No Value: VIVINT SOLAR DEVELOPER, LLC VS ZUBIRAN

On May 10, 2024 a No Value was filed involving a dispute between Vivint Solar Developer, Llc, and Zubiran, Oscar, for 06-CV Breach of Contract/Warranty-Civil Unlimited in the District Court of Kern County.

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1 DREW A. CALLAHAN (CA SBN 254257)
ELIZABETH ARONSON (CA SBN 167869)
2 ALDRIDGE PITE, LLP
8880 Rio San Diego Drive, Suite 725
3 San Diego, CA 92108
Telephone: (858) 750-7600
4 Facsimile: (619) 590-1385
E-mail: earonson@aldridgepite.com
5
Attorneys for Plaintiff
6 VIVINT SOLAR DEVELOPER, LLC
7
SUPERIOR COURT OF CALIFORNIA
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COUNTY OF KERN SUPERIOR COURT OF CALIFORNIA
9
VIVINT SOLAR DEVELOPER, LLC, Case No.
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Plaintiff, VERIFIED COMPLAINT FOR
11 POSSESSION OF PERSONAL
vs. PROPERTY AND BREACH OF
12 EXPRESS CONTRACT
OSCAR ZUBIRAN,
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Defendant. Damages: $76,327.82
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15

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Plaintiff, VIVINT SOLAR DEVELOPER, LLC (hereinafter "Plaintiff"), alleges as
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follows:
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GENERAL ALLEGATIONS
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1. Plaintiff is a limited liability company authorized to do business in the State of
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California.
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2. Plaintiff is informed and believes and thereon alleges that that Defendant OSCAR
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ZUBIRAN, (hereinafter referred to as "Defendant"), is and at all times herein mentioned was an
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25 individual residing in the County of Kern, State of California.

26 ///

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-1-
VERIFIED COMPLAINT
1 FIRST CAUSE OF ACTION

2 (Possession of Personal Property)

3 3. Plaintiff hereby incorporates by reference the preceding paragraphs in this claim

4 for relief.

5 4. On or about September 30, 2019, Defendant, for valuable consideration, made

6 and executed a Residential Solar Power Purchase Agreement (hereinafter the "Contract”).
7 Pursuant to the terms of the Contract, Defendant promised to purchase from Plaintiff all energy
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produced by a certain photovoltaic solar system (hereinafter the “Solar System”) installed on the
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real property commonly known as 3900 S Fairfax Rd Bakersfield CA 93307 (hereinafter the
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“Subject Property”) from Plaintiff at the rates set forth in the Contract. A true and correct copy
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of the Contract is attached hereto as Exhibit A and incorporated herein by reference.
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5. Pursuant to the terms of the Contract, Plaintiff retained ownership of the Solar
13
14 System.

15 6. Defendant failed to timely tender all the required monthly payments under the

16 Contract, and became delinquent.
17 7. On March 03, 2022, Plaintiff issued a Deactivation Notice to Defendant pursuant
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to the Contract putting the Defendant on notice he was 528 days delinquent on the Contract and
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to cure the past-due amount on or before March 15, 2022, or Plaintiff would thereafter deactivate
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the Solar System and enforce its remedies under the Contract. A true and correct copy of the
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Deactivation Notice is attached hereto as Exhibit B and incorporated herein by reference.
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8. Defendant did not timely tender the full past-due amount in response to Plaintiff’s
23
24 Deactivation Notice and remained in default.

25 9. Plaintiff has performed all obligations on its part to be performed under the terms

26 of the Contract.
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-2-
VERIFIED COMPLAINT
1 10. Defendant defaulted under the terms of the Contract by failing to make payments

2 when due.
3 11. The Contract provides that, upon default by Defendant, Defendant shall pay a
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“Default Payment” to Plaintiff. The Contract further provides that the Default Payment is based
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upon the fair value of the Solar System and shall be in an amount equal to the sum of: (1) the
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Prepayment Price, (2) any other amounts due and owing under this Agreement, including
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(without limitation) late fees, (3) Sunrun’s fees and costs associated with removal of the System
8
from Your Property, (4) loss of expected benefits from the System, including (without limitation)
9
10 benefits and sources of revenue associated with the System Interests, and (5) Sunrun’s other

11 documented losses.

12 12. As of the date of this Complaint, the Make Whole Payment due and owing to
13 Plaintiff under the Contract is in the amount of $76,327.82.
14
13. The Contract further provides that, upon default by Defendant, Plaintiff may
15
disconnect or take possession of the Solar System.
16
14. Based on the above-described default of Defendant, Plaintiff has made demand
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for payment of the Make Whole Payment. Plaintiff intends service of this Complaint to act as a
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further and additional request by Plaintiff for the payment of the Make Whole Payment and for
19
20 the immediate surrender and return of its Solar System.

21 15. By virtue of the foregoing facts, Plaintiff is entitled to immediate and exclusive

22 possession of the Solar System.
23 16. Plaintiff is informed and believes and based thereon alleges that prior to default,
24 Defendant had the power to possess and control the Solar System and hence continued to retain
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possession of the Solar System for the purpose of deriving use and benefit therefrom.
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17. Plaintiff is informed and believes that the Solar System is located at the Subject
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Property.
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-3-
VERIFIED COMPLAINT
1 18. Plaintiff is informed and believes and based thereon alleges that the Solar System

2 has not been taken for a tax assessment or fine pursuant to a statute or seized under an execution
3 against the Solar System.
4
19. As a result of the Defendant’s wrongful detention of the Solar System, Plaintiff
5
has suffered the loss of use and enjoyment of the Solar System.
6
20. Neither the filing of this case nor the statement of this cause of action are intended
7
to be construed as a waiver or other relinquishment of Plaintiff's rights to proceed against the
8
Solar System in any manner provided in the Contract or otherwise provided by law or in equity.
9
10 SECOND CAUSE OF ACTION

11 (Breach of Express Contract)

12 21. Plaintiff hereby incorporates by reference the preceding paragraphs in this claim

13 for relief.
14 22. As a result of Defendant’s breach of the Contract, Plaintiff is entitled to
15
immediate payment of the Make Whole Payment.
16
23. Defendant has defaulted on the Contract and, despite demand therefor, is indebted
17
to Plaintiff in the amount of not less than $76,327.82.
18
WHEREFORE, Plaintiff prays for judgment against Defendant, inclusive, as follows:
19
ON THE FIRST CAUSE OF ACTION
20
1. For possession of the Solar System or, if the Solar System cannot be delivered, for
21

22 its value; and

23 2. For damages caused by depreciation and deterioration of the Solar System

24 according to proof.
25 ON THE SECOND CAUSE OF ACTION
26 1. For damages in the amount of not less than $76,327.82.
27

28
-4-
VERIFIED COMPLAINT
1 ON ALL CAUSES OF ACTION

2 1. For costs of suit incurred herein; and

3 2. For such other and further relief as this court may deem just and proper.
4 Dated: May 9, 2024 ALDRIDGE PITE, LLP
5
6 /s/ Elizabeth Aronson
ELIZABETH ARONSON
7 Attorneys for Plaintiff
VIVINT SOLAR DEVELOPER, LLC
8
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-5-
VERIFIED COMPLAINT
1 I, Elizabeth Aronson, am an attorney at law, duly qualified to practice law in the State of

2 California, and am an attorney for the Plaintiff herein. I am informed and believe that the

3 information set forth below is true and correct.

4 The Superior Court, County of Kern Judicial District, in which this case is filed, is a

5 proper court to commence and try this action because:

6 The Defendant is a resident of said Judicial District.

7 The obligation sued upon was entered into in said Judicial District.

8 The Contract was signed by the buyer in said Judicial District.

9 The Contract was entered into when the Defendant is a resident of said Judicial

10 District.

11 The goods purchased pursuant to said Contract were affixed to property as to

12 become a part of such property in such Judicial District.

13 Vehicle purchased, permanently garaged in said Judicial District.

14 The cause of action sued upon is not subject to the provisions of section 1812.10

15 of the Civil Code of the State of California.

16 The cause of action sued upon is not subject to the provisions of section 2984.4 of

17 the Civil Code of the State of California.

18 The cause of action sued upon is not on an obligation for goods, services, loans,

19 or extensions of credit subject to section 395(b) of the Code of Civil Procedure.

20 I declare under penalty of perjury under the laws of the State of California that the

21 foregoing is true and correct.

22 Executed at San Diego, California, on ______May 8, 2024________________________.

23
/s/ Elizabeth Aronson
24 ELIZABETH ARONSON
25
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-6-
VERIFIED COMPLAINT
EXHIBIT A
DocuSign Envelope ID: DF107E47-628D-47BB-9C49-00CA7C8C46B1

SOLAR ENERGY SYSTEM DISCLOSURE DOCUMENT

This disclosure shall be printed on the front page or cover page of every solar
energy contract for the installation of a solar energy system on a residential
building.

The TOTAL COST for the solar energy system (including financing and energy /
0.185
power cost if applicable) is: $________ per kwh for all power produced, price
increases 2.9% per year, $0 due at installation.

To make a complaint against a contractor who installs this system and/or the
home improvement salesperson who sold this system, contact the Contractors
State License Board (CSLB) through their website at www.cslb.ca.gov (search:
“complaint form”), by telephone at 800‐321‐CSLB (2752), or by writing to P.O.
Box 26000, Sacramento, CA 95826.

If the attached contract was not negotiated at the contractor's place of
business, you have a Three‐Day Right to Cancel the contract, pursuant to
Business and Professions Code (BPC) section 7159, as noted below. For further
details on canceling the contract, see the Notice of Cancellation, which must
be included in your contract.

Three‐Day Right to Cancel

You, the buyer, have the right to cancel this contract within three
business days. You may cancel by e‐mailing, mailing, faxing, or
delivering a written notice to the contractor at the contractor's
place of business by midnight of the third business day after you
received a signed and dated copy of the contract that includes this
notice. Include your name, your address, and the date you received
the signed copy of the contract and this notice.

This document was developed through coordination of the California Contractors State License Board and the California Public
Utilities Commission pursuant to Business and Professions Code section 7169.

13L-6 (05/2018)

PPA (12/2018, v4.1) | Cover Page
DocuSign Envelope ID: DF107E47-628D-47BB-9C49-00CA7C8C46B1

Oscar Zubiran 3900 S Fairfax Rd

Bakersfield CA 93307

3/28/2020

September 30, 2019 | 10:21 AM MDT

0.185
Energy Price ( /kWh)
20 yr

Vivint Solar Developer, LLC (EIN: 80‐0756438) is a licensed contractor in each state in which we operate,
116799 SP or information about our contractor licenses please
visit www.vivintsolar.com/licenses.

WE MAY HAVE PRESCREENED YOUR CREDIT. PRESCREENING OF CREDIT DOES NOT IMPACT YOUR CREDIT SCORE.
YOU CAN CHOOSE TO STOP RECEIVING “PRESCREENED” OFFERS OF CREDIT FROM US AND OTHER COMPANIES BY
CALLING TOLL-FREE 888.567.8688. SEE PRESCREEN & OPT-OUT NOTICE BELOW
FOR MORE INFORMATION ABOUT PRESCREENED OFFERS.

@vivintsolar.com | vivintsolar.com
Phone 877.404.4129 | Fax 801.765.5758

Copyright © 2018 Vivint Solar Developer, LLC. All Rights Reserved. PPA Page 1 of 16
DocuSign Envelope ID: DF107E47-628D-47BB-9C49-00CA7C8C46B1

This RESIDENTIAL SOLAR POWER PURCHASE AGREEMENT (this “ ”) which includes the General Provisions
included further below (the “ ”), along with the Customer Packet (as defined below), any Change
Orders (as defined below), any amendments or addenda to the PPA, and any required disclosures including the
state-specific disclosures appended here (all of which, together with the PPA, are known as this “ ”) is
entered into as of the last date on the Signature Page below (the ), by and between VIVINT
SOLAR DEVELOPER, LLC, a Delaware limited liability company (“ ”, “ ”, “ ”, “ ”, “ ”) and the
undersigned CUSTOMER(s) (“ ”, “ ”, “ ”). Vivint Solar and you are referred to herein as the
“ ”, and each, a “ .”

.
(a) Our Work. We will survey your home at the address on the first page above
(the “ ”) and design a solar energy system (including solar panels, inverters, We will design,
meters, and other components, the “ ”). The System may include energy install, maintain,
storage, consumption monitoring, and energy management equipment or devices, repair, monitor,
along with other items. All such ancillary products or services will be part of the and insure the
definition of “System” for purposes of this Agreement unless designated otherwise. System.
We will provide you a document reflecting the design, layout, and basic attributes of
the System for you to review and approve (the “ ”).

After you sign this PPA and review and approve the Customer Packet, we will (i) obtain all necessary permits for
the installation of the System; (ii) install the System using our qualified and licensed employees or subcontractors
in material compliance with all local requirements, which installation shall be considered substantial
commencement of work; (iii) after installation, work with your municipality to inspect the System; (iv) submit all
necessary paperwork to your electricity provider (the “ ”) to receive permission to operate (“ ”); and (v)
after receipt of PTO, activate and turn on the System (the “ ”). If we use subcontractors to install
the System, we will provide you with their names and license numbers. Subject to the delays of permitting
authorities, weather, or other conditions outside our control, installation of the System generally takes one (1)
day and is anticipated to start and be complete no later than the date set forth on the first page. We cannot
promise or guarantee the date your Utility will provide PTO. YOU ARE NOT ALLOWED TO TURN ON THE SYSTEM
UNTIL THE UTILITY HAS GIVEN ITS PERMISSION TO OPERATE. YOU ARE LIABLE FOR ANY COSTS OR DAMAGE
RELATING TO YOUR PREMATURE ACTIVATION OF THE SYSTEM.

(b) Extra Work. You and we must agree in writing to any modification or addition to the work covered by this
Agreement (“ ”). Extra Work related to the System will be governed by a written change order (each,
a“ ”). However, failure to obtain written authorization shall not affect your obligation to pay for our
costs associated with the Extra Work. Any Change Order shall (i) list the agreed price and any changes in terms,
(ii) be signed by both you and us, and (iii) become part of this Agreement. For any Extra Work performed, you
shall pay to us an amount to be determined before the Extra Work is performed, plus ten percent (10%) for our
overhead expenses, plus any applicable taxes, unless the Change Order provides differently.

(c) Operations and Maintenance. During the Initial Term (defined below), as long as no Customer Default
(defined below) has occurred and is continuing, we will honor the limited warranty set forth in Section 21 of the
General Provisions, and will operate and maintain the System (i) at our sole cost and expense; (ii) in good
condition; and (iii) in material compliance with all applicable laws and permits and the Utility’s requirements.

Copyright © 2018 Vivint Solar Developer, LLC. All Rights Reserved. PPA Page 2 of 16
DocuSign Envelope ID: DF107E47-628D-47BB-9C49-00CA7C8C46B1

.
(a) End-of-Term Options. This Agreement starts on the Transaction Date and will
continue for twenty (20) years after the In-Service Date (the “ ”). Prior to
the end of the Initial Term, and provided there is no ongoing Customer Default, we
will send to you notice and the applicable forms for three (3) options which you may
exercise at the end of the Initial Term (the “ ”):

(i) Renewal. You may renew the Agreement for five (5) years at a price
based on our determination of the fair market value of the System at that
time as determined by an independent appraiser’s valuation of similarly
sized photovoltaic systems in your geographic region (the “ ”);
(ii) Purchase. You may purchase the System at a price equal to the FMV
at that time plus any outstanding balance and applicable taxes (the
“ ”), after which this Agreement will automatically
terminate; or
(iii) Removal. You may request that we remove the System within ninety
(90) days at no cost to you, after which this Agreement will automatically
terminate.

(b) Automatic Renewal. If you do not elect any of these options, this Agreement will automatically renew on
a year-to-year basis at a price that is ten percent (10%) less than the then-current average rate charged by your
Utility.

Please
consult Exhibit B, for more information.

(c) Early Purchase Option. In addition to your options at the end of the Initial Term, during a ninety (90) day
period after the sixth (6th) anniversary of the In-Service Date (the “ ”), you have an option to
purchase the system at an amount equal to the greater of the Purchase Option Price and an amount equal to the
sum of the remaining monthly payments of the Energy Price (based on our reasonable estimation of the energy
to be produced) due to us during the Initial Term, discounted by five percent (5%), plus applicable taxes (the
“ ”). If you purchase the System, we will transfer the System to you “ ” (without
any warranties) and we will retain all right and title to the System Interests (as that term is defined in Section
3(c)).

0.22
(a) Sale of Electricity. Starting on the In-Service Date, we will sell to you all 0.035
electricity produced by the System, as measured in kilowatt-hours (the
“ ”), at the Energy Price (shown to the right ), plus applicable taxes. $ 0.185

Each year of the Initial Term, on the anniversary of the In-Service Date, the
Energy Price shall increase by two and nine-tenths percent (2.9%). You are
responsible to pay the Energy Price for all Energy produced by the System as
measured by the performance meter (the “ ”), whether or not you
actually consume the energy.

An estimate of the System’s annual Energy production will be provided to you in the Customer Packet; but we
reserve the right to modify the size, production, or location of the System at the time of installation as required
by applicable law or in our reasonable discretion.

Copyright © 2018 Vivint Solar Developer, LLC. All Rights Reserved. PPA Page 3 of 16
DocuSign Envelope ID: DF107E47-628D-47BB-9C49-00CA7C8C46B1

You are required to maintain your Utility interconnection throughout the Initial
Term as you will need to purchase electricity from the Utility in addition to the
You must continue
Energy produced by the System. We are not a utility or public service company. service with your
We are not subject to rate review or other regulations applicable to a public utility. Utility.

WE DO NOT WARRANT OR GUARANTEE (1) THE AMOUNT OF ENERGY PRODUCED BY THE SYSTEM FOR ANY
PERIOD, (2) ANY COST SAVINGS, (3) THE EXISTENCE OF OR PRICING ASSOCIATED WITH ANY NET METERING
PROGRAM, OR UTILITY OR GOVERNMENT INCENTIVE PROGRAM, OR (4) THE AVAILABILITY OR YOUR ELIGIBILITY
FOR ANY TAX OR OTHER STATE AND FEDERAL INCENTIVES, WHICH ARE ALSO SUBJECT TO CHANGE. ACTUAL
UTILITY RATES AND NET METERING COMPENSATION MAY GO UP OR DOWN AND ACTUAL SAVINGS MAY VARY.
FOR FURTHER INFORMATION REGARDING RATES, YOU MAY CONTACT YOUR UTILITY.

(b) Payments. Following the In-Service Date, for each month of the Initial Term, we will send you an invoice
reflecting the charges for the Energy produced by the System. If the System does not report Energy during a
month (for any reason, including your failure to maintain internet), then the invoice will reflect the charges for
estimated Energy produced by the System (as we determine in our reasonable discretion) (the “
”). If we bill you for Estimated Energy and we later determine that we have either overestimated or
underestimated the actual Energy production, then we will adjust the next invoice with a non-refundable credit
(for over-billing) or an additional charge (for under-billing). You will not be charged for Estimated Energy if we
know the System is not working due to our fault. All payments are due within ten (10) days of the invoice date.
You agree to make payments under this agreement in the manner you have selected in Section 1 of the General
Provisions. You will pay the Energy Price in 240 monthly payments.

(c) Ownership of the System and the System Interests. This Agreement is for the sale of Energy, not the sale
of the System or the System Interests. We own and hold all property rights in (i) the System; and (ii) any credits,
rebates, incentives, allowances, tax benefits, or certificates that are attributed, allocated, or related to the
System, the Energy, or environmental attributes thereof (collectively, the “ ”). Other than the
Energy and any rights to incentives, credits or rebates to which you may be entitled under state or federal law as
a customer (please review Exhibit B for more details), you have no rights to the System or the System Interests,
and you hereby disclaim and/or assign to us all right, title and interest in the System and the System Interests. If
we request, you agree to execute all documents to allow us to be the exclusive owner of the System and the
System Interests. You agree to keep the System and System Interests free from all liens, security interests, and
encumbrances of any type. You agree to not take any action or allow any omission that could have the effect of
impairing the value of the System or the System Interests. By entering into this Agreement, you will host a system
that generates clean energy, but a third-party, and not you, will own the right to claim the clean energy attributes
of the energy.

We will not place a You and we agree that the System is our sole personal property and is not a
“fixture” or any part of the “real property” associated with your home, as those
lien on your home, terms may be defined by applicable law. We will not place a lien on your
but we will file a Property; however, you authorize us to make filings and recordings with relevant
notice of our governmental authorities as may be necessary to provide notice of our
ownership of the ownership of the System and our interest in the System Interests, including
System. (without limitation): notice filings, UCC-1 financing statements, and fixture
filings.

You are not allowed to touch, handle, operate, alter, repair, or otherwise modify the System or any component
thereof or take any action that could void or impair any warranty relating to the System.
Copyright © 2018 Vivint Solar Developer, LLC. All Rights Reserved. PPA | Page 4 of 16
DocuSign Envelope ID: DF107E47-628D-47BB-9C49-00CA7C8C46B1

(a) Your Representations and Warranties. You represent, warrant, and agree that each of the following is
true and correct, and will remain true and correct throughout the Initial Term:
(i) all information you have provided to us is true, correct, and complete;
(ii) you own the Property, including the roof, in fee simple (in other words, you have full and exclusive
ownership rights to the Property), or if your Property has been placed into a trust, you are the
trustee;
(iii) your roof is in good condition and repair, without defects, sufficient to support the System;
(iv) you are at least eighteen (18) years of age;
(v) you have had the opportunity to review and discuss this Agreement with anyone you choose;
(vi) if there is more than one person signing this Agreement, each of you is responsible for all of the
obligations under this Agreement (jointly and severally);
(vii) you are either a citizen of the United States or not exempt from paying United States federal income
taxes;
(viii) you have customary property and liability insurance covering the Property;
(ix) you will use the Energy primarily for personal, family, or household purposes, and not to heat a
swimming pool;
(x) you will ensure that the Property remains grid-connected at all times with the Utility;
(xi) you have access to a functioning internet connection with one (1) wired Ethernet port and a
standard electrical outlet available; and
(xii) you have or will obtain all approvals necessary for us to install the System, including from your home
owner’s association, your mortgage lender, or your insurer.

(b) Your Property. You are responsible to ensure that your Property (including all
electrical systems and the roof) is maintained in good condition and repair and in
compliance with all permits, codes, and ordinances. We are not responsible for any At all times,
existing violations of applicable building regulations or ordinances on your Property. You you must keep
agree that we are not responsible for any damage or loss to your Property, personal your roof and
property, fixtures, or other belongings caused by: (i) snow falling from your roof; (ii) home in good
animals or other pests under or near the System; (iii) other natural events or acts of god condition.
outside our reasonable control; or (iv) your Property not complying with applicable law.
You are required to notify us of any easements, restrictions, or home owners association
requirements.

You hereby grant to us the right to access and use your Property to survey your roof and your home’s electrical
systems, install the System, operate and maintain the System, to enforce our rights under the Agreement, and to
take any other action reasonably necessary under this Agreement. The foregoing rights of access to your Property
shall constitute a license coupled with an interest and will be irrevocable until ninety (90) days after this
Agreement terminates.

(c) Removing/Reinstalling Your System. If you need to repair your roof or other parts of your Property, or
you, any government authority, or the Utility requires any change to the System, we will remove, reinstall, and
modify, as required, the applicable portions of the System if you give us at least 30 days’ notice. You will be
required to pay a fee equal to our labor, equipment, and overhead costs to remove and reinstall the System
(which pricing will be made available to you upon request), plus any applicable taxes. You will also be required to
safely store the System after we remove it. If we are unable to reinstall the System within thirty (30) days after
removal for any reason, then we will charge you for the Estimated Energy.

(d) Sunlight. You acknowledge and agree that the System’s unobstructed access to sunlight is essential to us
and is a material inducement to our entering into this Agreement. You agree to take all actions necessary to keep
the System’s access to sunlight the same as existed on the Transaction Date, including (without limitation):
(i) you will not alter or allow your Property to be altered in any way that would obstruct sunlight, (ii) you will trim
all trees and foliage; and (iii) you will not allow the emission of particulate matter, smoke, or other airborne
impediments to obstruct the System’s access to sunlight.

(e) Other Obligations. You shall promptly notify us if: (i) you notice any person or thing interfering with the
operation of the System; (ii) your Property has any ordinance or permit violations or encumbrance that may
prevent proper System permitting, installation, or operation; (iii) you take any emergency action with respect to
the System; or (iv) you receive or otherwise acquire any System Interests, including any incentive payments. Your
failure to promptly notify us of such matters shall be a Customer Default (as defined in Section 5(a)). In the event
of an emergency affecting the System, you shall contact us immediately. If we are unable to timely respond, you
may (at your own expense) contract with a licensed and qualified solar installer to remove the System as
necessary to make repairs required by the emergency. You shall be responsible for any damage to the System
that results from actions taken by you or your contractor.

(f) Taxes. You will pay all taxes assessed on or arising from installation or
operation of the System, including without limitation any transaction-based taxes on
the Energy produced by the System. You will not be responsible for any personal You are not
property taxes assessed on the System; provided, however, you are responsible for responsible for
any real property taxes associated with your Property. It is your responsibility to personal property
verify that the System is not included as part of any real property tax assessment taxes assessed on
specific to your Property. Where applicable, you may be eligible for an exemption the System.
from any increase to real property taxes on your Property associated with installation
of the System.

(g) Sale of Your Property. You agree to notify us thirty (30) days prior to any sale or transfer of your Property.
You have the following three (3) options upon a transfer of your Property:

(i) Assignment: the homebuyer may assume your rights
under this agreement by signing a transfer agreement. You
will remain liable under this Agreement until the transferee
assumes in writing all of your obligations.
(ii) Prepayment. You may prepay the Agreement by
paying the Prepayment Price. After our receipt of an amount
equal to the Prepayment Price, the buyer of your property
may assume the obligations under the Agreement other
than the payment obligations by signing a transfer
agreement.
(iii) Transfer Purchase: In connection with a transfer of
your Property that occurs any time after six (6) years after
the In-Service Date, you may purchase the System by paying
to us the Purchase Option Price at that time

(h) Relocation. We may remove the System and reinstall it on your new home; provided that each of the
following requirements are satisfied, in our sole discretion:

(i) Your new home must: (A) be in a location with sun exposure that is not less than
your current Property; (B) be located within our service territory and the service territory of the Utility;
(C) have a roof type capable of supporting the System; (D) include roof sections where the System may
be installed which are the same or similar in shape and size as the roof sections on the Property.
(ii) In order to evaluate the feasibility of relocating the System to your new home, you
will be required to pay to us an amount equivalent to our costs associated with evaluating the new home
(“ ”).
(iii) If we determine, in our sole discretion, that relocating the System is feasible, then
before we remove the System, you will: (A) pay to us all fees, our estimated labor, equipment, and
overhead costs associated with removal, relocating, and reinstalling the System, including an amount
equal to any loss of value in or recapture of System Interests (the “ ”); (B) execute an
amendment to this Agreement that identifies the new home and adjusts the Energy Price, as applicable,
to a rate consistent with the location of the new home; and (C) provide any third party consents or
releases required by us in connection with the new home.

(a) Customer Default. You will be in default under this Agreement upon the occurrence of any of the
following (each, a “ ”):
(i) you fail to make any payment under this Agreement within ten (10) days of its due date and such
failure is not cured within ten (10) days after we give you written notice of such failure;
(ii) you fail to perform any obligation under this Agreement and such failure is not cured within thirty
(30) days after we give you written notice of such failure;
(iii) you deny us access to your Property or fail to cooperate with us to successfully install or maintain
the System;
(iv) your bankruptcy, insolvency, or admission of your inability to pay your debts as they mature; or
(v) your Property becomes subject to a foreclosure proceeding or you fail to perform any obligation
which is secured by your Property.

(b) Default Remedies. Upon a Customer Default, we may exercise any or all of the following remedies:
(i) terminate this Agreement and demand you pay the Default Payment, as that term is defined in Section 10 of
the General Provisions; (ii) leave the System in place on your Property, but deny you use of the Energy it produces,
which may be redirected and sold at our election; (iii) disconnect or take back the System as permitted by
applicable law; (iv) engage a collection agency to collect payments from you; (v) report your default to credit
reporting agencies; (vi) suspend our performance under this Agreement; and/or (vii) exercise any other remedy
available to us in this Agreement or under applicable law. Our remedies set forth in this section are cumulative
and not exclusive.

(c) Seller Default. We will be in default under this Agreement if we fail to perform any material obligation
under this Agreement and we have not made diligent efforts to cure such default within a reasonable time after
you give us written notice of such failure (“ ”).

If a Seller Default occurs and is continuing, you may terminate this Agreement and request removal of the System
from your Property. To the fullest extent permitted under applicable law, you have no right to claim damages as
a result of the termination of this Agreement, except for the actual costs to remove the System (if we fail to
remove the System), and any damages to your Property that we cause in connection removal of the System.

These GENERAL PROVISIONS (the “ ”), shall be interpreted with, and incorporated by
reference in, the Residential Solar Power Purchase Agreement (the “ ”). Capitalized terms in the General
Provisions not otherwise defined shall have the meaning given them in the PPA.

The PPA, the General Provisions, along with the Customer Packet, any Change Orders, any required disclosures,
and any amendments or addenda between you and any Vivint Solar entity shall be considered part of one
transaction (the “ ”).

1. Payment. You shall make payments to us by (a) automatic payment deduction from your designated
checking account, (b) automatic charge to your credit card, or (c) personal check. It is your responsibility to
ensure that there are adequate funds in your account or that you have an adequate credit limit to make payment
as agreed.
The Energy Price and all other payments in this Agreement will include a five dollar ($5) monthly discount if you
allow us to automatically debit your checking account. You will not receive such five dollar ($5) monthly discount
if you choose to pay by any means other than automatic debit from your checking account (e.g., credit card or
check). You may update your payment information any time by calling us or by visiting account.vivintsolar.com.

If you continue to fail to make any payment within ten (10) days after we give you
written notice, then you will be in Customer Default under the Agreement and we may exercise all remedies
available to us under the Agreement.

2. Governing Law. This Agreement, and any instrument or agreement required hereunder, shall be governed
by, and construed under, the internal laws of the state where the Property is located.

3. Limitation of Liability. NOTWITHSTANDING ANY BREACH OF THIS AGREEMENT, ANY FAILURE OF THE
SYSTEM, OR ANY NEGLIGENT ACT THAT CAUSED ANY INJURY OR LOSS (WHETHER PROPERTY DAMAGE, PERSONAL
INJURY, OR DEATH) TO ANYONE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE AND YOU AGREE
THAT, UNLESS SUCH INJURY OR LOSS WAS CAUSED BY A PARTY’S GROSS NEGLIGENCE, FRAUD, WILLFUL INJURY,
OR VIOLATIONS OF LAW, SUCH PARTY’S LIABILITY ARISING OUT OF OR RELATING TO (1) SYSTEM REPAIRS OR
REPLACEMENT UNDER THIS AGREEMENT, SHALL IN NO EVENT EXCEED THE DEFAULT PAYMENT, AND
(2) DAMAGE TO PERSONS AND PROPERTY, SHALL IN NO EVENT EXCEED $2,000,000. YOU AND WE AGREE THAT
THIS AMOUNT IS A FAIR REPRESENTATION OF THE DAMAGES THAT YOU OR WE EXPECT TO INCUR IN THE CASE
OF ANY INJURY OR LOSS HEREUNDER.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR WE MAY BRING A CLAIM AGAINST
THE OTHER PARTY OR SUCH PARTY’S AFFILIATES, OWNERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS,
OR SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “ ”) FOR ANY SPECIAL, EXEMPLARY,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFOR IS
BASED ON CONTRACT, TORT, DUTY IMPOSED BY LAW, OR OTHERWISE), IN CONNECTION WITH, ARISING OUT OF,
OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY ACT OR
OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH. YOU FURTHER AGREE THAT NO CLAIM,
LAWSUIT, OR ANY OTHER LEGAL OR ARBITRATION PROCEEDING IN CONNECTION WITH, ARISING OUT OF, OR IN
ANY WAY RELATED TO THIS AGREEMENT MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE INCIDENT
GIVING RISE TO SUCH CLAIM, OR AS LIMITED BY APPLICABLE LAW.

4. Indemnification. To the fullest extent permitted by applicable law, you agree to indemnify, advance
expenses, and hold harmless us and our Related Parties from any and all claims, actions, costs, expenses (including
reasonable attorneys’ fees and expenses), damages, liabilities, penalties, losses, obligations, injuries, demands,
and liens of any kind or nature in connection with, arising out of, or in any way related to your breach of this
Agreement, your negligence or willful misconduct, or your violation of law. Your indemnification obligations
under this section shall not apply if the harm or damage that is the basis for such claim occurred while one of our
employees or agents was at your Property and such harm or damage was caused by the negligence or willful
misconduct of such employee or agent.

5. Arbitration of Disputes and Class Waiver. Unless prohibited by applicable law and unless you opt out, you
and we agree that any Party may elect to arbitrate or require arbitration of any Dispute (as defined below). You
also agree to bring claims against us only in your individual capacity and YOU ARE WAIVING THE RIGHT TO INITIATE
OR PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING.
In arbitration, a third party arbitrator (“ ”) solves
“Disputes” in a hearing. It is less formal than a court case.
The hearing is private. There is no jury. It is usually less formal,
faster and less expensive than a lawsuit. Pre-hearing fact finding (called “discovery”) is limited. Appeals
are limited. The arbitrator’s findings are binding, and courts rarely overturn arbitration awards.
(defined above) Either you or we may, without
the other’s consent, elect to resolve disputes by mandatory, binding arbitration.
This governs all disputes that
would usually be decided in court and are between us (or any Related Party) and you, including without
limitation all claims related to this Agreement, the System or our relationship with you (“ ”).
Disputes include claims related to amendments, Change Orders, collections, privacy and Customer
Information, and claims related to the validity of this Agreement AND THE ARBITRABILITY OF ANY
DISPUTE(S). In short, Disputes has the broadest reasonable meaning.
The arbitration company will be JAMS, 1920 Main Street, Suite 300,
Irvine, CA 92614, www.jamsadr.org.
Arbitrations are
conducted under this clause and the JAMS Streamlined Arbitration Rules and Procedures in effect at the
time the arbitration is commenced. This Agreement is also subject to the JAMS Policy on Consumer
Arbitrations Pursuant to Pre-Dispute Clauses and Minimum Standards of Procedural Fairness, which set
forth certain protections to you (including a maximum filing fee). Any other arbitration rules that conflict
with this Clause do not apply.
Either party may bring a lawsuit if the other party does not
demand arbitration. We will not demand arbitration of any lawsuit you bring as an individual action in
small-claims court.
You can find more information in the
JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural
Fairness, which is available here - https://www.jamsadr.com/consumer-minimum-standards.
For Disputes subject to this clause, you give up your right to:
o have juries decide Disputes;
o have courts, other than small-claims courts, decide Disputes;
o se

Case Info

Judge

Clark, Thomas S. Track Judge’s New Case

Case No.

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Document Filed Date

May 10, 2024

Case Filing Date

May 10, 2024

County

Parties

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