HomeMy WebLinkAboutPW City Hall SolarSolar Power Purchase Agreement
This Solar Power Purchase Agreement (this "Agreement") is dated as of March tQ, 2001& (the "Effective Date"), and is
witnessed, acknowledged, and executed by authorized representatives of SolEd Solar Holdings V, LLC, a California limited
liability company ("Seller"), the managing member of which is SolEd Benefit Corp, a California Benefit Corporation, and the
City of San Rafael, California, a municipality of the State of California ("Purchaser" and, together with Seller, each, a "~"
and together, the "Parties"), as evidenced by their signature on this cover page.
RECITALS
A. Purchaser wishes to meet its power requirements cost effectively, efficiently and in an environmentally-friendly manner;
B. Purchaser has solicited proposals from persons, firms, organizations, and l or other legal entities to provide such
power from renewable resources in a cooperative/joint solicitation coordinated by the City of San Rafael;
C. Seller is in the business of designing, constructing, owning, financing and operating solar photovoltaic electric generating
systems for the purpose of selling power generated by the systems to its Purchasers at the lowest practical lifetime cost of
clean energy;
D. Purchaser has selected Seller and its engineering, procurement and construction firm to design, construct, own, finance
and operate a solar photovoltaic generating system to be located on its property subject to the terms, conditions,
covenants and provisions set forth herein;
E. Seller intends to construct, own, and operate renewable energy-powered generating facilities and desires to sell
electricity produced by such generating facilities together with Environmental Attributes and Environmental
Incentives to Purchaser pursuant to the terms. conditions, covenants and provisions set forth herein; and
F. Purchaser desires to purchase electricity generated by Seller's generating facility, together with all Environmental
Attributes and Environmental Incentives pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
Purchaser: Seller:
Name City of San Rafael Name SolEd Solar Holdings Y, LLC,
and P.O. Box 151560 and clo SolEd Benefit Corp, Managing Member
Address San Rafael, CA 9490 I Address P.O. Box 151731
Attention: Jim Schutz, City Manager San Rafael, C A 94915-1731
Attention: David Kunhardt, CEO
Phone (415) 485-3070 Phone (415) 609-7893
Fax None Fax None
E-mail city .manager@cityofsanrafael.org E-mail david@sol-ed.com
Premises Purchaser [x] owns U leases the Additional Seller is a Benefit corporation, incorporated in
Ownership Premises, also known as City Hall. Seller California in 2013, serving the mission of
Information delivering the lowest lifetime cosl of clean energy
to public clients.
This Agreement sets forth the terms and conditions of the service contract for purchase and sale of (a) solar generated electric energy
from the solar panel system described in Exhibit 2 (the "System") and (b) car charging stations described in Exhibit 2 (the "Car
Charging Stations") to be installed at Purchaser's facility described in Exhibit 2, Attachment A (the "Facility"). The terms and
conditions of this Agreement are provided and intended for use by public agencies affiliated or not affiliated with Purchaser, but with
similar procurement and contracting regulations as those of Purchaser.
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30305\435190015
The exhibits listed below are incorporated by reference and made part ofthis Agreement.
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6-1
Exhibit 6-2
Exhibit 7
Exhibit 8
Exhibit 9
Exhibit 10
Basic Terms and Conditions
System Description
Credit Information
General Terms and Conditions
Form of Memorandum of License
Engineering and Construction Requirements
Equipment Warranties
(Intentionally Blank)
Milestone Schedule
Insurance Requirements
Seller and Purchaser Agreed Responsibilities
Purchaser: City of San Rafael Seller: SolEd Solar HOldings V. LLC
Signature: _____ ,L.:---'\r---'--'''"''--T''~--t---------
By: SolEd Benefit Corp. Managing Member
<-~w.~~rI~
Printed Name: ----'~IU-~..#~~-.>i_---------Printed Name: David W _ Kunhardt
Title: ___ -'C"-'j'-'t~y'--"M....,awn""a'_l;jgl.><ecLr--------Title: President & CEO
Date: _3--=..-2---C...-7 /---+-J-If{_-Date: __ C-_--....::S:.....LJi_i~~:..!..V'-"'CJ'-"{_-Z-t>--'-t '0"--___ _
2
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Exhibit 1
Basic Terms and Conditions -Site: See Below
1. Term: Twenty (20) years , beginning on the Commercial Operation Date, as defined in Exhibit 4, Section 3(a).
2. Additional Terms: Up to two (2) optional Additional Term s offive (5) years each.
3. Environment Attributes: Accrue to Purchaser.
4. Environmental Incentives: If applicable, to be directly paid over, or credited to, Purchaser as soon as received.
5. Contract Price (Discounted):
Site City Hall
Contract $/kWh Year
I 0.175
2 0.1750
3 0.1794
4 0.1839
5 0.1885
6 0.1932
7 0.1980
8 0.2029
9 0.2080
10 0.2132
11 0.2186
12 0.2240
13 0.2296
14 0 .2354
15 0.2412
16 0.2473
17 0 .2225
18 0 .2003
19 0 .1803
20 0 .1622
6. Condition Satisfaction Date: As set forth in Exhibit 4, Sections 6(a) and 6(b).
7. Anticipated Commercial Operation Date:
Site
Commercial 0
8. Purchaser Options to Purchase System. U None [X] or as set forth in Exhibit 4, Section 16(b).
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9. System Installation:
Includes:
Excludes:
[X] Design, engineering, permitting, interconnection application and completion, installation, prevailing wage
construction, monitoring and communication, rebate and permit application and paperwork processing, and final
commissioning of the completed System, complete and accurate As-Built design documents, copies of executed
module, inverter, and system workmanship warranties, and Operations and Maintenance services Agreement, as
described in Exhibit 6-1 (Engineering and Construction Requirements), and additional items for which Seller has
agreed to be responsible as set forth on Exhibit 10 .
[X] 10-year Limited Warranty on workmanship and inverters, 25-year Warranty on PV modules.
[X] List of Approved Subcontractors
L] Any like substantive equipment, in the sole discretion of Seller.
LI State or Utility Rebate, ifany.
[X] Proof of lien-free construction will be provided.
[X] Interactive Display for Generating Facilities. If this item is checked, the provisions of Exhibit 4, Section 12(b)
shall apply.
Payment bonds, performance bond(s), tree removal and tree trimming, groundwork, upgrades or repair to the
Facility or utility electrical infrastructure for which Purchaser has agreed to be responsible as set forth on Exhibit
10. To the extent of any conflict between this paragraph and Exhibit 10 , the provisions of Exhibit 10 shall
govern.
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1. System Location: Listed Below
2. System Size (DC kW):
Site
System Size
(kW-DC-STC)
3. Expected Contract Quantity (kWh):
Exhibit 2
System Description
City Hall
273.7
Initial Year Expected Quantity of Energy
Site City Hall I
Month kWh/Month I
January
15,869
February
20,196
March
34,742
April
43,382
May
52,370
June
52,445
July
51,545
August
49,233
September
39,505
October
27,192
November
18,261
December
13,063
Final PPA Approved March 19,2018
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Annual Expected Quantity of Energy:
Site City Hall
Contract Year (kWhlYear)
1 417,803
2 416,758
3 415,717
4 414,677
5 413,641
6 412,607
7 411,575
8 410,546
9 409,520
10 408,496
11 407,475
12 406,456
13 405,440
14 404,426
15 403,415
16 402,407
17 401,401
18 400,397
19 399,396
20 398,398
4. Expected Structure: LI Ground Mount [X] Roof Mount [X] Parking Structures [X] Other: Installation of Car Charging
Stations
5. Expected Module(s):
Site ManufacturerlModel Quantity
City Hall Sunpower SPR-X21-460W COM 595
6. Expected Inverter(s):
Site Manufacturer/Model Quantity
City Hall SMA STP24kW-TL, SMA STP20kW-TL 10
7. Expected Monitoring Provider:
Site Manufacturer/Model Quantity
City Hall Also Energy 1
8. Expected Car Charging Station Provider (Under separate agreement with station provider):
Site Manufacturer/Model Quantity
City Hall Chargepoint Levell! (By others) Conduit by SolarCraft TWO
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9. Facility and System Layout: See Exhibit 2, Attachment A
10. Utility: Pacific Gas & Electric Co. and Marin Clean Energy, as applicable
1 I. Current & Proposed Utility Tariff:
Site Current PG&E Current MEA Proposed
City Hall AID Non TOU (S) COM-I DA Deep Green E-19R + MCE Deep Green
12. Warranties: (i) Warranty for the performance of the System set forth in Section 7(m); (ii) Warranty for meter accuracy
set forth in Exhibit 4, Section 12(a); and (iii) Equipment warranties set forth in Exhibit 6-2, executed copies of which will
be submitted at construction completion with As-Built documentation.
Final PPA Approved March 19,2018
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Aerial Photograph of the Facility
Conceptual Drawing of the System
Delivery Point
Access Point(s)
Final PPA Approved March 19,2018
Exhibit 2
Attachment A:
Facility and System Layout
See below
See below
See below
Typical access for all sites will be necessary for installation and service
of systems. This includes but is not limited to the following: roof access,
parking lot access, electrical room access, data room access.
8
Exhibit 3
Credit Information
Promptly following the execution of this Agreement, Purchaser shall supply Seller with the following credit information:
PURCHASER INFORMATION
Name: City of San Rafael I TaxID:94-6000424
Previous & Other Names: N/A I Website: www.cityofsanrafael.org
Office Address: c/o City Manager's Office, 1400 Fifth Avenue
City, State, Zip San Rafael, CA 9490 I I
Phone Number: (415) 485-3070 Fax Number: (415) 459-2242
Entity Type
I s-corp I C-Corp I Partnership I Sole Prop LLC LLP I Other
Check One: C ity
Property Address for Solar Installation: State: Zip Code: Property Owned by Applicant
,/ YES 1400 Filth Ave CA 94901 NO
Property Type Insurance Agent Name Agents Phone:
Public City I-Iall Self-insured I CJPRMA (415)485-3070 I Name of Property Owner if Not Applicant N/A
(925) 290-1543
Information Requested: Please submit the information required below via electronic format to
ci ty .manager@2 cityofsanrafael.org
Corp orate Records
0 Not Applicable
Financial Statements
0 Public Agency Records. See audit reports here: https://storage.googleapis.com/proudcity/sanrafaelcaluploads/20 18 /0 I /FY 16-17-CAFR-web.pdf
Real Estate Documents
0 Not Applicable
Seller may request you provide additional documentation to complete the credit evaluation process. Seller will notify you if additional information is required.
The above information and any information attached is furnished to Seller and its Financing Parties in connection with the Application of credit for which you may apply.
NOTICE : The Federal Equal Opportunity Act prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex,
marital status or age (provided the applicant has the capacity to enter into a binding contract); because all or part of the applicant's income derives from any public assistance
programs; or because the applicant has in go od faith exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with
th is law concerning this creditor is the Office of the Comptroller of the Currency, Customer Assistance Unit, 1301 McKinney Street, Suite 3450, I-Iouston, Texas 77010-
9050 . Seller is an equal opportunity service provider.
Title: Date:
Final PPA Approved March 19,2018
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Exhibit 4
Solar Power Purchase Agreement
General Terms and Conditions
1. Definitions and Interpretation: Unless otherwise defined or required by the context in which any term appears: (a) the
singular includes the plural and vice versa; (b) the words "herein," "hereof' and "hereunder" refer to this Agreement as a whole
and not to any particular section or subsection of this Agreement; (c) references to any agreement, document or instrument
mean such agreement, document or instrument as amended, modified, supplemented or replaced from time to time; and (d) the
words "include," "includes" and "including" mean include, includes and including "without limitation." The captions or
headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement.
2. Purchase and Sale of Electricity. Purchaser shall purchase from Seller, and Seller shall sell to Purchaser, all of the electric
energy generated by the System (the "Energy") for each Contract Year during the Initial Term and any Additional Term (as
defined in Exhibit I, and collectively the "Term"), up to 110% of Expected Contract Quantity for each Contract Year set forth
on Exhibit 2. Purchaser shall have the option, but not the obligation, to purchase the Energy in excess of 110% of the Expected
Contract Quantity. Seller will first offer any Energy beyond the 110% cap to Purchaser and, only if Purchaser does not exercise
its option to purchase all or a portion of such excess Energy, Seller shall be permitted to resell the excess Energy, provided
such sale is in accordance with all applicable laws. Energy generated by the System will be delivered to Purchaser at the
delivery point identified on Exhibit 2 (the "Delivery Point"). Purchaser shall take title to the Energy at the Delivery Point,
and risk ofloss will pass from Seller to Purchaser at the Delivery Point. Purchaser may purchase electric energy for the Facility
from other sources if Purchaser's electric requirements at the Facility exceed the Energy generated by the System. Any delivery
of Energy prior to the Commercial Operation Date shall be treated as limited amounts of test energy only and shall not indicate
that the System has been put in commercial operation, and Purchaser shall not be under obligation to pay for such test energy.
Seller shall deliver to Purchaser the Energy at the Delivery Point free and clear of all liens, security interests, claims and
encumbrances or any interest therein or thereto, by any person. For the avoidance of doubt, Seller's obligation to deliver
Energy unencumbered shall not in any way affect Seller's ability to grant a security interest in or otherwise encumber the
System in accordance with the terms of this Agreement. "Contract Year" means the twelve month period beginning at 12:00
AM on the Commercial Operation Date or on any anniversary of the Commercial Operation Date and ending at II :59 PM on
the day immediately preceding the next anniversary of the Commercial Operation Date, provided that the first Contract Year
shall begin on the Commercial Operation Date.
3. Term and Termination.
a. Initial Term. The initial term ("Initial Term") of this Agreement shall commence on the Commercial Operation
Date (as defined below) and continue for the length of time specified in Exhibit I, unless earlier terminated as provided
for in this Agreement. Following Purchaser's inspections pursuant to Section 7(c)(iii) below, the "Commercial
Operation Date" is the date Seller gives Purchaser written notice that the System is mechanically complete and
capable of providing electric energy to the Delivery Point. Such notice shall be deemed effective unless Purchaser
reasonably objects within five (5) business days of the date of receipt of such notice. Upon submittal of the notice,
Seller will give Purchaser copies of certificates of completion or similar documentation from Seller's contractor,
including signed Building Inspection card, and the interconnection or similar agreement with the entity authorized and
required under applicable law to provide electric distribution service to Purchaser at the Facility (the "Utility"), as set
forth on Exhibit 2. The notice shall also include commissioning test results. This Agreement is effective as of the
Effective Date and, subject to the provisions of Section 18 below, Purchaser's failure to enable Seller to provide the
electric energy by preventing it from installing the System or otherwise not performing under this Agreement shall
not excuse Purchaser's obligations to make payments that otherwise would have been due under this Agreement.
b. Additional Terms. Prior to the end of the Initial Term or of any applicable Additional Term, as defined below, if
Purchaser has not exercised its option to purchase the System, Purchaser may give Seller written notice of its desire
to extend this Agreement on the terms and conditions set forth herein for the number and length of additional periods
specified in Exhibit I (each such additional period, an "Additional Term"). Such notice shall be given, ifat all, not
more than three hundred sixty five (365) days and not less than ninety (90) days before the last day of the Initial Term
or the then current Additional Term, as applicable. If Purchaser delivers such notice, the Parties shall promptly meet
and confer to discuss and agree upon the (i) Expected Contract Quantity, (ii) Contract Price for Contract Years 2-5 of
the Additional Term and (iii) Termination Payment applicable for each Contract Year of such Additional Term. The
Parties agree that the Contract Price applicable during the first Contract Year of any Additional Term shall be the
Final PPA Approved March 19,2018
9
same as the Contract Price in effect during the last Contract Year of the Initial Term or prior Additional Term, as
applicable. If Seller and Purchaser successfully agree on such terms within sixty (60) days of the date such notice is
delivered by Purchaser, Purchaser and Seller shall enter into an amendment to this Agreement which shall state the
mutually agreed upon Expected Output Quantity, Contract Price and Termination Payment applicable for each
Contract Year of the Additional Term and confirm that all other terms of this Agreement shall continue unchanged in
full force and effect. If the Parties are unable to agree on such terms during such sixty (60) day period despite the
Parties good faith efforts to reach agreement, Seller shall be deemed to have rejected the offer for an Additional Term.
The Additional Term shall begin immediately upon the conclusion of the Initial Term or the then current term and this
Agreement shall terminate at the end of the Initial Term (if the same has not been extended) or the then current
Additional Term.
c. Termination.
I. Prior to Commencement of Construction. Purchaser may terminate this Agreement at any time upon written
notice prior to Seller's delivery of full notice to proceed to contractor by Seller. Upon such termination,
Purchaser shall reimburse Seller for all reasonable documented out-of-pocket costs incurred by Seller in
connection with its diligence, investigations, and the design, engineering, permitting and procurement of
materials for the System ("Design Cancellation Payment") as evidenced by the submission of engineering
and design drawings in accordance with the Milestone schedule on Exhibit 8 and other reasonable supporting
documentation; provided, if such termination occurs (A) prior to the date that System engineering and design
drawings are 50% complete, the Design Cancellation Payment shall not exceed Five Thousand and 0011 00
Dollars ($5,000), (8) prior to the date that System engineering and design drawings are 90% complete, the
Design Cancellation Payment shall not exceed Nine Thousand and 0011 00 Dollars ($9,000), and (C) prior to
the date that System engineering and design drawings are 100% complete, the Design Cancellation Payment
shall not exceed Fifteen Thousand and 00 1 100 Dollars ($15,000). Purchaser's payment to Seller of the Design
Cancellation Payment shall be Seller's sole and exclusive remedy for such termination.
ii. Following Commencement of Construction. Purchaser may terminate this Agreement at any time after
Seller's delivery offull notice to proceed to the contractor upon thirty (30) days prior written notice to Seller.
In the event of termination by Purchaser after the delivery of full notice to proceed by Seller, Purchaser shall
pay to Seller the applicable Termination Payment set forth in Exhibit 4, Attachment A, and Seller shall, at
its expense, cause the applicable System to be disconnected and removed from the Facility and remediate
and restore the Facility in accordance with Seller's obligations in Section II. Notwithstanding the foregoing,
Purchase shall not be obligated to pay the Termination Payment in the event Purchaser terminates this
Agreement due to (i) the failure of Purchaser's Conditions Precedent pursuant to Section 6(c); (ii) Seller's
Default pursuant to Section 13(b); or (iii) a Force Majeure event pursuant to Section 18(d).
4. Billing and Payment.
a. Monthly Charges. Purchaser shall pay Seller monthly for the Energy delivered to the Delivery Point at the $/kWh
rate shown in Exhibit 1 (the "Contract Price") for the current Contract Year. The first Contract Year shall start on
the Commercial Operation Date, and each succeeding Contract Year shall begin on the succeeding anniversary of the
Commercial Operation Date. The monthly payment for such Energy will be equal to the applicable $/kWh rate
multiplied by the number of kWh of Energy generated during the applicable month, as measured by the System Meter.
b. Monthly Invoices. Seller shall invoice Purchaser monthly, either manually or through ACH. Such monthly invoices
shall state (i) the amount of Energy produced by the System and delivered to the Delivery Point, (ii) the rates applicable
to, and charges incurred by, Purchaser under this Agreement and (iii) the total amount due from Purchaser. The
Contract Price includes ACH invoicing. If manual invoicing is required, a twenty five dollar ($25) handling charge
will be added to each invoice.
c. Taxes. Seller shall either payor reimburse Purchaser for any and all Taxes assessed on the generation, sale, delivery
or consumption of electric energy produced by the System or the interconnection of the System to the Utility's electric
distribution system, including property Taxes on the System; provided, however, Seller will not be required to
reimburse Purchaser or otherwise pay for (i) any Taxes during periods when Seller fails to deliver electric energy to
Purchaser as a result of Purchaser's gross negligence, willful misconduct or breach of this Agreement by Purchaser or
(ii) any Taxes which are imposed by any applicable law or regulation made effective after the Effective Date.
Notwithstanding the foregoing, Seller shall be exempt from any tax, fee, levee or other charge now or hereafter
Final PPA Approved March 19,2018
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assessed by Purchaser related to or applicable to energy use and/or sale. For purposes of this Section 4(c), "Taxes"
means any federal, state and local ad valorem, income, property, possessory interest, occupation, generation, privilege,
sales, use, consumption, excise, transaction, and other taxes, regulatory fees, surcharges or other similar charges.
d. Payment Terms. All amounts due under this Agreement shall be due and payable net thirty (30) days from receipt
of invoice. Ifpayment is not received within the thirty (30) day period, the Party to whom payment is due (a "payee")
shall send notice of past-due amount. After the payee sends such notice, any undisputed portion of the invoice amount
not paid within the following thirty (30) day period shall accrue interest at the annual rate of the prime rate plus two
percent (2%) (but not to exceed the maximum rate permitted by law).
5. Tax Credits, Environmental Attributes and Environmental Incentives.
a. Ownership of Tax Credits, Environmental Attributes and Environmental Incentives. Seller, as owner of the
energy generating equipment, is the owner of all Tax Credits and other tax attributes of ownership, and Purchaser
shall cooperate with Seller in perfecting such ownership. Seller acknowledges that Purchaser has made no statements,
representations or warranties regarding the eligibility of the System for the Tax Credits, and Seller is not relying on
any statement, representation or warranty by Purchaser or any third party with respect to the Tax Credits in entering
into this Agreement. As specified on Exhibit 1, Purchaser is the owner of all Environmental Attributes and any
applicable Environmental Incentives). Seller shall cooperate with Purchaser in obtaining, securing and transferring
all Environmental Attributes and Environmental Incentives to Purchaser. Purchaser shall not be obligated to incur
any ol,lt-of-pocket costs or expenses in connection with such actions unless reimbursed by Seller.
b. Transfer of Environmental Attributes. Throughout the Term, Seller shall transfer to Purchaser, and Purchaser shall
receive from Seller, all rights and interest in and to the Environmental Attributes and any applicable Environmental
Incentives, whether now existing or subsequently generated or acquired (other than by direct purchase from a third
party) by Seller, or that hereafter come into existence, during the Term, as a component of the Energy purchased by
Purchaser from Seller hereunder. Seller agrees to transfer and make such Environmental Attributes and any applicable
Environmental Incentives available to Purchaser immediately to the fullest extent allowed by applicable law upon
Seller's production or acquisition of such Environmental Attributes or Environmental Incentives. Seller agrees that
the Contract Price, as applicable, is the full compensation for all Environmental Attributes and any applicable
Environmental Incentives (except as otherwise agreed by the Parties).
c. No Transfer to Third Parties. Seller shall not assign, transfer, convey, encumber, sell or otherwise dispose of any
portion of the Environmental Attributes or Environmental Incentives to any person other than Purchaser.
d. Reporting. Seller shall take such actions as are reasonably necessary to ensure that the Environmental Attributes are
tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard. . During the
Term, Seller shall not report to any person that the Environmental Attributes granted hereunder to Purchaser belong
to anyone other than Purchaser, and Purchaser may report under any program that such attributes purchased hereunder
belong to it.
e. Attestation. On or shortly after the final day of each Contract Year, Seller shall document the transfer of
Environmental Attributes and any applicable Environmental IncentivesJas agreed by the Parties) to Purchaser under
this Agreement by delivering to Purchaser an attestation of Environmental Attributes and any applicable
Environmental Incentives (as agreed by the Parties) transferred under this Agreement in the preceding Contract Year.
The form of attestation is set forth as Exhibit 7, which Form of Attestation may be updated or changed by Purchaser
with Seller's prior written approval, not to be unreasonably withheld, as necessary to ensure that Purchaser receives
full and complete title to, and the ability to record with WREGIS or any successor EA Agency as its own, all of the
Environmental Attributes and any applicable Environmental Incentives (as agreed by the Parties) purchased
hereunder.
f. Documentation. At Purchaser's option, the Parties, each at their own expense, shall execute all such documents and
instruments in forms reasonably approved by the Parties in order to affect the transfer ofthe Environmental Attributes
specified in this Agreement and any applicable Environmental Incentives (as agreed by the Parties) to Purchaser or its
designees, as Purchaser may reasonably request. From and after Seller's transfer of Environmental Attributes or any
applicable Environmental Incentives (as agreed by the Parties) to Purchaser, Seller will have no obligation, risk,
liability or benefit to, from or arising out of such Environmental Attributes or as a consequence of Purchaser's
determination to keep, sell, or retire any such Environmental Attributes.
Final PPA Approved March 19,2018
II
g. Defined Terms. As used in this Section 5 the foIl owing definitions shall apply:
"EA Agency" means any Governmental Authority that has responsibility for or jurisdiction over a program involving
transferability of Environmental Attributes, including, for example, the Clean Air Markets Division of the United
States Environmental Protection Agency, the California Resources, Conservation and Development Commission, the
California Public Utilities Commission, and any successor agency thereto.
"Environmental Attributes" means any and all credits, benefits, emissions reductions, offsets, and aIlowances,
howsoever entitled, attributable to the System, the production of electrical energy from the System and its
displacement of conventional energy generation, including (a) any avoided emissions of pollutants to the air, soil or
water such as sulfur oxides (SOx), nitrogen oxides (NO x), carbon monoxide (CO) and other poIlutants; (b) any avoided
emissions of carbon dioxide (C02), methane (CH4), nitrous oxide, hydro fluorocarbons, perfluorocarbons, sulfur
hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental
Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth's
climate by trapping heat in the atmosphere; and (c) the reporting rights related to these avoided emissions, such as
Green Tag Reporting Rights and Renewable Energy Credits. Green Tag Reporting Rights are the right of a party to
report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal
or state agency or any other party, and include Green Tag Reporting Rights accruing under Section 1605(b) of The
Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bilI, and international or
foreign emissions trading program. Environmental Attributes do not include Environmental Incentives and Tax
Credits. Purchaser and SeIler shaIl file all tax returns in a manner consistent with this Section 5. Without limiting the
generality of the foregoing, Environmental Attributes include carbon trading credits, Renewable Energy Credits or
certificates, emissions reduction credits, emissions allowances, Green Tag Reporting Rights, tradeable renewable
credits and Green-e® products.
"Environmental Incentives" means any and all credits, rebates, subsidies, payments or other incentives that relate to
self-generation of electricity, the use of technology incorporated into the System, environmental benefits of using the
System, or other similar programs available from the Utility, any other regulated entity or any Governmental
Authority.
"Governmental Authority" means any national, state or local government (whether domestic or foreign), any
political subdivision thereof or any other governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity (including the Federal Energy Regulatory Commission or
the California Public Utilities Commission), or any arbitrator with authority to bind a party at law.
"Tax Credits" means any and all (a) investment tax credits, (b) production tax credits and (c) similar tax credits or
grants under federal, state or local law relating to the construction, ownership or production of energy from the System.
"WREGIS" means the Western Renewable Energy Generation Information System or any successor renewable
energy tracking program.
6. Conditions to Obligations.
a. Conditions to Seller's Obligations. SeIler's obligations under this Agreement, to the extent first accruing and arising
from and after the applicable Condition Satisfaction Date and the expiration of the time periods set forth in Section
6(c) below, are conditioned on the completion of the following conditions (collectively "Seller's Conditions
Precedent") to Seller's reasonable satisfaction on or before the date specified below (each a "Condition Satisfaction
Date"):
On or before the date that is sixty (60) days following the Effective Date:
1. Completion of physical inspections of the Facility and the property upon which the Facility is located (the
"Premises") including, if applicable, geotechnical work, title review, inspections of electrical systems and
infrastructure, and other real estate due diligence to confirm the suitability of the Facility and the Premises
for the System;
11. Receipt of an executed financing commitment for the construction of the System from a Financing Party
("Financing Term Sheet");
Final PPA Approved March 19,2018
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111. Approval of (A) this Agreement and (8) the Construction Agreement for the System by Seller's Financing
Parties. "Construction Agreement" as used in this subsection means an agreement between Seller and any
contractor or subcontractor to install the System;
On or before the date that is one hundred eighty (180) days following the Effective Date:
iv. Receipt of all necessary zoning, land use and building permits necessary to construct and operate the System;
including without limitation, receipt of Purchaser's notice to proceed under CEQA (as defined below)
pursuant to Section 6(b)(iv) below and a fully executed CEQA Cost Sharing Agreement (as defined below)
if applicable;
v. Execution of all necessary agreements with the Utility for interconnection of the System to Facility electrical
system and/or the Utility's electric distribution system; and
vi. Prior to Seller commencing construction and installation of the System, Seller shall have received (A) proof
of insurance for all insurance required to be maintained by Purchaser under this Agreement, and (8) written
confirmation in recordable form acceptable to Seller and SeHer's Financing Parties from any person or entity
holding a mortgage, lien or other encumbrance over the Premises or the Facility, as applicable, that such
person will recognize Seller's rights under this Agreement for as long Seller is not in default hereunder.
The Seller's Conditions Precedent set forth in this Section 6(a) are solely for the benefit of SeHer and may only be
waived or deemed satisfied by Seller in Seller's sole but reasonable discretion.
b. Conditions to Purchaser's Oblie,ations . Purchaser's obligations under this Agreement, to the extent first accruing
and arising from and after the applicable Condition Satisfaction Date and the expiration of the time periods set forth
in Section 6(c) below, are conditioned on the completion of the following conditions (collectively, the "Purchaser's
Conditions Precedent") to Purchaser's reasonable satisfaction on or before the date specified below (each, a
"Condition Satisfaction Date"):
Purchaser's obligations under Section 4(a) of this Agreement are conditioned upon the following:
i. The occurrence of the Commercial Operation Date on or before the Anticipated Commercial Operation Date
set forth on Exhibit 1;
Purchaser's obligations under this Agreement other than under Section 4(a) of this Agreement are conditioned upon
the following occurring on or before the date that is one hundred eighty (180) days following the Effective Date:
ii. Purchaser shall have received a copy of the Financing Term Sheet;
iii. Purchaser shall have received proof of insurance for all insurance required to be maintained by Seller under
this Agreement;
IV. Purchaser shall be in compliance with the California Environmental Quality Act ("CEQA"), Pub. Res. Code
§ 21000 el seq. to Purchaser's reasonable satisfaction. Seller shall not have any right to instaH the System
until Purchaser has fuHy complied with CEQA, issued a statement to Seller attesting to the fact that Purchaser
has fully complied with CEQA as it relates to the System, and issued a notice to proceed to Seller. Purchaser
expects to satisfy the CEQA requirements with a Notice of Exemption for each project. If Purchaser, in its
discretion, determines that a mitigated negative declaration ("MND") or environmental impact report
("EIR") is required to comply with CEQA, then Purchaser shall, within thirty (30) days of such
determination, provide SeHer with a written statement detailing the reasons that Purchaser believes that MND
or EIR is required to comply with CEQA, the estimated cost to comply with CEQA for the System, and a
statement that it will or will not pay for the estimated cost to comply with CEQA for the applicable System.
If Purchaser declines to pay for all of the estimated costs to comply with CEQA, Purchaser may negotiate
with Seller to share such costs and any agreement reached by the Parties to share such cost shall be in writing,
duly executed by the Parties (a "CEQA Cost Sharing Agreement"); and
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v. Purchaser's reasonable approval of the Construction Agreement; provided, Purchaser may only withhold its
approval of the Construction Agreement if the terms and conditions of the Construction Agreement directly
conflict with the terms and conditions of this Agreement.
The conditions precedent set forth in this Section 6(b) are solely for the benefit of Purchaser and may only be waived
or deemed satisfied by Purchaser in Purchaser's sole but reasonable discretion.
c. Failure of Conditions. If any of the conditions set forth in Section 6(a) or Section 6(b) are not waived or deemed
satisfied by the Party benefited by such condition on or before the applicable Conditions Satisfaction Date, the Parties
will meet and confer in good faith to negotiate an extension of the applicable Conditions Satisfaction Date; with each
Party agreeing that it will not unreasonably withhold its approval of a proposed extension requested by the other
Party. If the Parties are unable to agree upon the extension of any Conditions Satisfaction Date within twenty (20)
days following the expiration of the applicable Conditions Satisfaction Date despite their good faith efforts, then the
Party benefited by the condition that has not been satisfied or waived by the applicable Conditions Satisfaction Date
may terminate this Agreement upon ten (10) days written notice to the other Party without liability for costs or damages
or triggering a default under this Agreement other than as set forth below. For the avoidance of doubt, if Purchaser
terminates the Agreement pursuant to the terms of this Section 6(c), no Termination Payment or Design Cancellation
Payment shall be payable by Purchaser hereunder. Each Party hereby covenants and agrees to use commercially
reasonably and diligent efforts to cause the conditions precedent to such Party's obligations to be satisfied prior to
applicable Conditions Satisfaction Date specified.
7. Seller's Rights and Obligations.
a. Generally. Seller shall develop, construct, finance, own, maintain and operate the System in accordance with this
Agreement, all requirements of applicable law, all permits and governmental approvals, the Current Utility Tariff
and/or Proposed Utility Tariff, as applicable, and Prudent Industry Practice. "Prudent Industry Practice" means
those practices, methods and equipment, as changed from time to time, that: (i) when engaged in, or employed, are
commonly used in the State of California in prudent electrical engineering, construction and operations to operate
electricity equipment lawfully and with safety, reliability, efficiency and expedition; or (ii) in the exercise of
reasonable judgment considering the facts known, when engaged in could have been expected to achieve the desired
result consistent with applicable law, safety, reliability, efficiency, and expedition. Prudent Industry Practices are not
limited to an optimum practice, method, selection of equipment or act, but rather are a range of acceptable practices,
methods, selections of equipment or acts.
b. Permits and Approvals. Seller, with Purchaser's reasonable cooperation, shall use commercially reasonable efforts
to obtain, maintain, comply with and, as necessary, renew and modify from time to time, at its sole cost and expense:
i. any zoning, land use and building permits required to construct, install and operate the System; and
ii. any agreements and approvals from the Utility necessary in order to interconnect the System to the Facility
electrical system and/or the Utility's electric distribution system.
c. Engineering and Construction Requirements. All elements of design, engineering and construction of the System
are Seller's responsibility. Seller shall design, engineer and construct the System in accordance with the engineering
and construction requirements set forth on Exhibit 6-1 hereto (the "E ngineering and Construction Requirements")
and time lines for milestones set forth on Exhibit 8 (the "Milestones").
i. Design Acceptance. By the applicable Milestone date set forth on Exhibit 8, Seller shall provide Purchaser
with a complete design and engineering plan, including blueprints, plans, engineering drawings,
specifications and structural reports for the System (the "Design Plans") for Purchaser's review. Within
thirty (30) days of receiving such plans, Purchaser shall provide Seller with (i) a letter accepting Seller's
proposed Design Plans for the System, or (ii) a report explaining why the System cannot meet the structural
support and weight standards that Purchaser provided to Seller; provided that if Seller does not receive a
letter or a report within such thirty (30) day period, Purchaser shall be deemed to have accepted Seller's
proposed Design Plans. If Purchaser delivers to Seller the report described in clause (ii) above, Seller shall
revise the Design Plans so that the System meets the structural support and weigh standards of the Facility
and resubmit the Design Plans to Purchaser for approval within thirty (30) days of receipt of such report.
Such resubmission shall restart the Design Plan acceptance process pursuant to this Section 7(c)(i); provided,
Final PPA Approved March 19 ,2018
14
Purchaser shall provide Seller with a letter accepting Seller's revised Design Plans for the System, or a report
explaining why the System cannot meet the structural support and weight standards provided by Purchaser
within fifteen (15) days of Seller's resubmittal. Notwithstanding the foregoing, Seller shall not be permitted
to commence construction of the System until it has received a notice to proceed from Purchaser in
accordance with Section 6(b)(iii).
11. Milestones. Seller shall diligently pursue completion of all Milestones by the required dates set forth on
Exhibit 8. The Parties agree that time is of the essence in connection with the completion of the System, and
that Milestones for the development, financing and construction of the System must be achieved in a timely
fashion. Upon becoming aware that Seller will, or is reasonably likely to, fail to achieve one or more
Milestone(s) by the required date, for any reason including a Force Majeure Event, Seller shall so notity
Purchaser in writing immediately. Such notice shall explain the cause of the delay, provide an updated date
for achievement ofthe Milestone(s), and describe Seller's plan for meeting such Milestone(s). Seller's notice
will also explain any impact such delay may have on any other Milestone, and the measures to be taken to
mitigate such impact.
iii. Mechanical Completion and Substantial Completion. Seller shall notity Purchaser when full notice to
proceed is issued to the contractor. Seller shall provide Purchaser with a copy of any certificate of mechanical
completion or certificate of substantial completion from the contractor promptly following receipt thereof.
Upon receipt of such certificate, Purchaser shall schedule an inspection of the System for a date, mutually
agreeable to Seller and Purchaser, which is within ten (10) business days following Purchaser's receipt of the
certificate of substantial completion or mechanical completion for the System. Following Purchaser's
inspection ofthe System, Purchaser may, within five (5) business days of the inspection, prepare and provide
to Seller a list of any observed defects or deficiencies in the construction work or discrepancies between
installed equipment and workmanship and this Agreement or the Construction Agreement. If Seller disputes
any items on Purchaser's list, the Parties shall promptly meet and confer in a good faith effort to resolve any
such disputes. Seller shall be responsible for completion, correction, or otherwise addressing issues identified
by Purchaser, and shall provide a written response to Purchaser setting forth the actions taken in response to
such items or explaining why no action is necessary. If requested by Purchaser, Seller shall schedule and
arrange a follow-up inspection for Purchaser and Seller after all items on Purchaser's list are resolved. For
the avoidance of doubt, such items shall be corrected without cost to Purchaser. All items identified by
Purchaser, except those items specifically excepted by mutual agreement between Purchaser and Seller, shall
be completed before Seller accepts the certificate of mechanical completion or certificate of substantial
completion, as applicable.
iv. Reporting. Seller shall provide bi-weekly (i.e. every other week) reports to Purchaser detailing the status of
the design, engineering and construction of the System and Seller's progress in achieving the Milestones.
Following the completion ofthe construction of the System, Seller shall deliver Purchaser a copy of As-Built
drawings and copies of all executed warranties relating to the System. Seller will create, maintain and provide
to Purchaser minutes of meetings between the representatives of Seller and Purchaser during the design,
engineering and construction phase of the System. "As-Built" shall mean final record drawings based on
redlines from the field reflecting the System as constructed.
v. Force Majeure Event. In the event that a Force Majeure event causes any delay in the achievement of a
Milestone by the date set forth in Exhibit 8, such Milestone's deadline shall be extended, together with any
Force Majeure event extensions for other Milestones, for a period not to exceed twelve (12) months in the
aggregate. The extension of the deadline for any Milestone shall extend the deadline for all subsequent
Milestones, provided that in no event shall the combined extensions for Force Majeure events for any or all
ofthe Milestones exceed twelve (12) months. In the event the combined extensions for Force Majeure events
for any or all Milestones exceeds twelve (12) months (but not prior to such time), Purchaser shall be permitted
to exercise its rights pursuant to Section 18( d).
vi. Waiver of Right. Purchaser may, at its discretion, grant extensions for Milestones or waivers for Seller's
failure to meet any of the Milestones, but in no way shall any such extension or waiver constitute a waiver
of any future failures by Seller to meet other Milestones. For the avoidance of doubt, Purchaser's consent to
extensions of the Milestones pursuant to Section 7(c)(v) shall not be required.
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d. Standard System Repair and Maintenance; Repair of Facility. Seller shall construct and install the System at the
Facility . During the Tenn, Seller will operate and perfonn all routine and emergency repairs to (including replacement
ot), and maintenance of, the System at its sole cost and expense, except for any repairs or maintenance resulting from
the negligence, willful misconduct or breach of this Agreement by Purchaser, its employees, agents, contractors (other
than Seller or Seller's contractors and subcontractors) or consultants (together with Purchaser, collectively, the
"Purchaser Parties" and individually, a "Purchaser Party"). If the System is damaged or destroyed other than by
the negligence or willful misconduct of any Purchaser Party, Seller shall promptly repair and restore the System to its
pre-existing condition, subject to the provisions of this Section 7(d) and Section 15(a) below. The cost to repair,
replace or restore any portion of the System due to the negligence or willful misconduct or breach of this Agreement
by any Purchaser Party shall be paid by Purchaser. Seller and Purchaser shall use commercially reasonable efforts to
coordinate scheduling of regular maintenance to minimize impacts to Facility operations and maximize System output
of Energy during the months of May through October. Seller shall not be responsible for any work done by others on
any part of the System unless Seller authorizes that work in advance in writing. Seller shall not be responsible for any
loss, damage, cost or expense arising out of or resulting from improper environmental controls or improper operation
or maintenance of the System by anyone other than Seller or Seller's contractors. If the System requires repairs for
which Purchaser is responsible, Seller shall cause its contractor prepare a written estimate of the cost to make such
repairs or replacements, calculated using standard market rates, and such repairs and replacements shall be made by
Seller's contractor at Purchaser's sole cost and expense. If, based on the estimated cost of such replacement or repairs,
Purchaser does not wish to have the System repaired or replaced, Purchaser may elect to tenninate this Agreement
pursuant to Section 3(c). Seller and any Financing Party may nullify such tennination notice by written notice to
Purchaser delivered on or before the expiration of such thirty (30) day period stating that Seller or the Financing Party
has elected to pay for the cost of such replacement or repairs in excess of any insurance proceeds available from any
insurance policy issued to Purchaser (which for purposes of clarification does not include Purchaser's self-insurance
pool) by a third party insurance carrier (such carrier, a "Third Party Insurance Carrier" and such policy, a "Third
Party Insurance Policy") which covers such loss or damage. Seller shall provide Purchaser with reasonable notice
prior to accessing the Facility to make standard repairs. Seller shall promptly notify Purchaser of any matters of which
it is aware pertaining to any damage to or loss of use of the System or that could reasonably be expected to adversely
affect the System . Purchaser shall cooperate with Seller in good faith to cause proceeds from any Third Party
Insurance Policy to be available to cover the cost of repairs to the System for which Purchaser is responsible to the
extent such loss or damage is covered under the tenns and conditions of such Third Party Insurance Policy.
e. Breakdown Notice. Seller shall notify Purchaser as soon as practicable and in any event within twenty-four (24)
hours following Seller's discovery of (i) any material malfunction in the operation of the System or (ii) an interruption
in the supply of electrical energy from the System . Purchaser and Seller shall each designate personnel and establish
procedures such that each Party may provide notice of such conditions requiring Seller's repair or alteration at all
times, twenty-four (24) hours per day, including weekends and holidays.
f. Suspension. Notwithstanding anything to the contrary herein, Seller shall, for a total of forty-eight (48) daylight
hours per calendar year during the Tenn, be entitled to suspend delivery of electricity from the System to the Delivery
Point for the purpose of maintaining and repairing the System and such suspension of service shall not constitute a
breach of this Agreement; provided, that Seller shall use commercially reasonable efforts to minimize any interruption
in service to Purchaser. Purchaser shall not be obligated to pay for lost energy production due to (a) Seller system
maintenance or repair pursuant to Section 7(d), unless such maintenance and repair is necessitated due to damage
caused by the negligence, willful misconduct or breach of this Agreement by any Purchaser Party or (b) a Purchaser
Scheduled Outage pursuant to Section 8(e) unless and except to the extent a Purchaser Scheduled Outage exceeds a
total of forty-eight (48) daylight hours per calendar year (other than due to a Force Majeure event); provided, that
Seller must notify Purchaser of any scheduled suspension at least forty-eight (48) hours in advance of the
commencement of such scheduled suspension. In the event that suspensions exceed a total of forty-eight (48) daylight
hours per calendar year for a reason other than a Force Majeure event or Purchaser's breach of this Agreement, Seller
shall reasonably estimate the amount of electricity that would have been delivered to Purchaser during such excess
suspensions and shall pay Purchaser an amount equal to the sum of the net present value (using a discount rate of eight
percent (8%)) of the excess, if any, of the reasonably expected cost of electric energy from the Utility (after taking
into consideration adjustments for time of use) over the Contract Price for the reasonably expected production of the
System during such excess suspensions and the payment of such amount by Seller to Purchaser shall be Purchaser's
sole and exclusive remedy for such interruption .
g. Use of Contractors and Subcontractors. Seller shall be pennitted to use contractors and subcontractors to perform
its obligations under this Agreement, provided however, that such contractors and subcontractors shall be duly
Final PPA Approved March 19,2018
16
licensed and shall provide any work in accordance with applicable industry standards. Notwithstanding the foregoing,
Seller shall continue to be responsible for the quality of the work performed by its contractors and subcontractors and
shall require all contracts with all contractors and subcontractors to contain a provision requiring compliance by such
contractor or subcontractor with this Agreement and naming Purchaser as a third party beneficiary (though Purchaser
assumes no responsibility whatsoever concerning compensation or any other responsibility or liability to contractors
or subcontractors). A list of pre-approved contractors and subcontractors to be used for construction of the System
shall be scheduled on Exhibit 4, Attachment B. All contractors and subcontractors to be used for the construction
of the System, other than those that may be scheduled on Exhibit 4, Attachment B, shall be subject to Purchaser's
prior written consent, not to be unreasonably withheld.
h. Liens and Payment of Contractors and Suppliers. Seller shall not directly or indirectly cause, create, include,
assume or allow to exist any mortgage, pledge, lien, charge, security interest, encumbrance or other claim of any
nature on or with respect to the Facility, the Premises or any interest therein; provided, Seller shall be entitled to
finance the System and assign its interest under this Agreement and the License granted hereunder pursuant to Section
12 below. Seller shall pay when due all valid charges from all contractors, subcontractors and suppliers supplying
goods or services to Seller under this Agreement and shall keep the Facility free and clear of any liens related to such
charges, except for those liens which Seller is permitted by law to place on the Facility following non-payment by
Purchaser of amounts due under this Agreement. Seller shall promptly notify Purchaser in writing ofthe existence of
any lien and promptly cause the same (other than Seller's liens for non-payment by Purchaser) to be discharged and
released of record without cost to Purchaser. Seller shall indemnify Purchaser for all claims, losses, damages,
liabilities and expenses resulting from any such liens filed against the Facility or the Premises; provided, however,
that Seller shall have the right to contest any such lien, so long as it provides a statutory bond or other reasonable
assurances of payment that either remove such lien from title to the Facility and the Premises or that assure that any
adverse judgment with respect to such lien will be paid without affecting title to the Facility and the Premises.
i. OSHA Compliance. Seller shall ensure that all Occupational Safety and Health Act ("OSHA") requirements and
other similar applicable safety laws or codes are adhered to in its performance under this Agreement.
j. Security. Seller shall be responsible for using commercially reasonable efforts to maintain the physical security of
the System against known risks and risks that should have been known by Seller. Seller will not conduct activities
on, in or about the System that have a reasonable likelihood of causing damage, impairment or otherwise adversely
affecting the Facility or the Premises.
k. Records . Seller shall maintain any and all documents and records which demonstrate performance under this
Agreement, and all ledgers, books of account, invoices, vouchers, cancelled checks, and other documents evidencing
or relating to charges for services, or expenditures and disbursements charged to Purchaser for a minimum period of
five (5) years, or for any longer period required by law, from the date of final payment to Seller pursuant to this
Agreement. Any documents required to be maintained pursuant to this Agreement shall be made available for
inspection or audit at any time during regular business hours, upon five (5) days prior written request by a designated
representative of Purchaser. Seller shall not charge Purchaser for Purchaser's inspection of records; provided,
Purchaser shall pay any copying or other reproduction costs and for the cost of any audit made at Purchaser's election.
Seller shall provide copies of such documents to Purchaser for inspection at Seller's office or at such place as Seller
maintains such records at a time that is mutually acceptable to Purchaser and Seller. Where Purchaser has reason to
believe that any of Seller's documents relating to this Agreement may be lost or discarded due to dissolution,
disbandment or termination of Seller's business, Purchaser may, by written request by any of the above-named
officers, require that custody of Seller's documents be given to Purchaser. Seller shall comply with Purchaser's
reasonable written request.
I. Contractor's Warranties; Cooperation. Subject to the Financing Party's rights pursuant to Section 19 below, if
Seller fails to replace or repair the System as required pursuant to Section 7(d) above, and such failure continues for
more than thirty (30) days following Purchaser's written notice to Seller, Purchaser shall have the right, at Seller's
cost and expense, to enforce the terms and conditions of any warranty issued to Seller in connection with the System
and Seller shall take all reasonable action necessary to enable Purchaser to enforce the terms and conditions of such
warranties. Seller shall cause Purchaser to be named as an express third party beneficiary to any warranty provision
pertaining to the System contained in any contract between Seller and its general contractor. Seller shall use
commercially reasonable efforts to cause Purchaser to be named as an express third party beneficiary to any warranty
provision pertaining to the System contained in any contract with any other subcontractor or material supplier. Seller
shall, and shall cause its contractors and subcontractors to, work with Purchaser's existing roofing contractors and
Final PPA Approved March 19,2018
17
manufacturers to ensure original roof warranties, if applicable, stay in effect while the System is installed and
operating. The Parties acknowledge that cooperation by Purchaser's existing roofing contractors will be required to
maintain original roof warranties. Should existing roofing contractors be unwilling to maintain original roof
warranties, Seller will inform Purchaser of such fact in writing, and Purchaser will advise Seller on how to proceed.
m. Energy Delivery. Beginning on the Commercial Operation Date, the System shaIl produce not less than ninety
percent (90%) of the applicable Expected Contract Quantity for any given Contract Year as adjusted for Abnormal
Weather Conditions, measured on a roIling, three (3) year cumulative basis, unless, and then only to the extent that,
the failure to satisfy the Expected Contract Quantity for a given Contract Year is due to (a) Facility failure, damage
or downtime attributable to third parties (other than SeIler's contractors and subcontractors); (b) general utility outages
or any failure of an applicable electric grid; (c) a Force Majeure Event; or (d) Purchaser's failure to satisfy its
obligations hereunder. "Abnormal Weather Conditions" shall mean weather conditions which were abnormal for the
period of time and could not have been reasonably anticipated, as substantiated with documentation including U. S.
Weather Bureau Climatological Reports for the months involved plus a report indicating the average precipitation,
temperature, etc., for the past ten (10) years from the nearest reporting station, which such ten-year average will be the
basis for determining the number of adverse weather days that could have been reasonably and normaIly anticipated by
Seller. Subject to the terms and conditions ofthis Agreement, beginning within sixty (60) days of the third anniversary
of the Commercial Operation Date and for every Contract Year thereafter, if the delivered Energy of such System for
the three (3) year period prior to such anniversary does not equal or exceed ninety percent (90%) of the Expected
Contract Quantity for such three (3) year period, SeIler will credit Purchaser on its net invoice, an amount equal to the
product of (i) the positive difference, if any, of the average price per kWh for the current Utility rate schedule (after
taking into consideration adjustments for time of use) during such three (3) year period minus the Contract Price
hereunder, multiplied by (ii) the difference between the Energy for such three (3) year period and ninety percent (90%)
of the Expected Contract Quantity for such three (3) year period, less any credit previously given covering the same
period. This performance guarantee shall remain in place for twenty (20) years from the Commercial Operation Date.
i. Limitations. Pursuant to this Section 7(m), the Parties recognize and agree that (a) payment or credit of
amounts by Seller to Purchaser is an appropriate remedy, (b) that the amount credited or paid in any year
shall not exceed an amount equal to Twenty Five Dollars ($25.00) per DC kW of System size (the
"Production Guaranty Cap"), (c) any such payment or credit does not constitute a forfeiture or penalty of
any kind, but rather constitutes anticipated costs of Purchaser under the terms of this Agreement, and (d) that
such amounts shall be Purchaser's sole and exclusive remedy for any performance guarantee claim arising
out of this Agreement. At the commencement of the first anniversary of the Commercial Operation Date and
at the commencement of each Contract Year thereafter, the Production Guaranty Cap shall be increased by
an amount equal to three percent (3%) of the Production Guaranty Cap in effect for the prior Contract Year.
8. Purchaser's Rights and Obligations.
a. License to the Premises; Facility Access Rights. Subject to Section 8(a)(i) below, during the License Term,
Purchaser grants to Seller and to Seller's agents, employees, contractors and assignees an irrevocable non-exclusive
license running with the Premises (the "License") for access to, on, over, under and across the Premises for the
purposes of (i) instaIling, constructing, operating, owning, maintaining, accessing, removing and replacing the System
and conducting inspections and studies related thereto; (ii) performing all of Seller's obligations and enforcing all of
Seller's rights set forth in this Agreement; and (iii) installing, using and maintaining electric lines and equipment,
including inverters and meters necessary to interconnect the System to Purchaser's electric system at the Facility, to
the Utility's electric distribution system, if any, or for any other purpose that may from time to time be useful or
necessary in connection with the construction, instaIlation, operation, maintenance or repair of the System.
i. Construction License. During the Construction License Term, Purchaser grants Seller and Seller's
contractors and subcontractors a non-exclusive license to use an area of the Premises to be designated by the
Purchaser and reasonably acceptable to Seller exclusively as a laydown and construction staging area and for
temporary storage (the "Construction License"). Notwithstanding Purchaser's grant of the License, all of
Seller's construction-related activities must be confined to the area granted in the Construction License.
Purchaser shall have no liability whatsoever in connection with property or equipment located in the area of
the Construction License, excluding damage caused by the gross negligence or intentional misconduct of any
Purchaser Party, and Seller shall indemnify Purchaser for any and all claims arising from the maintenance of
such property or equipment; provided, SeIler shall not be obligated to indemnify Purchaser for any loss,
liability or claims arising out of the gross negligence or intentional misconduct of any Purchaser Party.
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ii. License Terms. The tenn of the License shall continue until the date that is one hundred and eighty (180)
days following the date of expiration or tennination of this Agreement (the "License Term"). The tenn of
the Construction License shall continue until the date that is the final completion date pursuant to the tenns
of the Construction Agreement (the "Construction License Term"). During the License Tenn and the
Construction License Tenn, Purchaser shall ensure that Seller's rights under the License and the Construction
License, as applicable, and Seller's access to the Premises and the Facility are preserved and protected.
Purchaser shall not interfere with nor shall penn it any third parties to interfere with such rights or access.
111. Parking Interference. Notwithstanding Seller's rights under the License and the Construction License,
Seller shall not be pennitted to occupy any portion of the Premises in a manner that would cause one or more
parking spaces to be unavailable for use without the prior written consent of Purchaser, which shall not be
unreasonably withheld.
IV. Notice of Entry. Seller shall notify Purchaser prior to entering the Facility except in situations where there
is imminent risk of damage to persons or property.
v. Memorandum . Seller may, at its sole cost and expense, record such memorandum of License in the fonn
of Exhibit 5 or other fonn agreed by the Parties with the appropriate land registry or recorder's office.
b. OSHA Compliance. Purchaser shall ensure that all OSHA requirements and other similar applicable safety laws or
codes are adhered to in its perfonnance under this Agreement.
c. Maintenance of Facility; System. Purchaser shall, at its sole cost and expense, maintain the Facility in good
condition and repair; except for any repairs or maintenance resulting from the negligence, willful misconduct or breach
of this Agreement by Seller, its employees, agents, contractors or consultants (together with Seller, collectively, the
"Seller Parties" and individually, a "Seller Party"). If the Facility is damaged or destroyed by casualty of any kind
or any other occurrence other than the negligence or willful misconduct of any Seller Party, such that the operation of
the System and/or Purchaser's ability to accept the electric energy produced by the System are impaired or prevented,
Purchaser shall promptly repair and restore the Facility to its pre-existing condition, subject to the provisions of
Section 15(b). The cost to repair or replace any portion of the Facility due to the negligence or willful misconduct or
breach of this Agreement by any Seller Party shall be paid by Seller. Purchaser shall not be responsible for any work
done by others on any part of the Facility unless Purchaser authorizes that work in advance. Purchaser will use
commercially reasonable efforts to ensure that the Facility remains interconnected to the local utility grid at all times
and will not intentionally penn it cessation of electric service to the Facility from the local utility, except during
operational testing of back-up systems, not to exceed an aggregate of three (3) days in any Contract Year. Purchaser
is fully responsible for the maintenance and repair of the Facility's electrical system and of all of Purchaser's
equipment that utilizes the System's outputs, except to the extent required as a result of damage caused by the
negligence, intentional misconduct or breach of this Agreement by any Seller Party. Purchaser shall promptly notify
Seller of any matters of which it is aware pertaining to any damage to or loss of use of the System or that could
reasonably be expected to adversely affect the System. Nothing in this Section shall remove Seller's obligation to
maintain all locations of physical attachment between Systems and their applicable Facilities, such as roof
penetrations, parking lot posts , etc. Seller shall be responsible to pay for the cost of any replacement or repair to the
Facility required due to any damage to the Facility caused by the negligence , willful misconduct or breach of this
Agreement by any Seller Party.
d. No Alteration of Facility. If Purchaser wishes to make any alterations or repairs to the Facility that could adversely
affect the operation and maintenance of the System, Purchaser shall give prior written notice to Seller, setting forth
the work to be undertaken (except for emergency repairs, for which notice may be given by telephone), and give Seller
the opportunity to advise Purchaser in making such alterations or repairs in a manner that avoids damage to the System
and interference with System operations. To the extent that temporary disconnection or removal of the System or
interference with the operation of the System is necessary to perfonn such alterations or repairs, (i) any such
disconnection, removal or other alteration of the System shall be completed by Seller's contractors or contractors
approved in advance in writing by Seller, in accordance with a procedure and schedule approved in advance in writing
by Seller and Purchaser at Purchaser's sole cost and expense, (ii) to the extent the outage results in Purchaser exceeding
its pennitted Scheduled Outages pursuant to Section 8(e) below, Seller shall reasonably estimate the amount of
electricity that would have been delivered to Purchaser during such excess Scheduled Outages and shall invoice
Purchaser for such amount in accordance with Section 4, and (iii) such work and any replacement of the System after
completion of Purchaser's alterations and repairs, shall be done by Seller or its contractors at Purchaser's cost. All of
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Purchaser's alterations and repairs will be done in a good and workmanlike manner and in compliance with all
applicable laws, codes and permits. Purchaser shall be responsible to pay for the cost of any replacement or repair to
the System required due to any damage to the System caused by the negligence, willful misconduct or breach of this
Agreement any Purchaser Party. In performing its obligations under this Section 8(d), Seller shall use commercially
reasonable efforts to incur costs reimbursable by Purchaser at standard market rates; provided, that Seller's
reimbursable costs incurred in connection with the removal and replacement of the System shall not exceed an amount
equal to Four Hundred and Twenty Dollars ($420) per kW, as adjusted for inflation on the first day of each Contract
Year by the Consumer Price Index for All Urban Consumers (CP[-U) for the San Francisco area published by the
Bureau of Labor Statistics. For purposes of clarification, Purchaser shall be responsible for all improvements,
upgrades or repairs to the Facility, and Seller shall have no obligation to perform or pay for any improvements,
upgrades or repairs to the Facility, except for any repairs resulting from the negligence, willfu[ misconduct or breach
of this Agreement by a Seller Party.
e. Outages. Purchaser shall be permitted to be off [ine for a total offorty-eight (48) daylight hours (each, a "Scheduled
Outage") per calendar year during the Term, during which days Purchaser shall not be obligated to accept or pay for
electricity from the System; provided, however, that Purchaser must notify Seller in writing of each such Scheduled
Outage at [east forty-eight (48) hours in advance of the commencement of a Scheduled Outage. [n the event that
Scheduled Outages exceed a total offorty-eight (48) daylight hours per calendar year or there are unscheduled outages
caused or initiated by any Purchaser Party or necessitated due to damage to the Facility or the System for which
Purchaser is responsible pursuant to this Agreement, in each case for a reason other than a Force Majeure event, Seller
shall reasonably estimate the amount of electricity that would have been delivered to Purchaser during such excess
Scheduled Outages or unscheduled outages and shall invoice Purchaser for such amount in accordance with Section
1.
f. Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or allow to exist any mortgage, pledge,
lien, charge, security interest, encumbrance or other claim of any nature on or with respect to the System or any interest
therein. Purchaser shall promptly notify Seller in writing of the existence of any such mortgage, pledge, lien, charge,
security interest, encumbrance or other claim, and shall promptly cause the same to be discharged and released of
record without expense to Seller or any Financing Party. Notwithstanding anything else herein to the contrary,
pursuant to Section 19(a), Seller may grant a lien on the System and may assign, mortgage, pledge or otherwise
collaterally assign its interests in this Agreement and the System to any Financing Party, but no Financing Party lien
may be placed on the Facility or the Premises of Purchaser.
g. Security. Purchaser shall be responsible for using commercially reasonable efforts to maintain the physical security
of the Facility against known risks and risks that should have been known by Purchaser. Purchaser will not conduct
activities on, in or about the Premises or the Facility that have a reasonable likelihood of causing damage, impairment
or otherwise adversely affecting the System, with the exception of activities that are regularly conducted as part of the
Facility's normal operations.
h. Insolation. Purchaser understands that unobstructed access to sunlight ("Insolation") is essential to Seller's
performance of its obligations and a material term of this Agreement. Purchaser shall not in any way intentionally
cause and, where reasonably possible, shall not in any way permit any material interference with the System's
[nsolation. [f Purchaser becomes aware of any activity or condition that could materially diminish the [nsolation of
the System, Purchaser shall promptly notify Seller and shall reasonably cooperate with Seller in attempting to preserve
the System's existing [nsolation levels. Encroachment upon [nsolation due to acknowledged pre-existing conditions,
or due to privately-owned development or growth outside Purchaser's control, are not subject to Purchaser's
obligations pursuant to this Section 8(h). Upon Seller's written request, Purchaser will reasonably cooperate with
Seller, at no expense to Purchaser, to secure a solar easement from a third party for the Premises to prevent other
buildings, structures or flora from overshadowing or otherwise blocking access of the sunlight to the System.
i. Data Line. Purchaser shall provide Seller access to a high speed internet data line during the Term to enable Seller
to record the electric energy generated by the System. Seller is responsible for providing all means of connection to
the identified high speed internet data line, including boring, conduit, and wire, as applicable. If Purchaser fails to
provide access to such high speed internet data line, Seller may install and operate a cellular modem communications
device to acquire the necessary production data at Purchaser's expense.
j. Breakdown Notice. Purchaser shall make reasonable attempts to notify Seller within twenty-four (24) hours
following the discovery by it of (i) any material malfunction in the operation of the System; or (ii) any occurrences
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that could reasonably be expected to materially and adversely affect the System. Purchaser shall notify Seller as soon
as possible upon the discovery of an emergency condition respecting the System. Purchaser and Seller shall each
designate personnel and establish procedures such that each Party may provide notice of such conditions requiring
Seller's repair or alteration at all times, twenty-four (24) hours per day, including weekends and holidays.
9. Change in Law.
"Change in Law" means (i) the enactment, adoption, promulgation, modification or repeal after the Effective Date of any
applicable law or regulation; (ii) the imposition of any material conditions on the issuance or renewal of any applicable permit
after the Effective Date ofthis Agreement (notwithstanding the general requirements contained in any applicable Permit at the
time of application or issue to comply with future laws, ordinances, codes, rules, regulations or similar legislation), or (iii) a
change in any utility rate schedule or tariff approved by any Governmental Authority which in the case of any of (i), (ii) or (iii),
establishes requirements affecting owning, supplying, constructing, installing, operating or maintaining the System, or other
performance of the Parties' obligations hereunder and which has a material adverse effect on the cost to Seller of performing
such obligations; provided, that a change in federal, state, county or any other tax law after the Effective Date of this Agreement
shall not be a Change in Law pursuant to this Agreement.
If any Change in Law occurs that has a material adverse effect on the cost to Seller of performing its obligations under this
Agreement, then the Parties shall, within thirty (30) days following receipt from Seller of notice of such Change in Law, meet
and attempt in good faith to negotiate amendments to this Agreement as are reasonably necessary to preserve the economic
value of this Agreement to both Parties. If the Parties are unable to agree upon such amendments within such thirty (30) day
period, then Seller shall have the right to terminate this Agreement and neither Party shall have further liability to the other
Party except with respect to payment of amounts accrued prior to termination. For the avoidance of doubt, if Seller terminates
the Agreement pursuant to the terms ofthis Section 9, no Termination Payment shall be payable by Purchaser hereunder.
10. Relocation of System.
a. System Relocation. If Purchaser ceases to conduct operations at the Facility, or resolves to make an alternate use of
some or all of the parking areas where the Facility is located, or otherwise vacates the Facility prior to the expiration
of the Term, Purchaser shall have the option to provide Seller with a mutually agreeable substitute premises located
within the same Utility district as the terminated System or in a location with similar Utility rates and Insolation.
Purchaser shall provide written notice at least ninety (90) days but not more than one hundred eighty (180) days prior
to the date that it wants to make this substitution. In connection with such substitution, Purchaser shall execute an
amended agreement (a "Relocation Amendment") that shall have all of the same terms as this Agreement except for
the (i) License and Construction License, which will be amended to grant rights in the real property where the System
relocated to; and (ii) Term, which will be equal to the remainder of the Term of this Agreement. Such Relocation
Amendment shall be deemed to be a continuation of this Agreement without termination. Purchaser shall also provide
any new consents, estoppels, or acknowledgments reasonably required by Financing Parties and in form and substance
reasonably acceptable to Purchaser in connection with the substitute premises.
b. Costs of Relocation. Purchaser shall pay all costs associated with relocation of the System, including all costs and
expenses incurred by or on behalf of Seller in connection with removal of the System from the Facility, the repair and
restoration of the Facility as pursuant to Section I I below, all costs of engineering, design, permitting, procurement
of new System components, installation and testing of the System at the substitute facility, all costs to comply with
CEQA, all applicable permit and interconnection fees and expenses at the substitute facility, the costs of new title
search and other out-of-pocket expenses connected to preserving and refiling the security interests of Seller's
Financing Parties in the System and any costs incurred by Seller to modify financing documents or obtain any
Financing Party's consent to such relocation; provided, that (i) Purchaser and Seller shall cooperate in good faith to
determine such costs and expenses prior to commencing with the System relocation and (ii) such actual costs and
expenses paid by Purchaser shall be reasonable, documented and submitted to Purchaser promptly after the completion
of the relocation. In addition, Seller shall reasonably estimate and invoice Purchaser for the amount of electricity that
would have been delivered to Purchaser during the relocation of the System and Purchaser shall pay such invoiced
amounts to Seller pursuant to Section 4(d) above.
c. Adjustment for Insolation; Termination. Seller shall remove the System from the vacated Facility at Purchaser's
sole cost, within 45 days following the full execution of the Relocation Amendment by the Parties and Purchaser's
written direction to Seller to remove the System from the Facility. Seller shall restore the Facility to the condition
required pursuant to Section 11 below at Purchaser sole cost and expense. If the substitute facility has inferior
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Insolation as compared to the original Faci[ity, Seller shall have the right to include an adjustment to Exhibit 1 in the
Re[ocation Amendment, to be agreed to prior to commencing with the System relocation, such that Purchaser's
payments to Seller are the same as if the System were located at the original Facility. [fPurchaser is unable to provide
such substitute facility and to relocate the System as provided, the Agreement will deemed to be terminated by
Purchaser pursuant to Section 3(c)(ii) and Purchaser shall promptly pay the applicab[e Termination Payment specified
on Exhibit 4.
11. Remova[ of System at Expiration.
a. Remova[ Obligations. Upon the expiration or earlier termination of this Agreement (provided Purchaser does not
exercise its purchase option), Seller shall, at its expense, remove all of its tangible property comprising the System
from the Faci[ity on a mutually convenient date, but in no event later than one hundred eighty ([ 80) days after the
expiration of the Term. The Facility shall be returned to a condition at least as good as its original condition and in
compliance with then-applicable building codes; provided, that Purchaser will be responsible for any cost of restoring
the Facility to then-applicab[e building codes in excess of the estimated cost to restore the Facility to its original
condition, ordinary wear and tear, alterations made by Purchaser and unrepaired damage caused by Purchaser or third
parties excluded. Seller's obligations under this Section [[ shall include the removal of System mounting pads or
other support structures installed by Seller. [n no case shall Seller's removal of the System affect the integrity of
Purchaser's roof, which shall be as leak proof as it was prior to removal of the System and shall be flashed and/or
patched to existing roof specifications and Purchaser's then-existing roof warranties. Seller shall leave the Facility in
neat and clean order. [fSeller fails to remove or commence substantial efforts to remove the System by such agreed
upon date, Purchaser shall have the right, at its option, to remove the System to a public warehouse and restore the
Facility to its original condition (other than ordinary wear and tear) at Seller's cost. Purchaser shall provide sufficient
space for the temporary storage and staging oftoo[s, materials and equipment and for the parking of construction crew
vehicles and temporary construction trailers and facilities reasonably necessary during System removal.
b. Decomissioning Fund. No later than three hundred sixty five (365) days prior to the commencement ofthe sixth (6 th )
Contract Year, Seller shall provide Purchaser a written estimate of the cost to remove the System and restore the
Facility as required pursuant to Section [l(a). The Parties shall meet and confer within thirty (30) days after such
written estimate is received by Purchaser to resolve any concerns regarding such estimated cost. Seller shall provide
one of the following forms of security for the cost to remove the System and restore the Facility to the required
condition beginning on the first day of the sixth (6 th ) month of the sixth (6 th ) Contract Year: (i) a performance bond
covering such cost, (ii) an investment or deposit account established with a financial institution reasonably satisfactory
to Purchaser, or (iii) a guaranty or letter of credit issued by a financial institution reasonably satisfactory to Purchaser.
[f Seller elects to provide security in the form of an investment or deposit account pursuant to clause (ii) above, (a)
Seller shall fund such account in 27 equal installments, with each installment to be paid once every sixth (6 th ) months,
and (b) concurrently with the opening of such investment or deposit account, the Parties shall enter into an agreement
setting forth the terms and conditions by which withdrawals of the funds on deposit in such account can be made,
which terms and condition shall be consistent with the terms hereof. Such security shall secure the costs to remove
the System and restore the Facility to the condition required pursuant to Section [ [(a) and Seller shall not be permitted
to use such security for any other purpose. For avoidance of doubt, any funds remaining after the removal of the
System and restoration of the Facility are the sole property of Seller. Seller, in its sole discretion, shall determine
which form of security to post, and may replace one form of security for another form of security in an equal amount
from time to time. [n the event ofa Seller Bankruptcy Event or Seller fails to remove the System within one hundred
eighty (180) days of the expiration of the term or earlier termination of this Agreement, Purchaser shall have the right
to use the applicab[e security and funds for the sole purpose of removal of the System and restoration of the Facility
to the required condition and any remaining funds shall remain the property of the Seller or the Seller's Financing
Parties, as applicab[e.
12. Measurement.
a. Meters. The transfer of Energy from Seller to Purchaser shall be measured by a meter (a "Meter") at the Delivery
Point, which shall be selected, provided, installed, owned, maintained, programmed, tested and operated, at Seller's
sole cost and expense, by Seller or its designee. Meters and all metering activities shall comply with all app[icable
requirements ofthe Current/Proposed Utility Tariffs set forth on Exhibit 2 and the interconnection agreement between
Pacific Gas & E[ectric Company and Purchaser. A monitoring system with real time monitoring of the quantities and
quality of Energy generated by the System shall also be installed for the System. Seller shall exercise reasonable care
in the maintenance and operation of the Meters and the monitoring system and shall test and verify the accuracy of
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each Meter at least once every two (2) years. Seller shall inform Purchaser in advance of the time and date of these
tests, and shall permit Purchaser to be present at such tests and to receive the results of such tests. Metering must have
an equivalent accuracy of plus or minus two percent (2%) or better and monitoring results from Seller's Performance
Monitoring and Reporting Service ("PMRS") that is viewable by Purchaser at all times through an online portal.
Eligible meters and PMRS providers must be listed as approved on the Go Solar California website. If testing of the
metering equipment indicates that such equipment is in error by more than two percent (2%), then Seller shall promptly
repair or replace such equipment. Seller shall make a corresponding adjustment to the records of the amount of
electricity delivered by the Facility based on such test results for (i) the actual period of time when such error caused
inaccurate Meter readings, if that period can be determined to the mutual satisfaction of the Parties, or (ii) if such
period cannot be so determined, then a period equal to one-half of the period from the later of the date of the most
recent test confirming accurate metering or the date the Meter was placed into service, but not to exceed twelve (12)
months. After the Commercial Operation Date, Seller shall install, own and maintain, at its sole cost and expense,
communications equipment and services necessary to allow remote reading of the Meters (including pursuant to the
requirements of any interconnection agreement). Seller shall at its sole cost and expense, install any updates or
upgrades to the Meters, and all associated measuring equipment necessary to permit an accurate determination of the
quantities of Energy delivered under this Agreement, in addition to accurate weather information.
b. Interactive Display for Generating Facilities. Seller will provide to Purchaser operational links to the solar data
acquisition system ("DAS") and monitoring dashboard, so that staff and members of the public can monitor clean
energy generation.
13. Default, Remedies and Damages.
a. Default. Any Party that fails to perform its responsibilities as listed below or experiences any of the circumstances
listed below shall be deemed a "Defaulting Party" and each event of default shall be a "Default Event":
I. failure of a Party to pay any amount due and payable under this Agreement, other than an amount that is
subject to a good faith dispute, within thirty (30) days following receipt of written notice from the other Party
(the "Non-Defaulting Party") of such failure to pay ("Payment Default");
ii. failure of a Party to substantially perform any other material obligation under this Agreement within thirty
(30) days following receipt of written notice from the Non-Defaulting Party demanding such cure; provided.
that such thirty (30) day cure period shall be extended (but not beyond ninety (90) days) if and to the extent
reasonably necessary to cure the Default Event, if (A) the Defaulting Party initiates such cure with the thirty
(30) day period and continues such cure to completion and (8) there is no material adverse effect on the Non-
Defaulting Party resulting from the failure to cure the Default Event;
iii. if any representation or warranty of a Party proves at any time to have been incorrect in any material respect
when made and is material to the transactions contemplated hereby, if the effect of such incorrectness is not
cured within thirty (30) days following receipt of written notice from the Non-Defaulting Party demanding
such cure;
iv. Purchaser loses its rights to occupy and enjoy the Premises;
v. a Party, becomes insolvent or is a party to a bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or any general assignment for the benefit of creditors or other
similar arrangement or any event occurs or proceedings are taken in any jurisdiction with respect to the Party
which has a similar effect; or
vi. Following the Commercial Operation Date, Seller fails to deliver at least 50% of its Expected Contract
Quantity for such Contract Year, for two (2) consecutive years.
b. Remedies.
I. Remedies for Payment Default. If a Payment Default occurs, the Non-Defaulting Party may suspend
performance of its obligations under this Agreement. Further, the Non-Defaulting Party may pursue any
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remedy under this Agreement, at law or in equity, including an action for damages and may tenninate this
Agreement, upon five (5) days prior written notice to the Defaulting Party following the Payment Default.
II. Remedies for Other Defaults. On the occurrence of a Default Event other than a Payment Default, the Non-
Defaulting Party may pursue any remedy under this Agreement, at law or in equity, including an action for
damages and may tenninate this Agreement or suspend performance of its obligations under this Agreement,
upon five (5) days prior written notice to the Defaulting Party following the occurrence of the Default Event.
Nothing herein shall limit either Party's right to collect damages upon the occurrence of a breach or a default
by the other Party that does not become a Default Event.
iii. Damages Upon Termination by Default. Upon a termination of this Agreement by the Non-Defaulting
Party as a result of a Default Event by the Defaulting Party, the Defaulting Party shall pay a Termination
Payment to the Non-Defaulting Party determined as follows (the "Termination Payment"):
A. Purchaser. If Purchaser is the Defaulting Party and Seller terminates this Agreement, the
Termination Payment to Seller shall be equal to, for any given Contract Year, the amount
set forth on Exhibit 4, Attachment A attached hereto, which annual amounts are
calculated as (x) the sum of (I ) reasonable compensation, on a net after tax basis assuming
a tax rate of thirty five percent (35%), for (a) the loss or recapture of the investment tax
credit equal to thirty percent (30%) of the System value, and (b) other financing and
associated costs, (2) the net present value (using a discount rate of eight percent (8%)) of
the projected payments over the Term post-termination, had the Term remained effective
for the full Initial Term, (3) removal costs as provided in Section 13Cb)(iii)CC) and (4) any
and all other amounts previously accrued under this Agreement and then owed by
Purchaser to Seller, less (y) any amount equal to the proceeds received by Seller in the sale
of the System equipment and components which Seller shall use commercially reasonable
efforts to consummate. The Parties agree that actual damages to Seller in the event this
Agreement terminates prior to the expiration of the Term as the result of a Default Event
by Purchaser would be difficult to ascertain, and the applicable Termination Payment is a
reasonable approximation of the damages suffered by Seller as a result of early termination
of this Agreement. The Termination Payment shall not be less than zero.
8. Seller. If Seller is the Defaulting Party and Purchaser terminates this Agreement, the
Termination Payment to Purchaser shall be equal to the sum of (1) the net present value
(using a discount rate of eight percent (8%)) of the excess, if any, of the reasonably
expected cost of electric energy from the Utility (after taking into consideration
adjustments for time of use) over the Contract Price for the reasonably expected production
ofthe System for the remainder of the Initial Term or the then current Additional Term, as
applicable, (2) all costs reasonably incurred by Purchaser in re-converting its electric
supply to service from the Utility, (3) any removal costs incurred by Purchaser, and (4) any
and all other amounts previously accrued under this Agreement and then owed by Seller to
Purchaser. The Termination Payment shall not be less than zero.
C. Obligations Following Termination. If a Non-Defaulting Party terminates this Agreement
pursuant to this Section 13(b), then following such termination, Seller shall comply with
its obligations set forth in Section II at the sole cost and expense of the Defaulting Party.
The Non-Defaulting Party shall take all commercially reasonable efforts to mitigate its
damages as the result of a Default Event.
iv. Purchaser's Right to Operate. If a Seller Default Event occurs under Section 13Ca), subject to the rights of
the Financing Parties pursuant to Section 19 below, then Purchaser or its designee may, but shall not be
obligated to, step-in and assume operational control from Seller of the System. Purchaser, its employees,
contractors and designees shall have the unrestricted right to enter the System to the extent necessary to
operate the System. Notwithstanding the foregoing, Seller shall not be excused from any obligation or
remedy available to Purchaser as a result of the Purchaser's operation of, or election not to operate, the
System. Purchaser shall pay Seller the applicable Contract Price for Energy provided hereunder, less any
costs incurred by Purchaser to operate the System. Upon Purchaser's satisfaction that Seller has the ability
to operate the System in accordance with this Agreement, Seller shall resume operational control.
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14. Representations and Warranties.
a. General Representations and Warranties. Each Party represents and warrants to the other the following:
i. Due Organization, Etc .. Such Party is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement
have been duly authorized by all necessary corporate, partnership or limited liability company action, as
applicable, and do not and shall not violate any law or organizational document of such Party; and this
Agreement is valid obligation of such Party, enforceable against such Party in accordance with its terms
(except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws now or hereafter in effect relating to creditors' rights generally).
ii. Governmental Approvals. Such Party has obtained all licenses, authorizations, consents and approvals
required by any Governmental Authority or other third party and necessary for such Party to own its assets,
carry on its business and to execute and deliver this Agreement; and such Party is in compliance with all laws
that relate to this Agreement in all material respects.
b. Purchaser's Representations and Warranties. Purchaser represents and warrants to Seller the following:
i. License. Purchaser has the full right, power and authority to grant the License contained in Section 8(a) and
to enter into and perform all of Purchaser's obligations under this Agreement and any interconnection
agreement entered into with the Utility. Such grant of the License and performance hereunder and under
such interconnection agreement does not violate any law, ordinance, rule or other governmental restriction
applicable to Purchaser or the Facility and is not inconsistent with and will not result in a breach or default
under any agreement by which Purchaser is bound or that affects the Facility. If Purchaser does not own the
Premises or Facility, Purchaser has obtained all required consents from the owner of the Premises and/or
Facility to grant the License and enter into and perform its obligations under this Agreement.
II. Other Agreements. Neither the execution and delivery ofthis Agreement by Purchaser nor the performance
by Purchaser of any of its obligations under this Agreement conflicts with or will result in a breach or default
under any agreement or obligation to which Purchaser is a party or by which Purchaser or the Facility is
bound.
111 . Accuracy of Information. All information provided by Purchaser to Seller, as it pertains to the Facility's
physical configuration, Purchaser's planned use of the Facility, and Purchaser's estimated electricity
requirements, is accurate in all material respects to the extent of knowledge of the individual supplying the
information.
IV. Purchaser Status. Purchaser is not a public utility or a public utility holding company and is not subject to
regulation as a public utility or a public utility holding company.
v. No Pool Use. No electricity generated by the System will be used to heat a swimming pool.
c. Seller's Representations and Warranties. Seller represents and warrants to Purchaser the following:
i. Other Agreements. Neither the execution and delivery of this Agreement by Seller nor the performance by
Seller of any of its obligations under this Agreement conflicts with or will result in a breach or default under
any agreement or obligation to which Seller is a party or by which Seller or the System is bound.
ii. No Litigation. There are no actions, suits, proceedings or investigations pending or, to the knowledge of
Seller, threatened in writing against Seller, at law or in equity before any Governmental Authority, which
individually or in the aggregate are reasonably likely to have a material adverse effect on the business,
properties or assets or the condition, financial or otherwise, of Seller, or to result in any impairment of Seller's
ability to perform its obligations under this Agreement.
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Ill. Environmental Attributes. Prior to conveyance to Purchaser, Seller holds and will hold until conveyed to
Purchaser, the rights to all Environmental Attributes, which it has committed to convey to Purchaser
hereunder.
iv. Intellectual Property. All of the intellectual property used by Seller in the conduct of its business or
otherwise in its possession is either validly licensed or owned solely by Seller and Seller has the exclusive
right to use and possess such intellectual property for the life thereof.
v. Solvency. From and after the Conditions Satisfaction Date, Seller shall have obtained financing
commitments or otherwise have available to it financial resources sufficient to permit Seller to timely perform
its obligations hereunder in accordance with the terms of this Agreement.
15. System and Facility Casualty and Insurance.
a. System and Facility Casualty at End of Term.
I. System. Notwithstanding Seller's obligations in Section 7(d), ifmore than fifty percent (50%) of the System
is destroyed during the last five (5) years of the Initial Term or during any Additional Term, Seller shall not
be required to restore the System, but may instead terminate this Agreement and pay Purchaser an amount
equal to the net present value (using a discount rate of eight percent (8%)) of the excess, if any, of the
reasonably expected cost of electric energy from the Utility (after taking into consideration adjustments for
time of use) over the Contract Price for the reasonably expected production of the System for the remainder
of the Initial Term or the then current Additional Term, as applicable, unless Purchaser agrees (A) to pay for
the cost of such restoration of the System or (B) to purchase the System "AS-IS" at the Fair Market Value of
the System.
II. Facility. Notwithstanding Purchaser's obligations in Section 8(c), if more than 50% of the Facility is
destroyed during the last five years of the Initial Term or during any Additional Term, Purchaser may elect
either (A) to restore the Facility or (B) to pay the Termination Payment and all other costs previously accrued
but unpaid under this Agreement and thereupon terminate this Agreement.
iii. Responsibility for Cost to Repair and Restore. Nothing in this Section 15(a) shall alter the obligation of
either Party to pay for the cost to repair and restore any damage caused by such Party as provided in this
Agreement.
b. Insurance Coverage. At all times during the Term, Seller and Purchaser shall maintain the following insurance:
i. Seller's Insurance. Seller shall obtain and maintain the policies of insurance in amounts and with coverage
as set forth on Exhibit 9.
II. Purchaser's Insurance. Purchaser shall maintain property insurance in an amount equal to the full
replacement cost of the Facility and commercial general liability insurance with coverage of at least Five
Million Dollars ($5,000,000) per occurrence and Ten Million Dollars ($10,000.000) annual aggregate.
c. Policy Provisions. All insurance policies provided by Seller hereunder shall (i) contain a provision whereby the
insurer agrees to give the party not providing the insurance (a) not less than ten (10) days written notice before the
insurance is cancelled, or terminated as a result of non-payment of premiums, or (b) not less than thirty (30) days
written notice before the insurance is otherwise cancelled or terminated, (ii) be written on an occurrence basis, and
(iii) be maintained with companies either rated no less than A-VII as to Policy Holder's Rating in the current edition
of A.M. Best's Insurance Guide or otherwise reasonably acceptable to the other party. Purchaser shall give Seller
written notice of any cancellation, termination or non-renewal of insurance coverage within ten (10) days of obtaining
knowledge thereof. Each Party shall ensure that the other Party is named as an additional insured on its commercial
general liability policy. All Financing Parties shall be named as additional insureds on Purchaser's commercial general
liability policies.
d. Certificates. Annually and upon request by Purchaser, Seller shall deliver to Purchaser certificates of insurance
evidencing the required coverage set forth on Exhibit 9 and a copy of the policy endorsement that adds Purchaser as
Final PPA Approved March 19,2018
26
an additional insured to the applicable commercial general liability insurance policy. Annually, Purchaser shall deliver
to Seller a certificate of coverage provided to Seller by the California Joint Powers Risk Management Authority
("CJPRMA"), a California public agency risk sharing pool of which Purchaser is a member, and a copy ofa certificate
from Purchaser naming Seller and its Financing Parties as additional insureds to Purchaser's self-insurance pool for
commercial general liability losses. Upon request by Seller, Purchaser shall deliver to Seller a copy of the
memorandum of coverage provided by CJPRMA and available on its website. A Party's receipt, review or acceptance
of any such certificate or memorandum shall in no way limit or relieve the other Party of the duties and responsibilities
to maintain insurance as set forth in this Agreement.
e. Deductibles. Unless and to the extent that a claim is covered by an indemnity set forth in this Agreement, each Party
shall be responsible for the payment of its own deductibles.
f. Waiver of Subrogation. Seller and Purchaser hereby mutually waive their respective rights of recovery against each
other for any loss of, or damage to, either parties' property with respect to loss of, or damage to the extent that such
loss or damage is insured by an Third Party Insurance Policy issued by a Third Party Insurance Carrier applicable to
the System, Facility or other property of Seller or Purchaser. Each party shall obtain any special endorsements, if
required by its Third Party Insurance Carrier, whereby the Third Party Insurance Carrier waives its rights of
subrogation against the other party as required by this Section 15(0. This provision is intended to waive fully, and
for the benefit of the Parties hereto, any rights and/or claims which might give rise to a right of subrogation in favor
of any Third Party Insurance Carrier.
16. Ownership; Option to Purchase.
a. Ownership of System. Throughout the Term, Seller shall be the legal and beneficial owner of the System at all times
(excluding all Environmental Attributes), and the System shall remain the personal property of Seller and shall not
attach to or be deemed a part of, or fixture to, the Facility or the Premises. Each of Seller and Purchaser agree that
Seller (or the designated assignee of Seller permitted under Section 19) is the tax owner of the System and all tax and
accounting filings and reports will be filed in a manner consistent with this Agreement. It is the intent of Seller and
Purchaser that the System shall at all times retain the legal status of personal property as defined under Article 9 of
the Uniform Commercial Code and shall not be characterized, considered or deemed a fixture or affixed to or a part
of the Facility or the Premises. If there is any mortgage or fixture filing against the Premises which could reasonably
be construed as prospectively attaching to the System as a fixture of the Premises, Purchaser shall, at Seller's cost, use
commercially reasonable efforts to provide a disclaimer or release from such lienholder upon Seller's written request.
If Purchaser is the fee owner of the Premises, Purchaser consents to the filing ofa disclaimer of the System as a fixture
ofthe Premises in the County office where real estate records are customarily filed in the jurisdiction where the Facility
is located. If Purchaser is not the fee owner, Purchaser, at Seller's cost, will use commercially reasonable efforts to
obtain such consent from such owner. With respect to any financing or refinancing of the System entered into by
Seller after the Conditions Satisfaction Date, upon request, Purchaser agrees, at Seller's cost, to use commercially
reasonable efforts to deliver to Seller a non-disturbance agreement in a form reasonably acceptable to Seller from the
owner of the Facility (if the Facility is leased by Purchaser), any mortgagee with a lien on the Premises, and other
Persons holding a similar interest in the Premises . To the extent that Purchaser does not own the Premises or Facility ,
Purchaser shall provide to Seller immediate written notice of receipt of notice of eviction from the Prem ises or Facility
or termination of Purchaser 's lease of the Premises and/or Facility.
b. Option to Purchase. At the end of the seventh (7th) and fifteenth (15 th ) Contract Years and at the end of the Initial
Term and each Additional Term, so long as Purchaser is not in default under this Agreement, Purchaser may purchase
the System from Seller on any such date for a purchase price equal to the Fair Market Value of the System as mutually
agreed by the Parties or, if the Parties are unable to agree, the Fair Market Value of the System as determined by an
appraiser. Purchaser must provide a notification to Seller of its intent to purchase at least ninety (90) days and not
more than one hundred eighty (180) days prior to the end of the applicable Contract Year or the Initial Term or
Additional Term, as applicable, and the purchase shall be complete prior to the end ofthe applicable Contract Year or
the Initial Term or Additional Term, as applicable. For a reasonable period not exceeding thirty (30) days from the
date of provision of notice referred to in this Section 16(b), the Parties shall make best efforts to mutually agree on
the Fair Market Value ofthe System. Ifthe Fair Market Value cannot be mutually agreed upon, then the Parties shall
use good faith commercially reasonable efforts to agree on the selection ofa nationally recognized independent, third-
party professional appraiser with experience and expertise in the solar photovoltaic industry to determine the Fair
Market Value, as of the final day of the applicable Contract Year ("Buyout Date"). Within thirty (30) days of the
Final PPA Approved March 19,2018
27
selection of such appraiser, s/he shall evaluate and determine the Fair Market Value of the applicable System as of the
Buyout Date and shall submit a report on same to the Parties. The costs of the appraisal shall be shared equally
between Purchaser and Seller.
c. Definition of Fair Market Value. "Fair Market Value" means the greater of: (i) the amount that would be paid in
an arm's length, free market transaction, for cash, between an informed, willing seller and an informed willing
Purchaser, neither of whom is under compulsion to complete the transaction, taking into account, among other things,
the age, condition and performance of the System and advances in solar technology, provided that installed equipment
shall be valued on an installed basis, shall not be valued as scrap if it is functioning and in good condition, and (ii) for
any given Contract Year, the present value (using a discount rate of eight percent (8%)) of all associated future income
streams expected to be received by Seller arising from the operation of the System for the remaining term of the
Agreement including but not limited to the expected price of electricity and Tax Credits and factoring in future costs
and expenses associated with the System . If an appraiser is selected pursuant to Section 16(b), such appraiser shall
act reasonably and in good faith to determine the Fair Market Value of the System based on the formulation set forth
herein, and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by any
such appraiser shall be binding upon the Parties in the absence of fraud or manifest error.
d. Buyout Determination. No later than sixty (60) days after determination of the Fair Market Value of the System,
Purchaser shall confirm to Seller in writing of its intent to proceed or not to proceed with its option to purchase the
System at the Fair Market Value. In the event Purchaser does not provide such written confirmation or elects not to
proceed with such option, the provisions of the Agreement shall continue to apply as if Purchaser had not exercised
the option to purchase the System.
e. Buyout Obligations. If Purchaser confirms its intent to proceed with its option to purchase as specified above, the
Parties shall promptly execute all documents necessary to (A) cause title and ownership of the applicable System to
pass to Purchaser on the Buyout Date, free and clear of any liens, and (B) assign all warranties for the applicable
System to Purchaser. Purchaser shall pay the Fair Market Value to Seller on or about the Buyout Date, in accordance
with any previous written instructions delivered to Purchaser by Seller for payments under the Agreement. Upon such
execution of documents and payment of the Fair Market Value, this Agreement shall terminate automatically and
Purchaser shall own the System and all Environmental Attributes, Environmental Incentives and any available Tax
Credits relating to the System. For the avoidance of doubt, payment of the Fair Market Value shall be in lieu of and
instead of any payments described in Section 4(a) accruing from and after the Buyout Date. Seller shall provide all
necessary cooperation with Purchaser to give prompt effect to this transfer. All other personal property of Seller not
included in Purchaser's purchase shall be removed by Seller from Purchaser's premises at no cost to Purchaser. Upon
purchase of the System, Purchaser will assume complete responsibility for the operation and maintenance of the
System and liability for the performance of the System, and Seller shall have no further liabilities or obligations
hereunder.
17. Indemnification and Limitations of Liability.
a. General. Each Party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other Party and the
directors, officers, shareholders, partners, members, agents and employees of such other Party, and the respective
affiliates of each thereof (collectively, the "Indemnified Parties"), from and against all loss, damage, expense,
liability and other claims, including court costs and reasonable attorneys' fees (collectively, "Liabilities") resulting
from any third party actions relating to the breach of any representation or warranty set forth in Section 14 and from
injury to or death of persons, and damage to or loss of property to the extent caused by or arising out of the negligent
acts or omissions of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees) in
connection with this Agreement; provided, however, that nothing herein shall require the Indemnifying Party to
indemnify the Indemnified Party for any Liabilities to the extent caused by or arising out of the negligent acts or
omissions of, or the willful misconduct of, the Indemnified Party. This Section 17(a) however, shall not apply to
liability arising from any form of hazardous substances or other environmental contamination, such matters being
addressed exclusively by Section 17(c).
b. Notice and Participation in Third Party Claims. The Indemnified Party shall give the Indemnifying Party written
notice with respect to any Liability asserted by a third party (a "Claim"), as soon as possible upon the receipt of
information of any possible Claim or of the commencement of such Claim . The Indemnifying Party may assume the
defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably
satisfactory to the Indemnified Party. The Indemnified Party may, however, select separate counsel ifboth Parties are
Final PPA Approved March 19,2018
28
defendants in the Claim and such defense or other form of participation is not reasonably available to the IndemnifYing
Party. The IndemnifYing Party shall pay the reasonable attorneys' fees incurred by such separate counsel until such
time as the need for separate counsel expires. The Indemnified Party may also, at the sole cost and expense of the
IndemnifYing Party, assume the defense of any Claim if the IndemnifYing Party fails to assume the defense of the
Claim within a reasonable time. Neither Party shall settle any Claim covered by this Section 17(b) unless it has
obtained the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
The IndemnifYing Party shall not be liable under this Section 17(b) for any Claim for which such notice is not provided
to extent such failure to delivery such notice prejudices the IndemnifYing Party.
c. Environmental Indemnification. Seller shall indemnifY, defend and hold harmless all of Purchaser's Indemnified
Parties from and against all Liabilities arising out of or relating to the existence at, on, below or near the Premises of
any Hazardous Substance (as defined in Section 17(c)(i)) to the extent deposited, spilled or otherwise caused by any
Seller Party. Purchaser shall indemnifY, defend and hold harmless all of Seller's Indemnified Parties from and against
all Liabilities arising out of or relating to the existence at, on, below or near the Premises of any Hazardous Substance,
to the extent deposited, spilled or otherwise caused by any Purchaser Party . Each Party shall promptly notifY the other
Party if it becomes aware of any Hazardous Substance on or about the Premises or the Premises generally or any
deposit, spill or release of any Hazardous Substance.
J. "Hazardous Substance" means any chemical, waste or other substance (A) which now or hereafter becomes
defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic
pollutants," "pollution," "pollutants," "regulated substances," or words of similar import under any laws
pertaining to the environment, health, safety or welfare, (8) which is declared to be hazardous, toxic, or
polluting by any Governmental Authority, (C) exposure to which is now or hereafter prohibited, limited or
regulated by any Governmental Authority, (D) the storage, use, handling, disposal or release of which is
restricted or regulated by any Governmental Authority, or (E) for which remediation or cleanup is required
by any Governmental Authority.
d. Limitations on Liability.
i. No Consequential Damages. Neither Party nor its directors, officers, shareholders, partners, members, agents
and employees subcontractors or suppliers shall be liable for any indirect, special, incidental, exemplary, or
consequential loss or damage of any nature arising out of their performance or non-performance hereunder
even if advised of such.
11. Actual Damages. Seller's aggregate liability under this Agreement arising out of or in connection with the
performance or non-performance of this Agreement shall not exceed the total payments anticipated to be
made by Purchaser during the Initial Term under this Agreement; provided with respect to any Claim made
or Liability incurred prior to the issuance of notice to proceed, Seller's aggregate liability shall not exceed
the applicable Design Cancellation Payment. Purchaser's aggregate liability under this Agreement arising
out of or in connection with the performance or non-performance of this Agreement shall not exceed the
Termination Payment set forth in Exhibit 4, Attachment A for the year in which the Claim is made (such
that if a Claim is made in one year and a second Claim is made in a second year, Seller will only be entitled
to recover the difference (if any) between the amount recovered on the first Claim and the Termination
Payment for the year in which the second Claim is made); provided that if the Claim is made or Liability
incurred prior to the issuance of notice to proceed, Purchaser's aggregate liability shall not exceed the
applicable Design Cancellation Payment. The provisions of this Section (17)(d)(jj) (A) shall apply whether
such liability arises in contract, tort (including negligence), strict liability or otherwise, (8) shall not limit the
recovery by any Party under any insurance policy, (C) prior to the issuance of notice to proceed, shall not
apply to limit the liability of any Party for claims for property damage or personal injury, and (D) following
the issuance of notice to proceed, shall not apply to limit the liability of any Party for third party claims for
property damage or personal injury.
iii. Non-Recoverable Costs. In every instance pursuant to the terms of this Agreement where Purchaser has the
option or is required to pay Seller the Termination Payment set forth in Exhibit 4, Attachment A, in no
event shall Purchaser be liable for costs, not included in the Termination Payment set forth in Exhibit 4,
Attachment A, incurred by Seller or any of its subcontractors after the termination date specified by
Purchaser. Such non recoverable costs include, but are not limited to, anticipated profits on this Agreement,
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18. Force Majeure.
post-termination employee salaries, post-termination administrative expenses, post-termination overhead or
unabsorbed overhead, attorneys' fees or other costs relating to the prosecution of a claim or lawsuit,
prejudgment interest, or any other expense which is not reasonable .
a. Definition of Force Majeure. "Force Majeure" means any event or circumstances beyond the reasonable control
of and without the fault or negligence of the Party claiming Force Majeure. It shaH include, without limitation, failure
or interruption of the production, delivery or acceptance of electricity due to : an act of god; war (declared or
undeclared); theft; vandalism; coHision with third party automobile, aircraft or space object (such as a meteor);
sabotage; collapse of the Facility for any reason; riot; insurrection; civil unrest or disturbance; military or gueriHa
action; terrorism; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out; explosion; fire;
earthquake; hurricane; flood; lightning; acts of nature such as storms, floods, volcanic eruptions, forest fires,
earthquakes; unavailability of electricity from the utility grid; failure of equipment not utilized by or under the control
of the Party claiming Force Majeure; third-party chaHenge to the instaHation and operation of the System; and a budget
non-appropriation event (as described in further detail in Section 18(c)). Notwithstanding the foregoing, "Force
Majeure" shall specificaHy not include, without limitation, the failure or interruption of the production, delivery or
acceptance of Electricity due to: economic hardship of either Party or insufficiency, unavailability, failure or
diminishment of solar resource, except as a result of an event that would otherwise qualify as a Force Majeure event.
b. Excuse Due to Force Majeure. Except as otherwise expressly provided to the contrary in this Agreement, if either
Party is rendered whoHy or partly unable to timely perform its obligations under this Agreement because of a Force
Majeure event, that Party shall be excused from the performance affected by the Force Majeure event (but only to the
extent so affected) and the time for performing such excused obligations shaH be extended as reasonably necessary;
provided, that: (i) the Party affected by such Force Majeure event, as soon as reasonably practicable after obtaining
knowledge of the occurrence of the claimed Force Majeure event, gives the other Party prompt oral notice, foHowed
by a written notice reasonably describing the event; (ii) the suspension of or extension of time for performance is of
no greater scope and of no longer duration than is required by the Force Majeure event; and (iii) the Party affected by
such Force Majeure event uses all reasonable efforts to mitigate or remedy its inability to perform as soon as
reasonably possible. The Term shaH be extended day for day for each day performance is suspended due to a Force
Majeure event.
c. Non ADDroDriation Event. Notwithstanding anything herein to the contrary, due to the constitutional limitations on
Purchaser, a "budget non-appropriation event" in which Purchaser's appropriation for any year covered in this
Agreement does not appropriate funds for the procurement of any utility services for Purchaser shaH be addressed as
foHows: During the continuation ofa budget non-appropriation event as defined above, if Purchaser does not otherwise
have other funds available to make payments otherwise due on this Agreement, Purchaser shall owe, but shall not be
obligated to pay for any services provided under this Agreement until the budget non-appropriation event has
terminated. Purchaser agrees that it shaH use its best efforts to seek appropriation for utility services during the term
of this Agreement. If a budget non-appropriation event continues for more than 180 days, Seller (but not Purchaser)
may terminate this Agreement, and call for a Termination Payment. Seller shaH provide Purchaser with not less than
30 days' prior written notice of Seller's intention to terminate. Upon Purchaser's request made within seven calendar
days after service of such notice, SeHer shall meet and confer with Purchaser in good faith to consider alternative
termination dates proposed by Purchaser.
d. Termination Event. Except as provided in Section 7(c)(v) above with respect to the extension of Milestones, if a
Force Majeure event (other than a budget non-appropriate event, which is addressed in Section 18(c) above) continues
for a period of one hundred eighty (180) days or more within a twelve (12) month period and prevents a material part
of the performance by a Party hereunder, the Party not claiming the Force Majeure shaH have the right to terminate
this Agreement without fault or further liability to either Party (except for amounts accrued but unpaid). For the
avoidance of doubt, (i) if Purchaser terminates the Agreement pursuant to the terms of this Section 18(d), no
Termination Payment shall be payable by Purchaser hereunder and (ii) Purchaser may not terminate this Agreement
for a Force Majeure event that results in the extension of Milestones until such extensions exceed the amount permitted
pursuant to Section 7(c)(v).
19. Assignment and Financing.
a. Assignment; Change of Control. This Agreement may not be assigned in whole or in part by either Party without
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30
the prior written consent of the other Party, which consent shaII not be unreasonably withheld or delayed, provided
that, SeIIer may, without the consent of Purchaser, assign, mortgage, pledge or otherwise coIIateraIIy assign its
interests in this Agreement and the System to any Financing Party. SeIIer shaII give Purchaser notice of any such
coIIateral assignment within five (5) business days of making such assignment. Purchaser's consent to any assignment
shaII not be unreasonably withheld if Purchaser has been provided with reasonable proof that the proposed assignee
(x) has comparable experience in operating and maintaining photovoltaic solar systems comparable to the System and
providing services comparable to those contemplated by this Agreement and (y) has the financial capability to
maintain the System and provide the services contemplated by this Agreement in the manner required by this
Agreement. In the event of any assignment, the assignor shaII remain a primary obligor unless assignee shaII expressly
assume in writing aII obligations under this Agreement. Any assignment of SeIIer's rights and/or obligations under
this Agreement shaII not result in any change to Purchaser's rights and obligations under this Agreement. This
Agreement shaII be binding on and inure to the benefit of the successors and permitted assignees. Except as provided
below, any direct or indirect change of control of SeIIer shaII be deemed an "assignment" hereunder, requiring the
prior written consent of Purchaser, provided that any change of control that results (i) from a direct or indirect transfer
of any membership interests in SeIIer or any entity of which SeIIer is a subsidiary to a Financing Party making a tax
equity investment in the System or (ii) to an existing member ofSeIIer or any entity which is a member ofSeIIer, shaII
not constitute an "assignment" for the purposes of this Section 19 and shaII not require the prior written consent of
Purchaser. SeIIer shaII give Purchaser notice of any such transfer to a Financing Party making a tax equity investment
within five (5) business days of such transfer.
h. Financing. The Parties acknowledge that SeIIer may obtain construction and long-term financing or other credit
support from one or more Financing Parties. "Financing Parties" means person or persons providing construction
or permanent financing to SeIIer in connection with construction, ownership, operation and maintenance of the
System, or ifapplicable, means any person to whom SeIIer has transferred the ownership interest in the System, subject
to a leaseback of the System from such person. The term "person" means any natural person, unincorporated
association, corporation, partnership, joint venture, limited liability company, trust, other legal entity or any
Governmental Authority. Both Parties agree, at SeIIer's expense, in good faith to consider and to negotiate changes
or additions to this Agreement that may be reasonably requested by the Financing Parties; provided, that such changes
do not alter the fundamental economic terms of this Agreement. In connection with an assignment pursuant to Section
19(a), Purchaser agrees, at SeIIer's expense, to execute any consent, estoppel or acknowledgement in form and
substance reasonably acceptable to Purchaser and such Financing Parties. Purchaser will agree, at SeIIer's expense,
to make payments under this Agreement as directed by Financing Parties, to provide copies of notices under the
Agreement to Financing Parties, and not to amend or terminate this Agreement without notice to Financing Parties.
c. Successor Servicing. The Parties further acknowledge that in connection with any construction or long term financing
or other credit support provided to SeIIer or its affiliates by Financing Parties, that such Financing Parties may require
that SeIIer or its affiliates appoint a third party to act as backup or successor provider of operation and maintenance
services with respect to the System and/or administrative services with respect to this Agreement (the "Successor
Provider"). Purchaser agrees to accept performance from any Successor Provider so appointed, provided, that (i)
such Successor Provider performs in accordance with the terms of this Agreement, and (ii) such Successor Provider
(x) has comparable experience in operating and maintaining photovoltaic solar systems comparable to the System and
providing services comparable to those contemplated by this Agreement and (y) has the financial capability to
maintain the System and provide the services contemplated by this Agreement in the manner required by this
Agreement.
d. Financing Party Rights.
i. Notice. Purchaser shaII deliver to each Financing Party, concurrently with delivery thereof to SeIIer, a copy
of every notice of default, notice of termination or intent to terminate this Agreement, and any notice
delivered pursuant to Sections 13, 16 and/or 18. above. Any Financing Party shaII have the right, but not the
obligation, to perform any obligation of SeIIer under this Agreement and to cure any breach and/or SeIIer
Default Event. Purchaser shaII accept performance by or at the instigation ofa Financing Party in fulfiIIment
of SeIIer's obligations, for the account of SeIIer and with the same force and effect as if performed by
SeIIer. No performance by or on behalf of a Financing Party shaII cause it to be deemed to be in possession
of the System or bound by or liable under this Agreement.
ii. No Termination; Financing Party Cure Period. Notwithstanding anything to the contrary contained herein,
Purchaser agrees that it shaII not terminate this Agreement for a SeIIer Default Event unless it has given aII
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Financing Parties written notice in accordance with Section 19(d)(i) above and such Financing Parties fail to
cure such Seller Default Event within a cure period calculated as follows: (a) for a Payment Default, the cure
period set forth in Section 1 3 (a)(i) above plus an additional thirty (30) days, and (b) for a Default Event other
than a Payment Default, the cure period set forth in Section 1 3 (a)(ii) above plus an additional sixty (60) days.
iii. Cure Requiring Possession. If a Seller Default Event under this Agreement is of such a nature that it cannot
be practicably cured without first taking possession of the System or is of a nature that is not susceptible of
being cured by the Financing Parties, then Purchaser shall not be entitled to terminate this Agreement by
reason of such Seller Default Event if and so long as (a) the Financing Parties proceed diligently to attempt
to obtain possession of the System pursuant to the rights of the Financing Parties under the financing
documents and (b) upon obtaining such possession, the Financing Parties shall proceed diligently to cure
such Seller Default Event if the same is susceptible of being cured by the Financing Parties. The Parties
acknowledge and agree that a Payment Default (x) is susceptible of being cured by the Financing Parties and
(y) can be cured by the Financing Parties without first obtaining possession of the System.
iv. Effect of Cure. The Financing Parties shall not be required to continue to proceed to obtain possession, or to
continue in possession of the System if and when such default or Default Event is cured. If the Financing
Parties, or a purchaser through foreclosure under the financing documents or otherwise, shall (a) acquire title
to the System and the rights under this Agreement, (b) cure all Payment Defaults and other defaults which
are susceptible of being cured by the Financing Parties or such purchaser, as the case may be, and (c) assume
all the obligations of Seller hereunder to the extent first accruing and arising from and after the date of such
assumption, then (i) any default or Default Event of Seller which is not susceptible of being cured by the
Financing Parties or such purchaser, as the case may be, shall no longer be deemed to be a default under this
Agreement, and (ii) Purchaser shall recognize the Financing Parties or such purchaser, as the case may be,
as if such party had been the Seller under this Agreement.
v. Exercise of Remedies. So long as the period for a Financing Party to exercise such Financing Party's cure
rights for any Seller Default Event has not expired, Purchaser shall not (a) give any notice terminating or
electing to terminate this Agreement, or (b) otherwise exercise any other rights or remedies under this
Agreement by reason of such Seller Default Event.
vi. No Amendment. Notwithstanding anything to the contrary in this Agreement, if Seller at any time or from
time to time has given Purchaser written notice of a Financing Party, then no cancellation, termination
(including Seller's termination of this Agreement pursuant to any express right of termination in this
Agreement or under applicable law), surrender, acceptance of surrender, abandonment, amendment,
modification, or rejection of this Agreement, or subordination of this Agreement to any encumbrance on the
fee estate, shall be effective or binding if done without such Financing Party's prior written consent.
Seller's Financing Parties are hereby made express third party beneficiaries of the provisions of this Section 19.
20. California Public Records Act. Purchaser is a public agency subject to the disclosure requirements of the California Public
Records Act ("CPRA"). If Seller proprietary information is contained in documents or information submitted to Purchaser,
and Seller claims that such information falls within one or more CPRA exemptions, Seller must clearly mark such information
"CONFIDENTIAL AND PROPRIETARY," and identify the specific lines containing the information. In the event ofa request
for such information, Purchaser will make best efforts to provide notice to Seller prior to such disclosure. If Seller contends
that any documents are exempt from the CPRA and wishes to prevent disclosure, it is required to obtain a protective order,
injunctive relief or other appropriate remedy from a court of law in Marin County before Purchaser's deadline for responding
to the CPRA request. If Seller fails to obtain such remedy within Purchaser's deadline for responding to the CPRA request,
Purchaser may disclose the requested information. Seller further agrees that it shall defend, indemnify and hold Purchaser
harmless against any claim, action or litigation (including but not limited to all judgments, costs, fees, and attorneys' fees) that
may result from denial by Purchaser of a CPRA request for information arising from any representation, or any action (or
inaction), by Seller.
21. Goodwill and Publicity. Neither Party shall use any name, trade name, agency name, service mark or trademark of the other
Party in any promotional or advertising material without the prior written consent of such other Party. The Parties shall
coordinate and cooperate with each other when making public announcements related to the execution and existence of this
Agreement, and each Party shall have the right to promptly review, comment upon and approve any publicity materials, press
releases or other public statements by the other Party that refer to, or that describe any aspect of, this Agreement. Neither Party
Final PPA Approved March 19,2018
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shall make any press release or public announcement of the specific terms of this Agreement (except for filings or other
statements or releases as may be required by applicable law) without the specific prior written consent of the other Party.
Without limiting the generality of the foregoing, all public statements must accurately reflect the rights and obligations of the
Parties under this Agreement, including the ownership of Environmental Attributes and Environmental Incentives and any
related reporting rights.
22. Miscellaneous Provisions
a. Choice of Law. The law of California, the state where the System is located, shall govern this Agreement without
giving effect to conflict of laws principles.
b. Dispute Resolution and Attorneys' Fees. Seller and Purchaser shall negotiate in good faith in the event of any
dispute arising during the performance of this Agreement. If the dispute cannot be resolved by the designated
representatives of each of Seller and Purchaser after two (2) business days of negotiations, at either Party's option the
dispute may be promptly escalated to negotiations among representatives of the Parties with authority to resolve the
dispute ("Decision-Makers"). If the designated Decision-Makers are unable to resolve the dispute within five (5)
business days of negotiations, either Party may require that non-binding mediation take place. In such mediation, the
Decision-Makers shall meet for at least (3) hours with a mediator whom they choose together and their respective
counsel. Any dispute that remains unresolved after such non-binding mediation shall be resolved in the state and
federal courts located in Marin County, California. Each Party hereby submits to the personal jurisdiction of such
courts and consents to service of process in connection with any action, suit or proceeding against such Party. The
prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys' fees and costs.
c. Notices. All notices under this Agreement shall be in writing and shall be by personal delivery, facsimile transmission,
electronic mail, overnight courier, or regular, certified, or registered mail, return receipt requested, and deemed
received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date
after deposit with overnight courier, or five (5) days after deposit in the mail. Notices shall be sent to the person
identified in this Agreement at the addresses set forth in this Agreement or such other address as either party may
specifY in writing. Each party shall deem a document faxed, emailed or electronically sent in PDF form to it as an
original document.
d. Cooperation. The Parties agree to reasonably cooperate with each other in the implementation and performance of
the Agreement. Such duty to cooperate shall not require either Party to act in a manner inconsistent with its rights
under this Agreement. Seller shall cooperate with Purchaser's periodic review of Seller's performance. Such review
may be conducted on a semi-annual or more frequent basis at the option and sole cost of Purchaser. Seller shall have
the option to make itself available onsite to review the progress of the project and Agreement, as requested by
Purchaser, upon reasonable advanced notice. Seller agrees to extend to Purchaser or his/her designees and/or
designated auditor of Purchaser, the right to monitor or otherwise evaluate all work performed and all records,
including service records and procedures to assure that the project is achieving its purpose, that all applicable
Purchaser, state, and federal regulations are met, and that adequate internal fiscal controls are maintained. Seller shall
be responsible for receiving, replying to, and complying with any audit exceptions set forth in Purchaser audits. Seller
shall pay to Purchaser the full amount of any audit determined to be due as a result of Purchaser audit exceptions .
This provision is in addition to other inspection and access rights specified in this Agreement.
e. Severability. Should any provision of this Agreement be or become void, illegal or unenforceable, the validity or
enforceability of the other provisions of this Agreement shall not be affected and shall continue in full force and effect.
The Parties will, however, use their best endeavors to agree on the replacement of the void, illegal, or unenforceable
provision(s) with legally acceptable clauses that correspond as closely as possible to the sense and purpose of the
affected provision.
f. Survival. Provisions ofthis Agreement that should reasonably be considered to survive termination ofthis Agreement
shall survive. For the avoidance of doubt, surviving provisions shall include, without limitation, Section II (Removal
of System at Expiration), Section 13(b) (Remedies), Section 15(b) (Insurance Coverage), Section 17 (Indemnification
and Limits of Liability), Section 20 (California Public Records Act), Section 22(a} (Choice of Law), Section 22(b}
(Dispute Resolution and Attorneys' Fees), Section 22(c} (Notices), Section 22(j} (Comparative Negligence), Section
llik} (Non-Dedication of Facilities), Section 22(m} (Service Contract), Section 22(n} (No Partnership), Section 22(p}
Final PPA Approved March 19 ,2018
33
(Full Agreement, Modification, Invalidity, Counterparts, Captions), Section 22(9) (Forward Contract), Section 22(r}
(No Third Party Beneficiaries), Section 22(u) (Debt Liability Disclaimer), and Section 22(w) (Conflict of Interest).
g. Further Assurances. Each of the Parties hereto agree to provide such information, execute and deliver any
instruments and documents and to take such other actions as may be necessary or reasonably requested by the other
Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of
obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the
intent of this Agreement.
h. Time is of the Essence. Time is of the essence in performance by the Parties.
i. Right of Waiver. Each Party, in its sole discretion, shall have the right to waive, defer or reduce any of the
requirements to which the other Party is subject under this Agreement at any time (other than with respect to and/or
relating to the obligation to make any payment due under this Agreement); provided, however that neither Party shall
be deemed to have waived, deferred or reduced any such requirements unless such action is in writing and signed by
the waiving Party. No waiver will be implied by any usage of trade, course of dealing or course of performance. A
Party's exercise of any rights hereunder shall apply only to such requirements and on such occasions as such Party
may specify and shall in no event relieve the other Party of any requirements or other obligations not so specified. No
failure of either Party to enforce any term of this Agreement will be deemed to be a waiver. No exercise of any right
or remedy under this Agreement by Purchaser or Seller shall constitute a waiver of any other right or remedy contained
or provided by law. Any delay or failure ofa Party to exercise, or any partial exercise of, its rights and remedies under
this Agreement shall not operate to limit or otherwise affect such rights or remedies. Any waiver of performance
under this Agreement shall be limited to the specific performance waived and shall not, unless otherwise expressly
stated in writing, constitute a continuous waiver or a waiver of future performance.
j. Comparative Negligence. It is the intent of the Parties that where negligence is determined to have been joint,
contributory or concurrent, each Party shall bear the proportionate cost of any Liability.
k. Non-Dedication of Facilities. Nothing herein shall be construed as the dedication by either Party of its facilities or
equipment to the public or any part thereof. Neither Party shall knowingly take any action that would subject the other
Party, or other Party's facilities or equipment, to the jurisdiction of any Governmental Authority as a public utility or
similar entity. Neither Party shall assert in any proceeding before a court or regulatory body that the other Party is a
public utility by virtue of such other Party's performance under this agreement. If Seller is reasonably likely to become
subject to regulation as a public utility, then the Parties shall use all reasonable efforts to restructure their relationship
under this Agreement in a manner that preserves their relative economic interests while ensuring that Seller does not
become subject to any such regulation. If the Parties are unable to agree upon such restructuring, Seller shall have the
right to terminate this Agreement without further liability, and Seller shall remove the System in accordance with
Section II of this Agreement.
I. Estoppel. Either Party hereto, without charge but, in the event that Seller is the requesting Party, at Seller's expense,
at any time and from time to time, within five (5) business days after receipt of a written request by the other party
hereto, shall deliver a written instrument, duly executed, certifying to such requesting party, or any other person
specified by such requesting Party: (i) that this Agreement is unmodified and in full force and effect, or if there has
been any modification, that the same is in full force and effect as so modified, and identifying any such modification;
(ii) whether or not to the knowledge of any such party there are then existing any offsets or defenses in favor of such
party against enforcement of any of the terms, covenants and conditions of this Agreement and, if so, specifying the
same and also whether or not to the knowledge of such party the other party has observed and performed all of the
terms, covenants and conditions on its part to be observed and performed, and if not, specifying the same; and (iii)
such other information as may be reasonably requested by the requesting Party. Any written instrument given
hereunder may be relied upon by the recipient of such instrument, except to the extent the recipient has actual
knowledge of facts contained in the certificate.
m. Service Contract. The Parties intend this Agreement to be a "service contract" within the meaning of Section
770 I (e)(3) of the Internal Revenue Code. Purchaser will not take the position in any public accounting or in any other
filings suggesting that it is anything other than a purchase of electricity and receipt of Environmental Attributes and
any applicable Environmental Incentives (as agreed by the Parties) from the System.
Final PPA Approved March 19,2018
34
n. No Partnership. No provision of this Agreement shall be construed or represented as creating a partnership, trust,
joint venture, fiduciary or any similar relationship between the Parties. No Party is authorized to act on behalf of the
other Party, and neither shall be considered the agent of the other.
o. Non-Exclusive Contract. This Agreement does not establish an exclusive contract between Purchaser and Seller for
the purchase of electricity or power or any services. Purchaser expressly reserves all its rights, including but not
limited to, the following: the right to utilize others to provide Electricity, products, support and services beyond the
System contemplated herein; the right to request proposals from others with or without requesting proposals from
Seller; and the unrestricted right to bid any such product, support or service.
p. Full Ae;reement, Modification, Invalidity, Counterparts, Captions. This Agreement, together with any exhibits,
attachments or schedules, completely and exclusively states the agreement of the Parties regarding its subject matter
and supersedes all prior proposals, agreements, or other communications between the Parties, oral or written, regarding
its subject matter. This Agreement may be modified only by a writing signed by both Parties. Ifany provision of this
Agreement is found unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement
unenforceable or invalid as a whole. In such event, such provision shall be changed and interpreted so as to best
accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. This
Agreement may be executed in any number of separate counterparts and each counterpart shall be considered an
original and together shall comprise the same Agreement. The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement.
q. Forward Contract. The transaction contemplated under this Agreement constitutes a "forward contract" within the
meaning of the United States Bankruptcy Code, and the Parties further acknowledge and agree that each Party is a
"forward contract merchant" within the meaning of the United States Bankruptcy Code.
r. No Third Party Beneficiaries. Except as set forth in Section 19, this Agreement and all rights hereunder are intended
for the sole benefit of the Parties hereto and shall not imply or create any rights on the part of, or obligations to, any
other Person.
s. Non-Discrimination. Seller shall not discriminate, in any way, against any person on the basis of age, sex, race,
color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and
obligations under this Agreement.
t. City Business License. Seller shall obtain and maintain and shall cause its contractors and subcontractors to obtain
and maintain during the duration of this Agreement, a City of San Rafael business license as required by the San
Rafael Municipal Code. Seller shall pay and shall cause its contractors and subcontractors to pay any and all state and
federal taxes and any other applicable taxes. Purchaser shall not be required to pay for any Energy provided under
this Agreement, until Seller has provided Purchaser with a completed Internal Revenue Service Form W-9 (Request
for Taxpayer Identification Number and Certification).
u. Debt Liability Disclaimer. Purchaser, including, but not limited to, any source offunding for Purchaser, any General
Fund or any special self insurance program, is not liable for any debts, liabilities, settlements, liens, or any other
obligations of Seller or its heirs, successors or assigns . Purchaser shall not be liable for and shall be held harmless
and indemnified by Seller for any claims for damages arising out of any other contract to which Seller is a party , tort,
action or inaction, negligent error in judgment, act of negligence, intentional tort, negligent mistakes or other acts
taken or not taken by Seller, its employees, agents , servants, invitees, guests or anyone acting in concert with or on
behalf of Seller. Purchaser and its agencies and divisions, including, has no obligation to defend or undertake the
defense on behalf of Seller or its heirs, successors or assigns.
v. Prevailing Wage. Seller agrees it shall pay prevailing wages in connection with the construction and operation of the
System.
w. Conflict of Interest. Seller warrants that it presently has no interest and shall not acquire any interest, direct or
indirect, that would conflict in any manner or degree with the performance of services required under this Agreement .
Final PPA Approved March 19,2018
35
Final PPA Approved March 19,2018
Exhibit 4
Attachment A
Tennination Payment Amount
Contract Year City Hall
Prior to See Exhibit 4 Commencement Section 3.c.i . of Construction
1 1,225,258
2 1,110,425
3 994,475
4 877,290
5 758,714
6 638,577
7 648 ,748
8 654 ,951
9 640,171
10 622,163
11 600,810
12 575,520
13 545,570
14 510,721
15 470,444
16 430,390
17 396,901
18 369,601
19 348,181
20 332,398
After Year 20 Fair Market
Value
36
Engineering. Procurement & Construction:
SolarCraft Services. Inc.
8 Digital Drive. Suite 101
Novato, CA 94949
http://www.solarcraft.com
For steel shade structures:
MBL & Sons, d/b/a MBL Energy
1698 Rogers Ave., Suite 40
San Jose, CA 95112
https://www.mbl-energy.com/
Final PPA Approved March 19,2018
Exhibit 4
Attachment B
Subcontractors
Elld o{Exllibi/ 4
37
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
SolEd Solar Holdings Y, LLC
cl o [Financing Entity Name & Address]
Attention: -----------------------
Exhibit 5
Form of Memorandum of License
(Space Above for Recorder's Use Only)
MEMORANDUM OF LICENSE
This MEMORANDUM OF LICENSE (the "Memorandum") is dated March __ ,2017, by and between the City of
San Rafael, California, a municipality within the County of Marin in the State of California ("Licensor"), and SolEd Solar
Holdings Y, LLC, a California limited liability company ("Licensee").
1. Name and Principal Address of Licensor. The name of Licensor is set forth above, and Licensor's address is 1400
Fifth Avenue, San Rafael, CA 94901.
2. Name and Principal Address of Licensee. The name of Licensee is set forth above, and Licensee's address is
3. License. Licensor and Licensee have entered into that certain Solar Power Purchase Agreement, dated October 28,
2014 and Amended on 2018 (the "PPA"). Licensor owns certain real property, and the buildings and
improvements thereon, known as City Hall at 1400 5th Street, San Rafael, in Marin County, California, as more
specifically described on Exhibit A attached hereto and incorporated herein by reference (the "Property"). Pursuant
to the PPA, Licensor granted the License in and to certain areas of the Property electrical room and roof (the
"Licensed Area").
4. Tenn. The tenn of the PPA commenced on the Commercial Operation Date and lasts until the twentieth (20th )
anniversary thereof, unless earlier tenninated in accordance with the terms of the PPA, subject to two (2), five (5)
year optional additional tenns. The License expires one hundred eighty (180) days after the expiration of the PPA.
5. Additional Rights. The License includes the following additional rights: Licensee may utilize a mutually agreed
upon portion of the Property for construction related activities, until the final completion date under the Construction
Agreement.
6. Access. Licensee, and Licensee's agents, guests, subtenants and designees shall have access to the Licensed Area
at all times during the term of the License.
7. Notices. Notices shall be given to the Licensor and Licensee in accordance with the tenns of the PPA.
8. Construction ofTenns/Conflict. All defined terms used but not otherwise defined herein shall have the meaning or
definition set forth in the PPA. In the event that the tenns, conditions and provisions of this Memorandum conflict
with the terms, conditions and provisions of the PPA, the terms, conditions and provisions of the PPA shall control.
Final PPA Approved March 19,2018
38
9. Successors and Assigns. This Memorandum and the rights granted herein shall run with the land, and shall be
binding upon and inure to the benefit of the partie~, their respective successors and assigns, but the provisions of
this paragraph shall not be construed to allow any assignment or transfer of the rights and obligations otherwise
prohibited or conditioned in the PPA.
10. Authority. Each party represents to the other that it has the necessary authority to enter into the PPA and this
Memorandum.
11. Counterparts. This Memorandum may be executed in one or more counterparts, each of which, when taken together,
shall constitute one and the same document.
[Signature page follows immediately]
Final PPA Approved March 19,2018
39
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of the date first written above.
LICENSOR:
San Rafael, California,
a Municipality in the State of California
By: __________________________ ___
Name:
Title:
LICENSEE:
SolEd Solar Holdings V, LLC,
a California limited liability company
By:
Its: Managing Member
By: ______________________ ___
Name: ------------------------Title: ------------------------
[Notary pages/allow immediately]
Final PPA Approved March 19,2018
40
State of California
County of Marin
On before me, __________________ (insert name and title
of the officer) personally appeared Manager of the City of San Rafael, who
proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature _____________ (Seal)
State of New York
Countyof ____________ __
On before me, (insert name and title
of the officer) personally appeared , who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of New York that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature ______________ (Seal)
Final PPA Approved March 19,2018
41
EXHIBIT A
PROPERTY DESCRIPTION
Site Name/Description: San Rafael City Hall
Site Address: 1400 5th Avenue, San Rafael, CA 9490 I
APN: _Book II, Lot 203, Parcel 12
Coordinates: 37 .974839° N, 122.531514° W
Aerial view: See below
Elld o(Exllibit 5
Final PPA Approved March 19,2018
42
Exhibit 6-1
Design and Engineering Requirements
Table of Contents
1. Site Access .................................................................................................................................................... 36
2. Project Management ................................................................................................................................. 36
2.1 Project Manager ............................................................................................................................................. 36
2.2 Project Schedule .......................................................................................................................................... 36
2.3 Submittals ....................................................................................................................................................... 36
2.4 Solar Incentives .............................................................................................................................................. 37
2.5 Interconnection .............................................................................................................................................. 37
3. System Design ............................................................................................................................................. 37
3.1 Design Review Process! Phases ...................................................................................................................... 37
3.2 Sellers' License Classification .......................................................................................................................... 37
3.3 Design Submittals ........................................................................................................................................... 37
3.4 Permits and approvals ....................................................................................... Error! Bookmark not defined.
3.5 Technical Requirements .................................................................................... Error! Bookmark not defined.
3.6 Warranties ......................................................................................................... Error! Bookmark not defined.
4. Procurement/Construction ................................................................................................................... 44
4.1 Tree Removal ..................................................................................................... Error! Bookmark not defined.
4.2 Line Location ...................................................................................................... Error! Bookmark not defined.
4.3 Quality Control .................................................................................................. Error! Bookmark not defined.
4.4 Removal and Remediation ............................................................................................................................. 45
5. Testing and Commissioning ................................................................................................................... 45
5.1 Acceptance Testing ............................................................................................ Error! Bookmark not defined.
5.2 Proving Period (30 days) .................................................................................... Error! Bookmark not defined.
5.3 Close -out Documentation Requirements .......................................................... Error! Bookmark not defined.
5.4 Training .............................................................................................................. Error! Bookmark not defined.
6. Operations and Maintenance ................................................................................................................ 47
6.1 Preventive Maintenance ................................................................................... Error! Bookmark not defined.
6.2 Troubleshooting, Inspection and Additional Repairs ........................................ Error! Bookmark not defined.
6.3 Customer Service Support ................................................................................. Error! Bookmark not defined.
6.4 Major Component Maintenance and Repair. .................................................... Error! Bookmark not defined.
6.5 Other System Services ....................................................................................... Error! Bookmark not defined.
Final PPA Approved March 19,2018
43
1. Site Access
Seller and its EPC contractors, (together referred to as "Seller" in this Exhibit 6-1) shall conform to all Purchaser rules and requirements
for accessing sites. Road usage, road closures, number of vehicles, access points, etc., may be regulated by the Purchaser. Site visits
shall be approved and proper check-in requirements must be followed. Seller shall provide signage and/or electronic notification of
possible operational impacts upon request by Purchaser. Unless otherwise determined by Purchaser, Seller shall be responsible for
providing bathroom and storage facilities for all workers on-site, and shall be responsible for procuring, installing, securing, and
removing temporary security fencing and scaffolding.
2. Project Management
2.1 Project Manager
Seller's EPC Contractor shall assign a Project Manager from their firm upon execution of the Agreement and receipt of Notice to
Proceed. The Project Manager shall ensure that all contract, schedule, and reporting requirements of the Project are met and shall be the
primary point of contact for the Purchaser.
2 .2 Project Schedule
A Project Schedule is to be prepared and submitted to the Purchaser within 14 days of Agreement execution . The Purchaser will review
and approve the Project Schedule prior to the initiation of work. Updates shall be submitted every other week, though the Purchaser
may allow less frequent updates at their discretion. The submittal shall be a Critical Path Method (CPM) schedule describing all Project
activities including design, equipment procurement, construction and commissioning.
2 .3 Submittals
Seller shall provide the following submittals as part of the performance of the Work. The cost of developing and providing submittals
shall be included in the Project price .
Agreement Submittals
Submittal Submittal Date Date
I. System Design
a. System Design Documentation At each design milestone
b. Warranties At Construction Documents milestone
c. Testing Plan At Construction Documents milestone
d. Power production modeling At Construction Documents milestone
II. Procurements and Construction
a . Safety Plan 30 days before commencement of
construction
b. As-built Documentation After completion of Proving Period
III. Testing See Exhibit 8
a. Acceptance Test Results After Acceptance Test
b. Startup Test Results After Startup Test
c. Monitoring Data (Proving Period) Continually throughout Proving Period
d. Proving Period Report 30 days after System Startup
IV. Training
a . Training Materials 30 days before Training Session
b . Monitoring Manual 30 days before Training Session
c. Operations & Maintenance Manual 30 days before Training Session
Final PPA Approved March 19 ,2018
36
2.4 Solar Incentives
Seller shall submit applications for all available energy production incentives (e.g., CSI, SGIP, SREC, etc.) or, should the Purchaser
already have submitted such applications, assume responsibility for all future requirements (agreements, submittals, etc.) related to these
programs. This includes actions necessary to ensure compliance with the Utility net metering program and all interconnection
agreements and related documents for Purchaser participation and utilization of the benefits of each applicable program. Seller shall
attend all site verification visits conducted by the applicable public utility or Governmental Authority and shall assist the Purchaser in
satisfying the requirements of the incentive program. Seller shall be responsible for providing updated documentation to incentive
program administrators throughout the project, as required by rules of the relevant incentive programs. Incentives shall be paid to the
Purchaser if the system is to be purchased or included in this Agreement.
2 .5 Interconnection
Seller shall be responsible for preparing, submitting, and procuring interconnection application to appropriate utility and department.
Seller shall accept responsibility for payment for utility interconnection studies and/or project management that are not anticipated but
may be required. All anticipated utility work (e.g. transformer installation, meter addition) shall be the responsibility of the Seller. At
project completion, Seller shall confirm Permission To Operate with the utility, and shall verifY most financially-beneficial rate schedule
and billing.
Seller must comply with all interconnection requirements. Systems installed as part of this project will take advantage of Net Energy
Metering (NEM), unless specified otherwise by Purchaser or its agents. Seller shall be responsible for ensuring the system design and
interconnection qualifies for NEM , as applicable.
3. System Design
3 .1 Design Review Processl Phases
The Purchaser will review and approve design documentation based on the requirements as detailed in Section 3.3 of this document.
Additional documents may be requested by the Purchaser as needed . The precise organization and format of the design submittals shall
be agreed upon by Seller and the Purchaser prior to the first design submission. The Purchaser will review all submittals, provide written
comments, and conduct Design Review Meetings for each stage of the process. Seller shall provide additional detail, as required, at each
successive stage of the Design Review. Seller shall not order equipment and materials until Schematic Design submittals have been
approved. Seller shall not begin construction until Construction Documents have been approved and all required permits have been
obtained. The Purchaser will formally approve, in writing, each phase of the design and is the sole arbiter of whether each phase of the
design has been completed. The Seller shall not enter a subsequent design phase without the approval of the Purchaser.
Seller is responsible for providing designs approved by the appropriate professional engineers registered in the State of California. Costs
for engineering reviews and approvals shall be borne by the Seller. System designs must take into account Purchaser aesthetic issues
and not conflict with any current Purchaser operations.
3.2 Sellers' License Classification
In accordance with the provisions of California Public Contract Code §3300, the Purchaser requires that Respondents possess , at the
time of submission of a Proposal, at the time of award of the Agreement and at all time during construction activities, a General
Contractor License (8), Electrical Contractor License (C-I 0), or Solar Contractor License (C-46). It shall be acceptable for a Respondent
that does not possess a C-I 0 or C-46 License to list a Subcontractor with a C-I 0 or C-46 License .
3 .3 Design Submittals
3.3 .1 Plan Set
Final PPA Approved March 19,2018
37
Seller shall prepare a comprehensive submittal package for each phase of the Work that will be reviewed and approved by the Purchaser.
At a minimum, each submittal package shall include the elements required to convey in sufficient detail the following for each phase of
the design:
• Site Layout Drawings, with distances from roof edges and existing equipment, as applicable
• Construction Specifications (trenching, mounting, etc.)
• Equipment Layout Drawings
• Detailed Drawings
• Electrical Single-Line and Three-Line Diagrams
• Module Stringing Diagrams
• Electric Wire and Conduit Schedule
• Electrical Warning Labels & Placards Plans
• Lighting Plan (for carports, as required)
• Network Connection Diagrams
• Architectural Drawings
• Structural/Mechanical Drawings
• Geotechnical Drawings
• Manufacturer's Cut Sheets with Equipment Specifications
• Data Acquisition System (DAS) Specifications, Cut Sheets, and Data Specifications
Seller shall include adequate time for Purchaser review and approval of submittals, as well as re-submittals and re-reviews. Minimum
Purchaser review time shall be ten (10) days from the date of receipt of each submittal package during each phase of the Design Review.
3.3.2 Production Modeling
Production modeling of the PV systems shall be performed using PVSYST or equivalent modeling software using TMY3 weather data
for the location closest to the site. The simulations shall accurately simulate energy production for proposed system layouts, sizes, and
orientation. It is critical that PV production models are accurate with all methodology and assumptions described. The Purchaser will
independently verify production models are accurate to the designed systems and utilize simulation results for economic evaluations .
Seller shall be responsible for updating the production models each time sufficient changes are made to the proposed system designs
that will impact production.
Seller shall avoid excessive shading on modules to the extent possible. Where shading losses are encountered, Seller shall perform a
shading analysis justifying the basis for their design, including any proposed tree removal, and explaining why shading does not create
an adverse performance and/or economic impact.
3.4 Permits and Approvals
Construction Documents must be reviewed and approved by all authorities having jurisdiction (AHJs) over the work, which may include,
but are not limited to: the Purchaser, the City or County in which the work is being done, or the utility .. Seller shall be responsible for
obtaining all approvals and shall account for permitting and inspection requirements in their system designs, project pricing, and
schedule. Seller shall attend all site verification visits conducted by the applicable public utility or Governmental Authority, including
any special inspections for trenching, rebar, concrete, welding, and roof attachment work, according to AHJ requirements. The Purchaser
will not grant Seller relief based on Seller's incomplete or incorrect understanding of permitting and approval requirements.
3.5 Technical Requirements
3.5.1 General Considerations
Final PPA Approved March 19,2018
38
All documentation and components furnished by Seller shall be developed, designed, and/or fabricated using high quality design,
materials, and workmanship meeting the requirements of the Purchaser and all applicable industry codes and standards. The installations
shall comply with at least, but not limited to, the latest approved versions of the International Building Code (IBC), National Electrical
Code (NEC), Utility Interconnection Requirements, California Building Standards Commission Codes, and all other federal, state, and
local jurisdictions having authority.
3.5.2 Electrical Design Standards
The design, products, and installation shall comply with at least, but not limited to, the following electrical industry standards, wherever
applicable:
• Illumination Engineering Society of North America (I ESNA) Lighting Standards
• Institute of Electrical and Electronics Engineers (IEEE) Standards
• National Electrical Manufacturers Association (NEMA)
• Underwriters Laboratories, Inc. (UL)
• National Fire Protection Association (NFPA)
• National Electrical Code (NEC)
• California Public Utility Commission (CPUC) and Utility Requirements
• American National Standards Institute (ANSI)
• Occupational Health and Safety Administration (OSHA)
• International Code Council (ICC) Codes
• California Building Standards Commission (BSC) Codes
3.5.3 Modules
In addition to the above, the PV modules proposed by Seller shall comply with at least, but not limited to, the following:
• IEEE 1262 "Recommended Practice for Qualifications of Photovoltaic Modules".
• System modules shall be UL 1703 listed and CEC listed.
• Modules shall be new, undamaged, fully warranted without defect.
• If PV modules using hazardous materials are to be provided, then the environmental impact of the hazardous material usage
must be disclosed, including any special maintenance requirements and proper disposal/recycling of the modules at the end of
their useful life.
3.5.4 Inverters
In addition to the above, inverters proposed by Seller must comply with at least, but not limited to the following:
• Inverters shall be suitable for grid interconnection and shall be compliant with all Utility interconnection requirements.
• IEEE 929-2000 -"Recommended Practice for Utility Interface of Photovoltaic Systems".
• Inverters shall be UL 1741 and IEEE 1547 compliant.
• Inverters shall be CEC-listed with an efficiency of95.5% or higher.
• Inverters must automatically reset and resume normal operation after a power limiting operation.
• Inverters shall be sized to provide maximum power point tracking for voltage and current range expected from PV array for
temperatures and solar insolation conditions expected for Project conditions .
• Enclosures shall be rated NEMA 3R when the inverter is located outdoors. For outdoor installations in corrosive environments,
NEMA 4X series 300 stainless steel enclosures must be used.
• Inverter selection shall take into account anticipated noise levels produced and minimize interference with Purchaser activities.
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3.5.5 Electrical Balance of System Components
• Each proposed PV system shall include, at a minimum, one fused DC disconnect and one fused AC disconnect for safety and
maintenance concerns.
• String combiner boxes shall be load-break, disconnecting types, such that opening the combiner boxes shall break the circuit
between combiner box feeders and inverters.
• Seller shall utilize surge suppressors to protect the appropriate equipment from electrical surges.
• All wiring materials and methods must adhere to industry-standard best practices, and all inter-module connections must require
the use of a specialized tool for disconnecting.
3.5.6 Mounting Systems
The mounting systems shall be designed and installed such that the PV modules may be fixed or tracking with reliable components
proven in similar projects, and shall be designed to resist dead load, live load, corrosion, UV degradation, wind loads, and seismic loads
appropriate to the geographic area over the expected 25-year lifetime. Seller shall conduct an analysis, and submit evidence thereof,
including calculations, of each structure affected by the performance of the scope described herein, and all attachments and amendments.
The analysis shall demonstrate that existing structures are not compromised or adversely impacted by the installation ofPV, equipment,
or other activity related to this scope . Mounting systems must also meet the following requirements at a minimum:
• All structural components, including array structures, shall be designed in a manner commensurate with attaining a minimum
25-year design life. Particular attention shall be given to the prevention of corrosion at the connections between dissimilar
metals.
• Thermal loads caused by fluctuations of component and ambient temperatures shall be accounted for in the design and selection
of mounting systems such that neither the mounting system nor the surface on which it is mounted shall degrade or be damaged
over time.
• Each PV module mounting system must be certified by the module manufacturer as (I) an acceptable mounting system that
shall not void the module warranty, and (2) that it conforms to the module manufacturer's mounting parameters.
• For unframed modules, bolted and similar connections shall be non-corrosive and include locking devices designed to prevent
twisting over the 25-year design life of the PV system .
• Seller shall utilize tamper-resistant PV module to rack fasteners for all PV module mounting.
• Elevated shade structures will have the option for either paint or galvanized coating. Final paint colors shall be reviewed and
approved by the Purchaser during Design Review.
• Painting or other coatings must not interfere with the grounding and bonding of the array .
3 .5.7 Corrosion Control
In addition to the above, Corrosion Control proposed by Seller must comply with at least, but not limited to the following requirements :
• Fasteners and hardware throughout system shall be stainless steel, aluminum or hot dipped galvanized steel. Racking
components shall be anodized aluminum, hot-dipped galvanized steel or material of equivalent corrosion resistance
• Unprotected steel not to be used in any components
• Each PV system and associated components must be designed and selected to withstand the environmental conditions of the
site (e.g., temperatures, winds, rain, flooding, etc.) to which they will be exposed.
3 .5.8 Roofing Requirements
The installation of PV modules , inverters and other equipment shall provide adequate room for access and maintenance of existing
equipment on the building roofs. A minimum ofthree feet of clearance will be provided between PV equipment and existing mechanical
equipment and other equipment mounted on the roof. A minimum of four feet of clearance shall be provided between PV equipment
and the edge of the roof. Clearance guidelines of the local fire marshal shall be followed. The installation of solar or thermal systems
Final PPA Approved March 19,2018
40
wil\ be reviewed for code compliance and adherence to the State Fire Marshal Solar Photovoltaic Installation Guideline. The PV
equipment shall not be installed in a way that obstructs air flow into or out of building systems or equipment.
Proposed rooftop mounted systems may be ballasted, standing seam attachment, or penetrating systems and must meet or exceed the
following requirements:
• Systems shall not exceed the ability of the existing structure to support the entire solar system and withstand increased wind
uplift and seismic loads. The capability of the existing structure to support proposed solar systems shall be verified by Seller
prior to design approval.
• Roofpenetrations, ifpart of the mounting solution, shall be kept to a minimum.
• Seller shall perform all work so that existing roof warranties shall not be voided, reduced, or otherwise negatively impacted.
As part ofthe design submittals, Seller shall include signed certificates from the roofing manufacturer stating:
o The roofing contractor is certified installer of Complete Roofing System.
o The manufacturer's Technical Representative is qualified arid authorized to approve project.
o Project Plans and specs meet the requirements of the warranty of the Complete Roofing System for the specified
period.
o Existing warranty incorporates the new roofing work and flashing work.
• No work shall compromise roof drainage, cause damming or standing water or cause excessive soil build-up.
• All materials and/or sealants must be chemically compatible.
• All penetrations shall be waterproofed.
• Detail(s) for the sealing of any roof penetrations shall be approved in writing to the Purchaser, as well as the manufacturer of
the existing roofing system, as part of system design review and approval -prior to Seller proceeding with work. The Purchaser
wil\ make available the roofing manufacturer for each building for consultation with Seller as part of the design process.
• Any damage to roofing material during installation of solar systems must be remedied by Seller.
3.5.9 Shade Structure Requirements
Seller wil\ be responsible for incorporating the following elements in the design and construction of the System:
• Minimum height: all shade structures shall be designed to have a minimum clear height of ten (10) feet, unless specified in a
Site's Specification Sheet to be taller to accommodate larger vehicles at the site.
• All shade structures shall be installed with a fascia surrounding the exposed edge of the structure's purlins.
• Shade structures located in parking lots shall have curb stops or other protective measures approved by the Purchaser to protect
support posts .. This requirement may be waived at the Purchaser's sole discretion.
• Shade structure columns, beams, and fascia shall be painted to match site colors or to a color of the Purchaser's approval.
All shade structure PV systems shall include LED lighting .. Installation of shade structure PV systems shall include the removal of
existing security light poles , foundations , and fixtures that are no longer effective . Lighting systems shall also meet the following
requirements :
• Lighting shall be LED lighting or other similar energy efficient lighting system.
• New parking lot fixtures shall be installed to provide parking lot i1\umination compliant with IESNA requirements or
recommendations for illumination and safety.
• The new lighting is required to illuminate the entire parking area and adjacent pedestrian walkways affected by the removal of
existing lights, not just the area under the PV modules.
• A photometric illumination plot must be submitted for each parking lot showing all existing lighting and proposed new SSS
canopy lighting.
• Submit California Title 24 Outdoor Lighting calculations with all lighting drawings and show evidence of compliance.
Photocell controls shall be installed and energize new lighting fixtures when ambient lighting levels fall below two (2) foot-candles
measured horizontally at ground level. Lighting shall also be required to operate manually without regards to photocell input.
Replacement parking lot lighting shall be code compliant, and will be served from an existing parking lot lighting circuit and any existing
Final PPA Approved March 19,2018
41
circuits and existing control function shall be maintained, or ifreplaced, done so at the approval of the Purchaser. The Purchaser shall
have the ability to modify the LED light illumination levels if so desired for safety purposes.
3.5. \0 Ancillary Equipment Enclosures
Seller will be responsible for incorporating the following elements in the design and construction of the System:
• Fencing: All pad mounted equipment shall be surrounded by a fence to prevent access by unauthorized personnel. The fence
shall be a six (6) foot high chain link fence with vinyl privacy slats, with provisions for privacy slats or mesh screen mutually
determined on a case by case basis. This requirement does not apply to instances where a perimeter fence is already in place
and may be waived at the Purchaser's sole discretion. Purchaser will have the right to install replacement fencing, as long as
the equipment is protected .
• Location: all ancillary equipment shall be located in a manner that minimizes its impact to normal Purchaser operations and
minimizes the visual impacts to the site .
3.5.11 Placards and Signage
.• Placards and signs shall correspond with requirements in the National Electric Code and the interconnecting utility in terms of
appearance, wording, and placement.
• Permanent labels shall be affixed to all electrical enclosures, with nomenclature matching that found in As-Built Electrical
Documents.
3.5.12 Infrastructure for Ground Mount Systems
Seller will be responsible for incorporating the following elements in the design and construction of the System:
• Fencing: The site shall be surrounded by a code compliant fence to prevent unauthorized personnel from gaining access to the
site. The fence shall be of standard chain link variety, with provisions for privacy slats or mesh screen mutually determined on
a case by case basis .. This requirement does not apply to instances where a perimeter fence is already in place and may be
waived at the Purchaser's sole discretion.
• Gates shall be installed to enable site access for trucks .
• A pathway a minimum often (10) feet wide passable by a maintenance truck shall be provided within the array fence to allow
for access to all equipment enclosed within the fence area.
• Access to water for maintenance (module cleaning) purposes, as determined adequate by Seller and approved by the Purchaser.
• Access to low voltage (l20V) AC power to power maintenance equipment and miscellaneous equipment.
Seller shall install and ensure activation of sufficient security cameras on site to monitor array area.
3.5. \3 Wiring and Cabling Runs
• Seller shall install all AC conductors in conduit.
• Direct burial wire will not be acceptable. Conduit buried underground shall be suitable for the application and compliant with
all applicable codes. A tracing/caution tape must be installed in the trench over all buried conduit.
• Conduit installed using horizontal directional boring (HOB), shall include tracer tape or traceable conduit. The minimum depth
of the conduit shall be per NEC 20 II Article 300.5. The Seller is responsible for demonstrating that all conduits installed
utilizing horizontal boring meets the minimum depth requirement and is solely responsible for any remediation costs and
schedule impacts if the specification is not met. The HOB contractor must provide documentation of final depth and routes of
all conduit installed in horizontal bores.
• Conduit installed on building roofs shall not be installed near roof edges or parapets to reduce visibility. Any conduit
penetrations through roof surfaces shall not be made within five (5) feet of the roof edge to reduce visibility . If conduit is
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42
installed on the exterior face of any building, it shall be painted to match the existing building color. In all cases, the visible
impact of conduit runs shall be minimized and the design and placement of conduit shall be reviewed and approved by the
Purchaser as part of Design Review.
• At request of Purchaser, Seller shall install a spare conduit at underground locations. All spare conduits shall be cleaned,
mandrelled, and provided with a pullwire. Spare conduits shall be required for security cameras for ground mount systems.
• All exposed conduit runs over I ~O-feet in length or passing over building connection points shall have expansion joints to allow
for thermal expansion and building shift.
• Design Builder shall install and secure the exposed string cable homeruns along the beams or structure where the combiner
box is installed.
• All exposed string wiring must be installed above the lower surface of the structural purlins and beams. Wire loops under
framing members are not acceptable.
• Acceptable wire loss in DC circuits is < 1.5% and acceptable wire loss in AC circuits is < 1.5% as well.
• All cable terminations, excluding module-to-module and module-to-cable harness connections, shall be permanently labeled.
• All electrical connections and terminations shall be torqued according to manufacturer specifications and marked/sealed at
appropriate torque point.
3.5.14 Grounding and Bonding
• Module ground wiring splices shall be made with irreversible crimp connectors.
• All exposed ground wiring must be routed above the lower surface of any structural framing.
• For shade structure installations, grounding electrode conductors shall be bonded to structure columns either just below grade
or below the top surface of concrete bollards.
3.5.15 Monitoring System, DAS, and Reporting
Seller shall design, build, activate and ensure proper functioning of Data Acquisition Systems (DAS) that enable the Purchaser to track
the performance of the PY Systems as well as environmental conditions through an online web-enabled graphical user interface and
information displays. Seller shall provide equipment to connect the DAS via existing Wi-Fi network or cellular data network at all
locations. The means of data connection will be determined during design. The Purchaser will pay for the cost of cellular data service if
needed, but not for the modem or other equipment needed to connect to the cellular network.
The DAS(s) shall provide access to at least the following data:
• Instantaneous AC system output (kW)
• PY System production (kWh) over pre-defined intervals that may be user configured
• In-plane irradiance
• Ambient and cell temperature
• Inverter status flags and general system status information
• System availability
• Site Load information. Available load data for the meter the system is connected to shall be collected by the solar monitoring
solution as part of the DAS.
Environmental data (temperatures and irradiance) shall be collected via an individual weather station installed for each site. A single
station may be used for mUltiple sites if they are within a \0 mile radius and are similar in type, orientation and pitch.
Data collected by the DAS shall be presented in an online web interface, accessible from any computer through the Internet with
appropriate security (e.g., password controlled access). The user interface shall allow visualization of the data at least in the following
increments: 15 minutes, hour, day, week, month, and year. The interface shall access data recorded in a server that may be stored on-
site or remotely with unfettered access by the Purchaser for the life of the Project. The online interface shall enable users to export all
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43
available data in Excel or ASCII comma-separated format for further analysis and data shall be downloadable in at least 15 minute
intervals for daily, weekly, monthly and annual production.
The Monitoring system shall enable Purchaser staff to diagnose potential problems and perform remediating action. The monitoring
system shall provide alerts when the system is not functioning within acceptable operating parameters. These parameters shall be defined
during the design phase of the Project and specified in the DAS design document. At a minimum, Purchaser shall have the ability to
compare irradiance to simultaneous power production measurements through linear regression analysis.
Additionally, Seller shall make available, at no additional cost, the following reports for a term of 5 years after Final Completion of the
project:
• Monthly Production report shall be available online to the Purchaser personnel.
• System performance data shall be made available electronically to the Purchaser in a format and at a frequency to be determined
during the Design Review process.
• Additional reports shall be made available to the Purchaser to assist the Purchaser in reconciling system output with utility bills
and the production guarantee, as determined in the Design Review process.
A Monitoring Manual shall be provided to the Purchaser in printed or on-line form that describes how to use the monitoring system,
including the export of data and the creation of custom reports.
3.6 Warranties
Seller shall provide a comprehensive ten (10) year warranty on all system components against defects in materials and workmanship
under normal application, installation, and use and service conditions.
Additionally, the following minimum warranties are required:
• PV Modules: The PV modules are to be warranted against degradation of power output of greater than 10% of the original
minimum rated power in the first ten (10) years and greater than 20% in the first twenty (25) years of operation.
• Inverters: Inverters shall carry a minimum I O-year warranty (direct purchase price must include a 20-year warranty).
• Meters: At minimum, meters shall have a five (5) year warranty. For meters integrated in inverters, the meter warranty period
must match the inverter.
• Mounting system: twenty (20) year warranty, covering at least structural integrity and corrosion.
• Balance of system components: the remainder of system components shall carry manufacturer warranties conforming to
industry standards.
All warranties must be documented, in advance and be fully transferable to Client.
All work performed by Seller must not render void, violate, or otherwise jeopardize any preexisting Purchaser facility or building
warranties or the warranties of system components.
4. Procurement/Construction
4.1 Tree Removal
Any trees that are in the footprint of systems to be installed by the Seller shall be removed by the Seller at their expense, subject to the
approval of the Purchaser. A tree shall be considered to be in the footprint of a system if its canopy would extend over any part of the
system, including structural components or modules. The Purchaser will remove or prune, at its discretion, trees planted outside of the
work area that shade PV systems (at present time or in the foreseeable future), provided the Seller identifies these trees during the design
process . The Seller shall be responsible for any required tree remediation efforts resulting from tree removal that is deemed the Seller's
responsibility.
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4.2 Line Location
Seller will be responsible for locating, identifying and protecting existing underground utilities conduits, piping, substructures, etc. and
ensuring that no damage is inflicted upon existing infrastructure. In addition to USA Dig and utility line-locating, a private line-locator
must be used for any project requiring underground work.
4.3 Quality Control
To ensure safety and quality of the installation, Seller shall:
• Keep the Site clean and orderly throughout the duration of construction. All trash and rubbish shall be disposed of off-site by
licensed waste disposal companies and in accordance with applicable Law.
• Fully comply with all applicable notification, safety and Work rules (including Purchaser safety standards) when working on
or near Purchaser facilities .
• Provide all temporary road and warning signs, flagmen or equipment as required to safely execute the Work. Street sweeping
services shall also be provided as required to keep any dirt, soil, mud, etc . off of roads. Comply with all state and local storm
water pollution prevention (SWPP) ordinances .
4.4 Removal and Remediation
Seller shall remove all construction spoils, abandoned footings, utilities, construction equipment and other byproducts of construction.
All disturbed areas including landscaping, asphalt, and concrete shall be remediated to be in equal or better condition than found.
Parking lots shall be re-striped if affected by construction operations.
The site shall be left clean and free of debris or dirt that has accumulated as a result of construction operations.
5. Testing and Commissioning
Following completion of construction, Seller shall provide the following services related to startup and performance testing of the PV
systems:
• Acceptance Testing
• System Startup
• Proving Period
A detailed Testing Plan covering each of th e phases above shall be submitted and approved by the Purchaser prior to substantial
completion of construction. A detailed description of each phase is provided below.
5 .1 Acceptance Testing
Seller shall perform a complete acceptance test for each PV System . The acceptance test procedures include component tests as well as
other standard tests, inspections, safety and quality checks. All testing and commissioning shall be conducted in accordance with the
manufacturer's specifications.
The section of the Testing Plan that covers Acceptance Testing shall be equivalent or superior to the CEC (California Energy
Commission) "Guide to Photovoltaic (PV) System Design and Installation", Section 4 and shall cover at least the following:
• Detailed list of all items to be inspected and tests to be conducted.
• Acceptance Criteria: For each test phase, specifically indicate what is considered an acceptable test result.
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The Acceptance Testing section of the Testing Plan shall include (but not be limited to) the following tests:
• String-level voltage (open circuit) and amperage (under load) testing for all PY strings. Amperage testing shall be performed
concurrently with irradiance testing.
• Inverter testing for all inverters. The inverters shall be commissioned on-site by a qualified technician and shall confirm that
the inverter can be operated locally per specification and that automatic operations such as wake-up and sleep routines, power
tracking and fault detection responses occur as specified. Performance testing shall be performed concurrently with irradiance
testing.
• Testing of all sensors of the DAS.
• Testing of the Data Presentation interface of the DAS.
After Seller conducts all Acceptance Testing based on the Testing Plan approved by the Purchaser prior to substantial completion, Seller
shall submit a detailed Acceptance Test Report to the Purchaser for review.
The Acceptance Test Report shall document the results of the tests conducted following the Testing Plan, and include additional
information such as the date and time each test was performed. It shall also make reference to any problem and deficiencies found during
testing. Ifthere was troubleshooting done, the Report shall describe the troubleshooting methods and strategy. Seller shall be responsible
for providing the labor and equipment necessary to troubleshoot the System.
5.2 Proving Period (30 days)
Upon completion of Acceptance Testing and System Startup, and approval by the Purchaser, Seller shall monitor the system during a
thirty (30) day Proving Period and submit a report for Purchaser review and approval prior to final acceptance by the Purchaser. This
includes monitoring system output and ensuring the correct functioning of system components over this time. The values for the
following data shall be acquired every fifteen (15) minutes over thirty (30) days:
• AC system output (kW)
• PY system production (kWh)
• In-plane irradiance
• Ambient and cell temperature
• Inverter status flags and general system status information
• System availability
Seller shall utilize calibrated test instruments and the DAS and monitoring system to collect the test data described above, which shall
be made available to the Purchaser for access throughout the Proving Period. Seller shall determine through analysis of data from the
Proving Period whether the PY system delivers the expected production as determined by the final approved design (Le., Construction
Documents). Actual production shall be compared against expected production using actual weather data and other system inputs (such
as module cell temperature factor, module mismatch, inverter efficiency, and wiring losses) for calculating expected production. The
production figures for all meters, whether existing or installed by or on behalf of the IOU or by or on behalf of the Respondent, shall be
correlated during this test to verify their accuracy in measuring system production.
All data and reports required in Section 3.5.15 shall be fully functional and available to the Purchaser at the commencement of the
Proving Period. Data and reporting requirements are included in the testing scope of the Proving Period and deficiencies in these areas
(including missing data, inaccurate reports, and other issues that make validation of system performance inconclusive) shall be grounds
for denying approval of the Proving Period Report.
If the PY system does not perform to design specifications, diagnostic testing shall be performed by Seller, deficiencies shall be identified
with proposed corrective actions submitted to the Purchaser, and the Proving Period test repeated. Seller shall be responsible for
providing the labor and equipment necessary to troubleshoot the system. The Proving Period Report shall be submitted after the
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46
successful completion of this phase and submitted to the Purchaser for review and approval. The report shall contain, but not be limited
to, the following information; calculations shall be provided in Excel format with formulas visible to allow for peer review:
• System description
• Test period
• Test results
• Anomalies identified during test
• Corrective action performed
• Actual measured performance
• Calculations detailing expected performance under TMY conditions
5.3 Close-out Documentation Requirements
Close-Out documents prepared by Seller must include at minimum, but not limited to, the following items:
• Final As-Built Drawing Set with accurate string diagram, provided in (2) hard copy sets and an electronic copy in both DWG
and PDF format (or as desired by Purchaser).
• Megger test Results
• Module flash-test results with serial numbers
• Component warranties
• Signed inspections cards from AHJ and required Special Inspections
• Interconnection agreements and Permission To Operate
• Owner's Manual
5.4 Training
The Seller shall provide four (4) hours of on-site training for Purchaser personnel in all aspects of operation, routine maintenance, and
safety of the PV systems, DAS, and monitoring solution. At a minimum, training topics shall include the following:
• PV system safety, including shut-down procedures
• PV module maintenance and troubleshooting
• Inverter overview and maintenance procedures
• Calibration and adjustment procedures for the inverters and tracking systems (if any)
• DAS and monitoring solution, including standard and custom reporting
Seller shall submit a proposed Training Plan during the design process for approval and provide all training materials and manuals to
support on-site training in advance of scheduled training sessions (see schedule of submittals in Section 2.3 , "Submittal s"). The on -s ite
portion of the training program shall be scheduled to take place at the jobsite at a time agreeable to both the Purchaser and Seller.
6. Operations and Maintenance
Seller's EPC Contractor shall offer Operations and Maintenance services for ten (10) years with their Proposal, with an option to extend
the Contract for up to an additional ten (10) years. The Operations and Maintenance agreement will be between EPC Contractor or
affiliate and the System Owner and Seller of energy. The Purchaser shall not execute the Operations and Maintenance services
agreement. In offering such services, the O&M Contractor shall perform all necessary preventive and corrective maintenance, which
includes routine maintenance adjustments, replacements, and electrical panel/transformer/ inverter cleaning (interior and exterior)
Maintenance by Seller and its contractors shall ensure that all warranties, particularly inverter warranties, are preserved. The frequency
and timing of panel wash-downs shall be determined by Seller based on system monitoring data. Environmental sensors such as
pyranometers shall be tested and recalibrated at least once every three (3) years.
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For any maintenance visits, Seller shall give 3-day advance notification to Purchaser, and no on-site visits shall be performed without
approval of the Purchaser, except in case of emergency.
Seller shall perform the following maintenance services, at a minimum, as described in the following sections:
6 .1 Preventive Maintenance
Preventive Maintenance shall be performed at least annually and include:
• System testing (voltage/amperage) at inverter and string levels
• System visual inspection to include but not be limited to the list below. Ali discovered issues shall be resolved as needed.
o Inspect for stolen, broken or damaged PV modules, record damage and location . Report to the Purchaser and wait
for the Purchaser to authorize a course of action .
o Inspect PV wiring for loose connections and wire condition.
o Inspect for wires in contact with the structure or hanging loose from racking .
o Check mechanical attachment of the PV modules to the racking.
o Check attachment of racking components to each other and the structure.
o Verify proper system grounding is in place from panels to the inverter.
o Check conduits and raceways for proper anchorage to structures .
o Inspect all metallic parts for corrosion .
o Check combiner boxes for proper fuse sizes and continuity .
o Inspect all wiring connections for signs of poor contact at terminals (burning, discoloration).
o Inspect disconnects for proper operation.
o Survey entire jobsite for debris or obstructions.
o Inspect fasteners for proper torque and corrosion.
o Inspect inverter pad for cracking or settling.
o Inspect electrical hardware for proper warning and rating labeling.
o Inspect alignment of arrays and racking to identify settling foundations or loose attachments.
o Inspect operation of tracking hinges, pivots , motors and actuators ifpresent.
o Check for proper operation and reporting of monitoring hardware.
o Inspect sealed electrical components for condensation buildUp.
o Inspect wiring and hardware for signs of damage from vandalism or animal damage .
• Routine system maintenance to include correction ofloose electrical connections, ground connections, replacement of defective
modules found during testing, other minor maintenance repair work.
• Module cleaning, at a frequency to be determined by the ongoing monitoring of the system such that effect on production is no
more than 5%,
• Routine DAS maintenance to include sensor calibration and data integrity check.
6.2 Troubleshooting, Inspection and Additional Repairs
• Dispatch of field service resources within two business days of notification (via automated or manual means) for repairs as
necessary to maintain system performance.
• Any corrective action required to restore the system to fully operational status shall begin within 24 hours of the service
resources arriving on-site .
• Major system repairs, not to include mid-voltage switchgear or transformers.
6.3 Customer Service Support
• Support telephone line made available to Purchaser staff to answer questions or report issues.
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48
• Support line shall be staffed during operational hours from 8 am -6 pm California Standard Time. During times outside of this
operational period, an urgent call shall be able to be routed to a supervisor for immediate action.
6.4 Major Component Maintenance and Repair
• Inverter repair and component replacement and refurbishment as required in the event of inverter failure.
• Inverter inspection and regular servicing as required under inverter manufacturer's warranty specifications. Those include but
are not limited to the following annually:
a Check appearance/cleanliness of the cabinet, ventilation system and all exposed surfaces.
a Inspect, clean/replace air filter elements
a Check for corrosion on all terminals, cables and enclosure.
a Check all fuses.
a Perform a complete visual inspection of all internally mounted equipment including subassemblies, wiring
harnesses, contactors, power supplies and all major components.
a Check condition of all the AC and DC surge suppressors.
a Torque terminals and all fasteners in electrical power connections.
a Check the operation of all safety devices (E-stop, door switches).
a Record all operating voltages and current readings via the front display panel.
a Record all inspections completed.
a Inform inverter manufacturer of all deficiencies identified.
o Oversee inverter manufacturer performance ofln-Warranty replacement of failed inverter components.
• Customer advocacy with vendors.
6.5 Other System Services
• O&M Manuals -Seller shall provide three (3) copies of O&M Manuals. Updated editions of O&M Manuals shall be sent
electronically to the Purchaser as they become available.
• Management of long term service and warranty agreements, ongoing.
Seller shall log all maintenance calls and document all maintenance activities. These activities shall be presented in a report, which is to
be submitted to the Purchaser upon request.
O&M services shall be priced separately from the design and construction of the PV system. Seller shall submit a detailed description
of their O&M services, detailing the activities and the intervals at which they will be performed, with their Proposal.
End o(Exl,ibit 6-1
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Exhibit 6-2
Equipment Warranties
[CONTRACTOR WARRANTY] [Final TK]
Contractor warrants and guarantees to Purchaser that all of Contractor's work under this agreement will be (a)
performed in a professional and workmanlike manner; (b) performed in accordance with generally accepted home
improvement practices ; (c) performed in accordance with the requirements of this agreement and any required
governmental inspections , tests , or approvals ; and (d) free from material faults and defects in workmanship
("Defects") for a period of ten (10) years after the date of completion of the Project. Contractor warrants that all
materials and equipment will be new unless otherwise specified , and of good quality. All materials and equipment
will be applied , installed, connected, erected, used , cleaned and conditioned in accordance with the instructions
and specifications of the applicable supplier or manufacturer. This warranty includes diagnosis , repair and/or
replacement of the System or System component, exclusive of the manufacturer's coverage. This warranty
extends to the original Purchaser and to any subsequent purchasers or owners of the property during the warranty
period. All work performed under warranty will be done at no cost to the Purchaser.
This warranty does not apply to :
1. Damage, malfunction , or degradation of electrical output caused by failure to properly operate or maintain the
system in accordance with the printed instructions provided with the system .
2. Damage , malfunction , or degradation of electrical output caused by any repair or replacement using a part or
service not provided or authorized by Contractor.
3. Damage , malfunction , or degradation of electrical output resulting from purchaser or third party abuse,
accident , alteration , improper use , negligence or vandalism , or from a Force Majeure.
4 . Design and manufacturing defects in the components. Any manufacturer warranty is the Purchaser 's sole
remedy for design defects .
5. Any or all exclusions described in the manufacturer 's warranty.
6. Normal wear and tear under normal operation.
Elld o(Exllibit 6-2
Final PPA Approved March 19,2018
50
Final PPA Approved March 19,2018
Exhibit 7
(Not Used)
E"d orEx/libi' 7
43
Exhibit 8
Milestone Schedule
The following Mandatory Milestones shall be reflected in the schedule required in Exhibit 6 and shall represent the dates upon which
each milestone is to be achieved for the site in the Agreement.
Mandatory Milestones (plus numbers in Days)
Mandatory Milestone City Hall
50% Schematic Design submittal Design
NTP+20
90% Design Development submittal Design
NTP+40
100% Construction Documents submittal for permitting Design
NTP+50
Approved Construction Documents -All Agency Sites Design
NTP+80
Notice to Proceed
Mobilization -All Agency Sites NTP+45
Substantial Completion -AIl Agency Sites NTP+95
Final Completion All Agency Sites NTP+115
Seller shall provide the following submittals as part of the performance of the Work. The cost of developing and providing submittals
shall be included in the Project price.
Agreement Submittals
Submittal Submittal Date Date
I. System Design
e. System De s ign Documentation At each design milestone TBD
f. Warranties At Construction Documents milestone TBD
(J Testing Plan At Construction Documents milestone TBD o·
h. Power production modeling At Construction Documents milestone TBD
II. Procurements and Construction
c. Safety Plan 30 days before commencement of TBD
construction
d. As-built Documentation After completion of Proving Period TBD
III. Testing
e . Acceptance Test Results After Acceptance Test TBD
f. Startup Test Results After Startup Test TBD
g. Monitoring Data (Proving Period) Continually throughout Proving Period TBD
h. Proving Period Report 30 days after System Startup TBD
IV. Training
d. Training Materials 30 days before Training Session TBD
e. Monitoring Manual 30 days before Training Session TBD
f. Operations & Maintenance Manual 30 days before Training Session TBD
End of Ex IIi bit 8
Final PPA Approved March 19,2018
44
Exhibit 9
Insurance Requirements
SELLER INSURANCE REQUIREMENTS
Seller's Insurance. At all times during the term of the Agreement, and any extension thereof, including, but not limited to, an extension
of the term or for the removal of the System from the Site(s), Seller shall obtain, maintain and keep in full force and effect the following
insurance for coverage of all obligations and associated activities under the Agreement, including, but not limited to, the use and
occupancy of the Site(s), the business operated by the Purchaser thereon, and the construction, installation, operation, maintenance and
repair of the Systems, in the amounts, and with the conditions required, as set forth in this Agreement.
Each policy required below shall include an additional insured endorsement in favor of the Purchaser for ongoing and completed
operations, which endorsement shall specify that such additional insured coverage is primary and non-contributory as to any other
coverage available to the additional insured.
I. Workers' Compensation Insurance for Seller's employees to the extent of statutory limits and Occupational
Disease and Employer's Liability Insurance for not less than $1,000,000. The Seller's worker's compensation
policy shall be specifically endorsed to waive any right of subrogation against the Purchaser.
2. Commercial General Liability Insurance, or its equivalent, including but not limited to Products and Completed
Operations and Contractual Liability, as applicable to Seller's obligations under this Agreement, with limits not
less than $1,000,000 per occurrence and $2,000,000 annual aggregate.
3. Excess Liability Insurance with an aggregate limit of not less than $5,000,000.
4. Without limitation to the foregoing, Seller shall purchase and maintain throughout the term of this Agreement
insurance or indemnity protection that is co-equal with its indemnity obligations hereunder.
WORKERS' COMPENSATION AND PUBLIC LIABILITY PROPERTY DAMAGE INSURANCE (PUBLIC WORKS
CONTRACTS)
The City of San Rafael requires that all Contractors and Subcontractors performing work under a Public Works contract with the City,
carry workers' compensation insurance, public liability insurance and property damage insurance. The public liability insurance and
property damage insurance shall insure the City, its elective and appointive Boards, Commissions, Officers, Agents and Employees, as
follows :
Public Liability:
Property Damage:
Not less than $1,000,000 per person and
$5,000,000 for one occurrence.
Not less than $1,000,000 for one occurrence .
The workers' compensation insurance shall be provided in accordance with applicable statutes, include employers liability coverage of
at least $1,000,000 per accident, per employee and policy limit by disease, and include a waiver of subrogation in favor of the City of
San Rafael, its elective and appointive Boards, Commissions, Officers, Agents and Employees.
The required insurance may be provided by a separate policy insuring the City, its elective and appointive Boards, Commissions,
Officers, Agents and Employees or, if the contractor already has insurance, he may provide the City with the required insurance by
submitting a certificate of insurance and a standard form of additional insured endorsement. For this latter purpose, the City will accept
the following:
"IT IS HEREBY UNDERSTOOD AND AGREED THAT THE CITY OF SAN RAFAEL, its officers, agents and
employees, are additional insureds hereunder but only as respects liability arising out of the land and/or property
Final PPA Approved March 19,2018
45
and/or work described in the Public Works contract for the project entitled, [name o(project] between the City of San
Rafael and [contractorl. for the work and the improvements described therein."
The contractor shall provide satisfactory evidence to the City that the required liability insurance is primary and excess of any other
insurance available to the City.
The contractor's worker's compensation policy shall be specifically endorsed to waive any right of subrogation against City.
Evidence of satisfactory insurance must be furnished to the City at the time of the execution of the Public Works contract together with
evidence that the insurance carrier will not cancel or reduce the coverage of the policy without first giving the City at least thirty (30)
days prior notice. Such notice shall be sent to:
Final PPA Approved March 19,2018
CITY OF SAN RAFAEL
DEPARTMENT OF PUBLIC WORKS
111 MORPHEW STREET
SAN RAFAEL, CA 94901
E"d o(Exllibit 9
46
Exhibit 10
Seller and Purchaser Agreed Responsibilities
Untended to cover such things as tree removal, tree trimming, painting, etc., that are not otherwise specified in the documentl
Tree RemovallTrimming Table
Site 10 #of Type Action Required Responsibility On-going Work
trees Required*
1 ~7 Conifers Remove 1-2 trees along Mission, City N/A
west of power pole
Trim to avoid carport structure City Trim every 5
years
2 1 Sycamore Trim 8-10 feet from top as City Trim every 5-10
feasible years
City Hall 3 1 Sycamore Trimming not needed now, but City Trim every 5-10
City may want to top pre-years
emptively
4 2 Unknown Remove tree to east; trim tree to Contractor N/A
saplings west
5 6-7 Unknown Remove all trees located under Contractor N/A
small carport structure
flowering
E"d o(Exilibit /0
Final PPA Approved March 19,2018
47
CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: Public Works
Project Manager: Kevin McGowan
Extension: 3389
Contractor Name: SolEd Solar Holdings V, LLC
Contractor's Contact: David Kunhardt
Contact's Email: DavidKunhardt<david@sol-ed.com>
D FPPC: Check if Contractor/Consultant must file Form 700
Step RESPONSIBLE DESCRIPTION
DEPARTMENT
1 Project Manager a. Email PINS Introductory Notice to Contractor
b . Email contract (in Word) & attachments to City
Atty c/o Laraine.Gittens@cityofsanrafael.org
2 City Attorney a. Review, revise, and comment on draft agreement
and return to Project Manager
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
3 Project Manager Forward three (3) originals of final agreement to
contractor for their signature
4 Project Manager When necessary, * contractor-signed agreement
agendized for Council approval
*P5A > $20,000; or Purchase> $35,000; or
Public Works Contract> $125,000
Date of Council approval
PRINT CONTINUE ROUTING PROCESS WITH HARD COPY
5 Project Manager Forward signed original agreements to City
Attorney with printed copy of this routing form
6 City Attorney Review and approve hard copy of signed
agreement
7 City Attorney Review and approve insurance in PINS, and bonds
(for Public Works Contracts) *NOTE: To be
obtained at time of construction.
8 City Manager / Mayor Agreement executed by Council authorized official
9 City Clerk Attest signatures, retains original agreement and
forwards copies to Project Manager
COMPLETED
DATE
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