PROGRAM MANAGEMENT AGREEMENT
This Program Management Agreement (this “Agreement”) dated effective as of [July 15 , 2023], (the “Effective Date”) is by and between CITY OF POMONA, A CALIFORNIA MUNICIPAL CORPORATION, D/B/A POMONA CHOICE ENERGY (“Program Manager”), and Participate.Energy LLC, a Delaware limited liability company (the “Owner”).
The parties hereto are sometimes herein referred to individually as a “Party” and collectively as the “Parties”.
RECITALS
A. Program Manager, Owner and Tesla, Inc. (“Installer”) have entered in to certain agreements for the creation of a distributed solar and energy storage program for residential electricity customers in Program Manager’s service territory (the” Program”). Under the terms of the Program, Owner will develop, finance, and own residential solar and energy storage systems to be located at private residences within Program Manager’s service territory (each a “System” or, collectively, the “Systems” ), Installer will install the Systems under an installation contract between Installer and Owner ( “Installation Contract” ), and Program Manager will buy from Owner the energy and certain energy attributes and benefits generated by each System under the terms of a certain power purchase agreement between the Parties of even date herewith (the “Power Purchase Agreement”).
B. Owner does not independently maintain the internal capability to perform the Program Management Services (as defined below) that Owner requires in connection with the installation of the Systems, and Program Manager’s capabilities are expected to provide significant benefits to Owner. Therefore, Owner desires to engage Program Manager to manage certain aspects of the System permit management, Installer communication, and origination of potential customers in Program Manager’s service territory, all as further set forth herein (the “Program Management Services”).
C. In consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the following:
AGREEMENT
In consideration of the above recitals, the premises and mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1. Appointment and Term; Assumption of Development Responsibilities ; Standard of Performance . Owner hereby appoints Program Manager to render the Program Management Services as further described in the Schedule of Program Management Services attached hereto as Exhibit A. Program Manager hereby accepts such appointment. The term of this Agreement shall be co-terminus with the term of the Power Purchase Agreement (“Term”).
Program Manager shall use such diligence, care and prudence in the performance of its obligations ATTACHMENT NO. 3
2 hereunder as are commercially reasonable, and shall devote such time, effort and skills of its personnel as a reasonable service Program Manager in like position would do in like circumstances.
2. Limitations and Restrictions. Notwithstanding any provisions of this Agreement, Program Manager shall not take any action, expend any sum, make any decision, give any consent, approval or authorization, or incur any obligation with respect to any of the following matters unless and until the same has been approved by Owner:
(a) alteration of any System contemplated by the Installation Contract, except for such matters as may be expressly delegated in writing to Program Manager by Owner; (b) any proposed change in the installation of a System , or in the plans and specifications therefor as previously approved by Owner , that increases the cost thereof, or any other change that would affect the design, cost, value or quality of any of a System , except for such matters as may be expressly delegated in writing to Program Manager by Owner.
3. Standard of Conduct.
a) Program Manager shall provide the Program Management Services , perform its other obligations and exercise its rights or powers under this Agreement in a prudent manner, with the degree of skill and judgment normally exercised by Program Manager s performing Program Management Services for the permitting of systems of a similar nature, and in accordance with: (i) any applicable laws and regulations; and (ii) any agreement, instrument or other document to which Owner is a party, and that Owner has delivered to Program Manager, that relates to a System or any component thereof (“Project Documents”), except to the extent Owner provides Program Manager with written instructions not to do so in the event Owner is contesting in good faith the validity or application of any such applicable laws and regulations or such term and condition of a System Document, in any reasonable manner. b) Program Manager may, at any time, if it reasonably considers it to be necessary or appropriate , request written instruction from Owner with respect to any matter contemplated by this Agreement and may defer action thereon pending the receipt of such written instructions.
c) Program Manager shall advise Owner promptly, if it becomes aware of any material inconsistency between any of the following:
(i) Owner’s instructions given in accordance with this Agreement from time to time;
(ii) any System Document;
(iii) Required insurance (if any); and
(iv) any applicable laws and regulations or Permit.
3 d) Any action taken by Program Manager in accordance with the written instructions of Owner , or failure to act pending the receipt of such written instructions, shall be deemed to be within the scope of Progr am Manager ’s authority and in accordance with its obligations under this Agreement and, without limitation, shall not constitute gross negligence or willful misconduct as referred in Section 10(b).
4. Accounts and Records.
(a) Program Manager , shall keep such books of account and other records relating to each System as may be required by applicable laws and regulations or as reasonably requested by Owner in writing. All accounts and records relating to a System , including all correspondence, shall be surrendered to Owner upon demand without charge therefor. (b) All books and records prepared or maintained by Program Manager shall be kept and maintained at all times at secure locations accessible to Owner for audit, inspection and copying by Owner or any representative or auditor therefor or supervisory or regulatory authority upon reasonable written request.
(c) During the Term, Program Manager shall keep Owner reasonably informed as to the status of the Program Management Services provided by Program Manager . Program Manager shall notify Owner in writing of any material event related to the Program Management Services provided by Program Manager hereunder.
5. Accrual Schedule. The Program Management Agreement Fee (as defined below) shall be earned in full for a System when a System is placed in service for purposes of Sections 48 and 168 of the Internal Revenue Code, as amended, and shall be paid promptly when a System has reached final completion under the terms of the respective Installation Contract (collectively, “Final Completion”).
6. Compensation. As consideration for Program Manager ’s Program Management Services to be performed under this Agreement, Owner will pay Program Manager a fee (the “Program Management Agreement Fee”) equal to Forty U.S. Cents ( $0.40) multiplied by each Watt/dc of solar generating capacity for each System that has reached Final Completion and for which Program Manager has confirmed in a legally binding manner that such System will be covered under the Power Purchase Agreement for the term thereof. 4 7. Default and Remedies. If Program Manager defaults in the performance of any of its material covenants or obligations under this Agreement and such default continues unremedied for a period of 30 days after written notice thereof from Owner to Program Manager, Owner shall have the right, at its election , to exercise one or more of the following rights and remedies; provided, however, if the default is of such a nature that it cannot be cured within the 30- day period, and Program Manager has begun to cure each default within the 30- day period, Program Manager shall have an additional 60 days in which to cure said default provided it acts in good faith and with due diligence to cure the same (all of which shall be cumulative); provided, further, however, that a default under any agreement with a contractor, subcontractor, engineer or equipment Program Manager for a System, or a delay due to action or inaction by the utility shall not be deemed a default under the Agreement:
(a) terminate this Agreement; and
(b) enforce the provisions of this Agreement by legal proceedings for the specific performance of any covenant or agreement contained herein or for the enforcement of any other appropriate legal or equitable remedy and recover damages caused by any breach by Program Manager of the provisions of this Agreement, including court costs, reasonable attorneys’ fees and other expenses incurred in the enforcement of the obligations of Program Manager hereunder; and (c) exercise any and all rights and remedies that Owner (or its Members) may have under applicable laws and regulations; and
(d) in addition to any rights now or hereafter granted under applicable laws and regulations and not by way of limitation of any such rights, upon the occurrence of any event of default hereunder that is not cured within the time period specified in this Section 7 , Owner is
authorized to set off and to apply any amounts payable to Program Manager hereunder against and on account of the obligations of Program Manager to Owner hereunder.
8. Indemnity and Liability
(a) Limitation of Liability.
(i) Notwithstanding any provision in this Agreement to the contrary, neither Party, nor their respective Affiliates, nor any of their respective officers, directors, employees, agents, contractors, subcontractors, vendors, shareholders, members, partners or representatives, shall be liable hereunder for any consequential or indirect loss or damage, including loss of profit, cost of capital, loss of goodwill or any other special or incidental damages, it being understood that the Parties’ indemnification obligations under this Section 8 are not and
shall not be deemed to be consequential or indirect loss or damage under this Section 8. (ii) Except as provided in this Section 8, Program Manager shall have no liability hereunder to Owner for damages or other amounts in connection with a breach by Program Manager of this Agreement or a failure by Program Manager to perform the Program Management Services in accordance with the terms and conditions hereof or otherwise as a result of the Program Management Services performed by Program Manager pursuant to this Agreement. 5 (iii) The Parties further agree that the waivers and disclaimers of liability, indemnities, releases from liability, and limitations on liability expressed in this Agreement shall survive termination or expiration of this Agreement, and shall apply at all times, whether in contract, equity, tort or otherwise, even in the event of the fault, negligence, including sole negligence, strict liability, or breach of the Party indemnified, released or whose liabilities are limited, and shall extend to the partners, members, principals, shareholders, directors, officers, employees and agents of each Party and its Affiliates.
(b) Indemnity.
To the extent it may lawfully do so, each of Program Manager and Owner hereby indemnify, defend (with counsel of its choosing), and hold harmless the other party and its directors, agents, officers, members, employees and volunteers from and against any and all liability or claim of liability, loss or expense, including defe nse costs and legal fees and claims for damages of whatsoever character, nature and kind, whether directly or indirectly arising from or connected to: bodily injury, death, personal injury, or property damage caused by negligence, creation or maintenance of a dangerous condition of property, or intentional infliction of harm, including any workers’ compensation suits, liability, or expense, arising from or connected with Program Management Services performed by on behalf of the indemnifying party by any person pursuant to this Agreement; nonpayment for labor, materials, appliances, teams, or power, performed on, or furnished or contributed to the Site. Notwithstanding the above, neither Program Manager nor Owner shall be required to defend, indemnify and hold harmless the other for such other party’s negligent acts and omissions or willful misconduct. It is the intent of the Parties that where negligence is determined to have been joint or contributory, principles of comparative negligence will be followed, and each Party shall bear the proportionate cost of any loss damage, expense or liability attributable to that Party’s negligence.
9. Notices. Any notice, request, demand or other communication which is required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given:
(i) on the date of receipt by the applicable Party if personally delivered; (ii) when transmitted by the applicable Party if transmitted by telecopy, electronic mail, or other digital transmission method, subject to the sender’s facsimile machine receiving the correct answerback of the addressee and confirmation of uninterrupted transmission by a transmission report or the recipient confirming by telephone to sender that he has received the facsimile or electronic mail message; and (iii) when received by the applicable Party, if sent for next day delivery to a domestic address by recognized overnight delivery service or, if sent by certified or registered mail, return receipt requested.
Notices shall be given:
If to Owner, to:
Participate.Energy LLC
2093 Philadelphia Pike #3125,
Claymont, DE 19703.
Attn: Ethan Friedman
Phone: 917-301-2621
Email: [email protected]
6 If to Program Manager, to:
Pomona Choice Energy
505 South Garey Avenue
Pomona, CA 91766
Attn: Contract Administration
Email: [email protected]
10. General Provisions.
(a) No Agency Relationship. This Agreement does not create an agency relationship between the P arties and does not establish a joint venture or partnership between the parties. Except as expressly set forth herein, neither party has the authority to bind the other party or represent to any person that the party is an agent of the other party. (b) Agreement. This Agreement consists of the terms and conditions set forth herein, as well as the appendices hereto, which are incorporated by reference herein and made part hereof.
In the event of a conflict, variation or inconsistency between the appendices hereto and the terms and conditions contained in the body of this Agreement, the latter shall control and be given priority.
(c) Relationship of the Parties.
(i) Program Manager has been retained by Owner as an independent contractor to solely perform the Program Management Services on behalf of Owner.
(ii) Without limiting the relationship of any Party under any other agreement, nothing contained or implied in this Agreement shall constitute or be deemed to constitute any Party as the partner of any other Party for any purpose whatsoever; or create, or be deemed to create, any partnership between any Party and the any other Party.
(iii) No Party shall by virtue of this Agreement have the power or authority to enter into any agreement or undertaking for or to act on behalf of or otherwise to bind the any other Party as to any matter or thing to be done in relation to a System or to the provision of the Program Management Services save as may be expressly authorized in this Agreement or agreed in writing between the Parties from time to time.
(d) Entire Agreement. This Agreement, the Schedules and Exhibits attached hereto contains the entire a greement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, undertakings and agreements. Neither Party will be bound by or deemed to have made in connection herewith any representations, warranties, commit ments or undertakings, except those contained herein.
(e) Captions; Exhibits. Titles or captions of sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend, describe or otherwise affect the scope or meaning of this Agreement or the intent of any provision 7 hereof. All exhibits and appendices attached hereto shall be considered a part hereof as though fully set forth herein.
(f) Amendment. This Agreement may not be amended or modified in any way unless such amendment or modification is in writing signed by duly authorized representatives of each Party.
(g) No Waivers. It is understood and agreed that any delay, waiver or omission by Owner or Program Manager to exercise any right or power arising from any breach or default by Owner or Program Manager with respect to any of the terms, provisions, or covenants of this Agreement shall not be construed to be a waiver by Owner or Program Manager of any subsequent breach or default of the same or other terms, provisions or covenants on the part of Owner or Program Manager. No waiver of any right or power by any Party under this Agreement shall be deemed effective unless in writing and signed by the waiving Party.
(h) Changed Conditions; Invalidity . If there is an occurrence of an event of Force Majeure, there is a material change in market conditions affecting the prices of goods and Program Management Services constituting Development Costs, there is a change in any Project Document or financing document or Owner enters into a new Project Document or financing document affecting performance of the Program Management Services hereunder, or there is a change in any applicable Law, and any such performance or occurrence results in increased or decreased costs to Program Manager , or Owner, as the case may be, shall be entitled to an equitable budget adjustment reflecting the reasonable value of any such increased or decreased costs from such performance or occurrence, and the Parties hereby agree to adjust equitably such other provisions of this Agreement that are directly affected by such performance or occurrence; provided, however, that such adjustments must be consistent with the economic expectations and the intent of the Parties. The invalidity or unenforceability for public policy or other equitable grounds of any provision of this Agreement shall be determined only by a court of competent jurisdiction, and the Parties hereby agree to negotiate an equitable adjustmen t to the invalid or unenforceable provisions with a view toward affecting the purposes of this Agreement. The validity or enforceability of the remaining provisions or portions or applications hereof shall not be affected thereby.
(i) Representations and Warranties.
(i) Each Party represents and warrants to the other that:
(A) it is duly formed and validly existing under the laws of its jurisdiction of formation;
(B) it has the legal right and full power and authority to execute and deliver, and to exercise its rights and perform its obligations under, this Agreement;
8 (C) all corporate or company action required by it validly and duly to authorize the execution and delivery of, and to exercise its rights and perform its obligations under, this Agreement has been duly taken; and
(D) this Agreement constitutes a valid and bindi ng agreement enforceable against it in accordance with its terms.
(ii) Except as expressly provided in this Agreement or as required by law, no Party makes any warranties or guarantees to the other, either express or implied, with respect to the Facility, the Program Management Services or any other subject matter of this Agreement, and, to the extent permitted by law, each Party disclaims and waives any implied warranties or warranties imposed by law.
(j) Counterparts. The Parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be signed by the Parties and each counterpart shall be deemed an original instrument as against any Party who has signed it.
(k) Facsimile or Electronic Delivery . This Agreement may be duly executed and delivered by a Party by execution and facsimile or electronic format (including portable document format (.pdf)) delivery of the signature page of a counterpart to the other Party, and, if delivery is made by facsimile or other electronic form at, the executing Party shall promptly deliver, via overnight delivery, a complete original counterpart that it has executed to the other Party, but this Agreement shall be binding on and enforceable against the executing Party whether or not it delivers such original counterpart.
(l) Dispute Resolution. In the event a dispute arises between the Parties regarding the application or interpretation of this Agreement, the aggrieved Party shall promptly notify the other Party of its intent to invoke this dispute resolution procedure within ten (10) Business Days after such dispute arises. If the Parties shall fail to resolve the dispute within ten (10) Business Days after delivery of such notice, each Party shall, within five (5) Business Days thereafter, nominat e a senior officer of its management to meet at the Facility, or at any other mutually agreed location, to resolve the dispute. If the dispute remains unresolved within ten (10) Business Days after such a meeting has commenced, each Party, without further delay, shall have the right to pursue any and all remedies available at law or in equity. The pendency of any dispute under this Agreement shall not of itself relieve any Party of any duty to perform under this Agreement.
(m) Non-Recourse. Notwithstanding anything to the contrary provided in this Agreement, it is specifically understood and agreed that there shall be absolutely no personal liability on the part of any of the partners, members, shareholders, or a ffiliates of the Parties, or any of their respective directors, officers, employees, agents or representatives, (each, a “Protected Person”) for the payment of any amounts due or the performance of any other obligation of any Party under this Agreement. Each Party shall look solely to the assets of t he other Parties for the satisfaction of each and every right or remedy under or in connection with this Agreement. In furtherance of the foregoing, Owner and Program Manager each agrees that it shall neither seek or obtain, nor be entitled to seek or obt ain, any deficiency or other judgment against any Protected Person for any action or inaction under or in connection with this Agreement, and Owner and 9 Program Manager each releases all such Protected Persons from any such claims by Program Manager or Owner, as the case may be.
[Signature Page Follows]
[Signature Page to Program Management Agreement]
IN WITNESS WHEREOF, the parties have executed this Program Management Services Agreement as of the date first written above.
PROGRAM MANAGER:
City of Pomona,
a California municipal corporation,
d/b/a Pomona Choice Energy
By: ____________________________
Name: ___________________________
Title: ___________________________
OWNER:
Participate.Energy LLC
a Delaware limited liability company
By: ____________________________
Name: ___________________________
Title: ___________________________
EXHIBIT A
PROGRAM MANAGEMENT SERVICES SCHEDULE
Program Management Services generally include all activities necessary or helpful to
(a) monitor, manage, and accelerate all permitting activities for any System;
(c) create a streamlined and integrated System permitting process allowing for faster System permitting;
(d) effectively communicate with and guide Installer through the System permitting process to ensure shorter permitting timelines and to avoid any permitting delays;
(e) Effectively coordinate the System permitting process with all other governmental agencies involved;
(f) To the extent legally permissible, expedite the permitting for any System; and
(d) prepare materials and conduct communications and outreach to residential electric power customer in its service territory to promote the Program and to encourage the installation of Systems by its customers.