Framework CalChoice Distributed Energy Resource Program Agreement This Framework CalChoice Distributed Energy Resource Program Agreement (this “Agreement”) is entered into as of [July 15, 2023] (the “Effective Date”), among the parties listed below (each, a “Party” and together the “Parties”). This Agreement comprises (i) the Key Terms set out below (the “Key Terms”), and (ii) all schedules referenced in the “Attachments” section of the Key Terms.
Key Terms
This Agreement sets out the terms and conditions on which the California Choice Energy Authority (“CalChoice”) and the City of Pomona (“Member”) shall market and offer a program for the deployment of traditional solar PV systems and Powerwalls to certain residential customers (“ Customers”) and new homes builders (“ Builders”) located in the Member territory, with sales and educational support provided by Member , product and product installation support provided by Tesla, purchase and operation of System by Participate Energy Fund I, LLC (“Program Fund”) for the sale of energy from the Systems to Member for resale to Customers (the “Program”).
Parties:
Tesla: Tesla, Inc., a corporation organized under the laws of Delaware.
CalChoice: California Choice Clean Energy Authority, a California Joint Powers Authority.
Member: City of Pomona, a California municipal corporation.
The Program Fund: PE Fund Pomona, LLC
Framework Agreement Term:
Term: The period commencing on the Effective Date and ending on the second (2nd) anniversary of the Effective Date (the “Term”), which shall automatically be extended for additional, one -year periods upon the expiration of the then- current Term unless terminated early in accordance with this Agreement.
Notices:
Tesla Notice Address: 1 Tesla Road, Austin, TX 78725, USA.
Attn: Energy Notices / Legal Department
Phone: +1. 512.516.8177.
Email: [email protected].
Tesla Address for submission of
Purchase Orders:
www.tesla.com
CalChoice Notice Address: 44933 Fern Avenue, Lancaster, CA 93534.
Attn: Jason Caudle, City Manager
Phone: 661.723.6110
[email protected]
Member Notice Address: 505 South Garey Avenue, Pomona, CA 91766 Attn: James Makshanoff, City Manager
[email protected]
Program Fund Notice Address: Participate.Energy, LLC
Attn: Ethan Friedman
c/o Virtual Post Solutions, Inc.
2093 Philadelphia Pike #3125
Claymont, DE 19703
[email protected]
ATTACHMENT NO. 1
NDA:
NDAs: The non-disclosure agreement dated [MMM DD, YYYY ] between Tesla, Participate.Energy and Member.
Attachments:
The attachments below are incorporated by reference into this Agreement. In the event of any conflict, the order of precedence shall be (i) these Key Terms and (ii) the Schedules, in order of appearance.
Schedule 1: Program Terms and Conditions
Schedule 2: Pricing
Attachment A: Form of Customer Agreement
Attachment B: Form of New Homes Builder Framework Agreement Attachment C: Form of Customer Order – Program Terms
EX
ECUTED by the Parties on the Effective Date.
CALIFORNIA CHOICE CLEAN ENERGY AUTHORITY
(SIGNATURE)
(PRINT NAME)
(PRINT TITLE)
CITY OF POMONA
(SIGNATURE)
(PRINT NAME)
(PRINT TITLE)
TESLA, INC.
(SIGNATURE)
(PRINT NAME)
(PRINT TITLE)
PE FUND POMONA, LLC
(SIGNATURE)
(PRINT NAME)
(PRINT TITLE)
Schedule 1
Program Terms and Conditions
1. The Program. The objective of the Program is to deploy eligible Systems with a target of 50 0 MW of direct current capacity throughout the territorial boundaries of Member and the Community Choice Aggregation (“CCA”) service territories managed by Member or its CCA partners, including, but not limited to, the cities of:
San Jacinto, Pico Rivera, Rancho Mirage, Apple Valley, Pomona, Baldwin Park, Santa Barbara, Palmdale, and Lancaster (the “Territory”), as further set forth in this Agreement (the “Objective”).
2. Program Development.
(a) Geographic Focus. Member shall target all residential Customers and Builders located or operating within the portion of the Territory that is located within Member’s jurisdictional boundaries (the “Member Territory”) through the Master Marketing Plan.
(b) Site Eligibility. Eligible sites include existing single-family residential properties (“Existing Homes”) and single-family residential properties under construction by participating Builders in accordance with a New Homes Builder Framework (“New Homes”) located in the Member Territory. (c) Marketing Strategy & Outreach . The Master Marketing Plan shall be jointly developed by the Parties and designed to enlist the participation of Customers and Builders located in the Member Territory.
(i) Marketing Strategy. Within thirty (30) days, Member shall develop a strategy for marketing and promoting the Program, including:
1. Specific tactics that will be used to execute the Master Marketing Plan strategy;
2. An annual budget and description of dedicated resources that will be used to support Program marketing efforts;
3. Specific communications to be made through its sales channels; and
4. Dedicated education and links to the Tesla Products Offering on the Member website. (ii) Marketing Outreach . Member shall provide consistent and targeted marketing outreach consistent with the Master Plan to prospective Customers and Builders in the Member Territory.
(d) Sales Support. Member shall:
(i) Provide sales support for interested Customers and Builders by phone, email, and chat; (ii) Provide educational information regarding Tesla Products, economics, billing, maintenance, installation and technical performance of the System and components thereof; and (iii) Convert inbound interest and leads into Orders that (i) that Customers may submit to Tesla through the Existing Home s Retrofit Energy Order Tool; and (ii) participating Builders may submit to Tesla through the New Homes Energy Order Tool. (e) Order Funding. CalChoice and Member shall facilitate the establishment of a fund (the “ Program Fund”) that shall be obligated to pay for Orders placed in accordance with the Program criteria set forth herein and that shall own and operate the Systems in accordance with the terms and conditions of each Customer Agreement.
3. Customer Eligibility; Engagement.
(a) Eligibility. To be eligible for participation in the Program, a Customer must : (i) either own an Existing Home or have entered into an agreement with a Builder to purchase a New Home, (ii) be an existing participant, or agree to become a participant, in the CalChoice Member’s Community Choice Aggregation program (“CCA”) with utility service provided by Southern California Edison (“Utility”), (iii) agree to host a System installed on the Home and to provide the Program Fund, as System owner, and its agents with a non-exclusive license (the “Site License”) for access to the Site for the entire term of the Customer’s participation in the Program for the purposes operating and maintaining the System; and (iv) agree to purchase an equivalent amount of energy generated by the System pursuant to a Solar Power Purchase & Energy Storage Services Agreement (each, a “Customer Agreement”) using the form attached hereto as Attachment A. (b) Customer Engagement. Member shall direct Customers with New H omes to accept the transfer and assumption of a Customer Agreement from a participating Builder in accordance with the terms and conditions of the applicable New Homes Builder Framework as more particularly described in Section 4. Member shall direct Customer s with Existing Homes to place Orders directly with Tesla and to enter into a Customer Agreement in accordance with Section 5.
4. New Homes Builder Framework Agreement.
(a) Builder Framework Agreement . During the Term, the Parties may consider Builders for participation in the Program. Upon Tesla confirmation of Builder eligibility, Member and eac h p
articipating Builder will enter into a New Homes Builder Framework Agreement ( the “Builder Framework”) in the form attached as Attachment B. Material deviations from the Builder Framework are not permitted without unanimous written agreement of the Parties. (b) Builder Framework Obligations. Member will require, pursuant to each Builder Framework, tha t Builders deliver and maintain the following to remain eligible for participation in the Program :
(i) A fully executed Builder Framework;
(ii) Community Specific Terms setting forth the Tesla Product Suite, eligible System information and Pricing applicable to the particular subdivision of new homes (each, a “Community”); (iii) An executed Builder non- disclosure agreement in the form attached to the Builder Framework;
(iv) Orders as set forth in Section 5 placed in accordance with each Builder Framework; (v) For each Order, a “solar ready” home that will include internal conduit installation, roof dry in and order details developed in consultation with the buyer of each applicable home in the Community ( each, a “ Home Owner ”) sufficient for Tesla to complete installation of Tesla Products and the home to pass inspection by the applicable building department as th e a
uthority having jurisdiction (“AHJ”); and
(vi) Ongoing compliance with the Builder Framework and Program requirements as Tesla , Member and CalChoice may mutually agree to update from time to time.
5. Orders.
(a) During the Term, Member shall direct eligible Customers to the Existing Homes Energy Order Tool at www.tesla.com and Builders to the New Homes Energy Order Tool developed by Tesla for each Builder to place orders for Tesla Products for installation on Existing Homes or New Homes in the Member Territory in accordance with the se Program terms and the form of Customer Order – Program Terms set forth in Attachment C (“Orders”).
(b) Tesla shall deliver and install Tesla Products in accordance with each applicable Order. T he Pr
ogram Fund shall purchase and pay for the quantities and types of Tesla Products at the prices stated in each applicable Order. Tesla will review each submitted Order to ensure th at it tracks the Program criteria and the Community Specific Terms, if applicable. If Tesla reasonably believes that the Order does not track the Program criteria or the Community-Specific Terms, it will notify the Parties and the Parties will then reasonably cooperate to resolve the issue. (c) For each Order that is accepted by Tesla (each, an "Accepted Order"), Tesla shall supply, install and commission the Tesla Products at the Site identified in that Accepted Order in accordance wit h that Accepted Order and the Work Standards described in Section 8(a) (the “Work”). Accepted Orders will be subject to Tesla’s standard terms and conditions. (d) For purposes of this Agreement and each Accepted Order, “Tesla Products ” means a Traditional PV System with a Powerwall , as more particularly set forth in the Community Specific Guidelines of each Builder Framework . A “ Traditional PV System ” means a traditional solar photovoltaic generating system comprising of solar modules, an inverter and various balance of system components. A “ Powerwall” means an energy storage system manufactured by Tesla and accompanying Tesla accessories. Each Traditional PV System, Powerwall shall consist of those that correspond to the specifications published in the Tesla Partner Portal as of the date when an Order for such Tesla Product is submitted.
(e) Tesla agrees to provide Member with access to a platform managed by Tesla that enables access to and control of distributed energy resource assets (“DER Assets”) , manufactured by Tesla a nd owned directly or indirectly by Member or the Program Fund , for monitoring, aggregation, and control (the “Aggregation Platform”). Tesla will not charge Member or the Program Fund any fees for access or use of the platform, but otherwise reserves the right to establish the terms and conditions for Member ’s access to the Aggregation Platform within an Aggregation Platform Subscription Agreement . A ccess to the Aggregation Platform ex cludes aggregation services offered by Tesla.
(f) The Parties acknowledge and agree that Tesla can choose at any time to discontinue a product, feature or option related to any one or more Tesla Product s and, in Tesla’s sole discretion, can choose whether to provide a comparable product, feature or option, or terminate any affected Order before installation of any Tesla Product. If Tesla fails to provide a comparable product, feature or option to Member’s reasonable satisfaction, Member may terminate any affected Order before installation of any Tesla Product.
6. Pricing; Order Payment .
(a) Pricing. Programmatic pricing for Tesla Products is set forth in Schedule 2 (the “Pricing”). T he System size or design may be adjusted by Tesla in its reasonabl e discretion based on a variety o f f
actors, including installation complexity or product availability, provided that the Pricing remains at or below the Pricing set forth on the Program website. If that happens, we will update the Pricing in the applicable Order; Orders with updated Pricing that exceeds the Pricing set forth on the Program website and that are not accepted will be terminated. (b) Order Payment . For Accepted Orders, t he price for the Work performed by Tesla under each Accepted Order shall be the Contract Price identified in that Accepted Order. T he Program Fund shall pay the Contract Price for each Accepted Order plus applicable taxes within 30 days after receipt of Tesla’s invoice, which Tesla shall provide after the affected Tesla Products have been installed and passed inspection by the AHJ. Passed inspection shall also be deemed “Acceptance” in this Agreement and in each Builder Framework.
7. Title; Risk of Loss . Title to and risk of loss for the Tesla Products shall pass to the Program Fund after Acceptance.
8. Permits. Customers and Builders, as the case may be, shall bear the obligation to obtain and maintain all permits required for Tesla to install each Tesla Product (the “ Permits”), except that Tesla shall include the cost of Permits in Orders for Existing Homes.
9. Installation .
(a) Work Standards. Tesla, or its approved subcontractors, will perform the Work according to Tesla’s standard practices and the “Tesla Work Standards” set forth in Exhibit 2 to each Builder Framework exercising the reasonable skill and care of an installation contractor and in accordance with mandatory laws, regulations and permits applicable to the Work. (b) Subcontractors. Tesla will be responsible for all work performed by, and acts or omissions of, each subcontractor and will ensure that all subcontractors are licensed as required by applicable law. (c) Safety. Tesla shall ensure that all Tesla employees and subcontractors comply with Builder’s safety procedures and requirements while on Sites during prosecution of the Work .
10. Failure to Perform.
(a) If any Party believes that any other Party is not satisfying its obligations under this Agreement or with respect to an Order, such Party must notify the other Party in writing. Wh ichever Party is notified of not meeting its obligations will have 30 days after receiving that notice to correct the issue. If not, whoever gave the notice can terminate the affected Order or this Agreement in accordance with Section 13.
(b
) In addition, if Tesla notifies the Parties of the Program Fund’s failure to pay the Price for an Order, Tesla can suspend our work on that Order and, if not cured within ten (10) days, Tesla can suspend performance under this Agreement.
(c
) If a Customer or Builder terminates an Order for Tesla’s failure to perform before installation o f th
e Tesla Products for that Order has commenced, we will return any payment(s) made toward the Price for those products.
(d
) If either party terminates an Order for the other party’s failure to perform, except as specified in the next sentence, Tesla may take back all components of any Tesla Products we delivered but that h
ave not yet been installed for that Order and shall not have any furthe r obligation to deliver product pursuant to this Agreement or that Order. In addition, if an Order is terminated pursuant to this Section, Tesla will complete the installation of Tesla Products where installation is partially complete, unless otherwise requested by the Program Fund (in which case, Tesla will deinstall and remove the Tesla Products from the affected home and return the jobsite to its original condition, at no cost). Each Party will also be able to pursue all rights and remedies available at law or in equity with respect to the failure to perform, except as otherwise provided in Section 13, below.
Breaches of one or more Orders will not constitute breaches under any other Orders or under this Agreement, and breaches of this Agreement independent of any Orders shall not constitute breaches of any Orders.
11. Warranties.
(a) Starting on the date of installation, Tesla warrants to the Program Fund that all materials, equipment and work furnished by Tesla as part of an Order will be:
(i) of good quality, free from fault and defects, and
(ii) performed in a good and workmanlike manner, in accordance with all applicable laws, building codes and ordinances, and in strict conformity with the Order.
If the Program Fund notifies Tesla within 1 year after Acceptance (for Existing Homes) or the initial close of escrow by a Home Owner (for New Homes), Tesla shall, at its sole expense, immediately correct or replace any Work that is defective or determined to be not in accordance with the requirements of the above warranties.
(b) Tesla’s warranties in this Agreement are limited, as they do not cover (i) any defect or damage to the extent caused (A) by events that are (1) beyond Tesla’s reasonable control, (2) not reasonabl y
f
oreseeable, and (3) not caused by Tesla’s or its subcontractor’s negligence, or (B) by Customer or Program Fund misuse or negligence, and (ii) any material or equipment connected to the Tesla Products that Tesla did not install. Tesla is not providing any warranties in connection with this Agreement other than those in this Agreement or in the product warranties provided by Tesla pursuant to Section 11(c), even if those other warranties are express or implied by any law. (c) Tesla's warranties under this Agreement shall in all cases survive termination of this Agreement and the transfer of title in the home to a third -party purchaser, except for a Home Owner (whos e
warranty is set forth in Sections 11(e) and 11(f)).
(d) With respect to any warranty claim by the Program Fund under Section 11(a) for the correction , r
eplacement and warranty work, the remedies set forth in Section 11(a) and in Sections 10(d) and 11,
as applicable, are the Program Fund’s sole and exclusive remedies. For clarity, the foregoin g s
hall not limit the Program Fund’s ability to bring claims for other purposes not related to the correction, replacement and warranty work as set forth in this Section 11 (d), including, without limitation, the Program Fund’s rights to indemnification under Section 14. (e) If a Home Owner exerc ises a buyout option and purchases any Tesla Product from the Program Fund, Tesla will cover each Home Owner with limited warranties for Tesla Products in the forms attached as Exhibit 3 to each Builder Framework, as applicable. (
f) In addition, Tesla will provide to each Home Owner the workmanship warranty attached as Exhibit 4 to each Builder Framework , assuming the Program Fund assigns that warranty to the Home Owner.
(g
) The manuals and equipment warranties for Tesla Products are available upon request after each Order.
12. Proprietary Rights.
(a) Ownership. As between the Parties, Tesla shall remain the sole and exclusive owner of any and all Proprietary Rights associated with the System or any parts or derivations thereof. “ Proprietary Rights” means patents, trademarks, copyrights, mask work rights, trade secrets and any other intellectual or proprietary rights.
(b) License. Tesla hereby grants to Member and CalChoice a limited, non -exclusive, non - sublicensable, non-transferable license to use the materials that Tesla provides for implementing the Master Marketing Plan and marketing the Plan in accordance with this Agreement. Except for the foregoing, no license or other right to Tesla’s Proprietary Rights is granted or implied hereby.
13. Termination.
(a) Termination for Cause . Each party may terminate its participation in this Agreement or a ny Accepted Order for cause in the event (i) an insolvency event involving one of the other parties; or (iii) any party has materially breached any provision of this Agreement (other than non- payment) and, within 30 days after receipt of written notice of such breach from a non -breaching party, the breaching party has failed to cure such breach or, in the event the breach cannot reasonably be cured within such 30 day period, submit a plan for cure acceptable to each non-breaching party in its reasonable discretion. The termination of this Agreement by any single party shall result in the t
ermination of this Agreement as to all parties.
(b) Insolvency Event. An “Insolvency Event” occurs with respect to a Party (i) if it is adjudged bankrupt; (ii) if it makes a composition or arrangement with its creditors; (iii) if it has a winding up petition or
a petition for an administration order presented against it; (iv) if it has a receiver or manager or administrative receiver or provisional liquidator appointed; or (v) upon the happening of any other event of insolvency.
(c) Effects of Termination. Except as otherwise set forth in this Agreement, the expiration or termination of this Agreement will not affect any rights or obligations of the Parties that wer e i
ncurred or that accrued prior to such expiration or termination. Termination shall not be deemed an election of remedies, and the non -defaulting party shall have all rights and remedies available under applicable law in connection with and following such termination.
14. Indemnification.
(a) No party to this A greement will be obligated to indemnify any other party from any losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses, including reasonable legal fees (“Losses”) arises out of or due to the negligence or willful misconduct of such other Party. For purposes of thi s Agreement and each Builder Frame work, “Indemnified Parties” means for each Party, (i) the Party and any person providing financing to the Party with respect to the System, (ii) any affiliate of the persons set forth i n clause (i), and (iii) any director, officer, partner, member, manager, agent or employee of a person described in clause (i) or (ii); and, “Indemnifying Party” means each other Party, as the context requires. (b) Tesla’s Indemnities. Tesla will indemnify, defend and hold harmless each other Party’s Indemnified Parties from any Losses arising out of any claim, action, suit, proceeding, investigation made or brought by any third party (“Claims”):
i. that Tesla Products (or any component o r software thereof) or Tesla’s W ork pursuant to any Accepted Order infringes the intellectual property rights of a third party, other than a Claim for which such Party is responsible under Section 11(c). In addition, if such Party is enjoined from the use, operation or enjoyment of Tesla Products or any part thereof as a result of any Claim alleging that Tesla Products or Tesla’s W ork infringes the intellectual property rights of a third party, Tesla will at no cost to such Party, at Tesla’s option: (1) have such injunction removed, (2) substitute non-infringing goods or processes, or (3) modify the infringing goods or processes so they become non - infringing and provide the same or better functionality and performance relative to the affected item’s then-current functionality and performance; and ii. in connection with the design, construction, installation, workmanship, materials or functionality of any materials, equipment and work furnished by Tesla, except with respect to any modification by any party other than Tesla (directly or indirectly) or use or reuse of Tesla Products that are the subject of an Accepted Order other than as permitted under this Agreement or their warranties.
(c) Member, CalChoice and Program Fund Intellectual Property Indemnity. Member, CalChoice and Program Fund will indemnify and hold harmless Tesla and Tesla’s Indemnified Parties from any Losses arising out of Claims alleging infringement to the extent involving:
i. a particular design, process or product required or specified pursuant to any Accepted Order or where the copyright violations are contained in drawings, specifications or other documents prepared or provided by You or others for whom You are responsible, ii. any modification by any party other than Tesla (directly or indirectly), use or reuse of Tesla Products other than as permitted under this Agreement or their warranties, iii. use of Tesla Products in combination with any other products, materials or equipment not expressly authorized in writing by Tesla in cir cumstances where the infringement would have been avoided by the use of Tesla Products not so combined, unless such other products, materials or equipment are provided, required or approved by Tesla (as indicated by reasonable evidence) for, or are intrinsic to, use of Tesla Products, or iv. any modifications or changes made to Tesla Products by any party other than Tesla other than at the direction (as indicated by reasonable evidence) of Tesla in circumstances where the infringement would have been avoided without such modifications or changes.
15. Limitation of Liability. Except for indemnification obligations (Section 14), breach of confidentiality (Section 17), or any gross negligence or willful misconduct, the Program Fund’s and Tesla’s total liability for all damages of any kind arising out this Agreement will not exceed $1,000,000.00 and neither Member nor CalChoice shall bear any liability for any damages of any kind arising out this Agreement. Also, no party will have to pay any other party for any indirect, special or consequential damages.
16. Force Majeure. Each Party shall be excused from performance and shall not be considered to be in breach with respect to any obligation hereunder other than any obligation to pay money due and owing, if and to the extent that such Party’s failure of, or delay in, performa nce is caused by or results from acts or circumstances beyond the reasonable control of such Party (a “Force Majeure Event”); provided:
(a) such Party gives the other Parties notice describing the particulars of the Force Majeure Event as soon as is reasonably practicable and in any event within ten (10) Business Days after the discovery of the Force Majeure Event and its impact on such Party’s performance; (b) the suspension of performance is of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event;
(c) the Party uses reasonable endeavors to:
(i) overcome or mitigate the effects of such occurrence, and (ii) minimize costs and expenses attendant to or arising from such occurrence; (d) when the Party is able to resume performance of the affected obligations, such Party shall so notify the other Party and promptly resume performance;
17. Confidentiality; Publicity.
(a) Except for communications exchanged between each Party, each Party will keep any disclosures, as well as the terms of this Agreement , confidential in accordance with the non- disclosure agreements between them (the “NDAs”) and agree that this Agreement is confidential information of each of them for purposes of the NDA s. (Even though the NDAs are separate documents, they are considered part of this Agreement).
(b) Neither Party will advertise or issue any public announcement about this Agreement, or use the other Party’s mark, name or logo in any marketing literature, web sites, ar ticles, press releases (including interviews with representatives of media organizations of any form), or any other document or electronic communication, without the other Party’s written consent. (c) Nothing in this Agreement, the NDAs, or any other agreement between the Parties limits or prohibits any announcement, disclosure, or other act that is required by law.
18. Governing Law; Disputes.
(a) The Parties agree to comply with all applicable laws and regulations in connection with this Agreement. This Agreement is governed by the laws of the State of California. Any dispute arising out of or relating to this Agreement shall be brought in the Superior Court of California, County of Los Angeles, or the United States District Court for the Central District of California. (b) Neither of us is bound by any terms relating to Tesla Products or other matters covered by this Agreement or any Order that are not contained in this Agreement or the affected Order. (c) Each of the Parties also agree to promptly notify the other’s senior level management if there is any dispute relating to this Agreement or any Orders and to try to resolve the dispute in good faith.
If we are unable to resolve a dispute within 20 days after that notice is given, then either of us can take the dispute to arbitration through Judicial Arbitration and Mediation Services (“JAMS”) according to JAMS Streamlined Arbitration Rules. The existence, content and result of the arbitration will be confidential. The arbitration will be conducted by a single arbitrator in English and in Los Angeles, California, unless otherwise agreed by the Parties . We will each bear our own expenses in the arbitration and will share equally the costs of the arbitration unless the arbitrator assigns costs to one of us. Judgment upon the award rendered in the arbitration may be entered in any court of competent jurisdiction
19. Miscellaneous .
(a) Representations. Each Party represents and warrants to the other Parties that (i) it is a legal entity, duly organized, validly existing and in good standing under the laws of jurisdiction of incorporation; (ii) t
his Agreement constitutes a legal, valid and binding obligation of such Party enforceable in accordance with its terms; and (iii) the execution, delivery and performance of this Agreement (A) is within its powers, (B) has been duly authorized by all requisite action and (C) will not violate any agreement, commitment, certificate or other document to which it is a party or by which any of its assets may be bound or affected.
(b) Compliance with Law. Each Party will comply with all applicable laws and regulations in connection with its performance under Agreement.
(c) Notices. All notices under this Agreement must be in writing and must be sent via email, or express and/or certified mail, to the contacts identified in the Key Terms. (d) Assignment. Tesla can assign this Agreement and each Accepted Order (i) to an affiliate and (ii) as collateral in connection with its financing activities, in either case without the need for consent from any other Party.
(e) Insurance. Each Party shall carry and maintain in force, with reputable insurance companies authorized to do business in the jurisdictions where the portion of the Member Territory is located.
E
ach of the Parties shall each maintain all insurance that such Party is required by law to maintain.
I
n connection with the Work pursuant to each Builder Framework and Accepted Order, Tesla shall be required to maintain insurance as set forth in Exhibit 6 to the Builder Framework. (f) Cumulative and Certain Exclusive Remedies . Except as otherwise specifically set forth in this agreement, all rights and remedies provided under this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. (g) Entire Agreement; Severability. This Agreement constitutes the entire agreement between th e Parties regarding the subject matter hereof and supersedes all prior agreements, representations and understandings, oral or written, between the Parties regarding the subject matter hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such term shall be severable from the remainder of this Agreement and the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by the law.
(h) Amendment and Modification. No amendment or modification of this Agreement is effective unless it is in writing and signed by each Party.
(i) Waiver. No waiver by either Party of any provision of this Agreement is effective unless explicitl y set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right or remedy hereunder precludes any other or further exercis e
t
hereof or the exercise of any other right or remedy.
(j) Relationship of the Parties . The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
(k) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(l) Survival. Provisions of this Agreement which by their nature contemplate or govern performance or observance subsequent to the termination or expiration of this Agreement shall survive such termination or expiration.
Schedule 2
Pricing
The following terms set forth in th is table listed below (the “Pricing”) shall apply to each Accepted Order as of the date the Accepted Order is received by Tesla in accordance with the terms and conditions of this Agreement. T he Parties agree that Tesla may, in its reasonable discretion, based upon community -specific factors, including installation complexity, as well as recent market factors and product availability, update the Pricing applicable to each Community pursuant to each New Home Builder Framework so long as the Pricing is at or below the Pricing set forth on the Program website. Pricing shall not exceed the Pricing on the Program website absent written Notice to the Parties (including email) and written acceptance by each applicable Party or any other method as may reasonably be agreed upon by the Parties.
Solution Price
Solar PV (Rooftop) $2.42/Wp
Powerwall – 1st $11,500
Powerwall – Each Additional $7,000
15 Year Powerwall Extended Warranty - Each $650
Member Services $0.40/Wp of PV
Tesla Pre-Construction Services
Examples: Remove copper from roof; upgrade
structure; remove existing solar PV;
remove/relocate AC unit; remove/fix existing
generator; remove existing battery backup;
remove/relocate existing solar thermal;
remove/relocate rooftop vents; remove/trim tree;
clean roof surface; fix electrical code violation;
remove/relocate shelving; master-panel upgrade
(MPU) (situational)
14.5¢ PPA: $0 - $750 in pre-construction services
15.0¢ PPA: $751 - $2,500 in pre-construction services
15.5¢ PPA: $2,500 - $5,000 in pre-construction services Project Ineligible: > $5,000 in pre-construction services By
way of example, for a typical System (7.6 kW Solar PV + 1 Powerwall) Solution Price
7.6 kW Solar PV $18,392
Powerwall – 1st $11,500
Powerwall – Each Additional $0 (N/A)
15 Year Powerwall Extended Warranty - Each $650
Member Services $3,040
Tesla Pre-Construction Services $2,000
TOTAL: $35,582 (corresponds to a 15.0¢ Customer PPA)
Attachment A
Form of Customer Agreement
[Ins
ert]
Solar PPA Disclosure Statement v. 2022
1 SOLAR ENERGY SYSTEM DISCLOSURE DOCUMENT
This disclosure shall be printed on the front page or cover page of every solar energy contract for the installation of a solar energy system on a residential building.
The estimated TOTAL COST for the solar energy system (including financing and energy / power cost if applicable) is: $________________ To make a complaint against a contractor who installs this system and/or the home improvement salesperson who sold this system, contact the Contractors State License Board (CSLB) through their website at www.cslb.ca.gov (search:
“complaint form”), by telephone at 800-321-CSLB (2752), or by writing to P.O.
Box 26000, Sacramento, CA 95826.
If the attached contract was not negotiated at the contractor's place of business, you have a Three-Day Right to Cancel the contract, pursuant to Business and Professions Code (BPC) section 7159, as noted below. For further details on canceling the contract, see the Notice of Cancellation, which must be included in your contract.
Three-Day Right to Cancel
You, the buyer, have the right to cancel this contract within three business days. You may cancel by e-mailing, mailing, faxing, or delivering a written notice to the contractor at the contractor's place of business by midnight of the third business day after you received a signed and dated copy of the contract that includes this notice. Include your name, your address, and the date you received the signed copy of the contract and this notice.
This document was developed through coordination of the California Contractors State License Board and the California Public Utilities Commission pursuant to Business and Professions Code section 7169. 1 Solar PPA Disclosure Statement v. 2022
SOLAR POWER PURCHASE & ENERGY STORAGE SERVICES
DISCLOSURE STATEMENT
This statement is designed to help you understand the terms and costs of your solar power purchase and energy storage services agreement. This statement is not a substitute for reading the contract and other documents associated with this transaction. Read your contract and other documents carefully. All information presented below is subject to the terms of your contract.
Provider: [Participate Energy, LLC
pursuant to the [CCA Retail Program
Name]]
Installer: Tesla Energy Operations, Inc. Customer: [Autopopulate] Address: Address: 901 Page Avenue System Installation Address:
Fremont, CA 94538 [Autopopulate],
Tel.: (___) ___-____ Tel.: 888-765-2489
License # (if applicable): N/A State/County Contractor License #: Customer Mailing Address:
CA CSLB 888104 [Autopopulate],
Email: Email:
[[email protected]] [email protected] Email:
[Autopopulate]
Contract Date: [08/05/2022]
* NO TE: YOU ARE ENTERING INTO AN AGREEMENT TO PURCHASE POWER AND SERVICES; NOT A SOLAR SYSTEM. YOU WILL NOT OWN THE SOLAR OR BATTERY SYSTEM INSTALLED ON YOUR PROPERTY.
Electricity Rate and Term
Your rate per kilowatt-hour (kWh) for the power produced: 14.50 ¢ Your estimated first year production: [ ____ ] kWh
The length of your PPA: 25 Years
*NOTE: Your monthly solar PPA payments will be the amount of power produced times the rate per kWh above. Your monthly storage services payments will be fixed monthly fee of [$_______] for one Powerwall and [$_______] for each additional Powerwall. As a result, your payments will vary every month, but the amount you pay per each kWh will be fixed, unless you hav e a “PPA Payment Escalator.” See Section “PPA Payment Escalator” for factors that may affect the amount of your rate per kWh and therefore your future monthly payments.
Amount Due Up-Front
Amount you owe Provider at Agreement signing: $0.00
Amount you owe Provider at installation: $0.00
Amount you owe Provider at building inspection: $0.00
Total up-front payments you owe Provider: $0.00
Other Possible Charges
Late Charge: Late Payments accrue interest at the lesser of twelve percent (12%) annually or the maximum allowable by applicable law Estimated System Removal Fee: System Owner will remove the System from your roof while roof repairs are being made and reinstall for a competitive price.
UCC Notice Removal and Re-filing Fee: There may be up to a $250 document processing fee to have the UCC-1 financing statement or fixture filing removed for refinance and/or other real estate transaction purposes.
Non-Connection to Internet: If you do not maintain a high-speed internet connection, we will not be able to monitor the System and may be required to estimate your power usage as set forth in the Agreement.
Solar PPA Disclosure Statement v. 2022
Number of Monthly Payments: 300 monthly payments
When Payments Are Due
Your first Monthly Payment is due on the first day of the second full calendar month following the Interconnection Date. Provider will provide you with: Invoices will be included with your monthly utility bill provided by [Southern California Edison] PPA Payment Escalator
The amount of your electricity rate per kWh will increase: Annually Your electricity rate per kWh will increase by the following amount 1.90% The first increase will occur with your 13th payment.
Site & Design Assumptions for your System
Estimated gross annual electricity production in kilowatt-hours (kWh) from your System: [ ____ ] kWh Estimated annual system production decrease due to natural aging of system: 0.5% System location: rooftop
Connectivity: The solar system WILL be connected to the electric grid.
Net metering: At the time of installation, the system WILL be net metered. Net metering rules are set by the jurisdiction you live in.
Your utility offers a net energy metering policy as required under state statute or as regulated by a public utility commission.
Changes in net energy metering policy or utility rate structures during the life of the system may result in lower utility bi ll savings than estimated or none at all; Provider will not be responsible for reassessing the contract rate.
Security Filings
Provider MAY file a lien against your real property (e.g. a lien on your home) for non-payment by terms of the Agreement System Owner WILL file a fixture filing or a UCC-1 on the system (a public filing informing others that Provider owns the system, but does not put a lien on your home)
Repair & Maintenance
System maintenance IS included for the term of the Agreement. You are required to perform the following system maintenance:
• Shade Management: Shading on your solar display dramatically reduces electricity production. Keep trees or other tall plants trimmed to prevent shade on your system. • Panel Cleaning: Cleaning your panels of debris can improve your system performance. Flushing the panels from the ground with a water hose can let more sunlight penetrate through the glass cover.
System repairs ARE included for the term of the Agreement from Provider or a third party (such as an installer or equipment manufacturer). If all system repairs are not included, you are required to perform the following system repairs: NONE Roof Warranty
Your roof IS warranted against leaks from the system installation for the first 10 years.
Your roof IS warranted against leaks caused by removal of the system for a period of 1 year(s) following system removal at the end of the Agreement. Any portions of your roof impacted by the system WILL be substantially returned to their original condition following the removal of the system (ordinary wear and tear excepted) Transferring your PPA and Selling your Home
If you sell your home, you MAY transfer this Agreement to the purchaser(s) of your home.
If you may transfer the Agreement, the transfer will be subject to one or more of the following conditions:
• The Home Buyer enrolls in the [CCA Retail Program Name] • The Home Buyer assumes the contract.
If you sell your home, you may have the option to purchase the system.
Summary of Your Agreement
11/2022
Transfer of Obligations by Provider
The Agreement may be assigned, sold or transferred by Provider without your consent to a third-party that will be bound to all the terms of the Agreement. If such a transfer occurs, you will be notified if this will change the address or phone number to use for Agreement-related questions, payments or service requests.
Performance or Production Guarantee
Provider is NOT providing you with a Performance Guarantee Taxes
You are responsible for property taxes on property you own. Consult a tax professional to understand any tax liability that may result from entering the Agreement.
Utility and Electricity Usage/Savings Assumptions
You HAVE NOT been provided with a savings estimate based on your Agreement. If provided, the savings estimate was calculated based on: System size.
The savings estimate to you assumes the following:
Years of electricity production from your System: 25 years It is important to understand that electricity rates are estimates only. Your actual current and future utility rates and utility rate increases may vary.
Provider IS NOT guaranteeing these savings.
Renewable Energy Certificates (RECs)
Any renewable energy certificates or credits (RECs) from producing renewable solar energy with the system WILL NOT be owned by you. If you do not own the RECs, you will not be able to sell, use or claim them, and Provider, System Owner or its designee may sell the RECs to a third party who may claim clean, green or renewable energy based on its purchase of RECs from the system.
Cooling Off Period/ Right to Cancel
In addition to any rights you have under state or local law, you HAVE the right to terminate this Agreement without penalty within three (3) business days of [_______________] by notifying Provider in writing at the above address.
SEIA Solar Business Code
Provider DOES abide by and agrees to be bound by SEIA’s Solar Business Code and its complaint resolution process. For more information about the SEIA Solar Business Code and complaint resolution process, please visit http://www.seia.org/consumers
Customer’s Initials here
Summary of Your Agreement
11/2022
SUMMARY OF YOUR SOLAR POWER PURCHASE &
ENERGY STORAGE SERVICES AGREEMENT
IMPORTANT
THIS PAGE PROVIDES A SUMMARY OF KEY TERMS CONTAINED IN YOUR SOLAR
POWER PURCHASE & ENERGY STORAGE SERVICES AGREEMENT (THE “AGREEMENT”) AND IS PROVIDED AS A COURTE SY. CAPITALIZED WORDS ARE DEFINED IN YOUR AGRE EMENT. IN THE EVENT OF A CO NFLICT BETWEEN THIS SUMMARY PAGE AND YOUR AGREEMENT, YOUR AGREEMENT CONTROLS.
HOMEOWNER(S): [Insert Owner]
[Insert Co-Owner, if any]
DATE OF AGREEMENT: [Insert Date]
MAILING ADDRESS: [Insert Street Address]
[Insert City, State & Zip]
INSTALLATION ADDRESS: [Insert Street Address]
[City], CA [Insert Zip]
$0.00 $0.XX $0.XX 25 Years
Upfront costs Rate per kWh (Year One) Monthly Fee / 1st Powerwall $0.XX / additional Powerwall
Agreement term
System installation, maintenance,
and warranty:
• We insure, maintain, and repair the System
(including the inverter) at no additional cost
to you, as specified in your Agreement.
• We provide 24/7 monitoring at no additional
cost to you, as specified in your Agreement.
• We warranty your roof against leaks and
restore your roof at the end of the Agreement
,
as sp
ecified in your Agreement.
• The rate you pay us for electricity, exclusive
of taxes, will never increase by more than
X.X % per year.
Options for system purchase and
transfer:
• If you move, you may transfer your
Agreement to the purchaser of your Home, as
specified in your Agreement.
• At certain times, as specified in your
Agreement, you may purchase the System.
• These options apply during the term of your
Agreement.
Options at the end of the 25-year
term:
• [CCA Name] will remove the System at no
cost to you.
• You can upgrade to a new System wit h
s
imilar technology under a new contract.
• You may purchase the System from [ CCA
Name] for its fair market value as specified
in your Agreement.
• Your Agreement will renew for five (5) years
at the end of the Initial Term unless y ou
not
ify us that you prefer that it terminate.
I understand, acknowledge, and agree that this
page is a non -binding summary of the
attached Agreement. In the event of a conflict,
the provisions of the Agreement control.
________________________________
Homeowner
________________________________
Homeowner
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 1
SOLAR POWER PURCHASE & ENERGY STORAGE SERVICES AGREEMENT
1. INTRODUCTION
This Solar Power Purchase & Energy Storage
Services Agreement ( this “Agreement”) is the
agreement between you and [ Participate Energy
Fund, LLC] (the “System Owner”) (together with
its successors and assigns, or altogether, “we,”
“us” or “our”), relating to (a) the installation of a
solar panel system (the “ Solar System”) plus
battery (the “Battery ,” together with the Solar
System, the “System”) at your home, (b) the sale
of power generated by the Solar System (the
“System Generation”) by System Owner to the
[City/Town Name ], your local Community
Choice Aggregation provider [(“CCA Name”)],
and (3) your purchase of an amount of the power
equivalent to the System Generation from your
utility in accordance with [ CCA Retail Program
Name] tariff. The System has been or will be
installed by Tesla, In c. (“Tesla”) at the
installation address (the “Property” or your
“Home”) indicated on the “ Summary of Your
Solar Power Purchase & Energy Storage Services
Agreement” that accompanies this Agreement.
1. TERM
System Owner agrees to sell to [CCA Name] the
System Generation for resale to you pursuant to
the [ CCA Retail Program Name ] tariff of an
amount of power equivalent to the System
Generation for 25 years (300 months), plus, if the
Interconnection Date is not on the first day of a
calendar month, the number of days left in that
partial calendar month. We refer to this period of
time as the “Term.” The Term begins on the
Interconnection Date. The “Interconnection
Date” is the date that the System is turned on and
generating power. System Owner will notify you
by email and mail when your System is ready to
be turned on.
2. SOLAR POWER PURCHASE &
ENERGY STORAGE SERVICE
AGREEMENT PAYMENTS;
AMOUNTS
2.1. Power Price. During the Term, y ou
agree to purchase power for your Home
pursuant to the [CCA Retail Program Name]
tariff for an amount equivalent to the System
Generation. During the first year of the
Term, the power purchase price is $0.XX per
kWh, and thereafter, the price per kWh (up to
the amount of System Generation) will
annually increase by X.X% of the previous
year’s price. There are no upfront installation
costs to you.
2.2. Payments. Your monthly energ y
payment obligations will be in accordance
with the [CCA Retail Program Name] tariff,
provided that for the System Generation the
amount of your payment obligations will b e
calculated as the product of (A) the rate per
kWh set forth in Section 2.1 above,
multiplied by (B) the actual kWh output of
System Generation for each calendar month
during the Term; and (2) a fixed monthly fee
calculated as [$______ ] for the first
Powerwall plus [$_____] for each additional
Powerwall comprising your Battery for the
energy storage services throughout the Term
(“Monthly Payments”). Invoices for Monthly
Payments will be included with your monthly
utility bills provided by your utility provider
[Southern California Edison] (“Utility”).
Monthly Payments will change as your price
per kWh changes over the Term of this
Agreement and as Solar System production
varies (e.g., summer has higher production).
You will have regular access to the Sola r
System’s production via your online account.
Payments due upon installation, if any, are
due immediately prior to commencement o f
installation.
2.3. Estimated Production. If (i) the
System is shut down for more than seven (7)
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 2
full twenty-four (24) hour days cumulatively
during the Term because of your actions; (ii)
you take some action that significantly
reduces the output of the Syste m; (iii) you
don’t trim your bushes or trees to their
appearance when you signed this Agreement
to avoid foliage growth from shading the
System; or (iv) your System is not reporting
production to System Owner (e.g., you have
disconnected the monitoring system or the
Internet connection at your Home goes down
on the reporting day ), then we will
reasonably estimate the amount of power that
would have been delivered to you during
such System or reporting outages or reduced
production periods (“Estimated Production”)
and shall consider Estimated Production as
actual production for purposes of this section
3. In the first year of the Term, Estimated
Production will be based on our production
projections. After the first year of the Term ,
Estimated Production will be based on
historical production for that month in the
prior year. If we bill you for Estimated
Production because your System is not
reporting production, and we subsequently
determine that we have either overestimated
or underestimated the actual production, then
we will adjust the next bill downward (to
refund overbilling) or upward (to make up for
lost billing). You will not be charged for
Estimated Production when the System is not
producing electricity due to our fault, or if it’s
due to grid failure or power outages caused
by someone other than you. WE DO NOT
WARRANT OR GUARANTEE THE
AMOUNT OF ENERGY PRODUCED BY
THE SYSTEM FOR ANY PERIOD OR
THAT YOU WILL REALIZE ANY
SAVINGS AS COMPARED TO THE
COSTS OF PURCHASING EQUIVALENT
POWER FROM YOUR LOCAL UTILITY.
3. ENERGY STORAGE SERVICES
3.1. Energy Storage Services; Gri d
Outages. During the Term, System Owner
will operate and maintain the Battery and
discharge electricity from the Battery to
offset your electricity usage. We will
determine the times and rates of charging and
discharging in our sole discretion. You may
use the Battery to provide backup power to
your home in the event of a grid outage.
3.2. Energy Storage Management. You
acknowledge and agree that we may use the
Battery to support the local grid or provide
certain services, including ancillary services,
capacity, and similar services (“Energy
Storage Services”) and that we may assign
this right to third parties, including your
utility. For the avoidance of doubt, your
consent shall not be required for any actions
undertaken by us over the operation and
maintenance of the Battery, and you shall not
be entitled to any compensation in
connection with these services.
3.3. Metering. You agree to permit us to
conduct temporary shutdowns of the main
electrical service in order to install the
necessary metering to provide the Energy
Storage Services. If such a shutdown is not
permissible, then you agree to work with us
in good faith to provide real -time access to
home l oad data through an existing energy
management system or other means.
4. YOUR OBLIGATIONS
4.1. System, Home and Property
Maintenance.
You agree to:
only purchase electric power for your
home from [CCA Name]: (i) pursuant to the
[CCA Retail Program Name] tariff for
amounts equivalent to the System
Generation; and (ii) pursuant to any
supplemental utility tariff for your onsite
energy requirements in excess of that
satisfied by this foregoing subsection (i);
only have the System repaired pursuant to
the Limited Warranty ( described in Section
5) and reasonably cooperate when repairs are
being made;
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 3
keep trees, bushes and hedges trimmed so
that the System receives as much sunlight as
it did when Tesla installed it;
not modify your Home in a way that shades
the System;
be responsible for any conditions at your
Home that affect the installation ( e.g.,
blocking access to the roof, or removing a
tree that is in the way, prior work you have
done on your Home that was not permitted);
not remove any markings or identification
tags on the System;
as set forth in 4.7, permit System Owner or
its designees, after giving you reasonable
notice, to inspect the System for proper
operation as we reasonably determine
necessary;
use the System primarily for personal,
family or household purposes, but not to heat
a swimming pool;
not do anything, permit or allow to exist
any condition or circumstance that would
cause the System not to operate as intended
at the Property;
notify System Owner (a) if you think the
System is damaged or appears unsafe, (b) if
any part of the System is stolen , and/or (c)
prior to changing your power supplier;
have anyone with an ownership interest in
your Home sign this Agreement;
return any documents we send you for
signature (like incentive claim forms) within
seven (7) days of receiving them; and
maintain and make available, at your cost,
a functioning indoor Internet connection with
one available wired Ethernet port and
standard AC power outlet within eighty (80)
feet of the System’s AC/DC inverter(s).
4.2. System Construction, Repair,
Insurance and System Owner’s
obligations.
We agree to:
schedule the installation of the System at a
mutually convenient date and time;
construct the System according to written
plans you approve or review;
provide you with a web -enabled meter to
accurately measure the amount of power the
System delivers to you;
provide you with a home energ y
evaluation;
notify you if the System design has to be
materially changed so that you can review
any such changes;
clean up after ourselves during the
construction of the System;
insure the System against all damage or
loss unless (A) that damage or loss is caused
by your gross negligence; or (B) yo u
intentionally damage the System (U pon
damage to or destruction of the System, you
will not be entitled to receive or retain any
insurance proceeds. In cases where we bear
the risk of loss, our sole obligation to you will
be to repair or replace the System to the
extent required by the Warranty;
insure our actions, covering damages to
your property caused by faulty installation,
System malfunction or manufacturing
defects;
not be a loss payee (or named insured) on
the insurance policy covering your Home;
and
repair the System solely in accordance
with the Limited Warranty and reasonably
cooperate with you when scheduling repairs.
4.3. Home Renovations or Repairs. If you
want to make any repairs or improvements to
the Property that could interfere with the
System (such as repairing the roof where the
System is located), you may only have the
System removed and replaced pursuant to the
Limited Warranty.
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 4
4.4. Late Charges. In addition to any other
amounts you agree to pay in this Agreement,
you agree to pay the following:
Late Payments: accrue interest at the lesser
of twelve percent (12%) annually or the
maximum allowable percentage by
applicable law.
4.5. Taxes. Your electricity rate as set forth
in this Agreement is composed of an
electricity rate plus current applicable taxes.
You agree to pay any changes in the
applicable taxes related to this Agreement .
Thus, if current tax rates change or new taxes
are imposed, your electricity rate under this
Agreement will change to reflect the changed
and/or new taxes. If this Agreement contains
a purchase option at the end of the Term, you
agree to pay any applicable tax on the
purchase price for the System. You also agree
to pay as invoiced any applicable personal
property taxes on the System.
4.6. 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 Limited Warranty on the System
without System Owner’s prior written
consent. If you make any modifications,
improvements, revisions or additions to the
System, they will become part of the System
and shall be System Owner’s property.
4.7. Access to the System.
4.7.1. You grant to System Owner as
well as its designees (including Tesla) ,
and their employees, agents and
contractors, a non- exclusive license
running with the Property with the right
to reasonably access all of the Property as
necessary for the following purposes:
installing, constructing, operating,
maintaining, owning, repairing,
removing and replacing the System or
making any additions to the System or
installing complementary technologies
on or about the location of the System;
enforcing System Owner’s rights as
to this Agreement and the System;
installing, using and maintaining
electric lines and inverters and meters,
necessary to interconnect the System to
your electric system at the Property
and/or to the utility’s electric distribution
system; and/or
taking a ny other action reasonably
necessary in connection with installing,
constructing, operating, maintaining,
owning, repairing, removing and
replacing the System.
This access right shall continue for up to
ninety (90) days after this PPA expires
(the “License Term”) to provide System
Owner with time to remove the System at
the end of the Agreement . We shall
provide you with reasonable notice of a
need to access the Property when giving
such notice is possible and commercially
reasonable.
4.7.2. During the time that System
Owner has access rights you shall ensure
that its access rights are preserved and
shall not interfere with or permit any
third party to interfere with such rights or
access. You agree that System Owner or
its designee may record a customary
memorandum of license in the land
records respecting the License. You
agree that the System is not a fixture, but
System Owner has the right to file any
UCC-1 financing statement or fixture
filing that confirms its interest in the
System. Neither this A greement nor any
UCC-1 financing statement we may file
in connection with this Agreement
constitutes or imposes a consensual lien
on your Home or Property.
4.8. Indemnity. To the fullest extent
permitted by law, you shall indemnify,
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 5
defend, protect, save and hold harmless the
City in which System was installed , System
Owner, Tesla, each of their respective elected
and appointed officials, employees, officers,
directors, agents, financing partners,
successors and assigns (the “Indemnified
Parties”) from any and all third party claims,
actions, costs, expenses (including
reasonable attorneys’ fees , expert witness
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 your negligence or willful
misconduct; provided, that nothing herein
shall require you to indemnify any
Indemnified Party for its own negligence or
willful misconduct. The provisions of this
paragraph shall survive termination or
expiration of this Agreement.
4.9. Payments. SUBJECT TO SECTION
4.2 ABOVE, YOU AGREE THAT THE
OBLIGATION TO PAY ALL AMOUNTS
DUE UNDER THIS AGREEMENT SHALL
BE ABSOLUTE AND UNCONDITIONAL
UNDER ALL CIRCUMSTANCES AND
NOT BE SUBJECT TO 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
YOU HEREBY WAIVE ALL RIGHTS
YOU MAY HAVE TO REJECT OR
CANCEL THIS AGREEMENT , REVOKE
ACCEPTANCE OF THE SYSTEM, OR TO
GRANT A SECURITY INTEREST IN THE
SYSTEM.
5. WARRANTY
5.1. Limited Manufacturer Warranties.
The solar panels, inverter and Powerwall each
come with a warranty from their manufacturers
(each, a “Limited Warranty”) . The solar panel
warranty will be at least 25 years and will
guarantee at least 80% of nameplate capacity for
at least 25 years. The inverter warranty will cover
defects for at least 10 years. The Powerwall(s),
are covered by the Tesla Powerwall Limited
Warranty. You agree that, as the System Owner,
we have the right make warranty claims for the
solar panels or inverter or Powerwalls.
5.2. Warranty Disclaimer
YOU UNDERSTAND THAT THE SYSTEM IS
WARRANTED SOLELY UNDER THE
LIMITED MANUFACTURER WARRANTIES,
AND THAT NEITHER TESLA NOR SYSTEM
OWNER MAKES ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED,
AS TO THE MERCHANTABILITY, FITNESS
FOR ANY PARTICULAR PURPOSE,
CONDITION, DESIGN, CAPACITY,
SUITABILITY OR PERFORMANCE OF THE
SYSTEM OR ITS INSTALLATION.
6. TRANSFER
You agree that System Owner may assign, sell or
transfer the System and this Agreement , or any
part of this Agreement or the exhibits, without
your consent. Such an assignment will not change
our obligation to maintain and repair your System
as set forth in the Warranty . An assignment of
System Owner’s rights and/or obligations under
this Agreement shall not result in any change to
your rights and /or obligations under this
Agreement.
7. OWNERSHIP OF THE SYSTEM; TAX
CREDITS AND/OR REBATES
You agree that the System is the System Owner’s
personal property under the Uniform Commercial
Code. You understand and agree that this
Agreement is not a contract to sell or lease the
System to you. System Owner owns 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, levies
and legal processes not created by us, and shall at
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 6
your expense protect and defend us against the
same.
You understand and agree that any and all tax
credits, incentives, renewable energy credits,
green tags, carbon offset credits, utility rebates or
any other non-power attributes of the system are
the property of and for the benefit of the System
Owner or its designee, usable at its sole
discretion. System Owner shall have the
exclusive right to enjoy and use all such benefits,
whether such benefits exist now or in the future.
You agree to refrain from entering into any
agreement with your utility that would entitle
your utility to claim any such benefits. You agree
to reaso nably cooperate with System Owner so
that it may claim any 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 these tax
credits, renewable energy/carbon credits, rebates
or other benefits to System Owner.
8. PURCHASING SYSTEM PRIOR TO
END OF TERM
In addition to having the option to purchase the
System at the end of the Term, you have the
option to purchase the System prior to the end of
the Term as detailed below. To exercise this
option, you must be in good standing under this
Agreement, and you need to give us at least one
(1) month, but not more than three (3) months
prior written notice . You can purchase this
System:
on the five (5) year anniversary of
the beginning of the Term and every annual
anniversary after the five (5) year
anniversary; and
at any time after the five (5) year
anniversary of the beginning of the Term,
when you sell your Home; and
if we ever cease our operations and
fail to provide for a substitute System
provider.
The price you will pay for the System under this
section will be the higher of (a) the System’s fair
market value (“FMV”) and (b) the Income Loss
(as defined below). If you and the System Owner
cannot agree upon FMV, a third-party
independent appraiser will be retained to compute
the System’s FMV . Our maintenance and repair
obligations in accordance with the Limited
Warranty set forth in Section 5 will end when and
if you purchase the System pursuant to this
section.
9. RENEWAL
If you are in compliance with this Agreement,
you have the option to renew this Agreement for
an additional five (5) year renewal period . We
will send you a renewal form three (3) months
prior to the expiration of the Term, which form
shall set forth the new Monthly Payments due
under the renewal Agreement, based on our
assessment of the then current fair market value
of the System. If you want to renew, complete the
renewal form and return it to us at least one (1)
month prior to the end of the Agreement . In the
event that you notify us that you do not agree to
the new Monthly Payments this Agreement shall
expire by its terms on the termination date. If you
don’t send us anything in writing after we send
you the renewal form, then this Agreement shall
automatically renew for an additional five (5)
year term (the “Renewal Term”) with (i) an
energy rate set at ten percent (10%) less than the
then-current average rate charged by your utility
for residential customers and (ii) a monthly
Powerwall fee set at the same fixed monthly fee
for the e nergy storage services as that which
applied to the Initial Term. Fo llowing renewal,
the Agreement shall terminate at the end of the
Renewal Term.
10. SELLING YOUR HOME
If you sell your Home, you can:
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 7
Transfer the Agreement and the
Monthly Payments. If the person buying
your Home agrees to abide by the terms
and conditions for participating in the
[CCA Retail Program Name ], then the
person buying your Home can sign a
transfer agreement assuming all of your
rights and obligations under this
Agreement.
Purchase the System (Section 8).
You agree to give us at least fifteen (15) days but
not more than three (3) months prior written
notice if you want someone to assume your
Agreement obligations. In connection with such
assumption, you, your approved buyer and we
shall execute a written transfer of this Agreement.
If you sell your Home and cannot comply with
any of the options above, you will be in default
under this Agreement. This Section 10 includes a
Home sale by your estate or heirs.
This Agreement is free of any restrictions that
would prevent the homeowner from freely
transferring the Home . In the event of a
foreclosure of the Home, your lender has the right
(but not the obligation) to do ONE of the
following:
terminate this Agreement and
require the System Owner to remove the
System subject to your obligations under
Sections 13 and 14;
become a beneficiary (but not
obligor) of your Agreement free of
charge ( i.e., receive power from the
System and enforce the Limited
Warranty but not have the obligation to
make payment, which obligation will
remain with you – if you don’t make
timely payment, you will be in default
under Section 13 and we can terminate,
remove the System and take all other
remedies we have under Section 14;
enter into a new power purchase
agreement with us on terms no less
favorable than this Agreement; or
require transfer of this Agreement
under this Section 10 to a subsequent
purchaser of the Home.
We will not prohibit the sale, conveyance or
refinancing of the Home. The System Owner may
choose to file in the real estate records a UCC -1
financing statement (“Fixture Filing”) that
preserves its rights in the System. The Fixture
Filing is intended only to give notice of its rights
relating to the System and is not a lien or
encumbrance against the Home. The System
Owner shall explain the Fixture Filing to any
subsequent purchasers of the Home and any
related lenders as requested. The System Owner
shall also accommodate reasonable requests from
lenders or title companies to facilitate a purchase,
financing or refinancing of the Home.
EXCEPT AS SET FORTH IN THIS SECTION
10, YOU WILL NOT ASSIGN, SELL, PLEDGE
OR IN ANY OTHER WAY TRANSFER YOUR
INTEREST IN THIS AGREEMENT WITHOUT
OUR PRIOR WRITTEN CONSENT, WHICH
SHALL NOT BE UNREASONABLY
WITHHELD.
11. LOSS OR DAMAGE
Unless you are grossly negligent or you
intentionally damage the System, the System
Owner will bear all of the risk of loss, damage,
theft, destruction or similar occurrence to any or
all of the System. Except as expressly provided in
this Agreement, no loss, damage, theft or
destruction will excuse you from your obligations
under this Agreemen t, including Monthly
Payments.
If there is loss, damage, theft, destruction or a
similar occurrence affecting the System, and you
are not in default of this Agreement, you shall
continue to timely make all Monthly Payments
and pay all other amounts due under the
Agreement and, cooperate with us , at our sole
cost and expense, to have the System repaired
pursuant to the Limited Warranty.
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 8
12. LIMITATION OF LIABILITY
12.1. No Consequential Damages .
LIABILITY UNDER THIS AGREEMENT
SHALL BE LIMITED TO DIRECT,
ACTUAL DAMAGES ONLY. YOU
AGREE THAT IN NO EVENT SHALL
TESLA OR EITHER PARTY BE LIABLE
TO ANY OTHER PARTY FOR
CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY, SPECIAL OR
INDIRECT DAMAGES EXCEPT AS
EXPRESSLY SET FORTH IN THIS
AGREEMENT.
12.2. Actual Damages . EXCEPT FOR
CLAIMS UNDER SECTION 4.8
(INDEMNITY), NO PARTY’S LIABILITY
TO ANY OTHER WILL EXCEED AN
AMOUNT EQUAL TO THE MAXIMUM
AMOUNT THAT COULD BE PAYABLE
BY YOU UNDER SECTION 1 4.
DAMAGES TO YOUR HOME ,
BELONGINGS OR PROPER TY
RESULTING FROM THE
INSTALLATION OR OPERATION OF
THE SYSTEM ARE COVER ED IN THE
LIMITED WARRANTY SET FORTH IN
SECTION 5.
13. DEFAULT
You will be in default under this Agreement if
any of the following occur:
you fail to make any payment when it is
due and such failure continues for a period of
ten (10) days;
you fail to perform any material obligation
that you have undertaken in this Agreement
(which includes doing something you have
agreed not to do, like alter the S ystem) and
such failure continues for a period of fourteen
(14) days after written notice;
you or your guarantor have provided any
false or misleading financial or other
information to obtain this Agreement;
you assign, transfer, encumber, sublet or
sell this Agreement or any part of the System
without our prior written consent; or
you or any guarantor makes an assignment
for the benefit of creditors, admits in writing
its insolvency, files or there is filed against
you or it a voluntary petition in bankruptcy,
is adjudicated bankrupt or insolvent or
undertakes or experiences any substantially
similar activity.
14. REMEDIES IN CASE OF DEFAULT
If you default under the terms of this Agreement,
we may take any one or more of the following
actions. If this Agreement or the law requires us
to do so, we will give you notice and wait any
period of time required before taking any of these
actions.
We may:
terminate this Agreement;
take any reasonable action to correct your
default or to prevent our loss , including by
directing your utility to file a lien against your
real property (your home) ; any amount we
pay will be added to the amount you owe us
and will be immediately due;
require you, at your expense, to return the
System or make it available to us in a
reasonable manner;
proceed, by appropriate court action, to
enforce performance of this Agreement and
to recover damages for your breach;
disconnect, turn off or take back the
System by legal process or self-help, subject
to applicable law.
report such non- operational status of the
System to your utility, informing them that
you are no longer net metering;
charge you a reasonable reconnection fee
for reconnecting the System to your utility or
turning your System back on after we
disconnect or turn off the System due to your
default;
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 9
recover from you a payment equal to the (i)
any and all direct damages incurred by
System Owner as a result of your default ,
plus (ii) any loss of income under any
agreement between Owner and Program
Fund with resulting for the remaining Term,
discounted to net present value at a discount
rate of 3% (“Income Loss”), plus (iii)
reasonable compensation, on a net after tax
basis assuming a tax rate of 35%, for the
loss or recapture of (A) the investment tax
credit equal to the percentage amount under
then applicable tax laws of the System cost,
including installation; and (B) accelerated
depreciation over five (5) years in a
percentage amount allowed under then
applicable tax laws of the System cost,
including installation, plus (iv) all taxes, late
charges, penalties, interest and all or any
other sums then accrued or due and owing; or
use any other remedy available to us in this
Agreement or by law.
We may submit to credit reporting agencies
(credit bureaus) negative credit reports that would
be reflected on your credit record if you do not
pay any amounts due under this Agreement as
required.
You agree to repay us for any reasonable amounts
we pay to correct or cover your default. You also
agree to reimburse us for any costs and expenses
we incur relating to the System’s return resulting
from early termination. By choosing any one or
more of these remedies, We do not give up any
right to use another remedy. By deciding not to
use any remedy should this Agreement be in
default, we do not give up our right to use that
remedy in case of a subsequent default.
15. SYSTEM REMOVAL; RETURN
At the end of the Term or the termination of this
Agreement, if this Agreement has not been
renewed or if you have not exercised your
purchase option (if any) and you have not
defaulted, then within ninety (90) days you agree
to call us at the telephone number listed in the
accompanying Disclosure Statement to schedule
a convenient time for us to remove the System
from your Home at no cost to you.
16. APPLICABLE LAW
This Agreement is made and entered into in the
State of California, and shall in all respects be
interpreted, enforced and governed under the
laws of said State. The parties agree that the
exclusive jurisdiction for any lawsuit related to or
arising under this Agreement shall be in the
Superior Court of California, County of Los
Angeles, or the United States District Court for
the Central District of California. Each party
waives any objection to jurisdiction and venue for
any such lawsuit.
17. 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.
18. NOTICES
All notices under this Agreement shall be in
writing and shall be delivered by personal
delivery, facsimile transmission, electronic mail,
overnight courier, or certified or registered mail,
return receipt requested.
19. ENTIRE AGREEMENT; CHANGES
This Agreement contains the parties’ entire
agreement regarding the sale and purchase of
power 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 signed by both
parties. If any portion of this Agreement is
determined 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.
20. PUBLICITY
Solar Power Purchase & Energy Storage Services Agreement 11/2022
Page | 10
You give us permission to take pictures of the
System as installed on your Home to show to
other customers, include in informational
materials, include in promotional material s,
and/or display on our website(s).
I have read this Agreement , including the
Exhibits, in its entirety and agree to be bound by
its terms. I also acknowledge that I have received
a complete copy of this Agreement.
Owner’s Name: [Insert]
Signature: __________________________
Date: __________________________
Co-Owner’s Name (if any): [Insert]
Signature: __________________________
Date: __________________________
[PARTICIPATE ENERGY FUND I, LLC], a
California limited liability company
Signature: __________________________
Date: __________________________
Attachment B
Form of New Homes Builder Framework Agreement
[In
sert]
Ver.10-22 1
New Homes Builder Framework Agreement
This New Homes Builder Framework Agreement (“Agreement”) is between Participate Energy, LLC (“Program Fund” or “We” or “Us ”) and __________________ (“You ” or “Home Builder ”) and sets forth the terms for participating in the Distributed Microgrid Program for New Homes (the “Program”) offering You the ability to place orders for supply and installation of solar panels and Powerwalls and other products as may be added from time to time (“Tesla Products”), which orders (“Orders”) will be fulfilled and installed by the Program’s authorized subcontractor, Tesla, Inc. (“Tesla”), in accordance with the terms as set forth herein.
1. Term. Unless we agree otherwise, the term of this Agreement starts on the day it is signed and ends on the third anniversary of that date. This Agreement will continue for additional, successive 1-year periods even after the initial term ends unless either party notifies the other at least 90 days before the expiration of the then-current term that this Agreement is terminated for all purposes. That termination will be effective when the then-current term expires.
2. Community Specific Terms. If You want to order Tesla Pro ducts, You must tell Us about each subdivision of new homes for which You want to order Tesla Products (“Community”) by completing Exhibit 1 and submitting it to Us at https://forms.office.com/r/WXauLgVd34. We will review Your submittal and confirm by email whether all of the Tesla Products can be installed in the Community . We may make reasonable adjustments to You r submittal in order to ensure that Tesla Products can be installed successfully in the Community and to establish pricing and quantities for those products (“Community-Specific Terms”). You agree to reasonably cooperate with Us in connection with the development of the Community-Specific Terms, including by providing Us with access to the Community. Even though the Community-Specific Terms are a separate document, they are considered part of each order You submit for the affected Community.
3. Order s.
a. Once We send You the email confirmation with the Community-Specific Terms, You may submit Orders based on this Agreement and the Community -Specific Terms. You may submit Orders for Tesla Products via the Energy Order Tool at the internet location (website) that We will provide to You. The Tesla Products You order shall be delivered and installed in accordance with Your Order. You must submit each Order at least 21 days before the installation date proposed in that Order. Your submittal of Orders in that manner means that You have agreed to the quantities and types of Tesla Products as stated in the Order (“Your Tesla Products”).
We will review Your Order to ensure that it tracks the Community Specific Terms . If We reasonably believe that the Order doesn’t track the Community -Specific Terms, We will notify You and the parties will then reasonably cooperate to resolve the issue.
b. For Your Order to be accepted by Us (each order accepted by Us, an “Accepted Order”) You must:
i. submit an Order for Tesla Products as set forth above and approved for each applicable Community; ii. agree to installation of the Tesla Products on the home corresponding to each affected Order and to host the System and, until close of escrow on the sale of the home, to purchase all of the energy from the System pursuant to an agreement with the Program Fund as System owner (each, a “Customer Agreement”);
iii. deliver a “solar ready” home that includes internal conduit installation, sufficient capacity on the electric service panel, roof dry in and order details developed in consultation with prospective home buyers sufficient for Us to install Your Tesla Products and for the home to pass inspection by the applicable building department as the authority having jurisdiction (“AHJ”). Passed inspection shall also be deemed “Acceptance” in this Agreement;
iv. assign each Customer Agreement to the applicable buyer of the home (each, a “Home Owner”) upon close of escrow on the home and assumption of the Customer Agreement by the Home Owner; and v. comply with this Agreement and Program requirements set forth by Program Fund and as may be updated from time to time.
4. Title. Title to the Tesla Products shall transfer to the Program Fund upon Acceptance in accordance with the terms and conditions of each Customer Agreement.
5. Scope of Work.
a. We will, ourselves or through our authorized subcontractors, including Tesla, oversee the design and installation of Your Tesla Products at the location listed in the Order (the “Site”), and then test it to make sure it's working properly (the “ Work”) in accordance with the Tesla Work Standards attached as Exhibit 2. We will pay all installation costs, including any governmental fees for the Work. b. The Work does not include, and You will provide, internal conduit installation, roof dry in and any consultation with the person that buys each applicable home in a Community (“Home Owner”). c. You further agree to:
i. give Us and our subcontractors access to the Community so We can install Your Tesla Products, ii. reasonably cooperate with Us as We or our authorized subcontractors, including Tesla, design, install and test Your Tesla Products,
iii. install in homes covered by Your order internal conduit in accordance with Tesla’s Product Suite Pre Ver.10-22 2
Wire Guidance to be provided to You by Us after preparation of the Community-Specific Terms, and iv. make sure that each Home Owner is provided with a Welcome Guide at close of escrow of their home and knows that it must contact Tesla to activate the relevant Tesla Products.
6. Subcontractors . If We intend to engage subcontractors other than Tesla to perform work related to Tesla Product installation, We will identify such subcontractors to You for Your approval, not to be unreasonably withheld or conditioned, before such subcontractor begins work within a Community. If You fail to reject a subcontractor by notice to Us delivered within five (5) business days after our identification of same pursuant to this Section 6, such subcontractor will be deemed approved by You.
7. Failure to Perform.
a. W
e agree to notify one another in writing if either of us is not satisfying its obligations under this Agreement or with respect to an Order. Whoever is notified of not meeting its obligations will have 30 days after receiving that notice to correct the issue. If not, whoever gave the notice can terminate this Agreement or the affected Order subject to the operation of the dispute resolution terms in Section 15(c). b. I
n addition, if We notify You that You have failed to fulfill the conditions for an Order, We can suspend our work on that Order.
c. If Yo
u terminate an Order for Our failure to perform before installation of Your Tesla Products for that Order has commenced, we will stop work and cancel any Order for those products. d. If ei
ther party terminates an Order for the other party’s failure to perform, except as specified in the next sentence We may take back all components of Your Tesla Products we delivered to You that have not yet been installed for that Order and shall not have any further obligation to deliver product to You pursuant to this Agreement or that Order. In addition, if an Order is terminated by You pursuant to this Section, We will complete the installation of Your Tesla Products where installation is partially complete, unless otherwise requested by You (in which case, We will deinstall and remove Your Tesla Products from the affected home and return the jobsite to its original condition, at no cost to You). Each of us will also be able to pursue all rights and remedies available at law or in equity with respect to the failure to perform, except as otherwise provided in Section 8, below. Breaches of one or more Orders will not constitute breaches under any other Order s or under this Agreement, and breaches of this Agreement independent of any Orders shall not constitute breaches of any Orders.
8. Work Standards; Warranties.
a. We agree to require that our authorized subcontractor, Tesla, will perform the Work in accordance with the Tesla Work Standards as set forth in Exhibit 2.
b. Tesla will provide limited warranties for Tesla Products in the forms attached as Exhibit 3, as applicable, which may be amended from time to time. Warranties for Tesla Products in place at the time of the Accepted Order shall apply to the Accepted Order.
c. In addition, Tesla will provide to each Home Owner the workmanship warranty attached as Exhibit 4, assuming You assign that warranty to the Home Owner.
9. Confidentiality ; Publicity. Home Builder agrees to execute the non-disclosure agreement in the form attached hereto as Exhibit 5. To the extent permitted by law, each party will keep the terms of this Agreement confidential in accordance with the non-disclosure agreement (the “ NDA”) and agree that this Agreement is confidential information for purposes of the NDA. (Even though the NDA is a separate document, it is considered part of this Agreement). Neither party will advertise or issue any public announcement about this Agreement, or use the other party’s mark, name or logo in any marketing literature, web sites, articles, press releases (including interviews with representatives of media organizations of any form), or any other document or electronic communication, without the other party ’s written consent. You also cannot add any branding to Your Tesla Products.
10. Relationship to Home Owners. Participating Home Owners who will benefit from the Tesla Products will receive rights and warranties as set forth in the Solar Power Purchase & Energy Storage Services Agreement, which to the extent applicable will include a pass-through of the Tesla workmanship warranty to any successor s (including Home Owners) during the applicable warranty period for no cost to You or a successor (including each Home Owner), and We will require Tesla to provide copies of the manuals and equipment warranties to the successor (including each Home Owner).
11. Intellectual Property. Each party (or Tesla, as the case may be) will remain the exclusive owner of any and all patents, trademarks, copyrights, trade secrets and any other intellectual or proprietary rights associated with its respective products and services and any parts or derivations thereof.
12. Home Builder Indemnity . You will defend, indemnify and hold harmless Us , any person providing financing for Us with respect to any System, any affiliate of such person providing financing, and any elected or appointed official, director, officer, partner, member, manager, agent or employee of Program Fund and each Community’s respective community choice aggregator (collectively, the “ Indemnified Parties ”) from any l osses arising from any claim, action, suit, proceeding, investigation made or brought by any third party (“Claims”) to the extent caused by (i) injury or death of persons, or damage to or loss of property, (ii) any breach of this Agreement or applicable law by You or those for whom You are legally responsible, (iii) alleging infringement to the extent involving a particular design, process or product required or specified by Ver.10-22 3
You or where the copyright violations are contained in drawings, specifications or other documents prepared or provided by You or others for whom You are responsible, (iv) any modification by You (directly or indirectly), use or reuse of Your Tesla Products other than as permitted under this Agreement or their warranties, (v) u se of Your Tesla Products in combination with any other products, materials or equipment not expressly authorized in writing by Tesla where the infringement would have been avoided by the use of Your Tesla Products not so combined, unless such other products, materials or equipment are provided, required or approved by Tesla (as indicated by reasonable evidence) for, or are intrinsic to, use of Your Tesla Products, or (vi) any modifications or changes made to Your Tesla Products by You other than at the direction (as indicated by reasonable evidence) of Tesla in circumstances where the infringement would have been avoided without such modifications or changes.
13. Limitation of Liability . Neither party will have to pay the other for any indirect damages (what lawyers call “special or consequential damages”). Also, except for a breach of confidentiality ( Section 9), indemnification obligations (Section 12) or any gross negligence or willful misconduct, each party’s total liability for all damages of any kind arising out of each Order will not exceed the retail price of Your Tesla Products installed in that home.
14. Discontinuation. You understand and agree that We can choose at any time to discontinue a product, feature or option related to Your Tesla Products and that, if we do so, we can provide a comparable product, feature or option, or terminate the affected Order before installation of Your Tesla Products.
15. Compliance with Law; Governing Law; Arbitration.
a. We both agree to comply with all applicable laws and regulations in connection with this Agreement . This Agreement is governed by the laws of the State of California. Any dispute arising out of or relating to this Agreement shall be brought in the Superior Court of California, County of Los Angeles, or the United States District Court for the Central District of California, except any dispute relating to any Orders shall be brought pursuant to arbitration as set forth in Section 15(c).
b. Neither of us is bound by any terms relating to Your Tesla Products or other matters covered by this Agreement or any Order that are not contained in this Agreement or the affected Order. c. We both also agree to promptly notify the other’s senior level management if there is a ny dispute relating to this Agreement or any Orders and to try to resolve the dispute in good faith. If we are unable to resolve a dispute relating to an Order within 20 days after that notice is given, then either of us can take the dispute relating to such Order to arbitration through Judicial Arbitration and Mediation Services (“JAMS”) according to JAMS Streamlined Arbitration Rules. The existence, content and result of the arbitration will be confidential. The arbitration will be conducted by a single arbitrator in English and in Los Angeles, California, unless otherwise agreed by Us. We will each bear our own expenses in the arbitration and will share equally the costs of the arbitration unless the arbitrator assigns costs to one of us . Judgment upon the award rendered in the arbitration may be entered in any court of competent jurisdiction.
16. Notices. All notices under this Agreement and each Order must be in writing and must be sent via email, or express and/or certified mail, to the contacts identified in the applicable Community-Specific Terms.
17. Relationship of Parties; Assignment. This Agreement (including any orders) does not create a joint venture, partnership or agency relationship between us. Each of us can assign this Agreement and each order as collateral in connection with our financing activities and You may assign the workmanship warranty in Exhibit 4 to the Home Owner.
18. Authority . By signing this Agreement and submitting each order, each party is representing to the other that it has the authority to be bound by this Agreement , and that each party may rely on those representations. In addition, You are representing that You have the authority to be bound by each Order and to bind the person or company identified in the Order as being the buyer and You agree that Tesla may rely on that representation.
19. Insurance. With respect to each Order and through Acceptance under that Order, Home Builder shall maintain, and Program Fund shall require that its approved subcontractor, Tesla, shall maintain, the insurance set forth in Exhibit 6.
20. Third-Party Beneficiaries. The entities listed in the Community Specific Terms (if any) as express third-party beneficiaries of this Agreement shall be third party beneficiaries of this Agreement with respect to matters involving Tesla Product installations within the affected Community.
21. Survival. Sections that by their nature should survive shall survive any expiration or earlier termination of this Agreement and each Order, including Sections 8 –13, 15 –16, and 19 – this Section 21. [ Signature Page Follows ]
Ver.10-22 4
EXECUTED by the parties on __________, 2023.
[Home Builder] Participate Energy, LLC
_____________________________________________
(SIGNATURE)
_____________________________________________
(SIGNATURE)
_____________________________________________
(PRINT NAME)
_____________________________________________
(PRINT NAME)
_____________________________________________
(PRINT TITLE)
_____________________________________________
(PRINT TITLE)
Ver.10-22 5
Exhibit 1
Community Specific Terms
The following terms supplement and amend the Distributed Migrogrid Program and New Home Builder Framework Agreement and are intended to apply to each order for the Community, as applicable.
Home Builder Community
Details
Tesla Product Suite
Building Code Year
Notices Email:
Mailing:
Approved Subcontractors
Third-Party Beneficiaries
Energy System Sizes
Solar Panels (kW)
Powerwall Minimum QTY per Order
Pricing
Solar Panels ($/W)
First Powerwall per Order
Each Additional Powerwall per Order
Builder Signature:
Name:
Company:
Effective Date:
Ver.10-22 6
Exhibit 2
Tesla Work Standards
These Tesla Work Standards supplement the terms of the New Homes Builder Framework Agreement (the “ Agreement”) between the Program Fund and Home Builder for each Community participating in the New Homes Solar Program offered by your respective community choice aggregator and the Program Fund through its authorized subcontractor, Tesla.
1. Tesla Scope of Work.
a. In accordance with Tesla’s standard practices and each affected Order, Tesla or its subcontractors shall design and install Your Tesla Products at the Site and complete the Work. b. Tesla will be responsible for all of its employment -related payments, contributions and obligations owed to its employees and personnel as related to the Work and for all work performed by, and all acts or omissions, of each subcontractor and will ensure that all subcontractors are licensed as required by applicable law. You will not be deemed to have any contractual obligation to any subcontractor. a. Tesla will allow You and Your subcontractors to view and review the installation process. b. Tesla will also comply with all of Your reasonable Site safety rules and allow You and Your selected roofing and other subcontractors to reasonably observe the installation process for Your Tesla Products.
2. Feedback; Acceptance.
c. Tesla encourages the submission of ideas and feedback for improvements and modifications to its performance relative to this Agreement and each Order, including with respect to Your Tesla Products and their design and integration into the homes (“Feedback”).
d. You agree to grant to Tesla a royalty-free, worldwide, perpetual license to use and incorp orate into its products any Feedback provided to the other party on an as- is basis, with no representations, warranties or indemnities , which license will survive any termination of this Agreement. e. Tesla will notify You when each installation of Your Tesla Products has been completed. You will then be obligated to schedule an inspection of Your Tesla Products with the AHJ. An installation of Your Tesla Products will be considered complete only upon Passed inspection , which shall be deemed “ Acceptance” of each Order. If an installation fails an inspection by the AHJ, each Party will use commercially reasonable efforts to address the deficiency and to properly install or repair Your Tesla Products promptly after such failure or rejection such that it can and seek and pass re-inspection by the AHJ.
3. Tesla Work Standard Warranties.
a. Starting on the date of installation and for a period of one (1) year after the initial close of escrow of the applicable home, Tesla warrants to You that all materials, equipment and work furnished by Tesla as part of an Order will be:
i. of good quality, free from fault and defects, and
ii. performed in a good and workmanlike manner, in accordance with all applicable laws, building codes and ordinances, and in strict conformity with the Order.
If You notify Tesla within 1 year after the initial close of escrow of the applicable home by a Home Owner, Tesla shall, at its sole expense, immediately correct or replace any Work that is defective or determined to be not in accordance with the requirements of the above warranties. b. Tesla’s warranties in this Agreement are limited, as they do not cover (i) any defect or damage to the extent caused (A) by events that are (1) beyond Tesla’s reasonable control, (2) not reasonably foreseeable, and (3) not caused by Tesla’s negligence, or (B) by Your misuse or negligence, and (ii) any material or equipment connected to Your Tesla Products that Tesla did not install. Tesla is not providing any warranties in connection with this Agreement other than those in this Agreement or in the product warranties provided by Tesla pursuant to Section 8(c), even if those other warranties are express or implied by any law. c. Tesla's warranties consistent with these terms under this Agreement shall in all cases survive termination of this Agreement and transfer of title in the home to a third-party purchaser, except for a Home Owner (whose warranties are set forth in Exhibits 3 and 4).
d. With respect to any warranty claim by You under this Section 3 for the correction, replacement and warranty work, the remedies set forth in this Section 3 and in Section 7 (d) of the Agreement, as applicable, are Your sole and exclusive remedies. For clarity, the foregoing shall not limit Your ability to bring claims for other purposes not related to the correction, replacement and warranty work as set forth in this Section 3. e. The manuals and equipment warranties for Your Tesla Products are available upon request and will be sent to after You place each Order.
Ver.10-22 7
Exhibit 3
Product Warranties
P
lease Contact Tesla
Ver.10-22 8
Exhibit 4
Tesla Home Owner Workmanship Warranty
W
e might choose to make minor repairs commonly needed to install the products at no additional cost to You (like simple electric upgrades and roof preparation). We promise to repair or pay for damage we directly caused to You r home or You r property during installation of Your Tesla products. If we fail to do that, please let us know, and we will make the repair (or have someone repair it) at our cost (and that will be You r only remedy). But You need to let us know in writing and within a certain amount of time following the damage: within 4 years for Powerwall installations and within 1 year for anything else.
I
f there is a dispute, the maximum amount that either of us will have to pay the other is an amount equal to the retail price of the Tesla Product involved, except that Our liability for damage to a home to the extent caused by defective Tesla Products and/or Tesla workmanship will be limited to the amount the initial Home Owner paid for the home. Also, neither of us will have to pay the other for any indirect damages (what lawyers call “special or consequential damages”).
Ver.10-22 9
Exhibit 5
Form of Tesla / Builder Non-Disclosure Agreement
[ insert ]
Ver.10-22 10
Exhibit 6
Insurance Coverage Requirements
1. General Obligations. Home Builder and Tesla shall be required to maintain in effect the insurance coverages referenced herein either: (a) with responsible insurance carriers with a Best Insurance Reports rating of “A-“ or better; or (b) through a formal self-insurance mechanism that has either (i) a Best Insurance Reports rating of “A-“ or better, or (ii) a financial size category of “VI” or higher, provided, that if such self-insurance program does not meet either (i) or (ii), then the party’s use of self-insurance for the coverages herein shall be subject to the other party’s approval, not to be unreasonably withheld, conditioned, or delayed.
1. 1. Commercial General Liability Insurance.
1.1.1. Limits.
1.1.1.1. $5,000,000 each occurrence or per claim, combined single limit for third party bodily injury or property damage.
1.1.1.2. $5,000,000 general aggregate.
1.1.1.3. $5,000,000 products/completed operations aggregate.
1.1.2. Coverages.
1.1.2.1. The total required limits for liability coverage required herein may be met by combination of Primary and Umbrella or Excess Liability policies.
1.1.2.2. Include the other party as additional insured.
1. 2. Business Automobile Liability or Similar Insurance.
1.2.1. Limits.
1.2.1.1. $1,000,000 combined single limit for third party bodily injury or property damage.
1.2.2. Coverages.
1.2.2.1. Coverage with respect to any and all vehicles of Tesla or Home Builder whether owned, hired, leased, borrowed, or non-owned, assigned to or used in connection with the Work performed under this Agreement.
1.2.2.2. Include the other party as additional insured.
1. 3. Workers Compensation and Employers Liability Insurance.
1.3.1. Limits.
1.3.1.1. Workers Compensation – as required by state or federal laws. Each party may waive Workers’ Compensation Insurance requirement if they are a qualified self -insured in the state in which the Work is performed.
1.3.1.2. Employers Liability.
1.3.1.2.1. $1,000,000 bodily injury for each accident.
1.3.1.2.2. $1,000,000 bodily injury by disease for each employee.
1.3.1.2.3. $1,000,000 bodily injury by disease policy limit.
2. O
ther Requirements
2.1 All policies shall include a waiver of subrogation, where permitted by law. This release and waiver shall be null and void if such loss or damage may have been caused by the sole or gross negligence of the other party. If one party's insurance carrier prohibits waiver of subrogation, then each party's release and waiver shall become null and void as each waiver is given in consideration for the other.
2.2 Each party shall give the other party prior written notice in the event of cancellation, termination or for non-payment of premium of any policy required to be obtained under Attachment.
2.3 Prior to commencing any work, and upon each renewal of insurance during the term of the Agreement, Tesla and Home Builder shall provide certificates of insurance evidencing the required insurance as required by this Agreement. All certificates shall be executed by a duly authorized representative.
3. S
ubcontractor Requirements. The Program Fund shall require Tesla and each of its subcontractors performing Work at the Site to maintain insurance coverage in accordance with the insurance requirements of Tesla’s standard subcontract, supplier or designer agreements, as applicable.
Attachment C
Form of Customer Order – Program Terms
[In
sert]
SOLAR ENERGY SYSTEM DISCLOSURE DOCUMENT
This disclosure shall be printed on the front page or cover page of every solar energy contract for the installation of a solar energy system on a residential building.
The TOTAL COST for the solar energy system (including financing and energy / power cost if applicable) is: $0.00
To m
ake a complaint against a contractor who installs this system and/or the home improvement salesperson who sold this system, contact the Contractors State License Board (CSLB) through their website at www.cslb.ca.gov (search:
“complaint form”), by telephone at 800-321-CSLB (2752), or by writing to P.O.
Box 26000, Sacramento, CA 95826.
If the attached contract was not negotiated at the contractor's place of business, you have a Five-Day Right to Cancel the contract, pursuant to Business and Professions Code (BPC) section 7159, as noted below. For further details on canceling the contract, see the Notice of Cancellation, which must be included in your contract.
F
ive-Day Right to Cancel
You, the buyer, have the right to cancel this contract within five business days. You may cancel by e -mailing, mailing, faxing, or delivering a written notice to the contractor at the contractor's place of business by midnight of the fifth business day after you received a signed and dated copy of the contract that includes this notice. Include your name, your address, and the date you received the signed copy of the contract and this notice.
This document was developed through coordination of the California Contractors State License Board and the California Public Utilities Commission pursuant to Business and Professions Code section 7169. [CCA Retail Program Name] Program Terms
Thanks for your agreement to participate in the [CCA Retail Program Name] Program (the “Program”)! Now that we have completed your order for your Solar System, including any Tesla Powerwall(s) (all of which we call your “System” below), the next step is to prepare for and schedule installation of your System. In the meantime, below are some basic terms we need you to agree to in order to make sure we are on the same page (and along with this document are some required disclosures for you to review as well). We look forward to working with you and are excited that you are joining our effort to transition the world to sustainable energy!
1. Your Program Participation. You agree to participate in the Program on the terms set forth herein, including to enter into a power purchase agreement ( “PPA”) with [CCA Name ] and to enroll in the applicable [ CCA Retail Program Name] Program (“Participation”). Participation means You agree to allow Tesla to install the System on y
our home, to provide site access for regular operation and maintenance of the System and to purchase an equivalent amount of power generated by the System during the term of your PPA. You have 7 days after you agree t
o these terms to revoke your Participation. If you don’t do so, or if you move forward with scheduling your installation, that means you are agreeing to these Program Terms.
2. Updates to Participation Sheet. Even though we have completed an initial design of the System, we might need to make changes to that design, which also means we might need to update the System size, the estimated System production or the PPA rate based on a variety of factors, such as installation complexity or product availability. We c
an make minor adjustments to the size of the System provided that it does not impact projected system production by more than 20%. Your PPA rate may increase in accordance with the Program terms depending upon the scope of any required pre- installation work required to accommodate your System. If a change is expected to impact System production by more than 20% or your PPA rate, we will update the terms of your Participation. You have 7 days after you receive the updated terms to reject them . If you don’t reject them, or if you move forward with scheduling your installation, that means you are agreeing to the updated Participation terms and authorize us to develop and submit permit packets and otherwise prepare for your upcoming installation. The updated Participation terms replaces any prior terms we have agreed upon.
3. Cancellation. At any point prior to the time when we schedule your installation, either of us can cancel your order and Participation for any reason provided that we let the other know in writing (so there is no misunderstanding).
4. Permission to Operate. Tesla’s work includes ensuring that the System obtains “Permission to Operate” (or “PTO”) from your utility, provided that PTO is required for the System. There can sometimes be delays in obtaining PTO .
T
esla will work with you and your utility to try to minimize such delays.
5. Home Owner’s Association. If your home is governed by a home owner’s association or similar community organization, you are responsible for getting any required approvals and authorizations for the System.
6. Installation. We will contact you to schedule installation of the System. During installation, we might choose to make minor repairs commonly needed to install the System (like simple electric upgrades and roof preparation). We promise to repair or pay for damage we directly cause to your home or your property during installation of the System. If we fail to do that, please let us know, and we will make the repair (or have someone repair it) at our cost (and that will be your only remedy). But you need to let us know in writing and within a certain amount of time following the damage: within 10 years for Solar installations, 4 years for Powerwall installations and 1 year for anything else.
7. Equipment Limited Warranties. During the term of your Participation, any manufacturers limited warranties accrue to P
articipate Energy Fund I, LLC (the “System Owner”) as the owner of the System. If You (or a subsequent owner of Your home) exercises an option to purchase the System, any then-valid and assignable manufacturers limited warranties will be assignable to You (or the subsequent owner). Solar panels and inverters come with a warranty from their manufacturers. The solar panel warranty will be at least 25 years and will guarantee at least 80% of nameplate capacity for at least 25 years.
The inverter warranty will cover defects for at least 10 years. We reserve the right make warranty claims for the solar panels or inverter. If the System includes Powerwall(s), the Powerwall(s) are covered by the Tesla Powerwall Limited Warranty.
8. Site Access, Remote Monitoring and Firmware Upgrades. You agree that Tesla and the System Owner can access the System, including remotely, to monitor its performance, perform diagnostics and upgrade firmware.
Access Rights. You also hereby grant to Tesla, the System Owner and to Tesla’s or the System Owner ’s agents, employees, contractors and the utility a non-exclusive license running with the Site for access to, on, over, under and across the Site the date of this Agreement until the date that is ninety (90) days following the date of expiration or earlier termination of this Agreement (the “License Term”), for the purposes of performing all of the Program -related obligations and enforcing all of the Program-related rights set forth in this Agreement and otherwise as required in order to effectuate the purposes of the Program. During the License Term, you shall preserve and protect the parties’ rights under the Licenses and access to the Site and shall not interfere, or permit any third parties under Your control to interfere with such rights or access. You agree that either Tesla or the System Owner may record a customary memorandum of license in the land records respecting the Licenses.
9. Grid Services. You agree to that the System Owner, as owner of the System, has the sole and exclusive right to use and control any Powerwall(s) installed as part of the System, except to the extent the System Owner authorizes use of any such Powerwall(s) to the extent they are available for backup power generation during a grid outage, which authorization may be granted or revoked by the System Owner or its designee at any time in its sole discretion.
10. Tesla Intellectual Property. Tesla owns all patents, trademarks, copyrights, trade secrets and any other intellectual property rights associated with the System. Tesla gives you a limited, non- exclusive, license to use any software embedded in the System solely to the extent necessary in connection with the use and operation of the System.
11. Privacy. Information developed by or shared with Tesla in accordance with this Program will be governed by Tesla’s Privacy Policy. You agree that we may share your information with [CCA Name], the System Owner, your utility provider and our respective service providers, business partners and affiliates.
12. Limitation of Liability. If there is a dispute, the maximum amount that either of us will have to pay the other is the replacement cost of the System for anything arising out of these Program terms. Also, neither of us will have to pay the other for any indirect damages (what lawyers call “special or consequential damages”).
13. Governing Law. These Program terms are governed by the laws of the State where your System is installed.
14. Notices. You can find applicable lien notices, certain warnings required by law, and details of our insurance attached to these purchase terms.
15. Agreement to Arbitrate. Please read this part carefully because it means you are agreeing that any unresolved dispute between you and Tesla will not be decided by a judge or jury in a public courtroom, but instead by a single arbitrator in a private arbitration.
If you have a dispute with Tesla, Inc. or its affiliates (which we call “Tesla”) or any party participating in the Program arising out of or relating to any aspect of this Agreement or your Participation in this Program , please send us an email to [email protected], describing your dispute and how you would like it resolved. If it is not resolved within 60 days from the date of your email, you agree that your dispute can only be resolved by a single arbitrator in an arbitration administered by the American Arbitrati on Association (AA A) under its Consumer Arbitration Rules. This includes claims arising before you ordered your System (such as claims related to statements Tesla made about our products). We will pay all AAA fees for any arbitration, which will be held in the city or county of your legal residence.
To learn more about the Rules and how to begin an arbitration, you can call any AAA office or go to www.adr.org .
The arbitrator can only resolve disputes between you and Tesla, and cannot consolidate claims from others without consent from you, Tesla, and the others. You can only bring claims in arbitration against Tesla in your individual capacity and not as a plaintiff or class member in any class or representative action (and the same is true for Tesla).
If a court or arbitrator decides that any part of this agreement to arbitrate cannot be enforced as to a specific claim for relief or remedy (such as what lawyers call “injunctive” or “declaratory” relief), then that claim or remedy (and only that claim or remedy) will be carved out of the arbitration and can be filed in court; all other claims must be arbitrated.
If you prefer, you can take your individual dispute to a small claims court instead. If you don’t want to agree to arbitration, you can "opt out” of arbitration by sending us a letter within 30 days after placing your initial order for your System. Please send the letter to Tesla, Inc.; P.O. Box 15430; Fremont, CA 94539- 7970 and include your name, your order number, the name of the pro duct you ordered, and a statement explaining your desire to opt out of arbitration. If you do not opt out, your agreement to arbitrate overrides any different arbitration agreement between us, including any arbitration agreement in a contract involving another Tesla product or service.
[CCA Retail Program Name] Program Participation Sheet
(Home Improvement)
Your information and installation location
{&Customer.Name}
{&Customer.SpouseName}
{&Site.StreetOnContract}
{&Site.CityStateZipOnContract}
{&Customer.Phone}
Tesla Notice Information
Tesla, Inc. of 3500 Deer Creek Road, Palo Alto, CA, 94304 888-765-2489
CA CSLB 949283
Installer
Tesla Energy Operations, Inc. of {&Headquarters.FullAddress} {&Site.SCContractorLicense}
System and Purchase Price
Description of the Project and Description of the Significant Materials to be Used and Equipment to be Installed {&Table.PriceSheet}
Customer’s Initials: {{_es_signer1_initials}}
Schedule of Payments
Not Applicable. The System will be purchased by System Owner at no up-front cost to Customer.
Customer payment obligation is set forth in the Power Purchase Agreement (PPA) with [ CCA Name] and will be based on the following PPA rate:
14.5¢ / kWh (Pre-construction work: < $750)
15.0¢ / kWh (Pre-construction work: $750 - $2,500)
15.5¢ / kWh (Pre-construction work: $2,500 - $5,000)
* P
rojects that require pre-construction work at a cost greater than $5,000 are ineligible for the Program unless Customer bears these expenses.
Powerwall pricing: $115.00 / month for the 1st Powerwall; $75.00 / month for each additional Powerwall.
The schedule of progress payments must specifically describe each phase of work, including the type and amount of work or services scheduled to be supplied in each phase, along with the amount of each proposed progress payment.
IT IS AGAINST THE LAW FOR A CONTRACTOR TO COLLECT PAYMENT FOR WORK NOT YET COMPLETED, OR FOR MATERIALS NOT YET DELIVERED. HOWEVER, A CONTRACTOR
MAY REQUIRE A DOWNPAYMENT
.
Customer’s Initials: {{_es_signer1_initials}}
Approximate Installation Start Date
7-90 days from contract signing
Approximate Completion Date
7- 90 days from the day installation begins
Signed by
Your signature
{{_es_signer1_signature}}
Name: {&Customer.Name}
Date: {{_es_signer1_date}}
{{_es_signer2_signature}}
Name: {&Customer.SpouseName}
Date: {{_es_signer2_date}}
_
_
N ame: Tyler Moragne
Title: Director, Residential Operations
You are entitled to a completely filled in copy of this Agreement, signed by both you and Tesla, before any work may be started.
E
xhibit 1
Cancellation Rights
(TESLA, INC. COPY)
NOTICE OF CANCELLATION
STATUTORILY-REQUIRED LANGUAGE
Notice of Cancellation
Date of Transaction: {{_es_signer1_date}}{{_es_signer2_date}} You may CANCEL this transaction, without any penalty or obligation, within THREE BUSINESS DAYS OR FIVE BUSINESS DAYS (CA CUSTOMERS ONLY) 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 (Tesla, Inc.) 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 (Tesla, Inc.) 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 (Tesla, Inc.) regarding the return shipment of the goods at the seller’s (Tesla, Inc.’s) expense and risk. If you do make the goods available to the seller (Tesla, Inc.) and the seller (Tesla, Inc.) does not pick them up within 20 days 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 (Tesla, Inc.), or if you agree to return the goods to the seller (Tesla, Inc.) and fail to do so, then you remain liable for performance of all obligations under the contract.
To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice to Tesla, Inc., Document Receiving, 6569 Las Vegas Blvd. S., Unit 200, Las Vegas, NV 89119 NO LATER THAN MIDNIGHT of the date that is THREE BUSINESS DAYS OR FIVE BUSINESS DAYS (CA CUSTOMERS ONLY) from the date you signed the Agreement.
I, ____________________, hereby cancel this transaction on _________________________ [Date].
Customer’s Signature:
____
______________________________________
Customer’s Signature:
____
______________________________________
(
CUSTOMER COPY)
NOTICE OF CANCELLATION
STATUTORILY-REQUIRED LANGUAGE
Notice of Cancellation
Date of Transaction: {{_es_signer1_date}}{{_es_signer2_date}} You may CANCEL this transaction, without any penalty or obligation, within THREE BUSINESS DAYS OR FIVE BUSINESS DAYS (CA CUSTOMERS ONLY) 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 (Tesla, Inc.) 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 (Tesla, Inc.) 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 instruction s of the seller (Tesla, Inc.) regarding the return shipment of the goods at the seller’s (Tesla, Inc.’s) expense and risk. If you do make the goods available to the seller (Tesla, Inc.) and the seller (Tesla, Inc.) does not pick them up within 20 days 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 (Tesla, Inc.), or if you agree to return the goods to the seller (Tesla, Inc.) and fail to do so, then you remain liable for performance of all obligations under the contract.
To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice to Tesla, Inc., Document Receiving, 6569 Las Vegas Blvd. S., Unit 200, Las Vegas, NV 89119 NO LATER THAN MIDNIGHT of the date that is THREE BUSINESS DAYS OR FIVE BUSINESS DAYS (CA CUSTOMERS ONLY) from the date you signed the Agreement.
I, ____________________, hereby cancel this transaction on _________________________ [Date].
Customer’s Signature:
____
______________________________________
Customer’s Signature:
____
______________________________________
Exhibit 2
NOTICES
Bonds. The owner or tenant has the right to require the contractor to have a performance and payment bond.
E
xtra Work and Change Orders. Extra Work and Change Orders become part of the contract once the order is prepared in writing and signed by the parties prior to commencement of any work covered by the new change order. You may not require a contractor to perform extra or change-order work without providing written authorization prior to the commencement of work covered by the new change order. Extra work or a change order is not enforceable against you unless the change order also identifies all of the following in writing prior to the commencement of work covered by the new change order:(i) the scope of the extra work or change, (ii) the cost to be added or subtracted from the contract; and (iii)
t
he effect the order will have on the schedule of progress payments or the completion date. Notwithstanding this provision, the Contractor shall have the right to substitute System equipment without Customer’s agreement, so long as that substitution adds no extra cost to the project and does not materially affect the System’s performance. T he C
ontractor’s failure to comply with the requirements of this paragraph does not preclude the recovery of compensation for work performed based on legal or equitable remedies designed to prevent unjust enrichment.
I
nsurance Tesla carries the following insurance applicable to the work being performed under this Agreement:
• Commercial General Liability Insurance (CGL). Tesla carries commercial general liability insurance wit h c
overage amounts that meet or exceed those required by law. • Workers' Compensation Insurance. Tesla carries workers' compensation insurance for all employees in compliance with law.
Additional Notices
California
CALIFORNIA CONTRACTOR LICENSING INFORMATION: CSLB is the state consumer protection agency that licenses and regulates construction contractors. Contact CSLB for information about the licensed contractor you are considering, including information about disclosable complaints, disciplinary actions and civil judgment s that are reported to CSLB.
Use only licensed contractors. If you file a complaint against a licensed contractor within the legal deadline (usually four years), CSLB has authority to investigate the complaint. If you use an unlicensed contractor, CSLB may not be able to help you resolve your complaint. Your only remedy may be in civil court, and you may be liable for damages arising out of any injuries to the unlicensed contractor or the unlicensed contractor's employees. For more information:
-Visit CSLB’s Internet website at www.cslb.ca.gov
-Call CSLB at 800-321-CSLB (2752)
-Write CSLB at P.O. Box 26000, Sacramento, CA 95826
MECHANICS’ LIEN RELEASES
Upon satisfactory payment for any portion of the work performed, Tesla shall, prior to any further payment, furnish to Customer a full and unconditional release from any potential lien Claimant claim or mechanics’ lien pursuant to Sections 8400 and 8404 of the California Civil Code for that portion of the work for which payment has been made.
CALIFORNIA MECHANICS LIEN WARNING:
NOTICE TO PROPERTY OWNER: If bills are not paid in full for the labor, services, equipment, or materials furnished or to be furnished, a mechanic’s lien leading to the loss, through court foreclosure proceedings, of all or part of your property being so improved may be placed against the property even though you have paid your contractor in full. You may wish to protect yourself against this consequence by (1) requiring your contractor to furnish a signed release by the person or firm giving you this notice before making payment to your contractor or (2) any other method or device that is appropriate under the circumstances.
Anyone who helps improve your property, but who is not paid, may record what is called a mechanics lien on your property. A mechanics lien is a claim, like a mortgage or home equity loan, made against your property and recorded with the county recorder.
Even if you pay your contractor in full, unpaid subcontractors, suppliers, and laborers who helped to improv e your property may record mechanics liens and sue you in court to foreclose the lien. If a court finds the lien is valid, you could be forced to pay twice or have a court officer sell your home to pay the lien. Liens can also affect your credit.
To preserve their right to record a lien, each subcontractor and material supplier must provide you with a document called a ‘Preliminary Notice.’ This notice is not a lien. The purpose of the notice is to let you know that the person who sends you the notice has the right to record a lien on your property if he or she is not paid.
BE CAREFUL. The Preliminary Notice can be sent up to 20 days after the subcontractor starts work or the supplier provides material. This can be a big problem if you pay your contractor before you have received the Preliminary Notices.
You will not get Preliminary Notices from your prime contractor or from laborers who work on your project. The law assumes that you already know they are improving your property.
PROTECT YOURSELF FROM LIENS. You can protect yourself from liens by getting a list from your contractor of all the subcontractors and material suppliers that work on your project. Find out from your contractor when these subcontractors started work and when these suppliers delivered goods or materials. Then wait 20 days, paying attention to the Preliminary Notices you receive.
PAY WITH JOINT CHECKS. One way to protect yourself is to pay with a joint check. When your contractor tells you it is time to pay for the work of a subcontractor or supplier who has provided you with a Preliminary Notice, write a joint check payable to both the contractor and the subcontractor or material supplier.
For other ways to prevent liens, visit CSLB’s Internet Web site at www.cslb.ca.gov or call CSL B at 800-321-CSLB (2752).
REMEMBER, IF YOU DO NOTHING, YOU RISK HAVING A LIEN PLACED ON YOUR HOME. This can mean that you may have to pay twice, or face the forced sale of your home to pay what you owe.
Schedule A
System Information
Purchaser Name and Installation Address
{&Customer.Name}
{&Customer.SpouseName}
{&Site.StreetOnContract}
{&Site.CityStateZipOnContract}
Equipment & System Installation Description
ITEM
{&Proposal.STCkW} kW (STC) PhotovotaicSystem
{&Proposal.AnnualKWHOutput,fmt=N0} kWh/yr Estimated First Year Annual Production {&Proposal.AllPanelQty} PV Panels: {&Panel[1].Make} {&Panel[1].Model} {&BatteryBackup[1].Quantity} Battery(ies): Tesla {&BatteryBackup[1].Model} {&BatteryBackup[2].Quantity} Battery(ies): Tesla {&BatteryBackup[2].Model} {&Proposal.AllInverterQty} Inverter(s): {&Inverter[1].Make} {&Inverter[2].Make}
{&Inverter[3].Make}
{&Inverter[1].Model}
{&Inverter[2].Model}
{&Inverter[3].Model}
Mounting System
System Installation
Costs
Purchase Amount
(PV System, Battery, and Installation Cost)
{&Proposal.CashContractPrice,fmt=C2}
Estimated Rebate {&Proposal.TotalRebatesToSC,fmt=C2}
Net System Cost {&Proposal.OutOfPocketCost,fmt=C2}
Schedule B
Renewable Energy Credit Agreement
1. Introduction. This Renewable Energy Credit Agreement (this “REC Agreement”) is between Tesla (“Tesla” or “we”) and you (“Customer”) concerning the Environmental Attributes associated with the electricity generated by the photovoltaic system (“Solar System”), which Tesla is installing on your home pursuant to your agreement to participate in the [CCA Retail Program Name] (the “Program Agreement”). “Environmental Attributes” are commonly referred to as renewable energy credits (“RECs”) and include all solar renewable energy credits, carbon offset credits, green tags, and other similar credits and benefits, however named, generated by or associated with the Solar System. Environmental Attributes do not include electricity or tax credits.
2. Ownership. You recognize that you will not own the Environmental Attributes to sell, use or claim, and a third party may have the right to claim clean, green or renewable energy based on its purchase of Environmental Attributes from your Solar System.
3. Your Obligations. You agree to cooperate with Tesla and the System Owner of the Solar System to allow Tesla (and any party to which the Environmental Attributes have been sold or transferred) to claim the Environmental Attributes, including, but not limited to taking the following actions:
a. To the extent allowable by law, enter into net metering agreements and interconnection agreements for the Solar System; b. Promptly, but in no case more than 7 days after an initial request, sign and/or file documentation in connection with the registration and/or transfer of the Environmental Attributes to any party to which the Environmental Attributes have been sold or transferred;
c. Maintain and make available, at your cost, a functioning indoor internet connection with the understanding that an intermittent internet connection (which includes but is not limited to temporary wireless hotspots) will not satisfy this obligation; d. Allow Tesla or the owner of the Solar System, its agent or subcontractor, to monitor and report the Solar System’s production; e. Upon reasonable prior written notice, provide Tesla, the owner of the Solar System and/or its designees, with access to the Solar System for inspections and maintenance;
f. Maintain the Solar System in good working condition; and g. Maintain the Solar System’s interconnection to the local electric utility.
Additionally, you understand that by you will have no right to sell the Environmental Attributes, or any component thereof, to any other party.
4. Remedies. If you fail to comply with the obligations set forth in Section 3 within 30 days after written notice to you, and that failure results in any disruption in the production of Environmental Attributes or Tesla’s ability to claim, transfer, or otherwise make use of the Environmental Attributes, Tesla will have the right to invoice and collect from you an amount equal to Tesla’s direct, actual damages resulting from such disruption. In no case, however, will you be liable to Tesla under this REC Agreement for amounts in excess of the REC Credit.
5. Third-Party Beneficiaries. We each agree that the owner(s) of the Solar System and the Environmental Attributes is/are intended third-party beneficiary(ies) of this REC Agreement.
I have read this REC Agreement in its entirety and I acknowledge that I have received a complete copy of this REC Agreement
{{_es_signer1_signature}} Name: Tyler Moragne Customer Signature Title: Director, Residential Energy Operations
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Bo
okmarkControlTable will be deleted
USState Condition Include
Condition {#IF(“{&Customer.SpouseName}”!=””)|1|0ENDIF} CoSigner_YES1,CoSigner_YES2 Condition {#IF(“{&Proposal.HasAdderID(228)}”==”True”)|1|0ENDIF }
Battery_YES1,Battery_YES2,Battery_YES3,Battery
_YES4,Battery_YES5,Battery_YES6,Battery_YES7,
Batter_YES8
Condition {#IF(“{&Proposal.HasAdderID(228)}”!=”True”)|1|0ENDIF} Battery_NO1,Battery_NO2 Condition {#IF(“{&Storage.Cost_SystemSubtotal}”>1)|1|0ENDIF} BatteryBackup_YES1,BatteryBackup_YES2,Battery Backup_YES3,BatteryBackup_YES4,BatteryBackup
_YES5