2024/06/25 City Council Resolution 2024-050 RESOLUTION NO. 2024-050
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
MAKING FINDINGS ON ENERGY SAVINGS, DETERMINING OTHER MATTERS IN
CONNECTION WITH ENERGY SERVICE AGREEMENTS,FINDING THIS ACTION
EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA),
AND APPROVING ENERGY SERVICES AGREEMENTS WITH FOREFRONT
POWER
WHEREAS, it is the policy of the State of California and the intent of the State
Legislature to promote all feasible means of energy conservation and all feasible uses of
alternative energy supply sources; and
WHEREAS,the City of Rohnert Park("City") desires to reduce the steadily rising costs
of meeting the energy needs at its facilities; and
WHEREAS, the City proposes to enter into Energy Services Agreements and related
contract documents ("Agreements") with ForeFront Power("ForeFront") for facilities on City
owned property, and which pursuant to those Agreements , ForeFront will design, construct, and
install on City property solar photovoltaic and arrange with the local utility for interconnection of
the facilities, which will generate energy for the sites on which such facilities are located; and
WHEREAS, ForeFront has provided the City with analysis showing the financial and
other benefits of entering into the Energy Services Agreements, which analysis is attached hereto
as Exhibit A and made part hereof by this reference; and
WHEREAS, Exhibit A includes data showing that the anticipated cost to the City for the
electrical energy provided by the solar photovoltaic and energy storage facilities will be less than
the anticipated cost to the City of electrical energy that would have been consumed by the City in
the absence of such measures; and
WHEREAS, ForeFront was the selected vendor for School Project for Utility Rate
Reduction's ("SPURR") Renewable Energy Aggregated Procurement("REAP") Program, a
competitive statewide solar and energy storage request for proposals ("RFP")process, and the
City adopts the REAP Program's competitive process as its own; and
WHEREAS,the City proposes to enter into the Energy Services Agreements and related
contract documents, each in substantially the form presented at this meeting, subject to such
changes, insertions or omissions as the City Manager, or designated staff, reasonably deems
necessary following the Council's adoption of this Resolution; and
WHEREAS,pursuant to Government Code section 4217.12, this Council held a public
hearing, public notice of which was given two weeks in advance,to receive public comment; and
WHEREAS,the Energy Services Agreements are in the best interests of the City; and
WHEREAS,the City's proposed approval of the Energy Services Agreements is a
"Project" for purposes of the California Environmental Quality Act("CEQA"); and
4884-3968-2250 vl
WHEREAS,the Guidelines for CEQA, California Code of Regulations Title 14, Chapter
13 ("State CEQA Guidelines"), exempt certain projects from further CEQA evaluation,
including the following: (1)projects consisting of the new construction or conversion of small
structures ("Class 3 Exemption"; Cal. Code Regs., tit. 14, § 15303); and (2) projects consisting
of the construction or placement of minor accessory structures to existing facilities ("Class 11
Exemption"; Cal. Code Regs., tit. 14, § 15311); and the Project is categorically exempt under
one or more of such exemptions; and
WHEREAS,the Project does not involve any of the following and so is eligible for a
categorical exemption as described above under State CEQA Guidelines section 15300.2:
(a)the cumulative impact of successive projects of the same type in the same place,
which over time are significant;
(b) an activity where there is a reasonable possibility that the activity will have a
significant effect on the environment due to unusual circumstances;
(c) a project which may result in damage to scenic resources, including but not limited to,
trees, historic buildings, rock outcroppings, or similar resources, within a highway
officially designated as a state scenic highway;
(d) a hazardous waste site which is included on any list compiled pursuant to Section
65962.5 of the Government Code; and
(e) a project which may cause a substantial adverse change in the significance of a
historical resource; and
WHEREAS, Public Resources Code, section 21080.35 (added by Stats.2011, c. 469
(S.B.226), § 3), statutorily exempts from CEQA evaluation the installation of a solar energy
system, including associated equipment, on the roof of an existing building or at an existing
parking lot.
NOW,THEREFORE, BE IT RESOLVED based upon the above-referenced recitals,
the Council hereby finds, determines and orders as follows:
1. The terms of the Energy Services Agreements and related agreements are in the best
interests of the City.
2. In accordance with Government Code section 4217.12, and based on data provided by
Exhibit A, the Council finds that the anticipated cost to the City for electrical energy
provided by the Energy Services Agreements will be less than the anticipated cost to
the City of electrical energy that would have been consumed by the City in the
absence of the Energy Services Agreements.
3. The Council hereby approves the Energy Services Agreements in accordance with
Government Code section 4217.12.
4. The City Manager is hereby authorized and directed to negotiate any further changes,
insertions, and omissions to the Energy Services Agreements as reasonably deemed
necessary, and thereafter to execute and deliver the Energy Services Agreements
following the Council's adoption of this Resolution. The City Manager is further
authorized and directed to execute and deliver any and all papers, instruments,
opinions, certificates, affidavits, and other documents and to do or cause to be done
4884-3968-2250 v l Resolution 2024-050
Page 2 of 3
any and all other acts and things necessary or proper for carrying out this Resolution
and said agreements.
5. The Project hereby found to be exempt from the requirements of CEQA pursuant to
the Class 3 and Class 11 Exemptions, as described above.
6. The Project is hereby found to be exempt from the requirements of CEQA pursuant to
Public Resources Code, section 21080.35 (added by Stats.2011, c. 469 (S.B.226), §
3), as described above.
7. City staff are hereby authorized to file and process a Notice of CEQA Exemption for
the Project in accordance with CEQA and the State CEQA Guidelines, and the
findings set forth in this resolution.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute documents pertaining to the same for and on behalf of the City of Rohnert Park, and the
City Attorney's office is authorized to make minor edits to the documents.
DULY AND REGULARLY ADOPTED this 25th day of June, 2024.
CITY OF ROHNERT PARK
ATTEST: Susan H. Adams, Mayor
Sylvia Lopez Cuevas,
PRO ED AS TO FORM:
Mic elle M. Kenyo , i At rney
Attachments: Exhibit A: Project Cashflows, Exhibit B: General Terms and Conditions of Energy
Services Agreement, Exhibit C: Energy Services Agreement - Solar: City Center, Exhibit D:
Energy Services Agreement- Solar: Callinan Sports and Fitness Center, Exhibit E: Energy
Services Agreement - Solar: Spreckels Performing Arts Center
ELWARD: I. RODRIGUEZ: ` _SANBORN: AL, GIUDICE: AJLADAMS: AA.-
A ES: ( .L"-) NOES: ( ) ABSENT: ( ABSTAIN: (,)
4884-3968-2250 vI Resolution 2024-050
Page 3 of 3
Project Cashflows: GC 4217 Attachment A
Rate Scenario NEM 2.0
Solutions Solar Only Financial Assumptions
Project City Portfolio Parameter Value
Year 1 Savings $81,711 PPA Rate Escalator (%/yr) 0.0%
Cumulative Savings $5,849,141 Utility Energy Escalator (%/yr) 2.7%
Payback Period Immediate Utility Demand Escalator (%/yr) 5.0%
Solar System Size (KW) 1,106 PPA Term (Years) 20
Storage System Size (KW) 0 Solar Degradation Rate (%) 0.50%
Year Pre-Solar Utility Bill
(without solar)PPA Payment New Utility Bill
(with solar)
Total Electricity Costs
(PPA + Utility)Net Savings Cumulative Savings
1 667,878 439,742 146,425 586,167 81,711 81,711
2 689,438 437,544 151,781 589,325 100,114 181,824
3 711,757 435,356 157,352 592,708 119,049 300,873
4 734,864 433,179 163,147 596,327 138,537 439,410
5 758,788 431,013 169,176 600,190 158,599 598,009
6 783,563 428,858 175,449 604,308 179,256 777,265
7 809,222 426,714 181,977 608,691 200,531 977,796
8 835,798 424,580 188,770 613,351 222,447 1,200,243
9 863,328 422,458 195,841 618,299 245,029 1,445,272
10 891,850 420,345 203,201 623,547 268,303 1,713,575
11 921,402 418,244 210,864 629,108 292,294 2,005,869
12 952,026 416,152 218,843 634,995 317,031 2,322,900
13 983,764 414,072 227,151 641,222 342,541 2,665,441
14 1,016,660 412,001 235,803 647,804 368,856 3,034,297
15 1,050,762 409,941 244,815 654,757 396,005 3,430,302
16 1,086,116 407,891 254,203 662,094 424,022 3,854,324
17 1,122,775 405,852 263,983 669,835 452,940 4,307,264
18 1,160,790 403,823 274,173 677,996 482,794 4,790,058
19 1,200,216 401,804 284,791 686,594 513,622 5,303,680
20 1,241,112 399,795 295,856 695,651 545,461 5,849,141
Total $18,482,109 $4,243,603 $12,632,968 $5,849,141 $5,849,141
CONFIDENTIAL AND PROPRIETARY
***
GENERAL TERMS AND CONDITIONS OF
ENERGY SERVICES AGREEMENT
These General Terms and Conditions of Energy Services Agreement are dated as of the ;J.5~ay of J ~,ne, , 2024
and are witnessed and acknowledged by FFP BTM SOLAR, LLC, a Delaware limited liability company ("ForeFront
Power") and City of Rohnert Park, a Municipal Corporation ("Purchaser"), as evidenced by their signature on the
last page of this document. These General Terms and Conditions are intended to be incorporated by reference into
Energy Services Agreements that may be entered into between ForeFront Power and Purchaser or between their
respective Affiliates. These General Terms and Conditions shall have no binding effect upon ForeFront Power or
Purchaser, respectively, except to the extent Purchaser or ForeFront Power (or an Affiliate thereof) becomes a party
to an Energy Services Agreement that incorporates these General Terms and Conditions.
1. DEFINITIONS.
1.1 In addition to other terms specifically defined elsewhere in this Agreement, where capitalized, the
following words and phrases shall be defined as follows:
"Affiliate" means, with respect to any specified Person, any other Person directly or indirectly controlling, controlled
by or under common control with such specified Person.
"Agreement" means, the Energy Services Agreement.
"Applicable Law' means , with respect to any Person, any constitutional provision, law, statute, rule, regulation,
ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, registration, license, franchise,
permit, authorization, guideline, Governmental Approval , consent or requirement of any Governmental Authority
having jurisdiction over such Person or its property, enforceable at law or in equity, including the interpretation and
administration thereof by such Governmental Authority .
"Assignment" has the meaning set forth in Section 13.1.
"Bankruptcy Event" means with respect to a Party, that either (i) such Party has (A) applied for or consented to the
appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property; (8) admitted in writing its inability, or be generally unable, to pay its debts as such
debts become due; (C) made a general assignment for the benefit of its creditors; (D) commenced a voluntary case
under any bankruptcy law; (E) filed a petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding up, or composition or readjustment of debts; (F) taken any corporate or other
action for the purpose of effecting any of the foregoing; or (ii) has a petition in bankruptcy filed against it, and such
petition is not dismissed within ninety (90) days after the filing thereof.
"Business Day means any day other than Saturday, Sunday or any other day on which banking institutions in New
York, NY are required or authorized by Applicable Law to be closed for business.
GENERAL CONDITIONS (JUNE 2018)
"Commercial Operation" has the meaning set forth in Section 3.3(b).
"Commercial Operation Date" has the meaning set forth in Section 3.3(b).
"Confidential Information" has the meaning set forth in Section 15.1 .
"Covenants. Conditions and Restrictions" or "CCR" means those requirements or limitations related to the Premises
as may be set forth in a lease, if applicable, or by any association or other organization, having the authority to impose
restrictions.
"Delay Liquidated Damages" means the daily payment of (i) $0.250/day/kW (DC) of the Estimated Nameplate
Capacity of the System (as set forth in Schedule 1 of the Special Conditions).
"Disruption Period" has the meaning set forth in Section 4.3.
"Early Termination Date" means any date on which this Agreement terminates other than by reason of expiration of
the then applicable Term.
"Early Termination Fee" means the fee payable by Purchaser to Provider under the circumstances described in Section
2.2, Section 2.3 or Section 11.2.
"Effective Date" has the meaning set forth in the preamble to the Special Conditions.
"Energy Services" has the meaning set forth in the Special Conditions.
"Energy Services Agreement" means each Energy Services Agreement (including the Schedules attached thereto) that
may be entered into between Forefront Power and Purchaser or between their respective Affiliates that incorporates
these General Terms and Conditions by reference.
' Energy Services Payment" has the meaning set forth in the Special Conditions.
"Environmental Attributes" shall mean, without limitation, carbon trading credits, renewable energy credits or
certificates, emissions reduction credits, emissions allowances, green tags, tradable renewable credits, or Green-e®
products.
"Environmental Documents" has the meaning set forth in Section 7.2(f).
"Environmental Law" means any and all federal, state, local, provincial and foreign, civil and criminal laws,
statutes, ordinances, orders, common law, codes, rules, regulations, judgments, decrees, injunctions relating
to the protection of health and the environment, worker health and safety, and/or governing the handling, use,
generation, treatment, storage, transportation, disposal, manufacture, distribution, formulation, packaging,
labeling, or release to the environment of or exposure to Hazardous Materials, including any such
requirements implemented through Governmental Approvals.
"Estimated Nameplate Capacity" means the lesser of (i) the projected total installed rated capacity of the
System and (ii) specified maximum power output of the inverter(s) as may be adjusted from time-to-time on
or prior to the Commercial Operation Date to reflect prevailing conditions, including without limitation,
changes in interconnection capabilities, site conditions, environmental factors, equipment specifications, and
other relevant variables that impact System performance.
"Estimated Remaining Payments' means as of any date, the estimated remaining Energy Services Payments to be
made through the end of the then-applicable Term, as reasonably determined by Provider.
"Expiration Date" means the date on which this Agreement terminates by reason of expiration of the Term.
Page 2 of26
"Fair Markel Value' means, with respect to any tangible asset or service, the price that would be negotiated in an
arm's-length, free market transaction, for cash, between an informed, willing seller and an informed, willing buyer,
neither of whom is under compulsion to complete the transaction. Fair Market Value of the System will be determined
pursuant to Section 2.4.
"Financing Party" means, as applicable (i) any Person (or its agent) from whom Provider (or an Affiliate of Provider)
leases the System, (ii) any Person (or its agent) who has made or will make a loan to or otherwise provides financing
to Provider ( or an Affiliate of Provider) with respect to the System, or (iii) any Person acquiring a direct or indirect
interest in Provider or in Provider's interest in this Agreement or the System , including (but not limited to) as a tax
credit investor.
"Force Majeure Event '' has the meaning set forth in Section 10.1.
"Forefront Power" has the meaning set forth in the Preamble.
"General Terms and Conditions" means these General Terms and Conditions of the Energy Services Agreement,
including all Exhibits hereto .
"Guaranteed Commercial Operation Date" has the meaning set forth in Section 5 of the Special Conditions, subject to
extension as set forth in Section 2.2(b).
"Guaranteed Construction Start Date" has the meaning set forth in Section 5 of the Special Conditions, subject to
extension as set forth in Section 2 .2(b ).
"Governmental Approva l" means any approval, consent, franchise, permit, certificate, resolution, concession, license,
or authorization issued by or on behalf of any applicable Governmental Authority, including any such approval,
consent, order or binding agreements with or involving a governmental authority under Environmental Laws.
'Governmental Authori ty " means any federal, state, regional, county, town, city, or municipal government, whether
domestic or foreign, or any department, agency, bureau, or other administrative, regulatory or judicial body of any
such government.
"Hazardous Material s ' means any hazardous or toxic material, substance or waste, including petroleum, petroleum
hydrocarbons or petroleum products, and any other chemicals, materials, substances or wastes in any amount or
concentration which are regulated under or for which liability can be imposed under any Environmental Law.
"Init ial Term" has the meaning set forth in Section 2 of the Special Conditions.
"Installation Work" means the construction and installation of the System and the start-up, testing and acceptance (but
not the operation and maintenance) thereof, all performed by or for Provider (by using one or more qualified
contractors holding the appropriate licenses required in the jurisdiction where the System will be installed) at the
Premises.
"Invoice Date" has the meaning set forth in Section 6.2.
"Liens" has the meaning set forth in Section 7 .1 ( d).
"Local E le ctr ic Utility" means the local electric distribution owner and operator providing electric distribution and
interconnection services to Purchaser at the Premises.
' Los ses" means all losses, liabilities, claims, demands, suits, causes of action, judgments, awards, damages, cleanup
and remedial obligations, interest, fines, fees, penalties, costs, and expenses (including all attorneys' fees and other
costs and expenses incurred in defending any such claims or other matters or in asserting or enforcing any indemnity
obi igation ).
Page 3 of26
"Notice" means the manner of delivery and the Parties designees identified in Schedule 5 of the Energy Services
Agreement -Special Conditions applicable to this Agreement.
"Option Price" has the meaning set forth in Section 2.3(i).
"Party" or "Parties" has the meaning set forth in the preamble to the Special Conditions.
"Person" means an individual, partnership, corporation, limited liability company, business trust,joint stock company,
trust, unincorporated association ,joint venture, firm, or other entity, or a Governmental Authority.
"Pre-existing Environmental Conditions" means any: (i) violation of, breach of or non-compliance with any
Environmental Laws with respect to the Premises that first existed, arose or occurred on or prior to Provider's
commencement of construction at the Premises and (ii) the presence or release of, or exposure to, any Hazardous
Materials at, to, on, in, under or from the Premises that first existed, arose or occurred on or prior to Provider's
commencement of construction at the Premises.
"Premises" means the premises described in Schedule I of the Special Conditions. The Premises includes the entirety
of any structures and underlying real property located at the address in Schedule I of the Special Conditions.
"Provider" has the meaning set forth in the Special Conditions.
"Provider Default" has the meaning set forth in Section 11. l(a).
"Provider Indemnified Parties" has the meaning set forth in Section 16.2.
"Purchase Date" means the first Business Day that occurs after the applicable purchase date set forth in Schedule 3 of
the Special Conditions.
"Purchaser" has the meaning set forth in the preamble to the Special Conditions.
"Purchaser Default'' has the meaning set forth in Section 1 l.2(a).
"Purchaser lndemni fied Parties" has the meaning set forth in Section 16.1.
'Renewal Term" if applicable, has the meaning set forth in Section 2 of the Special Conditions.
'Representative" has the meaning set forth in Section 15.1.
"Security Interest" has the meaning set forth in Section 8.2(a).
"Site-Specific Requirements" means the site-specific information and requirements as may be set forth in Schedule 6
of the Special Conditions .
"Special Conditions" means each Energy Services Agreement, excluding these General Terms and Conditions.
"Stated Rate' means a rate per annum equal to the lesser of(a) the "prime rate" (as reported in The Wall Street Journal)
plus two percent (2%) or (b) the maximum rate allowed by Applicable Law.
"System" has the meaning set forth in Schedule I of the Special Conditions.
"System-based Incentives'' means any accelerated depreciation, installation or production-based incentives,
investment tax credits and subsidies including, but not limited to, the subsidies in Schedule I of the Special Conditions
and all other related subsidies and incentives .
Page 4 of26
"System Operations" means Provider's operation, maintenance and repair of the System performed by Provider or for
Provider (by using one or more qualified contractors holding the appropriate licenses required in the jurisdiction where
the System will be installed) in accordance with the requirements herein.
"Term" means the Initial Term, and the subsequent Renewal Term(s), ifany.
"Term Year" means a twelve (12) month period beginning on the first day of the Tenn and each successive
twelve (12) month period thereafte!'.
"Termination Date" means the date on which this Agreement ceases to be effective, including on an Early Termination
Date or the Expiration Date.
1.2 Interpretation. The captions or headings in these General Terms and Conditions are strictly for
convenience and shall not be considered in interpreting this Agreement. Words in this Agreement that impart the
singular connotation shall be interpreted as plural, and words that impart the plural connotation shall be interpreted as
singular, as the identity of the parties or objects referred to may require. The words "include", "includes", and
"including" mean include, includes, and including "without limitation" and "without limitation by specification." The
words "hereof', "herein", and "hereunder" and words of similar import refer to this Agreement as a whole and not to
any particular provision of this Agreement. Except as the context otherwise indicates, all references to "Articles" and
"Sections" refer to Articles and Sections of these General Terms and Conditions .
2. TERM AND TERMINATION.
2.1 Term . The Initial Term is as specified in the Special Conditions.
2.2 Early Termination.
(a) Purchaser may terminate this Agreement prior to any applicable Expiration Date, when such action
is deemed by the Purchaser, to be in its best interest or for any reason upon sixty (60) days' prior written
Notice in the form and to the Parties identified in Schedule 5 "Notice" of the Energy Services Agreement,
Special Conditions applicable to this Agreement. If Purchaser terminates the Agreement prior to the
Expiration Date of the Initial Term, Purchaser shall pay, as liquidated damages, the Early Termination Fee
set forth on Schedule 3, Column l of the Special Conditions, and Provider shall cause the System to be
disconnected and removed from the Premises in accordance with Section 2.4. Upon Purchaser's payment to
Provider of the Early Termination Fee, this Agreement shall terminate automatically. Notwithstanding
Section 2.2(b) of this Agreement and without prejudice to Provider's right to receive an Early Termination
Fee in accordance with this Section 2.2, upon receipt ofa Notice of termination, the Provider shall maintain
books, records and documents, or other evidence documenting the costs and expenses of Provider under this
Agreement for two years following receipt of such Notice.
(b) Purchaser may (i) if Provider fails to commence construction by the Guaranteed Construction Start
Date, be entitled (as its sole remedy) to Delay Liquidated Damages not to exceed $22.5/kW (DC) of the Estimated
Nameplate Capacity of the System (as set forth in Schedule I of the Special Conditions), (ii) terminate this Agreement
with no liability whatsoever, including, but not limited to the Early Termination Fee, if Provider fails to commence
construction of the System by the date that is ninety (90) days after the Guaranteed Construction Start Date, or (iii) if
Provider fails to achieve Commercial Operation by the Guaranteed Commercial Operation Date, be entitled (as its
sole remedy) to Delay Liquidated Damages not to exceed $15/kW (DC) of the Estimated Nameplate Capacity of the
System (as set forth in Schedule I of the Special Conditions), plus (if Installation Work had commenced at the
Premises as of the date of termination) any costs reasonably incurred by Purchaser to return its Premises to its condition
prior to commencement of the Installation Work. Further, Purchaser may terminate this Agreement with no liability
whatsoever, including, but not limited to the Early Termination Fee, if Provider fails to commence Commercial
Operation by the date that is sixty (60) days after the Guaranteed Commercial Operation Date. The Guaranteed
Construction Start Date and Guaranteed Commercial Operation Date shall be extended on a day-for-day basis if any
of the following occurs: (x) notwithstanding Provider's commercially reasonable efforts, interconnection approval is
not obtained within sixty (60) days after the Effective Date, provided that interconnection applications are submitted
Page 5 of26
within 45 days of the later of (a) the Effective Date and (b) finalization of the System layout, (y) a Force Majeure
Event occurs or for any delays by the Local Electric Utility or (z) an occurrence of any other unforeseeable event
outside of Provider's reasonable control, provided that Provider makes reasonable efforts to mitigate the impact of
such events on the Guaranteed Construction Start Date or Guaranteed Commercial Operation Date (as applicable).
Any such extension pursuant to subsection (z) shall be subject to the approval of Purchaser which shall not be
unreasonably withheld, conditioned or delayed.
2.3 Purchase Option.
(i) On any Purchase Date, so long as a Purchaser Default shall not have occurred and be continuing,
Purchaser has the option to purchase the System for a purchase price (the "Option Price") equal to the greater of (a)
the Fair Market Value of the System as of the Purchase Date, or (b) the Early Termination Fee as of the Purchase
Date, as specified in Schedule 3, Column 2 of the Special Conditions. To exercise its purchase option, Purchaser
shall, not less than one hundred and eighty (180) days prior to the proposed Purchase Date, provide written Notice to
Provider Purchaser's intent to exercise its option to purchase the System on such Purchase Date. Within thirty (30)
days of receipt of Purchaser's Notice, Provider shall specify the Option Price, and provide all calculations and
assumptions supporting said Option Price to Purchaser. Purchaser shall then have a period of thirty (30) days after
notification to confirm or retract its decision to exercise the purchase option or, if the Option Price is equal to the Fair
Market Value of the System, to dispute the determination of the Fair Market Value of the System. In the event
Purchaser con firms its exercise of the purchase option in writing to Provider ( whether before or after any determination
of the Fair Market Value determined pursuant to Section 2.3(ii)), (i) the Parties shall promptly execute all documents
necessary to (A) cause title to the System to pass to Purchaser on the Purchase Date, free and clear of any Liens, and
(8) assign all vendor warranties for the System to Purchaser, and (ii) Purchaser shall pay the Option Price to Provider
on the Purchase Date, such payment to be made in accordance with any previous written instructions delivered to
Purchaser by Provider or Provider's Financing Party, as applicable, for payments under this Agreement. Upon
execution of the documents and payment of the Option Price, in each case as described in the preceding sentence, this
Agreement shall terminate automatically. Payment of the Option Price shall be in lieu of and instead of any payments
as described in Section 2.2 hereof. In the event Purchaser retracts its exercise of, or does not timely confirm, the
purchase option, the provisions of this Agreement shall be applicable as if Purchaser had not exercised any option to
purchase the System.
(ii) Determinati on of Fair Market Value. If the Option Price indicated by Provider in accordance with
Section 2.3(i) is equal to the Fair Market Value (as determined and demonstrated by supporting documentation
provided by Provider) and Purchaser disputes such stated Fair Market Value within thirty (30) days of receipt of such
Notice from Provider, then the Parties shall mutually select an independent appraiser with experience and expertise in
the standards of the Energy Services industry as those standards are interpreted in the nine county region defined by
the Association of Bay Area Governments as the San Francisco Bay Area,. Such appraiser shall have expertise and
experience in valuing photovoltaic systems, resale markets for such systems and related environmental attributes, and
shall act reasonably and in good faith to determine Fair Market Value and shall set forth such determination in a
written opinion delivered to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the
absence of fraud or manifest error; however, if Purchaser in good faith disputes the valuation made by the appraiser,
Purchaser shall have the right to retract its decision to exercise the Purchase Option. The costs of the appraisal shall
be borne by Purchaser if such appraisal results in a value equal or greater than the value provided by Provider pursuant
to Section 2.3(i); otherwise, the Parties shall equally share such cost.
2.4 Removal of System at Expiration. Subject to Purchaser's exercise of its purchase option under
Section 2.3, upon the expiration or earlier termination of this Agreement, Provider shall, at Provider's expense, remove
all of its tangible property comprising the System from the Premises on a mutually convenient date but in no case later
than ninety (90) days after the Termination Date. The Premises shall be returned to its original condition, except for
System mounting pads or other support structures on roof-mounted systems only, and ordinary wear and tear. If the
System is to be located on a roof, then in no case shall Provider'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 System (other than ordinary wear and tear).
For purposes of Provider's removal of the System, Purchaser's covenants pursuant to Section 7.2 shall remain in effect
until the date of actual removal of the System. Provider shall leave the Premises in neat and clean order. If Provider
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 Premises to its original condition
Page 6 of26
(other than System mounting pads or other support structures and ordinary wear and tear) at Provider's reasonable
cost.
2.5 Conditions Prior to the Commercial Operation Date.
(a) In the event that any of the following events or circumstances occur prior to the Commercial
Operation Date, Provider may (at its sole discretion) provide Notice that it is terminating this Agreement, in which
case neither Party shall have any liability to the other except for any such liabilities that may have accrued prior to
such termination, including but not limited to Provider's restoration of the Premises in accordance with Section 2.4:
(i) Provider determines that the Premises, as is, is insufficient to accommodate the System or unsuitable
for construction or operation of the System.
(ii) There exist site conditions (including environmental conditions) or construction requirements that
were not known as of the Effective Date and that could reasonably be expected to materially increase the cost of
Installation Work or would adversely affect the electricity production from the System as designed.
(iii) There is a material adverse change in the regulatory environment, incentive program or federal or
state tax code (including the expiration of any incentive program or tax incentives in effect as of the Effective Date)
that could reasonably be expected to adversely affect the economics of the installation for Provider and its investors.
(iv) Provider is unable to obtain financing for the System on terms and conditions satisfactory to it.
(v) Provider has not received: (1) a fully executed a license in the form substantially similar to
Exhibit A of these General Conditions from the owner of the Premises (if the Purchaser is a tenant), (2) a release or
acknowledgement from any mortgagee of the Premise, if required by Provider's Financing Party, to establish the
priority of its security interest in the System, and (3) such other documentation as may be reasonably requested by
Provider to evidence Purchaser's ability to meet its obligations under Section 7.2(dXii) to ensure that Provider will
have access to the Premises throughout the Tenn.
(vi) There has been a material adverse change in the rights of Purchaser to occupy the Premises or
Provider to construct the System on the Premises.
(vii) Purchaser has determined that there are easements, CCRs or other land use restrictions, liens or
encumbrances that would materially impair or prevent the installation, operation, maintenance, or removal of the
System.
(viii) There has been a material adverse change in Purchaser's credit-worthiness.
(b) If any of the conditions set forth in Section 2.5(a) are partly or wholly unsatisfied, and Provider
wishes to revise the information in the Special Conditions, then Provider may propose modifications to the Special
Conditions for acceptance by Purchaser. If Purchaser does not accept such modified Special Conditions, Provider
may terminate this Agreement as provided in Section 2.5(a) and shall restore the Premises in accordance with Section
2.4. If Purchaser accepts such revised Special Conditions, such revised Special Conditions shall be deemed an
amendment of this Agreement, and this Agreement shall remain in force and effect upon execution by both Parties.
2.6 Co-Located Systems. With respect to any Systems that are co-located at the same Premises and
connected to the same meter, the Parties acknowledge that the Systems are intended to be owned and operated as one
integrated system, and that the Energy Services Payment (a) represents the added value of integrating the Systems to
enable Provider's delivery of the Energy Services pursuant to the Agreements when needed by Purchaser, and (b) is
a component part of the total consideration payable to Provider in exchange for Provider's comprehensive duties under
this Agreement and the Agreement(s) related to the other co-located System(s). Accordingly, the Parties further agree
(x) to treat the Systems as one integrated system for all purposes, and (y) that any right or option that is exercised with
respect to the System or this Agreement, whether in respect of early termination, purchase option or otherwise, shall
also be exercised with respect to the Agreement(s) related to the other co-located System(s).
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3.1 Installation Work. Provider will cause the System (by using one or more qualified contractors
holding the appropriate licenses required in the jurisdiction where the System will be installed) to be designed,
engineered, installed and constructed substantially in accordance with Schedule I of the Special Conditions and
Applicable Law. Purchaser shall have the right to review all construction plans and designs, including engineering
evaluations of the impact of the System. Provider shall perform the Installation Work at the Premises between the
hours of 7:00 a.m. and 7:00 p.m. in a manner that minimizes inconvenience to and interference with the use of the
Premises to the extent commercially practical.
3.2 Approvals; Permits. Purchaser shall assist Provider in obtaining all necessary consents, approvals
and permits required to perform Purchaser's obligations under this Agreement, including but not limited to those
related to the Local Electric Utility, any Governmental Approval, and any consents, waivers, approvals or releases
required pursuant to any applicable contract or CCR.
3.3 System Acceptance Testing.
(a) Provider shall conduct testing of the System in accordance with such methods, acts, guidelines,
standards and criteria reasonably accepted or followed by providers of Energy Services within the nine county region
defined by the Association of Bay Area Governments as the San Francisco Bay Area ... Provider shall provide
Purchaser with reasonable advanced Notice of such testing, . Provider shall permit Purchaser or Purchaser's
representative to observe such testing. Purchaser's observation of such testing shall not be construed as or deemed an
approval of such testing or test results.
(b) If the results of such testing indicate that the System is capable of providing the Energy Services,
using such instruments and meters as have been installed for such purposes, and the System has been approved for
interconnected operation by the Local Electric Utility ("Commercial Operation"), then Provider shall send a written
Notice to Purchaser to that effect, and the date of such Notice shall be the' Commercial Operation Date".
4. SYSTEM OPERATIONS.
4.1 Provider as Owner and Operator. The System will be owned by Provider or Provider's Financing
Party and will be operated and maintained and, as necessary, repaired by Provider at its sole cost and expense;
provided, any repair or maintenance costs incurred by Provider as a result of Purchaser's negligence or breach of its
obligations hereunder shall be reimbursed by Purchaser.
4.2 Metering. Provider shall install and maintain a utility grade kilowatt-hour (kWh) meter for the
measurement of electrical energy provided by the System and may, at its election, install a utility grade kilowatt-hour
(kWh) meter for the measurement of electrical energy delivered by the Local Electric Utility and consumed at the
Premises. Such meter(s) shall meet the general commercial standards of the solar photovoltaic industry or the required
standards of the Local Electric Utility.
4.2.1 leter Testing.
(a) Provider shall provide certificates of calibration for all meters prior to the time of their installation,
no meter will be placed in service for which Provider has not provided certificates of calibration. Provider shall test
or arrange for all meters to be tested in accordance with the meter manufacturer's recommendations. Provider shall
bear all costs and expenses associated with each meter testing. Purchaser shall be notified at least ten (10) days in
advance of such testing and shall have the right to be present during such tests. Provider shall provide Purchaser with
detailed written results of all meter tests.
(b) Provider shall test or arrange for meter inspection and testing bi-annually when performing System
operations and maintenance .
4.2.2 Cost of Meter Repair.
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(a) If meter testing, as described above demonstrates that a meter was operating outside of its allowable
calibrations (+/-2%), then Provider will pay for the cost of repairs or replacement necessary to restore a meter to
proper working order.
(b) Ifa meter is found to be inaccurate by more than two percent (2%), invoices for the prior six (6)
months or from the last date such meter was registering accurately, whichever period is less, shall be adjusted to
reconcile the discrepancy and payment for the amount of the adjustment issued by the appropriate party within 45
days, except that Purchaser shall not be obligated to pay interest on any amount found to be due because a meter was
operating outside of its allowable calibration(+/-2%).
4.2.3 Meter Data. Provider shall gather and maintain the data from all meters, including but not limited
to, interval data registered at least once every fifteen (15) minutes (' Meter Data"), and shall make such Meter Data
promptly available to Purchaser at Purchaser's request.
4.3 System Disruptions. In the event that (a) the owner or lessee of the Premises repairs the Premises
for any reason not directly related to damage caused by the System, and such repair requires the partial or complete
temporary disassembly or movement of the System, or (b) any act or omission of Purchaser or Purchaser's employees,
Affiliates, agents or subcontractors (collectively, a 'Purchaser Act") results in a disruption or outage in System
production, then, in either case, Purchaser shall (i) pay Provider for all work required by Provider to disassemble or
move the System and (ii) continue to make all payments for the Energy Services during such period of System
disruption (the "Disruption Period"), and (iii) reimburse Provider for any other lost revenue during the Disruption
Period, including any lost revenue associated with any reduced sales of Environmental Attributes and any reduced
System-based Incentives, if applicable, during the Disruption Period. For the purpose of calculating Energy Services
Payments and lost revenue for such Disruption Period, Energy Services for each month of said months shall be deemed
to have been produced at the average rate over the same month for which data exists (or, if the disruption occurs within
the first twelve (12) months of operation, the average over such period of operation). Notwithstanding the foregoing,
Purchaser shall be entitled to exercise its rights under Section 9 (Allowed Disruption Time) of the Special Conditions.
5 . TITLE TO SYSTEM.
5.1 Throughout the duration of this Agreement, Provider or Provider's Financing Party shall be the legal
and beneficial owner of the System at all times, and the System shall remain the personal property of Provider or
Provider's Financing Party and shall not attach to or be deemed a part of, or fixture to, the Premises. The System shall
at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code.
Purchaser covenants that it will use reasonable commercial efforts to place all parties having an interest in or lien upon
the real property comprising the Premises on Notice of the ownership of the System and the legal status or
classification of the System as personal property. If there is any mortgage or fixture filing against the Premises which
could reasonably be construed as attaching to the System as a fixture of the Premises, Purchaser shall provide, at
Provider's request, a disclaimer or release from such lien holder. If Purchaser is the fee owner of the Premises,
Purchaser consents to the filing by Provider, on behalf of Purchaser, of a disclaimer of the System as a fixture of the
Premises in the office where real estate records are customarily filed in the jurisdiction of the Premises. If Purchaser
is not the fee owner, Purchaser will, at Provider 's request, use commercially reasonable efforts to obtain such consent
from such owner.
5 .2 Environm ental Attributes And System-B as ed In centives . Purchaser's purchase of Energy
Services includes Environmental Attributes , but does not include System-based incentives. System-based
Incentives shall be owned by Provider or Provider's financing party for the duration of the System's operating
life. Purchaser disclaims any right to System-based Incentives based upon the installation of the System at
the Premises, and shall, at the request of Provider, execute any document or agreement reasonably necessary
to fulfill the intent of this Section 5 .2.
6 . PRICE AND PAYMENT.
6.1 Consideration . Purchaser shall pay to Provider a monthly Energy Services Payment for the Energy
Services provided during each calendar month of the Term as set forth in the Special Conditions .
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6.2 Invoice . Provider shall invoice Purchaser on or about the first day of each month (each, an "Invoice
Date"), commencing on the first Invoice Date to occur after the Commercial Operation Date, for the Energy Services
Payment in respect of the immediately preceding month. The last invoice shall include Energy Services provided only
through the Termination Date of this Agreement. Invoices shall state, at a minimum, (i) the amount of actual electricity
produced by the System and delivered to the delivery point during the invoice period (if applicable), (ii) the rates
applicable to, and any charges incurred by, Purchaser under this Agreement, and (iii) the total amount due from
Purchaser.
6 .3 Time of Payment. Purchaser shall pay all undisputed amounts due hereunder within thirty (30) days
after Purchaser's receipt of an invoice from Provider.
6.4 Method of Payment. Purchaser shall make all payments under this Agreement either (a) by
electronic funds transfer in immediately available funds to the account designated by Provider from time to time or
(b) by check timely delivered to the location designated by Provider from time to time. All payments that are not paid
when due shall bear interest accruing from the date becoming past due until paid in full at a rate equal to the Stated
Rate.
6.5 Disputed Payments. Ifa bona fide dispute arises with respect to any invoice, Purchaser shall not be
deemed in default under this Agreement and the Parties shall not suspend the performance of their respective
obligations hereunder, including payment ofundisputed amounts owed hereunder. If an amount disputed by Purchaser
is subsequently deemed to have been due pursuant to the applicable invoice, interest shall accrue at the Stated Rate on
such amount from the date becoming past due under such invoice until the date paid.
7. GENERAL COVENANTS.
7.1 Provider's Covenants. Provider covenants and agrees to the following :
(a) otice of Damage or Emergency. Provider shall (x) promptly notify Purchaser ifit becomes aware
of any damage to or loss of the use of the System or that could reasonably be expected to adversely affect the System,
(y) immediately notify Purchaser if it becomes aware of any event or circumstance relating to the System or the
Premises that poses a significant risk to human health, the environment, the System or the Premises. In the event of
unreasonable damage to the Premises caused by, or as the result of, the System, Provider shall, at its sole cost, repair
said Premises to the condition existing prior to such damage.
(b) Governmental Approvals. While providing the Installation Work, Energy Services, and System
Operations, Provider shall obtain and maintain and secure all Governmental Approvals required to be obtained and
maintained and secured by Provider and to enable Provider to perform such obligations.
(c) Health and Safety. Provider shall take all necessary and reasonable safety precautions with respect
to providing the Installation Work, Energy Services, and System Operations that shall comply with all Applicable
Laws pertaining to the health and safety of persons and real and personal property. All work shall be performed by
licensed professionals, as may be required by Applicable Law, and in accordance with such methods, acts, guidelines,
standards and criteria reasonably accepted or followed by a majority of System integrators in the United States.
(d) Liens. Other than a Financing Party's security interest in or ownership of the System, Provider shall
not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien (including
mechanics', labor or materialman 's lien), charge, security interest, encumbrance or claim of any nature {"Liens") on
or with respect to the Premises or any interest therein, in each case to the extent such Lien arises from or is related to
Provider's performance or non-performance of its obligations hereunder. If Provider breaches its obligations under
this Section, it shall (i) immediately notify Purchaser in writing, (ii) promptly cause such Lien to be discharged and
released ofrecord without cost to Purchaser, and (iii) defend and indemnify Purchaser against all costs and expenses
(including reasonable attorneys' fees and court costs at trial and on appeal) incurred in discharging and releasing such
Lien; provided, Provider 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 Premises or that assure that any
adverse judgment with respect to such Lien will be paid without affecting title to the Premises.
Page 10 of26
(e) System Condition. Provider shall take all actions reasonably necessary, including but not limited to
repair and maintenance, to ensure that the System is capable of operating at a commercially reasonable continuous
rate throughout the Term.
(f) Environmental lndemnificati0n by Provider. Provider shall indemnify, hold harmless and defend
Purchaser Indemnified Parties from and against all claims, pay costs and expenses, and conduct all actions required
under Environmental Laws in connection with the deposit, release, or spill of any Hazardous Materials at, on, above,
below or near the Premises by Provider. In no event shall Provider be responsible for the existence of any Hazardous
Materials at the Premises prior to the Effective Date. Provider shall promptly notify Purchaser if it becomes aware of
any Hazardous Materials, or any deposit, spill, or release of any Hazardous Materials at, on, above, below or near the
Premises.
(g) Production Data. Provider shall provide Purchaser with access to System production data in
electronic format, such as tabular Excel or csv with each production unit in a separate cell. Production data could be
delivered monthly or by granting Purchaser access to a web portal.
7 .2 Purchaser's Covenants. Purchaser covenants and agrees as follows:
(a) 1otice of Damage or Emergency. Purchaser shall (i) notify Provider within two business days if it
becomes aware of any damage to or loss of the use of the System or that could reasonably be expected to adversely
affect the System, (ii) exercise good faith efforts to notify Provider immediately, and in any event, within four ( 4)
hours of becoming aware of any event or circumstance that poses an imminent risk to human health, the environment,
the System or the Premises. In the event of damage to Purchaser's premises caused by, or as the result of, the System,
Provider shall, at its sole cost, repair said premises to the condition existing prior to such damage.
(b) Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or suffer to exist any
Liens on or with respect to the System or any interest therein. If Purchaser breaches its obligations under this Section,
it shall immediately notify Provider in writing, shall promptly cause such Lien to be discharged and released ofrecord
without cost to Provider, and shall indemnify Provider against all costs and expenses (including reasonable attorneys'
fees and court costs at trial and on appeal) incurred in discharging and releasing such Lien.
(c) Consents and Approvals. To the extent that only Purchaser is authorized to request, obtain or issue
any necessary approvals, Governmental Approvals, rebates or other financial incentives, Purchaser shall cooperate
with Provider to obtain or issue such approvals, Governmental Approvals, rebates or other financial incentives in the
name of Provider. Purchaser shall provide to Provider copies of all Governmental Approvals and CCRs applicable to
the Premises, other than those obtained by Provider or to which Provider is a party.
(d) Access to Premises, Grant of License.
(i) Purchaser hereby grants to Provider a revocable non-exclusive license coterminous with the Term
containing all the rights necessary for Provider to use and occupy portions of the Premises for the installation,
operation, maintenance and removal of the System pursuant to the terms of this Agreement, including ingress and
egress rights to the Premises for Provider and its employees, contractors and subcontractors and access to electrical
panels and conduits to interconnect or disconnect the System with the Premises' electrical wiring; provided, with
respect to Provider's access to the Site, such license shall be subject to conditions or limitations for the protection of
minors that are imposed generally on commercial contractors by Purchaser or by Applicable Law. If Provider's
financing structure requires that Purchaser enter into a license agreement directly with Financing Party, Provider shall
enter into such an agreement which shall be in a form set forth by Provider and which contain substantially the same
rights as set forth in this Section 7.2(d).
(ii) Regardless of whether Purchaser is owner of the Premises or leases the Premises from a landlord,
Purchaser hereby covenants that (x) Provider shall have access to the Premises and System during the Term of this
Agreement and for so long as needed after termination to remove the System pursuant to the applicable provisions
herein, and (y) neither Purchaser nor Purchaser's landlord will interfere or handle any Provider equipment or the
Page 11 of26
System without written authorization from Provider; provided, Purchaser and Purchaser's landlord shall at all times
have access to and the right to observe the Installation Work or System removal.
(iii) If Purchaser is a lessee of the Premises, Purchaser further covenants that it shall deliver to Provider,
a license from Purchaser's landlord in substantially the form attached hereto as Exhibit A of these General Conditions.
(e) Temporary storage space during installation or removal. Purchaser shall use commercially
reasonable efforts to provide for sufficient space at the Premises for the temporary storage and staging of tools,
materials and equipment and for the parking of construction crew vehicles and temporary construction trailers and
facilities reasonably necessary during the Installation Work, System Operations or System removal, and access for
rigging and material handling. Subject to Purchaser's indemnity obligations set forth herein, Purchaser shall have no
liability whatsoever in connection with personal property or equipment of Provider or Provider's employees,
consultants, contractors, subcontractors, and vendors. Provider shall be solely responsible for the safety and security
of Provider's employees, consultants, contractors, subcontractors, and vendors, as well as any personal property,
including but not limited to, any tools, materials, and equipment of such parties used or stored on the Premises.
(f) Environmental Documents. On or before the Effective Date of each Special Conditions Purchaser
shall identify and set forth in each Special Conditions and unless previously delivered, Purchaser shall, to the extent
the same are known and in the possession or control of Purchaser, deliver to Provider copies of all reports, agreements,
plans, inspections, tests, studies or other materials concerning the presence of Hazardous Materials at, from or on the
Premises including, but not limited to, soil reports, design drawings, environmental reports, sampling results or other
documents relating to Hazardous Materials that have been identified or may be present on, in or under the Premises
(collectively, the "Environmental Documents"). Thereafter, Purchaser agrees to provide copies of any new
Environmental Documents within ten (I 0) days of receipt of same. Purchaser hereby agrees to furnish such other
documents in Purchaser's possession or control with respect to Governmental Approvals compliance with
Environmental Law or Hazardous Materials with respect to the Premises as may be reasonably requested by Provider
from time to time.
(g) Compliance with Environmental Laws. Notwithstanding anything to the contrary in this
Agreement, Purchaser shall operate and maintain the Premises to comply with the requirements of all applicable
Environmental Laws that limit or govern the conditions or uses of the Premises, without impairing or interfering with
Provider's construction, operation and ownership of the System or occupancy of the Premises. In no event shall
Provider have any liability or obligation with respect to any Pre-existing Environmental Condition on, in or under the
Premises, or operations or maintenance of the Premises required to comply with Environmental Laws with respect to
Pre-Existing Environmental Conditions.
(h) Environmen tal Ind emnification by Purchaser. Purchaser shall indemnify, hold harmless and defend
Provider from and against all claims, pay costs and expenses, and conduct all actions required under Environmental
Laws in connection with (i) the existence at, on, above, below or near the Premises of any Pre-existing Environmental
Conditions, and (ii) any Hazardous Materials released, spilled or deposited at, on above or below the Premises by the
Purchaser. Purchaser shall promptly notify Provider ifit becomes aware of any Hazardous Materials, or any deposit,
spill, or release of any Hazardous Materials at, on, above, below or near the Premises.
8. REPRESENTATIONS & WARRANTIES.
8.1 Representations and Warranties of Both Parties. In addition to any other representations and
warranties contained in this Agreement, each Party represents and warrants to the other as of the Effective Date that:
(a) it is duly organized and validly existing and in good standing in the jurisdiction of its organization;
(b) it has the full right and authority to enter into, execute, deliver, and perform its obligations under
this Agreement;
(c) it has taken all requisite corporate or other action to approve the execution, delivery, and
performance of the Agreement;
Page 12 of26
(d) this Agreement constitutes its legal, valid and binding obligation enforceable against such Party in
accordance with its tenns, except as may be limited by applicable bankruptcy and other similar laws now or hereafter
in effect;
(e) there is no litigation, action, proceeding or investigation pending or, to the best of its knowledge,
threatened before any court or other Governmental Authority by, against, affecting or involving any of its business or
assets that could reasonably be expected to adversely affect its ability to carry out the transactions contemplated herein;
(f) its execution and performance of this Agreement and the transactions contemplated hereby do not
and will not constitute a breach of any term or provision of, or a default under, (i) any contract, agreement or
Governmental Approval to which it or any of its Affiliates is a party or by which it or any of its Affiliates or its or
their property is bound, (ii) its organizational documents, or (iii) any Applicable Laws; and
(g) its execution and performance of this Agreement and the transactions contemplated hereby do not
and will not require any consent from a third party, including any Governmental Approvals from any Governmental
Authority, that are not identified in the Special Conditions.
8.2
Date that:
Representations of Purchaser. Purchaser represents and warrants to Provider as of the Effective
(a) Purchaser acknowledges that it has been advised that part of the collateral securing the financial
arrangements for the System may be the granting of a first priority perfected security interest (the "Security Interest")
in the System to a Financing Party;
(b) To Purchaser's knowledge, the granting of the Security Interest will not violate any term or
condition of any covenant, restriction, lien, financing agreement, or security agreement affecting the Premises;
(c) Purchaser is aware ofno existing lease, mortgage, security interest or other interest in or lien upon
the Premises that could attach to the System as an interest adverse to Provider's Financing Party's Security Interest
therein;
(d) To Purchaser's knowledge, there exists no event or condition which constitutes a default, or would,
with the giving of Notice or lapse of time, constitute a default under this Agreement;
(e) To Purchaser's knowledge, Purchaser has identified and disclosed to Provider in the Special
Conditions (i) all Environmental Documents in Purchaser's possession or control, (ii) all CCRs, Governmental
Approvals or other restrictions imposed under Applicable Laws with respect to the use of the Premises that could
affect the construction and operation of the System within Purchaser's possession or control, and (iii) all environmental
reports, studies, data or other infonnation relating to the use of the Premises by Provider within the Purchaser's
possession or control;
(f) To Purchaser's knowledge, the Premises is in compliance with Environmental Laws, and that
Purchaser holds and is in compliance with all Governmental Approvals required for the ownership and any current
operations or activities conducted at the Premises; and
(g) Purchaser has identified in the Special Conditions and delivered to Provider all material reports and
information concerning the presence or release of Hazardous Materials on, in or under the Premises in Purchaser's
possession or control.
Any Financing Party shall be an intended third-party beneficiary of this Section 8.2.
8.3 EXCLUSION OF WARRANTIES. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY
SET FORTH HEREIN, THE INSTALLATION WORK, SYSTEM OPERATIONS, AND ENERGY SERVICES
PROVIDED BY PROVIDER TO PURCHASER PURSUANT TO THIS AGREEMENT SHALL BE "AS-IS
WHERE-IS." NO OTHER WARRANTY TO PURCHASER OR ANY OTHER PERSON, WHETHER EXPRESS,
Page 13 of26
IMPLIED OR ST A TUTORY, IS MADE AS TO THE INST ALLA TI ON, DESIGN, DESCRIPTION, QUALITY,
MERCHANT ABILITY, COMPLETENESS, USEFUL LIFE, FUTURE ECONOMIC VIABILITY, OR FITNESS
FOR ANY PARTICULAR PURPOSE OF THE SYSTEM, THE ENERGY SERVICES OR ANY OTHER SERVICE
PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH
ARE EXPRESSLY DISCLAIMED BY PROVIDER.
9 . TAXES AND GOVERNMENTAL FEES.
9.1 Purchaser Obligations. Purchaser shall reimburse and pay for any documented taxes, fees or charges
imposed or authorized by any Governmental Authority and paid by Provider due to Provider's sale of the Energy
Services to Purchaser (other than income taxes imposed upon Provider). Provider shall notify Purchaser in writing
with a detailed statement of such amounts, which shall be invoiced by Provider and payable by Purchaser. Purchaser
shall timely report, make filings for, and pay any and all sales, use, income, gross receipts or other taxes, and any and
all franchise fees or similar fees assessed against it due to its purchase of the Energy Services. This Section 9.1
excludes taxes specified in Section 9.2.
9.2 Provider Obligations. Subject to Section 9.1 above, Provider shall be responsible for all income,
gross receipts, ad valorem, personal property or real property or other similar taxes and any and all franchise fees or
similar fees assessed against it due to its ownership of the System.
10. FORCE MAJEURE.
10.1 Definition . "Force Majeure Even t'' means any act or event that prevents the affected Party from
performing its obligations in accordance with this Agreement , if such act or event is beyond the reasonable control,
and not the result of the fault or negligence, of the affected Party and such Party had been unable to overcome such
act or event with the exercise of due diligence (including the expenditure ofreasonable sums). Subject to the foregoing
conditions, "Force Majeure Event" shall include without limitation the following acts or events: (i) natural
phenomena, such as storms, hurricanes, floods, lightning, volcanic eruptions and earthquakes; (ii) explosions or fires
arising from lightning or other causes unrelated to the acts or omissions of the Party seeking to be excused from
performance; (iii) acts of war or public disorders, civil disturbances, riots, insurrection, sabotage, epidemic, terrorist
acts, or rebellion; (iv) strikes or labor disputes ( except strikes or labor disputes caused solely by employees of Provider
or as a result of such party's failure to comply with a collective bargaining agreement); and (v) action or inaction by
a Governmental Authority (unless Purchaser is a Governmental Authority and Purchaser is the Party whose
performance is affected by such action nor inaction). A Force Majeure Event shall not be based on the economic
hardship of either Party, or upon the expiration of any lease of the Premises by the Purchaser from the owner of the
Premises.
10.2 Ex c used Performance. Except as otherwise specifically provided in this Agreement, neither Party
shall be considered in breach of this Agreement or liable for any delay or failure to comply with this Agreement (other
than the failure to pay amounts due hereunder), if and to the extent that such delay or failure is attributable to the
occurrence of a Force Majeure Event; provided, the Party claiming relief under this Article 10 shall as soon as
practicable after becoming aware of the circumstances constituting Force Majeure (i) notify the other Party in writing
of the existence of the Force Majeure Event, (ii) exercise all reasonable efforts necessary to minimize delay caused by
such Force Majeure Event, (iii) notify the other Party in writing of the cessation or termination of said Force Majeure
Event and (iv) resume performance of its obligations hereunder as soon as practicable thereafter; provided, Purchaser
shall not be excused from making any payments and paying any unpaid amounts due in respect of Energy Services
delivered to Purchaser prior to the Force Majeure Event performance interruption. Subject to Section 10.3 below, the
Parties agree that to the extent permitted by Applicable Law, the Term of this Agreement shall extend on a day for
day basis for every day in which the occurrence of a Force Majeure Event has affected either Party's performance of
its obligations hereunder.
10.3 T enninati on in Consequ ence of Force Maj eure Event. Ifa Force Majeure Event shall have occurred
that has affected Provider's performance of its obligations hereunder and that has continued for a continuous period
of one hundred eighty (180) days, then either Party shall be entitled to terminate this Agreement upon ninety (90)
days' prior written Notice to the other Party. lf at the end of such ninety (90) day period such Force Majeure Event
shall still continue, this Agreement shall automatically terminate . Upon such termination for a Force Majeure Event,
Page 14 of26
neither Party shall have any liability to the other (other than any such liabilities that have accrued prior to such
termination, including but not limited to Provider's obligations to remove the System and restore the Premises as set
forth herein), and Purchaser shall have no obligation to pay the Early Termination Fee.
11. DEFAULT.
11.1
(a)
Default"):
Provider Defaults and Purchaser Remedies.
Provider Defaults. The following events shall be defaults with respect to Provider (each, a ''Provider
(i) A Bankruptcy Event shall have occurred with respect to Provider;
(ii) Provider fails to pay Purchaser any undisputed amount owed under the Agreement within
thirty (30) days from receipt of Notice from Purchaser of such past due amount; and
(iii) Provider breaches any material representation, covenant or other term of this Agreement
and (A) if such breach can be cured within thirty (30) days after Purchaser's written Notice of such breach and Provider
fails to so cure, or (8) Provider fails to commence and pursue a cure within such thirty (30) day period if a longer cure
period is needed.
(b) Purchaser 's Remedies. If a Provider Default described in Section 11.l(a) has occurred and is
continuing, in addition to other remedies expressly provided herein, and subject to Article 12, Purchaser may terminate
this Agreement with no penalty or liability whatsoever, including but not limited to the Early Termination Fee, and
exercise any other remedy it may have at law or equity or under this Agreement.
11.2 Purchaser Defaults and Provider's Remedies.
(a) Purchaser Default. The following events shall be defaults with respect to Purchaser (each, a
"Purchaser Default"):
(i) A Bankruptcy Event shall have occurred with respect to Purchaser;
(ii) Purchaser breaches any material representation, covenant or other term of this Agreement
if (A) such breach can be cured within thirty (30) days after Provider's Notice of such breach and Purchaser fails to
so cure, or (B) Purchaser fails to commence and pursue said cure within such thirty (30) day period if a longer cure
period is needed, such longer cure period not to exceed ninety (90) days; and
(iii) Purchaser fails to pay Provider any undisputed amount due Provider under this Agreement
within thirty (30) days from receipt of Notice from Provider of such past due amount.
(b) Provider's Remedies. If a Purchaser Default described in Section 11.2(a) has occurred and is
continuing, in addition to other remedies expressly provided herein, and subject to Article 12, Provider may terminate
this Agreement and upon such termination, (A) Provider shall be entitled to receive from Purchaser the Early
Termination Fee set forth on Schedule 3, Column 1 of the Special Conditions, and (8) Provider may exercise any
other remedy it may have at law or equity or under this Agreement.
11.3 Cross Default. With respect to any Systems that are co-located at the same Premises, if a Party
defaults under this Agreement, it shall also be a default of such Party under the Agreement(s) related to the other co-
located System( s ); provided, a cure of the original default shall be a cure of any such cross default. In the event of a
cross default, the non-defaulting Party shall be entitled to exercises its rights with respect to this Agreement and all
such other Agreements, including terminating all such Agreements and, if Provider terminates one or more
Agreements due to a Purchaser Default, Purchaser shall pay the Early Termination Fees for all such terminated
Agreements.
Page 15 of26
11 .4 Removal of System. Upon any termination of this Agreement pursuant to this Article 11 and
payment of the Early Termination Fee (if applicable), Provider will remove the System pursuant to Section 2.4 hereof.
12. LIMITATIONS OF LIABILITY.
12.1 Except as expressly provided herein, neither Party shall be liable to the other Party or its Indemnified
Persons for any special, punitive, exemplary, indirect, or consequential damages, losses or damages for lost revenue
or lost profits, whether foreseeable or not, arising out of, or in connection with this Agreement.
12.2 A Party's maximum liability to the other Party under this Agreement, shall be limited to the
aggregate Estimated Remaining Payments as of the date of the events giving rise to such liability, provided, the limits
of liability under this Section 12.2 shall not apply with respect to (i) indemnity obligations hereunder in respect of
personal injury or environmental claims and (ii) any obligation of Purchaser to pay Energy Service Payments, the
Early Termination Fee or the Option Price, (iii) any obligation of Provider to pay for Lost Savings in accordance with
the Special Conditions and (iv) if applicable, any obi igation of Provider to remove the System and restore the Premises
in accordance with Section 2.4.
13. ASSIGNMENT.
13.1 Assignment by Provider. Provider shall not sell, transfer or assign ( collectively, an "Assignment")
the Agreement or any interest therein, without the prior written consent of Purchaser, which shall not be unreasonably
withheld, conditioned or delayed; provided, Purchaser agrees that Provider may assign this Agreement or a security
interest herein without the consent of the Purchaser to an Affiliate of Provider or any Financing Party for the System
upon reasonable advance Notice. For avoidance of doubt, a consent to assignment shall not be deemed to be
unreasonably withheld, conditioned or delayed if within seven (7) business days of a request for consent, Purchaser
notifies Provider of its objection, if any, to the proposed assignment on the basis that (a) a bona fide conflict exists
between the Purchaser and proposed assignee or (b) the Purchaser has fewer than three (3) years of experience in the
operation of photovoltaic energy generation systems similar to the System. In the event that Provider identifies a
secured Financing Party in the Special Conditions, or in a subsequent Notice to Purchaser, then Purchaser shall comply
with the provisions set forth in Exhibit B of these General Terms and Conditions and agrees to provide such estoppels,
acknowledgments and opinions of counsel as Provider may reasonably request from time to time. Any Financing
Party shall be an intended third-party beneficiary of this Section 13 .1. Any Assignment by Provider without obtaining
the prior written consent and release of Purchaser, when such consent is required by this Section 13.1, shall not release
Provider of its obligations hereunder.
13.2 Acknowledgment of Collateral Assignment. In the event that Provider identifies a secured
Financing Party in the Special Conditions, or in a subsequent Notice to Purchaser, then Purchaser hereby
acknowledges:
(a) The collateral assignment by Provider to the Financing Party, of Provider's right, title and interest
in, to and under this Agreement, as consented to under Section 13.1 of this Agreement.
(b) That the Financing Party as such collateral assignee shall be entitled to exercise any and all rights
of lenders generally with respect to Provider's interests in this Agreement.
(c) That it has been advised that Provider has granted a first priority perfected security interest in the
System to the Financing Party and that the Financing Party has relied upon the characterization of the System as
personal property, as agreed in this Agreement in accepting such security interest as collateral for its financing of the
System.
Any Financing Party shall be an intended third-party beneficiary of this Section 13.2.
13 .3 Assignment by Purchaser. Purchaser shall not assign this Agreement or any interest therein, without
Provider's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Any
Page 16 of26
Assignment by Purchaser without the prior written consent of Provider shall not release Purchaser of its obligations
hereunder.
14. NOTICES.
14.1 Notice Addresses. Unless otherwise provided in this Agreement, all Notices and communications
concerning this Agreement shall be in writing and addressed to the other Party (or Financing Party, as the case may
be) at the addresses set forth in the Special Conditions, or at such other address as may be designated in writing to the
other Party from time to time.
14.2 Notice. Unless otherwise provided herein, any Notice provided for in this Agreement shall be hand
delivered, sent by registered or certified U.S. Mail, postage prepaid, or by commercial overnight delivery service, and
shall be deemed delivered to the addressee or its office when received at the address for Notice specified above when
hand delivered, upon confirmation of sending when sent by facsimile (if sent during normal business hours or the next
Business Day if sent at any other time), on the Business Day after being sent when sent by overnight delivery service
(Saturdays, Sundays and legal holidays excluded), or five (5) Business Days after deposit in the mail when sent by
U.S. mail.
14.3 Address for Invoices. All invoices under this Agreement shall be sent to the address provided by
Purchaser. Invoices shall be sent by regular first class mail postage prepaid .
15. CONFIDENTIALITY.
15.1 Confidentiality Obligation. If either Party provides confidential information, including business
plans, strategies, financial information, proprietary, patented, licensed, copyrighted or trademarked information,
and/or technical information regarding the financing, design, operation and maintenance of the System or of
Purchaser's business ("Confidential In formation ') to the other or, if in the course of performing under this Agreement
or negotiating this Agreement a Party learns Confidential Information regarding the facilities or plans of the other, the
receiving Party shall (a) protect the Confidential Information from disclosure to third parties with the same degree of
care accorded its own confidential and proprietary information, and (b) refrain from using such Confidential
Information, except in the negotiation and performance of this Agreement. Notwithstanding the above, a Party may
provide such Confidential Information to its officers, directors, members, managers, employees, agents, contractors,
consultants, Affiliates, lenders (existing or potential), investors (existing or potential) and potential third-party
assignees of this Agreement or third-party acquirers of Provider or its Affiliates (provided and on condition that such
potential third-party assignees be bound by a written agreement restricting use and disclosure of Confidential
Information) (collectively, "Representatives"), in each case whose access is reasonably necessary. Each such recipient
of Confidential Information shall be informed by the Party disclosing Confidential Information of its confidential
nature and shall be directed to treat such information confidentially and shall agree to abide by these provisions. In
any event, each Party shall be liable (with respect to the other Party) for any breach of this provision by any entity to
whom that Party improperly discloses Confidential Information. The terms of this Agreement (but not its execution
or existence) shall be considered Confidential Information for purposes of this Article, except as set forth in
Section 15.3. All Confidential Information shall remain the property of the disclosing Party and shall be returned to
the disclosing Party or destroyed after the receiving Party 's need for it has expired or upon the request of the disclosing
Party.
15.2 Permitted Disclosures. Notwithstanding any other provision herein, neither Party shall be required
to hold confidential any information that:
(a) Becomes publicly available other than through the receiving Party;
(b) Is required to be disclosed by a Governmental Authority, under Applicable Law, including but not
limited to the California Public Records Act, or pursuant to a validly issued subpoena or required filing, but a receiving
Party subject to any such requirement shall promptly notify the disclosing Party of such requirement;
(c) ls independently developed by the receiving Party; or
Page 17 of26
(d) Becomes available to the receiving Party without restriction from a third party under no obligation
of confidentiality.
15.3 Goodwill and Publicity. Neither Party shall use the name, trade 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; provided, no such publicity releases or other public statements (except for
filings or other statements or releases as may be required by Applicable Law) shall be made by either Party without
the prior written consent of the other Party. At no time will either Party acquire any rights whatsoever to any
trademark, trade name, service mark, logo or other intellectual property right belonging to the other Party.
Notwithstanding the foregoing, Purchaser agrees that Provider may, at its sole discretion, take photographs of the
installation process of the System and/or the completed System, and Provider shall be pennitted to use such images
(regardless of media) in its marketing efforts, including but not limited to use in brochures, advertisements, websites
and news outlet or press release articles. The images shall not include any identifying information without Purchaser
permission and the installation site shall not be disclosed beyond the type of establishment (such as "Retail Store,"
"Distribution Center," or such other general terms), the city and state.
15.4 Enforcement of Confidentiality Obligation. Each Party agrees that the disclosing Party would be
irreparably injured by a breach of this Article 15 by the receiving Party or its Representatives or other Person to whom
the receiving Party discloses Confidential Information of the disclosing Party and that the disclosing Party may be
entitled to equitable relief, including injunctive relief and specific performance, in the event of any breach of the
provisions of this Article 15. To the fullest extent permitted by Applicable Law, such remedies shall not be deemed
to be the exclusive remedies for a breach of this Article 15, but shall be in addition to all other remedies available at
law or in equity.
16. INDEMNITY.
16.1 Provider 's Indemnity. Subject to Article 12, Provider agrees that it shall indemnify and hold
harmless Purchaser, its pennitted successors and assigns and their respective directors, officers, members,
shareholders and employees (collectively, the' Purchaser Indemnified Parties") from and against any and all Losses
incurred by Purchaser Indemnified Parties to the extent arising from or out of the following : any claim for or arising
out of any injury to or death of any Person or loss or damage to property of any Person to the extent arising out of
Provider's negligence or willful misconduct. Provider shall not, however, be required to reimburse or indemnify any
Purchaser Indemnified Party for any Loss to the extent such Loss is due to the negligence or willful misconduct of
any Purchaser Indemnified Party.
16.2 Purchaser s Indemnity. Subject to Article 12 and to the extent permitted by Applicable Law,
Purchaser agrees that it shall indemnify and hold harmless Provider, its permitted successors and assigns and their
respective directors, officers, members, shareholders and employees ( collectively, the "Provider Indemnified Parties")
from and against any and all Losses incurred by Provider Indemnified Parties to the extent arising from or out of any
claim for or arising out of any injury to or death of any Person or loss or damage to property of any Person to the
extent arising out of Purchaser's negligence or willful misconduct. Purchaser shall not, however, be required to
reimburse or indemnify any Provider Indemnified Party for any Loss to the extent such Loss is due to the negligence
or willful misconduct of any Provider Indemnified Party.
17. INSURANCE.
17 .1 Generally. Purchaser and Provider shall each maintain the following insurance coverages in full
force and effect throughout the Term either through insurance policies or acceptable self-insured retentions: (a)
Workers' Compensation Insurance as may be from time to time required under applicable federal and state law, (b)
Commercial General Liability Insurance with limits of not less than $2,000,000 general aggregate, $1,000,000 per
occurrence, and (c) automobile insurance with commercially reasonable coverages and limits. Additionally, Provider
Page 18 of26
shall carry adequate property loss insurance on the System which need not be covered by Purchaser's property
coverage. The amount and terms of insurance coverage will be determined at Provider's sole discretion.
17 .2 Certificates of Insurance. Each Party, upon request, shall furnish current certificates evidencing that
the insurance required under Section 17.1 is being maintained. Each Party's insurance policy provided hereunder
shall contain a provision whereby the insured agrees to give the other Party thirty (30) days' written Notice before the
insurance is cancelled or materially altered.
17.3 Additional Insureds. Each Party's insurance policy shall be written on an occurrence basis and shall
include the other Party as an additional insured as its interest may appear.
17.4 Insurer Qualifications. All insurance maintained hereunder shall be maintained with companies
either rated no less than A-as to Policy Holder's Rating in the current edition of Best's Insurance Guide (or with an
association of companies each of the members of which are so rated) or having a parent company's debt to
policyholder surplus ratio of 1: 1.
17.5 Additional Terms. Required insurance coverages shall not prohibit the Provider from waiving the
right of subrogation prior to a loss. Provider shall waive all subrogation rights against the indemnified parties. Provider
shall ensure that it carries adequate property loss insurance on the System, which need not be covered by Purchaser's
property or other insurance coverage. Provider shall further ensure that any qualified contractor purchases and
maintains insurance of the types and limits of liability, containing the endorsements, as would ordinarily and
reasonably be expected by an experienced contractor undertaking the type of work contemplated by this Agreement
with respect to the potential liability for loss or damage under this Agreement. Provider shall further ensure that any
qualified contractor's insurance lists Purchaser as an additional insured.
18. MISCELLANEOUS.
18.1 integration; Exhibits. The Agreement, together with the Exhibits and Schedules attached thereto or
incorporated by reference, constitute the entire agreement and understanding between Provider and Purchaser with
respect to the subject matter thereof and supersedes all prior agreements relating to the subject matter hereof which
are of no further force or effect. The Exhibits and Schedules attached to this Agreement, including these General
Terms and Conditions as incorporated by reference, are integral parts of this Agreement and are an express part of this
Agreement. In the event of a conflict between the provisions of these General Terms and Conditions and any
applicable Special Conditions, the provisions of the Special Conditions shall prevail.
18.2 Amenclments. This Agreement may only be amended, modified or supplemented by an instrument
in writing executed by duly authorized representatives of Provider and Purchaser.
18.3 Industry Standards. Except as otherwise set forth herein, for the purpose of this Agreement the
normal standards of performance within the Energy Services industry in the relevant market shall be the measure of
whether a Party's performance is reasonable and timely. Unless expressly defined herein, words having well-known
technical or trade meanings shall be so construed.
18.4 Cumulative Remedies. Except as set forth to the contrary herein, any right or remedy of Provider
or Purchaser shall be cumulative and without prejudice to any other right or remedy, whether contained herein or not.
18.5 [Reserved).
18.6 Limited Effect of Waiver. The failure of Provider or Purchaser to enforce any of the provisions of
this Agreement, or the waiver thereof, shall not be construed as a general waiver or relinquishment on its part of any
such provision, in any other instance or of any other provision in any instance.
18.7 Survival. The obligations under Section 2.4 (Removal of System), Section 7.1 (Provider
Covenants), Sections 7.2(d), (e), (f), (g) and (h) (Purchaser Covenants), Section 8.3 (Exclusion of Warranties), Article
9 (Taxes and Governmental Fees), Article 12 (Limitation of Liability), Article 14 (Notices), Article 15
Page 19 of26
(Confidentiality), Article 18 (Miscellaneous), all payment or indemnification obligations accrued prior to termination
of this Agreement, or pursuant to other provisions of this Agreement that, by their sense and context, are intended to
survive termination of this Agreement shall survive the expiration or termination of this Agreement for any reason.
18.8 Governing Law. This Agreement shall -be governed by and construed in accordance with the laws
of the State of California without reference to any choice of law principles. Litigation arising out of or connected
with this Agreement shall be instituted and maintained in the courts of Sonoma County in the State of California or
in the United States District Court, Northern District of California, San Francisco/Oakland Division, California, and
the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts,
and consent to service of process issued by such courts. 18.9 Severability. If any term, covenant or condition in this
Agreement shall, to any extent, be invalid or unenforceable in any respect under Applicable Law, the remainder of
this Agreement shall not be affected thereby, and each term, covenant or condition of this Agreement shall be valid
and enforceable to the fullest extent permitted by Applicable Law and, if appropriate, such invalid or unenforceable
provision shall be modified or replaced to give effect to the underlying intent of the Parties and to the intended
economic benefits of the Parties.
18. l O Relation of the Parties. The relationship between Provider and Purchaser shall not be that of
partners, agents, or joint ventures for one another, and nothing contained in this Agreement shall be deemed to
constitute a partnership or agency agreement between them for any purposes, including federal income tax purposes.
Provider and Purchaser, in performing any of their obligations hereunder, shall be independent contractors or
independent parties and shall discharge their contractual obligations at their own risk.
18.11 Successors and Assigns. This Agreement and the rights and obligations under this Agreement shall
be binding upon and shall inure to the benefit of Provider and Purchaser and their respective successors and permitted
assigns.
18.12 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one and the same instrument.
18.13 Electronic Delivery. This Agreement may be duly executed and delivered by a Party by execution
and facsimile or electronic, "pdf' delivery of the signature page of a counterpart to the other Party.
18.14 Liquidated Damages Not Penalty. Purchaser acknowledges that the Early Termination Fee
constitutes liquidated damages, and not penalties, in lieu of Provider's actual damages resulting from the early
termination of this Agreement. Purchaser further acknowledges that Provider's actual damages may be impractical
and difficult to accurately ascertain, and in accordance with Purchaser's rights and obligations under this Agreement,
the Early Termination Fee constitutes fair and reasonable damages to be borne by Purchaser in lieu of Provider's
actual damages.
/Remainder of page intentionally left blank./
Page 20 of26
These General Terms and Conditions are witnessed and acknowledged by Forefront Power and Purchaser below.
Neither Forefront Power nor Purchaser shall have any obligations or liability resulting from its witnessing and
acknowledging these General Terms and Conditions.
"FOREFRONT POWER": FFP BTM SOLAR, LLC
By: Rubenfantes(Jun20,2024U9:28PDT)
Name: Ruben Fontes
Title: President
Date: 06/20/2024
"PURCHASER": CITY OF ROHNERT PARK
By:
Name: rce.\o... ~-ed't'"'O..
Title: Ci~ M o.."'°"ijY"
Date:
Page 21 of26
Exhibit A
of General Terms and Conditions
[PURCHASER'S LETTERHEAD]
[Landlord's Address]
Attn: Authorized Representative
Re:
and [L
Proposed Energy System Installation at [Address of Premises]. Lease dated [ ] between [PURCHASER]
DLORD] (the 'Lease")
Dear Authorized Representative:
As has been discussed with you, [PURCHASER] ("Purchaser") and [FFP Entity], LLC ("Provider") have entered into
an Energy Services Agreement, pursuant to which Provider will install, finance, operate, and maintain a [solar
photovoltaic] [battery storage] system at the above-referenced premises which [PURCHASER] leases from you
pursuant to the Lease. By signing below and returning this letter to us, you confirm that:
1. The [solar photovoltaic] [battery storage] system and the renewable energy (including environmental
credits and related attributes) produced by the system are personal property, and shall not be considered the property
(personal or otherwise) of [LANDLORD] upon installation of the system at the premises. Landlord consents to the
filing by Provider of a disclaimer of the System as a fixture of the Premises in the office where real estate records are
customarily filed in the jurisdiction of the Premises.
2. Provider or its designee (including finance providers) shall have the right without cost to access the
premises in order to install, operate, inspect, maintain, and remove the [solar photovoltaic] [battery storage] system.
[LANDLORD] will not charge Purchaser or Provider any rent for such right to access the premises.
3. [LANDLORD] has been advised that the finance providers for the [solar photovoltaic] [battery storage]
system have a first priority perfected security interest in the system. Provider and the finance providers for the [solar
photovoltaic] [battery storage] system (including any system lessor or other lender) are intended beneficiaries of
[LANDLORD]'s agreements in this letter.
4. [LANDLORD] will not take any action inconsistent with the foregoing.
We thank you for your consideration of this opportunity and we look forward to working with you m our
environmental campaign to increase the utilization of clean, renewal energy resources .
Acknowledged and agreed by:
[LANDLORD]
By: ________ _
Name:
Title:
Very truly yours,
I PURCHASER]
By:. __________ _
Name:
Title:
Page 22 of26
Exhibit B
of General Terms and Conditions
Certain Agreements for the Benefit oflhe Financing Parties
Purchaser acknowledges that Provider will be receiving financing accommodations from one or more Financing
Parties and that Provider may sell or assign the System or this Agreement and/or may secure Provider's obligations
by, among other collateral, a pledge or collateral assignment of this Agreement and a first security interest in the
System. In order to facilitate such necessary sale, conveyance, or financing, and with respect to any such Financing
Party, Purchaser agrees as follows:
(a) Consent to Collateral Assignment. Purchaser consents to either the assignment, sale or conveyance to a
Financing Party or the collateral assignment by Provider to a Financing Party, of Provider's right, title and interest in
and to this Agreement.
(b) otices of Default. Purchaser will deliver to the Financing Party, concurrently with delivery thereof to
Provider, a copy of each Notice of default given by Purchaser under this Agreement, inclusive of a reasonable
description of Provider default. No such Noticewill be effective absent delivery to the Financing Party. Purchaser
will not mutually agree with Provider to cancel, modify or terminate this Agreement without the written consent of
the Financing Party, however, this provision shall not be interpreted to limit any termination rights of either Party as
set forth in the Agreement.
(c) Rights Upon Event of Default. Notwithstanding any contrary term of this Agreement:
i. The Financing Party shall be entitled to exercise, in the place and stead of Provider, any and all rights
and remedies of Provider under this Agreement in accordance with the terms of this Agreement and only in the event
of Provider's or Purchaser's default. The Financing Party shall also be entitled to exercise all rights and remedies of
secured parties generally with respect to this Agreement and the System.
ii. The Financing Party shall have the right, but not the obligation, to pay all sums due under this Agreement
and to perform any other act, duty or obligation required of Provider thereunder or cause to be cured any default of
Provider thereunder in the time and manner provided by the terms of this Agreement. Nothing herein requires the
Financing Party to cure any default of Provider under this Agreement or (unless the Financing Party has succeeded to
Provider's interests under this Agreement) to perform any act, duty or obligation of Provider under this Agreement,
but Purchaser hereby gives it the option to do so.
iii. Upon the exercise ofremedies under its security interest in the System, including any sale thereof by the
Financing Party, whether by judicial proceeding or under any power of sale contained therein, or any conveyance
from Provider to the Financing Party (or any assignee of the Financing Party) in lieu thereof, the Financing Party shall
give Noticeto Purchaser of the transferee or assignee of this Agreement. Any such exercise of remedies shall not
constitute a default under this Agreement.
iv. Upon any default not reasonably susceptible to cure by a Finance Party, including, without limitation,
rejection or other termination of this Agreement pursuant to any process undertaken with respect to Provider under
the United States Bankruptcy Code, at the request of the Financing Party made within ninety (90) days of such default,
Purchaser shall enter into a new agreement with the Financing Party or its designee having the same terms and
conditions as this Agreement.
(d) Right to Cure.
i. Purchaser will not exercise any right to terminate or suspend this Agreement unless it shall have given
the Financing Party prior written Notice by sending Noticeto the Financing Party ( at the address provided by Provider)
of its intent to terminate or suspend this Agreement, specifying the condition giving rise to such right, and the
Financing Party shall not have caused to be cured the condition giving rise to the right of termination or suspension
within thirty (30) days after such Notice or (if longer) the periods provided for in this Agreement. The Parties agree
that the cure rights described herein are in addition to and apply and commence following the expiration of any Notice
Page 23 of26
and cure period applicable to Provider The Parties respective obligations will otherwise remain in effect during any
cure period; provided, if such Provider default reasonably cannot be cured by the Financing Party within such period
and the Financing Party commences and continuously pursues cure of such default within such period, such period
for cure will be extended for a reasonable period oftime under the circumstances, such period not to exceed additional
ninety (90) days.
ii. If the Financing Party (including any purchaser or transferee), pursuant to an exercise ofremedies by the
Financing Party, shall acquire title to or control of Provider's assets and shall, within the time periods described in
Sub-section (c)(i). above , cure all defaults under this Agreement existing as of the date of such change in title or
control in the manner required by this Agreement and which are capable of cure by a third person or entity, then such
person or entity shall no longer be in default under this Agreement, and this Agreement shall continue in full force
and effect.
Page 24 of26
Exhibit C
of General Conditions
Requirements Applicable to the lnstalJation Work
Section B. l Prohibition Against Use of Tobacco. All properties and facilities owned, leased, or operated by the
Purchaser are tobacco-free work places. No person on, at or in any Purchaser-controlled property or facility, including,
without limitation, the Premises, may smoke, chew or otherwise use tobacco products. Provider shall be responsible
for: (i) informing any and all persons present on or at the Premises on account of the Installation Work about the
Purchaser's tobacco-free policy; and (ii) strictly enforcing such policy with respect to the Premises. The Purchaser,
Provider, and each Subcontractor shall require that any person present on or at the Premises on account of the
Installation Work who violates such policy must permanently leave the Premises and shall prohibit such person from
thereafter being present or performing any of the Installation Work on or at the Premises.
Section B.2 Prohibition Against Use of Drugs.
(a) Purchaser Drug-Free Pol icv. All properties and facilities owned, leased or operated by the Purchaser
are drug-free work places. No person on, at or in any Purchaser-controlled property or facility, including, without
limitation, the Premises, may: (i) engage in the unlawful manufacture, dispensation, possession or use, including being
under the influence, of any controlled substance, (ii) possess or use any alcoholic beverage, or (iii) use any substance
which may cause significant impairment of normal abilities. Provider shall be responsible for: (i) informing any and
all persons present on or at the Premises on account of the Installation Work about the Purchaser's drug-free policy;
and (ii) strictly enforcing such policy with respect to the Premises. The Purchaser, Provider, and each Subcontractor
shall require that any person present on or at the Premises on account of the Installation Work who violates such policy
must permanently leave the Premises and shall prohibit such person from thereafter being present or performing any
of the Installation Work on or at the Premises.
(b) Drug-Free Workplace Certification. Provider is hereby made subject to the requirements of
Government Code Sections 8350 et seq., the Drug-Free Workplace Act of 1990.
Section B.3 Compliance with Labor Requirements. The Installation Work is a "public works" project as defined
in Section 1720 of the California Labor Code ("Labor Code") and made applicable pursuant to Section 1720.6 of the
Labor Code. Therefore, the Installation Work is subject to applicable provisions of Part 7, Chapter 1, of the Labor
Code and Title 8 of the California Code of Regulations, Section 16000 et seq. (collectively, "Labor Law"). Provider
acknowledges that, as provided by Senate Bill 854 (Stats. 2014, Ch. 28), the Project is subject to labor compliance
monitoring and enforcement by the California Department of Industrial Relations ("DIR").
Section B.4 Compliance with Labor Code Requirements. Provider must be, and shall be deemed and construed
to be, aware of and understand the requirements of the Labor Law that require the payment of prevailing wage rates
and the performance of other requirements on public works projects. Provider, at no additional cost to the Purchaser,
must: (i) comply with any and all applicable Labor Law requirements, including, without limitation, requirements for
payment of prevailing wage rates, inspection and submittal ( electronically, as required) of payroll records, interview( s)
of workers, et cetera; (ii) ensure that its Subcontractors are aware of and comply with the Labor Law requirements;
(iii) in connection with Labor Law compliance matters, cooperate with the DIR, the Purchaser and other entities with
competent jurisdiction; and (iv) post all job-site Notices required by law in connection with the Installation Work,
including, without limitation, postings required by DIR regulations. A Subcontractor that has been debarred in
accordance with the Labor Code, including, without limitation, pursuant to Sections 1777.1 or 1777.7, is not eligible
to bid on, perform, or contract to perform any portion of the Installation Work. Wage rates for the Installation Work
shall be in accordance with the general prevailing rates of per-diem wages determined by the Director of Industrial
Relations pursuant to Labor Code Section l 770. The following Labor Code sections are by this reference incorporated
into and are a fully operative part of the Contract, and Provider shall be responsible for compliance therewith:
(a) Section 1735: Anti-Discrimination Requirements;
Page 25 of26
(b) Section 1775: Penalty for Prevailing Wage Rate Violations;
(c) Section 1776: Payroll Records;
(d) Sections 1777.5,1777.6 and 1777.7: Apprenticeship Requirements;
(e) Sections 1810 through 1812: Working Hour Restrictions;
(t) Sections 1813 and 1814: Penalty for Failure to Pay Overtime; and
(g) Section 1815: Overtime Pay .
Section B.5 Requirements for Payroll Records. Provider must comply with all applicable provisions of Labor
Code Sections 1776 and 1812, which relate to preparing and maintaining accurate payroll records, and making such
payroll records available for review and copying by the Purchaser, the DIR Division of Labor Standards Enforcement,
and the DIR Division of Apprenticeship Standards. The payroll records must be certified and made available as
required by Labor Code Section 1776.
Section B.6 Contractor Registration. On and after March 1, 2015, no contractor may bid on a public works
project unless the contractor is, and no subcontractor may be listed in any bid for a public works project unless the
subcontractor is, currently registered with the DIR and qualified to perform public work pursuant to Labor Code
Section 1725.5. On and after April 1, 2015, no contractor or subcontractor may be awarded a contract for work on a
public works project or may perform any work on a public works project, unless the contractor or subcontractor is
currently registered with the DIR and qualified to perform public work pursuant to Labor Code Section 1725.5. It is
not a violation of Labor Code Section 1725.5 for an unregistered contractor to submit a bid authorized by Business
and Professions Code Section 7029.l or Public Contract Code Section 20103.5, if the contractor is registered at the
time the contract is awarded.
Section B.7 Permits and Licenses. Without limiting anything set forth in Section B.7 of this Exhibit C, Provider,
its Subcontractors, and all of their respective employees and agents: (i) shall secure and maintain in force at all times
during the performance of the Installation Work such licenses and permits as are required by law; and (ii) shall comply
with all federal and State, and County laws and regulations, and other governmental requirements applicable to the
System or the Installation Work. Provider or its subcontractors shall obtain and pay for all permits and licenses
required for the performance of, or necessary in connection with, the Installation Work, and shall give all necessary
Notices and deliver all necessary certificates to the Purchaser, and shall pay all royalties and license fees arising from
the use of any material, machine, method or process used in performing the Installation Work. Provider shall be solely
responsible for all charges, assessments and fees payable in connection with any such licenses, permits, materials,
machines, methods, and processes.
Section B.8 Protection of Mfoor-Aged Students. Provider, in conformance with Education Code Section
45125 .1, shall require and be responsible for ensuring compliance by each and every person who will be on or at the
Premises in connection with the construction, maintenance, operation or other purposes related to the System with all
California Department of Justice guidelines and requirements relating to fingerprinting and criminal-history
background checks , regardless of whether Section 45125.1 otherwise by its terms would apply to any such activities.
In the event Education Code Section 45125.1 is repealed or superseded, Provider, following receipt of written Notice
from the Purchaser, shall comply with such successor or other requirements as determined by the Purchaser in its
reasonable discretion. The Purchaser, in its discretion, may exempt in writing any person(s) from the foregoing
requirements if Provider makes alternative arrangements for supervision of such person(s) that are acceptable to the
Purchaser in its sole discretion.
Page 26 of26
ENERGY SERVICES AGREEMENT-SOLAR
City Center
This Energy Services Agreement ("Agreement") is made and entered into as of this .;l.~ay of ~"e., 2024 (or, if
later, the latest date of a Party's execution and delivery to the other Party of this Agreement, the "Effective Date"),
between FFP BTM SOLAR, LLC, a Delaware limited liability company ("Provider"), and City of Rohnert Park, A
Municipal Corporation ("Purchaser"; and, together with Provider, each, a"~" and together, the "Parties").
RECITALS
A. Purchaser desires that Provider install and operate a solar photovoltaic system at the Premises (as hereafter
defined) for the purpose of providing Energy Services (as hereafter defined), and Provider is willing to have
the Installation Work performed by using one or more qualified contractors holding the appropriate licenses
required in the jurisdiction where the System will be installed;
B. Provider is in the business of designing, constructing, owning, financing, and operating solar photovoltaic
systems for the purpose of selling power generated by the systems to its purchasers;
C. California Government Code sections 4217.10 et seq. authorizes a public entity to enter into energy service
contracts, facility financing contracts, and related agreements to implement the State's conservation and
alternative energy supply source policy;
D. Purchaser's governing body has made those findings required by Government Code section 4217.12 that the
anticipated cost to the Purchaser for Energy Services provided by the System under this Agreement is
expected to be less than the anticipated marginal cost to the Purchaser of electrical energy that would have
been consumed by Purchaser in the absence of its purchase of the Energy Services;
E . Provider and Purchaser acknowledged those certain General Terms and Conditions of Energy Services
Agreement between FFP BTM Solar, LLC and Purchaser dated as of~~c.1-45 2024 ("General Tenns and
Conditions"), which are incorporated by reference as set forth herein; and
F. The terms and conditions of this Energy Services Agreement, excluding the General Terms and Conditions
incorporated herein, constitute the "Special Conditions" referred to in the General Terms and Conditions.
In consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
I . Lncorporation of General Terms and Conditions. The General Terms and Conditions are incorporated herein
as if set forth in their entirety.
2. Initial Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for
Twenty (20) years from the Commercial Operation Date (as defined in the General Terms and Conditions),
unless and until extended or terminated earlier pursuant to the provisions of this Agreement (the "Initial
Term"). After the Initial Term, this Agreement may be renewed for an additional five (5) year term (a
"Renewal Term"). At least one hundred and eighty (180) days, but no more than three hundred and sixty-
five (365) days, prior to the expiration of the Initial Term, Provider shall give written notice to Purchaser of
the availability of the Renewal Term. Purchaser shall have sixty (60) days to agree to continuation of this
Agreement for the Renewal Term. Absent agreement to the Renewal Term this Agreement shall expire on
the Expiration Date. The Initial Term and the subsequent Renewal Term, if any, are referred to collectively
as the "Term".
3. Schedules. The following Schedules hereto are hereby incorporated into this Agreement:
CONFIDENTIAL AND PROPRIETARY
Schedule l Description of the Premises, System and Subsidy
Schedule 2 Energy Services Payment
Schedule 3 Early Termination Fee
Schedule 4 Estimated Annual Production
Schedule 5 Notice Information
Schedule 6 Reserved
Schedule 7 Specific Items for Scope of Work
Schedule 8 Site Diagram
Schedule 9 Acknowledgment ofUoe:rades, Schedule or Scope Change
4 . Privacy. Purchaser acknowledges that the System may collect certain information about Purchaser's
electricity usage and the System performance. Such information may be stored and processed in the United
States or any other country in which Provider or its third-party service providers, or its or their respective
affiliates, subsidiaries, or service providers, maintain facilities. Purchaser consents to any such transfer of
information outside of Purchaser's country.
5. Milestone Dates.
6.
5.1 The Guaranteed Construction Start Date is 730 days from Effective Date provided that the Local
Electric Utility is prepared to begin its construction on any required utility, (distribution or
transmission), upgrades, if any, and the Purchaser has completed construction within the area of
solar development (as indicted in Schedule 9). In the event that the Local Electric Utility is not
prepared to commence construction on required upgrades, if any are required, or the Purchaser has
not completed construction within the area of solar development, Provider will be allowed a day for
day extension to the Guaranteed Construction Start Date, as defined in the General Terms and
Conditions between the Parties.
5 .2 The Guaranteed Commercial Operation Date is: (i) 60 days from the date on which the Local Electric
Utility authorizes Provider to schedule an inspection to energize the System after confirming
completion of installation, and testing, or (ii) April 14, 2026, whichever occurs later.
5 .3 Extensions. The Guaranteed Construction Date and the Guaranteed Commercial Operation Date and
related damages provisions and termination rights in Section 2 of the General Terms and Conditions,
will be extended by the number of days, equal to the duration of delays in construction or the
commencement of operation of the System due to Force Majeure Events, delays caused by the Local
Electric Utility, provided any such delay is beyond the control of Provider and is not the result of
the fault or negligence of Provider (including but not limited to Provider's failure to provide a
timely, complete application to the Local Electric Utility or to respond to Local Electric Utility
requests for information) ("Local Electric Utility Delay"), delays caused by the Authority Having
Jurisdiction ("AHJ Delay"), or failure of Purchaser to timely perform its obligations hereunder. The
number of days of such extension will be calculated from the date on which the Force Majeure
Event, Local Electric Utility Delay, AHJ Delay, or Purchaser's failure to perform occurs, as long as
Provider has given Purchaser, as applicable, (i) notice of the Force Majeure Event in accordance
with Section 10.2 of the General Terms and Conditions, or (ii) prompt notice of any failure to
perform or Local Electric Utility Delay or AHJ Delay that is delaying construction or
commencement of operation of the System.
Purchase Requirement; Energy Services Payment. "Energy Services" means the supply of electrical energy
output from the System and any associated reductions in Purchaser's peak demand from its Local Electric
Utility. Purchaser agrees to purchase one hundred percent (100%) of the Energy Services generated by the
System and made available by Provider to Purchaser during each relevant month of the Term, up to a
maximum of one hundred and ten percent (110%) of Estimated Annual Production, as defined in Schedule
4. While the Energy Services are calculated and billed on a per kWh basis as set forth in Schedule 2 of these
Special Conditions, they represent a package of services and benefits.
2
CONFIDENTIAL AND PROPRIETARY
7. Net Energy Metering.
7.1 The Parties acknowledge that the pricing assumes Net Energy Metering (NEM) 2.0 for the Initial Term. If
(i) Provider fails to submit interconnection applications by April 14, 2023, or (ii) prior to the Commercial
Operation Date, (A) Provider fails to keep such interconnection applications in good standing such that the
System would not be eligible for NEM 2.0, or (B) the CPUC issues a decision such that the System would
not be eligible for NEM 2.0 grandfathering for at least twenty (20) years, Purchaser may terminate this
Agreement with no liability whatsoever, including, but not limited to the Early Termination Fee. The
foregoing shall not apply to the extent Provider's failure is caused by an act or omission by Purchaser in
connection with Provider's submittal of interconnection applications.
Provided, however, that in the event of a change in Applicable Law that occurs after the Commercial
Operation Date and results in a loss ofNEM 2.0 grandfathering, Purchaser shall have no such termination
right. Provided further that Purchaser shall ensure any correspondence with the Local Electric Utility
regarding the tariff and changes to the interconnection agreement are promptly shared with Provider.
8. Estimated Annual Production. The annual estimate of electricity generated by the system for each year of
the initial term is set as forth in Schedule 4 of the Special Conditions ("Estimated Annual Production').
Within sixty (60) days of each annual anniversary of the Commercial Operation Date, Provider will provide
a statement to Purchaser that shows the actual annual kWh production from the System for the Term Year,
the Estimated Annual Production, and the Minimum Guaranteed Output (defined below).
9. Minimum Guaranteed Outpul. If the System fails to generate at least ninety-five percent (95%) of the
Estimated Annual Production for a full Term Year (such amount, the "Minjmum Guaranteed Output"), other
than as a result of the acts or omissions of Purchaser or the Local Electric Utility (including a Disruption
Period), or an Event of Force Majeure, Provider shall credit Purchaser an amount equal to Purchaser's Lost
Savings on the next invoice or invoices during the following Term Year. The formula for calculating Lost
Savings for the applicable Term Year is as follows:
Lost Savings= (MGO*WPR -AE) x RV
MGO = Minimum Guaranteed Output, as measured in total kWh, for the System for the applicable
Term Year.
WPR = Weather Performance Ratio, measured as the ratio of the actual insolation over typical (pro-
forma) insolation. Such Weather Performance Ratio shall only apply if the ratio is less than 1.00.
AE = Actual Electricity, as measured in total kWh, delivered by the System for the Term Year plus
the estimated lost energy production during a Disruption Period.
RV= (ATP -kWh Rate)
ATP = Average tariff price, measured in $/kWh, for the Term Year paid by Purchaser with respect
to the Premises. This price is determined by dividing the total cost for delivered electricity,
including all charges associated with such electricity howsoever named, including, without
limitation, charges for distribution, transmission, demand, and systems benefits, paid to the Local
Electric Utility during the applicable Term Year by the total amount of delivered electricity by the
electric utility during such Term Year.
kWh Rate= the kWh Rate in effect for the applicable Term Year(s), measured in $/kWh.
If the RV is zero or less, then no Lost Savings payment is due to Purchaser. Any Lost Savings payment shall
occur no later than sixty (60) days after the end of the Term Year during which such Lost Savings occurred.
3
CONFIDENTIAL AND PROPRIETARY
10. Allowed Disruption Time. Notwithstanding the provisions in Section 4.3 of the General Terms and
Conditions to the contrary, during years 4 through 20 (but not years 1 through 3) of the Term, Purchaser shall
be afforded a one-time allocation of fifteen (15) days which may be used consecutively or in separate periods
of at least twenty-four (24) hours each (' Allowed Dis.ruption Time") during which the System shall be
rendered non-operational. Purchaser shall not be obligated to make payments to Provider for electricity not
received during the Allowed Disruption Time, nor shall Purchaser be required to reimburse Provider for any
other lost revenue during the Allowed Disruption Time, including any lost revenue associated with any
reduced sales of Environmental Attributes, and Provider shall be credited for the estimated lost production
the System would have produced during such Allowed Disruption Time toward satisfaction of its Minimum
Guaranteed Output, as set forth in Section 8 of the Special Conditions, such estimated lost production to be
calculated in the same manner as set forth in Section 4.3 of the General Conditions.
11. Distribution Upgrades, Scope and Schedule Changes .
11. 1 For any distribution upgrades required or changes to the scope oflnstallation Work made pursuant
to Schedule 2 of the Special Conditions, the Parties may execute an acknowledgment in the form
attached hereto as Schedule 9 detailing (i) the description of the distribution upgrades or change in
scope of the Installation Work (ii) the amount of the adjustment in the kWh Rate and Early
Termination Fee that corresponds to such costs, if any (iii) changes to the Estimated Annual
Production in Schedule IV, if any, and (iv) any change to the Guaranteed Construction Start Date
and Guaranteed Commercial Operation Date resulting from such upgrades or scope changes;
11.2 For any day for day extensions made pursuant to Section 2.2(b) of the General Conditions, the
Parties may execute an acknowledgment in the form attached hereto as Schedule 9 detailing (i) the
circumstances that warrant such day for day extension and (ii) the updated Guaranteed Construction
Start Date and/or Guaranteed Commercial Operation Date;
11.3 For any extensions that are not made pursuant to Section 2.2(b) of the General Conditions, Provider
may request extensions to the Guaranteed Construction Start Date and/or Guaranteed Commercial
Operation Date to the extent that Provider can demonstrate to Purchaser that Provider is seeking
such extension for good cause. Purchaser in its sole discretion may approve such extension(s) by
executing an acknowledgment in the form attached hereto as Schedule 9 on which Provider details
(i) the circumstances for which Provider deems good cause for such extension(s), (ii) the actions
that Provider is taking to complete the System on a schedule agreeable to the Purchaser and (iii) the
updated Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date.
For the avoidance of doubt, Purchaser designates Public Works Director as authorized to execute the
acknowledgment form attached hereto as Schedule 9 provided the terms of such acknowledgment comply with this
Section 11.
12. Sunlight Access. Purchaser will take all reasonable actions as necessary to prevent other buildings, structures
or flora from overshadowing or otherwise blocking access of sunlight to the System.
13 . Use of System. Purchaser will not use electrical energy generated by the System for the purposes of heating
a swimming pool within the meaning of Section 48 of the Internal Revenue Code.
4
CONFIDENTIAL AND PROPRIETARY
IN WITNESS WHEREOF and in confinnation of their consent to the terms and conditions contained in this
Agreement and intending to be legally bound hereby, Provider and Purchaser have executed this Agreement as of the
Effective Date.
PROVIDER:
FFP BTM SOLAR, LLC
. Ruben nmte r By. Rb f«itn,fll'INJi)Jt l>L f'D f"
Name: Ruben Fontes
Title: President
Date: 06/20/2024
PURCHASER:
CITY OF ROHNERT PARK
By: _____ -=--~---
Name: Mo.rce.\o.. f,~-rv.,
Title: C ;~ M~a..~et"
Date:
5
I.
II.
CONFIDENTIAL AND PROPRIETARY
SCHEDULES
Schedule 1-Description of the Premises, System and Subsidy
A. Premises 500 City Center Dr
Rohnert Park, CA 94928
Site diagram attached: XYes □No
Behind the meter, grid interconnected , canopy mounted solar .
B. DescriQtioo of Solar Sy s tem
Solar System Size: 679.77kW (DC) (this is an estimate (and not a guarantee) of the
System size; Provider may update the System Size prior to the
Commercial Operation Date.)
C. AnticiQated Subsidv or
Rebate $0
Schedule 2-Energy Services Payment
Purchaser shall pay to Provider a monthly payment (the' E ne rgy Servi ces Pa yment') for the Energy
Services provided by the System during each calendar month of the Term equal to the product of (x) Actual
Monthly Production for the System for the relevant month multiplied by (y) the kWh Rate.
The' Actual Mon thl y Produ cti on" means the amount of energy recorded by Provider's metering equipment
during each calendar month of the Term.
The kWh Rate with respect to the System under this Agreement shall be in accordance with the following
schedule:
PP A Rate Table
Term kWh Rate Term $/kWh Rate
Year ($/kWh) Year ($/kWh)
1 $0 .2532 11 $0.2532
2 $0 .2532 12 $0.2532
3 $0 .2532 13 $0.2532
4 $0 .2532 14 $0.2532
5 $0 .2532 15 $0 .2532
6 $0 .2532 16 $0 .2532
7 $0 .2532 17 $0.2532
8 $0.2532 18 $0.2532
9 $0.2532 19 $0.2532
10 $0 .2532 20 $0.2532
6
CONFIDENTIAL AND PROPRIETARY
Distributio□ Upgrades. Within thirty (30) days of receipt of notice from the Local Electric Utility of distribution
upgrade costs required by the Local Electric Utility, Purchaser will provide written notice (email is acceptable) to
Provider of Purchaser's election of one of the following options:
a. Purchaser will pay the entire amount of such distribution upgrade costs, and the kWh rate as stated
in PP A Rate Table will remain unchanged. Purchaser shall make payments directly to the Local
Electric Utility in accordance with the requirements of the Local Electric Utility.
b. For every $0.01 per watt DC of such distribution upgrade costs, the kWh rate in PPA Rate Table
will increase $0.0009 per kWh.
Scope Changes OTC Eligible): If changes in project scope occur that are eligible for the Federal Investment
Tax Credit (such as but not limited to adverse geotechnical conditions) and such additional scope and
associated costs go beyond those contemplated as part of the development and implementation of the System
in this Agreement, Provider will provide reasonable documentation demonstrating the direct and actual time
and materials costs relating to such associated costs, and, within 30 days of receipt of notice from Provider
reasonably substantiating the associated costs, Purchaser will provide written notice to Provider of
Purchaser's election of one of the following options:
a. Purchaser will pay the entire amount of such associated costs, and the kWh rate as stated in PPA
Rate Table will remain unchanged.
b. For every $0.01 per watt DC of such associated costs, the kWh rate in PPA Rate Table will increase
$0.0007 per kWh.
Scope Changes ( on-ITC Eligible): If changes in project scope occur that are not eligible for the Federal
Investment Tax Credit (such as but not limited to additional required ADA upgrades) and such additional
scope and associated costs go beyond those contemplated as part of the development and implementation of
the System in this Agreement, Provider will provide reasonable documentation demonstrating the direct and
actual time and materials costs relating to such associated costs, and, within 30 days ofreceipt ofnotice from
Provider reasonably substantiating the associated costs, Purchaser will provide written notice to Provider of
Purchaser's election of one of the following options:
c. Purchaser will pay the entire amount of such associated costs, and the kWh rate as stated in PP A
Rate Table will remain unchanged.
d. For every $0.01 per watt DC of such associated costs, the kWh rate in PPA Rate Table will increase
$0.0011 per kWh.
If the aggregate of costs set forth above for which Purchaser has elected to pay for via increased kWh Rate exceed
the maximum total kWh Rate increase of$0.0336 the Provider has the option to terminate this Agreement and to
remove the System pursuant to Section 2.4 of the General Conditions. In no event shall Purchaser be responsible for
costs that exceed the stated kWh Rate increase.
7
CONFIDENTIAL AND PROPRIETARY
III. Schedul e 3 -Early Termination Fee
The Early Tennination Fee with respect to the System under this Agreement shall be calculated in accordance
with the following:
Early Column 1 Purchase Date Occurs on the Column2
Termination Early Termination Fee 91'1 day following: Early Termination Fee
Occurs in Year: where Purchaser does fil!! (Each "Anniversary" below where Purchaser takes
take Title to the System shall refer to the anniversary Title to the System
($/Wdc including costs of of the Commercial Operation ($/Wdc, does not include
removal) Date) costs of removal)
l* $6.79 --
2 $6.27 --
3 $5.69 --
4 $5.20 --
5 $4.76 --
6 $4.33 5th Ann iv ersary $3.83
7 $4.25 6th Ann iversary $3.75
8 $4 .21 7th Anniversary $3 .71
9 $4.18 8th Anni versary $3 .68
10 $4.14 9th An n iversary $3.64
11 $4.11 10 th Anniversary $3 .61
12 $4.07 11 th Anniversary $3.57
13 $4.04 I 2th Anniversary $3.54
14 $4.00 13 th Anniversary $3.50
15 $3.97 14th Anniversary $3.47
16 $3.94 15 th Anniversary $3.44
17 $3.90 16th Anniversary $3.40
18 $3.87 17th Anniversary $3 .3 7
19 $3.84 18 th Anniversary $3 .34
20 $3.81 19 th Anniversary $3.31
At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0).
*Includes Early Tennination prior to the Commercial Operation Date.
IV. Schedule 4 -Estimated Annual Production
Estimated Annual Production commencing on the Commercial Operation Date with respect to System
under this Agreement shall be as follows:
Term Estimated Term Estimated
Year Production Year Production
(kWh) (kWh)
l 982,268 11 93 4,245
2 977 ,356 12 929,573
3 972 ,470 13 924,926
4 967 ,607 14 920 ,301
5 962,769 15 915 ,699
6 957 ,955 16 911,121
7 953 ,166 17 906 ,565
8 948,400 18 902,033
9 943 ,658 19 897,522
10 938,939 20 893 ,035
8
CONFIDENTIAL AND PROPRIETARY
The values set forth in the table above are estimates (and not guarantees), of approximately how many kWhs
are expected to be generated annually by the System assuming the System size indicated in Schedule l and
based on initial System designs. Provider may deliver to Purchaser an updated table on or about the
Commercial Operation Date based on the actual System size and design.
V. Schedule 5 -Notice Information
Purchaser:
City to fill in
c;~ JI.-~\-\"'en-fo.r\:..
Afro'. c..~~ C.\e.c~.S o.w.·\C'.L
,~ A"~ A...,eY''-'L
~"'tt.M"" y M" \.c-' cA C\ '{I\ :J-8
VI. Schedule 6 -Reserved
Provider:
FFP BTM Solar, LLC
c/o Forefront Power, LLC
Attn: Director, Energy Services
100 Montgomery St., Suite 725
San Francisco, CA 94104
With a copy to
FFP BTM Solar, LLC
c/o Forefront Power, LLC
Attn: Legal Department
l 00 Montgomery St., Suite 725
San Francisco, CA 94104
Email: FPLegal@forefrontpower.com
Financing Party:
[To be provided by Provider when known]
VII. Schedule 7 -Specific Items for Scope of Work
1.1 . All System structures shall be permitted through the authority having jurisdiction as carports or
shade structures, as applicable. Provider shall obtain permits on behalf of the project(s),
including building department, structural, grading, and/or electrical permits as required.
1.2. Provider and Purchaser are operating under the assumption that the premises will be eligible
for a CEQA Notice of Exemption (NOE), and that a special use, conditional use, or zoning
permit will not be required. Provider assumes that Purchaser, as lead agency, will issue a Notice
of Exemption for CEQA. Upon request, Provider shall provide such limited support as
necessary to Purchaser to obtain the NOE, including, if necessary, biological study and
associated consultant statement and summary citing exemptions applicable. Provider shall not
be responsible for costs or delays associated with any unforeseen required CEQA studies,
special use, conditional use, or zoning permits, or mitigations that may result from a CEQA
submittal and public comment.
1.3. Purchaser will provide comprehensive review by all necessary stakeholders of all designs and
submittals as requested by Provider in no more than 10 business days. Purchaser shall be
responsible for cost and timeline impacts for any comments submitted after 10 business days.
If Purchaser does not deliver any comments within IO days, Provider shall construe this as
acceptance and approval.
9
CONFIDENTIAL AND PROPRIETARY
1.4. Solar arrays will be canopy height of 10' minimum clearance and with a painted finish.
1.5 . Provider shall be responsible for all tree trimming and tree removal in order to facilitate the
installation of the Systems. Provider will remove tree such that area is flush with grade.
Purchaser shall acknowledge and approve removal of trees identified by Provider, in order to
install the system and such approval shall not be unreasonably withheld. Where tree removal
will occur, Provider shall grind tree stumps to a maximum of 4 inches below grade. Purchaser
shall be responsible for the costs associated with tree studies, arborist surveys, tree removal
permits, afforestation, or reforestation for any trees removed. Purchaser can elect to address the
additional scope itself, or require that Provider address it through the change order process
described in Schedule 2. Irrigation re-routing shall not be the responsibility of the Provider.
1.6. Provider intends to interconnect the System to Purchaser-owned 480V service conductors or
service equipment at a mutually agreeable location. Provider assumes that the existing
conductors and service equipment are sufficiently capable of accepting the additional electrical
load of the System and that any existing relay schema or protection settings are configurable to
allow backfeed from generation sources. Provider shall not bear responsibility for any required
upgrades to the pre-existing electrical system.
1. 7. Provider shall be responsible for all fees associated with the interconnection application, except
that Provider shall not be responsible for transmission, distribution, network, or
telecommunications upgrades determined necessary by the Local Electric Utility.
1.8. Provider shall be responsible for verifying and understanding existing ADA parking, striping,
and paths of travel and what code-required upgrades may be necessary as a result of the System
and any pre-existing non-compliance. Provider shall be responsible for all required ADA
striping, signage within the solar canopy footprint and connecting to existing ADA-compliant
path of travel. Provider's scope excludes any demolition, grading, paving, curb cuts, or
truncated domes throughout the Premises to achieve ADA compliance, or any required ADA
striping and signage outside of the solar canopy footprint and connecting to the existing ADA-
compliant path of travel. Should any excluded items for ADA-compliance be required, Provider
will work with Purchaser in good faith to determine a mutually-acceptable solution for
Purchaser to pay the costs associated with such upgrades, including potentially an increase in
the kWh rate in Schedule 2.
1.9. Provider excludes generator backup of Purchaser's electrical service during temporary service
outage during interconnection of the System (up to 8 hours of shutdown, which can be planned
to take place during off-hours).
l. 10. Provider assumes no title and/or real estate risks, encumbrances or other limitations exist that
would otherwise limit Provider's ability to access the site, install, own and operate the system.
Provider assumes that all parcels encompassed by the site area recommended by Purchaser will
be owned by Purchaser at time of development.
1.11 . Provider assumes that soil conditions are not such soils that are rocky, sandy, contaminated,
ground water, caving, or otherwise have problematic construction limitations. Provider assumes
no required shoring or de-watering for piers or trenches, and a maximum required pier depth of
1 0' and diameter of 30". If soil conditions prove to be more adverse than these assumptions,
Provider shall not be responsible for such additional expenses. Provider shall work with
Purchaser in good faith to determine a mutually acceptable solution for Purchaser to pay such
additional costs, including potentially an increase in the kWh rate in Schedule 2.
1.12. Purchaser is responsible for unforeseen underground conditions including utilities not
discoverable by industry standard methodologies.
10
CONFIDENTIAL AND PROPRIETARY
1.13 . Provider agrees to construct the System in no more than 1 construction phase, and that Provider
will be allowed ample space, to the extent that it is available, to store material on site. Provider
assumes free access to the entire mobilized portion of the parking lot area for the full scope of
work.
1.14. Provider shall be responsible for all inspection and inspector costs associated with the
installation of the system.
1.15. Provider assumes a balanced site. Any spoils that result from the installation of the System are
assumed to be spread on site. Provider shall not be responsible for exporting soils. Provider
shall work with Purchaser in good faith to determine a mutually-acceptable solution for
Purchaser to pay any such additional costs including potentially an increase in the kWh rate by
exercising the Scope Changes (Non-ITC Eligible) rates in Schedule 2.
1.16. Provider assumes that existing grade is level and that no grading is required in support of
System installation.
1.17. Provider assumes that there is a water source on site, and available for Provider's use.
1.18. Provider assumes Risk Level I Best Management Practices as it relates to relevant Storm water
Protection Plan assumptions for the installation of the System .
11
CONFIDENTIAL AND PROPRIETARY
VIII. Schedule 8 -Site Diagram
12
CONFIDENTIAL AND PROPRIETARY
IX. Schedule 9-Acknowledgment of Upgrades, Schedule or Scope Change
Upgrades, Scope and/or Schedule Change Acknowledgment
This Acknowledgment is made in accordance with Section 10 of the Special Conditions, as defined in that Energy
Service Agreement-[Solar], between [PURCHASER] ("Purchaser") and FFP BTM Solar, LLC ("Provider"), dated
~---' 20_] (the "Agreement"). Upon execution by both Purchaser and Provider, this Acknowledgment shall
be effective as of [INSERT DA TE] (the "Acknowledgment Effective Date").
2.
Type of Change:
D Distribution Upgrades
0 Scope Changes (ITC Eligible)
D Scope Changes (Non-ITC Eligible)
0 Day for Day Extension
D Extension for Good Cause
Description of Change
[INSERT DESCRIPTION AND IF PROVIDER SEEKING EXTENSION FOR GOOD CAUSE, PROVIDER
TO DETAIL CIRCUMSTANCES AND ACTIONS PROVIDER IS TAKING TO COMPLETE SYSTEM ON
AGREED UPON SCHEDULE] •
3. kWh Rate and Early Termination Fee [IF NO IMPACT TO RA TE OR ETF THEN DELETE]
[INSERT UPDATED KWH RA TE AND EARLY TERMINATION FEE TABLE]
4 . Estimated Annual Production [IF NO IMPACT TO ESTIMATED ANNUAL PRODUCTION THEN DELETE]
[INSERT UPDATED SCHEDULE 4 ESTIMATED ANNUAL PRODUCTION TABLE]
5. Updated Guaranteed Construction Start Date and Guaranteed Commercial Operation Date [IF NO IMPACT TO
CLIFF DA TES THEN DELETE]
The Parties hereby agree that the Guaranteed Construction Start Date and the Guaranteed Commercial Operation
Date as defined in the Agreement are updated as follows:
Guaranteed Construction Start Date: _[ ___ _
Guaranteed Commercial Operation Date:[~---~
The Parties hereby acknowledge and confirm the terms set forth herein as of the Acknowledgment Effective Date.
[PURCHASER] FFP BTM Solar, LLC
By: By:
Name: Name:
Title: Title:
13
City of Rohnert Park -Civic Center -ForeFront
Power
Final Audit Report
Created:
By:
Status:
Transaction ID:
2024-06-19
Kelsey Nguyen (kbracewell@rpcity.org)
Signed
CBJCHBCAABAA4_68k2h6u_EZTG8AxbKnstWkzONGW4KK
2024-06-20
"City of Rohnert Park -Civic Center -ForeFront Power" History
~ Document created by Kelsey Nguyen (kbracewell@rpcity.org)
2024-06-19-0:18:15 AM GMT
~ Document emailed to Ruben Fontes (rfontes@forefrontpower.com) for signature
2024-06-19-0:18:20 AM GMT
~ Email viewed by Ruben Fontes (rfontes@forefrontpower.com)
2024-06-19-0:19:09 AM GMT
0"0 Document e-signed by Ruben Fontes (rfontes@forefrontpower.com)
Signature Date: 2024-06-20 -4 :28 :41 PM GMT -Time Source: server
0 Agreement completed.
2024-06-20 -4:28:41 PM GMT
a Adobe Acrobat Sign
ENERGY SERVICES AGREEMENT-SOLAR
Callinan Sports & Fitness Center
This Energy Services Agreement ("Agreement") is made and entered into as of this a.~ay of J"1.1.W\e,., 2024 (or, if
later, the latest date of a Party's execution and delivery to the other Party of this Agreement, the "Effective Date"),
between FFP BTM SOLAR, LLC, a Delaware limited liability company ("Provider"), and City of Rohnert Park. A
Municipal Corporation ("Purchaser"; and, together with Provider, each, a "Party" and together, the "Parties").
RECITALS
A. Purchaser desires that Provider install and operate a solar photovoltaic system at the Premises (as hereafter
defined) for the purpose of providing Energy Services (as hereafter defined), and Provider is willing to have
the Installation Work performed by using one or more qualified contractors holding the appropriate licenses
required in the jurisdiction where the System will be installed;
B. Provider is in the business of designing, constructing, owning, financing, and operating solar photovoltaic
systems for the purpose of selling power generated by the systems to its purchasers;
C. California Government Code sections 4217.10 et seq. authorizes a public entity to enter into energy service
contracts, facility financing contracts, and related agreements to implement the State's conservation and
alternative energy supply source policy;
D. Purchaser's governing body has made those findings required by Government Code section 4217.12 that the
anticipated cost to the Purchaser for Energy Services provided by the System under this Agreement is
expected to be less than the anticipated marginal cost to the Purchaser of electrical energy that would have
been consumed by Purchaser in the absence of its purchase of the Energy Services;
E. Provider and Purchaser acknowledged those certain General Terms and Conditions of E nergy Services
Agreement between FFP BTM Solar, LLC and Purchaser dated as of 11,1,f'f.i; 2024 ("General Terms and
Conditions"), which are incorporated by reference as set forth herein; and
F. The terms and conditions of this Energy Services Agreement, excluding the General Terms and Conditions
incorporated herein, constitute the "Special Conditions" referred to in the General Terms and Conditions.
In consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
I . Incorporation of General Terms and Conditions. The General Terms and Conditions are incorporated herein
as if set forth in their entirety.
2 . Initial Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for
Twenty (20) years from the Commercial Operation Date (as defined in the General Terms and Conditions),
unless and until extended or terminated earlier pursuant to the provisions of this Agreement (the "Initial
Term"). After the Initial Term, this Agreement may be renewed for an additional five (5) year term (a
"Renewal Term"). At least one hundred and eighty (180) days, but no more than three hundred and sixty-
five (365) days, prior to the expiration of the Initial Term, Provider shall give written notice to Purchaser of
the availability of the Renewal Term. Purchaser shall have sixty (60) days to agree to continuation of this
Agreement for the Renewal Term. Absent agreement to the Renewal Term this Agreement shall expire on
the Expiration Date. The Initial Term and the subsequent Renewal Term, if any, are referred to collectively
as the "Term".
3. Schedules. The following Schedules hereto are hereby incorporated into this Agreement:
CONFIDENTIAL AND PROPRIETARY
Schedule 1 Description of the Premises, System and Subsidy
Schedule 2 Energy Services Payment
Schedule 3 Early Termination Fee
Schedule 4 Estimated Annual Production
Schedule 5 Notice Information
Schedule 6 Reserved
Schedule 7 Specific Items for Scope of Work
Schedule 8 Site Diagram
Schedule 9 Acknowledgment ofUogrades , Schedule or Scope Change
4. Privacy. Purchaser acknowledges that the System may collect certain information about Purchaser's
electricity usage and the System performance. Such information may be stored and processed in the United
States or any other country in which Provider or its third-party service providers, or its or their respective
affiliates, subsidiaries, or service providers, maintain facilities. Purchaser consents to any such transfer of
information outside of Purchaser's country.
S. Milestone Dates .
5 .1 The Guaranteed Construction Start Date is 730 days from Effective Date provided that the Local
Electric Utility is prepared to begin its construction on any required utility, (distribution or
transmission), upgrades, if any, and the Purchaser has completed construction within the area of
solar development (as indicted in Schedule 9). In the event that the Local Electric Utility is not
prepared to commence construction on required upgrades, if any are required, or the Purchaser has
not completed construction within the area of solar development, Provider will be allowed a day for
day extension to the Guaranteed Construction Start Date, as defined in the General Terms and
Conditions between the Parties.
5 .2 The Guaranteed Commercial Operation Date is: (i) 60 days from the date on which the Local Electric
Utility authorizes Provider to schedule an inspection to energize the System after confirming
completion of installation, and testing, or (ii) April 14, 2026, whichever occurs later.
5.3 Extensions. The Guaranteed Construction Date and the Guaranteed Commercial Operation Date and
related damages provisions and termination rights in Section 2 of the General Terms and Conditions,
will be extended by the number of days, equal to the duration of delays in construction or the
commencement of operation of the System due to Force Majeure Events, delays caused by the Local
Electric Utility, provided any such delay is beyond the control of Provider and is not the result of
the fault or negligence of Provider (including but not limited to Provider's failure to provide a
timely, complete application to the Local Electric Utility or to respond to Local Electric Utility
requests for information) {"Local Electric Utility Delay"), delays caused by the Authority Having
Jurisdiction ("AHJ Delay"), or failure of Purchaser to timely perform its obligations hereunder. The
number of days of such extension will be calculated from the date on which the Force Majeure
Event, Local Electric Utility Delay, AHJ Delay, or Purchaser's failure to perform occurs, as long as
Provider has given Purchaser, as applicable, (i) notice of the Force Majeure Event in accordance
with Section 10.2 of the General Terms and Conditions, or (ii) prompt notice of any failure to
perform or Local Electric Utility Delay or AHJ Delay that is delaying construction or
commencement of operation of the System.
6. Purchase Requiremen t: Energy Services Payment. "Energy Services' means the supply of electrical energy
output from the System and any associated reductions in Purchaser's peak demand from its Local Electric
Utility. Purchaser agrees to purchase one hundred percent (100%) of the Energy Services generated by the
System and made available by Provider to Purchaser during each relevant month of the Term, up to a
maximum of one hundred and ten percent (110%) of Estimated Annual Production, as defined in Schedule
4 . While the Energy Services are calculated and billed on a per kWh basis as set forth in Schedule 2 of these
Special Conditions, they represent a package of services and benefits.
2
CONFIDENTIAL AND PROPRIETARY
7. Net Energ y Meterin g.
7.1 The Parties acknowledge that the pricing assumes Net Energy Metering (NEM) 2.0 for the Initial Term. If
(i) Provider fails to submit interconnection applications by April 14, 2023, or (ii) prior to the Commercial
Operation Date, (A) Provider fails to keep such interconnection applications in good standing such that the
System would not be eligible for NEM 2.0, or (B) the CPUC issues a decision such that the System would
not be eligible for NEM 2.0 grandfathering for at least twenty (20) years, Purchaser may terminate this
Agreement with no liability whatsoever, including, but not limited to the Early Termination Fee. The
foregoing shall not apply to the extent Provider's failure is caused by an act or omission by Purchaser in
connection with Provider's submittal of interconnection applications.
Provided, however, that in the event of a change in Applicable Law that occurs after the Commercial
Operation Date and results in a loss ofNEM 2.0 grandfathering, Purchaser shall have no such termination
right. Provided further that Purchaser shall ensure any correspondence with the Local Electric Utility
regarding the tariff and changes to the interconnection agreement are promptly shared with Provider.
8. Estimated Annual Production. The annual estimate of electricity generated by the system for each year of
the initial term is set as forth in Schedule 4 of the Special Conditions ("Estima te d Annu a l Pr odu cti on').
Within sixty (60) days of each annual anniversary of the Commercial Operation Date, Provider will provide
a statement to Purchaser that shows the actual annual kWh production from the System for the Term Year,
the Estimated Annual Production, and the Minimum Guaranteed Output (defined below).
9. Minimum Guaranteed Output. If the System fails to generate at least ninety-five percent (95%) of the
Estimated Annual Production for a full Term Year (such amount, the "M inimum G uar ante ed O utput"), other
than as a result of the acts or omissions of Purchaser or the Local Electric Utility (including a Disruption
Period), or an Event of Force Majeure, Provider shall credit Purchaser an amount equal to Purchaser's Lost
Savings on the next invoice or invoices during the following Term Year. The formula for calculating Lost
Savings for the applicable Term Year is as follows:
Lost Savings = (MGO*WPR -AE) x RV
MGO = Minimum Guaranteed Output, as measured in total kWh, for the System for the applicable
Term Year.
WPR = Weather Performance Ratio, measured as the ratio of the actual insolation over typical (pro-
forma) insolation. Such Weather Performance Ratio shall only apply if the ratio is less than 1.00.
AE = Actual Electricity, as measured in total kWh, delivered by the System for the Term Year plus
the estimated lost energy production during a Disruption Period.
RV= (ATP-kWh Rate)
ATP= Average tariff price, measured in $/kWh, for the Term Year paid by Purchaser with respect
to the Premises. This price is determined by dividing the total cost for delivered electricity,
including all charges associated with such electricity howsoever named, including, without
limitation, charges for distribution, transmission, demand, and systems benefits, paid to the Local
Electric Utility during the applicable Term Year by the total amount of delivered electricity by the
electric utility during such Term Year.
kWh Rate= the kWh Rate in effect for the applicable Term Year(s), measured in $/kWh.
If the RV is zero or less, then no Lost Savings payment is due to Purchaser. Any Lost Savings payment shall
occur no later than sixty (60) days after the end of the Term Year during which such Lost Savings occurred.
3
10.
11.
CONFIDENTIAL AND PROPRIETARY
Allowed Disruption Time . Notwithstanding the provisions in Section 4.3 of the General Terms and
Conditions to the contrary, during years 4 through 20 (but not years 1 through 3) of the Term, Purchaser shall
be afforded a one-time allocation of fifteen (15) days which may be used consecutively or in separate periods
of at least twenty-four (24) hours each ("Allowed Disruption Time") during which the System shall be
rendered non-operational. Purchaser shall not be obligated to make payments to Provider for electricity not
received during the Allowed Disruption Time, nor shall Purchaser be required to reimburse Provider for any
other lost revenue during the Allowed Disruption Time, including any lost revenue associated with any
reduced sales of Environmental Attributes, and Provider shall be credited for the estimated lost production
the System would have produced during such Allowed Disruption Time toward satisfaction of its Minimum
Guaranteed Output, as set forth in Section 8 of the Special Conditions, such estimated lost production to be
calculated in the same manner as set forth in Section 4.3 of the General Conditions.
Distribution Upgrades, Scope and Schedule Changes.
11.1 For any distribution upgrades required or changes to the scope oflnstallation Work made pursuant
to Schedule 2 of the Special Conditions, the Parties may execute an acknowledgment in the form
attached hereto as Schedule 9 detailing (i) the description of the distribution upgrades or change in
scope of the Installation Work (ii) the amount of the adjustment in the kWh Rate and Early
Termination Fee that corresponds to such costs, if any (iii) changes to the Estimated Annual
Production in Schedule IV, if any, and (iv) any change to the Guaranteed Construction Start Date
and Guaranteed Commercial Operation Date resulting from such upgrades or scope changes;
11.2 For any day for day extensions made pursuant to Section 2.2(b) of the General Conditions, the
Parties may execute an acknowledgment in the form attached hereto as Schedule 9 detailing (i) the
circumstances that warrant such day for day extension and (ii) the updated Guaranteed Construction
Start Date and/or Guaranteed Commercial Operation Date;
11.3 For any extensions that are not made pursuant to Section 2.2(b) of the General Conditions, Provider
may request extensions to the Guaranteed Construction Start Date and/or Guaranteed Commercial
Operation Date to the extent that Provider can demonstrate to Purchaser that Provider is seeking
such extension for good cause. Purchaser in its sole discretion may approve such extension(s) by
executing an acknowledgment in the form attached hereto as Schedule 9 on which Provider details
(i) the circumstances for which Provider deems good cause for such extension(s), (ii) the actions
that Provider is taking to complete the System on a schedule agreeable to the Purchaser and (iii) the
updated Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date.
For the avoidance of doubt, Purchaser designates Public Works Director as authorized to execute the
acknowledgment form attached hereto as Schedule 9 provided the terms of such acknowledgment comply with this
Section 11.
12. Sunlight Access. Purchaser will take all reasonable actions as necessary to prevent other buildings, structures
or flora from overshadowing or otherwise blocking access of sunlight to the System.
13. Use of System. Purchaser will not use electrical energy generated by the System for the purposes of heating
a swimming pool within the meaning of Section 48 of the Internal Revenue Code.
4
CONFIDENTIAL AND PROPRIETARY
IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions contained in this
Agreement and intending to be legally bound hereby, Provider and Purchaser have executed this Agreement as of the
Effective Date.
PROVIDER:
FFP BTM SOLAR, LLC
. ?1,1.ben Trmter By. RubenFontes[JunJ0,202~0929PDTJ
Name: Ruben Fontes
Title: President
Date: 06/20/2024
PURCHASER:
CITY OF ROHNERT PARK
By: _________ _
Name: M.o.rulA. f, ~('GI.
Title: C ;~ M°""o..~«-
Date:
5
I.
II.
CONFIDENTIAL AND PROPRIETARY
SCHEDULES
Schedule 1 -Description of the Premises, System and Subsidy
A. Premises 5409 Snyder Ln
Rohnert Park, CA 94928
Site diagram attached: XYes □No
Behind the meter, grid interconnected, canopy mounted solar.
B. DescriE!tion of Solar Svstem
Solar System Size: 139.23 kW (DC) (this is an estimate (and not a guarantee) of the
System size; Provider may update the System Size prior to the
Commercial Operation Date.)
C. AnticiE!ated Subsidv or
Rebate $0
Schedule 2 -E nergy Services Payment
Purchaser shall pay to Provider a monthly payment (the "Energy Services Paym ent") for the Energy
Services provided by the System during each calendar month of the Term equal to the product of (x) Actual
Monthly Production for the System for the relevant month multiplied by (y) the kWh Rate.
The "Actual Mon thly Product io n" means the amount of energy recorded by Provider's metering equipment
during each calendar month of the Term.
The kWh Rate with respect to the System under this Agreement shall be in accordance with the following
schedule:
PP A Rate Table
Term kWh Rate Term $/kWh Rate
Year ($/kWh) Year ($/kWh)
I $0.3647 11 $0.3647
2 $0.3647 12 $0.3647
3 $0.3647 13 $0.3647
4 $0.3647 14 $0.3647
5 $0.3647 15 $0.3647
6 $0.3647 16 $0.3647
7 $0.3647 17 $0.3647
8 $0.3647 18 $0.3647
9 $0.3647 19 $0.3647
10 $0.3647 20 $0.3647
6
CONFIDENTIAL AND PROPRIETARY
Distribution Upgrades. Within thirty (30) days of receipt of notice from the Local Electric Utility of distribution
upgrade costs required by the Local Electric Utility, Purchaser will provide written notice ( email is acceptable) to
Provider of Purchaser's election of one of the following options:
a. Purchaser will pay the entire amount of such distribution upgrade costs, and the kWh rate as stated
in PPA Rate Table will remain unchanged. Purchaser shall make payments directly to the Local
Electric Utility in accordance with the requirements of the Local Electric Utility.
b. For every $0.01 per watt DC of such distribution upgrade costs, the kWh rate in PPA Rate Table
will increase $0.0009 per kWh.
Scope Changes (ITC Eligible): If changes in project scope occur that are eligible for the Federal Investment
Tax Credit (such as but not limited to adverse geotechnical conditions) and such additional scope and
associated costs go beyond those contemplated as part of the development and implementation of the System
in this Agreement, Provider will provide reasonable documentation demonstrating the direct and actual time
and materials costs relating to such associated costs, and, within 30 days of receipt of notice from Provider
reasonably substantiating the associated costs, Purchaser will provide written notice to Provider of
Purchaser's election of one of the following options:
a. Purchaser will pay the entire amount of such associated costs, and the kWh rate as stated in PPA
Rate Table will remain unchanged.
b. For every $0.01 per watt DC of such associated costs, the kWh rate in PPA Rate Table will increase
$0.0007 per kWh.
Scope Changes (Non-ITC Eligibl.e): If changes in project scope occur that are not eligible for the Federal
Investment Tax Credit (such as but not limited to additional required ADA upgrades) and such additional
scope and associated costs go beyond those contemplated as part of the development and implementation of
the System in this Agreement, Provider will provide reasonable documentation demonstrating the direct and
actual time and materials costs relating to such associated costs, and, within 30 days ofreceipt ofnotice from
Provider reasonably substantiating the associated costs, Purchaser will provide written notice to Provider of
Purchaser's election of one of the following options:
c. Purchaser will pay the entire amount of such associated costs, and the kWh rate as stated in PPA
Rate Table will remain unchanged.
d. For every $0.01 per watt DC of such associated costs, the kWh rate in PPA Rate Table will increase
$0.0011 per kWh.
If the aggregate of costs set forth above for which Purchaser has elected to pay for via increased kWh Rate exceed
the maximum total kWh Rate increase of$0.1446 the Provider has the option to terminate this Agreement and to
remove the System pursuant to Section 2.4 of the General Conditions. In no event shall Purchaser be responsible for
costs that exceed the stated kWh Rate increase.
7
III.
CONFIDENTIAL AND PROPRIETARY
Schedule 3 -Early Termination Fee
The Early Termination Fee with respect to the System under this Agreement shall be calculated in accordance
with the following:
Early Column 1 Purchase Date Occurs on the Column 2
Termination Early Termination Fee 915 1 day following: Early Termination Fee
Occurs in Year: where Purchaser does not (Each "Anniversary" below where Purchaser takes
take Title to the System shall refer to the anniversary Title to the System
($/Wdc including costs of of the Commercial Operation ($/Wdc, does not include
removal) Date) costs of removal)
l* $5.28 --
2 $4.86 --
3 $4.58 --
4 $4.38 --
5 $4.21 --
6 $4.03 5th Anniversary $3.53
7 $3.96 6th Anniversary $3.46
8 $3.88 7th Anniversary $3.38
9 $3.80 8th Anniversary $3.30
10 $3.71 9th Anniversary $3.21
11 $3.62 10th Anniversary $3.12
12 $3.52 11 th Anniversary $3.02
13 $3.42 12 th Anniversary $2.92
14 $3.32 13 th Anniversary $2.82
15 $3.21 14 th Anniversary $2.71
16 $3.09 I 5th Anniversary $2.59
17 $2.97 16th Anniversary $2.47
18 $2.85 17th Anniversary $2.35
19 $2.71 18 th Anniversary $2.21
20 $2.57 19th Anniversary $2.07
At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0).
*Includes Early Termination prior to the Commercial Operation Date.
IV. Schedule 4-Estimated Annual Production
Estimated Annual Production commencing on the Commercial Operation Date with respect to System
under this Agreement shall be as follows:
Term Estimated Term Estimated
Year Production Year Production
(kWh) (kWh)
1 205 ,921 11 195 ,854
2 204,892 12 194,874
3 203,867 13 193,900
4 202,848 14 192,931
5 201,834 15 191,966
6 200,824 16 191,006
7 199,820 17 190,051
8 198,821 18 189 ,101
9 197 ,827 19 188 ,155
10 196 ,838 20 187,215
8
CONFIDENTIAL AND PROPRIETARY
The values set forth in the table above are estimates (and not guarantees), of approximately how many kWhs
are expected to be generated annually by the System assuming the System size indicated in Schedule 1 and
based on initial System designs. Provider may deliver to Purchaser an updated table on or about the
Commercial Operation Date based on the actual System size and design.
V. Schedule 5 -Notice Information
Purchaser:
City to fill in
c;~ ~ (l..o'n~er½-f~~
A.Jrrf\·, c.i-\-~ C\er~ .... s oW,c~
\ :,0 A-,ro-YV\ A" U'\u.e.
P.o~n u+ fo.c-~l cA Gt~~c2S
VI. Schedule 6 -Reserved
Provider:
FFP BTM Solar, LLC
c/o Forefront Power, LLC
Attn: Director, Energy Services
100 Montgomery St., Suite 725
San Francisco, CA 94104
With a copy to
FFP BTM Solar, LLC
c/o Forefront Power, LLC
Attn: Legal Department
100 Montgomery St., Suite 725
San Francisco, CA 94104
Email: FPLegal@forefrontpower.com
Financing Party:
[To be provided by Provider when known]
VII. Schedule 7 -Specific Items for Scope of Work
1.1. All System structures shall be permitted through the authority having jurisdiction as carports or
shade structures, as applicable. Provider shall obtain permits on behalf of the project(s),
including building department, structural, grading, and/or electrical permits as required.
1.2. Provider and Purchaser are operating under the assumption that the premises will be eligible
for a CEQA Notice of Exemption (NOE), and that a special use, conditional use, or zoning
permit will not be required. Provider assumes that Purchaser, as lead agency, will issue a Notice
of Exemption for CEQA. Upon request, Provider shall provide such limited support as
necessary to Purchaser to obtain the NOE, including, if necessary, biological study and
associated consultant statement and summary citing exemptions applicable. Provider shall not
be responsible for costs or delays associated with any unforeseen required CEQA studies,
special use, conditional use, or zoning permits, or mitigations that may result from a CEQA
submittal and public comment.
1.3 . Purchaser will provide comprehensive review by all necessary stakeholders of all designs and
submittals as requested by Provider in no more than 10 business days. Purchaser shall be
responsible for cost and timeline impacts for any comments submitted after 10 business days.
If Purchaser does not deliver any comments within 10 days, Provider shall construe this as
acceptance and approval.
9
CONFIDENTIAL AND PROPRIETARY
1.4. Solar arrays will be canopy height of l O' minimum clearance and with a painted finish .
1.5 . Provider shall be responsible for all tree trimming and tree removal in order to facilitate the
installation of the Systems. Provider will remove tree such that area is flush with grade.
Purchaser shall acknowledge and approve removal of trees identified by Provider, in order to
install the system and such approval shall not be unreasonably withheld. Where tree removal
will occur, Provider shall grind tree stumps to a maximum of 4 inches below grade. Purchaser
shall be responsible for the costs associated with tree studies, arborist surveys, tree removal
permits, afforestation, or reforestation for any trees removed . Purchaser can elect to address the
additional scope itself, or require that Provider address it through the change order process
described in Schedule 2. Irrigation re-routing shall not be the responsibility of the Provider.
1.6. Provider intends to interconnect the System to Purchaser-owned 208V service conductors or
service equipment at a mutually agreeable location. Provider assumes that the existing
conductors and service equipment are sufficiently capable of accepting the additional electrical
load of the System and that any existing relay schema or protection settings are configurable to
allow backfeed from generation sources. Provider shall not bear responsibility for any required
upgrades to the pre-existing electrical system. Purchaser shall provide sufficient space for an
interconnection transformer in a mutually-acceptable location.
1.7 . Provider shall be responsible for all fees associated with the interconnection application, except
that Provider shall not be responsible for transmission, distribution, network, or
telecommunications upgrades determined necessary by the Local Electric Utility.
1.8. Provider shall be responsible for verifying and understanding existing ADA parking, striping,
and paths of travel and what code-required upgrades may be necessary as a result of the System
and any pre-existing non-compliance. Provider shall be responsible for all required ADA
striping, signage within the solar canopy footprint and connecting to existing ADA-compliant
path of travel. Provider's scope excludes any demolition, grading, paving, curb cuts, or
truncated domes throughout the Premises to achieve ADA compliance, or any required ADA
striping and signage outside of the solar canopy footprint and connecting to the existing ADA-
compliant path of travel. Should any excluded items for ADA-compliance be required, Provider
will work with Purchaser in good faith to determine a mutually-acceptable solution for
Purchaser to pay the costs associated with such upgrades, including potentially an increase in
the kWh rate in Schedule 2.
1.9 . Provider excludes generator backup of Purchaser's electrical service during temporary service
outage during interconnection of the System (up to 8 hours of shutdown, which can be planned
to take place during off-hours).
1. 10. Provider assumes no title and/or real estate risks, encumbrances or other limitations exist that
would otherwise limit Provider's ability to access the site, install, own and operate the system.
Provider assumes that all parcels encompassed by the site area recommended by Purchaser will
be owned by Purchaser at time of development.
1. 11. Provider assumes that soil conditions are not such soils that are rocky, sandy, contaminated,
ground water, caving, or otherwise have problematic construction limitations. Provider assumes
no required shoring or de-watering for piers or trenches, and a maximum required pier depth of
1 O' and diameter of 30". If soil conditions prove to be more adverse than these assumptions,
Provider shall not be responsible for such additional expenses. Provider shall work with
Purchaser in good faith to determine a mutually acceptable solution for Purchaser to pay such
additional costs, including potentially an increase in the kWh rate in Schedule 2.
l.12. Purchaser is responsible for unforeseen underground conditions including utilities not
discoverable by industry standard methodologies.
10
CONFIDENTIAL AND PROPRIETARY
1.13 . Provider agrees to construct the System in no more than 1 construction phase, and that Provider
will be allowed ample space, to the extent that it is available, to store material on site. Provider
assumes free access to the entire mobilized portion of the parking lot area for the full scope of
work.
1.14. Provider shall be responsible for all inspection and inspector costs associated with the
installation of the system.
1.15. Provider assumes a balanced site. Any spoils that result from the installation of the System are
assumed to be spread on site. Provider shall not be responsible for exporting soils. Provider
shall work with Purchaser in good faith to determine a mutually-acceptable solution for
Purchaser to pay any such additional costs including potentially an increase in the kWh rate by
exercising the Scope Changes (Non-ITC Eligible) rates in Schedule 2.
1.16. Provider assumes that existing grade is level and that no grading is required in support of
System installation.
1.17. Provider assumes that there is a water source on site, and available for Provider's use.
1.18. Provider assumes Risk Level I Best Management Practices as it relates to relevant Stormwater
Protection Plan assumptions for the installation of the System .
11
VIII. Schedule 8 -Site Diagram
12
CONFIDENTIAL AND PROPRIETARY
FOREFRONT ..,,,.,,..
~""'""•1'11t" ..
--~~( ...... ,.._
NOT FOR
CONSTRUCTION
Rohnert Part
Calllnan Sports and
Rtnes:s Center
CONFIDENTIAL AND PROPRIETARY
IX. Schedule 9 -Acknowledgment of Upgrades, Schedule or Scope Change
• pgrades. Scope and/or Schedule Change Acknowledgment
This Acknowledgment is made in accordance with Section 10 of the Special Conditions, as defined in that Energy
Service Agreement-[Solar], between [PURCHASER] ("Purchaser") and FFP BTM Solar, LLC ("Provider"), dated
~--~ 20__J (the "Agreement"). Upon execution by both Purchaser and Provider, this Acknowledgment shall
be effective as of [INSERT DATE] (the "Acknowledgment Effective Date").
1. Type of Change:
2.
D Distribution Upgrades
0 Scope Changes (ITC Eligible)
D Scope Changes (Non-ITC Eligible)
D Day for Day Extension
D Extension for Good Cause
Description ofChange
[INSERT DESCRIPTION AND IF PROVIDER SEEKING EXTENSION FOR GOOD CAUSE, PROVIDER
TO DETAIL CIRCUMSTANCES AND ACTIONS PROVIDER IS TAKING TO COMPLETE SYSTEM ON
AGREED UPON SCHEDULE]
3. kWh Rate and Early Termination Fee [IF NO IMPACT TO RATE OR ETF THEN DELETE]
[INSERT UPDATED KWH RA TE AND EARLY TERMINATION FEE TABLE]
4. Estimated Annual Production [IF NO IMPACT TO ESTIMATED ANNUAL PRODUCTION THEN DELETE]
[INSERT UPDATED SCHEDULE 4 ESTIMATED ANNUAL PRODUCTION TABLE]
5. pdated Guaranteed Construction Start Date and Guaranteed Commercial Operation Date [IF NO IMPACT TO
CLIFF DATES THEN DELETE]
The Parties hereby agree that the Guaranteed Construction Start Date and the Guaranteed Commercial Operation
Date as defined in the Agreement are updated as follows:
Guaranteed Construction Start Date: ~[ ---~]
Guaranteed Commercial Operation Date: ~[ ---~
The Parties hereby acknowledge and confirm the terms set forth herein as of the Acknowledgment Effective Date.
[PURCHASER] FFP BTM Solar, LLC
By: By:
Name: Name:
Title: Title:
13
City of Rohnert Park -Callinan -ForeFront
Power
Final Audit Report
Created:
By:
Status:
Transaction ID:
2024-06-19
Kelsey Nguyen (kbracewell@rpcity.org)
Signed
CBJCHBCAABAAMHl6PC2hMlsUDS1 qhVpJDvXIG1 bXNQ9m
2024-06-20
"City of Rohnert Park -Callinan -ForeFront Power" History
'El Document created by Kelsey Nguyen (kbracewell@rpcity.org)
2024-06-19-0:20 :08 AM GMT
t81. Document emailed to Ruben Fontes (rfontes@forefrontpower.com) for signature
2024-06-19-0:20:13 AM GMT
'El Email viewed by Ruben Fontes (rfontes@forefrontpower.com)
2024-06-19 -0:21 :05 AM GMT
0'9 Document e-signed by Ruben Fontes (rfontes@forefrontpower.com)
Signature Date : 2024-06-20 -4 :29 :14 PM GMT -Time Source : seNer
0 Agreement completed.
2024-06-20 -4:29:14 PM GMT
II Adobe Acrobat Sign
ENERGY SERVICES AGREEMENT-SOLAR
Spreckels Performing Arts Center
This En.ergy Services Agreement ("Agreement'') is made and entered into as oftbis ~~day of JIA.VIC-, 2024 (or, if
later, the latest date of a Party's execution and delivery to the other Party of this Agreement, the "Effective Date"),
between FFP BTM SOLAR, LLC, a Delaware limited liability company ("Provider"), and City of Rohnert Park, A
Municipal Corporation ("Purchaser"; and, together with Provider, each, a "Party" and together, the "Parties").
A.
B.
C.
D.
E.
F.
RECITALS
Purchaser desires that Provider install and operate a solar photovoltaic system at the Premises (as hereafter
defined) for the purpose of providing Energy Services (as hereafter defined), and Provider is willing to have
the Installation Work performed by using one or more qualified contractors holding the appropriate licenses
required in the jurisdiction where the System will be installed;
Provider is in the business of designing, constructing, owning, financing, and operating solar photovoltaic
systems for the purpose of selling power generated by the systems to its purchasers;
California Government Code sections 4217. l O et seq. authorizes a public entity to enter into energy service
contracts, facility financing contracts, and related agreements to implement the State's conservation and
alternative energy supply source policy;
Purchaser's governing body has made those findings required by Government Code section 4217.12 that the
anticipated cost to the Purchaser for Energy Services provided by the System under this Agreement is
expected to be less than the anticipated marginal cost to the Purchaser of electrical energy that would have
been consumed by Purchaser in the absence of its purchase of the Energy Services;
Provider and Purchaser acknowledged those certain General Terms and ~ditions of Energy Services
Agreement between FFP BTM Solar, LLC and Purchaser dated as of ~ia..111-, 2024 ("General Terms and
Conditions"), which are incorporated by reference as set forth herein; and
The terms and conditions of this Energy Services Agreement, excluding the General Terms and Conditions
incorporated herein, constitute the "Special Conditions" referred to in the General Terms and Conditions.
In consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
I. Incorporation of General Terms and Conditions. The General Terms and Conditions are incorporated herein
as if set forth in their entirety.
2. Initial Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for
Twenty (20) years from the Commercial Operation Date (as defined in the General Terms and Conditions),
unless and until extended or terminated earlier pursuant to the provisions of this Agreement (the "Initial
Term"). After the Initial Term, this Agreement may be renewed for an additional five (5) year term (a
"Renewal Term"). At least one hundred and eighty (180) days, but no more than three hundred and sixty-
five (365) days, prior to the expiration of the Initial Term, Provider shall give written notice to Purchaser of
the availability of the Renewal Term. Purchaser shall have sixty (60) days to agree to continuation of this
Agreement for the Renewal Term. Absent agreement to the Renewal Term this Agreement shall expire on
the Expiration Date. The Initial Term and the subsequent Renewal Term, if any, are referred to collectively
as the "Term".
3. Schedules. The following Schedules hereto are hereby incorporated into this Agreement:
CONFIDENTIAL AND PROPRIETARY
Schedule 1 Description of the Premises , System and Subsidy
Schedule 2 Energy Services Payment
Schedule 3 Early Termination Fee
Schedule 4 Estimated Annual Production
Schedule 5 Notice Information
Schedule 6 Reserved
Schedule 7 Specific Items for Scope of Work
Schedule 8 Site Diagram
Schedule 9 Acknowledgment of Upgrades, Schedule or Scope Change
4. Privacy. Purchaser acknowledges that the System may collect certain information about Purchaser's
electricity usage and the System performance. Such information may be stored and processed in the United
States or any other country in which Provider or its third-party service providers, or its or their respective
affiliates, subsidiaries, or service providers, maintain facilities. Purchaser consents to any such transfer of
information outside of Purchaser's country.
5. Milestone Dates.
5.1 The Guaranteed Construction Start Date is 730 days from Effective Date provided that the Local Electric
Utility is prepared to begin its construction on any required utility, ( distribution or transmission), upgrades,
if any, and the Purchaser has completed construction within the area of solar development (as indicted in
Schedule 9). In the event that the Local Electric Utility is not prepared to commence construction on
required upgrades, if any are required, or the Purchaser has not completed construction within the area of
solar development, Provider will be allowed a day for day extension to the Guaranteed Construction Start
Date, as defined in the General Terms and Conditions between the Parties.
5.2 The Guaranteed Commercial Operation Date is: (i) 60 days from the date on which the Local Electric Utility
authorizes Provider to schedule an inspection to energize the System after confirming completion of
installation, and testing, or (ii) April 14, 2026, whichever occurs later.
5 .3 Extensions. The Guaranteed Construction Date and the Guaranteed Commercial Operation Date and related
damages provisions and termination rights in Section 2 of the General Terms and Conditions, will be
extended by the number of days, equal to the duration of delays in construction or the commencement of
operation of the System due to Force Majeure Events, delays caused by the Local Electric Utility, provided
any such delay is beyond the control of Provider and is not the result of the fault or negligence of Provider
(including but not limited to Provider's failure to provide a timely, complete application to the Local Electric
Utility or to respond to Local Electric Utility requests for information) ("Local Electric Utility Delay"),
delays caused by the Authority Having Jurisdiction ("AHJ Delay"), or failure of Purchaser to timely perform
its obligations hereunder. The number of days of such extension will be calculated from the date on which
the Force Majeure Event, Local Electric Utility Delay, AHJ Delay, or Purchaser's failure to perform occurs,
as long as Provider has given Purchaser, as applicable, (i) notice of the Force Majeure Event in accordance
with Section 10.2 of the General Terms and Conditions, or (ii) prompt notice of any failure to perform or
Local Electric Utility Delay or AHJ Delay that is delaying construction or commencement of operation of
the System.
6. Pur chase Requ irement; Energy Services Payment. "Energy Se rv ices " means the supply of electrical energy
output from the System and any associated reductions in Purchaser's peak demand from its Local Electric
Utility. Purchaser agrees to purchase one hundred percent (100%) of the Energy Services generated by the
System and made available by Provider to Purchaser during each relevant month of the Term, up to a
maximum of one hundred and ten percent (110%) of Estimated Annual Production, as defined in Schedule
4. While the Energy Services are calculated and billed on a per kWh basis as set forth in Schedule 2 of these
Special Conditions, they represent a package of services and benefits.
7. e t Energy Me ter in g.
2
8.
9.
10 .
CONFIDENTIAL AND PROPRIETARY
7.1 The Parties acknowledge that the pricing assumes Net Energy Metering (NEM) 2.0 for the Initial Term. If
(i) Provider fails to submit interconnection applications by April 14, 2023, or (ii) prior to the Commercial
Operation Date, (A) Provider fails to keep such interconnection applications in good standing such that the
System would not be eligible for NEM 2.0, or (8) the CPUC issues a decision such that the System would
not be eligible for NEM 2.0 grandfathering for at least twenty (20) years, Purchaser may terminate this
Agreement with no liability whatsoever, including, but not limited to the Early Termination Fee. The
foregoing shall not apply to the extent Provider's failure is caused by an act or omission by Purchaser in
connection with Provider's submittal of interconnection applications.
Provided, however, that in the event of a change in Applicable Law that occurs after the Commercial
Operation Date and results in a loss ofNEM 2.0 grandfathering, Purchaser shall have no such termination
right. Provided further that Purchaser shall ensure any correspondence with the Local Electric Utility
regarding the tariff and changes to the interconnection agreement are promptly shared with Provider.
Estimated Annual Production. The annual estimate of electricity generated by the system for each year of
the initial term is set as forth in Schedule 4 of the Special Conditions ("Estimated Annual Production").
Within sixty (60) days of each annual anniversary of the Commercial Operation Date, Provider will provide
a statement to Purchaser that shows the actual annual kWh production from the System for the Term Year,
the Estimated Annual Production, and the Minimum Guaranteed Output (defined below).
Minimum Guaranteed Output. If the System fails to generate at least ninety-five percent (95%) of the
Estimated Annual Production for a full Term Year (such amount, the "Minimum Guaranteed Output'), other
than as a result of the acts or omissions of Purchaser or the Local Electric Utility (including a Disruption
Period), or an Event of Force Majeure, Provider shall credit Purchaser an amount equal to Purchaser's Lost
Savings on the next invoice or invoices during the following Term Year. The formula for calculating Lost
Savings for the applicable Term Year is as follows:
Lost Savings = (MGO*WPR -AE) x RV
MGO = Minimum Guaranteed Output, as measured in total kWh, for the System for the applicable
Term Year.
WPR = Weather Performance Ratio, measured as the ratio of the actual insolation over typical (pro-
forma) insolation. Such Weather Performance Ratio shall only apply if the ratio is less than 1.00.
AE = Actual Electricity, as measured in total kWh, delivered by the System for the Term Year plus
the estimated lost energy production during a Disruption Period.
RV= (ATP -kWh Rate)
ATP= Average tariff price, measured in $/kWh, for the Term Year paid by Purchaser with respect
to the Premises. This price is determined by dividing the total cost for delivered electricity,
including all charges associated with such electricity howsoever named, including, without
limitation, charges for distribution, transmission, demand, and systems benefits, paid to the Local
Electric Utility during the applicable Term Year by the total amount of delivered electricity by the
electric utility during such Term Year.
kWh Rate= the kWh Rate in effect for the applicable Term Year(s), measured in $/kWh .
If the RV is zero or less, then no Lost Savings payment is due to Purchaser. Any Lost Savings payment shall
occur no later than sixty (60) days after the end of the Term Year during which such Lost Savings occurred.
A llowed Disruption Time. Notwithstanding the provisions in Section 4.3 of the General Terms and
Conditions to the contrary, during years 4 through 20 (but not years 1 through 3) of the Term, Purchaser shall
be afforded a one-time allocation of fifteen (15) days which may be used consecutively or in separate periods
3
11.
CONFIDENTIAL AND PROPRIETARY
of at least twenty-four (24) hours each (' Allowed Disruption Time") during which the System shall be
rendered non-operational. Purchaser shall not be obligated to make payments to Provider for electricity not
received during the Allowed Disruption Time, nor shall Purchaser be required to reimburse Provider for any
other lost revenue during the Allowed Disruption Time, including any lost revenue associated with any
reduced sales of Environmental Attributes, and Provider shall be credited for the estimated lost production
the System would have produced during such Allowed Disruption Time toward satisfaction of its Minimum
Guaranteed Output, as set forth in Section 8 of the Special Conditions, such estimated lost production to be
calculated in the same manner as set forth in Section 4.3 of the General Conditions.
Distribution Upgrades. Scope and Schedule Changes.
11.1 For any distribution upgrades required or changes to the scope oflnstallation Work made pursuant
to Schedule 2 of the Special Conditions, the Parties may execute an acknowledgment in the form
attached hereto as Schedule 9 detailing (i) the description of the distribution upgrades or change in
scope of the Installation Work (ii) the amount of the adjustment in the kWh Rate and Early
Termination Fee that corresponds to such costs, if any (iii) changes to the Estimated Annual
Production in Schedule IV, if any, and (iv) any change to the Guaranteed Construction Start Date
and Guaranteed Commercial Operation Date resulting :from such upgrades or scope changes;
11.2 For any day for day extensions made pursuant to Section 2.2(b) of the General Conditions, the
Parties may execute an acknowledgment in the form attached hereto as Schedule 9 detailing (i) the
circumstances that warrant such day for day extension and (ii) the updated Guaranteed Construction
Start Date and/or Guaranteed Commercial Operation Date;
11.3 For any extensions that are not made pursuant to Section 2.2(b) of the General Conditions, Provider
may request extensions to the Guaranteed Construction Start Date and/or Guaranteed Commercial
Operation Date to the extent that Provider can demonstrate to Purchaser that Provider is seeking
such extension for good cause. Purchaser in its sole discretion may approve such extension(s) by
executing an acknowledgment in the form attached hereto as Schedule 9 on which Provider details
(i) the circumstances for which Provider deems good cause for such extension(s), (ii) the actions
that Provider is taking to complete the System on a schedule agreeable to the Purchaser and (iii) the
updated Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date.
For the avoidance of doubt, Purchaser designates Public Works Director as authorized to execute the
acknowledgment form attached hereto as Schedule 9 provided the terms of such acknowledgment comply with this
Section 11.
12. Sunlight Access. Purchaser will take all reasonable actions as necessary to prevent other buildings, structures
or flora from overshadowing or otherwise blocking access of sunlight to the System.
13. Use of System. Purchaser will not use electrical energy generated by the System for the purposes of heating
a swimming pool within the meaning of Section 48 of the Internal Revenue Code.
4
CONFIDENTIAL AND PROPRIETARY
IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions contained in this
Agreement and intending to be legally bound hereby, Provider and Purchaser have executed this Agreement as of the
Effective Date.
PROVIDER:
FFP BTM SOLAR, LLC
. 'Rf¢en ronter By. RubenFontes[Junl0,20240929PDT1
Name: Ruben Fontes
Title: President
Date: 06/20/2024
5
PURCHASER:
CITY OF ROHNERT PARK
By: _________ _
Name: Morc.c.\., ~~1"'a.
Title: C\~ M~~er
Date:
I.
II.
CONFIDENTIAL AND PROPRIETARY
SCHEDULES
Schedule 1-Description of the Premises, Svstem and Subsidy
A. Premises 5405 Snyder Ln
Rohnert Park, CA 94928
Site diagram attached: XYes □No
Behind the meter, grid interconnected, canopy mounted solar .
B. Dcscri[!tion of Solar System
Solar System Size: 286.65 kW (DC) (this is an estimate (and not a guarantee) of the
System size; Provider may update the System Size prior to the
Commercial Operation Date.)
C. Antici(!a te d S 11bs idy or
Rebate $0
Schedule 2 -Energy Services Payment
Purchaser shall pay to Provider a monthly payment (the "Energy. Services Pav men t ') for the Energy
Services provided by the System during each calendar month of the Term equal to the product of(x) Actual
Monthly Production for the System for the relevant month multiplied by (y) the kWh Rate.
The "Actua l Mo nth ly Prod uction ' means the amount of energy recorded by Provider's metering equipment
during each calendar month of the Term.
The kWh Rate with respect to the System under this Agreement shall be in accordance with the following
schedule:
PP A Rate Table
Term kWh Rate Term $/kWh Rate
Year ($/kWh) Year ($/kWh)
1 $0.2930 11 $0.2930
2 $0.2930 12 $0.2930
3 $0.2930 13 $0.2930
4 $0.2930 14 $0.2930
5 $0.2930 15 $0.2930
6 $0.2930 16 $0.2930
7 $0.2930 17 $0.2930
8 $0.2930 18 $0.2930
9 $0.2930 19 $0.2930
10 $0.2930 20 $0.2930
6
CONFIDENTIAL AND PROPRIETARY
Distribution Upgrades . Within thirty (30) days ofreceipt ofnotice from the Local Electric Utility of distribution
upgrade costs required by the Local Electric Utility, Purchaser will provide written notice (email is acceptable) to
Provider of Purchaser's election ofone of the following options:
a. Purchaser will pay the entire amount of such distribution upgrade costs, and the kWh rate as stated
in PP A Rate Table will remain unchanged. Purchaser shall make payments directly to the Local
Electric Utility in accordance with the requirements of the Local Electric Utility.
b. For every $0.01 per watt DC of such distribution upgrade costs, the kWh rate in PPA Rate Table
will increase $0.0009 per kWh .
Scope Changes (ITC Eligible): If changes in project scope occur that are eligible for the Federal Investment
Tax Credit (such as but not limited to adverse geotechnical conditions) and such additional scope and
associated costs go beyond those contemplated as part of the development and implementation of the System
in this Agreement, Provider will provide reasonable documentation demonstrating the direct and actual time
and materials costs relating to such associated costs, and, within 30 days ofreceipt of notice from Provider
reasonably substantiating the associated costs, Purchaser will provide written notice to Provider of
Purchaser's election of one of the following options:
a. Purchaser will pay the entire amount of such associated costs, and the kWh rate as stated in PPA
Rate Table will remain unchanged .
b. For every $0 .01 per watt DC of such associated costs, the kWh rate in PPA Rate Table will increase
$0 .0007 per kWh.
Scope Changes (No n-ITC Eli gible ): If changes in project scope occur that are not eligible for the Federal
Investment Tax Credit (such as but not limited to additional required ADA upgrades) and such additional
scope and associated costs go beyond those contemplated as part of the development and implementation of
the System in this Agreement, Provider will provide reasonable documentation demonstrating the direct and
actual time and materials costs'relating to such associated costs, and, within 30 days ofreceipt of notice from
Provider reasonably substantiating the associated costs , Purchaser will provide written notice to Provider of
Purchaser's election of one of the following options :
c. Purchaser will pay the entire amount of such associated costs , and the kWh rate as stated in PPA
Rate Table will remain unchanged.
d. For every $0.01 per watt DC of such associated costs, the kWh rate in PPA Rate Table will increase
$0.0010 per kWh.
If the aggregate of costs set forth above for which Purchaser has elected to pay for via increased kWh Rate exceed
the maximum total kWh Rate increase of$0.0761 the Provider has the option to terminate this Agreement and to
remove the System pursuant to Section 2.4 of the General Conditions. In no event shall Purchaser be responsible for
costs that exceed the stated kWh Rate increase.
7
III.
CONFIDENTIAL AND PROPRIETARY
Schedule 3 -Early Termination Fee
The Early Tennination Fee with respect to the System under this Agreement shall be calculated in accordance
with the following:
Early Column 1 Purchase Date Occurs on the Column 2
Termination Early Termination Fee 91'1 day following: Early Termination Fee
Occurs in Year: where Purchaser does not (Each "Anniversary" below where Purchaser takes
take Title to the System shall refer to the anniversary Title to the System
($/Wdc including costs of of the Commercial Operation ($/Wdc, does not include
removal) Date) costs of removal)
l* $7.38 --
2 $6.81 -
3 $6.16 --
4 $5.61 -
5 $5.11 -
6 $4.62 5t h Anniversary $4.12
7 $4.52 6t h Anniversary $4.02
8 $4.45 7th Anniversary $3.95
9 $4.39 8th Anniversary $3.89
10 $4 .33 9th Anniversary $3 .83
11 $4.26 10th Anniversary $3.76
12 $4.20 11 th Anniversary $3.70
13 $4.13 12 th Anniversary $3.63
14 $4.06 13 th Anniversary $3.56
15 $3.99 14 th Anniversary $3.49
16 $3.92 15 th Anniversary $3.42
17 $3.85 16th Anniversary $3.35
18 $3.78 17 th Anniversary $3.28
19 $3 .70 18 th Anniversary $3 .20
20 $3.62 19 th Anniversary $3.12
At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0).
*Includes Early Tennination prior to the Commercial Operation Date.
IV. Schedule 4-Estimated Annual Production
Estimated Annual Production commencing on the Commercial Operation Date with respect to System
under this Agreement shall be as follows:
Term Estimated Term Estimated
Year Production Year Production
(kWh) (kWh)
1 414,783 11 394,504
2 412 ,709 12 392 ,531
3 410,645 13 390,569
4 408,592 14 388,616
5 406 ,549 15 386,673
6 404 ,516 16 384,739
7 402,494 17 382 ,816
8 400 ,481 18 380 ,902
9 398,479 19 378 ,997
10 396 ,486 20 377,102
8
V.
CONFIDENTIAL AND PROPRIETARY
The values set forth in the table above are estimates (and not guarantees), of approximately how many kWhs
are expected to be generated annually by the System assuming the System size indicated in Schedule 1 and
based on initial System designs. Provider may deliver to Purchaser an updated table on or about the
Commercial Operation Date based on the actual System size and design.
Schedule 5 -Notice Information
Purchaser:
City to fill in
C,~ ~ ~Vt"crr ~o..e-~
~-. c~~ C.\ec-~'s ~Ur
, ;o I\.J ro.JM A\J~ \AL..
~~~err \>o..r~, cA C\"tC\a.B
Provider:
FFP BTM Solar, LLC
c/o Forefront Power, LLC
Attn: Director, Energy Services
100 Montgomery St., Suite 725
San Francisco, CA 94104
With a copy to
FFP BTM Solar, LLC
c/o Forefront Power, LLC
Attn: Legal Department
I 00 Montgomery St., Suite 725
San Francisco, CA 94104
Email: FPLegal@forefrontpower.com
Financing Party:
[To be provided by Provider when known]
VI. Schedule 6-Reserved
VII. Schedule 7 -Specific Items for Scope of Work
1.1. All System structures shall be permitted through the authority having jurisdiction as carports or
shade structures, as applicable. Provider shall obtain permits on behalf of the project(s),
including building department, structural, grading, and/or electrical permits as required.
1.2. Provider and Purchaser are operating under the assumption that the premises will be eligible
for a CEQA Notice of Exemption (NOE), and that a special use, conditional use, or zoning
permit will not be required. Provider assumes that Purchaser, as lead agency, will issue a Notice
of Exemption for CEQA. Upon request, Provider shall provide such limited support as
necessary to Purchaser to obtain the NOE, including, if necessary, biological study and
associated consultant statement and summary citing exemptions applicable. Provider shall not
be responsible for costs or delays associated with any unforeseen required CEQA studies,
special use, conditional use, or zoning permits, or mitigations that may result from a CEQA
submittal and public comment.
1.3 . Purchaser will provide comprehensive review by all necessary stakeholders of all designs and
submittals as requested by Provider in no more than 10 business days. Purchaser shall be
responsible for cost and timeline impacts for any comments submitted after 10 business days.
If Purchaser does not deliver any comments within IO days, Provider shall construe this as
acceptance and approval.
9
CONFIDENTIAL AND PROPRIETARY
l.4. Solar arrays will be canopy height of 10' minimum clearance and with a painted finish.
1.5 . Provider shall be responsible for all tree trimming and tree removal in order to facilitate the
installation of the Systems. Provider will remove tree such that area is flush with grade.
Purchaser shall acknowledge and approve removal of trees identified by Provider, in order to
install the system and such approval shall not be unreasonably withheld. Where tree removal
will occur , Provider shall grind tree stumps to a maximum of 4 inches below grade. Purchaser
shall be responsible for the costs associated with tree studies, arborist surveys, tree removal
permits, afforestation , or reforestation for any trees removed . Purchaser can elect to address the
additional scope itself, or require that Provider address it through the change order process
described in Schedule 2. Irrigation re-routing shall not be the responsibility of the Provider.
1.6. Provider intends to interconnect the System to Purchaser-owned 480V service conductors or
service equipment at a mutually agreeable location. Provider assumes that the existing
conductors and service equipment are sufficiently capable ofaccepting the additional electrical
load of the System and that any existing relay schema or protection settings are configurable to
allow backfeed from generation sources. Provider shall not bear responsibility for any required
upgrades to the pre-existing electrical system.
1. 7. Provider shall be responsible for all fees associated with the interconnection application, except
that Provider shall not be responsible for transmission , distribution , network, or
telecommunications upgrades determined necessary by the Local Electric Utility.
1.8. Provider shall be responsible for verifying and understanding existing ADA parking, striping,
and paths of travel and what code-required upgrades may be necessary as a result of the System
and any pre-existing non-compliance . Provider shall be responsible for all required ADA
striping, signage within the solar canopy footprint and connecting to existing ADA-compliant
path of travel. Provider's scope excludes any demolition, grading , paving, curb cuts, or
truncated domes throughout the Premises to achieve ADA compliance, or any required ADA
striping and signage outside of the solar canopy footprint and connecting to the existing ADA-
compliant path of travel. Should any excluded items for ADA-compliance be required, Provider
will work with Purchaser in good faith to determine a mutually-acceptable solution for
Purchaser to pay the costs associated with such upgrades , including potentially an increase in
the kWh rate in Schedule 2.
1.9 . Provider excludes generator backup of Purchaser's electrical service during temporary service
outage during interconnection of the System (up to 8 hours of shutdown , which can be planned
to take place during off-hours).
1.10. Provider assumes no title and/or real estate risks, encumbrances or other limitations exist that
would otherwise limit Provider's ability to access the site, install, own and operate the system.
Provider assumes that all parcel s encompassed by the site area recommended by Purchaser will
be owned by Purchaser at time of development.
1.11. Provider assumes that soil conditions are not such soils that are rocky, sandy, contaminated,
ground water, caving, or otherwise have problematic construction limitations. Provider assumes
no required shoring or de-watering for piers or trenches, and a maximum required pier depth of
10' and diameter of30". If soil conditions prove to be more adverse than these assumptions,
Provider shall not be responsible for such additional expenses . Provider shall work with
Purchaser in good faith to determine a mutually acceptable solution for Purchaser to pay such
additional costs, including potentially an increase in the kWh rate in Schedule 2.
1.12 . Purchaser is responsible for unforeseen underground conditions including utilities not
disco verable by industry standard methodologies .
10
CONFIDENTIAL AND PROPRIETARY
1.13 . Provider agrees to construct the System in no more than 1 construction phase, and that Provider
will be allowed ample space, to the extent that it is available, to store material on site. Provider
assumes free access to the entire mobilized portion of the parking lot area for the full scope of
work .
1.14. Provider shall be responsible for all inspection and inspector costs associated with the
installation of the system.
1.15. Provider assumes a balanced site. Any spoils that result from the installation of the System are
assumed to be spread on site. Provider shall not be responsible for exporting soils. Provider
shall work with Purchaser in good faith to determine a mutually-acceptable solution for
Purchaser to pay any such additional costs including potentially an increase in the kWh rate by
exercising the Scope Changes (Non-ITC Eligible) rates in Schedule 2.
1.16. Provider assumes that existing grade is level and that no grading is required in support of
System installation.
1.17 . Provider assumes that there is a water source on site, and available for Provider's use.
1.18 . Provider assumes Risk Level I Best Management Practices as it relates to relevant Stormwater
Protection Plan assumptions for the installation of the System.
11
VIII. Schedule 8 -Site Diagram
12
CONFIDENTIAL AND PROPRIETARY
FOREFRONT -
NOT FOR
CONSTRUCTION
Rohnerthrk
CaDnan Sports & Flmeu
tenter!NEM-A)
S4Q55nydl,Ln,
Aohnffll'at.CA.949211
CONFIDENTIAL AND PROPRIETARY
IX. Schedule 9 -Acknowledgment of Upgrades, Schedule or Scope Change
pgrades, Scope and/or Schedule Change Acknowledgment
This Acknowledgment is made in accordance with Section IO of the Special Conditions, as defined in that Energy
Service Agreement-[Solar], between [PURCHASER] ("Purchaser") and FFP BTM Solar, LLC ("Provider"), dated
~--~ 20__] (the "Agreement"). Upon execution by both Purchaser and Provider, this Acknowledgment shall
be effective as of[INSERT DATE] (the "Acknowledgment Effective Date").
1.
2.
Type of Change :
D Distribution Upgrades
0 Scope Changes (ITC Eligible)
0 Scope Changes (Non-ITC Eligible)
D Day for Day Extension
D Extension for Good Cause
Des cription of Change
[INSERT DESCRIPTION AND IF PROVIDER SEEKING EXTENSION FOR GOOD CAUSE, PROVIDER
TO DETAIL CIRCUMSTANCES AND ACTIONS PROVIDER IS TAKING TO COMPLETE SYSTEM ON
AGREED UPON SCHEDULE]
3. kWh Rate and Early T ermina t ion Pee [IF NO IMP ACT TO RA TE OR ETF THEN DELETE]
[INSERT UPDATED KWH RA TE AND EARLY TERMINATION FEE TABLE]
4. Es timated Annual Production (IF NO IMPACT TO ESTIMATED ANNUAL PRODUCTION THEN DELETE]
[INSERT UPDATED SCHEDULE 4 ESTIMATED ANNUAL PRODUCTION TABLE]
5. Updated Guaranteed Con struction Start Date and Guaranteed Commercial Op eration Date [IF NO IMPACT TO
CLIFF DA TES THEN DELETE]
The Parties hereby agree that the Guaranteed Construction Start Date and the Guaranteed Commercial Operation
Date as defined in the Agreement are updated as follows:
Guaranteed Construction Start Date: ~[ ---~
Guaranteed Commercial Operation Date: ~[ ___ _
The Parties hereby acknowledge and confirm the terms set forth herein as of the Acknowledgment Effective Date .
[PURCHASER] FFP BTM Solar, LLC
By: By:
Name: Name:
Title: Title:
13
City of Rohnert Park -Spreckels -ForeFront
Power
Final Audit Report
Created:
By:
Status :
Transaction ID:
2024-06-19
Kelsey Nguyen (kbracewell@rpcity.org)
Signed
CBJCHBCAABAAbgr _ 1 TlkHBSSmlYudchbgcy2zFiDptF 1
2024-06-20
"City of Rohnert Park -Spreckels -ForeFront Power" History
~ Document created by Kelsey Nguyen (kbracewell@rpcity.org)
2024-06-19-0:21 :54 AM GMT
~ Document emailed to Ruben Fontes (rfontes@forefrontpower.com) for signature
2024-06-19 -0:21 :59 AM GMT
~ Email viewed by Ruben Fontes (rfontes@forefrontpower.com)
2024-06-19-0:22:49 AM GMT
0-e Document e-signed by Ruben Fontes (rfontes@forefrontpower.com)
Signature Date: 2024-06-20 -4 :29 :51 PM GMT -Time Source : server
9 Agreement completed.
2024-06-20 -4:29 :51 PM GMT
a Adobe Acrobat Sign