SOLAR PURCHASE AGREEMENT DRAFT NOT FOR EXECUTION

Transcription

1 Community Phase - Homesite - Tract Cost Center SOLAR PURCHASE AGREEMENT DRAFT NOT FOR EXECUTION This SOLAR PURCHASE AGREEMENT is entered into by and between SunStreet Energy Group, LLC, a Delaware limited liability company ( SunStreet ) and [BUYER S NAME] ( Buyer ). 1) Definitions. As used herein, the following terms have the meanings set forth below: a) Agreement means this Solar Purchase Agreement, including all attachments, schedules and exhibits hereto, as it may be amended and/or restated from time to time. b) Buyer has the meaning defined in the preamble to this Agreement. c) Builder means Lennar Homes of Texas Land and Construction, a Texas limited partnership, or one of its affiliates. d) Escrow means the escrow used to facilitate the Home Closing. e) Excused Delay means a delay resulting from an event or series of events, if such event(s) were caused by matters beyond SunStreet s reasonable control, including, but not limited to, acts of God, strikes, civil commotion, riots, war, terrorism, revolution, acts of government; failure of SunStreet s third party contractor to perform under its applicable contractual agreements with SunStreet (where such failure could not have reasonably been prevented by SunStreet); and changes in law. f) Home means the residence that Buyer has contracted to purchase from Builder, which is located, or is to be located, at [PROPERTY ADDRESS]. g) Home Closing means the closing date for the purchase of the Home by Buyer pursuant to the Home Purchase Agreement. h) Home Purchase Agreement means that certain Purchase and Sale Agreement by and between Buyer and Builder for the purchase and sale of the Home. i) Outside Home Closing Date means the final date by which the purchase and sale of the Home must be completed under the Home Purchase Agreement, as such date may be extended from time to time by Buyer and Builder. j) Party means Buyer or SunStreet. Parties means Buyer and SunStreet. k) Purchase Price means $, which is [$ ] per watt, to be paid by Buyer to SunStreet for the sale of the PV System at the Home. l) PV System means the solar photovoltaic ( PV ) system installed or to be installed on the roof of the Home by SunStreet with a nominal capacity of kilowatts (in DC), which includes modular solar panels, an inverter, brackets, frames, wiring and related equipment, that Buyer will use to supply and monitor electricity for use at the Home, and as described in full in the List of Equipment attached as Exhibit A and incorporated herein by this reference. _ SunStreet Solar Home Program -1-7/7/15

2 m) SunStreet has the meaning defined in the preamble to this Agreement. 2) Recitals of Fact. The following are the background facts underlying the execution and delivery of this Agreement: a) SunStreet owns the PV System and has had the PV System installed on the Home. b) Buyer has entered into a contract for the purchase of the Home from Builder. c) Buyer and SunStreet are entering into this Agreement to provide the terms and conditions upon which: i) Buyer will purchase from SunStreet the PV System; and ii) SunStreet will sell the PV System to Buyer. 3) Purchase and Sale. On the terms and conditions of this Agreement, SunStreet agrees to sell, assign, transfer, convey, and deliver the PV System to Buyer at the Home, and Buyer agrees to purchase, acquire and accept the PV System from SunStreet. The closing of the purchase and sale of the PV System shall occur concurrently with the Home Closing; provided, however, without limiting Section 5(c) below, upon the occurrence of an Excused Delay that prevents SunStreet from completing the PV System on or prior to the date of the Home Closing, the closing of the PV System shall occur within sixty (60) days following the date upon which the condition giving rise to such Excused Delay no longer applies unless otherwise agreed to in writing by the Parties. Buyer grants SunStreet the right and easement to enter the property on which the Home is constructed as reasonably necessary to complete the installation of the PV System during the ninety (90) day period following the Outside Home Closing Date. SunStreet represents and warrants that it shall have, as of the date of the closing of the purchase and sale of the PV System, good and complete title to the PV System, free and clear of any liens or encumbrances of any kind that would be binding on Buyer and that, upon payment of the Purchase Price and compliance with the other terms and conditions of this Agreement, SunStreet will transfer, assign and convey to Buyer good and complete title to the PV System to Buyer, free and clear of any liens or encumbrances of any kind. 4) Payment of the Purchase Price. Upon the later of: (i) the completion of the PV System installation, or (ii) the Home Closing, Buyer shall pay to SunStreet the full Purchase Price in cash, by wire transfer to SunStreet s account as follows: Account No.: Account Owner: SunStreet Energy Group, LLC Bank: Bank of America Bank ABA Routing No.: Bank Address: 901 Main Street, Lower Level, Dallas, TX Reference.: Cost Center: -2-7/7/15

3 5) Contingency and Automatic Termination. a) The obligations of the Parties under this Agreement are contingent upon the Home Closing occurring pursuant to the Home Purchase Agreement. b) In the event that the Home Closing does not occur and the Home Purchase Agreement is terminated for any reason, then this Agreement shall be automatically cancelled and terminated and neither Party shall have any obligations or liabilities under this Agreement, except as otherwise set forth in this Agreement. c) In the event that the Home Closing occurs prior to the completion of the PV System as a result of an Excused Delay, if the closing of the purchase and sale of the PV System does not occur within ninety (90) days fo llowing the Outside Home Closing Date, this Agreement shall be automatically cancelled and terminated and neither Party shall have any obligations or liabilities under this Agreement. d) Notwithstanding the foregoing, the rights and obligations set forth in Sections 7, 8, 9, 10, 11 and 12 shall survive any such termination or expiration. 6) No Liability for Builder. The Parties acknowledge and agree that: a) Neither Builder nor any of its affiliates (other than SunStreet), successors or assigns is a party to or bound by any of the provisions of this Agreement; b) Buyer has not relied on any oral representations or statements made by Builder s representative or any other agent or employee of Builder; and c) Builder has no liability to Buyer with respect to the PV System or to SunStreet s obligations under this Agreement. 7) Third-Party Warranties. In connection with the purchase of the PV System, SunStreet hereby assigns to Buyer all warranties from manufacturers of the component parts of the PV System (collectively, the Product Warranties ). Copies of the Product Warranties are attached to Exhibit A to this Agreement. For purposes of identification only and without modifying the actual terms of the attached warranties, the Product Warranties obligate the manufacturer of the component parts to repair or replace (at its option) the applicable component part in the event such part is found to be defective during the applicable warranty period. Buyer agrees that it shall be solely responsible for pursuing any claims under such warranties. Buyer s Initials: ( ) ( ) SunStreet s Initials: ( ) 8) Representations and Warranties of Buyer. a) Buyer intends and is required to use the PV System primarily for personal, family or household purposes. -3-7/7/15

4 b) Buyer is not (i) a person included in the Specially Designated Nationals and Blocked Persons Lists, as published from time to time by the U.S. Office of Foreign Assets Control ("OFAC"), or (ii) currently subject to any U.S. economic sanctions administered by OFAC. 9) Rights and Obligations of Buyer. a) Buyer acknowledges and agrees that the real property on which the Home is located is subject to that certain Declaration of Solar Energy Covenants, Conditions and Restrictions for [ Insert Community ]. b) Buyer acknowledges having received the Product Warranties described in Section 7, as well as Solar Electric System Owner s Manual provided by SunStreet and agrees that upon the closing of the sale of the PV System pursuant to Section 3, SunStreet shall have no further obligations with respect to the PV System, including with respect to the operation and maintenance of the PV System or the pursuit of any warranty claims. c) Buyer further agrees that Buyer (and not SunStreet or Builder) shall be responsible for: applying and qualifying for or otherwise taking advantage of, any grants, tax credit, tax exclusion or other incentives associated with the ownership of the PV System, and entering into and performing any agreements or arrangements with the local utility for net metering. 10) NO OTHER WARRANTIES. BUYER ACKKNOWLEDGES HAVING RECEIVED THE PRODUCT WARRANTIES. SUNSTREET MAKES NO IMPLIED WARRANTY TO BUYER OR ANY OTHER PERSON AS TO THE INSTALLATION, DESIGN, DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE, FUTURE ECONOMIC VIABILITY OR PERFORMANCE OF THE PV SYSTEM OR ITS INSTALLATION, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY SUNSTREET. 11) Indemnity by Buyer. While nothing herein will require Buyer to indemnify SunStreet for SunStreet's own negligence, willful misconduct or fraud, Buyer does hereby agree to indemnify and hold harmless SunStreet and SunStreet s directors, officers, managers, members, partners, employees, stockholders, agents, advisors, attorneys, accountants and consultants (each, a SunStreet Indemnified Party ) from and against all claims, damages, losses, liabilities, costs, deficiencies and expenses (including investigative costs, settlement costs and any reasonable legal, accounting or other expenses for investigating or defending any actions or threatened actions) incurred by any SunStreet Indemnified Party as a result of or arising out of: (i) Buyer s negligent acts, or (ii) any breach by Buyer of any of Buyer s representations, warranties or obligations under this Agreement. 12) Dispute Resolution. -4-7/7/15

5 (a) BINDING ARBITRATION OF DISPUTES. EACH PARTY WAIVES ITS RESPECTIVE RIGHTS TO ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT AS SET FORTH BELOW. THE PARTIES TO THIS AGREEMENT SPECIFICALLY AGREE THAT ANY DISPUTE (HEREINAFTER DEFINED) SHALL BE SUBMITTED TO BINDING ARBITRATION AS PROVIDED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. 1 ET SEQ.) AND NOT BY OR IN A COURT OF LAW OR EQUITY. DISPUTES (WHETHER CONTRACT, WARRANTY, TORT, STATUTORY OR OTHERWISE), SHALL INCLUDE, BUT ARE NOT LIMITED TO, ANY AND ALL CONTROVERSIES, DISPUTES OR CLAIMS ARISING UNDER, OR RELATED TO, THIS AGREEMENT OR ANY DEALINGS BETWEEN SUNSTREET AND BUYER. BUYER HAS EXECUTED THIS AGREEMENT ON BEHALF OF HIS OR HER CHILDREN AND OTHER OCCUPANTS OF THE HOME WITH THE INTENT THAT ALL SUCH PARTIES BE BOUND HEREBY. ANY DISPUTE SHALL BE SUBMITTED TO BINDING ARBITRATION WITHIN A REASONABLE TIME AFTER SUCH DISPUTE HAS ARISEN. NOTHING HEREIN SHALL EXTEND THE TIME PERIOD BY WHICH A CLAIM OR CAUSE OF ACTION MAY BE ASSERTED UNDER THE APPLICABLE STATUTE OF LIMITATIONS OR STATUTE OF REPOSE, AND IN NO EVENT SHALL THE DISPUTE BE SUBMITTED FOR ARBITRATION AFTER THE DATE WHEN INSTITUTION OF A LEGAL OR EQUITABLE PROCEEDING BASED ON THE UNDERLYING CLAIMS IN SUCH DISPUTE WOULD BE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS OR STATUTE OF REPOSE, IT BEING INTENDED THAT ALL SUCH DISPUTES SHALL BE TIME-BARRED IN THE SAME MANNER AS IF THEY WERE BROUGHT IN COURT. (b) ARBITRATION PROCEDURE. ANY AND ALL ARBITRATIONS SHALL BE DECIDED BY THE AMERICAN ARBITRATION ASSOCIATION (" AAA") IN ACCORDANCE WITH THE AAA S HOME CONSTRUCTION ARBITRATION RULES IN EFFECT ON THE DATE OF THE REQUEST. IF THERE ARE NO HOME CONSTRUCTION ARBITRATION RULES CURRENTLY IN EFFECT, THEN THE AAA S CONSTRUCTION INDUSTRY ARBITRATION RULES IN EFFECT ON THE DATE OF SUCH REQUEST SHALL BE UTILIZED. ANY JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN AND ENFORCED BY ANY COURT HAVING JURISDICTION OVER SUCH DISPUTE. IF THE CLAIMED AMOUNT EXCEEDS $250, OR INCLUDES A DEMAND FOR PUNITIVE DAMAGES, THE DISPUTE SHALL BE HEARD AND DETERMINED BY THREE ARBITRATORS; HOWEVER IF MUTUALLY AGREED TO BY THE PARTIES, THEN THE DISPUTE SHALL BE HEARD AND DETERMINED BY ONE ARBITRATOR. ARBITRATORS SHALL HAVE EXPERTISE IN THE SUBJECT AREA(S) INVOLVED IN THE DISPUTE, WHICH SHALL INCLUDE LEGAL EXPERTISE IF LEGAL ISSUES ARE INVOLVED. ALL DECISIONS RESPECTING THE ARBITRABILITY OF ANY DISPUTE SHALL BE DECIDED BY THE ARBITRATOR(S). AT THE REQUEST OF ANY PARTY, THE AWARD OF THE ARBITRATOR(S) SHALL BE ACCOMPANIED BY DETAILED WRITTEN -5-7/7/15

6 FINDINGS OF FACT AND CONCLUSIONS OF LAW. EXCEPT AS MAY BE REQUIRED BY LAW OR FOR CONFIRMATION OF AN AWARD, NEITHER A PARTY NOR AN ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT, OR RESULTS OF ANY ARBITRATION HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF BOTH PARTIES. (c) SCOPE OF ARBITRATION. THE WAIVER OR INVALIDITY OF ANY PORTION OF THIS SECTION 12 SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE REMAINING PORTIONS OF THIS SECTION 12. SUNSTREET AND BUYER FURTHER AGREE THAT: (1) ANY DISPUTE INVOLVING SUNSTREET'S AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, PAST OR PRESENT, SHALL ALSO BE SUBJECT TO ARBITRATION AS SET FORTH HEREIN, AND SHALL NOT BE LITIGATED IN A COURT OF LAW OR EQUITY; (2) SUNSTREET MAY, AT ITS SOLE ELECTION, INCLUDE SUNSTREET'S CONTRACTORS, SUBCONTRACTORS AND SUPPLIERS, AS WELL AS WARRANTY PROVIDERS AND INSURERS AS PARTIES TO THE ARBITRATION, IN WHICH CASE BUYER SHALL AGREE TO ARBITRATE ANY DISPUTE BUYER HAS WITH SUCH PARTIES AS SET FORTH IN THIS SECTION 12; AND (3) THE ARBITRATION SHALL BE LIMITED TO THE PARTIES SPECIFIED HEREIN. (d) EFFECT OF ARBITRATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUNSTREET AND BUYER AGREE THAT NO FINDING OR STIPULATION OF FACT, NO CONCLUSION OF LAW AND NO ARBITRATION AWARD IN ANY OTHER ARBITRATION, JUDICIAL OR SIMILAR PROCEEDING SHALL BE GIVEN PRECLUSIVE COLLATERAL ESTOPPEL EFFECT IN ANY ARBITRATION HEREUNDER UNLESS THERE IS A MUTUALITY OF ALL PARTIES. SUNSTREET AND BUYER FURTHER AGREE THAT NO FINDING OR STIPULATION OF FACT, NO CONCLUSION OF LAW AND NO ARBITRATION AWARD IN ANY ARBITRATION HEREUNDER SHALL BE GIVEN PRECLUSIVE OR COLLATERAL ESTOPPEL EFFECT IN ANY OTHER ARBITRATION, JUDICIAL, OR SIMILAR PROCEEDING UNLESS THERE IS A MUTUALITY OF ALL PARTIES. (e) COSTS OF ARBITRATION. UNLESS OTHERWISE RECOVERABLE BY LAW OR STATUTE, EACH PARTY SHALL BEAR ITS OWN COSTS AND EXPENSES, INCLUDING ATTORNEYS FEES AND PARAPROFESSIONAL FEES, FOR ANY ARBITRATION. NOTWITHSTANDING THE FOREGOING, IF A PARTY UNSUCCESSFULLY CONTESTS THE VALIDITY OR SCOPE OF THIS ARBITRATION PROVISION IN A COURT OF LAW OR EQUITY, THE NON- CONTESTING PARTY SHALL BE AWARDED REASONABLE ATTORNEYS FEES, PARAPROFESSIONAL FEES AND EXPENSES INCURRED IN DEFENDING SUCH CONTEST, INCLUDING SUCH FEES AND COSTS ASSOCIATED WITH ANY APPELLATE PROCEEDINGS. IN ADDITION, IF A PARTY FAILS TO ABIDE BY THE TERMS OF AN ARBITRATION AWARD, THE OTHER PARTY SHALL BE -6-7/7/15

7 AWARDED REASONABLE ATTORNEYS FEES, PARAPROFESSIONAL FEES AND EXPENSES INCURRED IN ENFORCING SUCH AWARD. (f) ARBITRATION RULES. BUYER MAY OBTAIN ADDITIONAL INFORMATION CONCERNING THE RULES OF AAA BY VISITING ITS WEBSITE OR BY WRITING THE AAA AT 335 MADISON AVENUE, NEW YORK, NEW YORK (g) PARTIES AGREEMENTS. THE PARTIES SUPPORT THE PRINCIPLES SET FORTH IN THE CONSUMER DUE PROCESS PROTOCOL DEVELOPED BY THE NATIONAL CONSUMER DISPUTE ADVISORY COMMITTEE AND AGREES TO THE FOLLOWING: (i) NOTWITHSTANDING THE REQUIREMENTS OF ARBITRATION STATED IN SECTION 12 OF THIS AGREEMENT, THE PARTIES SHALL HAVE THE OPTION TO SEEK RELIEF IN A SMALL CLAIMS COURT FOR DISPUTES OR CLAIMS WITHIN THE SCOPE OF THE COURT S JURISDICTION IN LIEU OF PROCEEDING TO ARBITRATION. THIS DECISION DOES NOT APPLY TO ANY APPEAL FROM A DECISION BY A SMALL CLAIMS COURT. (ii) THE FEES FOR ANY CLAIM PURSUED VIA ARBITRATION IN AN AMOUNT OF $10, OR LESS SHALL BE APPORTIONED AS PROVIDED IN THE HOME CONSTRUCTION ARBITRATION RULES OF THE AAA OR OTHER APPLICABLE RULES. (h) NO WAIVER OF ARBITRATION. NOTWITHSTANDING THE FOREGOING, IF EITHER SUNSTREET OR BUYER SEEKS INJUNCTIVE RELIEF, AND NOT MONETARY DAMAGES, FROM A COURT BECAUSE IRREPARABLE DAMAGE OR HARM WOULD OTHERWISE BE SUFFERED BY EITHER PARTY BEFORE ARBITRATION COULD BE CONDUCTED, SUCH ACTIONS SHALL NOT BE INTERPRETED TO INDICATE THAT EITHER PARTY HAS WAIVED THE RIGHT TO ARBITRATE. THE RIGHT TO ARBITRATE SHOULD ALSO NOT BE CONSIDERED WAIVED BY THE FILING OF A COUNTERCLAIM BY EITHER PARTY ONCE A CLAIM FOR INJUNCTIVE RELIEF HAS BEEN FILED WITH A COURT. NOTICE: BY INITIALING IN THE SPACE BELOW, SUNSTREET AND BUYER ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS ARBITRATION OF DISPUTES PROVISION, DECIDED BY NEUTRAL ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND ARE GIVING UP ANY RIGHTS EACH MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED BY A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW EACH IS GIVING UP THEIR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THIS ARBITRATION OF DISPUTES PROVISION. IF EITHER PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, EACH MAY BE COMPELLED TO ARBITRATE IN -7-7/7/15

8 ACCORDANCE WITH THE FEDERAL ARBITRATION ACT. THIS AGREEMENT TO ARBITRATE IS VOLUNTARY. BOTH PARTIES HAVE READ AND UNDERSTAND THE ARBITRATION PROVISIONS AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISIONS TO NEUTRAL ARBITRATION. ( ) BUYER S INITIALS ( ) SUNSTREET S INITIALS 13) Notices. All notices under this Agreement shall be in writing and shall be given by personal delivery or sent by certified mail, return receipt requested, or reputable overnight courier service, postage or other expense prepaid, to the address of the other Party as set forth beneath such Party s signature to this Agreement or to any later address last known to the sender. Notice will be effective upon signed receipt or other evidence of delivery. 14) Entire Agreement. The Exhibits referenced in this Agreement are incorporated into this Agreement and together contain the Parties entire agreement regarding the subject matter hereof. There are no unwritten agreements or understandings regarding the subject matter of this Agreement. 15) Amendments. Any amendment, modification or other change to this Agreement must be in writing and signed by both Parties. 16) Severability. If any provision or portion thereof of this Agreement is determined to be unenforceable, the remaining provisions or portions thereof shall be enforced in accordance with their terms. 17) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of in which the Home is located applicable to contracts made and to be performed in the State of in which the Home is located, without regard to any of such State s choice of law principles to the contrary. 18) No Third-Party Beneficiaries. Except as expressly set forth in this Agreement, this Agreement is entered into for the sole benefit of the Parties, and except as specifically provided herein, no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with, this Agreement. 19) Waiver. Any term of this Agreement may be waived at any time by the Party that is entitled to the benefit hereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term. No waiver by any Party of any term of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term of this Agreement on any future occasion. -8-7/7/15

9 20) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Agreement. 21) Assignment. Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party; except that this Agreement may be assigned without such consent: (i) by SunStreet to an affiliate; or (ii) as a collateral assignment by SunStreet to or for the benefit of any lenders as security; provided, that any such assignment shall not relieve SunStreet of any of its obligations under this Agreement. Any assignment that does not comply with the provisions of this Section shall be null and void. 22) Affiliated Business. Both SunStreet and Builder are affiliated with Lennar Corporation, meaning that Lennar Corporation has an ownership interest in both SunStreet and Builder. However, neither SunStreet nor Builder has a direct interest in the other. [Signatures on the following page] -9-7/7/15

10 IN WITNESS WHEREOF, this Agreement has been duly executed by Buyer and SUNSTREET as of the dates set forth below. BUYER: Date:, 20 Address for Notices to Buyer: SUNSTREET: SUNSTREET ENERGY GROUP, LLC By: Name: Title: Date:, 20 Address for Notices to SunStreet: 730 NW 107 th Avenue, Suite 400 Miami, FL /7/15

11 Exhibit A Equipment List and Transferred Warranties Equipment List Solar Panels and hardware Racking system rails and hardware Micro-Inverters, trunk line and array ground wire 'L' bracket from standoff Junction boxes if attached to racking Roof top junction boxes if mounted to roof All rough electrical conductors below roof line Standoffs Cap electrical conduits into attic Manufacturers Warranties Click here to view Buyer(s) Initials: 7/7/15