HomeMy WebLinkAboutMINUTES - 12162014 - C.59RECOMMENDATION(S):
APPROVE and AUTHORIZE the Public Works Director's, or designee's, execution of an Operation and
Maintenance Services Agreement and Output Guarantee Agreement ("Agreements") with Borrego Solar Systems,
Inc. for the Solar Photovoltaic Installation at 151 Linus Pauling Drive, Hercules, for Employment and Human
Services Department (WH268B).
FISCAL IMPACT:
The solar photovoltaic installation project is funded by a Greenhouse Gas Reduction Grant from the Bay Area Air
Quality Management District. Required matching funds of $35,000 will come from the Employment and Human
Services Department (“EHSD”) budget as EHSD is the occupant of 151 Linus Pauling. Additionally, the County will
receive an estimated $166,000 spread over 5 years through a California Solar Initiative rebate program, which can be
applied to project costs.
BACKGROUND:
The solar photovoltaic system (“solar system”) involves constructing steel carport canopy structures with solar panels
mounted on top of the canopy structures. The solar canopies will be located in the parking lot and will provide shade
to the parked cars in addition to generating electricity.
During
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 12/16/2014 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Ramesh Kanzaria, (925)
313-2000
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: December 16, 2014
David Twa, County Administrator and Clerk of the Board of Supervisors
By: Chris Heck, Deputy
cc: PW Accounting, PW CPM Interim Division Manager, PW Energy Program Manager, PW CPM Clerical, Auditor's Office, County Administrator's
Office, County Administrator's Office, County Counsel's Office
C. 59
To:Board of Supervisors
From:Julia R. Bueren, Public Works Director/Chief Engineer
Date:December 16, 2014
Contra
Costa
County
Subject:Execution of Operation & Maintenance Services & Output Guarantee Agreements for the Solar Photovoltaic System
at 151 Linus Pauling Drive, Hercules
BACKGROUND: (CONT'D)
the first year of operation, the solar system is estimated to decrease the energy bill by approximately 80%. Based
on the latest 12 months electric billing, the savings will amount to approximately $70,000. The energy cost
savings from a reduced electric bill will compound as utility costs continue to increase. Given the industry’s
expectation that utility costs will continue to rise over the next 20 years, the solar system is estimated to save the
County a total of $2 million over the span of 20 years.
On March 11, 2014, the Board of Supervisors awarded a construction contract to Borrego Solar Systems, Inc.
("Borrego") in the amount of $891,743 for the subject project. In their proposal, Borrego provided a qualified bid
for Operations and Maintenance. In order to maintain this system so that it provides the projected economic and
environmental benefits, it is proposed to execute an Operation and Maintenance Agreement with Borrego as the
selected qualified bidder. The agreement for these services will ensure the system is maintained and operated to
maximize electric generation output, maintain system integrity and safety, minimize downtime and prolong
system life. The cost of the service will be $70,640 over a ten year term. It is also proposed to execute an Output
Guarantee Agreement with Borrego Solar which obligates the contractor to ensure the system produces a
minimum of 90% of the estimated electricity output so that the County is guaranteed to meet economic objectives
for this system. This agreement provides for penalty payments to the County if the system output falls below 90%
to compensate for monetary losses due to lack of performance.
CONSEQUENCE OF NEGATIVE ACTION:
If the Agreements are not executed, the solar system will not provide the projected economic and environmental
benefits.
CHILDREN'S IMPACT STATEMENT:
Not applicable.
ATTACHMENTS
Operations and Maintenance Services Agreement
OPERATION AND MAINTENANCE SERVICES AGREEMENT
BETWEEN CONTRA COSTA COUNTY
AND
BORREGO SOLAR SYSTEMS, INC., A CALIFORNIA CORPORATION
DECEMBER 16, 2014
TABLE OF CONTENTS
Article I DEFINITIONS .................................................................................................... 1
Article II TERM ................................................................................................................. 1
Article III SCOPE OF SERVICES ...................................................................................... 2
3.01 Services ................................................................................................................... 2
3.02 Additional Services ................................................................................................. 2
3.03 General Operating Standards .................................................................................. 2
3.04 Materials and Equipment ........................................................................................ 3
3.05 Emergencies ............................................................................................................ 3
3.06 Place of Operations and Hours of Maintenance ..................................................... 3
3.07 Monitoring Equipment ............................................................................................ 3
3.08 Engagement of Third Parties .................................................................................. 4
3.09 Access to System .................................................................................................... 4
3.10 Coordination with Lessor ........................................................................................ 4
Article IV BORREGO’S GENERAL COVENANTS ......................................................... 4
4.01 Environmental Matters............................................................................................ 4
4.02 Personnel ................................................................................................................. 5
4.03 Liens ........................................................................................................................ 5
Article V FEES AND COST REIMBURSEMENT ........................................................... 5
5.01 Annual Fee .............................................................................................................. 5
5.02 Invoiced Fees .......................................................................................................... 5
5.03 Disputed Payments.................................................................................................. 6
5.04 Past Due Amounts................................................................................................... 6
Article VI REPRESENTATIONS AND WARRANTIES................................................... 6
Article VII EVENTS OF DEFAULT; REMEDIES .............................................................. 6
7.01 Events of Default .................................................................................................... 6
7.02 Remedies ................................................................................................................. 7
Article VIII FORCE MAJEURE ............................................................................................ 8
Article IX INSURANCE ...................................................................................................... 9
9.01 Insurance Provisions ............................................................................................... 9
9.02 Notification ........................................................................................................... 10
Article X NOTICES .......................................................................................................... 10
Article XI LIMITATION OF LIABILITIES ..................................................................... 11
Article XII DISPUTE RESOLUTION ................................................................................ 12
i
12.01 Dispute Resolution ................................................................................................ 12
12.02 Continued Prosecution of the Work ...................................................................... 12
Article XIII MATERIALS AND DATA ............................................................................... 12
Article XIV MISCELLANEOUS ......................................................................................... 12
14.01 Execution .............................................................................................................. 12
14.02 Amendments ......................................................................................................... 12
14.03 Headings ............................................................................................................... 13
14.04 Assignment ........................................................................................................... 13
14.05 Successors and Assigns......................................................................................... 13
14.06 Other Customers ................................................................................................... 13
14.07 No Waiver of Rights ............................................................................................. 13
14.08 Severability ........................................................................................................... 13
14.09 Construction .......................................................................................................... 14
14.10 Relationship .......................................................................................................... 14
14.11 Entire Agreement .................................................................................................. 14
14.12 Confidentiality ...................................................................................................... 14
14.13 Publicity ................................................................................................................ 14
14.14 Attorneys’ Fees ..................................................................................................... 15
14.15 Governing Law ..................................................................................................... 15
14.16 Further Assurances................................................................................................ 15
Exhibit A Systems, Sites and Annual Fees
Exhibit B Schedule of Definitions
Exhibit C Services
Exhibit D Excluded Services
Exhibit E System Monitoring Equipment
ii
OPERATION AND MAINTENANCE SERVICES AGREEMENT
This Master Operation and Maintenance Services Agreement (this “Agreement”), is
dated as of December 16, 2014 (the “Effective Date”) between CONTRA COSTA COUNTY
(“Owner”), and BORREGO SOLAR SYSTEMS, INC., a California corporation (“Operator”).
Owner and Operator are sometimes referred to individually as a “Party” and jointly as “Parties.”
RECITALS
WHEREAS, Operator, itself or through its vendors, suppliers and Subcontractors,
engineers, procures and constructs solar photovoltaic electric generating systems (each, a “Solar
System”) and Operator has entered into a Construction Agreement with Owner, providing that
Operator will engineer, procure and construct the Solar System set forth on Exhibit A (the
“System”), located at the site identified on Exhibit A (the “Site”);
WHEREAS, Operator has the capability to perform maintenance on the System and
Owner wishes to engage Operator as an independent contractor during the Term of this
Agreement for the purpose of performing maintenance services on the System, pursuant to the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and in the agreements contemplated hereby, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be
legally bound and to bind their respective successors and assigns, the Parties do hereby mutually
agree as follows.
ARTICLE I
DEFINITIONS
As used in this Agreement, all capitalized terms have the respective meanings given to
them in this Agreement and in the Schedule of Definitions attached as Exhibit B.
ARTICLE II
TERM; EXCLUSIVITY
The term of this Agreement shall commence upon the date upon which the local utility
has provided permission to operate the System (the “Commercial Operation Date”), and, unless
terminated earlier in accordance with the terms and conditions hereof, shall continue until the
ten-year anniversary of the Commercial Operation Date (the “Term”); provided, that Operator
shall not be obligated to perform any Services with respect to the System until the Commercial
Operation Date for the System has occurred.
During the Term, Operator shall be the exclusive provider of operation and maintenance
services for the System and, except in an Emergency, Owner shall not perform, or permit the
performance of, any repair, maintenance or operation activities, on or related to the System by
any other provider without Operator’s prior written consent; provided that without Operator’s
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consent, Owner may perform any repair, maintenance or operation activities on the System other
than the Services or any Additional Services agreed to by the parties.
ARTICLE III
SCOPE OF SERVICES
3.01 Services.
During the Term of this Agreement, Operator shall perform the services set forth in
Exhibit C (the “Services”). For the avoidance of doubt, Operator’s Services shall not include
any of the items set forth on Exhibit D (“Excluded Services”). Upon completion of any Services,
Operator shall notify Owner in writing by delivering a standard service call report.
3.02 Additional Services.
From time to time as mutually agreed by the Parties, Owner may request that Operator
provide other services related to the System(s) beyond the scope of the Services, (the “Additional
Services”). The terms and conditions of any Additional Services shall be set forth in a written
work order signed by both Parties. If communications from Owner indicate that a System
requires maintenance, repair or service that would constitute an Additional Service (for example,
as a result of vandalism, remodeling or roofleaks not caused by the System), Operator shall have
no obligation to complete the service required, except in the event of an Emergency as set forth
in Section 3.05. Prior to undertaking any such Additional Services, Operator may require Owner
to agree in advance in writing to pay Operator at specified rates on a time and materials basis for
such Additional Services. Operator’s labor rates, hours of work, and minimum hours for
Additional Services are set forth in Exhibit F (“Labor Rates”). Except to the extent set forth in
such work order, the general terms and conditions of this Agreement shall apply to any
Additional Services.
3.03 General Operating Standards.
Operator shall perform the Services in accordance with (i) the terms of this Agreement,
(ii) all applicable Laws and Applicable Permits, (iii) all applicable warranties and guarantees
provided by manufacturers, suppliers or Subcontractors, (iv) all manufacturer’s maintenance
instructions and specifications and (v) the requirements of any insurance policies maintained by
Operator with respect to the Systems.
3.04 Materials and Equipment.
Operator shall provide all tools and equipment needed to perform the Services and all
consumables used in connection with rendering the Services. Operator shall procure, at Owner’s
expense, all replacement parts, components and equipment attached to, part of or constituting a
System (together, the “Replacement Components”) necessary for the performance of the
Services during the Term; provided, however, if any such Replacement Components are required
as a result of Operator’s failure to perform its obligations under this Agreement, then Operator
shall procure such Replacement Components at Operator’s expense. To the extent available,
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Operator will file warranty claims on behalf of Owner for any Replacement Component under
warranty.
3.05 Emergencies.
In the event of any Emergency, Operator shall take such action as may be reasonable and
necessary to prevent, avoid or mitigate injury, damage or loss to the System and shall, as soon as
possible, report any such incident, including Operator’s response thereto, to Owner. If Operator
isn’t immediately available, Owner may take such action as may be reasonable and necessary to
prevent, avoid, or mitigate injury, damage or loss to the System, and shall inform Operator in
writing of the specific mitigation actions undertaken within five days of such actions.
3.06 Place of Operations and Hours of Maintenance.
Except in the event of an Emergency, Operator shall perform its operation and
maintenance services on the Systems at the Site, and may perform certain monitoring and
component inspection services off-site, during Operator’s regular business hours.
3.07 Monitoring Equipment.
During the Term, Operator shall maintain the system monitoring equipment set forth on
Exhibit E at the Site, or such other monitoring equipment as is otherwise provided by Owner
from time to time (“System Monitoring Equipment”). Operator shall use commercially
reasonable efforts to ensure and monitor the internet connectivity of the System Monitoring
Equipment such that data regarding the performance of and output from the System shall be
communicated electronically to Operator on a continuous basis. Operator agrees to notify Owner
within four hours in the event any outages or other material issues arise from the System or the
System Monitoring Equipment. The System Monitoring Equipment shall be inspected and tested
by Operator at least annually at its sole cost and expense, or upon the request of either Party at
such Party’s sole cost and expense, in accordance with the testing protocols set forth in Exhibit
E.
3.08 Engagement of Third Parties.
Operator may engage Subcontractors (including Operator’s Affiliates) as it deems
advisable for the purpose of performing or carrying out any of its obligations under this
Agreement; provided that no such engagement shall relieve Operator of any of its obligations or
liabilities under this Agreement. As between Owner and Operator, Operator shall be solely
responsible for the acts, omissions or defaults of its Subcontractors and their agents,
representatives and employees, including all Persons engaged pursuant to this Section 3.08.
Nothing in this Agreement shall be construed to impose on Owner any obligation, liability or
duty to a Subcontractor, or to create any contractual relationship between such Subcontractor and
Owner.
3.09 Access to System.
Subject to any requirements of applicable Law and the terms of this Agreement, Owner
shall provide Operator and its Subcontractors, agents and employees with reasonable access to
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the System and the Site during reasonable times -as required for the performance of Operator’s
duties under this Agreement. Operator will use reasonable efforts to schedule normal, routine
maintenance in advance with the owner, landlord or property manager of each Site. Operator
shall notify site staff when they arrive to perform work.
ARTICLE IV
BORREGO’S GENERAL COVENANTS
4.01 Environmental Matters.
Operator acknowledges and agrees that it will not bring Hazardous Materials to the Site,
or if Operator determines such Hazardous Materials are necessary, Operator will notify Owner
prior to bringing any such Hazardous Materials to the Site. To the extent Hazardous Materials at
the Site results, due to acts of Operator, in contamination or deterioration of water or soil at a
level exceeding permissible levels established by any Governmental Authority having
jurisdiction over such contamination, then Operator shall advise Owner (and the applicable
regulatory agency if required by applicable Law) and, at Operator’s sole cost and expense,
promptly take any and all action necessary to clean up such contamination or deterioration if
required by applicable Law or as a condition to the issuance or continuing effectiveness of any
permit which relates to the System.
4.02 Personnel.
Operator's personnel as a group, and any Persons engaged by Operator pursuant to
Section 3.08 shall be qualified and experienced in the duties to which they are assigned.
Operator shall retain sole authority, control and responsibility with respect to labor matters in
connection with its personnel and shall meet the requirements of all applicable Laws and
Applicable Permits.
4.03 Liens.
Operator shall not, as a consequence of its own acts or acts of its suppliers and
Subcontractors, suffer or permit liens or encumbrances to attach to the System or the Site.
ARTICLE V
FEES AND COST REIMBURSEMENT
5.01 Annual Fee.
Owner shall pay Operator an annual fee per calendar year for Owner’s performance of
the Services during the Term in the amounts set forth on Exhibit A (the “Annual Fee”).
Beginning with the second Annual Fee due under this Agreement, the Annual Fee shall increase
by 2% per calendar year. The Annual Fee for the System shall be paid by Owner in advance on
or before the first day of each calendar year during the Term, provided that the first Annual Fee
with respect to the System will be due and payable on or before the Commercial Operation Date
of such System.
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5.02 Invoiced Fees.
Any Additional Services provided by Operator shall be paid within 30 days of the invoice
date, unless provided otherwise in the work order for such Additional Services. Replacement
Components shall be invoiced separately and shall be paid within 30 days of the invoice date.
All invoiced payments made by Owner to Operator under this Article V shall be paid by check or
electronic transfer of funds at Owner’s discretion, to Operator at an account designated in writing
by Operator.
5.03 Disputed Payments.
If there is a dispute about any amount invoiced by Operator, the undisputed amount shall
be paid pursuant to Section 5.02, and any disputed amount which is ultimately determined to
have been payable shall be paid immediately upon such resolution, along with interest in
accordance with the provisions of Section 5.04.
5.04 Past Due Amounts.
Any amounts due under this Agreement, other than disputed payments that are
determined to have been properly withheld by Owner, if not timely paid by the Party from whom
they are due, shall bear interest at the per annum rate equal to the prime rate, as published in the
Wall Street Journal from time to time, plus 2% annually (or such lower rate as is the maximum
rate permitted by applicable Law), prorated on the basis of a 365-day year from the date that
such amount was due.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that the following representations
are true and correct at and as of the Effective Date:
(a) It is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its formation;
(b) The execution, delivery and performance of this Agreement are within its
powers, have been duly authorized by all necessary action and do not violate any of the
terms and conditions in its governing documents, any contracts to which it is a party or
any Law, rule, regulation, order or the like applicable to it; and
(c) This Agreement constitutes a legally valid and binding obligation
enforceable against it in accordance with its terms.
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ARTICLE VII
EVENTS OF DEFAULT; REMEDIES
7.01 Events of Default.
An “Event of Default” means, with respect to either Party, the occurrence of any
of the following during the Term:
(a) Any representation or warranty made by such Party herein is false or
misleading in any material respect when made, if: (i) such misrepresentation or breach of
warranty is not remedied within 10 Business Days after Notice or (ii) such inaccuracy is
not capable of a cure, but the non-breaching Party’s damages resulting from such
inaccuracy can reasonably be ascertained and the payment of such damages is not made
within 15 Business Days after a Notice of such damages is provided by the non-breaching
Party to the breaching Party.
(b) Except for an obligation to make payment when due, the failure to
perform any material covenant or obligation set forth in this Agreement (except to the
extent constituting a separate Event of Default or to the extent excused by a Force
Majeure) if such failure is not remedied within 30 days after Notice of such failure (or
such shorter period as may be specified below), which Notice sets forth in reasonable
detail the nature of the failure; provided that, if such failure is not reasonably capable of
being cured within the 30 day cure period specified above, the Party shall have such
additional time (not exceeding an additional 45 days) as is reasonably necessary to cure
such failure, so long as such Party promptly commences and diligently pursues such cure;
(c) A Party fails to make when due any payment in a material amount
(including not making when due any material portion of the payment) required under this
Agreement and such failure is not cured within fifteen Business Days after Notice of such
failure;
(d) A Party becomes Bankrupt;
(e) A Party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all of its assets to, another entity and, at the time of such
consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee
entity fails to assume all the obligations of such Party under this Agreement to which it or
its predecessor was a party by operation of law or pursuant to an agreement reasonably
satisfactory to the other Party; or
7.02 Remedies.
If an Event of Default shall have occurred, there will be no opportunity for cure
except as specified in Section 7.01. The non-defaulting Party shall have the right:
(a) to designate by Notice, a day, no earlier than 20 calendar days after the
Notice is effective, for the early termination of this Agreement;
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(b) to immediately suspend performance under this Agreement; and
(c) to pursue all remedies available at law or in equity against the defaulting
Party (including monetary damages), except to the extent that such remedies are limited
by the terms of this Agreement.
ARTICLE VIII
FORCE MAJEURE
Notwithstanding any other provision of this Agreement, each Party’s obligations under
this Agreement shall be suspended by any Force Majeure if and to the extent that such Party is
prevented or delayed from performing by reason of the Force Majeure; provided, however, that
(a) the suspension of performance shall be of no greater scope and of no longer duration than is
necessarily caused by the Force Majeure and required by any remedial measures, (b) no
obligations of any Party that arose before the occurrence of such causes shall be excused as the
result of the occurrence, and (c) each Party shall use commercially reasonable efforts to remedy
its inability to perform. If the performance by either Party of its obligations under this
Agreement is affected by any Force Majeure, such Party shall notify the other Party within 5
business days after the initial occurrence of the claimed Force Majeure of the nature, the extent
thereof, timely evidence reasonably sufficient to establish that the occurrence constitutes Force
Majeure as defined in this Agreement, and the anticipated length of time that the Force Majeure
will prevent the Party’s performance under this Agreement. When the claiming Party is able to
resume performance of its obligations under this Agreement, it shall give the other Party prompt
Notice to that effect.
ARTICLE IX
INSURANCE
9.01 Insurance Provisions.
During the Term, Operator shall, at its sole cost and expense, procure and maintain, or
cause to be procured and maintained, the following insurance coverages with an insurance
company or companies rated at least “A-” by A.M. Best Company and be responsible for its
Subcontractors maintaining sufficient limits of the appropriate insurance coverage consistent
with industry practice.
(a) Workers’ Compensation and Employers’ Liability.
(i) Operator shall obtain workers’ compensation and basic employers’
liability insurance for all employees in accordance with applicable
Law.
(ii) Operator shall obtain employers’ liability insurance with limits of
at least $1,000,000 for injury or death occurring as a result of each
accident.
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(b) Business Auto.
(i) Operator shall obtain comprehensive automobile liability insurance
with bodily injury, death and property damage combined single
limits of at least $1,000,000 per occurrence covering vehicles
owned, hired or non-owned.
(c) Commercial General Liability.
(i) Operator shall obtain comprehensive or commercial general
liability insurance written on an occurrence basis with a combined
single limit of at least $1,000,000 per occurrence and $2,000,000
in the aggregate, including premises/operations, owner’s
protective, broad form property damage liability, explosion and
collapse hazard coverage, blanket contractual liability, independent
contractors, products and completed operations and personal
injury. If coverage includes an aggregate limit, that limit should be
at least $2,000,000. Owner may maintain a program of self-
insurance to satisfy its obligations under this Section 9.01(c).
(d) Excess Umbrella Liability Insurance.
(i) Operator shall obtain excess umbrella liability insurance with a
single limit of at least $5,000,000 per occurrence and in the
aggregate, in excess of the limits of insurance provided above.
(e) Additional Insurance Provisions.
(i) Operator’s insurance shall include (1) provisions or endorsements
including Owner as an additional insured; and (2) provisions that
such policies shall not be canceled or their limits of liability
reduced without 30 days’ prior Notice to the other Party. Operator
shall provide Owner with certificates of insurance upon written
request evidencing the policies, provisions and endorsements listed
above within 10 days after they have been obtained. Owner will
provide evidence of its self-insurance program upon the request of
Operator.
(ii) Reviews of such insurance may be conducted by Owner on an
annual basis.
(iii) Upon written request, Operator shall furnish Owner evidence of
insurance for its Subcontractors.
9.02 Notification.
Each Party shall notify the other of any casualty and keep the other Party timely apprised
of insurance claim proceedings.
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ARTICLE X
NOTICES
All notices permitted or required to be given under this Agreement (“Notices”) shall be in
writing and shall be deemed duly given when and only when: (i) if sent by overnight or
international courier service, confirmation of receipt by the recipient is confirmed by such
service, (ii) received by the recipient, if delivered by personal delivery or mail, (iii) when
received, if sent by facsimile with confirmation of successful transmission or (iv) when
transmitted, if sent by e-mail, so long as a copy of such e-mail notice is delivered immediately
thereafter by overnight or international courier service, personal delivery or facsimile. All
Notices shall be delivered or sent to the Parties at their respective addresses or numbers shown
below or to such other addresses or numbers as a Party may designate by prior Notice given in
accordance with this provision to the other Party:
(a) If to Owner:
Contra Costa County
Public Works Department
255 Glacier Drive
Martinez, CA 94553
Attention: Brian Balbas, Deputy Director
Phone: (925) 313-2000
Fax: (925) 313-2333
(b) If to Operator:
Borrego Solar Systems, Inc.
5005 Texas St. Suite 400
San Diego, CA 92108
Phone: (888) 898-6273
Fax: (888) 843-6778
Attention: William Bush CFO
ARTICLE XI
LIMITATION OF LIABILITIES
EXCEPT AS SET FORTH HEREIN, THERE ARE NO WARRANTIES BY BORREGO
UNDER THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED
WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS
REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT
SATISFY THE ESSENTIAL PURPOSES HEREOF. BORREGO’S TOTAL LIABILITY
WITH RESPECT TO ANY AND ALL CLAIMS REGARDLESS OF THE FORM OF ACTION
WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT
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OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF
ANY OF BORREGO’S OBLIGATIONS UNDER THIS AGREEMENT, OR THE USE OF
THE SERVICES BY OR ON BEHALF OF OWNER, OR ANY OTHER THIRD PARTY,
SHALL BE SOLELY FOR OWNER’S DIRECT DAMAGES.
NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER
BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT.
IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN
IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD
TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF
ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR
ACTIVE OR PASSIVE.
ARTICLE XII
DISPUTE RESOLUTION
12.01 Continued Prosecution of the Work.
In case of any Dispute, Operator shall continue to diligently perform the Services and any
Additional Services, so long as Owner continues to make payments to Operator for those
Services and Additional Services that are not the subject of dispute.
ARTICLE XIII
MATERIALS AND DATA
Title to all Replacement Components and other items purchased or obtained by Operator
hereunder for the System(s) shall pass immediately to and vest in the Owner when paid for by
the Owner. A copy of all materials and documents related to the maintenance history of the
System and any manuals and warranties related to the System shall be delivered to Owner upon
expiration or termination of this Agreement.
ARTICLE XIV
MISCELLANEOUS
14.01 Execution.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same Agreement. The
counterparts of this Agreement and the schedules and exhibits hereto, may be executed and
delivered by facsimile or other electronic signature by any of the Parties to any other Party and
the receiving Party may rely on the receipt of such document so executed and delivered by
facsimile or other electronic means as if the original had been received.
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14.02 Amendments.
No amendments or modifications of this Agreement shall be valid unless evidenced in
writing and signed by both parties.
14.03 Headings.
The headings herein have been inserted for convenience of reference only and shall not in
any manner affect the construction, meaning or effect of anything herein contained nor govern
the rights and liabilities of the Parties.
14.04 Assignment.
Either Party may assign this Agreement to an Affiliate with the prior written consent of
the other Party, which shall not be unreasonably withheld, conditioned or delayed if the non-
assigning Party has been provided with proof to its reasonable satisfaction that the proposed
assignee: (a) has experience in operating and maintaining solar photovoltaic systems, greater than
or equal to that of the assigning party; and (b) has the financial capability and credit rating equal
to or greater than that of the assigning Party; and (c) has the ability to maintain the System and
provide the Services provided pursuant to this Agreement in the manner required by this
Agreement and provides all applicable warranties that it shall do so. Upon notice to the other
Party this Agreement may be assigned in connection with any merger, consolidation or sale of all
or substantially all of the assets or equity interests of such Party without the consent of the other
Party. Either party may pledge this Agreement or make a collateral assignment in connection
with obtaining financing. Any other assignment shall require the prior written consent of the
other Party, which consent shall not be unreasonably withheld.
14.05 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the Parties, and their
respective successors and assigns, to the extent that assignment is permitted hereunder.
14.06 Other Customers.
Nothing in this Agreement shall be construed to prevent or prohibit Operator from
providing the same or similar services as the Services to any Person not a Party to this
Agreement.
14.07 No Waiver of Rights.
Except as may be specifically agreed in writing, the failure by any Party to insist in any
one or more instances upon the strict performance of any one or more of the provisions of this
Agreement or to exercise any right herein contained or provided by law or equity, shall not be
construed as, or constitute in any way, a waiver, modification or relinquishment of the
performance of such provision or right(s), or of the right to subsequently demand such strict
performance or exercise such right(s), and all such rights shall continue unchanged and remain in
full force and effect.
- 11 -
14.08 Severability.
If any provision of this Agreement shall be held void, voidable, invalid or inoperative, no
other provision of this Agreement shall be affected as a result thereof, and, accordingly, the
remaining provisions of this Agreement shall remain in full force and effect as though such void,
voidable, invalid or inoperative provision had not been contained herein. To the extent that any
provision is held void, voidable, invalid or inoperative, the Parties shall negotiate an equitable
adjustment in the provisions of this Agreement with a view toward effecting the purpose of this
Agreement, and the validity and enforceability of the remaining provisions, or portions or
applications thereof, shall not be affected thereby.
14.09 Construction.
All references herein to any agreement shall be to such agreement as amended,
supplemented or modified from time to time. All references to a particular entity shall include a
reference to such entity’s successors and permitted assigns. The words “herein”, “hereof” and
“hereunder” shall refer to this Agreement as a whole and not to any particular section or
subsection of this Agreement. The singular shall include the plural and the masculine shall
include the feminine and neuter, and vice versa. “Includes” or “including” shall mean
“including, without limitation.” All exhibits, schedules and appendices to this Agreement are
hereby incorporated herein by reference.
14.10 Relationship.
Operator shall act as an independent contractor of Owner with respect to the performance
of its obligations hereunder. Neither Operator nor its Affiliates, employees, Subcontractors,
vendors or suppliers, or the employees of any such parties employed in connection with this
Agreement shall be deemed to be agents, representatives, employees, or servants of Owner.
Operator shall not have the right or authority to assume, create or incur any liability or
obligation, express or implied, against, in the name of, or on behalf of Owner. This Agreement
is not intended to create, and shall not be construed to create, a relationship of partnership or an
association of profit between Owner and Operator.
14.11 Entire Agreement.
This Agreement contains the entire agreement between the Parties with respect to the
subject matter hereof, and supersedes any and all prior and contemporaneous written and oral
agreements, proposals, negotiations, warranties, guarantees, understandings and representations
pertaining to the subject matter hereof.
14.12 Confidentiality.
Subject to the California Public Records Act (California Government Code Section 6250,
et seq.), and Section 14.13, each Party agrees to keep the terms of this Agreement and the other
agreements contemplated hereby strictly confidential and to not use or disclose to any other
Person any non-public documents or other information that relates directly or indirectly to this
Agreement; provided that either Party may disclose the terms of this Agreement to (a) any
Affiliate, advisor, agent, representative, employee or Subcontractor, and (b) any third party
- 12 -
considering providing capital or financing to, or merging with or acquiring all or substantially all
of the assets of, either of the Parties hereto or as required by law. The confidentiality obligations
set forth in this Section 14.12 shall survive the termination or expiration of this Agreement for a
period of two years.
14.13 Publicity.
Except as may be required by law, no press release, announcement or other publicity
concerning this Agreement or the transactions contemplated hereby shall be issued without
advance written approval to the form and substance thereof by Owner and Operator. The Parties
share a common desire to generate favorable publicity regarding the System and their association
with it. The Parties agree that they may, from time-to-time, issue press releases regarding the
System and that they shall cooperate with each other in connection with the issuance of such
releases including without limitation by completing review of press releases proposed to be
issued by the other Party within five business days after submission by such other Party. Owner
and Operator shall cooperate to finalize the text of at least one press release from each Party or a
joint press release relating to their entering into a definitive agreement to install the System.
Each Party agrees that it shall not issue any press release regarding the System without the prior
consent of the other, and each Party agrees not to unduly withhold or delay any such consent.
14.14 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING ANY
CHOICE OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE
LAWS OF ANOTHER STATE.
14.15 Further Assurances.
Each Party shall use its reasonable efforts to implement the provisions of this Agreement,
and for such purpose each, at the request of the other, shall, without further consideration,
promptly execute and deliver or cause to be executed and delivered to the other such
assignments, consents or other instruments in addition to those required by this Agreement, in
form and substance satisfactory to the other, as the other may reasonably deem necessary or
desirable to implement any provision of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have
caused this Operation and Maintenance Services Agreement to be executed by their duly
authorized officers as of the date first written above.
BORREGO SOLAR SYSTEMS, INC.
By: ______________________________________
Name:
Title:
CONTRA COSTA COUNTY
By: ______________________________________
Name:
Title:
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EXHIBIT A
SYSTEMS, SITES AND ANNUAL FEE
NAME CITY ANNUAL FEE
CONTRA COSTA
COUNTY
HERCULES $6,305.28
SYSTEM SIZE STREET ADDRESS TERMS
257 KW 151 LINUS PAULING DRIVE INCREASES 2% ANNUALLY
A - 1
EXHIBIT B
SCHEDULE OF DEFINITIONS
The terms defined in this Schedule of Definitions shall include the plural as well as the
singular and the singular as well as the plural. Except as otherwise indicated, all the agreements
or instruments herein defined shall mean such agreements or instruments as the same may from
time to time be supplemented or amended or the terms thereof waived or modified to the extent
permitted by, and in accordance with, the terms thereof. When used in the Agreement (as
defined below), unless otherwise defined therein, the following terms shall have the respective
meanings set forth below:
“Additional Services” shall have the meaning set forth in Section 3.02.
“Annual Fee” shall have the meaning set forth in Section 5.01.
“Affiliate” means, with respect to any Person, any other Person, who (a) such first Person
directly or indirectly, in whole or in part, owns, is owned by or is in common ownership with, or
(b) such first Person directly or indirectly controls, is controlled by or is under common control
with.
“Agreement” shall mean this Operation and Maintenance Services Agreement.
“Applicable Permits” means each and every material national, autonomic, regional and
local license, authorization, certification, filing, recording, permit or other approval with or of
any Governmental Authority, including, without limitation, any agreement, consent or approval
from or with any other Person that is required by any applicable Law or that is otherwise
necessary for the performance of the Services.
“Bankrupt” means with respect to any entity, such entity: (a) files a petition or otherwise
commences, authorizes or acquiesces in the commencement of a proceeding or cause of action
under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or
commenced against it that is not dismissed within 60 days; (b) makes an assignment or any
general arrangement for the benefit of creditors; (c) otherwise becomes bankrupt or insolvent
(however evidenced); (d) has a liquidator, administrator, receiver, trustee, conservator or similar
official appointed with respect to it or any substantial portion of its property or assets; or (e) Is
generally unable to pay its debts as they fall due.
“Business Day” means any day except a Saturday, Sunday or federal holiday.
“Effective Date” has the meaning set forth in the introductory paragraph of this
Agreement.
“Emergency” means an event occurring at any Site, or any adjoining property, that (a)
poses actual or imminent risk of (i) serious personal injury, or (ii) material physical damage to
the System, and (b) requiring, in the good faith determination of Operator or Owner, immediate
preventative or remedial action.
B - 1
“Event of Default” shall have the meaning set forth in Article VII.
“Force Majeure” means any occurrence that was not anticipated as of the Effective Date
that: (a) in whole or in part: (i) delays a Party’s performance under this Agreement; (ii) causes a
Party to be unable to perform its obligations; or (iii) prevents a Party from complying with or
satisfying the conditions of this Agreement; (b) is not within the control of that Party; and (c) the
Party has been unable to overcome by the exercise of due diligence, including an act of God,
flood, drought, earthquake, storm, fire, pestilence, lightning and other natural catastrophes,
epidemic, war, riot, civil disturbance or disobedience, terrorism, sabotage, strike or labor dispute,
or actions or inactions of any Governmental Authority.
“Governmental Authority” means any international, federal, state, local or municipal
government, governmental department, commission, board, bureau, agency, or instrumentality,
or any judicial, regulatory or administrative body, having jurisdiction as to the matter in
question.
“Hazardous Materials” means (a) hazardous substances, as defined by the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.O. Section
9601 et seq.; (b) hazardous wastes, as defined in by the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq.; (c) petroleum and petroleum products; (d) any radioactive
material, including, without limitation, any source, special nuclear or by-product material as
defined in 42 U.S.C. Section 2011 et seq.; (e) asbestos in any form or conditions; (f)
polychlorinated biphenyls; (g) any other material, substance or waste to which liability or
standards of conduct can be imposed under any Law related to protection, preservation or
conservation of the environment and public or worker health and safety, including, but not
limited to applicable state and local statutes, rules and regulation; and (h) all materials defined as
“Hazardous Materials”, or “Hazardous Substances.”
“Law” or “Laws” means any statute, law, treaty, convention, rule, regulation, ordinance,
code, permit, enactment, injunction, order, writ, decision, authorization, judgment, decree or
other legal or regulatory determination or restriction issued, adopted, administered or
implemented by a court or Governmental Authority, including any of the foregoing that are
enacted, amended, or issued after the Effective Date; or any binding interpretation of the
foregoing.
“Notice” shall have the meaning set forth in Article X.
“Operator” shall have the meaning given thereto in the introductory paragraph of this
Agreement, and its successors and permitted assigns, if any.
“Owner” shall have the meaning given thereto in the introductory paragraph of the
Agreement, and its permitted successors and assigns, if any.
“Person” means an individual, partnership, joint venture, corporation, limited liability
company, trust, association or unincorporated organization, or any Governmental Authority.
“Replacement Components” shall have the meaning set forth in Section 3.04.
B - 2
“Services” shall have the meaning set forth in Section 3.01.
“Site” shall have the meaning set forth in the Recitals hereto.
“Subcontractors” means any subcontractor, of any tier, or supplier of services to Operator
or any subcontractor, of any tier that has executed a contract with Owner to perform Services set
forth this Agreement.
“System” shall have the meaning set forth in the Recitals hereto.
“System Monitoring Equipment” shall have the meaning set forth in Section 3.07.
“Term” shall have the meaning set forth in Article II.
B - 3
EXHIBIT C
SERVICES
During the Term, and for the Annual Fees, Operator shall perform the following services
on the System:
Background
The System will be installed with an Internet-based Data Acquisition System (DAS). The DAS
will have the capability to send alarms identifying low power to remote locations.
Description of Work Frequency
Remote System Monitoring 24 hours / 7 days per week
On-Call System Service Technician Per request
Electrical Inspection One time per year
Scope of Work
1. System Monitoring and On-call Service Technician
a. Provide remote monitoring of System operations via Internet connection.
Track changes and respond to power outages within three business days.
b. If necessary and reasonably appropriate as a solution to a low power
alarm, a service technician will be required to visit the Site or determine
an action plan to troubleshoot and resolve the issue within two business
days of an alarm to identify the cause.
2. Electrical Inspection & Maintenance:
a. Electrical Maintenance
The technician will:
i. Perform a visual inspection of PV modules and array wiring,
strain relief, mounting system, trackers, inverters, switchgear,
transformers, combiner boxes, wireways and conduit, protection
devices, data acquisition system, weather sensors and outdoor
lighting.
ii. Perform vegetation management around array and equipment pad
or make recommendations to host for vegetation removal.
iii. Check pyranometers and reference cells
C - 1
iv. Record operational data from inverters and meters
b. External and/or Internal DC Disconnects and Combiner Boxes
During the inspection, the technician will:
i. Ensure that Imp testing is performed on all DC strings.
ii. Tighten loose electrical connections in combiner boxes, switchgear
and inverters.
c. Inverter and Transformer
The technician will:
i. Clean out all electrical enclosures
ii. Clean inverter air filters
iv. Perform visual inspection of security and equipment fences.
v. Perform Preventive Maintenance on the inverter(s) as required to
maintain inverter manufacturer’s warranty.
d. AC Disconnect
i. The technician will check for proper operation.
3. Preventive Maintenance, Troubleshooting, Repairs and Customer Service
a. Preventive Maintenance.
i. Operator shall perform all necessary preventive and corrective
maintenance on the System, which includes routine maintenance
adjustments, replacements, and electrical panel/transformer/
inverter cleaning (interior and exterior) with supporting
documentation delivered to Owner after the work has been
performed. Maintenance by Owner will ensure that all warranties,
particularly inverter warranties, are preserved. The frequency and
timing of panel wash-downs shall be determined by Operator
based on System monitoring data. Environmental sensors such as
pyranometers shall be tested and recalibrated at least once every
three (3) years.
ii. Operator’s routine System maintenance will include correction of
loose electrical connections, ground connections, replacement of
defective modules found during testing, and other minor
maintenance repair work.
C - 2
iii. Operator shall perform module cleaning at a frequency to be
determined by the ongoing monitoring of the System such that the
effect on production is no more than 5%, but not less often than
twice a year.
iv. Operator shall perform routine DAS maintenance to include sensor
calibration and data integrity check.
b. Troubleshooting and Repairs.
i. Operator will dispatch field service resources within two business
days of notification (via automated or manual means) for repairs as
necessary to maintain System performance.
ii. Operator shall complete any corrective action required to restore
the System to fully operational status within 24 hours of the
service resources arriving on-site.
iii. Major system repairs, not to include mid-voltage switchgear or
transformers.
c. Customer Service Support.
i. Operator will provide Owner with a support telephone number for
Owner to ask questions and report issues.
ii. Operator’s support line will be staffed during operational hours
from 8:00 a.m. to 6:00 p.m. Pacific Standard Time (“Business
Hours”). During times outside of Business Hours, Emergency
calls will be routed to a supervisor for immediate action.
C - 3
EXHIBIT D
EXCLUDED SERVICES
1. Any installation of additional monitoring equipment that may be required if site
conditions change for reasons beyond Operator’s control. Specifically, interference from
additions or repairs to the premises after the start of the Term.
2. Parts or equipment that were not specified in the Master Engineering, Procurement and
Construction Agreement entered into by the Parties, and installed by Operator or its
Subcontractors.
3. In the event that any manufacturer of materials, equipment or similar items relating to the
System is not able or willing to honor its product warranty to owner, Operator shall not
be responsible for the costs of any such manufacturer’s components.
E - 1
EXHIBIT E
SYSTEM MONITORING EQUIPMENT
A revenue grade monitoring system will be used to provide the actual kWh production data from
the System. On an annual basis the monitoring system will be tested by Operator at its sole cost
and expense to verify that it is operating as intended. Automatic e-mail alerts will be setup at the
time of System commissioning, which will send alerts if the System goes offline at any time for
any reason. Owner will be notified of alerts and Operator will acknowledge the alerts and
respond with a reason for the alert or an action plan to continue to monitor for changes or
troubleshoot the problem.
E - 1
[EXHIBIT F
LABOR RATES
Hourly rate regular business hours (7:00AM – 4:00PM Monday-Friday): $110
Hourly rate off hours: $140
Hourly rate Sundays & Holidays: TBD
All visits a minimum of 4 hours including travel]