AGREEMENT FOR DESIGN, INSTALLATION AND COMMISSIONING OF SOLAR/PHOTOVOLTAIC SYSTEM

(Energy Services Agreement)

This Agreement for Design, Installation and Commissioning of Solar/Photovoltaic System

(“Agreement” or “Energy Services Agreement” or “ESA”)) is made as of August 10, 2011, (the “Effective

Date”) between the Ohlone Community College District (“District”) and Borrego Solar Systems, Inc.

(“Design-Builder”) (together, “Parties”).

1. Services. Design-Builder shall furnish to the District the labor, equipment, material, and services as described in Exhibits “A-1” and “A-2” attached hereto and incorporated herein by this reference (“Services” or “Work”).

2. Term. Design-Builder shall commence providing services under this Agreement upon execution of the Agreement by both parties, and will diligently perform such Services as required and will achieve final completion of the photovoltaic system located at District’s Fremont campus (“Fremont System Final Completion Date”) and final completion of the photovoltaic system located at District’s Newark campus (“Newark System Final Completion Date”) no later than three hundred and twenty (314) days and three hundred and eighty (380) days, respectively, after the Effective Date, provided that such time periods shall be extended on a day for day basis for any excusable delay or delay in receipt of critical path item as set forth in Exhibit A-3. Final Completion Date for each photovoltaic system means that each of the following has been achieved in accordance with Prudent Industry Practices and the other requirements of the Contract Documents:

(A) Achievement of Mechanical Completion and all conditions thereto continue to be satisfied;

(B) All of the electrical works and all other infrastructure necessary to achieve connection of the System to the Utility’s electricity transmission system are fully energized;

(C) Successful testing of all systems comprising the System in accordance with the requirements of the Agreement; and

(D) The System is capable of operating safely in accordance with Prudent Industry Practices and all applicable Laws.

3. Liquidated Damages. Time is of the essence for all Work under this Agreement. It is hereby understood and agreed that it is and will be difficult and/or impossible to ascertain and determine the actual damage that the District will sustain in the event of and by reason of Contractor's delay; therefore, Design-Builder agrees that it shall pay to the District the sum of ONE THOUSAND DOLLARS ($1,000) per day per site as liquidated damages for each and every day’s delay beyond the applicable Final Completion Date that Final Completion is not achieved.

It is hereby understood and agreed that this amount is not a penalty.

In the event any portion of the liquidated damages is not paid to the District, the District may deduct that amount from any money due or that may become due the Design-Builder under this Agreement, the District may seek recovery of Liquidated Damages from the Respondent’s Performance Bond Surety and/or the District may seek recovery of Liquidated Damages from the Respondent or the Performance Bond Surety without having exhausted remedies against the other.

4. Submittal of Documents. Design-Builder shall not commence the Work under this Agreement until the Design-Builder has submitted and the District has approved the performance bond, payment (labor and material) bond, the certificate(s) and affidavit(s), and the endorsement(s) of insurance required as indicated below:

� Signed Agreement

____ Proposal

� Notice to Proceed

____ Terms and Conditions to Contract

� Noncollusion Affidavit

� Prevailing Wage Certification

� Workers’ Compensation Certification

� Drug-Free Workplace Certification

� Asbestos & Other Hazardous Materials

Certification

� Insurance Certificates and Endorsements

� Performance Bond

� Payment Bond

____ Specifications

____ Plans

� Exhibit “A-1” (“System Description”)

� Exhibit “A-2” (“Scope of Work”)

� Exhibit “A-3” (“Schedule”)

� Exhibit “A-4” (“Change in Scope of Work”)

� Exhibit “B” (“System Design Drawings”)

� Exhibit “C” (“Executive Summary and

Drawings”)

� Exhibit “D” (“O&M Agreement”)

� Exhibit “E” (“Output Guarantee”)

� Exhibit “F” Warranties

A Schedule of Values shall be presented to the District for approval within 30 days after execution of

the Agreement.

5. Compensation. As compensation for the Work, the District shall pay to the Design-Builder Six Million, Three Hundred Twenty-Three Thousand, Five Hundred Eighty and NO/100 Dollars ($6,323,580.00) for the Fremont System and Nine Million, Five Hundred Thirty Two Thousand, Four Hundred Ninety Six and NO/100 Dollars ($9,532,496.00) for the Newark System (total fees, costs, and expenses cumulatively referred to herein as “Construction Price”) as set forth in Exhibit C (“Executive Summary and Drawings”). Exhibit C contains prices and layout drawings for various system designs as well as separate prices for O&M services and the Output Guarantees. The Construction Price is based on the Primary designs as listed in Exhibit C (excluding the prices for O&M services and Output Guarantees).

The District has the option of selecting Alternate system designs and the price of these Alternate system designs are provided in Exhibit C. Design-Builder agrees to keep all prices listed in Exhibit C open for 90 days after the Effective Date. The Parties acknowledge and agree that to the extent that the District selects and directs Design-Builder to commence work on the Primary designs and subsequently decides to request that Design-Builder to use an Alternate design, District shall pay Design-Builder for the non-transferable work done based on the initially selected design.

6. Community College League of California Payment Obligation. The Parties acknowledge that the District has enlisted the assistance of the Community College League of California (“CCLC”) in undertaking and managing the solar PV procurement process that has resulted in this Agreement, and that the District’s Request for Proposals (“RFP”) resulting in this Agreement instructed each Respondent to this RFP, including Design-Builder, to indicate its agreement to making a payment to CCLC in the amount of 1.0% of the total amount of contract payments by the District to the Design-Builder, inclusive of any Alternate Item costs as well as costs associated with operations and maintenance and/or output guarantee agreements that may be executed between the District and the Design-Builder in connection with the Systems. Design-Builder therefore shall make payment to CCLC in the amount of $163,057.24, which is equal to 1.0% of the System Total amounts shown in

Exhibit C for Systems A and B. Such payment shall be made directly to CCLC by the Design-Builder and shall be made in full at the time that the District makes its first payment to Design-Builder. Payment shall be sent to the attention of CCLC’s Vice President, Kimi Shigetani, to the following address: Community College League of California, 2017 O Street, Sacramento, CA 95811-5211. Ms. Shigetani may be contacted at (916) 444-8641.

7. Expenses. District shall not be liable to Design-Builder for any costs or expenses paid or incurred by Design-Builder in performing services for District.

8. Payment. On a monthly basis, Design-Builder shall submit an application for payment based upon the estimated value for materials delivered or services performed under the Agreement as of the date of submission (“Application for Payment”). Within thirty (30) days after District’s approval of the Application for Payment, Design-Builder shall be paid a sum equal to ninety percent (90%) of the value of the Work performed (as verified by District’s designated representative and Inspector and certified by Design-Builder) up to the last day of the previous month, less the aggregate of previous payments and amount to be withheld. The District may deduct from any payment an amount necessary to protect the District from loss because of: (1) any sums expended by the District in performing any of Design-Builder’s obligations under the Agreement which Design-Builder has failed to perform or has performed inadequately; (2) defective Work not remedied; (3) stop notices as allowed by state law; (4) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract price or by the scheduled completion date; (5) unsatisfactory prosecution of the Work by Design-Builder; (6) unauthorized deviations from the Agreement; (7) failure of the Design-Builder to maintain or submit on a timely basis proper and sufficient documentation as required by the Agreement or by District during the prosecution of the Work; (8) erroneous or false estimates by the Design-Builder of the value of the Work performed; (9) any sums representing expenses, losses, or damages, as determined by the District, incurred by the District for which Design-Builder is liable under the Contract; and (10) any other sums which the District is entitled to recover from Design-Builder under the terms of the Agreement or pursuant to state law, including section 1727 of the California Labor Code. The failure by the District to deduct any of these sums from a progress payment shall not constitute a waiver of the District’s right to such sums. The District shall retain 10% from all amounts owing as retention. Retention shall be paid pursuant to Public Contract Code sections 7107 and 7200.

9. Independent Contractor. Design-Builder, in the performance of this Agreement, shall be and act as an independent contractor. Design-Builder understands and agrees that he/she and all of his/her employees shall not be considered officers, employees, agents, partner, or joint venture of the District, and are not entitled to benefits of any kind or nature normally provided employees of the District and/or to which District's employees are normally entitled, including, but not limited to, State Unemployment Compensation or Worker's Compensation. Design-Builder shall assume full responsibility for payment of all federal, state and local taxes or contributions, including unemployment insurance, social security and income taxes with respect to Design-Builder's employees. Design-Builder shall be liable for its own actions, including its negligence or gross negligence, and shall be liable for the acts, omissions, or errors of its agents or employees.

10. Standard of Care. Design-Builder's Services will be performed, findings obtained, reports and recommendations prepared in accordance with generally and currently accepted principles and practices of Solar Practices and all Applicable Law, including the applicable provisions of California Code of Regulations, Title 24 and the District’s Design Guides and Technical Specifications. Design-Builder represents and warrants that it is fully experienced in projects of the nature and scope of Work, and that it is properly qualified, licensed and equipped to supply and perform the Work. The Work completed herein must meet the approval of the District and shall be subject to the District’s general right of inspection and supervision to secure the satisfactory completion thereof.

11. Originality of Services. Design-Builder agrees that all technologies, formulae, procedures, processes, methods, writings, ideas, dialogue, compositions, recordings, teleplays and video productions prepared for, written for, or submitted to the District and/or used in connection with this Agreement, shall be wholly original to Design-Builder and shall not be copied in whole or in part from any other source, except that submitted to Design-Builder by District as a basis for such services.

12. Copyright/Trademark/Patent. Design-Builder understands and agrees that all matters produced under this Agreement shall become the property of District and cannot be used without District's express written permission. District shall have all right, title and interest in said matters, including the right to secure and maintain the copyright, trademark and/or patent of said matter in the name of the District. Design-Builder consents to use of Design-Builder's name in conjunction with the sale, use, performance and distribution of the matters, for any purpose and in any medium.

13. Notice to Proceed. After the design of the PV system is approved by the District, the District shall provide a Notice to Proceed to Design-Builder at which time Design-Builder shall proceed with the construction Work.

14. Site Examination. Design-Builder has examined the Site and certifies that it accepts all measurements, specifications and conditions affecting the Work to be performed at the Site. By submitting its quote, Design-Builder warrants that it has made all Site examination(s) that it deems necessary as to the condition of the Site, its accessibility for materials, workers and utilities, and Design-Builder’s ability to protect existing surface and subsurface improvements. No claim for allowance of time or money will be allowed as to any other undiscovered condition on the Site.

15. Materials. Design-Builder shall furnish, at his/her own expense, all labor, materials, equipment, supplies and other items necessary to complete the services to be provided pursuant to this Agreement.

15.1. Anti-Trust Claim. Design-Builder and its subcontractor(s) agree to assign to the District all rights, title, and interest in and to all causes of action they may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the Contract or a subcontract. This assignment shall be made and become effective at the time the District tenders final payment to the Design-Builder, without further acknowledgment by the parties.

15.2. Substitutions. No substitutions of material from those specified in the Work Specifications shall be made without the prior written approval of the District.

16. Equipment and Labor. Design-Builder shall furnish all tools, equipment, apparatus, facilities, transportation, labor, and material necessary to furnish the services herein described, the services to be performed at such times and places as directed by and subject to the approval of the authorized District representative indicated in the Work specifications attached hereto.

17. Warranty/Quality. Unless a longer warranty is called for elsewhere in this Agreement, the Design-Builder, manufacturer, or their assigned agents shall guarantee the workmanship, product or service performed against defective workmanship, defects or failures of materials for a minimum period of one (1) year from filing the Notice of Completion with the county in which the Site is located. All workmanship and merchandise must be warranted to be in compliance with applicable California energy, conservation, environmental, and educational standards.

17.1. Any warranties required to qualify the Systems for CSI incentives, whether or not the System has a CSI Reservation.

17.2. PV modules used in this project shall have a 25-year product warranty from the date of sale.

17.3. Power Conditioning Equipment, including inverter(s), shall have a 10-year minimum product warranty from the date of sale.

18. Correction of Errors. Design-Builder shall perform, at its own cost and expense and without reimbursement from the District, any work necessary to correct errors or omissions which are caused by the Design-Builder’s failure to comply with the standard of care required herein.

19. Trench Shoring. If this Contract is in excess of $25,000 and is for the excavation of any trench deeper than five (5) feet, Design-Builder must submit and obtain District acceptance, in advance of excavation, of a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench

or trenches. If the plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.

20. Excavations Over Four Feet. If this Contract includes excavations over four (4) feet, Design-Builder shall promptly, and before the following conditions are disturbed, notify the District, in writing, of any: (1) Material that the Design-Builder believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) Subsurface or latent physical conditions at the site differing from those indicated; or (3) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. The District shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the Design-Builder's cost of, or the time required for, performance of any part of the Work shall issue a change order under the procedures described in the Contract. In the event that a dispute arises between the District and the Design-Builder whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Design-Builder's cost of, or time required for, performance of any part of the work, the Design-Builder shall not be excused from any scheduled completion date provided for by the contract, but shall proceed with all Work to be performed under the contract. Design-Builder shall retain any and all rights provided either by Contract or by law which pertain to the resolution of disputes and protests between the contracting parties.

21. Lead-Based Paint. Pursuant to the Lead-Safe Schools Protection Act (Education Code Section 32240 et seq.) and other applicable law, no lead-based paint, lead plumbing and solders, or other potential sources of lead contamination shall be utilized on this Project, and only trained and state-certified contractors, inspectors and workers shall undertake any action to abate existing risk factors for lead. Design-Builder must execute the Lead-Based Paint Certification, if applicable.

22. Change in Scope of Work. Any change in the scope of the Work, method of performance, nature of materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition, or deletion is approved in advance and in writing by a valid change order executed by the District. Design-Builder specifically understands, acknowledges, and agrees that the District shall have the right to request any alterations, deviations, reductions, or additions to the Project or Work, and the cost thereof shall be added to or deducted from the amount of the Contract Price by fair and reasonable valuations. Design-Builder also agrees to provide the District with all information requested to substantiate the cost of the change order and to inform the District whether the Work will be done by the Design-Builder or a subcontractor. In addition to any other information requested, Design-Builder shall submit, prior to approval of the change order, its request for a time extension (if any), as well as all information necessary to substantiate its belief that such change will delay the completion of the Work. If Design-Builder fails to submit its request for a time extension or the necessary supporting information, it shall be deemed to have waived its right to request such extension. For all approved changes in the scope of work that result in a net increase in costs to Design-Builder, District shall pay Design-Builder for its costs pursuant to the terms set forth in Exhibit A-4.

23. Workers. Design-Builder shall at all times enforce strict discipline and good order among its employees and the employees of its subcontractors and shall not employ or work any unfit person or anyone not skilled in work assigned to him or her. The District may evaluate the Design-Builder in any manner which is permissible under the law. Any person in the employ of the Design-Builder or a subcontractor whom the District may deem incompetent or unfit shall be dismissed from the Site and shall not again be employed at Site without written consent from the District.

24. Design-Builder Supervision. Design-Builder shall provide competent supervision of personnel employed on the job Site, use of equipment, and quality of workmanship.

25. Safety and Security. Design-Builder is responsible for maintaining safety in the performance of this Agreement. Design-Builder shall be responsible to ascertain from the District the rules and regulations pertaining to safety, security, and driving on school grounds, particularly when children are present.

26. Clean Up. Debris shall be removed from the Premises. The Site shall be in order at all times when work is not actually being performed and shall be maintained in a reasonably clean condition.

27. Access to Work. District representatives shall at all times have access to the Work wherever it is in preparation or in progress. Design-Builder shall provide safe and proper facilities for such access.

28. Protection of Work and Property. Design-Builder shall erect and properly maintain at all times, as required by conditions and progress of the Work, all necessary safeguards, signs, barriers, lights, and security persons for protection of workers and the public, and shall post danger signs warning against hazards created by the Work. In an emergency affecting life and safety of life or of Work or of adjoining property, Design-Builder, without special instruction or authorization from District, is permitted to act at his discretion to prevent such threatened loss or injury.

29. Occupancy. District reserves the right to occupy buildings at any time before formal Contract completion and such occupancy shall not constitute final acceptance or approval of any part of the Work covered by this Contract, nor shall such occupancy extend the date specified for completion of the Work.

30. Force Majeure. Design-Builder shall be excused from performance hereunder during the time and to the extent that it is prevented from obtaining delivery, or performing by act of God, fire, strike, loss, or shortage of transportation facilities, lock-out, commandeering of materials, product, plant, or facilities by the government, or other events beyond Design-Builder’s reasonable control which Design-Builder has been unable to overcome through the exercise of all commercially reasonable efforts (“Force Majeure Event”) when satisfactory evidence thereof is presented to the District, provided that it is satisfactorily established that the non-performance is not due to the fault or neglect of the Design-Builder or the failure of Design-Builder to exercise due diligence.

31. Termination.

31.1. Without Cause by District. District may, at any time, with or without reason, terminate this Agreement and compensate Design-Builder only for services satisfactorily rendered to the date of termination. Written notice by District shall be sufficient to stop further performance of services by Design-Builder. Notice shall be deemed given when received by the Design-Builder or no later than three days after the day of mailing, whichever is sooner. In the event that District terminates this Agreement pursuant to this section, District shall compensate Design-Builder for work completed to date as a pro-rata amount of the full fees, costs, and expenses.

31.2. Without Cause by Design-Builder. Design-Builder may, upon thirty (30) days notice, with or without reason, terminate this Agreement. Upon this termination, District shall only be obligated to compensate Design-Builder for services satisfactorily rendered to the date of termination. Written notice by Design-Builder shall be sufficient to stop further performance of services to District. Design-Builder acknowledges that this thirty (30) day notice period is acceptable so that the District can attempt to procure the Services from another source.

31.3. With Cause by District. District may terminate this Agreement upon giving of written notice of intention to terminate for cause. Cause shall include:

31.3.1. material violation of this Agreement by the Design-Builder; or

31.3.2. any act by Design-Builder exposing the District to liability to others for personal injury or property damage; or

31.3.3. Design-Builder is adjudged a bankrupt, Design-Builder makes a general assignment for the benefit of creditors or a receiver is appointed on account of Design-Builder's insolvency.

Written notice by District shall contain the reasons for such intention to terminate and unless

within five (5) calendar days after that notice the condition or violation shall cease, or

satisfactory arrangements for the correction thereof be made, this Agreement shall upon the

expiration of the five (5) calendar days cease and terminate. In the event of this termination,

the District may secure the required services from another Design-Builder. If the expense,

fees, and costs to the District exceed the cost of providing the service pursuant to this

Agreement, Design-Builder shall immediately pay the excess expense, fees, and/or costs to

the District upon the receipt of the District’s notice of these expense, fees, and/or costs. The

foregoing provisions are in addition to and not a limitation of any other rights or remedies

available to District.

31.4. Upon termination, Design-Builder shall provide the District with all documents produced maintained or collected by Design-Builder pursuant to this Agreement, whether or not such documents are final or draft documents.

32. Indemnification. To the furthest extent permitted by California law, Design-Builder shall, at its sole expense, defend, indemnify, and hold harmless the District, the State of California, and their agents, representatives, officers, consultants, employees, trustees, and volunteers (the “indemnified parties”) from any and all demands, losses, liabilities, claims, suits, and actions (the “claims”) of any kind, nature, and description, including, but not limited to, personal injury, death, property damage, and consultants and/or attorneys’ fees and costs, directly or indirectly arising out of, connected with, or resulting from the performance of the Agreement or from any activity, work, or thing done, permitted, or suffered by the Design-Builder under or in conjunction with this Agreement, unless the claims are caused wholly by the sole negligence or willful misconduct of the indemnified parties. The District shall have the right to accept or reject any legal representation that Design-Builder proposes to defend the indemnified parties.

33. Insurance.

33.1. The Design-Builder shall procure and maintain at all times it performs any portion of the Services the following insurance:

33.1.1. General Liability. Two Million Dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage in the form of Comprehensive General Liability and Contractual Liability. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to each project/location or the general aggregate limit shall be twice the required occurrence limit.

33.1.2. Automobile Liability Insurance. One Million Dollars ($1,000,000) combined single limit per occurrence for any automobile that shall protect the Design-Builder and the District from all claims of bodily injury, property damage, personal injury, death, and medical payments arising performing any portion of the Services by Design-Builder.

33.1.3. Workers’ Compensation and Employers’ Liability Insurance. For all of the Design-Builder’s employees who are subject to this Agreement and to the extent required by the applicable state or federal law, Design-Builder shall keep in full force and effect, a Workers' Compensation policy. That policy shall provide employers' liability coverage with minimum liability coverage of One Million Dollars ($1,000,000) per accident for bodily injury or disease. Design-Builder shall provide an endorsement that the insurer waives the right of subrogation against the District and its respective elected officials, officers, employees, agents, representatives, consultants, trustees, and volunteers.

33.1.4. Professional Liability (Errors and Omissions). One Million Dollars ($1,000,000) for errors and omissions as appropriate to profession of engineer designing photovoltaic system.

33.1.5. Builder's Risk Insurance. On a replacement cost value basis, Design-Builder shall procure and maintain, during the life of this Agreement, Builder’s Risk (Course of Construction), or similar first party property coverage to insure against all risks of accidental physical loss and shall include without limitation the perils of vandalism and/or malicious mischief (both without any limitation regarding vacancy or occupancy), sprinkler leakage, civil authority, theft, sonic disturbance, earthquake, flood, collapse, wind, fire,

war, terrorism, lightning, smoke, and rioting. Coverage shall include debris removal, demolition, increased costs due to enforcement of all applicable ordinances and/or laws in the repair and replacement of damaged and undamaged portions of the property, and reasonable costs for engineering services and expenses required as a result of any insured loss upon the Work and Project, including completed Work and Work in progress, to the full insurable value thereof.

33.1.6. Umbrella or Excess Liability. Four Million Dollars ($4,000,000) per occurrence to meet the policy limit requirements of the required policies if Design-Builder’s underlying policy limits are less than required. There shall be no gap between the per occurrence amount of any underlying policy and the start of the coverage under the Umbrella Liability Insurance Policy. Any Umbrella Liability Insurance Policy shall protect Design-Builder, District, State, and Project Manager(s) in amounts, and that complies with all requirements for Commercial General Liability and Automobile Liability and Employers’ Liability Insurance.

33.1.7. Other Insurance Provisions: The policies are to contain, or be endorsed to contain, the following provisions:

32.1.7.1. For the general liability and automobile liability policies:

32.1.7.1.1. The District, its representatives, consultants, trustees, officers, officials, employees, agents, and volunteers (“Additional Insureds”) are to be covered as additional insureds as respects liability arising out of activities performed by or on behalf of Design-Builder; instruments of Service and completed operations of the Design-Builder; premises owned, occupied or used by Design-Builder; or automobiles owned, leased, hired or borrowed by Design-Builder. The coverage shall contain no special limitations on the scope of protection afforded to the Additional Insureds.

32.1.7.1.2. For any claims related to the projects, Design-Builder’s insurance coverage shall be primary insurance as respects the Additional Insureds. Any insurance or self-insurance maintained by the Additional Insureds shall be in excess of the Design-Builder’s insurance and shall not contribute with it.

32.1.7.1.3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the Additional Insureds.

32.1.7.2. Design-Builder’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

32.1.7.3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the District.

32.1.7.4. Design-Builder shall furnish the District with Certificates of Insurance showing maintenance of the required insurance coverage and original endorsements affecting coverage. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the District before Work commences.

32.1.8. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the District.

34. Payment Bond and Performance Bond. Design-Builder shall not commence the Work until it has provided to the District, in a form acceptable to the District, a Payment (Labor and Material) Bond and a Performance Bond, each in an amount equivalent to 100 percent of the Construction Price issued by a surety admitted to issue bonds in the State of California and otherwise acceptable to the District.

35. Permits and Licenses. Design-Builder and all Design-Builder's employees or agents shall secure and maintain in force, at Design-Builder’s sole cost and expense, such permits and licenses as are required by law in connection with the furnishing of materials, supplies, or services pursuant to this Agreement.

36. Assignment. The rights, burdens, duties, or obligations of Design-Builder pursuant to this Agreement shall not be assigned by the Design-Builder without the prior written consent of the District.

37. Subcontractors. Electrical, grading, and fencing subcontractors engaged by the Design-Builder for any Service or Work under this Agreement shall be subject to the approval of the District. Design-Builder agrees to bind every subcontractor by the terms of the Agreement as far as such terms are applicable to subcontractor’s work, including, without limitation, all indemnification, insurance, bond, and warranty requirements. If Design-Builder shall subcontract any part of this Agreement, Design-Builder shall be fully responsible to the District for acts and omissions of its subcontractor and of persons either directly or indirectly employed by itself. Nothing contained in this Agreement shall create any contractual relations between any subcontractor and the District.

38. Compliance with Laws. Design-Builder shall observe and comply with all rules and regulations of the governing board of the District and all federal, state, and local laws, ordinances and regulations. Design-Builder shall give all notices required by any law, ordinance, rule and regulation bearing on conduct of the Work as indicated or specified. If Design-Builder observes that any of the Work required by this Agreement is at variance with any such laws, ordinance, rules or regulations, Design-Builder shall notify the District, in writing, and, at the sole option of the District, any necessary changes to the scope of the Work shall be made and this Agreement shall be appropriately amended in writing, or this Agreement shall be terminated effective upon Design-Builder’s receipt of a written termination notice from the District. If Design-Builder performs any work that is in violation of any laws, ordinances, rules or regulations, without first notifying the District of the violation, Design-Builder shall bear all costs arising therefrom.

38.1. Design-Builder hereby acknowledges that the Project Manager(s), the Project Inspector(s), and the Division of the State Architect have authority to approve and/or stop Work if the Design-Builder’s Work does not comply with the requirements of the Contract Documents, Title 24 of the California Code of Regulations, and all applicable laws. Design-Builder shall be liable for any delay caused by its non-compliant Work.

38.2. Labor Code Requirements. Design-Builder shall comply with all applicable provisions of the California Labor Code, Division 3, Part 7, Chapter 1, Articles 1-5, including, without limitation, the payment of the general prevailing per diem wage rates for public work projects of more than one thousand dollars ($1,000). Copies of the prevailing rate of per diem wages are on file with the District. In addition, the Design-Builder and each subcontractor shall comply with Chapter 1 of Division 2, Part 7 of the California Labor Code, beginning with Section 1720, and including Section 1735, 1777.5 and 1777.6, forbidding discrimination, and Sections 1776, 1777.5 and 1777.6 concerning the employment of apprentices by Design-Builder or subcontractors. Willful failure to comply may result in penalties, including loss of the right to bid on or receive public works contracts.

39. Certified Payroll Records: Design-Builder and its subcontractor(s) shall keep accurate certified payroll records of employees and shall make them available to the District immediately upon request.

40. Audit. Design-Builder shall establish and maintain books, records, and systems of account, in accordance with generally accepted accounting principles, reflecting all business operations of Design-Builder transacted under this Agreement. Design-Builder shall retain these books, records, and systems of account during the Term of this Agreement and for three (3) years thereafter. Design-Builder shall permit the District, its agent, other representatives, or an independent auditor to audit,

examine, and make excerpts, copies, and transcripts from all books and records, and to make audit(s) of all billing statements, invoices, records, and other data related to the Services covered by this Agreement. Audit(s) may be performed at any time, provided that the District shall give reasonable prior notice to Design-Builder and shall conduct audit(s) during Design-Builder’s normal business hours, unless Design-Builder otherwise consents.

41. Anti-Discrimination. It is the policy of the District that in connection with all work performed under contracts there be no discrimination against any employee engaged in the work because of race, color, ancestry, national origin, religious creed, physical disability, medical condition, marital status, sexual orientation, gender, or age and therefore the Design-Builder agrees to comply with applicable Federal and California laws including, but not limited to the California Fair Employment and Housing Act beginning with Government Code Section 12900 and Labor Code Section 1735. In addition, the Design-Builder agrees to require like compliance by all its subcontractors.

42. Limitation of District Liability. Other than as provided in this Agreement, District’s financial obligations under this Agreement shall be limited to the payment of the compensation provided in this Agreement. Notwithstanding any other provision of this Agreement, in no event, shall District be liable, regardless of whether any claim is based on contract or tort, for any special, consequential, indirect or incidental damages, including, but not limited to, lost profits or revenue, arising out of or in connection with this Agreement for the services performed in connection with this Agreement.

43. Confidentiality. Design-Builder and all Design-Builder’s agents, personnel, employee(s), and/or subcontractor(s) shall maintain the confidentiality of all information received in the course of performing the Services to the extent allowed by law. This requirement to maintain confidentiality shall extend beyond the termination of this Agreement.

44. Publicity.

44.1. Press Releases: The Parties share a common desire to generate favorable publicity regarding the Systems and their association with them. The Parties agree that they will, from time to time, issue press releases regarding the Systems and that they will cooperate with each other in connection with the issuance of such releases including, without limitation, completed review of press releases proposed to be issued by the other Party by no later than ten (10) business days after submission by such other Party. Each Party agrees that it shall not issue any press release regarding the Systems without the prior consent of the other, and each Party agrees not to unduly withhold, condition or delay any such consent.

44.2. Information: Notwithstanding the foregoing, both Parties shall have the right to publish factual information related to the Systems on their websites (or the website of any Affiliate) and through other forms of electronic media. Such information may include, but is not limited to, the location of each Generating Facility, the name of the District and Design-Builder, and other features of such System.

45. Design-Builder’s Solar Industry Educational Offerings

45.1. Solar Installation Class and Curriculum: Borrego will deliver a fully developed, 10-week course on solar installation and integration. This curriculum is fully developed and has been vetted and taught at a local community college and will be suitable for campus credit. Borrego will provide a half day of teacher instruction to educate and train campus resources and stakeholders on solar specific methods of instruction.

45.2. Solar Site Tours: Borrego will provide at least one site tour of the solar facilities on a semester basis. The tour will take into account student safety and not interfere with DSA permitting or approvals. Site tours will highlight the many issues involved with solar development but will focus on the technical and construction aspects of the installation. A key objective of the tours will be to train local students and staff such that the tours can be replicated using campus resources.

45.3. Solar Seminar Series: Borrego will develop and deliver a four-part solar seminar series. Each seminar will focus on a to-be-determined aspect of solar technology and development. Possible topics include project economics, site selection and design, engineering issues, solar

policy, life cycle assessment, or others. Seminar will be delivered in partnership with a local Ohlone teaching resource to help match educational topics to existing curriculum. Students, faculty, staff, and local community members will have the opportunity to ask questions and learn about the valuable and visible resource that is on Ohlone’s campus.

45.4. Solar Internships: Borrego will endeavor to offer up to two internships for interested Ohlone CCD students at our local Oakland, CA office. The focus of the internship will be determined based on the student’s interest and area of educational focus along with the needs of Borrego. This will be a competitive process and Borrego reserves the right to select the most qualified students. A primary goal of this program will be to develop an ongoing internship program.

46. Disputes. In the event of a dispute between the parties as to performance of the Work, the interpretation of this Contract, or payment or nonpayment for work performed or not performed, the parties shall attempt to resolve the dispute by those procedures set forth in Public Contract Code section 20104, et seq., if applicable. Pending resolution of the dispute, Design-Builder agrees it will neither rescind the Contract nor stop the progress of the Work, but will allow determination by the court of the State of California, in the county in which the District’s administration office is located, having competent jurisdiction of the dispute.

All claims of over $375,000, which are outside the scope of Public Contract Code section 20104, et seq., may be determined by mediation if mutually agreeable, otherwise by litigation. The demand for mediation of any claim over $375,000 shall be made within a reasonable time after written notice of the dispute has been provided to the other party, but in no case longer than ninety (90) days after initial written notice, and the demand shall not be made later than the time of Design-Builder’s submission of the request for final payment.

If a claim, or any portion thereof, remains in dispute upon satisfaction of all applicable dispute resolution requirements, the Design-Builder shall comply with all claims presentation requirements as provided in Chapter 1 (commencing with section 900) and Chapter 2 (commencing with section 910) of Part 3 of Division 3.6 of Title 1 of Government Code as a condition precedent to the Design-Builder’s right to bring a civil action against the District. For purposes of those provisions, the running of the time within which a claim must be presented to the District shall be tolled from the time the claimant submits its written claim until the time the claim is denied, including any time utilized by any applicable meet and confer process.

47. Attorney Fees and Costs. Should litigation be necessary to enforce any terms or provisions of this Agreement, then each party shall bear its own litigation and collection expenses, witness fees, court costs, and attorney’s fees.

48. Notice. Any notice required or permitted to be given under this Agreement shall be deemed to have been given, served, and received if given in writing and either personally delivered or deposited in the United States mail, registered or certified mail, postage prepaid, return receipt required, or sent by overnight delivery service, or facsimile transmission, addressed as follows:

District

Ohlone Community College District 43600 Mission Boulevard Fremont, CA 95376 ATTN: Vice President, Office of Administrative

Services FAX: 510-659-6045

Design-Builder

Borrego Solar Systems, Inc. 5005 Texas Street Suite 400 San Diego, Ca. 92108 ATTN: Aaron Hall, President FAX: 619-871-7183

Any notice personally given or sent by facsimile transmission shall be effective upon receipt. Any

notice sent by overnight delivery service shall be effective the business day next following delivery

thereof to the overnight delivery service. Any notice given by mail shall be effective three (3) days

after deposit in the United States mail.

49. Governing Law. This Agreement shall be governed by and the rights, duties and obligations of the Parties shall be determined and enforced in accordance with the laws of the State of California. The Parties further agree that any action or proceeding brought to enforce the terms and conditions of this Agreement shall be maintained in county in which the District’s administrative offices are located.

50. Severability. If any term, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force and effect, and shall not be affected, impaired or invalidated in any way.

51. Waiver. The waiver by either party of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, condition, or any subsequent breach of the same or any other term, covenant, or condition herein contained.

52. Captions and Interpretations. Paragraph headings in this Agreement are used solely for convenience, and shall be wholly disregarded in the construction of this Agreement. No provision of this Agreement shall be interpreted for or against a party because that party of its legal representative drafted such provision, and this Agreement shall be construed as if jointly prepared by the Parties.

53. Incorporation of Recitals and Exhibits. The Recitals and each exhibit attached hereto are hereby incorporated herein by reference.

54. Cooperation. The Parties hereto hereby agree to execute all such other documents and to take all such other action as may be reasonably necessary to effect the purposes of this Agreement.

55. Binding Contract. This Agreement shall be binding upon the parties hereto and upon their successors and assigns, and shall inure to the benefit of said parties and their successors and assigns.

56. Authority to Bind Parties. Neither party in the performance of any and all duties under this Agreement, except as otherwise provided in this Agreement, has any authority to bind the other to any agreements or undertakings.

57. No Rights in Third Parties. This Agreement does not create any rights in, or inure to the benefit of, any third party except as expressly provided herein.

58. Signature Authority. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each Party has been properly authorized and empowered to enter into this Agreement.

59. Counterparts. This Agreement and all amendments to it may be executed in counterparts, each of which shall be deemed an original. A facsimile or electronic signature shall be deemed to be the equivalent of the actual original signature. All counterparts so executed shall constitute one document binding all the Parties hereto.

60. Provisions Required By Law Deemed Inserted. Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein and this Agreement shall be read and enforced as though it were included therein.

61. Entire Contract. This Agreement sets forth the entire contract between the parties hereto and fully supersedes any and all prior agreements, understanding, written or oral, between the parties hereto pertaining to the subject matter thereof. This Agreement may be modified only in writing upon mutual consent.

/ /

/ /

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date indicated below.

OHLONE COMMUNITY COLLEGE DISTRICT

Date: , 2011

By:

Print Name:

Print Title:

Address:

Telephone:

Facsimile:

E-Mail:

BORREGO SOLAR SYSTEMS, INC.

Date: , 2011

By:

Print Name:

Print Title:

License No.:

Address:

Telephone:

Facsimile:

E-Mail:

Information regarding Design-Builder:

Design-Builder:

License No.:

Address:

Telephone:

Facsimile:

E-Mail:

Type of Business Entity:

____ Individual

____ Sole Proprietorship

____ Partnership

____ Limited Partnership

__x__ Corporation, State: California

____ Limited Liability Company

____ Other:

_________________: Employer Identification and/or Social Security Number

NOTE: Title 26, Code of Federal

Regulations, sections 6041 and 6209,

require non-corporate recipients of

$600.00 or more to furnish their taxpayer

identification number to the payer. The

regulations also provide that a penalty

may be imposed for failure to furnish the

taxpayer identification number. In order to

comply with these regulations, the District

requires your federal tax identification

number or Social Security number,

whichever is applicable.

Exhibit A-1

System Description

Fremont System Description:

Module: Sanyo 215w or Equivalent

Racking Array Technologies or Equivalent

Inverter: Advanced Energy or Equivalent

Solar System Size: 998,400 PTC (AC-CEC) Watts

Description: The tracker shall be built with a structural vertical member of galvanized finish. The racking system shall be aluminum per the manufacturer requirements and design. All underground conduits will be PVC sch 40. All exposed conduits shall be GRS for the first ten feet above grade. There will be an eight foot chain link fence with a twenty foot double gate, with three (3) strands of barbed wire placed above the eight foot chain link fence. Design-Builder shall grade the site to balance with no expected export or import required. Design-Builder shall provide a swaddle blanket for ground cover with a weed killer sprayed to prevent growth. The inverters will be located on concrete equipment pad(s).

Newark System Description:

Module: Yingli 260w or Equivalent

Racking Array Technologies or Equivalent

Inverter: Satcon & Advanced Energy or Equivalent

Solar System Size: 1,139,540 PTC (AC-CEC) Watts

Description: The carport tracker shall be built with structural, rectangular, tube steel bolted at the beams and purlins for the tracker mechanism and have a galvanized finish. All bolts shall have a galvanized finish and cold galvanization for any welding joints. Structure will have clearances of ten (10) feet over parked cars and fourteen (14) feet in drive aisles. Columns shall have a twenty-four (24) inch above finish grade concrete base which shall have a sona-tube appearance with rock pocket patching only. We have included $91,203.70 for three hundred and four (304) forty-eight (48) inch weather proof fluorescent fixtures to provide 5 ft candles under the carport and 1 ft candles in aisle ways. Or, we can provide two hundred thirty (230) LED lighting for an addition of two hundred and thirty thousand dollars ($230,000 or $1000.00 for each fixture) minus the ($91,203.70) which would equal one hundred thirty eight thousand seven hundred and ninety six dollars and thirty cents ($138,796.30). All conduits in the first ten (10) feet above finished grade shall be GRS conduits. This will transition to EMT and steel fittings on exposed conduit. We have included twenty (20) electric charging stations, five (5) under each new structure, each valued at five thousand dollars ($5,000). Security cameras can be added for $6,500 each which would be internet based.

Exhibit A-2

Scope of Work

Fremont System Scope of Work:

1) Design and install 998.400 kW PTC (1109.4 kW DC) ground-mounted single-axis

tracking solar array as illustrated in Exhibit C Fremont Tracker drawing PV-1.1

(drawing is labeled “A” in the upper left-hand corner).

2) Inverters and disconnect switch

a) The inverter panel will be mounted next to the array field

3) Conduit

a) Conduit from the solar panels on the structures will be mounted on the exterior

of the structures and then underground to the inverter panel.

b) All trenching will be backfilled with slurry and capped with material matching the

original surface for all road crossings or parking lots. All other trenching will be

compacted to 90% with native materials.

4) District will allow the Design-Builder to use 50 amp 120/220 volt single phase

power during construction. The Design-Builder shall furnish and install all

equipment and materials for temporary power.

5) The lay down yard area during construction shall be limited to a mutually agreed

upon area by both Design-Builder and District, provided that such mutually agreed

upon lay down yard area is large enough to provide adequate space required to

efficiently and cost-effectively stage required equipment and materials. All

deliveries and construction activities shall be coordinated with District to minimize

conflict with operations. The construction work area and lay down yard shall be

cleaned at the end of each work area as needed to minimize interference with

District access and operations.

6) The Design-Builder and its employees and sub-contractors will limit their access

and activities to their work area. The Design-Builder shall furnish for their use

temporary/portable toilets, dumpsters, equipment, phones, office space, and

secured storage as needed for their work during construction.

7) No excessive construction noise will be allowed, e.g. radios. District shall provide

specific construction agreement for noise requirements before construction to

Design-Builder. Trenching and interconnection work will be performed around the

Child Development Center. Design-Builder will be sensitive to noise and will

sequence work to not impact operations of the facility.

8) The Design-Builder shall allow District to review 50% and 90% construction

drawings before starting construction to ensure that aesthetic and scope elements

are properly addressed.

9) Prior to the submittal of the “permission to operate” request to PG&E the provider

shall furnish to the District written documentation from a registered electrical

engineer, structural engineer and geotechnical engineer certifying that the system

has been installed in accordance with the DSA approved design.

10) Design-Builder shall be responsible for ensuring that the work completed qualifies

District for any and all CSI incentives for which the District may be eligible and for

providing full and active cooperation with PG&E and its agents in this respect.

Design-Builder shall install PV panels, inverters and other components that:

a) Meet the California Solar Initiative (“CSI”) Program requirements as well as all

requirements for participating in PG&E’s Net Energy Metering, including but

limited to PG&E’s interconnection agreement requirements, and CEC

Standards as noted on the CEC’s website.

b) Meet any other requirements that establish eligibility for Incentives.

11) Design-Builder shall supply and install all equipment, materials, and labor

necessary for the PV System and integrate the Solar PV System with the overall

District electrical system. At a minimum:

a) All work shall be coordinated, in advance, with the District and shall be

scheduled so as not to disrupt the teaching or learning environments. This

includes coordination with District IT personnel in order to ensure that the web-

based monitoring data “lands” on the District Ethernet.

b) All costs associated for overtime work required for the seamless installation of

this PV System shall be borne by the Design-Builder.

12) Design-Builder shall supply and install all equipment on the District’s side of the

meter required to interconnect the PV System to the PG&E distribution system.

Design-Builder shall fulfill all application, study, and testing procedures to complete

the interconnection process. However, the Parties acknowledge and agree that

this agreed upon scope of work does not provide for the purchase or installation of

new service equipment or any other upgrades that PG&E may request or require,

and that District shall pay Design-Builder for any such out-of-scope work performed

by or paid for by Design-Builder or any of its subcontractors.

13) Design-Builder shall provide services related to commissioning and transfer of the

PV System and all of its appurtenant equipment to the District. Design-Builder

shall provide recommended testing protocols and conditions for review and

approval by the District. During the start-up, the District, and/or its independent

engineer, shall observe and verify the PV System’s performance. Required

commissioning and acceptance test services include:

a) Starting up the PV System until it achieves the performance requirements of

the agreement;

b) Conducting the performance testing over a consecutive twenty-four (24) hour

period; and

c) Conducting the successful acceptance test within sixty (60) days following

completion of the PV System.

14) Design-Builder shall provide three (3) sets of site-specific operation, maintenance,

and parts manuals for the installed PV System. The manuals shall cover all

components, options, and accessories supplied. They shall include maintenance,

trouble-shooting, and safety precautions specific to the supplied equipment at the

site. A maintenance schedule shall be developed for the site. Design-Builder shall

also provide three sets of as-built drawings in AutoCAD. These requirements shall

be delivered prior to acceptance of the PV System.

15) Design-Builder shall provide monitoring of the PV System performance in a manner

that is compliant with CSI requirements whether or not the PV System has a CSI

Reservation.

a) Design-Builder shall provide a turnkey data acquisition and display system that

allows the District to monitor, analyze and display historical and live solar

electricity generation data for the site. This display system will allow the District

and the Design-Builder to monitor performance against the warranted

production requirements. The regularly collected data should reflect, but not be

limited, to the following:

i) kWh production

(1) Individual inverters

(2) Total system

ii) Weather conditions for the site for solar performance “weather station”

(1) Irradiance

(a) Point of array

(b) Horizontal

(2) Cell temperature

(3) Wind speed

b) The overall monitoring program and display systems shall be established by the

acceptance of the display system by the District. Minimum web page design

and information requirements shall be as per Fat Spaniel or Equal.

c) Design builder has established an allowance of $5,000 for the installation,

power, data and materials for the kiosk/display. Location of this display shall be

determined by the District.

16) Design-Builder shall provide training to designated District personnel who may

have support responsibilities to Design-Builder’s operations and maintenance

obligations under this contract.

a) Training will be provided to the on-site building manager within ten (10) days of

the acceptance of the PV System.

b) The training shall include aspects of routine operation, maintenance, and

safety of the PV System consistent with the District’s support O&M role , as

well as the monitoring and display system.

17) Design-Builder shall provide the following warranties, at a minimum:

a) Any warranties required to qualify the PV System for CSI incentives, whether

or not the PV System has a CSI Reservation.

b) 25-year PV panel warranty

c) 10-year complete operational power capacity warranty, including but not limited

to a 10-year inverter warranty.

18) Design-Builder may use aluminum conductors from combiner boxes to point of tie

in, provided there is no effect on system performance and all governmental

requirements are met.

Exclusions:

• Electrical service upgrades or new services

• Interconnection or utility upgrade fees

• Handling and removal of hazardous materials

• Hard digging “rock clause”

• DSA fees for plan review and submission. Design-Builder assumes DSA

inspector is provided and paid for by District

• CEQA approvals

Newark System Scope of Work:

1) Design and install 1,139.540 kW PTC (1365.0 kW DC) solar array on 4 new carport

trackers as illustrated in Exhibit C Newark Carport Tracker drawing PV-1.0-B

(drawing is labled “B” in upper left-hand corner).

2) Design-Builder shall demo existing light poles and bases to two inches below

asphalt, cap with asphalt and install traffic rated underground pull boxes.

3) Inverters and disconnect switches

a) Inverter panel will be mounted next to each structure or by the existing service.

4) Conduit

a) Conduit from the solar panels on the structures will be mounted on the exterior

of the structures and then underground to the inverter panel.

b) All trenching will be backfilled with slurry and capped with material matching

the original surface for all road crossings or parking lots. All other trenching will

be compacted to 90% with native materials.

5) District will allow the Design-Builder to use 50 amp 120/220 volt single phase

power during construction. The Design-Builder shall furnish and install all

equipment and materials for temporary power.

6) The lay down yard area during construction shall be limited to a mutually agreed

upon area by both Design-Builder and District, provided that such mutually agreed

upon lay down yard area is large enough to provide adequate space required to

efficiently and cost-effectively stage required equipment and materials. All

deliveries and construction activities shall be coordinated with District to minimize

conflict with operations. The construction work area and lay down yard shall be

cleaned at the end of each work area as needed to minimize interference with

District access and operations.

7) The Design-Builder and its employees and subcontractors will limit their access

and activities to their work area. The Design-Builder shall furnish for their use

temporary/portable toilets, dumpsters, equipment, phones, office space, and

secured storage as needed for their work during construction.

8) No excessive construction noise will be allowed, e.g. radios. District shall provide

specific construction agreement for noise requirements before construction to

Design-Builder.

9) The Design-Builder shall allow District to review 50% and 90% construction

drawings before starting construction to ensure that aesthetic and scope elements

are properly addressed.

10) Prior to the submittal of the “permission to operate” request to PG&E the provider

shall furnish to the District written documentation from a registered electrical

engineer, structural engineer and geotechnical engineer certifying that the system

has been installed in accordance with the DSA approved design.

11) Design-Builder shall be responsible for ensuring that the work completed qualifies

District for any and all CSI incentives for which the District may be eligible and for

providing full and active cooperation with PG&E and its agents in this respect.

Design-Builder shall install PV panels, inverters and other components that:

a) Meet the California Solar Initiative (“CSI”) Program requirements as well as all

requirements for participating in PG&E’s Net Energy Metering, including but

limited to PG&E’s interconnection agreement requirements, and CEC

Standards as noted on the CEC’s website.

b) Meet any other requirements that establish eligibility for Incentives.

12) Design-Builder shall supply and install all equipment, materials, and labor

necessary for the PV System and integrate the Solar PV System with the overall

District electrical system. At a minimum:

a) All work shall be coordinated, in advance, with the District and shall be

scheduled so as not to disrupt the teaching or learning environments. This

includes coordination with District IT personnel in order to ensure that the web-

based monitoring data “lands” on the District Ethernet.

b) All costs associated for overtime work required for the seamless installation of

this PV System shall be borne by the Design-Builder.

13) Design-Builder shall supply and install all equipment on the District’s side of the

meter required to interconnect the PV System to the PG&E distribution system.

Design-Builder shall fulfill all application, study, and testing procedures to complete

the interconnection process. However, the Parties acknowledge and agree that

this agreed upon scope of work does not provide for the purchase or installation of

new service equipment or any other upgrades that PG&E may request or require,

and that District shall pay Design-Builder for any such out-of-scope work performed

by or paid for by Design-Builder or any of its subcontractors.

14)Design-Builder shall provide services related to commissioning and transfer of the

PV System and all of its appurtenant equipment to the District. Design-Builder

shall provide recommended testing protocols and conditions for review and

approval by the District. During the start-up, the District, and/or its independent

engineer, shall observe and verify the PV System’s performance. Required

commissioning and acceptance test services include:

a) Starting up the PV System until it achieves the performance requirements of

the agreement;

b) Conducting the performance testing over a consecutive twenty-four (24) hour

period; and

c) Conducting the successful acceptance test within sixty (60) days following

completion of the PV System.

15) Design-Builder shall provide three (3) sets of site-specific operation, maintenance,

and parts manuals for the installed PV System. The manuals shall cover all

components, options, and accessories supplied. They shall include maintenance,

trouble-shooting, and safety precautions specific to the supplied equipment at the

site. A maintenance schedule shall be developed for the site. Design-Builder shall

also provide three sets of as-built drawings in AutoCAD. These requirements shall

be delivered prior to acceptance of the PV System.

16) Design-Builder shall provide monitoring of the PV System performance in a

manner that is compliant with CSI requirements whether or not the PV System has

a CSI Reservation.

a) Design-Builder shall provide a turnkey data acquisition and display system that

allows the District to monitor, analyze and display historical and live solar

electricity generation data for the site. This display system will allow the

District and the Design-Builder to monitor performance against the warranted

production requirements. The regularly collected data should reflect, but not

be limited, to the following:

i) kWh production

(1) Individual inverters

(2) Total system

ii) Weather conditions for the site for solar performance “weather station”

(1) Irradiance

(a) Point of array

(b) Horizontal

(2) Cell temperature

(3) Wind speed

b) The overall monitoring program and display systems shall be established by

the acceptance of the display system by the District. Minimum web page

design and information requirements shall be as per Fat Spaniel or Equal.

c) Design builder has established an allowance of $5,000 for the installation,

power, data and materials for the kiosk/display. Location of this display shall be

determined by the District.

17) Design-Builder shall provide training to designated District personnel who may

have support responsibilities to Design-Builder’s operations and maintenance

obligations under this contract.

a) Training will be provided to the on-site building manager within ten (10) days of

the acceptance of the PV System.

b) The training shall include aspects of routine operation, maintenance, and

safety of the PV System consistent with the District’s support O&M role, as well

as the monitoring and display system.

18) Design-Builder shall provide the following warranties, at a minimum:

a) Any warranties required to qualify the PV System for CSI incentives, whether

or not the PV System has a CSI Reservation.

b) 25-year PV panel warranty

c) 10-year complete operational power capacity warranty, including but not limited

to a 10-year inverter warranty.

19) Design-Builder may use aluminum conductors from combiner boxes to point of tie

in, provided there is no effect on system performance and all governmental

requirements are met.

Exclusions:

• Electrical service upgrades or new services

• Interconnection or utility upgrade fees

• Handling and removal of hazardous materials

• Hard digging “rock clause”

• DSA fees for plan review and submission. Design-Builder assumes DSA

inspector is provided and paid for by District

• CEQA approvals

PREVAILING WAGE CERTIFICATION

I hereby certify that I will conform to the State of California Public Works Contract requirements regarding prevailing wages, benefits, on-site audits with 48-hours notice, payroll records, and apprentice and trainee employment requirements, for all Work on the above Project.

Date:

Proper Name of Design-Builder:

Signature:

Print Name:

Title:

WORKERS’ COMPENSATION CERTIFICATION

Labor Code section 3700 in relevant part provides:

Every employer except the State shall secure the payment of compensation in one or more of the following ways: a. By being insured against liability to pay compensation by one or more insurers duly

authorized to write compensation insurance in this state. b. By securing from the Director of Industrial Relations a certificate of consent to self-insure,

which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self-insure and to pay any compensation that may become due to his employees.

I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of this Contract.

Date:

Proper Name of Design-Builder:

Signature:

Print Name:

Title:

(In accordance with Article 5 - commencing at section 1860, chapter 1, part 7, division 2 of the Labor Code, the above certificate must be signed and filed with the awarding body prior to performing any Work under this Contract.)

ASBESTOS & OTHER HAZARDOUS MATERIALS CERTIFICATION

Design-Builder hereby certifies that no Asbestos, or Asbestos-Containing Materials, polychlorinated biphenyl (PCB), or any material listed by the federal or state Environmental Protection Agency or federal or state health agencies as a hazardous material, or any other material defined as being hazardous under federal or state laws, rules, or regulations “New Material Hazardous”, shall be furnished, installed, or incorporated in any way into the Project or in any tools, devices, clothing, or equipment used to affect any portion of Design-Builder's work on the Project for District. Design-Builder further certifies that it has instructed its employees with respect to the above-mentioned standards, hazards, risks, and liabilities. Asbestos and/or asbestos-containing material shall be defined as all items containing but not limited to chrysotile, crocidolite, amosite, anthophyllite, tremolite, and actinolite. Any or all material containing greater than one-tenth of one percent (.1%) asbestos shall be defined as asbestos-containing material. Any disputes involving the question of whether or not material is New Hazardous Material shall be settled by electron microscopy or other appropriate and recognized testing procedure, at the District’s determination. The costs of any such tests shall be paid by Design-Builder if the material is found to be New Hazardous Material. All Work or materials found to be New Hazardous Material or Work or material installed with “New Hazardous Material” containing equipment will be immediately rejected and this Work will be removed at Design-Builder's expense at no additional cost to the District. Design-Builder has read and understood the document Hazardous Materials Procedures & Requirements, and shall comply with all the provisions outlined therein. Date: Proper Name of Design-Builder: Signature: Print Name: Title:

Exhibit A-3

Schedule

Fremont System Schedule:

Fremont Schedule

Days Cumulative Total Days Notes

Contract Execution Milestone

Design and Permitting 131 131 1, 2

DSA Approval Milestone

Procurement 87 218

Construction 75 293

Closeout Period 21 314

Notes:

1 Includes 21 days for DSA approval

2 Includes 14 cumulative days for customer approvals and comments

Includes 7 days per submittal

3 Includes 5 rain days. A rain day is a 24 hour period in which .25 of an inch of precipitation occurs on a work day.

Assumptions:

At the time of DSA approval the following circumstances will exist:

-Time and costs will be determined for PG&E interconnection and utility upgrades

-CEQA approval will be obtained

If the above is not received or determined by the time Design-Builder receives DSA approval,

any consquent effect on critical path items will result in commensurate day for day

extensions to the applicable Completion Date and the date upon which liquidated damages begin

accruing against the Design-Builder.

This Schedule assumes that key critical path items not within Design Builder’s control will occur within

reasonable time periods as noted above. Between the Effective Date of this Agreement and the date of

permit issuance by the Division of State Architect (“DSA”), any delay of a critical path item shall only

extend the Final Completion Date if the DSA permit issuance date is more than 131 days after the

Effective Date of this Agreement.

Subsequent to the DSA permit issuance date, to the extent a key critical path item has not occurred,

through no fault of Design Builder, the Final Completion Date shall be extended on a day for day basis for

each day beyond the applicable time period set forth in the Schedule that the key critical path has not

been achieved.

Newark System Schedule:

Newark Schedule

Days Cumulative Total Days Notes

Contract Execution Milestone

Design and Permitting 134 134 1, 2

DSA Approval Milestone

Procurement 90 224

Construction 135 359

Closeout Period 21 380

Notes:

1 Includes 21 days for DSA approval

2 Includes 14 cumulative days for customer approvals and comments

Includes 7 days per submittal

3 Includes 5 rain days. A rain day is a 24 hour period in which .25 of an inch of precipitation occurs on a work day.

Assumptions:

At the time of DSA approval the following circumstances will exist:

-Time and costs will be determined for PG&E interconnection and utility upgrades

-CEQA approval will be obtained

If the above is not received or determined by the time Design-Builder receives DSA approval,

any consquent effect on critical path items will result in commensurate day for day

extensions to the applicable Completion Date and the date upon which liquidated damages begin

accruing against the Design-Builder.

This Schedule assumes that key critical path items not within Design Builder’s control will occur within

reasonable time periods as noted above. Between the Effective Date of this Agreement and the date of

permit issuance by the Division of State Architect (“DSA”), any delay of a critical path item shall only

extend the Final Completion Date if the DSA permit issuance date is more than 134 days after the

Effective Date of this Agreement.

Subsequent to the DSA permit issuance date, to the extent a key critical path item has not occurred,

through no fault of Design Builder, the Final Completion Date shall be extended on a day for day basis for

each day beyond the applicable time period set forth in the Schedule that the key critical path has not

been achieved.

Exhibit A-4

Change in Scope of Work

With the exception of change orders for alternate Systems based on the Executive Summary

and Drawings (Exhibit “C”) hereto, the following format shall be used as applicable by the

District and the Design-Builder (e.g. Change Orders, PCO’s) to communicate proposed

additions to the Contract, supported by attached documentation.

WORK PERFORMED OTHER THAN BY DESIGN-BUILDER ADD

(a) Material (attach itemized quantity and unit cost plus sales tax)

(b) Add Labor (attach itemized hours and rates, fully encumbered)

(c) Add Equipment (attach suppliers’ invoice)

(d) Subtotal

(e) Add overhead and profit for any and all tiers of Subcontractor, the total not to exceed ten percent (10%) of item (d)

(f) Subtotal

(g) Add overhead and profit for Design-Builder, not to exceed five percent (5%) of Item (f)

(h) Subtotal

(i) Add Bond and Insurance, not to exceed two percent (2%) of Item (h)

(j) TOTAL

(k) Time ______ Days

WORK PERFORMED BY DESIGN-BUILDER ADD

(a) Material (attach itemized quantity and unit cost plus sales tax)

(b) Add Labor (attach itemized hours and rates, fully encumbered)

(c) Add Equipment (attach suppliers’ invoice)

(d) Subtotal

(e) Add overhead and profit for Design-Builder, not to exceed fifteen percent (15%) of item (d).

(f) Subtotal

(g) Add Bond and Insurance, not to exceed two percent (2%) of Item (f)

(h) TOTAL

(i) Time ______ Days

The foregoing does not limit the District's discretion to accept to change orders based on lump

sum or unit prices.

EXHIBIT B

SYSTEM DESIGN DRAWINGS

EXHIBIT C

Executive Summary and Drawings

EXHIBIT D

O&M Agreement

EXHIBIT E

Output Guarantee

EXHIBIT F

Warranties

OHLONE COMMUNITY COLLEGE DISTRICT PAYMENT BOND Page 1 of 2

PAYMENT BOND Contractor's Labor & Material Bond

(100% of Construction Price) KNOW ALL PERSONS BY THESE PRESENTS:

That WHEREAS, the governing board (“Board”) of the Ohlone Community College District, (or “District”) and Borrego Solar Services, Inc., (“Principal”) have entered into a contract for the furnishing of all materials and labor, services and transportation, necessary, convenient, and proper to perform the following project:

Photovoltaic Solar Electric Generating Systems at Fremont and Newark Campuses - RFP 853-1101

(“Project” or “Contract”) which Contract dated August 10, 2011, and all of the Contract Documents attached to or forming a part of the Contract, are hereby referred to and made a part hereof, and

WHEREAS, pursuant to law and the Contract, the Principal is required, before entering upon the performance of the work, to file a good and sufficient bond with the body by which the Contract is awarded in an amount equal to 100 percent (100%) of the Contract price, to secure the claims to which reference is made in sections 3179 through 3214 and 3247 through 3252 of the Civil Code of California, and division 2, part 7, of the Labor Code of California. NOW, THEREFORE, the Principal and , (“Surety”) are held and firmly bound unto all laborers, material men, and other persons referred to in said statutes in the sum of Fifteen Million, Eight Hundred Fifty Six Thousand, Seventy Six and NO/100 Dollars ($15,856,076.00), lawful money of the United States, being a sum not less than the total amount payable by the terms of Contract, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, or assigns, jointly and severally, by these presents. The condition of this obligation is that if the Principal or any of his or its subcontractors, of the heirs, executors, administrators, successors, or assigns of any, all, or either of them shall fail to pay for any labor, materials, provisions, provender, or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, that the Surety will pay the same in an amount not exceeding the amount herein above set forth, and also in case suit is brought upon this bond, will pay a reasonable attorney's fee to be awarded and fixed by the Court, and to be taxed as costs and to be included in the judgment therein rendered. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under sections 3179 through 3214 and 3247 through 3252 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. Should the condition of this bond be fully performed, then this obligation shall become null and void; otherwise it shall be and remain in full force and affect.

OHLONE COMMUNITY COLLEGE DISTRICT PAYMENT BOND Page 2 of 2

And the Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of Contract or the specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration, or addition. IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the day of , 20___. (Affix Corporate Seal)

Principal

By

Surety

By

Name of California Agent of Surety

Address of California Agent of Surety

Telephone Number of California Agent of Surety Bidder must attach a Notarial Acknowledgment for all Surety's signatures and a Power of Attorney and Certificate of Authority for Surety. The California Department of Insurance must authorize the Surety to be an admitted surety insurer.

END OF DOCUMENT

OHLONE COMMUNITY COLLEGE DISTRICT PERFORMANCE BOND Page 1 of 2

PERFORMANCE BOND (100% of Construction Price)

KNOW ALL PERSONS BY THESE PRESENTS:

That WHEREAS, the governing board (“Board”) of the Ohlone Community College District, (“District”) and Borrego Solar Systems, Inc., (“Principal)” have entered into a contract for the furnishing of all materials and labor, services and transportation, necessary, convenient, and proper to perform the following project:

Photovoltaic Solar Electric Generating Systems at Fremont and Newark Campuses - RFP 853-1101

(“Project” or “Contract”) which Contract dated August 10, 2011, and all of the Contract Documents attached to or forming a part of the Contract, are hereby referred to and made a part hereof, and

And WHEREAS, said Principal is required under the terms of the Contract to furnish a bond for the faithful performance of the Contract; NOW, THEREFORE, the Principal and (“Surety”) are held and firmly bound unto the Board of the District in the penal sum of FIFTEEN MILLION, EIGHT HUNDRED FIFTY SIX THOUSAND, SEVENTY SIX AND NO/100 DOLLARS ($15,856,076.00), lawful money of the United States, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents, to:

- Perform all the work required to complete the Project; and - Pay to the District all damages the District incurs as a result of the Principal’s failure

to perform all the Work required to complete the Project up to the amount of the penal sum, subject to adjustment for change orders, if any.

The condition of the obligation is such that, if the above bounden Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, and agreements in the Contract and any alteration thereof made as therein provided, on his or its part to be kept and performed at the time and in the intent and meaning, including all contractual guarantees and warrantees of materials and workmanship, and shall indemnify and save harmless the District, its trustees, officers and agents, as therein stipulated, then this obligation shall become null and void, otherwise it shall be and remain in full force and virtue. As a condition precedent to the satisfactory completion of the Contract, the above obligation shall hold good for a period equal to the warranty and/or guarantee period of the Contract, with the exception of the obligations under Performance Guarantee or Operations & Maintenance Agreement or any warranty obligations that are effective for any period longer than one year from the date of Final Completion during which time Surety’s obligation shall continue if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the District from loss or damage resulting from or caused by defective materials or faulty workmanship. The obligations of Surety hereunder shall continue so long as any obligation of

OHLONE COMMUNITY COLLEGE DISTRICT PERFORMANCE BOND Page 2 of 2

Contractor remains. Nothing herein shall limit the District’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract or to the work or to the specifications. IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the day of August, 2011. (Affix Corporate Seal)

Principal By

Surety

By

Name of California Agent of Surety

Address of California Agent of Surety

Telephone Number of California Agent of Surety Bidder must attach a Notarial Acknowledgment for all Surety's signatures and a Power of Attorney and Certificate of Authority for Surety. The California Department of Insurance must authorize the Surety to be an admitted surety insurer.

END OF DOCUMENT

Borrego Solar Systems, Inc. 5005 Texas St., Suite 400, San Diego, CA 92108 Tel: 888-898-6273, Fax: 888-843-6778

Solar PV Operation and Maintenance Agreement This operation and maintenance agreement (“O&M Agreement”), dated as of August 10, 2011, is by and between Ohlone Community College District (“Owner”), and Borrego Solar Systems, Inc., a California corporation (“Borrego”). Owner and Borrego are each at times referenced herein as a “Party”, and together as the “Parties”.

WHEREAS, the Parties are party to a certain Agreement for Design, Installation and Commissioning of Solar/Photovoltaic Systems dated August 10, 2011 (“Agreement” or “Energy Services Agreement” or “ESA”) pertaining to the design and installation of two solar energy facilities (each a “System”) on the Owner’s property;

WHEREAS, the Parties now wish to enter into this O&M Agreement relating to and governing the operation and maintenance by Borrego of such Systems; NOW, THEREFORE, the Parties hereby agree as follows: A. General Terms & Conditions

In accordance with, and subject to, the terms and conditions hereof, Borrego will perform the operation and maintenance of the Systems from the date the utility provides permission to operate for a period of twenty-five (25) years (the “O&M Period”).

The benefit of this O&M Agreement extends to Owner, any assignee of Owner, and to any subsequent purchaser or owner of the Systems at the same location during the O&M Period; provided any subsequent purchaser or owner shall provide written notification to Borrego of its acquisition and its agreement to be bound by the terms of this O&M Agreement.

For the purpose of this O&M Agreement, the terms “Owner,” “subsequent owner,” and “purchaser” may include a lessee or an assignee of a lease.

Duties for Borrego will include monitoring each System’s output and addressing production concerns in a timely manner as provided herein. Borrego will, at a minimum, perform the duties as defined below.

1. Daily Service

Respond to alerts from system’s automated alert system or Owner, regarding potential system malfunction.

2. Annual Service − Rinse modules. − Check and confirm proper torque settings of wire terminations. − Visually inspect system for loose wiring or any other safety or performance hazards

including tree growth.

− Take and log all voltage and current readings at the inverter. − Take and log instantaneous kW output of inverter. − Compare actual instantaneous output to expected weather corrected output. − Take and log cumulative kWh readings of inverter. − Visually inspect any plug and receptacle connectors between the modules and

panels to ensure they are fully engaged. Tighten any loose connectors. − Check that strain reliefs/cable clamps are properly installed on all cables and cords

by pulling on cables to verify. Tighten any loose clamps. − Check to see that all wiring is neat and well supported. Tighten any loose

connections. − Perform Preventive Maintenance on inverters per manufacturer’s instructions,

including cleaning inverter air filters. − Create and issue written inspection report. − Manage onsite vegetation growth.

Conditions Annual maintenance and system cleanings will be conducted during normal business hours and scheduled in advance. There will be a minimum of 1 maintenance visit and 1 module rinsing visits to the site in every 12-month period following the start date of this contract. Due to unscheduled maintenance, weather and scheduling issues the maintenance and system cleanings will not likely occur at the same time every year. Access to the site: Borrego personnel will have access to the site, with reasonable notice, to test the System and to make any necessary corrections during normal business hours.

B. Exclusions

This O&M Agreement will NOT apply to: 1. Additional monitoring equipment that may be required if site conditions change for

reasons beyond Borrego’s control. Specifically, interference from additions or repairs to the facilities after the initial testing is done to confirm that the data can be reliably transmitted with the specified monitoring equipment.

2. Parts or equipment that are not installed by Borrego or its subcontractors. 3. In the event that the manufacturer is not able or willing to honor its product warranty

to Owner, then this O&M Agreement will not cover the material replacement costs of any such manufacturer’s components.

C. Obtaining O&M Service

Normal routine maintenance shall be scheduled by Borrego directly with the Owner. Owner shall be notified after completion of all such service by receiving a copy of Borrego’s standard service call report. If an automated production alert from the monitoring system indicates the need for service or repair, a service call shall be scheduled by Borrego directly with the Owner. O&M service will be provided as soon as reasonably possible after Borrego has received an automated production alert, upon its own discovery of any material malfunction in the operation of a System, or upon any other notice from the Owner (“Notice”). Typical response time will be within three (3) business days after Notice, but in some instances, by reason of circumstances

beyond the reasonable control of Borrego, O&M service may be provided on a date after expiration of the three (3) business-day period. If communications from the Owner indicate that service is required to prevent physical harm to people or property, Borrego shall provide such service as promptly as possible. If communications from the Owner indicate that service is required for any other reason not covered by this O&M Agreement or the existing or expired warranty on the system (i.e. vandalism, host customer remodeling, roof leaks not caused by the System), Owner must approve in writing to pay Borrego at specified reasonable rates on a Time and Materials basis for such non-covered work. In the event that the Owner requests or that Borrego is otherwise required to provide additional O&M services outside the scope of this O&M Agreement, Owner shall pay for the cost of materials and Borrego service personnel time at the rate of $140 per hour. Contact Borrego Solar Systems, Inc. at (888) 843-6778 for all warranty claims. D. Consequential Damages

Notwithstanding insurance coverage, Borrego’s obligations under this O&M Agreement are limited solely to the Services as provided in Section A and the damages limited to cumulative dollar value of the O&M Services.

E. Payment Terms

The O&M Service fee has been included in the Executive Summary and Drawings, Exhibit “C” to the Agreement for Design, Installation and Commissioning of Solar/Photovoltaic System. F. Insurance Borrego and any subcontractor whom Borrego may hire to perform any work on the Systems shall maintain the following levels of coverage under its insurance policies in full force and effect throughout the term of this O&M Agreement: (a) Workers’ Compensation (statutory limits) and Employer’s Liability Coverage of at least $1,000,000 per occurrence (b) Commercial General Liability Coverage (Occurrence Form) with limits of not less than $2,000,000 general aggregate, $1,000,000 per occurrence, and (c) Automobile Liability Coverage of at least $1,000,000 per occurrence for bodily injury and property damage. G. Miscellaneous

Either party shall have the right to assign this O&M Agreement and any of its rights or obligations hereunder to any third party without the consent of the other; provided, however, that assigning party shall remain liable after such assignment as a guarantor for any payment obligations incurred before such assignment; and further provided that the assignee shall agree in writing to be bound by all the terms of this O&M Agreement, but shall only be required to assume liabilities and obligations arising after the relevant assignment.

If there is a legitimate warranty claim and the respective solar manufacturer chooses not to honor its warranty, Borrego will provide its best efforts to assist Owner in its attempts to obligate the solar manufacturer to comply with its warranty obligations. Notwithstanding the rest of Section G, Borrego will not assume any legal costs associated with its assistance.

The O&M Agreement and the rights and obligations of the parties hereunder shall be governed by the laws of the State of California, without giving effect to the conflicts of laws principles thereof.

The O&M Agreement expresses the entire and integrated agreement of the parties with respect to the subject matter hereof, and any prior or contemporaneous negotiations or discussions are superseded. Neither Party has made any promise nor inducement related hereto that is not set forth herein.

IN WITNESS WHEREOF, the parties hereto have executed this O&M Agreement as of the date first above written. OHLONE COMMUNITY COLLEGE DISTRICT Date: , 2011

By:

Print Name:

Print Title:

Address:

Telephone:

Facsimile:

E-Mail:

BORREGO SOLAR SYSTEMS, INC. Date: , 2011

By:

Print Name:

Print Title:

License No.:

Address:

Telephone:

Facsimile:

E-Mail:

OUTPUT GUARANTEE AGREEMENT

This output guarantee agreement (“Output Guarantee”), dated as of August 10, 2011, is by and between Ohlone Community College District (“District”), and Borrego Solar Systems, Inc., a California corporation (“Design-Builder”). The District and Design-Builder are each at times referenced herein as a “Party”, and together as the “Parties”.

WHEREAS, the Parties are party to a certain Agreement for Design, Installation and Commissioning of Solar/Photovoltaic Systems dated August 10, 2011 (“Agreement” or “Energy Services Agreement” or “ESA”) pertaining to the design and installation of two solar energy facilities (each a “System”) on the Owner’s property;

WHEREAS, the Parties now wish to enter into this Output Guarantee relating to the overall electricity output of such Systems by Design-Builder;

NOW, THEREFORE, the Parties hereby agree as follows:

Borrego Solar Systems, Inc. hereby guarantees to Ohlone Community College District a minimum monetary value from the overall electricity output during each True-up Period from the Systems indicated in Table 1 herein to this Output Guarantee. Should the minimum monetary requirements described herein not be met, nor excused in accordance with this Output Guarantee’s terms, Design-Builder shall make payment to the District as provided herein. The Design-Builder’s obligations hereunder shall only be excused by the express terms set forth in this Output Guarantee.

1. Term: The Output Guarantee Start Date for each System is the Final Completion Date for each System as defined in the Agreement. The term is twenty-five (25) years from that Start Date.

2. Throughout the Term, and as conditions to the obligations of Design-Builder hereunder, the District shall:

(a) maintain an O&M Agreement with Design-Builder for the Systems;

(b) grant reasonable access to the Systems to Design-Builder’s personnel and representatives;

(c) not modify, alter, shade, damage, service, or repair, without Design-Builder’s prior written approval, any part of the Systems, the supporting structure for the Systems or the associated wiring.

3. Definitions:

Actual Electricity Generation means, for each Guarantee Year and portion thereof during the Term, a System’s alternating current or "AC" electricity production in kilowatt-hours ("kWh") as metered and calculated according to the methods described herein and consistent with the System’s AC electricity output measurements described in the Agreement.

Annual Degradation Rate (“ADR”) means the rate at which Systems are deemed to decrease in AC kWh output each year relative to the prior year due to expected PV module degradation. The ADR is deemed to be 0.5%.

The Cumulative Degradation Percentage (“CDP”) is the resulting percentage loss in production, due to the ADR, in a given Guarantee Year compared to the first year SETMC value.

CSI Incentive Rate means any California Solar Initiative (“CSI”) performance-based solar incentive rate in effect during a given Guarantee Year. The CSI Incentive Rate for System A (Fremont Ground-Mounted Tracker with Sanyo modules) is $0.15/kWh.

DAS or Data Acquisition System, and detailed for each System means Design-Builder’s or its agent’s system that displays historical meteorological and production data over an internet connection and consists of hardware located on-site and software housed on Design-Builder’s or its agent’s DAS server. The DAS measures and logs, at a minimum, the following parameters on a 15-minute average basis at the Sites: actual AC electricity production of the System each Site (in kWh), solar irradiance (in W/m2), temperature (in °C), and wind speed (in meters per second).

Guarantee Year means each consecutive year during the Term.

Guarantee Level is 99% of the SEAMC (as adjusted by the ratio of SEAMC to SETMC and for the CDP) for the purpose of calculating the minimum monetary value of electricity purchases that shall be avoided by a System’s electricity output for each year of the Term under this Output Guarantee; and 95% of the SEAMC (as adjusted by the ratio of SEAMC to SETMC and for the CDP) for the purpose of determining the minimum monetary value of CSI incentive payments associated with a System’s electricity output for each year of the Term under this Agreement during the five-year term of the CSI Incentive.

PVsyst means the software program utilized by Design-Builder to predict the amount of electricity (kWh AC) a System will produce in an average meteorological year, which currently has the following characteristics: (1) developed at the University of Geneva and currently available through PVsyst SA, (2) utilizes the one-diode model-to-model photovoltaic characteristics, (3) all ancillary array losses are taken into account and (4) PVsyst simulations use NREL TMY3 weather data from the location nearest to each System site.

SEAMC or Simulated Energy under Actual Meteorological Conditions means, with respect to any given TOU Period or group of TOU Periods within a given Guarantee Year, the quantity of expected AC electricity output from a System as simulated by PVsyst using actual hourly insolation, wind speed, and air temperature as recorded by the DAS at each Site, keeping all other inputs equal to those used when calculating SETMC.

SETMC or Simulated Energy under Typical Meteorological Conditions means, with respect to any given TOU Period or group of TOU Periods within a given Guarantee Year, the expected quantity of AC electricity output from a System simulated by PVsyst using hourly insolation, wind speed, and air temperature data contained within the TMY3 file. The SETMC values for each System are listed in Table 1 of this Output Guarantee. These values are taken from the hourly output values contained in Design-Builder’s July 29, 2011 Excel spreadsheet addendum to its Proposal, which is hereby incorporated by reference into this Output Guarantee.

System means each separately-metered solar facility at each Site.

Term means the twenty-five (25) year period that the Output Guarantee is in effect.

TOU Period means each PG&E time-of use period as defined in Table 3 of this Output Guarantee.

TOU Rate means the PG&E Time of Use Energy Rates contained in Table 2 of this Output Guarantee, which reflect PG&E’s applicable TOU energy rates on the Effective Date of the Agreement.

True-Up Period means each consecutive five (5) year period during the twenty-five (25) years of the Term. Parties agree that no payment shall be issued until the end of each True-Up Period. The Parties agree that the Design-Builder shall prepare the "true-up" reports and shall provide them to the District within 30 days of the end date of each True-Up Period to determine if the Systems have underperformed relative to the terms of this Output Guarantee.

Utility Escalation Rate means the deemed annual rate of increase of each TOU Rate contained in Table 2 of this Output Guarantee. The Utility Escalation Rate is 3.0% for each year of the Term.

Utility Rate Escalation Factor (“UREF”) means the value that each TOU Rate in effect at the time of execution of this Agreement is multiplied by, for a given Guarantee Year, to reflect the Utility Escalation Rate. The Utility Rate Escalation Factor for a given Guarantee Year is equal to 1.03 raised to the power of the number of the Guarantee Year of the Term, where the first year of the Term is Year 1, the second year of the Term is 2, etc. The Utility Rate Escalation Factors to be used in implementing this Output Guarantee Agreement are contained in Table 4 of this Output Guarantee.

4. Shading. Each System’s output expectations are based on current site conditions. Introducing new shade onto the solar modules will have a negative impact on performance. Design-Builder will not be responsible for loss of production due to shade that is introduced after the System has been installed. Building alterations, new structures, satellite dishes and new tree growth are examples of objects that cause shade if placed in close proximity to the solar array. With the exception of managing vegetation that affects the performance of any ground-based System, which is the Design-Builder’s responsibility per the terms of the O&M Agreement, the District is

responsible for maintaining the current site conditions or notifying Design-Builder of any new shading at which time Design-Builder will incorporate new shading into a revised SETMC, which will have a corresponding effect on the SEAMC.

5. Contract Price. The price for the 25-year Output Guarantee for each of the Systems is provided in the Executive Summary and Drawings, Exhibit C to the Agreement.

6. Contingency for Equipment Failure. In the event of hardware, communication, or other failure affecting the DAS, Design-Builder will make commercially reasonable efforts to resolve the failure in a timely manner. In the event that data is lost, Actual Generation shall be adjusted to compensate for such lost data:

a) Lost Energy Input Data. In lieu of lost meteorological data required to weather-adjust expected electricity output, Design-Builder will utilize such data obtained from an appropriate nearby meteorological station that Design-Builder monitors and selects for such purpose.

b) Lost Electricity Data. In lieu of lost electricity data, Design-Builder will utilize the cumulative data from System meter readings to calculate the electricity generated during the missing interval. In the event that data from the System meter is inaccurate or missing, Design-Builder will simulate electricity production during the missing interval utilizing measured meteorological data and PVsyst. The simulated electricity production during the missing interval will be added to the Actual Electricity Generation for the subject Guarantee Year.

7. Adjustment of Expected Generation. If, and to the extent, any of the following events results in a material change in the production of electricity by a System, SETMC and SEAMC shall be adjusted correlatively for the period of such material change:

a. There is structural failure in a building which failure affects the support of the System or affects the integrity of the DAS.

b. The manufacturer of the solar specific equipment including any modules, inverters, racking, combiner boxes or monitoring equipment is not able or willing to honor its product warranty to District and District does not remedy by replacement at its own expense, provided that Design-Builder used its best efforts to assist the District in its attempts to oblige the manufacturer to comply with its warranty obligations.

c. In the event where Design-Builder requires the District’s reasonable cooperation to remedy any source of under-performance (such as tree trimming, or providing access to premises, for example) and is denied that cooperation within a commercially reasonable amount of time.

d. There is any failure of the System to perform caused by legislative, administrative or executive action, regulation, order or requisition of any federal, state or local government, local utility or public utilities commission;

e. There is an extended power outage;

f. There is an event of Force Majeure as defined in the Agreement; or

g. There is any change in usage of or structures on the Site, or buildings at or near the Site that materially affects the performance of the System(s) unless Design-Builder provides prior written consent to the change.

8. True-up. The Parties agree that no payment, if any is due, shall be issued until the end of each True-up Period. At the end of each True-up Period, Design-Builder shall provide District with a report detailing each System’s Actual Electricity Generation (in AC kWh) for each Guarantee Year of the True-up Period and the corresponding monetary value of such Generation based on the applicable TOU Rates and Utility Rate Escalation Factors. These values shall be based on the revenue grade utility meter measuring the output of the System. For each System and Guarantee Year, Design-Builder shall also provide a true-up calculation that compares the System’s Actual Electricity Generation and corresponding monetary value with the System’s SEAMC value (in kWh, adjusted to account for the applicable SEAMC:SETMC ratio, applicable Guarantee Level, and applicable CDR) and its corresponding SEAMC-based monetary value (in $, adjusted to account for the applicable UREF). When providing the District with a true-up report the Design-Builder shall, upon the District’s request, make reasonable efforts to explain the data, calculations, and the results, and shall make available the underlying data and calculations.

a. True-up Calculation for the Utility Avoided Costs. Design-Builder shall perform the following true-up calculation for each TOU Period for each Guarantee Year for each System in the True-up Period:

Step One: Calculate the Expected Utility Avoided Cost value as follows:

[SEAMC (kWh)] x [SEAMC/SETMC] x [.99] x [CDP] x [TOU Rate ($/kWh)] x [UREF]

Step Two: Calculate the Actual Utility Avoided Cost value as follows:

[Actual Electricity Generation (kWh)] x [TOU Rate ($/kWh)] x [UREF]

Step Three: Subtract the Expected Utility Avoided Cost value from the Actual Utility Avoided Cost value.

b. True-up Calculation for the CSI Incentive Payments. Design-Builder shall perform the following true-up calculation for each Guarantee Year in the True-up Period for any System eligible to earn a CSI incentive.

Step One: Calculate the Expected CSI Incentive Payments value as follows:

[SEAMC (kWh)] x [SEAMC/SETMC] x [.95] x [CSI Incentive Rate ($/kWh)]

Step Two: Calculate the Actual CSI Incentive Payments value as follows:

[Actual Electricity Generation (kWh)] x [CSI Incentive Rate ($/kWh)]

Step Three: Subtract the Expected CSI Incentive Payments value from the Actual CSI Incentive Payments value.

c. Determining the Penalty Payment, If Any: Sum all the Step Three results from the above calculations in subdivisions (a) and (b) for all TOU Periods, Guarantee Years, and Systems. If the sum is a negative dollar amount, the Design-Builder has underperformed according to the terms of the Output Guarantee during the True-up Period and owes a payment in this amount to the District. For example, a negative value of <$10,000> would mean that the Design-Builder owes $10,000 to the District. If the sum is zero or a positive number, the Design-Builder has exceeded the minimum required performance under the Output Guarantee and therefore owes no payment to the District for this True-up Period.

d. Making a Required Penalty Payment. A required penalty payment shall be made within 30 days of receipt of the true-up report by District from Design-Builder as long as the District does not dispute the report results. Should the District dispute the report results, Parties agree to make good-faith efforts to address and resolve the cause of the dispute.

The SETMC for each System is based upon the Systems to be built by Design-Builder as specified in Exhibit A-1 of the Agreement. The SETMC (and SEAMC) for each System may be adjusted as may be necessary as a result of any changes to the Scope of Work or redesigns of the System or substitution of alternate System made subsequent to execution of this Contract.

The following tables contain the values that shall be used to determine Design-Builder’s compliance with this Output Guarantee Agreement and to calculate any monetary payments to the District required under this Agreement.

The Parties acknowledge that the Time-of-Use (“TOU”) data in Table 1 to this Output Guarantee (i.e., the values for the three Summer TOU periods and the two Winter TOU periods) are based on data and calculations that are embedded in Excel Worksheets that are not included in this Output Guarantee. The Parties agree that if either Party believes that any of these data in Table 1 are incorrect, the Parties shall, in good faith, meet and confer and revise these tables as may be needed to correct the TOU data, and to, when required, amend this Output Guarantee to reflect the correct and revised data, as long as this process is completed at least 60 days prior to the Systems' Final Completion Date.

Table 1. Expected Output (kWh) During First Guarantee Year (SETMC),

by System and by Time of Use Period

System Description Total Year

Summer Peak

Summer Partial-Peak

Summer Off-Peak

Winter Partial-Peak

Winter Off-

Peak

A

Fremont Ground Tracker

– Sanyo modules

2,107,973 

550,292

405,342

429,142

481,451

241,746

B-1 Newark Carport Tracker 296,331  80,418 56,466 61,015 65,853 32,578

B-2 Newark Carport Tracker 2,147,346 577,828 410,703 441,073 480,026 237,716

Table 2. PG&E Time of Use (“TOU”) Energy Rates by Tariff ($/kWh) in Effect on Date of Contract Execution

Summer Winter

Tariff Peak Partial-Peak Off-Peak Partial-Peak Off-Peak

E20 P .14160 .09939 .08128 .08718 .07800

A6 .44703 .20182 .12183 .16794 .12503

A6 RES-BCT .23550 .08923 .04221 .06796 .04283

Table 3. Applicable PG&E Time of Use (“TOU”) Periods

SUMMER Period: May 1 through October 31

Summer Peak Period: 12:00 noon to 6:00 p.m. Monday through Friday (except Holidays)

Summer Partial-Peak Period: 8:30 a.m. to 12:00 noon and 6:00 p.m. to 9:30 p.m., Monday through Friday (except Holidays)

Summer Off-Peak Period: 9:30 p.m. to 8:30 a.m. Monday through Friday and all day Saturday, Sunday, and Holidays

WINTER Period: November 1 through April 30

Winter Partial-Peak Period: 8:30 a.m. to 9:30 p.m. Monday through Friday (except Holidays)

Wiinter Off-Peak Period: 9:30 p.m. to 8:30 a.m. Monday through Friday (except Holidays) and all day Saturday, Sunday, and Holidays

HOLIDAYS: “Holidays” are New Year’s Day, President’s Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, and Christmas Day. The dates will be those on which the holidays are legally observed.

Table 4. Utility Rate Escalation Factors

Guarantee Year 

Utility Escalation Factor 

1  1.030 2  1.061 3  1.093 4  1.126 5  1.159 6  1.194 7  1.230 8  1.267 9  1.305 10  1.344 11  1.384 12  1.426 13  1.469 14  1.513 15  1.558 16  1.605 17  1.653 18  1.702 19  1.754 20  1.806 21  1.860 22  1.916 23  1.974 24  2.033 25  2.094 

IN WITNESS WHEREOF, the parties hereto have executed this Output Guarantee as of the date first above written.

OHLONE COMMUNITY COLLEGE DISTRICT

Date: , 2011

By:

Print Name:

Print Title:

Address:

Telephone:

Facsimile:

E-Mail:

BORREGO SOLAR SYSTEMS, INC. Date: , 2011

By:

Print Name:

Print Title:

License No.:

Address:

Telephone:

Facsimile:

E-Mail: