance that
covers damage to your Property and provides general
liability coverage, but you do not need to add the System to your Property insurance policy.
14. Force Majeure; Casualty.
(a) Provider is not respon sible for any delay or
failure in the performance under this Agreement if the
delay or failure is due to Force Majeure. “Force Majeure” includes acts of God such as storms, fires, floods,
lightning and earthquakes, sabotage or destruction by a third party of the System, war, riot, acts of a public enemy or other civil disturbance, or a strike, walkout, lockout or other significant labor dispute.
(b) If at any time during the Term all or substantially all of the Property and/or the System shall be damaged
and/or destroyed by fire or other casualty, Provider may terminate this Agreement by written notice to you, which termination shall be effective upon receipt of such notice.
15. Limitation of Liability.
EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY FOR ANY SPECIAL, PUNITIVE,
EXEMPLARY, INDIRECT, OR CONSEQUENTIAL
DAMAGES, ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT. EVEN IF A COURT OR
ARBITRATOR DECIDES THAT OUR BREACH OF THIS
AGREEMENT OR NEGLIGENCE, FA ILURE OF THE
SYSTEM, OR A FAILURE OF THE INSTALLATION OR
ANY REPAIR PROVIDED BY US CAUSED OR
ALLOWED ANY DIRECT HARM OR DAMAGE
(WHETHER PROPERTY DAMAGE, PERSONAL
INJURY OR DEATH) TO YOU OR ANYONE IN OR ON
YOUR PROPERTY, YOU AGREE THAT OUR LIABILITY
SHALL BE LIMITED TO THE AMOUNT YOU HAVE PAID
US FOR THE ELECTRICITY GENERATED BY THE
SYSTEM AND YOU SPECIFICALLY WAIVE ANY
OTHER REMEDY AVAILABLE AT LAW OR IN EQUITY.
16. DEFAULT. YOU WILL BE IN DEFAULT
UNDER THIS AGREEMENT IF ANY ONE OF THE
FOLLOWING OCCURS:
(a) We have not received two or more consecutive
Monthly Payments in full by their payment due dates;
(b) You or any guarantor makes an assignment for
the benefit of creditors, admits in writing your (or any guarantor’s) insolvency, a bankruptcy petition is fi led by or against you or any guarantor, or you or any guarantor 23 Contract ID # [___________]
11 is adjudicated bankrupt or insolvent or undertakes or experiences any substantially similar activity;
(c) You have provided any false or misleading
financial or other information to obtain this Agreement; (d) You (or your estate or your heirs, as applicable) assign, transfer, encumber, sublet or sell (or attempt to assign, transfer, encumber, sublet or sell) this Agreement or any part of the System without Provider’s prior written consent;
(e) You fail to perform any material obligation that
you have undertaken in this Agreement (which includes
doing something you have agreed not to do, including, but not limited to, making any alterations to the System) and such failure continues and is not corrected for a period of fifteen (15) days after written notice; or
(f) In the event of any foreclosure on your Property
not stayed at least thirty (30) days prior to any sale.
17. ADDITIONAL ACTION AFTER DEFAULT. IF
YOU ARE IN DEFAULT UNDER THIS AGREEMENT,
WE MAY TAKE ANY ONE OR MORE OF THE
FOLLOWING ACTIONS AT OUR OPTION AND IN OUR
DISCRETION. IF THE LAW REQUIRES US TO DO SO,
WE WILL GIVE YOU NOTICE AND WAIT THE
STIPULATED PERIOD OF TIME REQUIRED BEFORE
TAKING THESE ACTIONS. WE MAY:
(a) terminate this Agreement;
(b) take any reasonable action to correct or cover
your default and/or to prevent or reduce our loss
(including without limitation costs of repairing damage to the System for which you are responsible); any amount
we pay will be added to the amount you o we us and will be immediately due;
(c) require you, at your expense, to return the
System or make it available to us in a reasonable manner; (d) proceed, by appropriate court or other action, to enforce performance of this Agreement and/or to recover damages for your default (including without limitation our court costs, attorneys’ fees, and other expenses relating to your default, to the fullest extent allowed by law); (e) turn off or take back the System by legal process or self-help, but we may not breach th e peace or violate the law;
(f) recover from you a payment equal to the
greater of the Prepayment Price and Buyout Price,
plus all taxes, late charges, penalties, interest and all other sums then accrued or due and owing to Provider.
After we receive th is amount from you, we will
automatically convey the System to you on an “AS IS,
WHERE IS” basis; and
(g) use any other remedy available to us in this
Agreement or by law or in equity.
By choosing any one or more of the remedies described
above, Provider does not give up our right to use another remedy. By deciding not to use any remedy when you are in default, Provider does not give up our right to use that remedy (or any other remedy) in case of a subsequent
default.
18. Warranties.
(a) We provide the following warranties
(collectively, the “Warranty”):
(i) Workmanship Warranty. We warrant our work
and the System for a period of ten (10) years after
In-Service Date (the “Warranty Period”), except
as provided below with respect to our roof
penetration warranty. During the Warranty Period
we will, at our expense, repair or replace any
material or work covered under this Agreement.
(ii) Roof Penetration Warranty . We warrant that
roof penetrations made by the System and
impacting the Property’s roof will be weather-tight
for a period of ten (10) years after installation.
(iii) Damage Warranty . We will either repair or
reimburse you for damage we cause during
installation to the Property, your belongings or
your property, as limited by Section 18(b).
(b) Warranty Exceptions and Exclusions.
(i) The Warranty shall be void and voidable if work
is performed by you or your contractors.
(ii) The Warranty does not cover any (A) leaks that
occur in areas of the Property’s roof not impacted
by the System or the associated roof
penetrations, (B) pre -existing and/or underlying
failures of the Home’s roof or (C) foreign objects
acting on the Home’s roof (hail, golf balls, etc.).
(iii) The Warranty does not apply to the following: (A) work performed or materials used by anyone
other the Installer; (B) any materials that were
modified, repaired or attempted to be repaired by
anyone other than us, our agents, our
representatives, our designees or the Installer
without our prior written approval; (C) any
damage resulting from your breach of the
Agreement; (D) any damage not caused by us,
the Installer or a System defect; (E) any damage
resulting from ordinary wear and tear; (F) any
damage resulting from mold, fungus and other
organic pathogens; (G) shrinking/cracking of
grout and caulking ; (H) fading of paints and
finishes exposed to sunlight; and (I) any damage
caused by ball strikes.
You acknowledge that installation of the System may void any roofing warranty of the roof manufacturer or roof
installer. We assume no responsibility if t he installation voids your roofing warranty. Before installation, you
should check with the roofer or builder concerning any
impact the System will have on a roof warranty.
You must notify us promptly and in writing of any claim under the Installation War ranty as outlined in Section 20 below.
24 Contract ID # [___________]
12 EXCEPT AS SPECIFICALLY DESCRIBED IN THIS
AGREEMENT, YOU UNDERSTAND THERE ARE NO
REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, AS TO THE MERCHANTABILITY,
FITNESS FOR ANY PURPOSE, CONDITION, DESIGN,
CAPACITY, SUITABILITY OR PERFORMANCE OF THE
SYSTEM OR ITS INSTALLATION.
19. Applicable Law; Dispute Resolution;
Arbitration; Class Action Waiver.
(a) Applicable Law. The laws of the state where
your Property is located shall govern this Agreement
without giving effect to co nflict of law or choice of law principles. However, the Federal Arbitration Act governs our agreement to arbitrate (see subsection (b)&(c)
below).
(b) Informal Dispute Resolution. The parties
agree to first try to resolve informally and in good faith any dispute. Accordingly, you agree to send a written notice of the dispute to the Provider at 700 Universe Boulevard, Juno Beach, FL 33408 or [email protected] or,
upon written notice to you, to any addre ss that is later designated by us. We (including our agents,
representatives and designees) will send a written notice of dispute to your address listed on page 1 of the
Agreement. If the parties do not reach an informal
agreement to resolve the dispute wi thin thirty (30) days after the notice of dispute is received, either party may commence a formal proceeding as detailed below. All
applicable statutes of limitation and defenses based upon the passage of time shall be tolled for the thirty (30) days during which the parties try to informally resolve any
dispute. If you claim deficiencies in the System’s
installation or performance, you must allow us to visually inspect the System and obtain or download pertinent
performance data from the System.
(c) Arbitration. If the parties cannot resolve any
such dispute informally and if either party requests, the other party agrees to arbitrate all related disputes, claims and counterclaims arising out of or relating to this
Agreement, the relationships described hereun der, the
System, or any alleged or claimed oral or other agreement related to the System. This agreement to arbitrate
extends to all claims of any nature, including, but not limited to, claims for breach of contract, tort claims, claims at law or in equit y, or claims arising under statute. If a party seeks to have a dispute settled by arbitration, that party must first send to the other party, by certified or registered mail, return receipt requested and postage
prepaid, a written Notice of Intent to Arbi trate. If the parties do not reach an agreement to resolve the dispute within thirty (30) days after the Notice is received, either party may commence an arbitration proceeding with the
American Arbitration Association (“AAA”). Provider will promptly rei mburse you any arbitration filing fee and, except as provided in the next sentence, Provider will pay all AAA administration and arbitrator fees. If the arbitrator finds that either the substance of the claim raised by you or the relief sought by you is i mproper or not warranted, as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), then Provider will pay these fees only if required by the AAA Rules. If the arbitrator grants relief to you that is equal to or greater than the val ue of what you requested in the arbitration, Provider will
reimburse you for your reasonable attorneys’ fees and
expenses incurred for the arbitration.
TO THE EXTENT PERMITTED BY LAW, YOU AGREE
THAT, BY ENTERING INTO THIS AGREEMENT, YOU
AND WE ARE AGREEING TO HAVE DISPUTES
DECIDED BY AN ARBITRATOR AND ARE WAIVING
THE RIGHT TO A TRIAL IN COURT OR BY JURY. IN
ADDITION, EACH PARTY MAY BRING CLAIMS
AGAINST THE OTHER PARTY ONLY IN ITS
INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR
CLASS MEMBER IN ANY PURPORTED C LASS OR
REPRESENTATIVE PROCEEDING. Further, the parties
agree that the arbitrator may not consolidate proceedings for more than one person’s claims, and may not otherwise preside over any form of a representative or class
proceeding, and that if this spec ific provision is found unenforceable, then the entirety of this arbitration clause shall be null and void (except for the jury trial waiver provision in the first sentence of this paragraph, which shall continue in full force and effect).
Judgment on an arbitrator’s award may be entered in any court having jurisdiction. All statutes of limitations that are applicable to any dispute shall apply to any arbitration between us. The arbitrator shall have the authority to award any legal or equitable remedy or relief that a court could order or grant. The arbitrator, however, is not
authorized to change or alter the terms of this Agreement or to make any award that would extend to any
transaction other than your own. THE ARBITRATOR’S
DECISION WILL BE FINAL AND BINDING, EXCEPT TO
THE EXTENT IT IS SUBJECT TO REVIEW IN
ACCORDANCE WITH APPLICABLE LAW GOVERNING
ARBITRATION AWARDS. OTHER RIGHTS THAT YOU
OR WE WOULD HAVE IN COURT MAY ALSO NOT BE
AVAILABLE IN ARBITRATION.
YOU UNDERSTAND THAT YOU ARE VOLUNTARILY
AGREEING TO ARBITRATE DISPUTES ARISING
UNDER THIS AGREEMENT AND AUTHORIZE THAT
YOU HAVE REVIEWED THIS SECTION AND AGREE
TO ITS PROVISIONS.
Agreed and accepted by: _____ (Initials)
(d) Class Action Waiver . ARBITRATION MUST
BE ON AN INDIVIDUAL BASIS. AS A RESULT,
NEITHER YOU NOR US MAY JOIN OR CONSOLIDATE
CLAIMS IN ARBITRATION BY OR AGAINST OTHER
”PROPERTY OWNERS”, OR LITIGATE IN COURT OR
ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR
MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY
GENERAL CAPACITY.
Agreed and accepted by: _____ (Initials)
25 Contract ID # [___________]
13 20. Notices. All notices under this Agreement shall be in writing and shall be by personal delivery, electronic mail, online customer portal, overnight courier, or
certified, or registered mail, return receipt requested, and deemed received upon personal delivery,
acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight
courier, or five (5) days after deposit in the mail. You agree that we may provide you with notices in el ectronic format. Each party agrees that a document sent via PDF
is deemed to be the same as an original document.
Notices from you must include your name, the Property
Address shown on page 2 of this Agreement, and the
Contract ID# printed at the top of each page of this
Agreement. You agree to send written notices to Provider at 700 Universe Boulevard, Juno Beach, FL 33408 or
[email protected] or, upon written notice to
you, to any address that is later designated by us. We will send notices to you using the email or Property Address shown on page 1 of this Agreement unless and until we
receive written notice from you of a change to your e mail or mailing address. You agree that our agents,
representatives and other designees may communicate
with you directly on our behalf for all purposes relating to the System or this Agreement, including any notices
regarding claims we may have.
You agree that Provider may call you and send live, pre - recorded and text messages to you, including by use of
an automated telephone dialing system, at the phone
number you provided regarding the installation,
maintenance and administration of your System or thi s
Agreement, even if your phone number is listed on any
national or state “Do Not Call” list. Message and data
rates may apply.
You agree that our agents, representatives and other
designees may communicate with you directly on our
behalf for all purposes relating to the System or this
Agreement, including any notices regarding claims we
may have.
21. Waiver. Any delay or failure of a party to
enforce any of the provisions of this Agreement, including but not limited to any remedies listed in this Agreement , or to require performance by the other party of any of the provisions of this Agreement, shall not be construed to (i) be a waiver of such provisions or a party’s right to enforce that provision; or (ii) affect the validity of this Agreement.
22. Accuracy of Information; Credit Monitoring;
Identification. No credit eligibility is required to enroll in this Agreement. You do authorize Provider and its
agent(s) and assignees to periodically check your
consumer credit via a “soft pull,” the results of which shall have no impact on this Agreement and are conducted
purely for evaluation of the financing portfolio of which this Agreement may be a part. Provider may, at its option,
request reasonable proof of identification, and evidence that your mortgage or rent, and utility bill is current.
By signing this Agreement, you represent to us that all of the information you have furnished to us (or have caused others to furnish to us) in connection with this Agreement (including any application for this Agreement) is, to the best of your knowledge, true, complete and accurate,
does not include any false or misleading information and does not omit any material, relevant information. You
agree that we may obtain employment and income
records, credit bureau reports on you, verify your credit references and we may check any of the information
provided to us from whatever source we choose to verify it. Additionally, upon request, you agree to promptly give us accurate updated financial information about yourself.
23. Personal Information and Privacy Policy .
Please see our Privacy Policy (available at [insert
website]) for more information about how we collect and use personal information. By signing this agreement, you acknowledge that you have read, understand and agree
with the terms of our Privacy Policy, and that our Privacy Policy may be changed from time to time.
24. Monitoring and Recording Telephone Call .
Provider and others acting on our behalf may (a) monitor and record telephone calls between you and us regarding this Agreement and (b) use automatic dialing equipment
to make calls to you. You agree that we may call you and send pre-recorded and text messages to you at the phone number you provided regarding this Agreement and the
installation, maintenance and admin istration of your
System, including by the use of an automated telephone
dialing system, even if your phone number is listed on any national or state “Do Not Call” list. Message and data
rates may apply.
25. Calling Agreement. You agree that by signing
below you consent that Provider, its affiliates, and those acting on its/their behalf (the ”Messaging Parties”), may call or text you, including by use of an automated
telephone dialing system and/or a prerecorded message.
The types of calls or texts you may receive include
advertisements or telemarketing messages concerning
our benefits and services. Calls can be made to any
number you provide in connection with your application, the Messaging Parties’ servicing and/or collection of
amounts owed under this Agreement or any other matter,
even if listed on a national or state Do Not Call registry.
You understand that anyone with access to your
telephone or email account may listen to or read the
messages the Messaging Parties leave or send, and you
agree that the Messaging Parties will have no liability for anyone accessing such messages. You understand that
consent is not a condition of the provision of services under this Agreement.
Agreed and accepted by: _____ (Initials)
26. Entire Agreement; Survival; Cha nges; Joint
and Several Liability . This Agreement contains the
parties’ entire agreement regarding the sale and purchase of Energy generated by the System. There are no other
agreements regarding this Agreement, either written or
oral. Any change to this Agreement must be in writing
and (except to the extent specifically provided to the
contrary in this Agreement) signed by both parties.
26 Contract ID # [___________]
14 Captions and head ings used in this Agreement are for convenience and reference only, and shall not affect the interpretation of this Agreement. Unless the context
specifically requires otherwise, the use of the plural in this Agreement includes the singular, and vice versa. Any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement, any provisions herein or any amendments hereto.
If any portion of this Agreement is deter mined to be
unenforceable, the remaining provisions shall be
enforced in accordance with their terms or shall be
interpreted or re-written so as to make them enforceable.
In addition, in the event this Agreement becomes subject to utility -type or other re gulation by any public utility commission or other regulatory agency, you agree to
reasonably cooperate with Provider in restructuring this agreement such that it would no longer be subject to such utility-type or other regulation by any public utility
commission or other regulatory agency or otherwise to
address such regulation.
After the termination or expiration of this Agreement, any provisions which by their nature are intended to survive such termination or expiration shall survive, including, without limitation, Sections 5, 12, 15, 17, 18 and 19.
You agree that if more than one person signs this
Agreement as a Property Owner or Co -Owner, each of
you is fully responsible, individually and together, for performing all of your obligations under this Agre ement, and we may enforce this Agreement against any one (or
all) of you, at our option. Your obligations under this Agreement are binding on you, your legal representatives, and your estate, to the fullest extent allowed by law,
unless and until we either expressly release you from your obligations in writing, or we transfer ownership of the System to you.
Office Use Only
Approved by:
[____________]
Date:
Signature:
Print Name:
Title:
27 Contract ID # [___________]
15 EXHIBIT A TO POWER PURCHASE AGREEMENT (COPY 1)
[FOR CALIFORNIA] NOTICE OF CANCELLATION
[INSERT DATE OF TRANSACTION]
(Date)
You may cancel this transaction, without any penalty or obligation, within five business days from the above date.
If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within ten days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be canceled.
If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk.
If you do make the goods available to the seller and the seller does not pick them up within 20days of the date of your notice of cancellation, you ma y retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.
To cancel this transaction, you must mail or deliver a signed and dated copy of this cancellation notice, or any other written notice, or send a telegram to [Insert Provider], [Insert Provider Address], not later than midnight of [INSERT DATE].
(Date)
I, hereby cancel this transaction. __________________________________ (Date)
_________________________________
(Buyer’s signature)
28 Contract ID # [___________]
16 EXHIBIT A TO POWER PURCHASE AGREEMENT (COPY 2)
[FOR CALIFORNIA] NOTICE OF CANCELLATION
[INSERT DATE OF TRANSACTION]
(Date)
You may cancel this transaction, without any penalty or obligation, within five business days from the above date.
If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within ten days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be canceled.
If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk.
If you do make the goods available to the seller and the seller does not pick them up within 20days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.
To cancel this transaction, you must mail or deliver a signed and dated copy of this cancellation notice, or any other written notice, or send a telegram to [Insert Provider], [Insert Provider Address], not later than midnight of [INSERT DATE].
(Date)
I, hereby cancel this transaction. __________________________________ (Date)
_________________________________
(Buyer’s signature)
29 Contract ID # [___________]
17 EXHIBIT B TO POWER PURCHASE AGREEMENT
SCHEDULE OF VALUES
Year
Monthly Payment (including
the Annual Increase)
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 30
Contract ID # [___________]
18 EXHIBIT B TO POWER PURCHASE AGREEMENT
SCHEDULE OF VALUES
Year
Prepay Option1
Minimum Buyout Price2
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 1 Per Section 8(b), in addition to the values listed, the Prepayment Price also includes accrued but unpaid sums but does not include additional applicable taxes , which are the Buyer’s responsibility pursuant to Section 8(b) . The values li sted assume that prepayment occurs in month 12 of the applicable year. Actual prepayment amount will be calculated based on the number of payments made and the number of payments that remain.
2 Per Section 7(c), The purchase price you will pay for the System (“Buyout Price”) shall be the greater of: (i) the System’s appraised fair market value (“Fair Market Value”) at such time; or (ii) the amount set forth in the “ Buyout Price” column that corresponds with the year in which the purchase is to occur, plus all applicable taxes and fees relating to the purchase and sale of the System. 31 Contract ID # [___________]
19 EXHIBIT C TO POWER PURCHASE AGREEMENT
GUARANTEED OUTPUT 3
End of Year
Credit per kWh if Guaranteed
Output is not met4
Guaranteed Output To Date (in
kWh)5
2 4
6 8
10 12
14 16
18 20
22 24
4 The actual credit rate will be the weighted average $/kWh for the applicable 24-month period. 5 “Guaranteed Output To Date” is based on the cumulative Actual Output. “Actual Output” shall mean the amount of Energy generated by the System to date plus any kWh for which you have previously received a credit. 32 Contract ID # [___________]
20 EXHIBIT D TO POWER PURCHASE AGREEMENT
Payment Method Election Form
HOMEOWNER MUST SELECT ONE OPTION ONLY BY CHECKING THE APPROPRIATE BOX AND SIGNING BELOW
Option 1: Automatic Electronic Recurring Payments
____ By checking this box, you acknowledge that:
1. We will provide you a monthly bill detailing the amount you owe for that billing period. Under federal law, you have the right to stop an automatic payment from your bank account, provided you give your financial institution at least three business days’ oral or written notice before the scheduled payment date.
2. The actual settlement date (the date the automatic electronic payment is deducted from your bank account) will be no earlier than your payment due date. We shall bear no liability or responsibility for any losses of any kind that you may incur due to any delay in the actual date on which your bank account is debited.
3. If the due date for payments under your agreement has passed, you give us authority to withdraw two payments from your account on your next due date so that your account will be current on an ongoing basis.
4. If the due date falls on a weekend or holiday in any month, your payment will be debited the following business day.
5. In order to process automatic payments, you must have sufficient available and collected funds in your bank account on the business day before the payment due date and on the payment due date in order to cover the amount of the monthly payment that is due.
6. You must notify us immediately if the automatic payment information you provide changes. If we incur bank fees as a result of inaccurate or out-of-date information provided by you, we have the right to bill you for those fees.
7. We reserve the right to change these conditions at any time. Notice may be given on or with y our monthly bill or by other methods. Either party may terminate this payment arrangement at any time by giving the other party written notice at least 15 calendar days prior to the next scheduled payment date.
8. You agree to be bound by any rules your financial institution requires for automatic electronic payments. Below is my account information for the bank account at financial institution _____________________________________ to be used for the automatic electronic payments.
Account Number: _____________________
Routing Number: ______________________
9. You are responsible for any fees your financial institution may charge you for electronic payments.
10. By signing below, you (a) authorize us to automatically deduct your monthly payments from your b ank account provided above, (b) agree to the terms and conditions herein, (c) represent to us that you have obtained any required consents from other persons with an ownership interest in the bank account, and (d) represent to us that you are individual au thorized to sign this automatic electronic payment authorization as an owner of the bank account and are not required to obtain anyone else’s signature.
33 Contract ID # [___________]
21 Option 2: Check by Mail
___ By checking this box, you acknowledge that:
1. Checks should be made payable to EverBright.
2. Checks should be sent to the address listed below for your Monthly Payment by the date the payment is due. This payment address is also listed on the bill you receive for your Monthly Payment.
Bank of America Lockbox Services
Lockbox 843033
1950 N. Stemmons Freeway, Suite 5010
Dallas, TX 75207
If you elect to pay by check, you will pay a fee of $7.50 for each Monthly Payment received. WE WILL WAIVE THIS
PAYMENT PROCESSING FEE IF YOU MAKE YOUR PAYMENTS VIA AUTOMATED CLEARING HOUSE BY AUTHORIZING US TO APPLY AUTOMATIC ELECTRONIC PAYMENTS FROM YOUR BANK ACCOUNT).
Option 3: Cash
[To be provided]
Fees:
1. Returned Check Fee : $15 (or such lower amount as required by law) for any check or electronic fund transfer or other payment that is returned or refused by your bank.
2. Late Payment Fee: If you fail to make any payment when due, we will impose a late fee equal to the lesser of (i) one and half percent (1.5%) per month on the portion of your balance that is more than thirty (30) days past due, and (ii) the maximum amount permitted under and subject to applicable law.
3. Check by Phone Fee: We will allow an option to pay your Monthly Payment by phone. The fee for such service is $9 (or such lower amount as required by law) for any check payment processed over the phone.
_____________________________________ _____________________________________ First Authorized Account Holder Signature Second Authorized Account Holder Signature
_____________________________________ _______________________________________ Printed Name Printed Name
_____________________________________ _______________________________________ Date Date
34 Contract ID # [___________]
22 EXHIBIT E TO POWER PURCHASE AGREEMENT
DATA USAGE AND DISCLOSURE
This Exhibit E describes the circumstances in which, and purposes for which, we may use or disclose Data.
a. Data Usage: We may use Data for the following purposes (in each case to the extent permitted by law):
(1) to operate, maintain, provide, and enhance the System; (2) for our internal purposes, including, without limitation, research and development, improvement of our product and service offerings, and creation of new product and service offerings; (3) to customize content and commu nications we may provide to you; and (4) for other purposes so long as the Data does not contain personally identifiable information (including where Data has been deidentified).
b. Data Disclosure. We will not disclose any Data other than in the followin g circumstances: (1) where the Data does not contain personally identifiable information (including where Data has been deidentified); (2) in order to provide our products or services to you (including working with third-party service providers who may assist us in collecting, hosting, maintaining, analyzing or otherwise processing Data for us); (3) if required to do so by any law or regulation or in the good -faith belief that such action is necessary to comply with any law or regulation, in response to a court order, judicial or other government subpoena or warrant, or to otherwise cooperate with law enforcement or other governmental agencies; (4) if we believe, in good faith, disclosure is appropriate or necessary to (A) take precautions against liability, (B) protect us or others from fraudulent, abusive, or unlawful uses or activity, (C) investigate or defend against any third -party claims or allegations, (D) protect the security or integrity of our services and any facilities or equipment used to make ou r service available, or (E) protect our property or other legal rights (including, but not limited to, enforcement of our agreements), or the rights, property, or safety of others; (5) to our assignees, affiliates, actual or prospective lenders, financing parties, investors, insurers, and acquirers; (6) to contractors, service providers and other third parties we use to support our business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them; and (7) for any purpose for which you have provided your express consent.
Your initials indicate that you have read, understood and accepted the provisions set forth in this Exhibit E.
Agreed and accepted by: _____ (Initials)
35 ATTACHMENT 3
Staff Presentation
36 HOME SOLAR & BATTERY
STORAGE PROGRAM:
SUSTAINABLE COMMUNITY
NETWORK PARTICIPATION
Presentation to the Goleta City Council
May 16, 2023
Presentation by:
Dana Murray, Sustainability Manager
Angeline Foshay, Sustainability Management Assistant
1 37
Purpose
•Provide an overview of a new program launched in Santa Barbara County
, the Sustainable Community Network (SCN) Home Solar &
Battery Energy Storage Program, offered by Electriq Power, Inc. •Recommendation:
• Authorize the City Manager to approve a Program Participation Agreement with
Electriq Power for City participation in the Sustainable Community Network Program, endorse the Power Purchase Agreement as valid, and support programmatic outreach into the local community to promote the home solar and battery storage program in the City as part of a public- private partnership to reduce carbon emissions, decrease stress on the electric grid, and increase local climate resiliency by mitigating the impact of power shut offs.
May 16, 2023 City Council Meeting 2
38 Background
•Participation in the new SCN program is closely aligned with the City’s Susta
inability goals.
• Investing in the development and installation of clean energy infrastructure • Promoting environmental vitality and transition to a clean energy future • Advancing community towards 100% renewable energy by 2030 • Expands equitable community access to renewable energy and improves energy
resilience
•The program’s focus is providing access to clean energy technology at no upfr
ont cost, and without the hurdles that often prevent
disadvantaged or otherwise underserved community members from accessing the financing instruments (e.g., credit) typically required to acquire a solar microgrid.
May 16, 2023 City Council Meeting 3
39 About Electriq Power
•Founded in 2014
•Energy equity is core to
Electriq
Power’s mission
• Provide communities with
accessible, turnk
ey program
•Provides smart energy storage
sy
stems to residents
• Hardware (solar and batteries) +
Softwar
e (energy management)
May 16, 2023 City Council Meeting 4
40 Sustainable and Resilient Cities Program
•Program Overview:
• No credit check
• No property liens
• No deposits
• Provides energy priced below utility rates
• Easy purchase or transfer of contract
• Revenue share to the City
• System sized to include future electrification
• Smart home battery included
• Turn-key for both City and customers
• Full warranty, operation and maintenance included
May 16, 2023 City Council Meeting 5
41 Sustainable and Resilient Cities Program
•Benefits for customers:
• Eligibility open to everyone
• Immediate bill savings with
increases ov
er time
• Energy resiliency for
residents
with smart battery
systems
• Clean energy for community
members
Month Day, Year City Council/Committee Meeting Name 6
42 Sustainable and Resilient Cities Program
•City role and benefits
• Ensures transparency by validating
customer
contract (power purchase
agreement)
• Community engagement on how to
improv
e resilience and support
renewable energy
• Helps to meet sustainability goals and
support resiliency initiativ
es
• Revenue share after thresholds are
met
Month Day, Year City Council/Committee Meeting Name 7
43 SCN Launch in SB County – “Santa Barbara
Home Power”
•Launched in City of Santa
Barbar
a Q4 2022
•1400 leads to date
•66 Power Purchase
Agreemen
ts executed
•8 in Goleta (revenue share
goes t
o Santa Barbara)
•First installs expected this
month
Month Day, Year City Council/Committee Meeting Name 8
44 SCN Program Updates
•Recently launched collaborations and partnerships:
Month Day, Year City Council/Committee Meeting Name 9
45 Program Participation Agreement and Terms
•Local government partners enter into a “Muni-Resi Program Participation Agreemen
t” (MRPPA) with SCN:
• The City would not need to commit any funds to the program and would instead earn a 5%
share of revenue from all PPAs under the program within the City, once a minimum threshold balance of $30,000 in the revenue sharing escrow account is reached and maintained.
• This escrow account threshold balance serves as a financial security against risk of customer
late payment or default and allows the program to do away with any FICO requirement or property-specific lien.
• Use of this financial structure enables the PPA to be offered to the entire community, reg
ardless of access to credit and traditional financial instruments, thereby unlocking participation in the clean energy transition to all.
May 16, 2023 City Council Meeting 10
46 Program Participation Agreement and Terms
•Local government partners enter into a “Muni-Resi Program Pa
rticipation Agreement” (MRPPA) with SCN:
• The City of Goleta would agree to support the program through public outreach and educa
tion, etc.
• A model PPA is attached to the MRPPA to ensure transparency and
consistency for Goleta participants in the program
May 16, 2023 City Council Meeting 11
47 Recommendation & Next Steps
• Authorize the City Manager to approve a Program Participation Agreemen
t with Electriq Power for City participation in the
Sustainable Community Network Program, endorse the Power Purchase Agreement as valid, and support programmatic outreach into the local community to promote the home solar and battery storage program in the City as part of a public-private partnership to reduce carbon emissions, decrease stress on the electric grid, and increase local climate resiliency by mitigating the impact of power shut offs.
May 16, 2023 City Council Meeting 12
48