HomeMy WebLinkAboutState of California - California Energy Commission Loan Agreement^TE ; -F CALIFORNIA
LOAN AGREEMENT
CEC -142 (05110)
Bond Funded February 10, 2014 AFLFMS
V:1— PENDING Loan Agreements^ \Bond LoanslBond Loan Templates CALIFORNIA ENERGY COMMISSION
BORROWER
City of Gilroy
AGREEMENT NUMBER
010- 13 -ECD
ADDRESS
7351 Rosanna Street
AGREEMENTTERM
4/22/2014 to 5/31/2015
Gilroy, CA 95020
The effective date of this Agreement is the date the California Energy
Commission signs the Agreement. No work is authorized, or shall begin until
the California Energy Commission signs the Agreement. See the signature date
below for effective Start date.
The parties agree to comply with the terms and conditions of the following Exhibits which are by this reference made a
part of the agreement.
Exhibit A — Energy Conservation Assistance Act Loan Agreement
Page(s): 10
Exhibit A — Attachment 1 — Budget Detail /Project Cost and Savings Page(s): 01
Exhibit B — Promissory Note
Page(s): 03
Exhibit B — Attachment 1 — Estimated Amortization Schedule
Page(s): 02
Exhibit C — Tax Certificate
Page(s): 03
Exhibit D — Federal Provisions
Page(s): 01
Exhibit D — Attachments
Page(s): 00
Exhibit E — Special Terms and Conditions
Page(s): 01
Exhibit F — Contacts
Page(s): 01
$ 1, 812, 722.00
$ 0.00
$ 1, 812, 722.00
The undersigned parties have read the attachments to this agreement and will comply with the standards and requirements contained therein.
CALIFORNIA ENERGY COMMISSION
AUTHORI IGNATURE DATE T
J l
NAME PHONE NAME
Rachel L. Grant Kiley (916) 654 -4379 1 ho rY
TITLE n
Contracts, Grants and Loans Office Manager U
CALIFORNIA ENERGY COMMISSION ADDRESS
1516 9th Street, MS -18, Sacramento, CA 95814
RECIPIENT
IRE DATE
�� � PHONE
02D 2—
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City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
EXHIBIT A
ENERGY CONSERVATION ASSISTANCE ACT LOAN AGREEMENT
This Loan Agreement (the "Agreement ") is entered into as of the date it is executed by
both parties hereto, between the California Energy Resources Conservation and
Development Commission (the "Energy Commission ") and the City of Gilroy (the
"Borrower") located in Santa Clara County, CA.
1. STATUTORY AUTHORITY AND LOAN
A. Pursuant to the purposes authorized by section 25410, et seq., of the
California Public Resources Code (the "Energy Conservation Assistance
Act "), the Energy Commission has approved the Borrower's loan
application dated December 11, 2013, which is not . attached but is
expressly incorporated by reference herein.
B. Subject to the terms, covenants, conditions, and including Special
Conditions (if applicable) contained herein, and the Budget
Detail /Summary of Project Cost and Savings attached as Exhibit A,
Attachment 1 hereto to the extent it modifies the Borrower's loan
application, the Energy Commission shall make a loan to the Borrower
(the "Loan ") in the amount of one million eight hundred twelve thousand
seven hundred twenty two dollars ($1,812,722.00) evidenced by a
Promissory Note (the "Promissory Note ") for loan number 010 -13 -ECD
attached hereto as Exhibit B.
2. PURPOSE
The Borrower agrees to expend all funds disbursed pursuant to this Agreement
only for the purposes and in the amounts set forth in Exhibit A, Attachment 1 (the
"Project "). Any other use of funds disbursed hereunder shall require prior written
approval by the Energy Commission.
3. LOAN DISBURSEMENT SCHEDULE
A. The Energy Commission agrees to disburse funds to the Borrower upon
the Borrower's execution of the attached Promissory Note and required
supplemental documents, including invoices as required in Section 3.B
below.
B. Loan funds shall be disbursed on a reimbursement basis based on
invoices submitted by Borrower in a form approved by the Energy
Commission. Backup documentation for actual expenditures (such as
timecards, vendor invoices, etc.) and proof of payment must be provided
Bond- Funded Loan Agreement Exhibit A 010 -13 -ECD
Rev. February 10, 2014 AFLFMS Page 1 of 10 City of Gilroy
1. A.
to substantiate the request. Energy Commission staff will approve
invoices only after verifying requested amounts against backup billings
and determining that expenses are appropriate and used for the
authorized purposes of this Loan. For executed Agreements; invoices for
expenses incurred during the Agreement Term are eligible for
reimbursement.
C. All invoices must be submitted within sixty (60) days after Project
completion.
D. The final ten percent (10 %) of the Loan amount will be withheld as
retention until the final report is received from the Borrower and the
Commission's Project Manager determines the Project has been
satisfactorily completed.
4. LOAN REPAYMENT AND INTEREST
All funds disbursed hereunder, together with all interest payable thereon, shall be
repaid to the Energy Commission in accordance with the terms of the Promissory
Note. The Loan shall bear simple interest at the annual rate set forth in the
attached Promissory Note on the principal balance of Loan funds disbursed to
the Borrower. Payment of said interest shall be due at the time of semiannual
scheduled Loan repayment installments to the Energy Commission and interest
shall accrue from the time of disbursal of funds to the Borrower until receipt of full
Loan repayment to the Energy Commission.
5. TERM
A. The effective date of this Agreement shall be the date on which it has
been executed by both parties hereto. No .work is authorized, or shall
begin until the Energy Commission signs the Agreement.
B. The Borrower agrees to complete performance of its obligations under this
Agreement within the applicable periods stated in this Agreement.
6. PREPAYMENT
The Borrower shall have the right to prepay all or any part of the amount of this
Loan at any time without penalty.
7. PROMISSORY NOTE
In order to evidence its debt to the Energy Commission hereunder, the Borrower
agrees to, contemporaneously with the execution of this Agreement, execute and
Bond - Funded Loan Agreement Exhibit A 010- 13 -ECD
Rev. February 10, 2014 AFLFMS Page 2 of 10 City of Gilroy
. 1, , ' I, , .
a
deliver to the Energy Commission the Promissory Note (attached as Exhibit B
hereto).
ACCOUNTS, AUDITS, AND RECORDS
A. The Borrower agrees to establish on its books a separate account for this
Loan. This account shall be maintained. as long as the Loan obligation
remains unsatisfied.
B. The Borrower further agrees to maintain records that accurately and fully
show the date, amount, purpose, and payee of all expenditures drawn on
said account for three (3) years after this Loan is repaid in full unless the.
Energy Commission requests a longer retention period.
C. The Borrower further agrees to utilize a voucher system by which all
expenditures from said account will be authorized and authenticated.
D. The Borrower further agrees to allow the Energy Commission or any other
agency of the State of California (the "State ") or their designated
representatives, on written request, to have reasonable access to, and the
right of inspection of, all records that pertain to said account or the Project.
The Borrower also agrees to submit to an independent audit, if requested
by the Energy Commission, at the expense of the Borrower. Borrower
agrees to maintain all such records for a minimum of three years after this
Loan is repaid in full unless the Energy Commission notifies the Borrower,
prior to the expiration of such three -year period, that a longer period of
record retention is necessary.
SOURCE OF REPAYMENT; OPERATION OF PROJECT
A. Semiannual payments due to the Energy Commission under this
Agreement shall be made from savings in energy costs or other legally
available funds as the Borrower chooses. If the Borrower is a county, city,
town, township, board of education, or school district, the Borrower agrees
that the amount of the semiannual Loan repayment shall not be raised by
the levy of additional taxes and shall not be an obligation against tax
revenues, but shall be obtained either from savings in energy costs
resulting from the subject energy conservation projects or other legally
available funds as the Borrower chooses.
B. Energy cost savings as determined by the Energy Commission are based
on energy usage and serving utility rate schedules at the time of the
issuance of this Loan, except as specified in Special Conditions, if any, as
detailed in this Agreement, and the information and data contained in the
Borrower's loan application and technical study. The following will not
Bond - Funded Loan Agreement Exhibit A 010- 13 -ECD
Rev. February 10, 2014 AFLFMS Page 3 of 10 City of Gilroy
affect the Energy Commission's initial finding of energy cost savings, and
are not a basis for claiming a lack of energy savings:. a) changes in
energy use and /or rate schedules which occur after issuance of the Loan,
except as specified in Special Conditions, if any, as detailed in this
Agreement, b) deviations in the Project work scope from what was
approved by the Energy Commission, c) changes in the Borrower's facility
and /or equipment which occur after the issuance of the Loan, including,
but not limited to maintenance, operations, schedules, employees and
facility alterations and expansions, d) deviations, omissions or errors
found in the loan application and technical study after the Loan award.
_The Borrower is responsible for ensuring the accuracy of the information
contained in its loan application and technical study. In the event annual
energy cost savings resulting from the Project, as determined by the
Energy Commission, fail to equal or exceed the amount due under this
Agreement, this Agreement may be renegotiated to assure that the
repayment amount does not exceed the actual energy savings or avoided
costs resulting from the Project, and the Promissory Note will be revised
accordingly. In no event, however, will the number of semiannual
installments ,payable hereunder and under the Promissory Note exceed
forty.
C. The Borrower shall obtain and maintain in its records any and all permits
and licenses required to install or operate the Project and, shall comply
with all local, state, and federal laws, rules and codes concerning the
Project. The Borrower shall maintain the Project in good working order for
the duration of the Loan and shall insure that staff members are provided
appropriate training on the operation and maintenance of the Project. The
Borrower shall maintain insurance on the Project and, in the event of any
casualty loss covered by such insurance policy, apply the proceeds to the
repair of the Project or, with the approval of the Energy Commission, may
use the insurance proceeds to install alternate projects to generate
alternative energy cost savings to repay the Loan.
D. The Borrower agrees to provide the Energy Commission with the following
information for three years following completion of the Project, unless the
Energy Commission requests a longer period: (1) the annual computation,
required by Section 25414 of the Energy Conservation, Assistance Act, of
energy cost savings for the most recent fiscal year, calculated in the
manner and provided in the format prescribed by the Energy Commission;
and (2) any information or change in assumptions or operations which
might affect the Energy Commission's initial determination of energy
savings.
E. The Borrower authorizes any official or agent of the Energy Commission,
or the State to conduct physical inspections of the Project before the
Bond- Funded Loan Agreement Exhibit A 010- 13 -ECD
Rev. February 10, 2014 AFLFMS Page 4 of 10 City of Gilroy
.r
commencement; during construction, installation and implementation of
the Project; and at any time prior to the complete repayment of the Loan.
In each contract entered into with suppliers of goods and services to
install, conduct, or operate the Project, including management services,
the Borrower shall include terms which allow any officer or agent of the
Energy Commission or the State access to the Project site and to any
books, documents, or records directly relevant to the Project.
F. Borrower will execute a continuing disclosure agreement to provide annual
information and other operating or financial information as required by the
Energy Commission and applicable law if Borrower is notified by the
Energy Commission that: 1) its aggregate loan repayments equal or
exceed 10 percent of the aggregate annual debt service on any series of
Bonds, the repayment of which is secured by such loan or loans of the
Borrower; or 2) its aggregate loans represent more than 10 percent of the
aggregate principal amount of all Bond- funded loans pledged to a single
Bond series.
G. If, prior to final repayment of the Loan, the Borrower sells the equipment or
Material installed with the proceeds of the Loan or sells the building,
facility or system in which the Project has been implemented, then the
Borrower shall apply the sale proceeds to repay any .remaining balance
due under this Agreement in full at the time of such sale. All such
transactions shall comply with the requirements in Exhibit C, Borrower Tax
Certificate. The Borrower shall notify the Energy Commission within five
business days of the date on which the Borrower enters into an agreement
to effect such transaction. The Borrower shall repay the Energy
Commission within 30 calendar days of receiving an invoice from the
Energy Commission for the balance due.
H. In accordance with Section 25415 of the Energy Conservation Assistance
Act, the Borrower covenants to take such action as may be necessary to
include all payments due hereunder in its annual budget and to make the
necessary annual appropriations for all such payments. The obligation of
the Borrower to make such payments shall be limited to the savings
realized by the Borrower as a result of implementing the Project funded by
the Loan.
10. DEFAULT
A. The Borrower's failure to comply with any of the terms of this Agreement
shall constitute a breach of this Agreement and an event of default. In
such case, the Energy Commission may declare this Agreement to have
been breached and be released from any further performance hereunder.
Bond - Funded Loan Agreement Exhibit A
Rev. February 10, 2014 AFLFMS Page 5 of 10
010- 13 -ECD
City of Gilroy
ti. -
B. In the event of any default or breach of this Agreement by the Borrower,
the Energy Commission, without limiting any of its other legal rights or
remedies, may,, to the extent permitted by law, declare the Promissory
Note evidencing this Loan to be immediately due and payable from
Borrower's savings realized by Borrower as a result of implementing the
Project funded by this Loan or Borrower's other sources, but in no event
from revenue raised by the levy of additional taxes.
11. TERMINATION
A. With Cause
The Energy Commission may, at its option, terminate this Agreement with
cause in whole or in part, at any time prior to the funding of the Loan, upon
giving five (5) days advance notice in writing to the Borrower. "Cause"
includes without limitation:
1) Failure to perform or breach of any of the terms or covenants at the
time and in the manner provided in this Agreement; or
2) Significant change in Energy Commission or State policy such that
the work or product being funded would not be supported by the
Energy Commission; or
3) Reorganization to a business entity unsatisfactory to the Energy
Commission.
B. Without Cause
The Energy Commission may, at its option, terminate this Agreement
without cause in whole or in part, at any time prior to the funding of the
Loan, upon giving thirty (30) days advance notice in writing to the
Borrower.
12. REPORTING
A. Progress reports are due each calendar quarter until Project completion.
At a minimum, Borrower shall submit progress reports in accordance with
the followina schedule:
PROGRESS REPORT SCHEDULE.
For the Period Covering
Report Due Date
January 1 through March 31
Aril 30
April 1 through June 30
July 31
July 1 through September 30
October 31
October 1 through December 31
January 30
Bond - Funded Loan Agreement Exhibit A 010- 13 -ECD
Rev. February 10, 2014 AFLFMS Page 6 of 10 City of Gilroy
13
B. A final report is due no later than (sixty) 60 days after Project completion.
C. The Energy Commission will not process an invoice unless the Borrower's
report submittals are up to date.
D. if requested by the Energy Commission, Borrower shall submit, within ten
(10) days after the Energy Commission's written request, a status report
on its activities to date, pursuant to this Agreement.
E. Reports shall be in a format as determined by the Energy Commission.
F. The Borrower shall submit reports regarding energy savings as described
in Section 9_D above.
GENERAL TERMS
A. Indemnification by the Borrower. The Borrower agrees to indemnify,
defend, and save harmless the Energy Commission, the State, and their
officers, agents, and employees from any and all claims, losses, or costs
(including reasonable attorney fees) arising out of, resulting from, or in any
way connected with: (1) the Loan or this Agreement, or the financing or
the operation of the facilities financed with the Loan; or (2) the Borrower's
violation or alleged violation of any tax covenant made or tax certificate
executed in connection with the Loan or this Agreement or any action of
the Borrower that causes interest on any bonds secured by repayment of
the Loan to be included in gross income of the owners of such bonds for
federal income tax purposes.
B. Ownership of Equipment and Material. All equipment and material
acquired under this Agreement shall become the property of the Borrower
at time of purchase. The Borrower shall obtain and maintain in its records
a written waiver of all claims, other than those previously made in writing
and still unsettled, from each contractor who supplies goods and services,
including management services, in connection with the Project.
C. Independent Capacity. The Borrower, and the agents and employees of
the Borrower, in the performance of this Agreement, shall act in an
independent capacity and not as officers or employees or agents of the
Energy Commission or the State of California.
D. Assignment. Without the written consent. of the Energy Commission, this
Agreement is not assignable or transferable by the Borrower either in
whole or in part. The Energy Commission may assign its rights under this
Agreement for security purposes, and in such event the assignee of this
Bond - Funded Loan Agreement Exhibit A 0'10- 13 -ECD
Rev. February 10, 2014 AFLFMS Page 7 of 10 City of Gilroy
Loan Agreement, including the bond trustee of any bonds which may be
secured by repayment of this Loan, shall be entitled to enforce the
provisions hereof and shall be a third party beneficiary of this Agreement.
E. Time of the Essence: Time is of the essence in this Agreement. Borrower
is required to take timely actions which, taken collectively, move to
completion of the purpose for which this .Loan was awarded. The
Commission Project Manager will periodically evaluate the progress
toward completion. If the Commission Project Manager determines that
the Borrower is not progressing toward completion within one (1) year
after the effective date of this Agreement,. the Commission Project
Manager may, without penalty or prejudice to any of the Energy
Commission's other remedies, terminate this Agreement..
F. Amendment., No amendment or variation of the terms of this Agreement
shall be valid unless made in writing and signed by the parties hereto, and
no oral understanding or agreement not incorporated herein shall be
binding on any of the parties hereto.
G. Severability. In the event that any provision of this Agreement is
unenforceable or held to be unenforceable, then the parties agree that all
other provisions of this Agreement have force and effect and shall not be
affected . thereby.,
H. Governing Law and Venue. This Agreement is governed by and shall be
interpreted in accordance with the laws of the State of California. Venue
shall be in Sacramento County.
I. Non- discrimination. During the performance of this Agreement, the
Borrower and its contractors and subcontractors shall not unlawfully
discriminate, harass, or allow harassment against any employee or
applicant for employment because of sex, race, color, ancestry, religious
creed, national origin, physical disability (including HIV and AIDS), mental
disability, medical condition (cancer), age (over 40), marital status, and
family care leave. The Borrower and its contractors and subcontractors
shall insure the evaluation and treatment of their employees and
applicants for employment are free from such discrimination and
harassment. The Borrower and its contractors and subcontractors shall
comply with the provisions of the Fair Employment and Housing Act
(Government Code Section 12990 (a -f) et seq.) and the applicable
regulations promulgated thereunder (California Code of Regulations, Title
2, Section 7285 et seq.). The applicable regulations of the Fair
Employment_ and Housing Commission implementing Government Code
Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the
California Code of Regulations, are incorporated into this agreement by
Bond - Funded Loan Agreement Exhibit A 010- 13 -ECD
Rev. February 10, 2014 AFLFMS Page 8 of 10 City of Gilroy
reference and made a part hereof as if set forth in full. The Borrower and
its contractors and its subcontractors shall give written notice of their
obligations under this clause to labor organizations with which they have a
collective bargaining or other agreement. The Borrower and its
contractors shall include the nondiscrimination and compliance provisions
of this clause in all subcontracts to perform work under this Agreement.
J. Incorporation of Energy Conservation Assistance Act. The Energy
Conservation Assistance Act, together with any applicable rules,
regulations or procedures authorized by such statute, is incorporated by
reference in this Agreement.
K. Borrower Authorization. The Borrower certifies it has full power and
authority to enter into this Agreement, and this Agreement has been duly
authorized, executed and delivered by the Borrower. The Borrower
acknowledges the resolution of its governing body or other official action
authorizing it to enter into this Agreement. The Borrower also authorizes
such further acts as are necessary, including execution of the Promissory
Note, to implement and further the intent of this Agreement.
L. Prevailing Wage. The Borrower shall comply with Chapter 1 (commencing
with Section 1720) of Part 7 of Division 2 of the Labor Code relating to the
payment of prevailing wage for work performed on the Project financed in
whole or in part with the proceeds of the Loan.
M. Funding Eligibility. By signing this Agreement, Borrower certifies it is
eligible to receive state funding under all applicable laws, including but not
limited to Chapter 2.8 "Project Labor Agreements ", of Part 1, of Division 2
of the Public Contract Code.
14. TAX COVENANTS
The Borrower acknowledges that the proceeds of bonds issued by the California
Infrastructure and Economic Development Bank, or other issuer authorized by
law, may be used to fund all or a portion of this Loan and, in consideration of
such funding, the Borrower hereby covenants that it shall not take any action, or
fail to take any action, if any such action or failure to take action would adversely
affect the exclusion from gross income of interest on such bonds under Section
103 of the Internal Revenue Code of 1986 and the regulations issued thereunder,
as the same may be amended from time to time. In furtherance of the preceding
sentence, the Borrower hereby covenants that it will comply with the provisions of
the Tax Certificate which is attached hereto as Exhibit C and incorporated herein
as if fully set forth herein.
Bond - Funded Loan Agreement Exhibit A 010- 13 -ECD
Rev. February 10, 2014 AFLFMS Page 9 of 10 City of Gilroy
15. NOTICE
Any notice required to be given to the Energy Commission hereunder shall be
sent to the person and address listed under Legal Notices in Exhibit F, Contacts,
or at such other address as the Energy Commission may designate in writing to
the Borrower. Any notice required to be given to the Borrower hereunder shall
be sent to the address shown for Borrower in this Agreement, or at such other
address as the Borrower shall designate in writing to the Energy Commission.
Notice to either party may be given using the following delivery methods: U.S.
mail, overnight mail, or personal delivery, providing evidence of receipt, to the
respective parties identified in this Agreement. Delivery by fax or e-mail is not
considered notice for the purposes of this Agreement. Notice shall be effective
when received, unless a legal holiday for the State commences on the date of
the attempted delivery in which case the effective date shall be postponed
24 hours, or whenever the next business day occurs.
Bond - Funded Loan Agreement Exhibit A 010- 13 -ECD
Rev. February 10, 2014 AFLFMS Page 10 of 110 City of Gilroy
EXHIBIT A
ATTACHMENT 1
BUDGET DETAIL/PROJECT COST AND SAVINGS
This loan is made to the City of Gilroy ( "Borrower ") for an energy savings Project. The
Project consists of retrofitting approximately 3,914 streetlights to LED technology to be
installed in the City of Gilroy located in Santa Clara County, CA.
The Table below summarizes the estimated Project cost(s), saving(s) and simple
payback(s) for the Project.
TABLE 1: Summary of Project Cost and Savings:
* The simple payback is based on the loan amount.
The Borrower shall implement each measure listed in Table 1.
If Borrower does not complete one or more of the measures or deviates from the
quantities and specifications listed in Table 1, the Energy Commission will calculate the
maximum loan amount supported by the Project. The loan amount will be determined
by the lesser of: (1) multiplying the annual energy cost savings by 15; (2) total Project
costs; or (3) approved loan amount.
A letter of agreement or loan amendment may be necessary to document these
changes, at the discretion of the Energy Commission. If the Borrower has received
disbursements exceeding the maximum loan amount supported by the Project, the
Borrower shall refund the difference to the Energy Commission within 30 days of
notification.
ECD Budget Details Exhibit A, Attachment 1 010- 13 -ECD
Rev 3 -13 -14 Page 1 of 1 City of Gilroy
Estimated
E nergy
Estimated
Simple
Energy Efficiency
Total
Commission
Annual Energy
Payback*
Projects
Project
Loan
Cost Savings
(Years)
Cost
EEM #1: HPS to LED
$1,812,722
$143,622,
}
Streetlight Retrofit
>�utia
TOTALS:
$1,812,722
$1,812,722
$143,622
12.6
* The simple payback is based on the loan amount.
The Borrower shall implement each measure listed in Table 1.
If Borrower does not complete one or more of the measures or deviates from the
quantities and specifications listed in Table 1, the Energy Commission will calculate the
maximum loan amount supported by the Project. The loan amount will be determined
by the lesser of: (1) multiplying the annual energy cost savings by 15; (2) total Project
costs; or (3) approved loan amount.
A letter of agreement or loan amendment may be necessary to document these
changes, at the discretion of the Energy Commission. If the Borrower has received
disbursements exceeding the maximum loan amount supported by the Project, the
Borrower shall refund the difference to the Energy Commission within 30 days of
notification.
ECD Budget Details Exhibit A, Attachment 1 010- 13 -ECD
Rev 3 -13 -14 Page 1 of 1 City of Gilroy
EXHIBIT B
PROMISSORY NOTE
LOAN NUMBER: 010 -1'3 -ECD
PRINCIPAL AMOUNT: $1,812,7.2. 2
INTEREST RATE: 1.00%
For value received, the undersigned, (hereinafter referred to as the "Borrower "),
promises to pay to the order of the State of California, Energy Resources
Conservation and Development Commission (hereinafter referred to as the
"Energy Commission "), at its principal place of business at 1516 Ninth Street,
Sacramento, California 95814; or at such other place as the Energy Commission .
may designate the principal sum of one million eight hundred twelve thousand
seven hundred twenty two dollars ($1,812,722) or such lesser amount as shall
equal the aggregate amount disbursed to the Borrower by the Energy
Commission pursuant to the above - referenced Energy Conservation Assistance
Act Loan Agreement (the "Loan Agreement ") between the Borrower and the
Energy Commission, together with interest thereon at the rate of 1.00% percent
per annum on the unpaid principal, computed from the date of each
disbursement to the Borrower. Principal, together with interest thereon, is due
and payable in semiannual installments as specified in the Estimated
Amortization Schedule, attached hereto as Exhibit B, Attachment 1 and as
amended in .the Final Amortization Schedule, beginning on or before December
2.2 of the fiscal year following the year in which the Project is completed and
continuing thereafter on each June 22 and December 22 until said principal and
interest shall be paid in full. The Final Amortization Schedule, and any amended
Final Amortization Schedule(s), are not attached but are expressly incorporated
by reference herein.
2. Payments received will be first applied to billed interest, if any, and the balance, if
any, to principal. If all principal is repaid, the balance is applied to accrued
interest.
3. Payment of any scheduled installment received within thirty (30) days of the due
date shall be considered to have been received on the due date. Interest on the
principal portion of the payment accrues through the due date.
4. Payment of any scheduled installment received more than thirty (30) days after
the due date shall be considered late. Interest on the principal portion of the
payment accrues through the actual date payment is received.
5. The Borrower may prepay this Promissory Note in full or in part, without penalty.
6. In accordance with Section 25415 of the Energy Conservation Assistance Act,
the Borrower covenants to take such action as may be necessary to include all
payments due hereunder in its annual budget and to make the necessary annual
appropriations for all such payments. The obligation of the Borrower to make
Bond Funded Promissory Note Exhibit B
Rev. February 10, 2014 AFLFMS Page 1 of 3
010 -13 -ECD
City of Gilroy
such payments shall be limited to the savings realized by the Borrower as a
result of implementing the Project funded by the Loan or Borrower's other
sources, but in no event from Borrower's revenue raised by the levy of additional
taxes. In the event of any default or breach of the Loan Agreement by the
Borrower, the Energy Commission, without limiting any of its other legal rights or
remedies, may, to the extent permitted by law, declare this Promissory Note to
be immediately due and payable from Borrower's savings in energy costs or
Borrower's other sources, but in no event from revenue raised by the levy of
additional taxes.
7. If any installment is not paid within thirty (30) days after its due date, the Energy
Commission, at its option, may require the Borrower to pay a late charge equal to
five percent (5 %) of the amount. of the installment or Five Dollars ($5.00),
whichever is greater.
8. On the occurrence of any event of default, the Energy .Commission, at its sole
election and without limiting any of its other legal rights or remedies, � may, to the
extent permitted by law, declare all or any portion of the principal and accrued
interest on this Promissory .Note to be immediately due, and payable and may
proceed at once without further notice to enforce this Promissory Note according
to law.
9. Each of the following occurrences shall constitute an event of default:
A. Failure of the Borrower to repay any principal or interest when due under
the terms of this Promissory Note;
B. Termination of the Loan Agreement pursuant to the terms thereof or
breach by the Borrower of any terms of said Loan Agreement;
C. Failure of the Borrower to undertake in a timely way the express and
implied activities for which said Loan Agreement has been executed;
D. Failure of the Borrower to obtain prior written Energy Commission
approval before undertaking a change in the scope of the activities for
which said Loan Agreement has been executed; or
E. Occurrence of: (1) the Borrower becoming insolvent or bankrupt or being
unable or admitting in writing its inability to pay its debts as they mature or
making a general assignment for the benefit of or entering into any
composition or arrangement with creditors; (2) proceedings for the
appointment of a receiver, trustee, or liquidator of the assets of the
Borrower or a substantial part thereof, being authorized or instituted by or
against the Borrower; or (3) proceedings under any bankruptcy,
reorganization, readjustment of debt, insolvency, dissolution, liquidation or
other similar law, or any jurisdiction being authorized or instituted against
the Borrower.
Bond Funded Promissory Note Exhibit B 010- 13 -ECD
Rev. February 10, 2014 AFLFMS Page 2 of 3 City of Gilroy
r
10. No delay or failure of the Energy Commission in the exercise of any right or
remedy hereunder or under any other agreement which secures or is related
hereto shall affect any such right or remedy, and no single or partial exercise of
any such right or remedy shall preclude any further exercise thereof, and no
action taken or omitted by the Energy Commission shall be deemed a waiver of
any such right or remedy.
11. Any notice to the Borrower provided for in this Promissory Note shall be given by
mailing such notice by certified mail, return receipt requested, addressed to the
Borrower at the address stated in the Loan Agreement, or to such other address
as the Borrower may designate by notice to the Energy Commission. Any notice
to the Energy Commission shall be given by mailing such notice by certified mail,
return receipt requested, to the Energy Commission at the address stated in the
Loan Agreement, or at such other address as may have been designated by
notice to the Borrower.
12. If suit is brought to collect any part of this Promissory Note, the Energy
Commission shall be entitled to collect all reasonable costs and expenses of said
suit and any appeal therefrom, including reasonable attorney's fees.
13. This Promissory Note shall be binding upon the Borrower and its permitted
successors and assigns and upon the Energy Commission and its permitted
successors and assigns. Without the written consent of the Energy Commission,
this Promissory Note is not assignable or transferable by the Borrower either in
whole or in part. The Energy Commission may assign its rights under this
Promissory Note for security purposes, and in such event the assignee of this
Promissory Note, including the bond trustee of any bonds which may be secured
by repayments of this Promissory Note, shall be entitled to enforce the provisions
hereof and shall be a third party beneficiary of this Promissory Note.
14. This Promissory Note shall be construed and enforced in accordance with the
laws of the State of California.
City of Gilroy
BORROWER
1-
I
ED NAME OF AU ORIZED C7? ENTATIVE
AUTHORIZED IGNATURE
�- �d m ,� ►
TITLE
ci ir-jjzo1y
DATE
Bond Funded Promissory Note Exhibit B
Rev. February 10, 2014 AFLFMS Page 3 of 3
010- 13 -ECD
City of Gilroy
State of California
Energy Resources Conservation
and Development Commission
1516 Ninth Street
Sacramento, California 95814-5512
Exhibit B-1 Estimated Amortization Schedule
Loan Number:
010-13-ECD
Number of Payments:
28
Recipient.
City of Gilroy
Estimated Disbursement Date:
7/22/2014
Loan Amount:
$1,812,722.00
Estimated Project Completion Date:
5/31/2014
Interest Rate:
1.00%
Annual Energy Savings:
$1431622.00
--Un§6K6dU1ed"-;Unscheduled.
Trensachon Payment !nvoic FWAwfi- -p'a
�
-J,
Principal
. Amount A Un
Amount'
R Z Sj
.,Ti aymenVAMq Pff 9p 1361affid
R MEM M"
, W 0 FAU7 QJP-Ma ;82,722^ DD
Payment 1
12/22/2014
$7,598.53
$69,486.09
$7,598.53
$61,887.56
$1,750,834.44
�:A/;Z,2' id15
f 0, 9
8 .1
486.09
69,,'
$8730.19
$00;755.90
,
$1;690,078 .54,
Payment 3
12/22/2015
$8,473.54
$69,486.09
$8,473.54
$61,012.55
$1,629,066.00
Payment 4 -y�. 2 , 0 1 .6.
$8
��6 486.09
$01,67.65
$601& 1 44,
.55
Payment 5
12/22/2016
$7,860.21
$69,486.09
$7,860.21
$61,625.88
$1,506,121.68
7
7 509., 8
$69i486:09
510998
$61,976 11
$i�4�14556
Payment 7
12/22/2017
$7,240.51
$69,486.09
$7,240.51
$62,245.58
$1,381,899.98
Payment8 6/22/2018
$6,890.57: " ' - , '
$6- 9 -,486.09
$6;890-57
$62,595.52
$1,319,304 .46
Payment 9
12/22/2018
$6,614.59
$69,486.09
$6,614.59
$62,871.50
$1,256,432.97
Payment l0'
6/22/2019
$6,264.95
$69;486:09
$&,264.95
$63,231 1.14,
R
2 ' 1�
11i§ , 11 wi 1...'
Payment 11
12/22/2019
$5,982.40
$69,486.09
$5,982.40
$63,503.69
$1,129;708.15
t
-61�U2020...
$5;6641,02-,:
$09j486.09
$5,'064.02
$631822.07
$1,065,886x07
Payment 13
12/22/2020
$5,344.03
$69,486.09
$5,344.03
$64,142.06
$1,001,744.01
�P
.6/22/2021
$4995.0 0
$69 486.09
$4,995.00
$64,49LO9
$9371252.92
Payment 15
12/22/2021
$4,699.10
$69,486.09
$4,699.10
$64,786.99
$872,465.93
Oa men A6
6/22/2022
$4,350.38
$,69486.09
$4,350.38
$65,135.71
007,330.12
Payment 17
12/22/2022
$4,047.71
$69,486.09
$4,047.71
$65,438.38
$741,891.84
Payrne I nt I 1 8
6/22/2023 .
$3;699.30
$69,486.09
$3,699.30
$65,786.79
$676,105.05
Payment 19
12/22/2023
$3,389.79
$69,486.09
$3,389.79
$66,096.30
$610,008.75
Payment 26.
6/22/2624
$3,058A0
$69,486.09
$3,058.40
$66,427.69
$543,581.06
Payment 21
12/22/2024
$2,725.35
$69,486.09
$2,725.35
$66,760.74
$476,820.32
ent2
6/22/2025
$2,377.51
$69,486.09
$2,377.57
$67,108.52
$409,711.80
Payment 23
12/22/2025
$2,054.17
$69,486.09
$2,054.17
$67,431.92
$342,279.88
Poyme - 6t:24
6/22/2026
$1,706.71
$69,486.09
$1,706.71
$67,779.38
$274,500.50
Payment 25
12/22/2026
$1,376.26
$69,486.09
$1,376.26
$68,109.83
$206,390.67
State of California
Energy Resources Conservation
and Development Commission
1516 Ninth Street
Sacramento, California 95814-5512
Payment,26
02913 $69,486 09
U
1029. 13� w;933.71
Payment 27 12/22/2027 $691.56 $69,486.09 $691.56 $68,794.53 $69,139.18
6ht-29 64
000
Paae 1 of 1
0
EXHIBIT C
TAX CERTIFICATE
LOAN NUMBER: 010 -13 -ECD
REVENUE BOND SERIES: 2003A / 2005A
REVENUE BOND ISSUANCE DATE: April 10, 2003 / May 11, 2005
In connection with the issuance by the California Infrastructure and Economic
Development Bank (the "Bank "), or other issuer authorized by law, of its Bonds, (the
"Bonds "), a portion of the proceeds of which will be used to fund, in whole or in part, a
loan to the undersigned borrower (the "Borrower'), under the Loan Agreement (the
"Loan "), from the California Energy Commission (the "Energy Commission "), to finance
the acquisition and /or construction of a capital project of the Borrower (the "Project "),
the Borrower hereby certifies, with respect to proceeds of the Loan drawn by the
Borrower, as follows:
1. Use of Proceeds and Project. During the period in which the Loan is
outstanding, the Borrower shall not (1) sell or otherwise dispose of the Projector
any portion thereof to an entity that is not a governmental unit (for this purpose
"governmental unit" shall mean only a state or local governmental unit), (2) enter
into a lease of the Project or any portion thereof, regardless of type or duration, .
with an entity other than a governmental unit, (3) enter into a management or
service contract with respect to the Project or any portion thereof with an entity
other than a governmental unit, unless such management or service contract
complies with the requirements of Revenue Procedure 97 -13, 1997 -1 C.B. 632,
as amended by Revenue Procedure 2001 -39, 2001 -28, I.R.B. 38 (collectively,
"Revenue Procedure 97 -13 "), (4) otherwise enter into any other arrangement with
respect to the Project or any portion thereof that gives rise to a "private business
use," within the meaning of Section 141 of the Internal Revenue Code of 1986,
as amended (the "Code "), of the Project or any portion. thereof, or (5) make any
other use of the proceeds of the Loan that gives rise to a "private business use"
of the proceeds of the Loan or any portion thereof. The Borrower shall notify the
Energy Commission of any of the aforementioned transactions within five
business days of the date on which the Borrower enters into an agreement to
effect such transaction. In the case of a sale or disposition of the Project or any
portion thereof by the Borrower to a governmental unit, such sale or disposition
shall obligate the Borrower to require said governmental unit to assume all
covenants and responsibilities in this section. In the event the Borrower sells or
disposes of the Project or any portion thereof to a Governmental Unit, the
Borrower shall, upon such sale or disposition, repay the Loan or portion thereof
allocable to the Project or portion thereof, as the case may be, and shall apply
any proceeds it derives from the sale of the Project or portion thereof, as the
case may be, to such repayment. Such amount shall be due and payable to the
Energy Commission within thirty (30) calendar days of receiving an invoice from
Bond Funded Tax Certificate Exhibit C 010 -13 -ECD
Rev. August 1, 2013 GKAFLFMS Page 1 of 3 City of Gilroy
w
the Energy Commission for the balance due. As of the date hereof, (a) no
portion of the Project is subject to a lease with a person that is not a
governmental unit, and (b) no portion of the Project is subject to a management
or service contract, with an entity other than a governmental unit, that does not
comply with Revenue Procedure 97 -13.
2. No Further Loans. The Borrower shall not.allocate any portion of the proceeds of
the Loan to the financing of a loan by the Borrower to another entity.
3. No Payment of Debt. The Borrower shall not use any portion of the proceeds of
the Loan to pay the principal of or interest on any outstanding indebtedness of
the Borrower.
4. Permitted Bases for Paving Expenses. All proceeds of the Loan drawn by the
Borrower shall either (1) be used to reimburse the Borrower for costs of the
Project paid. by the Borrower (a) in anticipation of receiving such proceeds, (b)
prior to the date of requisition for such draw, and (c) after the date of approval of
the Energy Commission resolution authorizing payment from proceeds of the
Bonds or the Energy Conservation Assistance Account, (2) reflect a direct
payment by or on behalf of the Energy Commission to the Borrower's vendor in
accordance with an arrangement approved, established and implemented by the
Energy Commission with respect to such Borrower, or (3) reflect an. alternative
arrangement that has been approved by Bond Counsel with. respect to the Bonds
and communicated in writing by the Energy Commission to the.Borrower.
5. Capital Expenditures Only. The Borrower shall allocate the proceeds of.the Loan
solely to costs of the Project that constitute capital expenditures (which may
include, among other things, "soft costs" that are properly capitalizable into the
cost of the Project). No expenditures to which proceeds of the Loan will be
allocated by the Borrower will be operating or working capital expenditures.
6. Economic Life of Project. The Project has a reasonably expected economic life
that is at least equal to the term of the Loan.
7. No Replacement of Other Moneys. No portion of the proceeds of the Loan is
being used as a substitute for other moneys that (a) would have been used to
finance the Project to which proceeds of the Loan are being allocated if *proceeds
of the Bonds were not used to fund the Loan, and (b) have been or will be used
to acquire, directly or indirectly, securities or obligations or other investment
property.
8. Payment of Loan Debt Service. Payments of debt service on the Loan shall be
made directly by the Borrower and, except as provided in the next sentence, the
Borrower shall not set aside any moneys for such purpose in advance of such
payments. The Borrower may, if it chooses to do so, set aside moneys in a fund
or account in advance of a debt service payment date, but only where the
Bond Funded Tax Certificate Exhibit C 010- 13 -ECD
Rev. August 1, 2013 GKAFLFMS Page 2 of 3 City of Gilroy
Borrower makes such set -aside no more than one year prior to the time such
money will be needed, such that any moneys so set aside, together with
investment earnings thereon, will be used within one year of such set -aside to
pay debt service on the Loan. Any fund or account so established for such
purpose will be depleted no less frequently than annually. The Borrower shall
make no other set - aside, nor establish any other fund or account, that is
reasonably expected to pay debt service on the Loan or that is otherwise pledged
as collateral for the Loan so as to create a reasonable assurance that amounts
represented by such set - aside, or in such fund or account, would be available to
pay debt service on the Loan in the event the Borrower were to encounter
financial difficulties. Nothing in this Section is intended to affect the requirement
that the Borrower make payments of debt service on the Loan from certain
energy - related savings.
9. No Federal Guarantee. The Borrower shall not enter into any arrangement with
respect to the Project or any portion thereof obligating the United States or any
agency or instrumentality thereof to make payments of any kind to the Borrower.
10. No Purchase of Bonds. The Borrower shall not purchase any of the Bonds, on
the open market or otherwise.
City of Gilroy
BORROWER
q q - OCx.� 3Lfo
FEDERAL EMPLOYER IDENTIFICATION NUMBER
h6rY1�, �cc I u r i
R'I•NTED NAME OF AUTHORIZED
SENTATIVE
RIZED SIGNATURE
C, -h, �-
TITLE
X115 �ZO1
.: Z
Bond Funded Tax Certificate Exhibit C 010- 13 -ECD
Rev. August 1, 2013 GKAFLFMS Page 3 of 3 City of Gilroy
EXHIBIT D
FEDERAL PROVISIONS
Not Applicable.
Bond Funded Federal Provisions Exhibit D 010- 13 -ECD
Rev. August 1, 2013 GKAFLFMS Page 1 of 1 City of Gilroy
EXHIBIT E
SPECIAL TERMS AND CONDITIONS
Not Applicable.
Bond Funded Special T &Cs
Rev. August 1, 2013 GKAFLFMS
Exhibit E
Page 1 of 1
010- 13 -ECD
City of Gilroy
EXHIBIT F
Contacts List
City of Gilroy
Commission Project Manager:
Borrower Project Manager:
Christopher Olvera
Henry Servin
California Energy Commission
City Transportation Engineer
1516 Ninth Street, MS - 23
7351 Rosanna St.
Sacramento, CA 95814
Gilroy, CA 95020
Phone: (916) 651 -1469
Phone: (408) 846 -0451
Fax: (916) 654 -4304
Fax:
e -mail: chris.olvera @energy.ca.gov
Henry.Servint- CityofGilroy.ora
Commission Loan's Officer:
Borrower Administrator:
Cory Irish
Tom Haglund
California Energy Commission
City Administrator
1516 Ninth Street, MS - 18
7351 Rosanna St.
Sacramento, CA 95814
Gilroy, CA 95020
Phone: (916) 654 -4739
Phone: (408) 846 -0451
Fax: (916) 654 -4423
Fax:
e -mail: cory.irish aC-energy.ca.gov
Tom. Haglund(a-CityofGilroy.org
Commission Accounting Officer:
Borrower's Accounting Officer:
Kathy Jones
Christina Turner
California Energy Commission
Finance Director
1516 Ninth Street, MS - 2
7351. Rosanna St.
Sacramento, CA 95814
Gilroy, CA 95020
Phone: (916) 654 -4377
Phone: (408) 846 -0451
Fax: (916) 653 -1435
Fax:
e -mail: kathy.iones(a)-energy.ca.gov
Christina .Turner(&CityofGilroy.ory
Commission Legal Notice:
Borrower's Legal Officer:
Andrew Ferrin
Linda A. Callon
Contract, Grants & Loans Office
Berliner Cohen
1516 9th Street, MS -18
Ten Almaden Blvd 11th Floor
Sacramento, CA 95814
San Jose CA 95113
Phone: (916) 654 -4921
Phone: (408) 846 -0451
Fax: (916) 654 -4423
Fax:
e- mail: and rew.ferrina-energy. ca. gov
Linda.Callona- Berliner.com
Page 1 of 1 010- 13 -ECD
City of Gilroy