HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 04/07/2020 - ITEMS RELATING TO THE EPIC LOAN PROGRAMAgenda Item 2
Item # 2 Page 1
AGENDA ITEM SUMMARY April 7, 2020
Electric Utility Enterprise Board
STAFF
Terra Sampson, Project Manager, Energy Services
John Phelan, Energy Services Manager
Sean Carpenter, Climate Economy Advisor
Blaine Dunn, Senior Treasury Analyst
John Duval, Legal
SUBJECT
Items Relating to the Epic Loan Program.
EXECUTIVE SUMMARY
A. Second Reading of Ordinance No. 009, Authorizing a Loan Agreement with Vectra Bank Colorado to
Provide Funding for the Epic Loan Program.
B. Second Reading of Ordinance No. 010, Authorizing a Loan Agreement with the Colorado Energy Office to
Provide Funding for the Epic Loan Program.
These Ordinances, unanimously adopted on First Reading on March 20, 2020, authorize the Enterprise to
borrow additional capital for the Epic Loan Program from two third party lenders for 15-year capital. In 2012,
the City Council established, by ordinance, the On-Bill Utility Financing Program, which is now known as the
Epic Loan Program. The Program provides financing for home energy upgrades by making loans to property
owners who are customers of Fort Collins Utilities. Ordinance No. 009 authorizes the Enterprise to borrow up
to $2.5 million, under a line of credit, from Vectra Bank Colorado (Vectra Loan) as additional funding for the
Program. Ordinance No. 010 authorizes the Enterprise to borrow $800,000 at 0% interest from the Colorado
Energy Office (CEO Loan) as additional funding for the Program. Fifty percent of customers to date have used
longer loan terms to reduce monthly payments and/or undertake more comprehensive energy efficiency
projects, making 15-year capital an essential component for the success of the Program.
Between First and Second Reading of Ordinance No. 010, approving the loan agreement with the Colorado
Energy Office (CEO), revisions have been made to the loan agreement and its exhibits to clarify that the
Enterprise’s obligation to repay the CEO loan is to be paid only from the Electric Utility’s “Net Pledged
Revenues,” as this term is now defined in the CEO loan agreement. Revisions have also been made to clarify
that the Enterprise’s obligation to repay the CEO loan shall be on parity with the Enterprise’s obligations to
repay the existing U.S. Bank loan and the proposed Vectra Bank loan, but subordinate to the Enterprise’s
obligation to repay the bonds issued in 2018 for Connexion.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinances on Second Reading.
ATTACHMENTS
1. First Reading Agenda Item Summary, March 20, 2020 (w/o attachments) (PDF)
2. Amended Loan Agreement (highlighted to show changes) (PDF)
3. Ordinance No. 009 (PDF)
Agenda Item
Item # Page 1
AGENDA ITEM SUMMARY March 20, 2020
Electric Utility Enterprise Board
STAFF
Terra Sampson, Project Manager, Energy Services
John Phelan, Energy Services Manager
Sean Carpenter, Climate Economy Advisor
Blaine Dunn, Senior Treasury Analyst
John Duval, Legal
SUBJECT
Items Relating to the Epic Loan Program.
EXECUTIVE SUMMARY
A. First Reading of Ordinance No. 009, Authorizing a Loan Agreement with Vectra Bank Colorado to Provide
Funding for the Epic Loan Program.
B. First Reading of Ordinance No. 010, Authorizing a Loan Agreement with the Colorado Energy Office to
Provide Funding for the Epic Loan Program.
In 2012, the City Council established, by ordinance, the On-Bill Utility Financing Program, which is now known
as the Epic Loan Program. The Program provides financing for home energy upgrades by making loans to
property owners who are customers of Fort Collins Utilities. Staff is recommending the Electric Utility Enterprise
borrow additional capital for the Program from two third party lenders for 15-year capital. Ordinance No. 009
authorizes the Enterprise to borrow up to $2.5 million, under a line of credit, from Vectra Bank Colorado (Vectra
Loan) as additional funding for the Program. Ordinance No. 010 authorizes the Enterprise to borrow $800,000
at 0% interest from the Colorado Energy Office (CEO Loan) as additional funding for the Program. Fifty percent
of customers to date have used longer loan terms to reduce monthly payments and/or undertake more
comprehensive energy efficiency projects, making 15-year capital an essential component for the success of the
Program. These items were presented at the January 27, 2020 Council Finance Committee meeting and
received support for bringing these Ordinances to the Electric Utility Enterprise Board for consideration.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinances on First Reading.
BACKGROUND / DISCUSSION
Epic Homes
In 2012, the City Council established, by ordinance, the On-Bill Utility Financing Program, which is now known
as the Epic Loan Program. The Program provides financing for home energy upgrades by making loans to
property owners who are customers of Fort Collins Utilities. Initial funding of $1.6 million for the loan fund and
lending (Epic Loans) were authorized by City Council and drawn from Light and Power and Water reserve funds
(Utility Reserves). The City has also recently been awarded a grant for the Program from the Colorado Energy
Office ($200,000), and prize monies from winning the 2018 Bloomberg Philanthropies Mayors Challenge ($1
million total/$688,350 of which is dedicated to providing capital for Epic Loans). With Ordinance No. 110, 2019,
Council adopted an increase in the amount of loan capital available for the Program reflecting the existing Utility
ATTACHMENT 1
Agenda Item
Item # Page 2
Reserve funds, grant and prize monies, and proposed new borrowing. Ordinance No. 007 and 008, 2019
authorized the Electric Utility Enterprise to borrow up to $2.5 million under a line of credit from a third party
lender, U. S. Bank (US Bank Loan), allowing Epic Loans to offer utility customers loan terms of up to 10-years.
In October 2018, Fort Collins became a winner of the 2018 Bloomberg Mayors Challenge and the associated
$1M prize. The 2018 Bloomberg Mayors Challenge involved over 300 cities proposing ideas to address important
issues in their communities. The City’s proposal, Epic Homes, was selected as a winner for its innovative
approach to providing health and equity benefits to residents, specifically for low-to-moderate income renters,
by improving the energy efficiency of rental homes. Residential property owners can take advantage of Epic
Homes’ easy streamlined steps to make their homes more comfortable, healthy and efficient. Partnering with
Colorado State University, Fort Collins is also establishing a research study which links the health and well-being
indicators of improved indoor environmental quality.
Epic Homes provides non-energy benefits in addition to efficiency, such as increased comfort, health and safety.
In nearly every energy assessment, energy advisors identify a health and safety hazard in need of attention.
This could vary from a back-drafting water heater, to air leakage pollutants entering the home from the garage
or crawlspace, to combustion appliances that need tuning or replacing producing excess carbon monoxide.
Loans are available for over 25 different types of efficiency measures, including replacing an old furnace with a
new efficient furnace that has important safety features, such as sealed combustion with intake and exhaust to
the outside.
Epic Loans
Fort Collins’ On-Bill Finance program (previously also known as Home Efficiency Loan Program or HELP, and
now called the Epic Loan Program), a component of the Epic Homes portfolio (Attachment 1), supports a
number of community and City Council priorities, including ambitious goals for energy efficiency and renewable
energy, reduced greenhouse gas emissions and increased equity and well-being for residents. Meeting these
objectives will require, among other activities, greater numbers of property owners to undertake comprehensive
efficiency improvements in the coming years, particularly for older, less-efficient rental properties which make
up a significant percentage of the City’s housing stock.
The original On-Bill Finance program issued loans from 2013 through 2016 when the maximum outstanding loan
balance funded through Light & Power reserves was reached ($1.6 million). On-Bill Finance was revitalized as
the Epic Loan Program in August 2018 during the Champions Phase of the Bloomberg Mayors Challenge. The
City has been awarded grants from the Colorado Energy Office ($200,000) and from Bloomberg Philanthropies
($688,350) for the Epic Loan Program. The Electric Utility Enterprise has also entered into a $2.5M line of credit
loan agreement with U.S. Bank to provide up to 10-year capital for the Program.
Staff has been working to develop third-party capital agreements to scale impact for owners and renters in Fort
Collins. This has included presentations with the Council Finance Committee to discuss the Request for
Proposals for third-party capital providers, discuss the capital strategy and review proposed capital agreement
terms. The proposed “capital stack” is provided below in Table 1 and the customer interest rates based on third-
party capital terms are provided in Table 2.
An ongoing and attractive financing structure to support energy efficiency retrofits will be a critical element for
success moving forward. Through 2019, Fort Collins Utilities has serviced 211 on-bill loans to support energy
efficiency upgrades in residential homes and overcome financial barriers for making these important upgrades.
Detailed information regarding the Epic Homes program and loan terms can be found at fcgov.com/epichomes
<http://www.fcgov.com/epichomes>.
Agenda Item
Item # Page 3
Table 1. Epic Loan Capital Stack Summary
Capital
Type
Provider Term Rate Amount
Internal &
Grant
Previously authorized Light &
Power reserves
Ongoing 0% $1,600,000
Bloomberg Philanthropies Grant 0% $688,350
Colorado Energy Office - Grant Grant 0% $200,000
Internal Subtotal $2,488,350
External
Market
Colorado Energy Office - Loan 15 year 0% $800,000
U. S. Bank 5 & 10
year
76% of Prime
(3.99% Currently)
Up to $2,500,000
Vectra Bank Colorado 15 year 10-year US
Treasury + 2.75%
(4.30% currently)*
Up to $2,500,000
External Subtotal $5,800,000
Total $8,288,350
*As of February 18th, 2019; subject to change.
Table 2. Customer Interest Rate
Loan Term Customer Rate (Effective
Aug. 2019)
3 or 5 years 3.75%
7 or 10 years 4.25%
15 years* 4.75%
*The 15-year loan option is currently paused until third party external capital is secured.
Importance of 15-year Capital
During prototyping for the Bloomberg Mayors Challenge, rental property owners reported that no-money-down,
affordable monthly payments are critical considerations, in particular for owners with multiple units. OBF 1.0
(also known as HELP) proved these factors are also important for owner-occupied properties, where many
homeowners preferred longer term loans which often allow for more comprehensive projects and/or solar
installations with affordable monthly payments. In 2016, Fort Collins Utilities implemented the Efficiency Works
Neighborhood pilot, with nearly 60 long term loans issued totaling over $750,000. Additionally, of those that used
a loan during the pilot, 80% of customers stated they would not have done a project without the attractive on-bill
loan option.
Throughout the on-bill financing history (2013-2016 and 2018-2019), approximately 50% of customers have
used longer loan terms to reduce monthly payments and/or undertake more comprehensive energy efficiency
projects (Table 3). As a result, the longer-termed loans account for a larger percentage of the on-bill loan portfolio
value, at approximately 60%. Longer term loans are generally used for bigger, more comprehensive projects
that can generate increased benefits for the people who live in and own those homes, as well as positively
impacting overall City goals. Attractive monthly payments are critical for overcoming cost barriers for home and
rental property owners considering energy upgrades.
Agenda Item
Item # Page 4
Table 3. Summary of On-Bill Financed Projects by Loan Term
Loan Terms 3 & 5 year 7 & 10 year 15 (& 20) year Total
Projects Using OBF by
Term
41 71 99 211
Percentage of Total 19% 34% 47% 100%
Vectra Bank Colorado
Staff has negotiated a loan agreement with Vectra Bank Colorado, a Denver-based bank, for 15-year capital
with highly desirable terms, including a fixed interest rate at the time of closing and no collateral requirements.
The terms include:
Amount: Up to $2,500,000
Length: 17-years inclusive of 2-year draw period
Draw period: Up to 2 years, with draw timing and amounts based on program/customer demand (no more
than quarterly)
Fixed rate: 10-year US Treasury + 2.75% (4.30% Currently); Rate set at time of loan closing
Pre-pay: City may pre-pay in whole or in part after 2027 with no penalty. No prepayment is allowed prior to
2025, and between 2025 and 2027 there is a 1% prepayment fee.
Repayment position: Parity pledge (with other Epic Loans) on customer loan repayments and subordinate
position on Electric Utility revenues, after the more senior pledge held by revenue bondholders
These and other terms are reflected in the Loan Agreement attached as Exhibit A to Ordinance No. 009.
Colorado Energy Office
The Colorado Energy Office (CEO) showed support of Epic Loans in 2018 with a $200,000 grant. Staff have
also negotiated a $800,000 loan from CEO. Terms of the agreement include:
Amount: $800,000
Length: 15-years
Draw period: None
Fixed Rate: 0%
The principal will be due at the end of the 15-year period and any program income may be used for administrative
expenses and/or issuing new loans. Any unused program income will also be due at the time of principal
repayment.
These and other terms are reflected in the Loan Agreement attached as Exhibit A to Ordinance No. 010.
Third-Party Capital
Leveraging external capital is critical to achieving the long-term “revolving loan” vision of Epic Loans and offers
a continuing source of funds to meet increasing customer demand for energy efficiency financing. Epic Loans is
designed to balance the programmatic objectives and financial requirements of the City, while also meeting the
needs and expectations of capital providers and Utilities customers.
In all third-party loan agreements, the Enterprise would be the borrower, with the third-party funds being loaned
to customers by Utilities. The Enterprise would be responsible for the repayment to the capital provider. In turn,
Utilities customers carry the obligation for repayment of loans to the City via their utility bill. Utilities has various
code-specified tools for recourse of delinquent utility bills that makes the risk profile for the Epic Loan portfolio
extremely low. There have been zero loan defaults since OBF began in 2013.
Agenda Item
Item # Page 5
CITY FINANCIAL IMPACTS
Staff projects the Program will be cashflow positive. Staff also projects the Ordinances under consideration will
meet the project demand for the next 4 years or more, for loans with a payback of up to 15 years. The Ordinances
are not anticipated to affect electric rates.
Risks include lack of customer demand for energy upgrade loans and /or risk of customer default if borrowers
choose not to repay their Epic Loans. Customer default risk is considered de minimis based on lack of defaults
over the 6-year history of the Program and the default protections the City already has in place. Customer
demand risk is difficult to assess, but the line of credit model helps ensure that principal borrowed matches the
Epic Loan volumes as closely as possible.
Core tenants of the loan program are to ensure no negative impact on Light & Power planned debt offerings,
and to protect the Utilities credit rating and broadband coverage covenants.
BOARD / COMMISSION RECOMMENDATION
Third-party loan agreements and terms were discussed at the July 15, 2019 Council Finance Meeting.
(Attachment 2) Details of the 15-year lending agreement were discussed further at the August 19, 2019 Council
Finance Meeting (Attachment 3), and updated details and capital sources were discussed at the January 27,
2020 Council Finance Meeting. (Attachment 4) Council Finance supported bringing forward the included
Ordinances for consideration.
ATTACHMENTS
1. Epic Homes Structure and Components Diagram (PDF)
2. Council Finance Meeting Minutes, July 15, 2019 (PDF)
3. Council Finance Meeting Minutes, January 27, 2020 (PDF)
4. Council Finance Meeting Minutes, August 19, 2019 (PDF)
5. Powerpoint presentation (PDF)
Page 1 of 20
Summary
Maximum Amount: U$800,000
UAgreement Identification:
Contract Encumbrance #: U U
Contract Management System #: (State of Colorado’s contract tracking #)
Project Information:
Project/Award Number:
Project Name: On-Bill Financing (“Epic Loan”) Capitalization Program
Performance Period: Start Date: Loan
Maturity: April 20, 2035
Brief Description of Project /
Assistance:
The loan will be issued to the City of Fort Collins, Colorado, Electric
Utility Enterprise to administer the Epic Loan program, which enables
utility customers to borrow funds to install energy efficiency and
renewable energy improvements on their properties and pay it back
through a charge on their monthly utility bill.
Program & Funding Information:
Program Name
Funding source:
Catalog of Federal Domestic Assistance (CFDA) Number (if federal funds):
Funding Account Codes:
LOAN AGREEMENT
Between
STATE OF COLORADO
COLORADO ENERGY OFFICE
And
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY
ENTERPRISE
ATTACHMENT 2
Page 2 of 20
TABLE OF CONTENTS
27T1. PARTIES27T .............................................................................................................................................................................
2
27T2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY.27T ............................................................................................... 2
27T3. RECITALS27T ..........................................................................................................................................................................
2
27T4. DEFINITIONS27T ....................................................................................................................................................................
3
27T5. LOAN AGREEMENT TERM.27T ........................................................................................................................................... 4
27T6. STATEMENT OF PROJECT27T ............................................................................................................................................. 4
27T7. PAYMENTS TO BORROWER27T .......................................................................................................................................... 5
27T8. REPORTING - NOTIFICATION27T ....................................................................................................................................... 6
27T9. BORROWER RECORDS27T ................................................................................................................................................... 6
27T10. CONFIDENTIAL INFORMATION-STATE RECORDS27T ................................................................................................ 7
27T11. CONFLICTS OF INTEREST27T............................................................................................................................................ 7
27T12. REPRESENTATIONS AND WARRANTIES27T.................................................................................................................. 8
27T13. INSURANCE27T ....................................................................................................................................................................
8
27T14. BREACH27T .........................................................................................................................................................................
10
27T15. REMEDIES27T .....................................................................................................................................................................
10
27T16. NOTICES and REPRESENTATIVES27T ............................................................................................................................ 12
27T17. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE27T ....................................................................... 13
27T18. STATEWIDE CONTRACT MANAGEMENT SYSTEM27T .............................................................................................. 13
27T19. RESTRICTION ON PUBLIC BENEFITS27T ...................................................................................................................... 13
27T20. GENERAL PROVISIONS27T .............................................................................................................................................. 14
27T21. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)27T ............................................................... 16
27TSIGNATURE PAGE Contract Routing Number ----------27T ......................................................................................... 20
EXHIBIT A – STATEMENT OF PROJECT
EXHIBIT B – DOE AWARD TERMS AND CONDITIONS
EXHIBIT C – FEDERAL PROVISIONS
EXHIBIT D - PROMISSORY NOTE
1. PARTIES
This Loan Agreement (hereinafter called “Loan Agreement”) is entered into by and between City of Fort
Collins, Colorado, Electric Utility Enterprise, an enterprise established and existing pursuant to the home rule
charter of the City of Fort Collins, Colorado (hereinafter called “Borrower”), and the STATE OF COLORADO
acting by and through the Colorado Energy Office (hereinafter called the “State” or “CEO”).
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY.
This Loan Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State
Controller or designee (hereinafter called the “Effective Date”). The State shall not be liable to pay or reimburse
Borrower for any performance hereunder except for payment not to exceed the Loan Funds specified in Section
IV. of Exhibit A. The State shall not be liable to pay or reimburse Borrower for costs or expenses incurred, or
be bound by any provision hereof, prior to the Effective Date or after termination of the Loan Agreement.
3. RECITALS
A. Authority, Appropriation, and Approval
Authority to enter into this Loan Agreement exists in CRS §24-38.5-101, et seq. and funds have been
budgeted, appropriated and otherwise made available pursuant to the U.S. Department of Energy (DOE)
Award No. DE-EE0007470, CFDA No. 81.041 and a sufficient unencumbered balance thereof remains
available for payment. Required approvals, clearance and coordination have been accomplished from and
with appropriate agencies.
B. Consideration
The Parties acknowledge that the mutual promises and covenants contained herein and other good and
valuable consideration are sufficient and adequate to support this Loan Agreement.
C. Purpose
The purpose of this Loan Agreement is described in Exhibit A.
Page 3 of 20
D. References
All references in this Loan Agreement to sections (whether spelled out or using the § symbol), subsections,
exhibits or other attachments, are references to sections, subsections, exhibits or other attachments
contained herein or incorporated as a part hereof, unless otherwise noted.
4. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows:
A. Budget
“Budget” means the budget for the Project and/or Work described in Exhibit A.
B. Evaluation
14T“Evaluation” means the process 14Tof examining Loan Agreement’s Work and rating it based on criteria
established in §8 and Exhibit A.
C. Event of Default
“14TEvent14T of Default” shall exist when any one or more of the following events occur(s) and is occuring after
notice to Borrower of such non-performance and lapse of the cure period pursuant to §14(B):
i. Borrower fails to pay any portion of the Indebtedness when due or payable.
ii. Borrower fails to perform or observe any of the covenants or agreements contained in the Loan
Agreement or any related document.
iii. Borrower fails to meet target dates.
iv. There is a default or event of default, however defined, under the Deed (if any) or under any other
document or instrument now or hereafter securing the Indebtedness.
v. Borrower shall be generally unable to pay its debts as they become due, or shall make an assignment
for the benefit of creditors; or the Borrower shall apply for or consent to the appointment of any
receiver, trustee or similar officer for it or for all or any substantial part of its property; or such a
receiver, trustee or similar officer shall be appointed without the application or consent of the State,
and such appointment shall continue undischarged for a period of ninety (90) days; or the Borrower
shall institute (by petition, application, answer or otherwise) any bankruptcy, insolvency,
reorganization, readjustment of debt, dissolution, liquidation or similar proceedings under the laws of
any jurisdiction; or any such proceeding shall be instituted against the Borrower; or the Borrower shall
terminate or dissolve.
vi. Any representation of the Borrower made herein or made by the Borrower or any employee of the
Borrower in any submission or document delivered by or on behalf of the Borrower in connection with
the Indebtedness shall prove to be materially untrue.
D. Exhibits and other Attachments
The following are attached hereto and incorporated by reference herein:
i. Exhibit A (Statement of Project)
ii. Exhibit B (DOE Award Terms and Conditions)
iii. Exhibit C (Federal Provisions)
iv. Exhibit D (Promissory Note)
E. Goods
“Goods” means tangible materials acquired, produced, or delivered by Borrower either separately or in
conjunction with the Services Borrower renders under this Loan Agreement.
F. Indebtedness
“Indebtedness” means the indebtedness evidenced by the Note and any other amounts for which Borrower
becomes responsible under this Loan Agreement and any related document.
G. Loan Agreement
“Loan Agreement” means this agreement, its terms and conditions, attached exhibits, documents
incorporated by reference pursuant to the terms of this Loan Agreement, and any future modifying
agreements, exhibits, attachments or references incorporated herein pursuant to Colorado State law, Fiscal
Rules, and State Controller Policies.
H. Loan Funds
Page 4 of 20
“Loan Funds” means available funds payable by the State to Borrower pursuant to this Loan Agreement.
I. Note
“Note” means the fully executed promissory note attached as Exhibit D.
J. Party or Parties
“Party” means the State or Borrower and “Parties” means both the State and Borrower.
K. Project
“Project” means the overall project described in Exhibit A including, without limitation, the Work and the
Services.
L. Program
“Program” means the program specified on the first page of this Loan Agreement that provides the funding
for this Loan Agreement.
M. Review
“Review” means examining Borrower’s Work to ensure that it is adequate, accurate, correct and in
accordance with the criteria established in §8 and Exhibit A.
N. Services
“Services” means the required services to be performed by Borrower pursuant to this Loan Agreement.
O. Subcontractor
“Subcontractor” means third-parties, if any, engaged by Borrower to carry out specific vendor related
services.
P. Subject Property
“Subject Property” means the real property, if any, for which Loan Funds are used to acquire, construct,
rehabilitate, or clear or demolish existing structures.
Q. Work
“Work” means the tasks and activities Borrower is required to perform to fulfill its obligations under this
Loan Agreement.
R. Work Product
“Work Product” means the tangible or intangible results of Borrower’s Work, including, but not limited to,
software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents,
drawings, models, surveys, maps, materials, or work product of any type, including drafts.
5. LOAN AGREEMENT TERM.
A. Loan Agreement Commencement.
Unless otherwise permitted in §2 above, the Parties respective performances under this Loan Agreement
shall commence on the Effective Date. This Loan Agreement shall terminate upon full repayment of the
Note and any other amounts due under this Loan Agreement or as otherwise provided in this Loan
Agreement.
B. Term-Work Completion.
Borrower shall complete all Work as provided in Exhibit A. The State shall not be liable to compensate
Borrower for any Work performed prior to the Effective Date or after completion of construction as
outlined in Exhibit B.
C. Two Month Extension
The State, at its sole discretion upon written notice to Borrower as provided in §16, may unilaterally extend
the term of this Loan Agreement for a period not to exceed two months if the Parties are negotiating a
replacement Loan Agreement (and not merely seeking a term extension) at or near the end of any initial
term or any extension thereof. The provisions of this Loan Agreement in effect when such notice is given,
including, but not limited to prices, rates, and delivery requirements, shall remain in effect during the two
month extension. The two-month extension shall immediately terminate when and if a replacement Loan
Agreement is approved and signed by the Colorado State Controller.
6. STATEMENT OF PROJECT
A. Completion of Project
Borrower shall complete the Project and other Borrower obligations as provided in this Loan Agreement
and Exhibit A.
Page 5 of 20
B. Goods and Services
Borrower shall procure Goods and Services necessary to complete the Work. Such procurement shall not
increase the maximum amount payable by the State.
C. Employees
All persons employed by Borrower shall be considered Borrower’s employee(s) for all purposes hereunder
and shall not be employees of the State for any purpose as a result of this Loan Agreement.
7. PAYMENTS TO BORROWER
The State shall, in accordance with the provisions of this §7, pay Borrower in the following amounts and using
the methods set forth below:
A. Maximum Amount
The maximum amount payable under this Loan Agreement to Borrower by the State is $800,000.00 (Eight
hundred thousand dollars), as determined by the State from available funds. Borrower agrees to provide
any additional funds required for the successful completion of the Work. Payments to Borrower are limited
to the unpaid obligated balance of the Loan Funds as set forth in Exhibit A.
B. Payment
i. Payments
Any payment allowed under this Loan Agreement or in Exhibit A shall comply with State Fiscal
Rules and be made in accordance with the provisions of this Loan Agreement. Borrower shall initiate
a payment of loan proceeds by submitting an invoice to the State in the form and manner set forth and
approved by the State.
ii. Available Funds-Contingency-Termination
The State is prohibited by law from making fiscal commitments beyond the term of the State’s current
fiscal year. Therefore, Borrower’s compensation is contingent upon the continuing availability of State
appropriations as provided in the Colorado Special Provisions, set forth below. If federal funds are
used with this Loan Agreement in whole or in part, the State’s performance hereunder is contingent
upon the continuing availability of such funds. Payments pursuant to this Loan Agreement shall be
made only from available funds encumbered for this Loan Agreement and the State’s liability for such
payments shall be limited to the amount remaining of such encumbered funds. If State or federal funds
are not fully appropriated, or otherwise become unavailable for this Loan Agreement, the State may
immediately terminate this Loan Agreement in whole or in part to the extent of funding reduction
without further liability in accordance with the provisions herein.
iii. Erroneous Payments
At the State’s sole discretion, payments made to Borrower in error for any reason, including, but not
limited to overpayments or improper payments, and unexpended or excess funds received by
Borrower, may be recovered from Borrower by deduction from subsequent payments under this Loan
Agreement or other agreements between the State and Borrower or by other appropriate methods and
collected as a debt due to the State. Such funds shall not be paid to any person or entity other than the
State.
iv. Retroactive Payments
As specified in Exhibit B, the State may, in its discretion, pay Borrower for costs or expenses incurred
or performance by the Borrower prior to the Effective Date, only if (1) the Loan Funds involve federal
funding and (2) federal laws, rules and regulations applicable to the Work provide for such retroactive
payments to the Borrower. Any such retroactive payments shall comply with State Fiscal Rules and
be made in accordance with the provisions of this Loan Agreement or such Exhibit. Borrower shall
initiate any payment request by submitting an invoice to the State in the form and manner set forth and
approved by the State.
C. Use of Funds
Loan Funds shall be used only for eligible costs identified herein and Exhibit A.
D. Borrower’s Repayment Obligation
The Borrower’s obligation to repay the $800,000 loan to the CEO shall be as provided in Exhibit A and
Exhibit D.
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8. REPORTING - NOTIFICATION
Reports, Evaluations, and Reviews required under this §8 shall be in accordance with the procedures of and in
such form as prescribed by the State and in accordance with §19, if applicable.
A. Performance, Progress, Personnel, and Funds
State shall submit a report to the Borrower upon expiration or sooner termination of this Loan Agreement,
containing an Evaluation and Review of Borrower’s performance and the final status of Borrower's
obligations hereunder. In addition, Borrower shall comply with all reporting requirements, if any, set forth
in Exhibit B.
B. Litigation Reporting
Within 10 days after being served with any pleading in a legal action filed with a court or administrative
agency, related to this Loan Agreement or which may affect Borrower’s ability to perform its obligations
hereunder, Borrower shall notify the State of such action and deliver copies of such pleadings to the State’s
principal representative as identified herein. If the State’s principal representative is not then serving, such
notice and copies shall be delivered to the Executive Director of CEO.
C. Noncompliance
Borrower’s failure to provide reports and notify the State in a timely manner in accordance with this §8
may result in the delay of payment of funds and/or termination as provided under this Loan Agreement.
D. Subcontracts
Copies of any and all subcontracts entered into by Borrower to perform its obligations hereunder shall be
submitted to the State or its principal representative. Any and all subcontracts entered into by Borrower
related to its performance hereunder shall comply with all applicable federal and state laws and shall
provide that such subcontracts be governed by the laws of the State of Colorado.
9. BORROWER RECORDS
Borrower shall make, keep, maintain and allow inspection and monitoring of the following records:
A. Maintenance
Borrower shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file
of all records, documents, communications, notes and other written materials, electronic media files, and
communications, pertaining in any manner to the Work or the delivery of Services (including, but not
limited to the operation of programs) or Goods hereunder. Borrower shall maintain such records (the
“Record Retention Period”) until the last to occur of the following:
(i) a period of three years after the date this Loan Agreement is completed or terminated, or final
payment is made hereunder, whichever is later, or
(ii) for such further period as may be necessary to resolve any pending matters, or
(iii) if an audit is occurring, or Borrower has received notice that an audit is pending, then until such
audit has been completed and its findings have been resolved.
B. Inspection
Borrower shall permit the State, the federal government (if Loan Funds include federal funds) and any
other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or
transcribe Borrower's records related to this Loan Agreement during the Record Retention Period for a
period of three years following termination of this Loan Agreement or final payment hereunder, whichever
is later, to assure compliance with the terms hereof or to evaluate Borrower's performance hereunder. The
State reserves the right to inspect the Work at all reasonable times and places during the term of this Loan
Agreement, including any extension. If the Work fails to conform to the requirements of this Loan
Agreement, the State may require Borrower promptly to bring the Work into conformity with Loan
Agreement requirements, at Borrower’s sole expense. If the Work cannot be brought into conformance by
re-performance or other corrective measures, the State may require Borrower to take necessary action to
ensure that future performance conforms to Loan Agreement requirements and exercise the remedies
available under this Loan Agreement, at law or in equity in lieu of or in conjunction with such corrective
measures.
Page 7 of 20
C. Monitoring
i. Borrower. Borrower shall permit the State, the federal government (if Loan Funds include federal
funds), and other governmental agencies having jurisdiction, in their sole discretion, to monitor all
activities conducted by Borrower pursuant to the terms of this Loan Agreement using any reasonable
procedure, including, but not limited to: internal evaluation procedures, examination of program data,
special analyses, on-site checking, formal audit examinations, or any other procedures. All monitoring
controlled by the State shall be performed in a manner that shall not unduly interfere with Borrower’s
performance hereunder.
ii. Subcontractor. Borrower shall monitor its Subcontractors, if any, during the term of this Loan
Agreement. Results of such monitoring shall be documented by Borrower and maintained on file.
D. Final Audit Report
Borrower shall provide a copy of its audit report(s) to CEO as specified in Exhibit A.
10. CONFIDENTIAL INFORMATION-STATE RECORDS
Borrower shall comply with the provisions of this §10 if it becomes privy to confidential information in
connection with its performance hereunder. Confidential information, includes, but is not necessarily limited to,
state records, personnel records, and information concerning individuals.
A. Confidentiality
Borrower shall keep all State records and information confidential at all times and comply with all laws and
regulations concerning confidentiality of information. Any request or demand by a third party for State
records and information in the possession of Borrower shall be immediately forwarded to the State’s
principal representative. Except as otherwise provided in this Loan Agreement, Borrower shall keep all
tenant, patient and offender information confidential.
B. Notification
Borrower shall notify its agent, employees, and assigns who may come into contact with State records and
confidential information that each is subject to the confidentiality requirements set forth herein, and shall
provide each with a written explanation of such requirements before they are permitted to access such
records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by Borrower
or its agents in any way, except as authorized by this Loan Agreement or approved in writing by the State.
Borrower shall provide and maintain a secure environment that ensures confidentiality of all State records
and other confidential information wherever located. Confidential information shall not be retained in any
files or otherwise by Borrower or its agents, except as permitted in this Loan Agreement or approved in
writing by the State.
D. Disclosure-Liability
Disclosure of State records or other confidential information by Borrower for any reason may be cause for
legal action by third parties against Borrower, the State or their respective agents. Borrower shall, to the
extent permitted by law, indemnify, save, and hold harmless the State, its employees and agents, against
any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and
related costs, incurred as a result of any act or omission by Borrower, or its employees, agents, or assignees
pursuant to this §10.
11. CONFLICTS OF INTEREST
Borrower shall not engage in any business or personal activities or practices or maintain any relationships which
conflict in any way with the full performance of Borrower’s obligations hereunder. Borrower acknowledges that
with respect to this Loan Agreement, even the appearance of a conflict of interest is harmful to the State’s
interests. Absent the State’s prior written approval, Borrower shall refrain from any practices, activities or
relationships that reasonably appear to be in conflict with the full performance of Borrower’s obligations to the
State hereunder. If a conflict or appearance exists, or if Borrower is uncertain whether a conflict or the
appearance of a conflict of interest exists, Borrower shall submit to the State a disclosure statement setting forth
the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow
the State’s direction in regard to the apparent conflict constitutes a breach of this Loan Agreement.
Page 8 of 20
12. REPRESENTATIONS AND WARRANTIES
Borrower makes the following specific representations and warranties, each of which was relied on by the State
in entering into this Loan Agreement.
A. Standard and Manner of Performance
Borrower shall perform its obligations hereunder in accordance with the highest standards of care, skill and
diligence in the industry, trades or profession and in the sequence and manner set forth in this Loan
Agreement.
B. Legal Authority – Borrower and Borrower’s Signatory
Borrower warrants that it possesses the legal authority to enter into this Loan Agreement and that it has
taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and
to lawfully authorize its undersigned signatory to execute this Loan Agreement, or any part thereof, and to
bind Borrower to its terms. If requested by the State, Borrower shall provide the State with proof of
Borrower’s authority to enter into this Loan Agreement within 15 days of receiving such request.
C. Licenses, Permits, etc.
Borrower represents and warrants that as of the Effective Date it has, and that at all times during the term
hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other
authorization required by law to perform its obligations hereunder. Borrower warrants that it shall maintain
all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to
properly perform this Loan Agreement, without reimbursement by the State or other adjustment in Loan
Funds. Additionally, all employees and agents of Borrower performing Services under this Loan
Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities.
Borrower, if a foreign corporation or other foreign entity transacting business in the State of Colorado,
further warrants that it currently has obtained and shall maintain any applicable certificate of authority to
transact business in the State of Colorado and has designated a registered agent in Colorado to accept
service of process. Any revocation, withdrawal or non-renewal of licenses, certifications, approvals,
insurance, permits or any such similar requirements necessary for Borrower to properly perform the terms
of this Loan Agreement shall be deemed to be a material breach by Borrower and constitute grounds for
termination of this Loan Agreement.
D. Exclusion, Debarment and/or Suspension
Borrower represents and warrants that Borrower, its employees, or authorized Subcontractors, are not
presently excluded from participation, debarred, suspended, proposed for debarment, declared ineligible,
voluntarily excluded, or otherwise ineligible to participate in a federal payment program by any federal or
State of Colorado department or agency. If Borrower or any of its respective Subcontractors or their
employees or authorized agents, is excluded from participation, or becomes otherwise ineligible to
participate in any such program during the term of this Loan Agreement, Borrower will notify the State in
writing within three (3) days after such event. Upon the occurrence of such event, whether or not such
notice is given to Borrower, the State, in its sole discretion, reserves the right to immediately cease
contracting with Borrower and terminate this Loan Agreement without penalty.
13. INSURANCE
Borrower shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as
specified in this section at all times during the term of this Loan Agreement. All insurance policies required by
this Loan Agreement shall be issued by insurance companies with an AM Best rating of A-VIII or better.
A. Workers’ Compensation
Workers’ compensation insurance as required by State statute, and employer’s liability insurance covering
all Borrower and Subcontractor employees acting within the course and scope of their employment.
B. General Liability
Commercial General Liability Insurance written on an Insurance Services Office occurrence form,
covering premises operations, fire damage, independent contractors, products and completed operations,
blanket contractual liability, personal injury, and advertising liability with minimum limits as follows:
i. $1,000,000 each occurrence;
ii. $1,000,000 general aggregate;
iii. $1,000,000 products and completed operations aggregate; and
Page 9 of 20
iv. $50,000 any one fire.
Notwithstanding the foregoing, the Borrower can be self-insured for all or part of these coverages.
C. Professional Liability Insurance
This section shall | shall not apply to this Loan Agreement.
Borrower and Subcontractors shall maintain in full force and effect a Professional Liability Insurance
Policy in the minimum amount of $1,000,000 per occurrence and $3,000,000 in the aggregate, written on
an occurrence form, which policy provides coverage for its work undertaken pursuant to this Loan
Agreement. If a policy written on an occurrence form is not commercially available, the claims-made
policy shall remain in effect for the duration of this Loan Agreement and for at least two years beyond the
completion and acceptance of the work under this Loan Agreement, or, alternatively, a two year extended
reporting period must be purchased. The Borrower or Subcontractor shall be responsible for all claims,
damages, losses or expenses, including attorney's fees, arising out of or resulting from such party’s
performance of professional services under this Loan Agreement, a subcontract.
D. Crime Insurance
Crime insurance including employee dishonesty coverage with minimum limits as follows:
i. $1,000,000 each occurrence;
ii. $1,000,000 general aggregate.
Nothwithstanding the foregoing, the Borrower can be self-insured for all or part of these coverages.
E. Miscellaneous Insurance Provisions
Certificates of Insurance and/or insurance policies required under this Loan Agreement shall be subject
to the following stipulations and additional requirements:
i. Deductible. Any and all deductibles or self-insured retentions contained in any Insurance policy shall
be assumed by and at the sole risk of the Borrower or its Subcontractors.
ii. In Force. If any of the said policies shall fail at any time to meet the requirements of the Loan
Agreement as to form or substance, or if a company issuing any such policy shall be or at any time
cease to be approved by the Division of Insurance of the State of Colorado, or be or cease to be in
compliance with any stricter requirements of the Loan Agreement, the Borrower and its Subcontractor
shall promptly obtain a new policy.
iii. Public Entities. If Borrower is a "public entity" within the meaning of the Colorado Governmental
Immunity Act, §24-10-101, et seq., C.R.S. (the “GIA”), Borrower shall maintain, in lieu of the liability
insurance requirements stated above, at all times during the term of this Contract such liability
insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA.
If a Subcontractor is a public entity within the meaning of the GIA, Borrower shall ensure that the
Subcontractor maintains at all times during the terms of this Contract, in lieu of the liability insurance
requirements stated above, such liability insurance, by commercial policy or self-insurance, as is
necessary to meet the Subcontractor’s obligations under the GIA.
iv. Additional Insured
The State shall be named as additional insured on all commercial general liability policies required of
Borrower and Subcontractors.
v. Primacy of Coverage
Coverage required of Borrower and Subcontractors shall be primary over any insurance or self-
insurance program carried by Borrower or the State.
vi. Cancellation
The above insurance policies shall include provisions preventing cancellation or non-renewal without
at least 30 days prior notice to the Borrower and Borrower shall forward such notice to the State in
accordance with §16 (Notices and Representatives) within seven days of Borrower’s receipt of such
notice.
vii. Subrogation Waiver
All insurance policies in any way related to this Loan Agreement and secured and maintained by
Borrower or its Subcontractors as required by this Loan Agreement shall include clauses stating that
each carrier shall waive all rights of recovery, under subrogation or otherwise, against Borrower or the
State, its agencies, institutions, organizations, officers, agents, employees, and volunteers.
Page 10 of 20
F. Certificates
Upon request by the State at any other time during the term of this Loan Agreement or subcontract,
Borrower and Subcontractor shall, within 10 days of such request, supply to the State evidence satisfactory
to the State of compliance with the provisions of this §13.
14. BREACH
A. Defined
In addition to any breaches specified in other sections of this Loan Agreement, the failure of either Party to
perform any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner,
constitutes a breach. The institution of proceedings under any bankruptcy, insolvency, reorganization or
similar law, by or against Borrower, or the appointment of a receiver or similar officer for Borrower or any
of its property, which is not vacated or fully stayed within 20 days after the institution or occurrence
thereof, shall also constitute a breach.
B. Notice and Cure Period
In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in
the manner provided in §16. If such breach is not cured within 30 days of receipt of written notice, or if a
cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued
with due diligence, the State may exercise any of the remedies set forth in §15. Notwithstanding anything
to the contrary herein, the State, in its sole discretion, need not provide advance notice or a cure period and
may immediately terminate this Loan Agreement in whole or in part if reasonably necessary to preserve
public safety or to prevent immediate public crisis.
15. REMEDIES
Except for the remedies listed in §15(C) which do not require a notice and cure period for Borrower’s breach
and may be immediately exercised by the State, if Borrower is in breach under any provision of this Loan
Agreement or if the State terminates this Loan Agreement pursuant to §15(B), the State shall have the remedies
listed in this §15 in addition to all other remedies set forth in other sections of this Loan Agreement following
the notice and cure period set forth in §14(B), if applicable. The State may exercise any or all of the remedies
available to it, in its sole discretion, concurrently or consecutively.
A. Termination for Cause and/or Breach
If Borrower fails to perform any of its obligations hereunder with such diligence as is required to ensure its
completion in accordance with the provisions of this Loan Agreement and in a timely manner, the State
may notify Borrower of such non-performance in accordance with the provisions herein. If Borrower
thereafter fails to promptly cure such non-performance within the cure period, the State, at its option, may
terminate this entire Loan Agreement or such part of this Loan Agreement as to which there has been delay
or a failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its
obligations hereunder. Borrower shall continue performance of this Loan Agreement to the extent not
terminated, if any.
i. Obligations and Rights
To the extent specified in any termination notice, Borrower shall not incur further obligations or
render further performance hereunder past the effective date of such notice, and shall terminate
outstanding orders and subgrants/subcontracts with third parties. However, Borrower shall complete
and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may
incur obligations as are necessary to do so within this Loan’s terms. At the sole discretion of the State,
Borrower shall assign to the State all of Borrower's right, title, and interest under such terminated
orders or subgrants/subcontracts. Upon termination, Borrower shall take timely, reasonable and
necessary action to protect and preserve property in the possession of Borrower in which the State has
an interest. All materials owned by the State in the possession of Borrower shall be immediately
returned to the State. All Work Product, at the option of the State, shall be delivered by Borrower to
the State and shall become the State’s property.
ii. Payments
The State shall reimburse Borrower only for accepted performance up to the date of termination. If,
after termination by the State, it is determined that Borrower was not in breach or that Borrower's
action or inaction was excusable, such termination shall be treated as a termination in the public
Page 11 of 20
interest and the rights and obligations of the Parties shall be the same as if this Loan Agreement had
been terminated in the public interest, as described herein.
iii. Damages and Withholding
Notwithstanding any other remedial action by the State, Borrower also shall remain liable to the State
for any damages sustained by the State by virtue of any breach under this Loan Agreement by
Borrower and the State may withhold any payment to Borrower for the purpose of mitigating the
State’s damages, until such time as the exact amount of damages due to the State from Borrower is
determined. The State may withhold any amount that may be due to Borrower as the State deems
necessary to protect the State, including loss as a result of outstanding liens or claims of former lien
holders, or to reimburse the State for the excess costs incurred in procuring similar goods or services.
Borrower shall be liable for excess costs incurred by the State in procuring from third parties
replacement Work, Services or substitute Goods as cover.
B. Early Termination in the Public Interest
The State is entering into this Loan Agreement for the purpose of carrying out the public policy of the State
of Colorado, as determined by its Governor, General Assembly, and/or Courts. If this Loan Agreement
ceases to further the public policy of the State, the State, in its sole discretion, may terminate this Loan
Agreement in whole or in part. Exercise by the State of this right shall not constitute a breach of the State’s
obligations hereunder. This subsection shall not apply to a termination of this Loan Agreement by the State
for cause or breach by Borrower, which shall be governed by §15(A) or as otherwise specifically provided
for herein.
i. Method and Content
The State shall notify Borrower of such termination in accordance with §16. The notice shall specify
the effective date of the termination and whether it affects all or a portion of this Loan Agreement.
ii. Obligations and Rights
Upon receipt of a termination notice, Borrower shall be subject to and comply with the same
obligations and rights set forth in §15(A)(i).
iii. Payments
If this Loan Agreement is terminated by the State pursuant to this §15(B), Borrower shall be paid an
amount which bears the same ratio to the total reimbursement under this Loan Agreement as the
Services satisfactorily performed bear to the total Services covered by this Loan Agreement, less
payments previously made. Additionally, if this Loan Agreement is less than 60% completed, the State
may reimburse Borrower for a portion of actual out-of-pocket expenses (not otherwise reimbursed
under this Loan) incurred by Borrower which are directly attributable to the uncompleted portion of
Borrower’s obligations hereunder; provided that the sum of any and all reimbursement shall not
exceed the maximum amount payable to Borrower hereunder.
C. Untimely Expenditure of Funds
The State will track administrative and reporting requirements as described in Exhibit A. If, at any time
during the term of this Loan Agreement, State determines the Borrower is not meeting its administrative
and reporting requirements, State may elect to take one or more of the following actions, which shall not be
deemed a breach of its obligations hereunder:
i. Technical Assistance. State may elect to conduct on-site monitoring and work closely with Borrower
until the Project is back on schedule. State shall provide prior written notice to Borrower if its elects to
conduct on-site monitoring, which shall be conducted during normal business hours and shall not
unduly disrupt Borrower’s business operations.
ii. Terminate Loan Agreement. The State, at its option, may terminate this entire Loan Agreement as to
which there has been a failure to properly meet its administrative and reporting requirements,
Borrower shall continue performance of this Loan Agreement to the extent not terminated, if any.
a) Method and Content.
The State shall notify Borrower of such termination in accordance with §16. The notice shall
specify the effective date of the termination and whether it affects all or a portion of this Loan
Agreement.
b) Obligations and Rights.
Upon receipt of a termination notice, Borrower shall be subject to and comply with the same
obligations and rights set forth in §15(A)(i).
Page 12 of 20
c) Deobligation of Loan Funds; Repayment by Borrower of Received Funds.
If this Loan Agreement is terminated by the State pursuant to this §15(C)(ii), State shall de-
obligate any remaining unexpended Loan Funds for the Project, as applicable, and shall
provide notice to Borrower that such Project has failed to meet its administrative and reporting
requirements and that as a result, Borrower is required to immediately return to the State any
previously received Loan Funds for the Project.
D. Remedies Not Involving Termination
The State, at its sole discretion, may exercise one or more of the following remedies in addition to other
remedies available to it:
i. Suspend Performance
Suspend Borrower’s performance with respect to all or any portion of this Loan Agreement pending
necessary corrective action as specified by the State without entitling Borrower to an adjustment in
price/cost or performance schedule. Borrower shall promptly cease performance and incurring costs in
accordance with the State’s directive and the State shall not be liable for costs incurred by Borrower
after the suspension of performance under this provision.
ii. Withhold Payment
Withhold payment to Borrower until corrections in Borrower’s performance are satisfactorily made
and completed.
iii. Deny Payment
Deny payment for those obligations not performed, that due to Borrower’s actions or inactions, cannot
be performed or, if performed, would be of no value to the State; provided, that any denial of payment
shall be reasonably related to the value to the State of the obligations not performed.
iv. Removal
Demand removal of any of Borrower’s employees or agents from the Project whom the State deems
incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued
relation to this Loan Agreement is deemed to be contrary to the public interest or not in the State’s
best interest.
v. Intellectual Property
If Borrower infringes on a patent, copyright, trademark, trade secret or other intellectual property right
while performing its obligations under this Loan Agreement, Borrower shall, at the State’s option (a)
obtain for the State or Borrower the right to use such products and services; (b) replace any Goods,
Services, or other product involved with non-infringing products or modify them so that they become
non-infringing; or, (c) if neither of the foregoing alternatives are reasonably available, remove any
infringing Goods, Services, or products and refund the price paid therefore to the State.
16. NOTICES and REPRESENTATIVES
Each individual identified below is the principal representative of the designating Party. All notices required to
be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such
Party’s principal representative at the address set forth below. In addition to, but not in lieu of a hard-copy
notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either Party may from
time to time designate by written notice substitute addresses or persons to whom such notices shall be sent.
Unless otherwise provided herein, all notices shall be effective upon receipt.
A. State:
Will Toor, Executive Director
Colorado Energy Office
1580 Logan Street, Suite 100
Denver, Colorado 80203
Email: will.toor@state.co.us
B. Borrower:
Page 13 of 20
Darin Atteberry
City Manager
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80521
Email: datteberry@fcgov.com
17. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE
This section shall | shall not apply to this Loan Agreement.
Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models,
materials, or Work Product of any type, including drafts, prepared by Borrower in the performance of its
obligations under this Loan Agreement shall be the exclusive property of the State and, all Work Product shall
be delivered to the State by Borrower upon completion or termination hereof. The State’s exclusive rights in
such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare
derivative works. Borrower shall not use, willingly allow, cause or permit such Work Product to be used for any
purpose other than the performance of Borrower's obligations hereunder without the prior written consent of the
State.
18. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to Borrower under this Loan Agreement is greater than $100,000, either on the
Effective Date or at anytime thereafter, this §19 applies.
Borrower agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24-102-206, §24-103-
601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor performance on state Loans and
inclusion of Loan Agreement performance information in a statewide Contract Management System.
Borrower’s performance may be subject to Evaluation and Review in accordance with the terms and conditions
of this Loan Agreement, State law, including CRS §24-103.5-101, and State Fiscal Rules, Policies and
Guidance. Evaluation and Review of Borrower’s performance shall be part of the normal Loan Agreement
administration process and Borrower’s performance will be systematically recorded in the statewide Contract
Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality, cost and
timeliness. Collection of information relevant to the performance of Borrower’s obligations under this Loan
Agreement shall be determined by the specific requirements of such obligations and shall include factors
tailored to match the requirements of Borrower’s obligations. Such performance information shall be entered
into the statewide Contract Management System at intervals established herein and a final Evaluation, Review
and Rating shall be rendered within 30 days of the end of the Loan Agreement term. Borrower shall be notified
following each performance Evaluation and Review, and shall address or correct any identified problem in a
timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that Borrower demonstrated a gross failure to
meet the performance measures established hereunder, the Executive Director of the Colorado Department of
Personnel and Administration (Executive Director), upon request by the Colorado Energy Office, and showing
of good cause, may debar Borrower and prohibit Borrower from receiving future grants and bidding on future
contracts. Borrower may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements,
which may result in either removal or correction of the evaluation (CRS §24-105-102(6)), or (b) under CRS
§24-105-102(6), exercising the debarment protest and appeal rights provided in CRS §§24-109-106, 107, 201 or
202, which may result in the reversal of the debarment and reinstatement of Borrower, by the Executive
Director, upon a showing of good cause.
19. RESTRICTION ON PUBLIC BENEFITS
This section shall | shall not apply to this Loan Agreement.
Borrower must confirm that any individual natural person is lawfully present in the United States pursuant to 8
U.S.C. §§1101-1646 when such individual applies for public benefits provided under this Loan Agreement by
requiring the applicant to execute a residency declaration as satisfactory to the State.
Page 14 of 20
20. GENERAL PROVISIONS
A. Assignment and Subgrants
Borrower’s rights and obligations hereunder are personal and may not be transferred, assigned or
subgranted without the prior, written consent of the State. Any attempt at assignment, transfer, or
subgranting without such consent shall be void. All assignments, subgrants, or subcontracts approved by
Borrower or the State are subject to all of the provisions hereof. Borrower shall be solely responsible for all
aspects of subgranting and subcontracting arrangements and performance.
B. Binding Effect
Except as otherwise provided in §21(A), all provisions herein contained, including the benefits and
burdens, shall extend to and be binding upon the Parties’ respective heirs, legal representatives, successors,
and assigns.
C. Captions
The captions and headings in this Loan Agreement are for convenience of reference only, and shall not be
used to interpret, define, or limit its provisions.
D. Counterparts
This Loan Agreement may be executed in multiple identical original counterparts, all of which shall
constitute one agreement.
E. Entire Understanding
This Loan Agreement represents the complete integration of all understandings between the Parties and all
prior representations and understandings, oral or written, are merged herein. Prior or contemporaneous
additions, deletions, or other changes hereto shall not have any force or effect whatsoever, unless embodied
herein.
F. Indemnification-General
Borrower shall, to the extent permitted by law, indemnify, save, and hold harmless the State, its employees
and agents, against any and all claims, damages, liability and court awards including costs, expenses, and
attorney fees and related costs, incurred as a result of any act or omission by Borrower, or its employees,
agents, or assignees pursuant to the terms of this Loan Agreement; however, the provisions hereof shall not
be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits,
protection, or other provisions, of the GIA, or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., as
applicable, as now or hereafter amended.
G. Applicable Law
At all times during the performance of this Loan Agreement, Borrower shall comply with all applicable
Federal and State laws and their implementing regulations, currently in existence and as hereafter amended,
Applicable Laws. Borrower also shall require compliance with such laws and regulations by subgrantees
under subgrants permitted by this Loan Agreement.
H. RESERVED
I. Modification
i. By the Parties
Except as otherwise provided in this Loan Agreement, any modification to this Loan Agreement shall
only be effective if agreed to in a written amendment by both Parties.
ii. By Operation of Law
This Loan Agreement is subject to such modifications as may be required by changes in Federal or
Colorado State law, or their implementing regulations. Any such required modification automatically
shall be incorporated into and be part of this Loan Agreement on the effective date of such change, as
if fully set forth herein.
J. Order of Precedence
The provisions of this Loan Agreement shall govern the relationship of the Parties. In the event of conflicts
or inconsistencies between this Loan Agreement and its exhibits and attachments including, but not limited
to, those provided by Borrower, such conflicts or inconsistencies shall be resolved by reference to the
documents in the following order of priority:
i. Exhibit B (DOE Award Terms and Conditions)
Page 15 of 20
ii. Exhibit C (Federal Provisions)
iii. Colorado Special Provisions.
iv. The provisions of the main body of this Loan Agreement
v. Exhibit A (Statement of Project)
vi. Exhibit D (Promissory Note)
vii. Any document incorporated by reference which is not included in any item listed in (i) through (vi)
above
K. Severability
Provided this Loan Agreement can be executed and performance of the obligations of the Parties
accomplished within its intent, the provisions hereof are severable and any provision that is declared
invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof.
L. Survival of Certain Loan Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Loan Agreement requiring continued
performance, compliance, or effect after termination hereof, shall survive such termination and shall be
enforceable by the State if Borrower fails to perform or comply as required.
M. Taxes
The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all
State and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such exemptions
apply when materials are purchased or services rendered to benefit the State; provided however, that certain
political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the
product or service is provided to the State. Borrower shall be solely liable for paying such taxes as the State
is prohibited from paying for or reimbursing Borrower for them.
N. Third Party Beneficiaries
Enforcement of this Loan Agreement and all rights and obligations hereunder are reserved solely to the
Parties, and not to any third party. Any services or benefits which third parties receive as a result of this
Loan Agreement are incidental to the Loan Agreement, and do not create any rights for such third parties.
O. Waiver
Waiver of any breach of a term, provision, or requirement of this Loan Agreement, or any right or remedy
hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of
any subsequent breach of such term, provision or requirement, or of any other term, provision, or
requirement.
P. CORA Disclosure
To the extent not prohibited by federal law, this Loan Agreement and the performance measures and
standards under CRS §24-103.5-101, if any, are subject to public release through the Colorado Open
Records Act, CRS §24-72-101, et seq.
S. Safeguarding PII
“PII” means personally identifiable information including, without limitation, any information maintained
by the State about an individual that can be used to distinguish or trace an individual‘s identity, such as name,
social security number, date and place of birth, mother‘s maiden name, or biometric records; and any other
information that is linked or linkable to an individual, such as medical, educational, financial, and
employment information. PII includes, but is not limited to, all information defined as personally identifiable
information in §24-72-501, C.R.S. If Borrower or any of its Subcontractors will or may receive PII under
this Loan Agreement, Borrower shall provide for the security of such PII, in a manner and form acceptable
to the State, including, without limitation, State non-disclosure requirements, use of appropriate technology,
security practices, computer access security, data access security, data storage encryption, data transmission
encryption, security inspections, and audits. Borrower shall be a “Third-Party Service Provider” as defined
in §24-73-103(1)(i), C.R.S. and shall maintain security procedures and practices consistent with §§24-73-
101 et seq., C.R.S.
T. Federal Provisions
Grantee shall comply with all applicable requirements of Exhibit C at all times during the term of this Grant.
Page 16 of 20
21. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all contracts except where noted in italics.
A CONTROLLER'S APPROVAL. §24-30-202(1) C.R.S. This Loan Agreement shall not be valid
until it has been approved by the Colorado State Controller or designee.
B. FUND AVAILABILITY. §24-30-202(5.5) C.R.S. Financial obligations of the State payable
after the current fiscal year are contingent upon funds for that purpose being appropriated,
budgeted, and otherwise made available.
C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property
arising from the negligence of the State, its departments, boards, commissions committees,
bureaus, offices, employees and officials shall be controlled and limited by the provisions of
the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort
Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management
statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Loan Agreement shall be
construed or interpreted as a waiver, express or implied, of any of the immunities, rights,
benefits, protections, or other provisions, contained in these statutes.
D. INDEPENDENT CONTRACTOR. Borrower shall perform its duties hereunder as an
independent contractor and not as an employee. Neither Borrower nor any agent or employee
of Borrower shall be deemed to be an agent or employee of the State. Borrower shall not have
authorization, express or implied, to bind the State to any agreement, liability, or
understanding, except as expressly set forth herein. Borrower and its employees and agents
are not entitled to unemployment insurance or workers compensation benefits through
the State and the State shall not pay for or otherwise provide such coverage for Borrower
or any of its agents or employees. Borrower shall pay when due all applicable
employment taxes and income taxes and local head taxes incurred pursuant to this Loan
Agreement. Borrower shall (a) provide and keep in force workers' compensation and
unemployment compensation insurance in the amounts required by law, (b) provide proof
thereof when requested by the State, and (c) be solely responsible for its acts and those of
its employees and agents.
E. COMPLIANCE WITH LAW. Borrower shall comply with all applicable federal and State
laws, rules, and regulations in effect or hereafter established, including, without limitation, laws
applicable to discrimination and unfair employment practices.
F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations
issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of
this Loan Agreement. Any provision included or incorporated herein by reference which
conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related
to this Loan Agreement shall be filed and proceedings held in the State of Colorado and
exclusive venue shall be in the City and County of Denver.
G. PROHIBITED TERMS. Any term included in this Loan Agreement that requires the State to
indemnify or hold Borrower harmless; requires the State to agree to binding arbitration; limits
Borrower’s liability for damages resulting from death, bodily injury, or damage to tangible
property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this
Loan Agreement shall be construed as a waiver of any provision of §24-106-109 C.R.S. Any
term included in this Loan Agreement that limits Borrower’s liability that is not void under this
section shall apply only in excess of any insurance to be maintained under this Loan
Page 17 of 20
Agreement, and no insurance policy shall be interpreted as being subject to any limitations of
liability of this Loan Agreement.
H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Loan
Agreement shall not be used for the acquisition, operation, or maintenance of computer
software in violation of federal copyright laws or applicable licensing restrictions. Borrower
hereby certifies and warrants that, during the term of this Loan Agreement and any extensions,
Borrower has and shall maintain in place appropriate systems and controls to prevent such
improper use of public funds. If the State determines that Borrower is in violation of this
provision, the State may exercise any remedy available at law or in equity or under this Loan
Agreement including, without limitation, immediate termination of this Loan Agreement and
any remedy consistent with federal copyright laws or applicable licensing restrictions.
I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-
507 C.R.S. The signatories aver that to their knowledge, no employee of the State has any
personal or beneficial interest whatsoever in the service or property described in this Loan
Agreement. Borrower has no interest and shall not acquire any interest, direct or indirect, that
would conflict in any manner or degree with the performance of Borrower’s services and
Borrower shall not employ any person having such known interests.
J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202 (1) and 24-30-202.4
C.R.S. [Not Applicable to intergovernmental Loan Agreements] The State Controller may
withhold payment under the State’s vendor offset intercept system for debts owed to State
Agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of
tax, accrued interest, or other charges specified in §39-21-101, et seq. C.R.S.; (c) unpaid loans
due to the Student Loan Division of the Department of Higher Education; (d) amounts required
to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the
State as a result of final agency determination or judicial action. The State may also recover, at
the State’s discretion, payments made to Borrower in error for any reason, including, but not
limited to, overpayments or improper payments, and unexpended or excess funds received by
Borrower by deduction from subsequent payments under this Loan Agreement, deduction from
any payment due under any other contracts, grants or Loan Agreements between the State and
Borrower, or by any other appropriate method for collecting debts owed to the State.
K. PUBLIC CONTRACTS FOR SERVICES. §8-17.5-101 C.R.S. [Not Applicable to Loan
Agreements relating to the offer, issuance, or sale of securities, investment advisory services or
fund management services, sponsored projects, intergovernmental Loan Agreements, or
information technology services or products and services] Borrower certifies, warrants, and
agrees that it does not knowingly employ or contract with an illegal alien who will perform
work under this Loan Agreement and will confirm the employment eligibility of all employees
who are newly hired for employment in the United States to perform work under this Loan
Agreement, through participation in the E-Verify Program or the Department program
established pursuant to §8-17.5-102(5)(c), C.R.S. Borrower shall not knowingly employ or
contract with an illegal alien to perform work under this Loan Agreement or enter into a
contract with a subcontractor that fails to certify to Borrower that the subcontractor shall not
knowingly employ or contract with an illegal alien to perform work under this Loan
Agreement. Borrower (a) shall not use E-Verify Program or Department program procedures to
undertake pre-employment screening of job applicants while this Loan Agreement is being
performed, (b) shall notify the subcontractor and the contracting State Agency within three
days if Borrower has actual knowledge that a subcontractor is employing or contracting with an
illegal alien for work under this Loan Agreement, (c) shall terminate the subcontract if a
subcontractor does not stop employing or contracting with the illegal alien within three days of
Page 18 of 20
receiving the notice, and (d) shall comply with reasonable requests made in the course of an
investigation, undertaken pursuant to §8-17.5-102(5) C.R.S., by the Colorado Department of
Labor and Employment. If Borrower participates in the Department program, Borrower shall
deliver to the contracting State Agency, Institution of Higher Education or political subdivision
a written, notarized affirmation, affirming that Borrower has examined the legal work status of
such employee, and shall comply with all of the other requirements of the Department program.
If Borrower fails to comply with any requirement of this provision or §8-17.5-101 et seq.,
C.R.S., the contracting State Agency, Institution of Higher Education or political subdivision
may terminate this Loan Agreement for breach and, if so terminated, Borrower shall be liable
for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §24-76.5-101 C.R.S. Borrower, if a
natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of
perjury that Borrower (a) is a citizen or otherwise lawfully present in the United States
pursuant to federal law, (b) shall comply with the provisions of §24-76.5-101 et seq. C.R.S.,
and (c) has produced one form of identification required by §24-76.5-103 C.R.S. prior to the
effective date of this Loan Agreement.
Page 19 of 20
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 20 of 20
SIGNATURE PAGE Contract Routing Number ----------
THE PARTIES HERETO HAVE EXECUTED THIS LOAN
* Persons signing for Borrower hereby swear and affirm that they are authorized to act on Borrower’s behalf and
acknowledge that the State is relying on their representations to that effect.
BORROWER
City of Fort Collins, Colorado, Electric Utility Enterprise
By: _____________________________________________
Wade Troxell
Title: President
Official Title of Authorized Individual
Attest:
______________________________________________
Delynn Coldiron, Secretary
Date: __________________________________
STATE OF COLORADO
Jared S. Polis, GOVERNOR
COLORADO ENERGY OFFICE
By:__________________________________________
Will Toor, Executive Director
Date: __________________________________
ALL LOANS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State loans. This Loan Agreement is not valid until
signed and dated below by the State Controller or delegate. Borrower is not authorized to begin performance until
such time. If Borrower begins performing prior thereto, the State of Colorado is not obligated to pay Borrower for
such performance or for any goods and/or services provided hereunder.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By:___________________________________________
Date:_____________________
Exhibit A Page 1 of 6
EXHIBIT A, STATEMENT OF PROJECT
I. Project Description and Objective:
The Colorado Energy Office (“CEO”) is providing an $800,000.00 loan to the City of Fort Collins,
Colorado, Electric Utility Enterprise (“Enterprise”) to capitalize an on-bill financing program (“Epic
Loan”), which enables utility customers to borrow funds to install energy efficiency and renewable
energy improvements on their residential properties and pay it back through a charge on their monthly
utility bill. The program removes the upfront cost barrier for customers to pursue energy upgrades. The
objective is for the Enterprise to scale the program and to provide more loans to a greater percentage of
customers, particularly low- to moderate-income customers so they can make their homes more energy
efficient and reduce their energy burden.
II. Borrower’s Obligations
The Enterprise shall be responsible for administering and marketing the Epic Loan, maintaining properly
segregated accounting records, and tracking each project and ensuring compliance with federal
requirements including the National Environmental Policy Act (NEPA) and the National Historic
Preservation Act. The Enterprise will also be responsible for providing reporting as outlined below in
Section VI.
Borrower is also responsible for segregating, tracking and reporting program income as defined in 2
CFR § 200.80.
The Enterprise’s payment obligations under the Note shall be payable and collectable solely from the
Enterprise’s “Net Pledged Revenues” (as defined below) which revenues are hereby so pledged, but this
pledge is in all respects subordinate to the pledge and lien thereon of the “Senior Debt” (as defined
below) at any time outstanding but on a pari passu basis with the Parity Debt (as defined below). The
CEO may not look to any general or other fund of the Enterprise or of the City of Fort Collins (the
“City”) for the payment of such obligations owed under the Note. Notwithstanding the foregoing, the
Enterprise may issue hereafter, without the CEO’s prior written consent, other debt secured with a lien
on the Net Pledged Revenues that is on parity with or subordinate to the lien in this Agreement. However,
the Enterprise may not issue future debt with a lien on the Net Pledged Revenues that is senior to the
lien in this Agreement without the CEO’s prior written consent unless such debt is issued pursuant to the
provisions of the Senior Debt.
UNet Pledged RevenuesU means the “Gross Pledged Revenues” (as defined below) remaining after the
payment of the “Operation and Maintenance Expenses” (as defined below) of the “System” (as defined
below).
UGross Pledged RevenuesU means all rates, fees, charges and revenues derived directly or indirectly by the
City from the operation and use of and otherwise pertaining to the System, or any part thereof, whether
resulting from capital improvements or otherwise, and includes all rates, fees, charges and revenues
received by the City from the System, including without limitation:
Exhibit A Page 2 of 6
(a) All rates, fees and other charges for the use of the System, or for any service
rendered by the City or the Enterprise in the operation thereof, directly or indirectly, the
availability of any such service, or the sale or other disposal of any commodities derived
therefrom, including, without limitation, connection charges, but:
(i) Excluding any moneys borrowed and used for the acquisition of capital
improvements or for the refunding of securities, and all income or other gain from any
investment of such borrowed moneys; and
(ii) Excluding any moneys received as grants, appropriations or gifts from the
Federal Government, the State, or other sources, the use of which is limited by the grantor
or donor to the construction of capital improvements, except to the extent any such
moneys shall be received as payments for the use of the System, services rendered
thereby, the availability of any such service, or the disposal of any commodities
therefrom; and
(b) All income or other gain from any investment of Gross Pledged Revenues
(including without limitation the income or gain from any investment of all Net Pledged
Revenues, but excluding borrowed moneys and all income or other gain thereon in any project
fund, construction fund, reserve fund, or any escrow fund for any Senior Debt payable from Net
Pledged Revenues heretofore or hereafter issued and excluding any unrealized gains or losses on
any investment of Gross Pledged Revenues); and
(c) All income and revenues derived from the operation of any other utility or other
income-producing facilities added to the System and to which the pledge and lien herein provided
are lawfully extended by the Board or by the qualified electors of the City; and
(d) All revenues which the Enterprise receives from the repayment of Epic Loans.
UOperation and Maintenance ExpensesU means such reasonable and necessary current expenses of the
City, paid or accrued, of operating, maintaining and repairing the System including, except as limited by
contract or otherwise limited by law, without limiting the generality of the foregoing:
(a) All payments made to the Platte River Power Authority, a wholesale electricity
provider that acquires, constructs and operates generation capacity for the City, or its successor
in function;
(b) Engineering, auditing, legal and other overhead expenses directly related and
reasonably allocable to the administration, operation and maintenance of the System;
(c) Insurance and surety bond premiums appertaining to the System;
(d) The reasonable charges of any paying agent, registrar, transfer agent, depository
or escrow agent appertaining to the System or any bonds or other securities issued therefor;
(e) Annual payments to pension, retirement, health and hospitalization funds
appertaining to the System;
Exhibit A Page 3 of 6
(f) Any taxes, assessments, franchise fees or other charges or payments in lieu of the
foregoing;
(g) Ordinary and current rentals of equipment or other property;
(h) Contractual services, professional services, salaries, administrative expenses, and
costs of labor appertaining to the System and the cost of materials and supplies used for current
operation of the System;
(i) The costs incurred in the billing and collection of all or any part of the Gross
Pledged Revenues; and
(j) Any costs of utility services furnished to the System by the City or otherwise.
Operation and Maintenance Expenses does not include:
(k) Any allowance for depreciation;
(l) Any costs of reconstruction, improvement, extensions, or betterments, including
without limitation any costs of capital improvements;
(m) Any accumulation of reserves for capital replacements;
(n) Any reserves for operation, maintenance, or repair of the System;
(o) Any allowance for the redemption of any bonds or other securities payable from
the Net Pledged Revenues or the payment of any interest thereon;
(p) Any liabilities incurred in the acquisition of any properties comprising the
System; and
(q) Any other ground of legal liability not based on contract.
Parity Debt means any obligations of the Enterprise payable from and with a lien on the Net Pledged
Revenues on a parity basis with the Enterprise’s loan agreement with U.S. Bank Association approved
in Enterprise Ordinance No. 007, as amended in Enterprise Ordinance No. 008, and its loan agreement
with Vectra Bank Colorado approved in Enterprise Ordinance No. 009.
USenior DebtU means collectively the following financial obligations of the Enterprise which are payable
from and secured by a lien on the Net Pledged Revenues: (i) itsthe “City of Fort Collins, Colorado,
Electric Utility Enterprise, Tax-Exempt Revenue Bonds, Series 2018A” and its “City of Fort Collins,
Colorado, Electric Utility Enterprise, Taxable Revenue Bonds, Series 2018B,” both approved in
Enterprise Ordinance No. 003; (ii) its loan agreement with U.S. Bank National Association approved in
Enterprise Ordinance No. 007 as amended in Enterprise Ordinance No. 008; and (iii) its loan agreement
with Vectra Bank Colorado approved in Enterprise Ordinance No. 009.
USystemU means the City’s electric distribution system that furnishes electricity and related services and
Uexcludes Uthe City’s broadband system using fiber-optic technology. The System consists of all
properties, real, personal, mixed and otherwise, now owned or hereafter acquired by the City, through
purchase, construction and otherwise, and used in connection with such system of the City, and in any
Exhibit A Page 4 of 6
way pertaining thereto and consisting of all properties, real, personal, mixed or otherwise, now owned
or hereafter acquired by the City, whether situated within or without the City boundaries, used in
connection with such system of the City, and in any way appertaining thereto, including all present or
future improvements, extensions, enlargements, betterments, replacements or additions thereof or
thereto and administrative facilities.
III. CEO Responsibilities
The CEO will be responsible for transferring the $800,000.00 from its DOE State Energy Program (SEP)
ARRA Repurposed Funds to Enterprise. CEO will work with Enterprise to ensure it establishes proper
accounting and project tracking procedures to comply with federal requirements.
IV. Payment
Upon execution of this Agreement, CEO shall advance funds to Enterprise in the amount of $800,000.00.
CEO has received an advance payment waiver pursuant to State of Colorado Fiscal Rule 2-2,
Commitment Vouchers, Section 8.2, which allows waivers in the event that “advance payment is an
industry standard and/or provides a benefit to the State at least equal to the cost and risk of the advance
payment.”
V. Administrative Requirements
A. Accounting
1) At all times from the Effective Date of this Agreement until completion of the term,
Enterprise shall maintain properly segregated books of State Funds, and other funds
associated with the Work.
2) All receipts and expenditures associated with said Work shall be documented in a detailed
and specific manner, and shall accord with the Work set forth herein.
B. Monitoring
1) The State shall monitor this Work on an as-needed basis. The State may choose to audit the
business activities performed under this loan. Borrower shall maintain a complete file of all
records, documents, communications, notes, and other written materials or electronic media,
files or communications, which pertain in any manner to the operation of activities
undertaken pursuant to an executed loan. Such books and records shall contain
documentation of the participant’s pertinent activity under this loan in a form consistent with
good accounting practice.
VI. Reporting
Unless otherwise provided in this Exhibit or the exhibits hereto, Enterprise shall be responsible for the
following reporting requirements. Required reports shall be submitted to the CEO in accordance with
the timelines specified below. The preparation of reports in a timely manner shall be the responsibility
of the Enterprise and failure to comply may result in the delay of payment of funds and/or termination
of this Loan Agreement.
A. Monthly Loan Report
Exhibit A Page 5 of 6
Enterprise shall submit, on a monthly basis by the 7P
th
P business day of the month, a loan report that
lists the total number of loans made to utility customers for energy improvements during the prior
month. The report shall include each loan’s unique identifier, the closing date, the loan amount, a
brief project description noting the approved energy measures that were installed, the interest rate,
and the loan term. The report shall also include the borrower’s annual income, FICO score, and debt-
to-income ratio but exclude any personally identifiable information. The format of the report shall be
agreed upon by both Parties.
B. Quarterly Financial Reports
Enterprise shall submit, on a quarterly basis, by the 15P
th
P business day of the month following the
ending of each quarter based on State Fiscal Year (July 1 through June 30):
1) A loan report that records each loan and the original loan amount, the principal and interest
payments made, the loan balance and the term. The report shall also note any late payments
or defaults.
2) A program report that details the program income generated (including interest, fees, or other
sources of income) and administrative expenses paid from program income. Program income
may be used as additional capital or for administrative expenses of the Epic Loan program and
shall be documented by the Enterprise. At the end of this Loan Agreement, any unexpended
program income is due and payable to CEO.
The format of the reports shall be agreed upon by both Parties.
C. Annual Reports
1) UNarrative progress reportU. Enterprise shall submit a written narrative progress report by July
30P
th
P of each year that includes a description of the work completed during the State’s Fiscal
Year. The narrative shall analyze the performance of the on-bill financing program under this
Loan and note whether the program met its annual and cumulative goals with regards to the
number of loans and the target population reached. It shall also summarize the program
activities conducted in the reporting period (such as marketing and outreach strategies), the
results and energy savings achieved, highlight any significant outcomes or success stories,
note any recurring or unanticipated challenges encountered, and actions taken to overcome
these barriers or to address underperformance of the program, if applicable.
2) UFederal requirements complianceU. Enterprise shall maintain on an ongoing basis, a
spreadsheet based on the template developed by CEO, including property address and
estimated energy savings, to document that each project financed under this Loan Agreement
complies with the flowdown requirements for State Energy Program ARRA Repurposed
funds, specifically NEPA and the National Historic Preservation Act. Enterprise shall submit
the spreadsheet to CEO each year by September 10P
th
P for the period covering September 1P
st
P
to August 30P
th
P.
Exhibit A Page 6 of 6
VII. TESTING AND ACCEPTANCE CRITERIA
The CEO shall evaluate this Project through review of Enterprise submitted Project reports. Reports
considered not complete will be returned to Enterprise within one week. CEO Program Manager is
responsible for reviewing each deliverable and determining if it is acceptable. The deliverables will be
deemed acceptable if they are received on time and in the CEO and Enterprise agreed upon format. If a
deliverable is not acceptable, CEO Program Manager will provide and document written instructions to
Enterprise outlining the changes that need to be made to the deliverable and the timeline in which those
changes need to be made. Enterprise will then be responsible for making any required changes in the
timeframe outlined by CEO.
Exhibit B Page 1 of 10
EXHIBIT B, DOE AWARD TERMS AND CONDITIONS
EERE 350: Special Terms and Conditions
The Subrecipient agrees to apply the terms and conditions of this Department of Energy (DOE) Award,
as applicable, including the Intellectual Property Provisions, (and subcontractors, as appropriate) as
required by 2 CFR 200.101 and to require their strict compliance therewith. Further, the Subrecipient
must apply the Award terms as required by 2 CFR 200.326 to all subrecipients (and subcontractors, as
appropriate) and to require their strict compliance therewith.
The following are incorporated into this Award by reference:
a) Applicable program regulations, including 10 CFR Part 420 – State Energy Program at
38TUhttp://eCFR.govU38T.
b) DOE Assistance Regulations, 2 CFR part 200 as amended by 2 CFR part 910 at
38Thttp://www.eCFR.gov38T.
c) National Policy Assurances to be incorporated as Award Terms in effect on date of award
at 38Thttp://www.nsf.gov/awards/managing/rtc.jsp38T.
A. COMPLIANCE WITH FEDERAL, STATE, AND MUNICIPAL LAW
Subrecipient is required to comply with applicable Federal, state, and local laws and regulations for all
work performed under this Award. Subrecipent is required to obtain all necessary Federal, state, and
local permits, authorizations, and approvals for all work performed under this Award.
B. INCONSISTENCY WITH FEDERAL LAW
Any apparent inconsistency between Federal statutes and regulations and the terms and conditions
contained in this award must be referred to the CEO for guidance.
C. FEDERAL STEWARDSHIP
The Office of Energy Efficiency and Renewable Energy (“EERE”) will exercise Federal stewardship
in overseeing the project activities performed under this award. Stewardship activities include, but are
not limited to, conducting site visits; reviewing performance and financial reports; providing technical
assistance and/or temporary intervention in unusual circumstances to correct deficiencies which
develop during the project; assuring compliance with terms and conditions; and reviewing technical
performance after project completion to ensure that the award objectives have been accomplished.
D. SITE VISITS
EERE's authorized representatives have the right to make site visits at reasonable times to review
project accomplishments and management control systems and to provide technical assistance, if
required. Subrecipient must provide, reasonable access to facilities, office space, resources, and
assistance for the safety and convenience of the government representatives in the performance of their
duties. All site visits and evaluations must be performed in a manner that does not unduly interfere
with or delay the work.
E. NEPA REQUIRMENTS
a. Authorization.
Exhibit B Page 2 of 10
CEO must comply with the National Environmental Policy Act (NEPA) prior to authorizing the use of
Federal funds. EERE has determined that activities that fall under the bounded categories are
categorically excluded and require no further NEPA review, absent extraordinary circumstances,
cumulative impacts, or connected actions that may lead to significant impacts on the environment, or
any inconsistency with “integral elements” (as contained in 10 C.F.R. Part 1021, Appendix B) as they
relate to a particular project. Subrecipient is thereby authorized to use current Program Year Federal
funds for project activities that fall within the bounded categories subject to the conditions listed in
paragraph b. “Conditions”.
b. Conditions.
1) The activities must comply with the restrictions set forth for each of the bounded categories;
2) As set forth in Term 8 “Historic Preservation”, the Subrecipient must comply with Section 106 of
the National Historic Preservation Act (NHPA) consistent with DOE's 2009 letter of delegation of
authority regarding the NHPA;
3) This authorization does not include activities where the following elements exist: extraordinary
circumstances, cumulative impacts, or connected actions that may lead to significant impacts on
the environment, or any inconsistency with the "integral elements" (as contained in 10 C.F.R. Part
1021, Appendix B) as they relate to a particular project;
4) Subrecipient must identify and promptly notify DOE of extraordinary circumstances, cumulative
impacts, or connected actions that may lead to significant impacts on the environment, or any
inconsistency with the “integral elements” (as contained in 10 C.F.R. Part 1021, Appendix B) as
they relate to a particular project; and
5) Subrecipient must document in writing its review of projects to determine there are no
extraordinary circumstances, cumulative impacts, or connected actions that may lead to significant
impacts on the environment, or any inconsistency with the “integral elements” (as contained in 10
C.F.R. Part 1021, Appendix B) as they relate to a particular project and compliance with Section
106 of the National Historic Preservation Act (NHPA), as applicable;
6) Subrecipient must document that project activities do not occur in a floodplain or wetland. If the
project activities do occur in a floodplain or wetland, (except those under Bounded Categories 1-7g
as listed in the Program Year 2018 SEP Formula Guidance), those project activities are subject to
additional NEPA review and approval by DOE.
c. Modifications/Activities Outside the Bounded Categories.
If the Subrecipient later intends to undertake activities/projects that do not fall within the bounded
categories, those activities/projects are subject to additional NEPA review by DOE and are not
authorized for Federal funding unless and until the contracting officer provides written authorization
on those additions or modifications. Should the Subrecipient elect to undertake activities/projects prior
to written authorization from the contracting officer, the Subrecipient does so at risk of not receiving
Federal funding for those activities/projects, and such costs may not be recognized as allowable cost
match.
E. HISTORIC PRESERVATION
Prior to the expenditure of Federal funds to alter any structure or site, the Subrecipient is required to
comply with the requirements of Section 106 of the National Historic Preservation Act (NHPA),
consistent with DOE's 2009 letter of delegation of authority regarding the NHPA. Section 106 applies
Exhibit B Page 3 of 10
to historic properties that are listed in or eligible for listing in the National Register of Historic Places.
In order to fulfill the requirements of Section 106, the subrecipient must contact the State Historic
Preservation Officer (SHPO), and, if applicable, the Tribal Historic Preservation Officer (THPO), to
coordinate the Section 106 review outlined in 36 CFR Part 800. SHPO contact information is
available at the following link: http://ncshpo.org/. THPO contact information is available at the
following link: 38Thttp://www.nathpo.org/map.html38T
Section 110(k) of the NHPA applies to DOE funded activities. Subrecipients shall avoid taking any
action that results in an adverse effect to historic properties pending compliance with Section 106.
Subrecipients should be aware that the CEO will consider the subrecipient in compliance with Section
106 of the NHPA only after the Subrecipient has submitted adequate background documentation to the
SHPO/THPO for its review, and the SHPO/THPO has provided written concurrence to the
Subrecipient that it does not object to its Section 106 finding or determination. Subrecipients shall
provide a copy of this concurrence to the CEO.
G. PERFORMANCE OF WORK IN UNITED STATES
a. Requirement.
All work performed under this Grant must be performed in the United States unless the contracting
officer provides a waiver. This requirement does not apply to the purchase of supplies and equipment;
however, the Subrecipient should make every effort to purchase supplies and equipment within the
United States.
b. Failure to Comply.
If the Subrecipient fails to comply with the Performance of Work in the United States requirement, the
CEO may deny reimbursement for the work conducted outside the United States and such costs may
not be recognized as allowable Grantee cost share regardless if the work is performed by the
Subrecipient, subrecipients, vendors or other project partners.
c. Waiver for Work Outside the U.S.
All work performed under this Grant must be performed in the United States. However, the Grantee
may approve the Grantee to perform a portion of the work outside the United States under limited
circumstances. Grantee must obtain a waiver from the contracting officer prior to conducting any work
outside the U.S. To request a waiver, the Grantee must submit a written waiver request to the CE,
which includes the following information:
• The rationale for performing the work outside the U.S.;
• A description of the work proposed to be performed outside the U.S.;
• Proposed budget of work to be performed; and
• The countries in which the work is proposed to be performed.
Exhibit B Page 4 of 10
For the rationale, the Grantee must demonstrate to the satisfaction of the CEO that the performance of
work outside the United States would further the purposes of the FOA that the Award was selected
under and is in the economic interests of the United States. The CEO may require additional
information before considering such request.
G. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND
PRODUCTS-SENSE OF CONGRESS
It is the sense of the Congress that, to the greatest extent practicable, all equipment and products
purchased with funds made available under this Award should be American-made.
H. REPORTING REQUIREMENTS
a. Requirements.
The reporting requirements for this Award are identified on the Federal Assistance Reporting
Checklist, attached to this Award. Failure to comply with these reporting requirements is considered a
material noncompliance with the terms of the Award. Noncompliance may result in withholding of
future payments, suspension, or termination of the current award, and withholding of future awards. A
willful failure to perform, a history of failure to perform, or unsatisfactory performance of this and/or
other financial assistance awards, may also result in a debarment action to preclude future awards by
Federal agencies.
b. Dissemination of scientific/technical reports.
Scientific/technical reports submitted under this Award will be disseminated on the Internet via the
DOE Information Bridge (38Twww.osti.gov/bridge38T), unless the report contains patentable material,
protected data or SBIR/STTR data. Citations for journal articles produced under the Award will
appear on the DOE Energy Citations Database (38Twww.osti.gov/energycitations38T).
c. Restrictions.
Reports submitted to the DOE Information Bridge must not contain any Protected Personal Identifiable
Information (PII), limited rights data (proprietary data), classified information, information subject to
export control classification, or other information not subject to release.
I. LOBBYING
By accepting funds under this Grant, the Subrecipient agrees that none of the funds obligated on the
Grant shall be expended, directly or indirectly, to influence congressional action on any legislation or
appropriation matters pending before Congress, other than to communicate to Members of Congress as
described in 18 U.S.C. § 1913. This restriction is in addition to those prescribed elsewhere in statute
and regulation.
J. PUBLICATIONS
a. Subrecipient is encouraged to publish or otherwise make publicly available the results of the work
conducted under the award.
b. An acknowledgment of Federal support and a disclaimer must appear in the publication of any
Exhibit B Page 5 of 10
material, whether copyrighted or not, based on or developed under this project, as follows:
Acknowledgment: "This material is based upon work supported by the Department of Energy, Office
of Energy Efficiency and Renewable Energy (EERE) under Award Number DE-EE0007470.”
Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United
States Government. Neither the United States Government nor any agency thereof, nor any of their
employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for
the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed,
or represents that its use would not infringe privately owned rights. Reference herein to any specific
commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not
necessarily constitute or imply its endorsement, recommendation, or favoring by the United States
Government or any agency thereof. The views and opinions of authors expressed herein do not
necessarily state or reflect those of the United States Government or any agency thereof."
K. PROPERTY STANDARDS
The complete text of the Property Standards can be found at 2 CFR 200.310 through 200.316. Also
see 2 CFR 910.360 for additional requirements for real property and equipment for For-Profit
subrecipients.
L. INSURANCE COVERAGE
See 2 CFR 200.310 for insurance requirements for real property and equipment acquired or improved
with Federal funds. Also see 2 CFR 910.360(d) for additional requirements for real property and
equipment for For-Profit subrecipients.
M. REAL PROPERTY
Subject to the conditions set forth in 2 CFR 200.311, title to real property acquired or improved under
a Federal award will conditionally vest upon acquisition in the non-Federal entity. The non-Federal
entity cannot encumber this property and must follow the requirements of 2 CFR 200.311 before
disposing of the property.
Except as otherwise provided by Federal statutes or by the Federal awarding agency, real property will
be used for the originally authorized purpose as long as needed for that purpose. When real property is
no longer needed for the originally authorized purpose, the non-Federal entity must obtain disposition
instructions from DOE or pass-through entity. The instructions must provide for one of the following
alternatives: (a) retain title after compensating DOE as described in 2 CFR 200.311(c)(1);(b) Sell the
property and compensate DOE as specified in 2 CFR 200.311(c)(2); or (c) transfer title to DOE or to
a third party designated/approved by DOE as specified in 2 CFR 200.311(c)(3).
See 2 CFR 200.311 for additional requirements pertaining to real property acquired or improved under
a Federal award. Also see 2 CFR 910.360 for additional requirements for real property for For-Profit
subrecipients.
N. EQUIPMENT
Subject to the conditions provided in 2 CFR 200.313, title to equipment (property) acquired under a
Federal award will conditionally vest upon acquisition with the non-Federal entity. The non-Federal
Exhibit B Page 6 of 10
entity cannot encumber this property and must follow the requirements of 2 CFR 200.313 before
disposing of the property.
A state must use equipment acquired under a Federal award by the state in accordance with state laws
and procedures.
Equipment must be used by the non-Federal entity in the program or project for which it was acquired
as long as it is needed, whether or not the project or program continues to be supported by the Federal
award. When no longer needed for the originally authorized purpose, the equipment may be used by
programs supported by DOE in the priority order specified in 2 CFR 200.313(c)(1)(i) and (ii).
Management requirements, including inventory and control systems, for equipment are provided in 2
CFR 200.313(d).
When equipment acquired under a Federal award is no longer needed, the non-Federal entity must
obtain disposition instructions from DOE or pass-through entity.
Disposition will be made as follows: (a) items of equipment with a current fair market value of $5,000
or less may be retained, sold, or otherwise disposed of with no further obligation to DOE; (b) Non-
Federal entity may retain title or sell the equipment after compensating DOE as described in 2 CFR
200.313(e)(2); or (c) transfer title to DOE or to an eligible third party as specified in 2 CFR
200.313(e)(3).
See 2 CFR 200.313 for additional requirements pertaining to equipment acquired under a Federal
award. Also see 2 CFR 910.360 for additional requirements for equipment for For-Profit
subrecipients. See also 2 CFR 200.439 Equipment and other capital expenditures.
O. SUPPLIES
See 2 CFR 200.314 for requirements pertaining to supplies acquired under a Federal award. See also 2
CFR 200.453 Materials and supplies costs, including costs of computing devices.
P. PROPERTY TRUST RELATIONSHIP
Real property, equipment, and intangible property, that are acquired or improved with a Federal award
must be held in trust by the non-Federal entity as trustee for the beneficiaries of the project or program
under which the property was acquired or improved. See 2 CFR 200.316 for additional requirements
pertaining to real property, equipment, and intangible property acquired or improved under a Federal
award.
Q. RECORD RETENTION
Consistent with 2 CFR 200.333 through 200.337, the Subrecipient is required to retain records relating
to this Award.
R. AUDITS
a. Government-Initiated Audits.
The Subrecipient is required to provide any information, documents, site access, or other assistance
requested by CEO, EERE, DOE or Federal auditing agencies (e.g., DOE Inspector General,
Exhibit B Page 7 of 10
Government Accountability Office) for the purpose of audits and investigations. Such assistance may
include, but is not limited to, reasonable access to the Subrecipient’s records relating to this Award.
Consistent with 2 CFR part 200 as amended by 2 CFR part 910, CEO may audit the Subrecipient’s
financial records or administrative records relating to this Award at any time. Government-initiated
audits are generally paid for by CEO.
CEO may conduct a final audit at the end of the project period (or the termination of the Award, if
applicable). Upon completion of the audit, the Subrecipient is required to refund to CEO any
payments for costs that were determined to be unallowable. If the audit has not been performed or
completed prior to the closeout of the award, CEO retains the right to recover an appropriate amount
after fully considering the recommendations on disallowed costs resulting from the final audit.
CEO will provide reasonable advance notice of audits and will minimize interference with ongoing
work, to the maximum extent practicable.
b. Annual Independent Audits (Single Audit or Compliance Audit).
The Subrecipient is required to comply with the annual independent audit requirements in 2
CFR 200.500 through .521 for institutions of higher education, nonprofit organizations, and
state and local governments (Single audit), and 2 CFR 910.500 through .521 for for-profit
entities (Compliance audit). The annual independent audits are separate from Government-
initiated audits discussed in paragraph A of this Term, and must be paid for by the
Recipient. To minimize expense, the Subrecipient may have a compliance audit in
conjunction with its annual audit of financial statements. The financial statement audit is
not a substitute for the compliance audit. If the audit (Single audit or Compliance audit,
depending on Subrecipient entity type) has not been performed or completed prior to the
closeout of the award, CEO may impose one or more of the actions outlined in 2 CFR
200.338, Remedies for Noncompliance.
S. ALLOWABLE COSTS
CEO determines the allowability of costs through reference to 2 CFR part 200 as amended by 2 CFR
part 910. All project costs must be allowable, allocable, and reasonable. The Subrecipient must
document and maintain records of all project costs, including, but not limited to, the costs paid by
Federal funds, costs claimed by its subrecipients and project costs that the Subrecipient claims as cost
sharing, including in-kind contributions. The Subrecipient is responsible for maintaining records
adequate to demonstrate that costs claimed have been incurred, are reasonable, allowable and
allocable, and comply with the cost principles. Upon request, the Subrecipient is required to provide
such records to CEO. Such records are subject to audit. Failure to provide contracting officer adequate
supporting documentation may result in a determination by the contracting officer that those costs are
unallowable.
The Subrecipient is required to obtain the prior written approval of the contracting officer for any
foreign travel costs.
T. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS
Notwithstanding any other provisions of this Contract, the Government shall not be responsible for or
have any obligation to the subrecipient for (i) Decontamination and/or Decommissioning (D&D) of
Exhibit B Page 8 of 10
any of the subrecipient's facilities, or (ii) any costs which may be incurred by the subrecipient in
connection with the D&D of any of its facilities due to the performance of the work under this
Contract, whether said work was performed prior to or subsequent to the effective date of this
Contract.
U. USE OF PROGRAM INCOME
If the Subrecipient earns program income during the project period as a result of this Grant, the
subrecipient must add the program income to the funds committed to the Grant and used to further
eligible project objectives.
V. NONDISCLOSURE AND CONFIDENTIALITY AGREEMENTS ASSURANCES
By entering into this agreement, the Subrecipient attests that it does not and will not require its
employees or contractors to sign internal nondisclosure or confidentiality agreements or statements
prohibiting or otherwise restricting its employees or contractors from lawfully reporting waste, fraud,
or abuse to a designated investigative or law enforcement representative of a Federal department or
agency authorized to receive such information.
The Subrecipient further attests that it does not and will not use any Federal funds to implement or
enforce any nondisclosure and/or confidentiality policy, form, or agreement it uses unless it contains
the following provisions:
i. ‘‘These provisions are consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or liabilities created by existing
statute or Executive order relating to (1) classified information, (2) communications
to Congress, (3) the reporting to an Inspector General of a violation of any law,
rule, or regulation, or mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety, or (4) any
other whistleblower protection. The definitions, requirements, obligations, rights,
sanctions, and liabilities created by controlling Executive orders and statutory
provisions are incorporated into this agreement and are controlling.’’
ii. The limitation above shall not contravene requirements applicable to Standard
Form 312, Form 4414, or any other form issued by a Federal department or agency
governing the nondisclosure of classified information.
iii. Notwithstanding provision listed in paragraph (a), a nondisclosure or
confidentiality policy form or agreement that is to be executed by a person
connected with the conduct of an intelligence or intelligence-related activity, other
than an employee or officer of the United States Government, may contain
provisions appropriate to the particular activity for which such document is to be
used. Such form or agreement shall, at a minimum, require that the person will not
disclose any classified information received in the course of such activity unless
specifically authorized to do so by the United States Government. Such
nondisclosure or confidentiality forms shall also make it clear that they do not bar
disclosures to Congress, or to an authorized official of an executive agency or the
Department of Justice, that are essential to reporting a substantial violation of law.
W. CONFERENCE SPENDING
Exhibit B Page 9 of 10
The Subrecipient shall not expend any funds on a conference not directly and programmatically related
to the purpose for which the grant or cooperative agreement was awarded that would defray the cost to
the United States Government of a conference held by any Executive branch department, agency,
board, commission, or office for which the cost to the United States Government would otherwise
exceed $20,000, thereby circumventing the required notification by the head of any such Executive
Branch department, agency, board, commission, or office to the Inspector General (or senior ethics
official for any entity without an Inspector General), of the date, location, and number of employees
attending such conference.
X. RECIPIENT INTEGRITY AND PERFORMANCE MATTERS
A. General Reporting Requirement
If the total value of your currently active Financial Assistance awards, cooperative
agreements, and procurement contracts from all Federal awarding agencies exceeds
$10,000,000 for any period of time during the period of performance of this Federal award,
then you as the subrecipient during that period of time must maintain the currency of
information reported to the System for Award Management (SAM) that is made available
in the designated integrity and performance system (currently the Federal Awardee
Performance and Integrity Information System (FAPIIS)) about civil, criminal, or
administrative proceedings described in paragraph 2 of this term. This is a statutory
requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As
required by section 3010 of Public Law 111-212, all information posted in the designated
integrity and performance system on or after April 15, 2011, except past performance
reviews required for Federal procurement contracts, will be publicly available.
B. Proceedings About Which You Must Report
Submit the information required about each proceeding that:
i. Is in connection with the award or performance of a Financial Assistance,
cooperative agreement, or procurement contract from the Federal Government;
ii. Reached its final disposition during the most recent five year period; and
iii. Is one of the following:
1. A criminal proceeding that resulted in a conviction, as defined in paragraph
E of this award term and condition;
2. A civil proceeding that resulted in a finding of fault and liability and
payment of a monetary fine, penalty, reimbursement, restitution, or damages
of $5,000 or more;
3. An administrative proceeding, as defined in paragraph E of this term, that
resulted in a finding of fault and liability and your payment of either a
monetary fine or penalty of $5,000 or more or reimbursement, restitution, or
damages in excess of $100,000; or
4. Any other criminal, civil, or administrative proceeding if:
a. It could have led to an outcome described in paragraph B.iii.1, 2, or 3
of this term;
b. It had a different disposition arrived at by consent or compromise
with an acknowledgment of fault on your part; and
c. The requirement in this term to disclose information about the
proceeding does not conflict with applicable laws and regulations.
Exhibit B Page 10 of 10
C. Reporting Procedures
Enter in the SAM Entity Management area the information that SAM requires about each
proceeding described in paragraph B of this term. You do not need to submit the
information a second time under assistance awards that you received if you already
provided the information through SAM because you were required to do so under Federal
procurement contracts that you were awarded.
D. Reporting Frequency
During any period of time when you are subject to the requirement in paragraph A of this
term, you must report proceedings information through SAM for the most recent five year
period, either to report new information about any proceeding(s) that you have not reported
previously or affirm that there is no new information to report. Subrecipients that have
Federal contract, Financial Assistance awards, (including cooperative agreement awards)
with a cumulative total value greater than $10,000,000, must disclose semiannually any
information about the criminal, civil, and administrative proceedings.
E. Definitions
For purposes of this term:
i. Administrative proceeding means a non-judicial process that is adjudicatory in
nature in order to make a determination of fault or liability (e.g., Securities and
Exchange Commission Administrative proceedings, Civilian Board of Contract
Appeals proceedings, and Armed Services Board of Contract Appeals proceedings).
This includes proceedings at the Federal and State level but only in connection with
performance of a Federal contract or Financial Assistance awards. It does not
include audits, site visits, corrective plans, or inspection of deliverables.
ii. Conviction means a judgment or conviction of a criminal offense by any court of
competent jurisdiction, whether entered upon a verdict or a plea, and includes a
conviction entered upon a plea of nolo contendere.
iii. Total value of currently active Financial Assistance awards, cooperative agreements
and procurement contracts includes—
1. Only the Federal share of the funding under any Federal award with a
subrecipient cost share or match; and
2. The value of all expected funding increments under a Federal award and
options, even if not yet exercised.
Federal Provisions Page 1 of 10
EXHIBIT C, FEDERAL PROVISIONS
1. APPLICABILITY OF PROVISIONS.
1.1. The Loan Agreement to which these Federal Provisions are attached has been funded, in whole
or in part, with an Award of Federal funds. In the event of a conflict between the provisions of
these Federal Provisions, the Special Provisions, the body of the Loan Agreement, or any
attachments or exhibits incorporated into and made a part of the Loan Agreement, the provisions
of these Federal Provisions shall control.
2. DEFINITIONS.
2.1. For the purposes of these Federal Provisions, the following terms shall have the meanings
ascribed to them below.
2.1.1. “Award” means an award of Federal financial assistance, and the Loan Agreement setting
forth the terms and conditions of that financial assistance, that a non-Federal Entity receives
or administers.
2.1.1.1. Awards may be in the form of:
2.1.1.1.1. Grants;
2.1.1.1.2. Contracts;
2.1.1.1.3. Cooperative Contracts, which do not include cooperative research and development
Contracts (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as
amended (15 U.S.C. 3710);
2.1.1.1.4. Loans;
2.1.1.1.5. Loan Guarantees;
2.1.1.1.6. Subsidies;
2.1.1.1.7. Insurance;
2.1.1.1.8. Food commodities;
2.1.1.1.9. Direct appropriations;
2.1.1.1.10. Assessed and voluntary contributions; and
2.1.1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds
by non-Federal Entities.
2.1.1.1.12. Any other items specified by OMB in policy memoranda available at the OMB
website or other source posted by the OMB.
2.1.1.2. Award does not include:
2.1.1.2.1. Technical assistance, which provides services in lieu of money;
2.1.1.2.2. A transfer of title to Federally-owned property provided in lieu of money; even if the
award is called a grant;
2.1.1.2.3. Any award classified for security purposes; or
Federal Provisions Page 2 of 10
2.1.1.2.4. Any award funded in whole or in part with Recovery funds, as defined in section 1512
of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111-
5).
2.1.2. “Contractor” means the party or parties to a Loan Agreement funded, in whole or in part,
with Federal financial assistance, other than the Prime Recipient, and includes grantees,
subgrantees, Subrecipients, and borrowers. For purposes of Transparency Act reporting,
Contractor does not include Vendors.
2.1.3. “Data Universal Numbering System (DUNS) Number” means the nine-digit number
established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity.
Dun and Bradstreet’s website may be found at: http://fedgov.dnb.com/webform.
2.1.4. “Entity” means all of the following as defined at 2 CFR part 25, subpart C;
2.1.4.1. A governmental organization, which is a State, local government, or Indian Tribe;
2.1.4.2. A foreign public entity;
2.1.4.3. A domestic or foreign non-profit organization;
2.1.4.4. A domestic or foreign for-profit organization; and
2.1.4.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non-Federal
entity.
2.1.5. “Executive” means an officer, managing partner or any other employee in a management
position.
2.1.6. “Federal Award Identification Number (FAIN)” means an Award number assigned by a
Federal agency to a Prime Recipient.
2.1.7. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a
Recipient as described in 2 CFR §200.37
2.1.8. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public
Law 109-282), as amended by §6202 of Public Law 110-252. FFATA, as amended, also is
referred to as the “Transparency Act.”
2.1.9. “Federal Provisions” means these Federal Provisions subject to the Transparency Act and
Uniform Guidance, as may be revised pursuant to ongoing guidance from the relevant Federal
or State of Colorado agency or institutions of higher education.
2.1.10. “Loan Agreement” means the Loan Agreement to which these Federal Provisions are
attached and includes all Award types in §2.1.1.1 of this Exhibit.
2.1.11. “OMB” means the Executive Office of the President, Office of Management and Budget.
2.1.12. “Prime Recipient” means a Colorado State agency or institution of higher education that
receives an Award.
2.1.13. “Subaward” means an award by a Recipient to a Subrecipient funded in whole or in part by
a Federal Award. The terms and conditions of the Federal Award flow down to the Award
unless the terms and conditions of the Federal Award specifically indicate otherwise in
accordance with 2 CFR §200.38. The term does not include payments to a contractor or
payments to an individual that is a beneficiary of a Federal program.
Federal Provisions Page 3 of 10
2.1.14. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Award or Subaward
to a non-Federal Entity) receiving Federal funds through a Prime Recipient to support the
performance of the Federal project or program for which the Federal funds were awarded. A
Subrecipient is subject to the terms and conditions of the Federal Award to the Prime
Recipient, including program compliance requirements. The term “Subrecipient” includes
and may be referred to as Subgrantee. The term does not include an individual who is a
beneficiary of a federal program.
2.1.15. “Subrecipient Parent DUNS Number” means the subrecipient parent organization’s 9-digit
Data Universal Numbering System (DUNS) number that appears in the subrecipient’s System
for Award Management (SAM) profile, if applicable.
2.1.16. “System for Award Management (SAM)” means the Federal repository into which an Entity
must enter the information required under the Transparency Act, which may be found at
http://www.sam.gov.
2.1.17. “Total Compensation” means the cash and noncash dollar value earned by an Executive
during the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the
following:
2.1.17.1. Salary and bonus;
2.1.17.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount
recognized for financial statement reporting purposes with respect to the fiscal year in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised
2005) (FAS 123R), Shared Based Payments;
2.1.17.3. Earnings for services under non-equity incentive plans, not including group life, health,
hospitalization or medical reimbursement plans that do not discriminate in favor of
Executives and are available generally to all salaried employees;
2.1.17.4. Change in present value of defined benefit and actuarial pension plans;
2.1.17.5. Above-market earnings on deferred compensation which is not tax-qualified;
2.1.17.6. Other compensation, if the aggregate value of all such other compensation (e.g.
severance, termination payments, value of life insurance paid on behalf of the employee,
perquisites or property) for the Executive exceeds $10,000.
2.1.18. “Transparency Act” means the Federal Funding Accountability and Transparency Act of
2006 (Public Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency
Act also is referred to as FFATA.
2.1.19. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards, which
supersedes requirements from OMB Circulars A-21, A-87, A-110, and A-122, OMB
Circulars A-89, A-102, and A-133, and the guidance in Circular A-50 on Single Audit Act
follow-up. The terms and conditions of the Uniform Guidance flow down to Awards to
Subrecipients unless the Uniform Guidance or the terms and conditions of the Federal Award
specifically indicate otherwise.
2.1.20. “Vendor” means a dealer, distributor, merchant or other seller providing property or services
required for a project or program funded by an Award. A Vendor is not a Prime Recipient or
a Subrecipient and is not subject to the terms and conditions of the Federal award. Program
compliance requirements do not pass through to a Vendor.
Federal Provisions Page 4 of 10
3. COMPLIANCE.
3.1. Contractor shall comply with all applicable provisions of the Transparency Act, all applicable
provisions of the Uniform Guidance, and the regulations issued pursuant thereto, including but
not limited to these Federal Provisions. Any revisions to such provisions or regulations shall
automatically become a part of these Federal Provisions, without the necessity of either party
executing any further instrument. The State of Colorado may provide written notification to
Contractor of such revisions, but such notice shall not be a condition precedent to the
effectiveness of such revisions.
4. SYSTEM FOR AWARD MANAGEMENT (SAM) AND DATA UNIVERSAL NUMBERING
SYSTEM (DUNS) REQUIREMENTS.
4.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor
submits the final financial report required under the Award or receives final payment, whichever
is later. Contractor shall review and update SAM information at least annually after the initial
registration, and more frequently if required by changes in its information.
4.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update
Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration,
and more frequently if required by changes in Contractor’s information.
5. TOTAL COMPENSATION.
5.1. Contractor shall include Total Compensation in SAM for each of its five most highly
compensated Executives for the preceding fiscal year if:
5.1.1. The total Federal funding authorized to date under the Award is $25,000 or more; and
5.1.2. In the preceding fiscal year, Contractor received:
5.1.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
5.1.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
5.1.3. The public does not have access to information about the compensation of such Executives
through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of
1934 (15 U.S.C. 78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986.
6. REPORTING.
6.1. Contractor shall report data elements to SAM and to the Prime Recipient as required in this
Exhibit if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct
payment shall be made to Contractor for providing any reports required under these Federal
Provisions and the cost of producing such reports shall be included in the Loan Agreement price.
The reporting requirements in this Exhibit are based on guidance from the US Office of
Management and Budget (OMB), and as such are subject to change at any time by OMB. Any
such changes shall be automatically incorporated into this Loan Agreement and shall become
part of Contractor’s obligations under this Loan Agreement.
7. EFFECTIVE DATE AND DOLLAR THRESHOLD FOR REPORTING.
Federal Provisions Page 5 of 10
7.1. Reporting requirements in §8 below apply to new Awards as of October 1, 2010, if the initial
award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award
modifications result in a total Award of $25,000 or more, the Award is subject to the reporting
requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more,
but funding is subsequently de-obligated such that the total award amount falls below $25,000,
the Award shall continue to be subject to the reporting requirements.
7.2. The procurement standards in §9 below are applicable to new Awards made by Prime Recipient
as of December 26, 2015. The standards set forth in §11 below are applicable to audits of fiscal
years beginning on or after December 26, 2014.
8. SUBRECIPIENT REPORTING REQUIREMENTS.
8.1. If Contractor is a Subrecipient, Contractor shall report as set forth below.
8.1.1. To SAM. A Subrecipient shall register in SAM and report the following data elements in
SAM for each Federal Award Identification Number no later than the end of the month
following the month in which the Subaward was made:
8.1.1.1. Subrecipient DUNS Number;
8.1.1.2. Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT)
account;
8.1.1.3. Subrecipient Parent DUNS Number;
8.1.1.4. Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and
Congressional District;
8.1.1.5. Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are
met; and
8.1.1.6. Subrecipient’s Total Compensation of top 5 most highly compensated Executives if
criteria in §4 above met.
8.1.2. To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective
date of the Loan Agreement, the following data elements:
8.1.2.1. Subrecipient’s DUNS Number as registered in SAM.
8.1.2.2. Primary Place of Performance Information, including: Street Address, City, State,
Country, Zip code + 4, and Congressional District.
9. PROCUREMENT STANDARDS.
9.1. Procurement Procedures. A Subrecepient shall use its own documented procurement procedures
which reflect applicable State, local, and Tribal laws and regulations, provided that the
procurements conform to applicable Federal law and the standards identified in the Uniform
Guidance, including without limitation, §§200.318 through 200.326 thereof.
Federal Provisions Page 6 of 10
9.2. Procurement of Recovered Materials. If a Subrecepient is a State Agency or an agency of a
political subdivision of the State, its contractors must comply with section 6002 of the Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The
requirements of Section 6002 include procuring only items designated in guidelines of the
Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage
of recovered materials practicable, consistent with maintaining a satisfactory level of
competition, where the purchase price of the item exceeds $10,000 or the value of the quantity
acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management
services in a manner that maximizes energy and resource recovery; and establishing an
affirmative procurement program for procurement of recovered materials identified in the EPA
guidelines.
10. ACCESS TO RECORDS
10.1. A Subrecipient shall permit Recipient and auditors to have access to Subrecipient’s records and
financial statements as necessary for Recipient to meet the requirements of §200.331
(Requirements for pass-through entities), §§200.300 (Statutory and national policy requirements)
through 200.309 (Period of performance), and Subpart F-Audit Requirements of the Uniform
Guidance. 2 CFR §200.331(a)(5).
11. SINGLE AUDIT REQUIREMENTS
11.1. If a Subrecipient expends $750,000 or more in Federal Awards during the Subrecipient’s fiscal
year, the Subrecipient shall procure or arrange for a single or program-specific audit conducted
for that year in accordance with the provisions of Subpart F-Audit Requirements of the Uniform
Guidance, issued pursuant to the Single Audit Act Amendments of 1996, (31 U.S.C. 7501-7507).
2 CFR §200.501.
11.1.1. Election. A Subrecipient shall have a single audit conducted in accordance with Uniform
Guidance §200.514 (Scope of audit), except when it elects to have a program-specific audit
conducted in accordance with §200.507 (Program-specific audits). The Subrecipient may
elect to have a program-specific audit if Subrecipient expends Federal Awards under only
one Federal program (excluding research and development) and the Federal program's
statutes, regulations, or the terms and conditions of the Federal award do not require a
financial statement audit of Prime Recipient. A program-specific audit may not be elected
for research and development unless all of the Federal Awards expended were received from
Recipient and Recipient approves in advance a program-specific audit.
11.1.2. Exemption. If a Subrecipient expends less than $750,000 in Federal Awards during its fiscal
year, the Subrecipient shall be exempt from Federal audit requirements for that year, except
as noted in 2 CFR §200.503 (Relation to other audit requirements), but records shall be
available for review or audit by appropriate officials of the Federal agency, the State, and the
Government Accountability Office.
11.1.3. Subrecepient Compliance Responsibility. A Subrecipient shall procure or otherwise
arrange for the audit required by Part F of the Uniform Guidance and ensure it is properly
performed and submitted when due in accordance with the Uniform Guidance. Subrecipient
shall prepare appropriate financial statements, including the schedule of expenditures of
Federal awards in accordance with Uniform Guidance §200.510 (Financial statements) and
provide the auditor with access to personnel, accounts, books, records, supporting
documentation, and other information as needed for the auditor to perform the audit required
by Uniform Guidance Part F-Audit Requirements.
Federal Provisions Page 7 of 10
12. LOAN AGREEMENT PROVISIONS FOR SUBRECEPIENT LOAN AGREEMENTS
12.1. If Contractor is a Subrecipient, then it shall comply with and shall include all of the following
applicable provisions in all subcontracts entered into by it pursuant to this Loan Agreement.
12.1.1. Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all
contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part
60-1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in
accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319,
12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375,
“Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and
implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor.
12.1.1.1. During the performance of this Loan Agreement, the contractor agrees as follows:
12.1.1.1.1. Contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, or national origin. The contractor will take
affirmative action to ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, color, religion, sex, or
national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer, recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. The contractor agrees to post in
conspicuous places, available to employees and applicants for employment, notices
to be provided by the contracting officer setting forth the provisions of this
nondiscrimination clause.
12.1.1.1.2. Contractor will, in all solicitations or advertisements for employees placed by or on
behalf of the contractor, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, or national origin.
12.1.1.1.3. Contractor will send to each labor union or representative of workers with which he
has a collective bargaining Contract or other contract or understanding, a notice to be
provided by the agency contracting officer, advising the labor union or workers'
representative of the contractor's commitments under section 202 of Executive Order
11246 of September 24, 1965, and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
12.1.1.1.4. Contractor will comply with all provisions of Executive Order 11246 of September
24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
12.1.1.1.5. Contractor will furnish all information and reports required by Executive Order 11246
of September 24, 1965, and by the rules, regulations, and orders of the Secretary of
Labor, or pursuant thereto, and will permit access to his books, records, and accounts
by the contracting agency and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and orders.
Federal Provisions Page 8 of 10
12.1.1.1.6. In the event of Contractor's non-compliance with the nondiscrimination clauses of
this Loan Agreement or with any of such rules, regulations, or orders, this Loan
Agreement may be canceled, terminated or suspended in whole or in part and the
contractor may be declared ineligible for further Government contracts in accordance
with procedures authorized in Executive Order 11246 of September 24, 1965, and
such other sanctions may be imposed and remedies invoked as provided in Executive
Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary
of Labor, or as otherwise provided by law.
12.1.1.1.7. Contractor will include the provisions of paragraphs (1) through (7) in every
subcontract or purchase order unless exempted by rules, regulations, or orders of the
Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of
September 24, 1965, so that such provisions will be binding upon each subcontractor
or vendor. The contractor will take such action with respect to any subcontract or
purchase order as may be directed by the Secretary of Labor as a means of enforcing
such provisions including sanctions for noncompliance: Provided, however, that in
the event Contractor becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction, the contractor may request the
United States to enter into such litigation to protect the interests of the United States.”
12.1.2. Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required
by Federal program legislation, all prime construction contracts in excess of $2,000 awarded
by non-Federal entities must include a provision for compliance with the Davis-Bacon Act
(40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations
(29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally
Financed and Assisted Construction”). In accordance with the statute, contractors must be
required to pay wages to laborers and mechanics at a rate not less than the prevailing wages
specified in a wage determination made by the Secretary of Labor. In addition, contractors
must be required to pay wages not less than once a week. The non-Federal entity must place
a copy of the current prevailing wage determination issued by the Department of Labor in
each solicitation. The decision to award a contract or subcontract must be conditioned upon
the acceptance of the wage determination. The non-Federal entity must report all suspected
or reported violations to the Federal awarding agency. The contracts must also include a
provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as
supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or
Grants from the United States”). The Act provides that each contractor or Subrecipient must
be prohibited from inducing, by any means, any person employed in the construction,
completion, or repair of public work, to give up any part of the compensation to which he or
she is otherwise entitled. The non-Federal entity must report all suspected or reported
violations to the Federal awarding agency.
12.1.3. Rights to Inventions Made Under a Contract or Contract. If the Federal Award meets
the definition of “funding Contract” under 37 CFR §401.2 (a) and Subrecipient wishes to
enter into a contract with a small business firm or nonprofit organization regarding the
substitution of parties, assignment or performance of experimental, developmental, or
research work under that “funding Contract,” Subrecipient must comply with the
requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants, Contracts and Cooperative Contracts,”
and any implementing regulations issued by the awarding agency.
Federal Provisions Page 9 of 10
12.1.4. Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33
U.S.C. 1251-1387), as amended. Contracts and subgrants of amounts in excess of $150,000
must contain a provision that requires the non-Federal award to agree to comply with all
applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C.
7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-
1387). Violations must be reported to the Federal awarding agency and the Regional Office
of the Environmental Protection Agency (EPA).
12.1.5. Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see
2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the
System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR
180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3
CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the
names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties
declared ineligible under statutory or regulatory authority other than Executive Order 12549.
12.1.6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an
award exceeding $100,000 must file the required certification. Each tier certifies to the tier
above that it will not and has not used Federal appropriated funds to pay any person or
organization for influencing or attempting to influence an officer or employee of any agency,
a member of Congress, officer or employee of Congress, or an employee of a member of
Congress in connection with obtaining any Federal contract, grant or any other award covered
by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that
takes place in connection with obtaining any Federal award. Such disclosures are forwarded
from tier to tier up to the non-Federal award.
13. CERTIFICATIONS.
13.1. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to
submit certifications and representations required by Federal statutes or regulations on an annual
basis. 2 CFR §200.208. Submission may be required more frequently if Subrecipient fails to
meet a requirement of the Federal award. Subrecipient shall certify in writing to the State at the
end of the Award that the project or activity was completed or the level of effort was expended.
2 CFR §200.201(3). If the required level of activity or effort was not carried out, the amount of
the Award must be adjusted.
14. EXEMPTIONS.
14.1. These Federal Provisions do not apply to an individual who receives an Award as a natural
person, unrelated to any business or non-profit organization he or she may own or operate in his
or her name.
14.2. A Contractor with gross income from all sources of less than $300,000 in the previous tax year
is exempt from the requirements to report Subawards and the Total Compensation of its most
highly compensated Executives.
14.3. There are no Transparency Act reporting requirements for Vendors.
15. EVENT OF DEFAULT.
Federal Provisions Page 10 of 10
15.1. Failure to comply with these Federal Provisions shall constitute an event of default under the
Loan Agreement and the State of Colorado may terminate the Loan Agreement upon 30 days
prior written notice if the default remains uncured five calendar days following the termination
of the 30 day notice period. This remedy will be in addition to any other remedy available to the
State of Colorado under the Loan Agreement, at law or in equity.
EXHIBIT D - Promissory Note
Principal Amount: $800,000.00 Note Date:
Borrower: Payee:
City of Fort Collins, Colorado, State of Colorado, acting by and
Electric Utility Enterprise through the Colorado Energy Office
P.O. Box 580 1580 Logan Street, Suite 100
Fort Collins, CO 80522 Denver, CO 80203
Loan Rate: 0% Per Annum
FOR VALUE RECEIVED, City of Fort Collins, Colorado, Electric Utility Enterprise, (the
“Borrower”) promises to pay to the order of the State of Colorado acting by and through the
Colorado Energy Office (the “Payee”), together with other amounts which may be due in
accordance with the provisions of this Promissory Note (the “Note”) the principal sum of Eight
Hundred Thousand Dollars ($800,000.00), with interest on the outstanding principal balance at the
rate of zero percent (0%) per annum from the date hereof until paid in full, plus any unexpended
Program Income, as defined and set forth at 2 CFR § 200.80. The Borrower and Payee have
entered into a Loan Agreement to which this Note is attached as Exhibit “D” (the “Loan
Agreement”).
Principal shall be paid in one payment of Eight Hundred Thousand Dollars ($800,000.00)
on April 20, 2035. This payment of principal and Program Income shall be made at Payee’s office
at the address shown above or at such other place as Payee shall designate to Borrower in writing.
In the event this payment of principal is not paid when due, interest shall thereafter accrue on the
full amount of such payment at the rate of 4.0% annum until paid in full, and all payments received
shall be applied first to accrued interest and then to the retirement of principal. This Note may be
prepaid in whole or in part at any time and from time to time without premium or penalty.
All amounts due under this Note shall be payable and collectible solely out of the “Net
Pledged Revenues” (as defined in Exhibit “A” of the Loan Agreement), which revenues are hereby
so pledged which pledge is in all respects subordinate to the pledge and lien thereon of the “Senior
Debt” (as defined in Exhibit “A” of the Loan Agreement) at any time outstanding but on a pari
passu basis with the Parity Debt (as defined in Exhibit “A” of the Loan Agreement). The Payee
may not look to any general or other fund for the payment of such amounts; this Note shall not
constitute a debt or indebtedness within the meaning of any constitutional, charter, or statutory
provision or limitation; and this Note shall not be considered or held to be general obligations or
special fund of the Borrower or of the City of Fort Collins (the “City”), but shall constitute a special
obligation of the Borrower from the Net Pledged Revenues only. No statutory or constitutional
provision enacted after the execution and delivery of the Note shall in any manner be construed as
limiting or impairing the obligation of the Borrower to comply with the provisions of this Note.
None of the covenants, agreements, representations and warranties contained in Loan Agreement
or in this Note shall ever impose or shall be construed as imposing any liability, obligation or
charge against the Borrower or the City (except against the Net Pledged Revenues), or against its
general credit, or as payable out of its general fund or out of any funds derived from taxation or
out of any other revenue source (other than those pledged therefor). The payment of the amounts
due under this Note is not secured by an encumbrance, mortgage or other pledge of property of the
City or of the Borrower, except for the Net Pledged Revenues. No property of the City or the
Borrower, subject to such exception, shall be liable to be forfeited or taken in payment of such
amounts.
Each maker, indorser, and guarantor, and any other person who is now or may hereafter
become primarily or secondarily liable for the payment of this Note or any portion thereof (a)
waives presentment, notice of dishonor, and protest, (b) agrees that the payee or other holder may
release, agree not to sue, suspend its rights to enforce this Note against, or otherwise discharge or
deal with any person against whom such maker, indorser, guarantor, or other person has a right of
recourse, and may release, fail, or agree not to enforce or perfect its rights in or against, or
otherwise deal with any collateral for the payment of this Note, or any potion thereof, and (c) if
this Note or interest thereon is not paid when due or if suit is brought, agrees to pay upon demand
all reasonable costs of collection including reasonable attorneys’ fees incurred in connection with
such proceedings, including the fees of counsel for attendance at meetings of creditors or other
committees.
If the payment of principal, Program Income, or any other amount payable hereunder is
not paid promptly when due, the Payee or other holder may declare the entire outstanding principal
balance of the Note, any subsequently accrued interest, and all other amounts payable hereunder
immediately due and payable, without notice or demand. Within 10 business days of an event set
forth below, notice shall be given to Payee at Payee’s office at the address shown above or at such
other place as Payee shall designate to Borrower in writing: (i) if maker, indorser, or guarantor, or
any other person who is now or may hereafter become primarily or secondarily liable for the
payment of this Note or any portion thereof (a) commences (or takes any action for the purpose of
commencing) any proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, moratorium, or similar law or statute; or (b) commences a proceeding against any such person
under any bankruptcy, reorganization, arrangement, readjustment of debt, moratorium, or similar
law or statute, and relief is ordered against it.
This Note shall be governed in all respects by the laws of the State of Colorado. Exclusive
venue shall be proper in the City and County of Denver.
City of Fort Collins, Colorado, Electric Utility
Enterprise
By: ________________________________
(Signature)
________________________________
Wade Troxell, President
ATTEST:
__________________________
Delynn Coldiron, Secretary
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ORDINANCE NO. 009
OF THE CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
AUTHORIZING A LOAN AGREEMENT WITH VECTRA BANK COLORADO TO
PROVIDE FUNDING FOR THE EPIC LOAN PROGRAM
WHEREAS, the City of Fort Collins, Colorado (the “City”) is a duly organized and existing
home rule municipality of the State of Colorado, created and operating pursuant to Article XX of
the Constitution of the State of Colorado and the home rule charter of the City (the “Charter”); and
WHEREAS, the members of the City Council of the City (the “Council”) have been duly
elected and qualified; and
WHEREAS, Section 19.3(b) of the Charter Article V (“Section 19.3(b)”) provides that the
Council may, by ordinance establish the City’s electric utility (the “Utility”) as an enterprise of the
City; and
WHEREAS, pursuant to Section 19.3(b), the Council has heretofore established the Utility
as an enterprise of the City (the “Enterprise”) in ordinances codified in Section 26-392 of the Code
of the City of Fort Collins; and
WHEREAS, pursuant to Section 19.3(b) and Code Section 26-392, the Council has
authorized the Enterprise, by and through the Council, sitting as the board of the Enterprise (the
“Board”), to issue, by ordinance, revenue and refunding securities and other debt; and
WHEREAS, the City has established a program (the “Epic Program”) to assist certain
customers of the Utility in financing home energy efficiency and renewable energy improvements
by making loans to customers who are property owners (“Epic Loans”); and
WHEREAS, the Board has determined that in order to finance Epic Loans (the “Project”),
it is necessary and advisable and in the best interests of the Enterprise (i) to enter into a loan
agreement (the “Loan Agreement”) with ZB, N.A., dba Vectra Bank Colorado (the “Bank”)
pursuant to which the Bank shall loan the Enterprise an amount of not to exceed $2,500,000 (the
“Loan”) for such purposes, and (ii) to issue a promissory note (the “Note”) to the Bank to evidence
the Enterprise’s repayment obligations under the Loan Agreement; and
WHEREAS, the Enterprise has previously incurred the following financial obligations
which are payable from and secured by a lien on the Net Pledged Revenues (as defined in the Loan
Agreement): its “City of Fort Collins, Colorado, Electric Utility Enterprise, Tax-Exempt Revenue
Bonds, Series 2018A” (the “2018A Bonds”), its “City of Fort Collins, Colorado, Electric Utility
Enterprise, Taxable Revenue Bonds, Series 2018B” (the “2018B Bonds” and, together with the
2018A Bonds, the “2018 Bonds”) and a Loan Agreement with U.S. Bank National Association
(the “2019 Loan Agreement”, together with the 2018 Bonds, the “Prior Obligations”); and
WHEREAS, except for the Prior Obligations, neither the City nor the Enterprise has
pledged or hypothecated the Gross Pledged Revenues (as defined in the Loan Agreement) to the
payment of any bonds or for any other purpose, with the result that the Net Pledged Revenues may
now be pledged lawfully and irrevocably to the payment of the Loan which pledge will be
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subordinate to the pledge of Net Pledged Revenues to the payment of the 2018 Bonds and on a
parity with the pledge of Net Pledged Revenues to the payment of the 2019 Loan Agreement; and
WHEREAS, pursuant to Enterprise Ordinance No. 003 adopted on April 3, 2018, the
Mayor of the City has been appointed President of the Enterprise (the President”), the City
Financial Officer has been appointed Treasurer of the Enterprise (the “Treasurer”), and the City
Clerk has been appointed Secretary of the Enterprise (the “Secretary”) which appointments the
Board hereby reaffirms and ratifies for purposes of this Ordinance; and
WHEREAS, there are attached hereto the forms of the Loan Agreement and the Note
(jointly, “the “Financing Documents”); and
WHEREAS, pursuant to Section 11-57-205, Colorado Revised Statutes (“C.R.S.”), the
Enterprise desires to delegate to the President or the Treasurer the independent power to make
final determinations relating to the Financing Documents, subject to the parameters contained in
this Ordinance.
BE IT ORDAINED BY THE BOARD OF THE CITY OF FORT COLLINS,
COLORADO, ELECTRIC UTILITY ENTERPRISE AS FOLLOWS:
Section 1. Adoption of Recitals, Approvals, Authorizations, and Amendments. The
Board hereby adopts and incorporates herein by reference as operative provisions of this Ordinance
the recitals set forth above. The forms of the Financing Documents in substantially the forms
attached hereto as Exhibit “A” are incorporated herein by reference and are hereby approved. The
Enterprise shall enter into and perform its obligations under the Financing Documents in the forms
of such documents, with such changes as are not inconsistent herewith and as are hereafter
approved by the President or the Treasurer. The President and Secretary are hereby authorized
and directed to execute the Financing Documents and to affix the seal of the Enterprise thereto,
and further to execute and authenticate such other documents or certificates as are deemed
necessary or desirable in connection therewith. The Financing Documents shall be executed in
substantially the forms approved at this meeting. The execution of any instrument or certificate or
other document in connection with the matters referred to herein by the President, the Secretary,
the Treasurer, any member of the Board, or by other appropriate officers of the Enterprise, shall
be conclusive evidence of the approval by the Enterprise of such instrument.
Section 2. Election to Apply the Supplemental Act. Section 11-57-204 of the
Supplemental Public Securities Act, constituting Title 11, Article 57, Part 2, C.R.S. (the
“Supplemental Act”) provides that a public entity, including the Enterprise, may elect in an act of
issuance to apply all or any of the provisions of the Supplemental Act. The Enterprise hereby
elects to apply all of the provisions of the Supplemental Act to the Financing Documents.
Section 3. Delegation. (a) Pursuant to Section 11-57-205 of the Supplemental Act,
the Board hereby delegates to the President or Treasurer, the independent authority to make the
following determinations relating to and contained in the Financing Documents, subject to the
restrictions contained in paragraph (b) of this Section 3:
(i) The interest rate on the Loan;
(ii) The principal amount of the Loan;
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(iii) The amount of principal of the Loan maturing in any given year and
the final maturity of the Loan;
(iv) The dates on which the principal of and interest on the Loan are
paid; and
(v) The existence and amount of capitalized interest or reserve funds for
the Loan, if any.
(b) The delegation in this Section 3 shall be subject to the following parameters
and restrictions:
(i) The interest rate on the Loan shall not exceed 9.5%;
(ii) The principal amount of the Loan shall not exceed $2,500,000; and
(iii) The final maturity of the Loan shall not be later December 31, 20__.
Section 4. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Act, the Financing Documents shall contain recitals that the Financing Documents are issued
pursuant to certain provisions of the Supplemental Act. Such recital shall be conclusive evidence
of the validity and the regularity of the issuance of the Financing Documents after their delivery
for value.
Section 5. Pledge of Revenues. The creation, perfection, enforcement, and priority of
the pledge of revenues to secure or pay the Loan evidenced by the Financing Documents provided
herein shall be governed by Section 11-57-208 of the Supplemental Act and this Ordinance. The
amounts pledged to the payment of the Loan evidenced by the Financing Documents shall
immediately be subject to the lien of such pledge without any physical delivery, filing, or further
act. The lien of such pledge shall have the priority described in the Financing Documents. The
lien of such pledge shall be valid, binding, and enforceable as against all persons having claims of
any kind in tort, contract, or otherwise against the Enterprise irrespective of whether such persons
have notice of such liens.
Section 6. Limitation of Actions. Pursuant to Section 11-57-212 of the Supplemental
Act, no legal or equitable action brought with respect to any legislative acts or proceedings in
connection with the Financing Documents shall be commenced more than thirty days after the
issuance of the Financing Documents.
Section 7. Limited Obligation; Special Obligation. The Loan evidenced by the
Financing Documents is payable solely from the Net Pledged Revenues and the Financing
Documents do not constitute a debt within the meaning of any constitutional, charter, or statutory
limitation or provision.
Section 8. No Recourse Against Officers and Agents. Pursuant to Section 11-57-209
of the Supplemental Act, if a member of the Board, or any officer or agent of the Enterprise acts
in good faith, no civil recourse shall be available against such member, officer, or agent for
payment of the principal of or interest on the Loan. Such recourse shall not be available either
directly or indirectly through the Board or the Enterprise, or otherwise, whether by virtue of any
constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of the
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Financing Document and as a part of the consideration for making the Loan, the Bank specifically
waives any such recourse.
Section 9. Authorized Persons. Pursuant to the Loan Agreement, the President and the
Treasurer are hereby designated as the Authorized Persons (as defined in the Loan Agreement) for
the purpose of performing any act or executing any document relating to the Loan, the Enterprise,
or the Financing Documents. A copy of this Ordinance shall be furnished to the Bank as evidence
of such designation. The President may designate additional authorized Persons.
Section 10. Direction to Take Authorizing Action. The appropriate officers of the
Enterprise and members of the Board are hereby authorized and directed to take all other actions
necessary or appropriate to effectuate the provisions of this Ordinance, including but not limited
to such certificates and affidavits as may reasonably be required by the Bank.
Section 11. Ratification and Approval of Prior Actions. All actions heretofore taken by
the officers of the Enterprise and members of the Board, not inconsistent with the provisions of
this Ordinance, relating to the Financing Documents, or actions to be taken in respect thereof, are
hereby ratified, approved, and confirmed.
Section 12. Severability. If any section, paragraph, clause, or provision of this
Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability of such section, paragraph, clause, or provision shall not affect any of the
remaining provisions of this Ordinance, the intent being that the same are severable.
Section 13. Repealer. All orders, resolutions, bylaws, ordinances or regulations of the
Enterprise, or parts thereof, inconsistent with this Ordinance are hereby repealed to the extent only
of such inconsistency.
Section 14. Ordinance Irrepealable. After the Financing Documents are executed and
delivered, this Ordinance shall constitute an irrevocable contract between the Enterprise and the
Bank and shall be and remain irrepealable until the Loan and the interest thereon, as applicable,
shall have been fully paid, satisfied, and discharged. No provisions of any constitution, statute,
charter, ordinance, resolution or other measure enacted after the Financing Documents are
executed and delivered shall in any manner be construed as impairing the obligations of the
Enterprise to keep and perform the covenants contained in this Ordinance.
Section 15. Disposition. A true copy of this Ordinance, as adopted by the Board, shall
be numbered and recorded on the official records of the Board and its adoption and publication
shall be authenticated by the signatures of the President and the Secretary, and by a certificate of
the publisher.
Section 16. Effective Date. This Ordinance shall take effect on the tenth day following
its adoption.
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Introduced, considered favorably on first reading and ordered published this 20th day of
March, 2020, and to be presented for final passage on the 7th day of April, 2020.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By:________________________________
Vice President
ATTEST:
_________________________________
Secretary
Passed and adopted on final reading this 7th day of April, 2020.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By:________________________________
President
ATTEST:
_________________________________
Secretary
4810-7991-0321.7
LOAN AGREEMENT
by and between
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
AND
ZB, N.A., DBA VECTRA BANK COLORADO
Relating to:
Not to exceed $2,500,000 2020 Taxable Subordinate Lien Revenue Note
Dated as of April __, 2020
EXHIBIT A
TABLE OF CONTENTS
Page
i
ARTICLE I
DEFINITIONS ............................................................................................................................... 2
ARTICLE II
LOAN
Section 2.01. Loan ................................................................................................................. 8
Section 2.02. Interest Rate; Interest Payments; Principal Payments ..................................... 9
Section 2.03. Costs, Expenses and Taxes ............................................................................ 11
Section 2.04. Pledge ............................................................................................................. 11
Section 2.05. Conditions to Closing .................................................................................... 11
Section 2.06. Procedure for Requesting and Funding Advances ......................................... 13
Section 2.07. Conversion to Amortizing Term Loan ........................................................... 14
ARTICLE III
FUNDS AND ACCOUNTS
Section 3.01. Light and Power Fund .................................................................................... 14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ENTERPRISE
Section 4.01. Due Organization ........................................................................................... 15
Section 4.02. Power and Authorization ............................................................................... 15
Section 4.03. No Legal Bar .................................................................................................. 15
Section 4.04. Consents ......................................................................................................... 15
Section 4.05. Litigation ........................................................................................................ 15
Section 4.06. Enforceability ................................................................................................. 16
Section 4.07. Changes in Law.............................................................................................. 16
Section 4.08. Financial Information and Statements ........................................................... 16
Section 4.09. Accuracy of Information ................................................................................ 16
Section 4.10. Financing Documents .................................................................................... 16
Section 4.11. Regulations U and X ...................................................................................... 16
Section 4.12. Default, Etc .................................................................................................... 16
Section 4.13. Sovereign Immunity....................................................................................... 16
Section 4.14. No Filings....................................................................................................... 17
Section 4.15. Outstanding Debt ........................................................................................... 17
ii
ARTICLE V
COVENANTS OF THE ENTERPRISE
Section 5.01. Performance of Covenants, Authority ........................................................... 17
Section 5.02. Contractual Obligations ................................................................................. 17
Section 5.03. Further Assurances......................................................................................... 17
Section 5.04. Conditions Precedent ..................................................................................... 18
Section 5.05. Rules, Regulations and Other Details ............................................................ 18
Section 5.06. Payment of Governmental Charges ............................................................... 18
Section 5.07. Protection of Security .................................................................................... 18
Section 5.08. Prompt Payment ............................................................................................. 19
Section 5.09. Use of Funds and Accounts ........................................................................... 19
Section 5.10. Other Liens..................................................................................................... 19
Section 5.11. Reasonable and Adequate Charges ................................................................ 19
Section 5.12. Adequacy and Applicability of Charges ........................................................ 19
Section 5.13. Limitations Upon Free Service ...................................................................... 19
Section 5.14. Collection of Charges .................................................................................... 20
Section 5.15. Maintenance of Records ................................................................................ 20
Section 5.16. Accounting Principles .................................................................................... 20
Section 5.17. Laws, Permits and Obligations ...................................................................... 20
Section 5.18. Bonding and Insurance .................................................................................. 20
Section 5.19. Other Liabilities ............................................................................................. 20
Section 5.20. Proper Books and Records ............................................................................. 20
Section 5.21. Reporting Requirements ................................................................................ 21
Section 5.22. Visitation and Examination............................................................................ 21
Section 5.23. Additional Debt .............................................................................................. 21
ARTICLE VI
INVESTMENTS
Section 6.01. Permitted Investments Only ........................................................................... 22
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default ........................................................................................... 22
Section 7.02. Remedies ........................................................................................................ 23
Section 7.03. Notice to Bank of Default .............................................................................. 23
iii
Section 7.04. Additional Bank Rights.................................................................................. 24
Section 7.05. Delay or Omission No Waiver ....................................................................... 24
Section 7.06. No Waiver of One Default to Affect Another; All Remedies
Cumulative ..................................................................................................... 24
Section 7.07. Other Remedies .............................................................................................. 24
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Loan Agreement and Relationship to Other Documents ............................... 24
Section 8.02. Assignments, Participations, etc. by the Bank ............................................... 24
Section 8.03. Notice of Claims Against Bank; Limitation of Certain Damages ................. 24
Section 8.04. Notices ........................................................................................................... 25
Section 8.05. Payments ........................................................................................................ 25
Section 8.06. Applicable Law and Jurisdiction; Interpretation; Severability ...................... 25
Section 8.07. Copies; Entire Agreement; Modification ....................................................... 26
Section 8.08. Waiver of Jury Trial; Class Action Waiver ................................................... 26
Section 8.09. Attachments ................................................................................................... 26
Section 8.10. No Recourse Against Officers and Agents .................................................... 26
Section 8.11. Conclusive Recital ......................................................................................... 27
Section 8.12. Limitation of Actions ..................................................................................... 27
Section 8.13. Pledge of Revenues ........................................................................................ 27
Section 8.14. No Liability .................................................................................................... 27
Section 8.15. No Waiver; Modifications in Writing ............................................................ 27
Section 8.16. Document Imaging......................................................................................... 28
Section 8.17. Payment on Non-Business Days .................................................................... 28
Section 8.18. Execution in Counterparts; Electronic Storage .............................................. 28
Section 8.19. Severability .................................................................................................... 28
Section 8.20. Headings ........................................................................................................ 28
Section 8.21. Waiver of Rules of Construction ................................................................... 28
Section 8.22. Integration ...................................................................................................... 28
Section 8.23. Patriot Act Notice .......................................................................................... 29
Section 8.24. Termination of Agreement ............................................................................. 29
EXHIBIT A FORM OF 2020 NOTE
EXHIBIT B FORM OF ADVANCE REQUEST
4810-7991-0321.7
LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”) is made and entered into as of April
__, 2020, by and between CITY OF FORT COLLINS, COLORADO, ELECTRIC
UTILITY ENTERPRISE, an enterprise established and existing pursuant to the home rule
charter of the City of Fort Collins, Colorado (the “Enterprise”), and ZB, N.A., DBA VECTRA
BANK COLORADO, a national banking association, in its capacity as lender (the “Bank”).
W I T N E S S E T H :
WHEREAS, the City of Fort Collins, Colorado (the “City”) is a duly organized and
existing home rule municipality of the State of Colorado, created and operating pursuant to
Article XX of the Constitution of the State of Colorado and the home rule charter of the City (the
“Charter”); and
WHEREAS, the members of the City Council of the City (the “Council”) have been duly
elected and qualified; and
WHEREAS, Section 19.3(b) of the Charter Article V (“Section 19.3(b)”) provides that
the Council may, by ordinance establish the City’s electric utility (the “Utility”) as an enterprise
of the City; and
WHEREAS, pursuant to Section 19.3(b), the Council has heretofore established the
Utility as an enterprise of the City (the “Enterprise”) in ordinances codified in Section 26-392 of
the Code of the City of Fort Collins (“Section 26-392”); and
WHEREAS, pursuant to Section 19.3(b) and Section 26-392, the Council has authorized
the Enterprise, by and through the Council, sitting as the board of the Enterprise (the “Board”),
to issue revenue and refunding securities and other debt; and
WHEREAS, the Enterprise has established a program (the “Epic Program”) to assist
certain customers of the Utility in financing home energy efficiency and renewable energy
improvements by making loans to customers who are property owners (“Epic Loans”); and
WHEREAS, the Board has determined that in order to finance Epic Loans (the
“Project”), it is necessary and advisable and in the best interests of the Enterprise (i) to enter into
this Agreement with the Bank pursuant to which the Bank shall loan the Enterprise an amount of
not to exceed $2,500,000 (the “Loan”) for such purposes, and (ii) to issue a promissory note (the
“Note”) to the Bank to evidence the Enterprise’s repayment obligations under this Agreement;
and
WHEREAS, the Enterprise has previously issued its “City of Fort Collins, Colorado,
Electric Utility Enterprise, Tax-Exempt Revenue Bonds, Series 2018A” (the “2018A Bonds”)
and its “City of Fort Collins, Colorado, Electric Utility Enterprise, Taxable Revenue Bonds,
Series 2018B” (the “2018B Bonds” and, together with the 2018A Bonds, the “2018 Bonds”)
which are payable from a secured by a lien on the Net Pledged Revenues (as herein defined); and
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4810-7991-0321.7
WHEREAS, the Enterprise has previously issued in 2019 its “City of Fort Collins,
Colorado, Electric Utility Enterprise, Taxable Subordinate Lien Revenue Note in an amount not
to exceed $2,500,000 (the “2019 Note”) which is payable from a secured by a subordinate lien
on the Net Pledged Revenues
WHEREAS, except for the 2018 Bonds and the 2019 Note, neither the City nor the
Enterprise has pledged or hypothecated the Gross Net Pledged Revenues (as herein defined) to
the payment of any bonds or for any other purpose, with the result that the Net Pledged Revenues
may now be pledged lawfully and irrevocably to the payment of the Loan which pledge will be
subordinate to the pledge of Net Pledged Revenues to the payment of the 2018 Bonds and on a
parity with the 2019 Note; and
WHEREAS, the Bank is willing to enter into this Agreement and to make the Loan to the
Enterprise pursuant to the terms and conditions stated below; and
WHEREAS, the Loan shall be payable from and secured by the Net Pledged Revenues
on a parity basis with the 2019 Note as more fully set forth herein;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Words and terms defined in the recitals hereof, as hereby supplemented and amended,
shall have the same meanings herein or therein assigned to them, unless the context or use
indicates another meaning or intent, and except to the extent amended by the definitions
hereinafter set forth. In addition, the following terms shall have the meanings set forth herein:
“2018 Bond Ordinance” means the ordinance of the Enterprise which provides for the
issuance and delivery of the 2018A Bonds and 2018B Bonds.
“2018A Bonds” means the Enterprise’s Tax-Exempt Revenue Bonds, Series 2018A.
“2018B Bonds” means the Enterprise’s Taxable Revenue Bonds, Series 2018B.
“2019 Note” means the City of Fort Collins, Colorado, Electric Utility Enterprise not to
exceed $2,500,000 2019 Taxable Subordinate Lien Revenue Note evidencing the Loan from the
Enterprise, as maker, to US Bank, N.A. as payee.
“2020 Note” or “Note” means the City of Fort Collins, Colorado, Electric Utility
Enterprise not to exceed $2,500,000 2020 Taxable Subordinate Lien Revenue Note evidencing
the Loan from the Enterprise, as maker, to the Bank, as payee.
“Advance” means a disbursement of proceeds of the Unfunded Portion of the Loan
pursuant to the terms hereof.
3
4810-7991-0321.7
“Advance Maturity Date” means the second anniversary of the Closing Date.
“Advance Period” means the period commencing on the date of the Closing Date and
terminating on the second anniversary of the Closing Date unless terminated or extended as
provided herein.
“Advance Termination Date” means the earlier to occur of (a) the Full Funding Date; (b)
the date which is the last day of the Advance Period or (c) a date determined by the Enterprise
and provided in writing to the Bank.
“Authorized Person” means the President of the Enterprise or the Treasurer of the
Enterprise and also means any other individual authorized by the President to act as an
Authorized Person hereunder.
“Authorizing Ordinance” means the Ordinance adopted by the Board on April 7, 2020
authorizing the Enterprise to finance the Project, enter into the Loan and execute and deliver the
Note, this Agreement, and the other Financing Documents.
“Bank” means ZB, N.A., dba Vectra Bank Colorado, a national banking association, in its
capacity as lender of the Loan.
“Business Day” means any day of the week on which the Bank is conducting its banking
operations nationally and on which day the Bank’s offices are open for business in Denver,
Colorado.
“Capital Improvements” means the acquisition of land, easements, facilities, and
equipment (other than ordinary repairs and replacements), and those property improvements or
any combination of property improvements which will constitute enlargements, extensions or
betterments to the System and will be incorporated into the System.
“Closing” means the date of the execution and delivery of the Note, this Agreement, and
the other Financing Documents by the respective parties thereto.
“Closing Date” means date of the Closing for the Loan.
“Commitment Fee” has the meaning set forth in Section 2.01(d) hereof.
“C.R.S.” means the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
“Debt” means, without duplication, all of the following obligations of the Enterprise for
the payment of which the Enterprise has promised or is required to pay from the Net Pledged
Revenues: (a) borrowed money of any kind; (b) obligations evidenced by bonds, debentures,
notes or similar instruments; (c) obligations upon which interest charges are customarily paid;
(d) obligations arising from guarantees made by the Enterprise; (e) obligations as an account
party in respect of letters of credit and bankers’ acceptances or similar obligations issued in
respect of the Enterprise; and (f) obligations evidenced by any interest rate exchange agreement;
provided that notwithstanding the foregoing, the term “Debt” does not include obligations issued
4
4810-7991-0321.7
for any purpose, the repayment of which is contingent upon the Enterprise’s annual
determination to appropriate moneys therefore.
“Default Interest Rate” means a rate per annum equal to the lesser of the sum of the Wall
Street Journal Prime Rate plus 4% or the Maximum Rate.
“Electronic Notification” means telecopy, facsimile transmissions, email transmissions
or other similar electronic means of communication providing evidence of transmission.
“Event of Default” has the meaning set forth in Section 7.01 hereof.
“Financing Documents” means this Agreement, the Note, the Authorizing Ordinance,
and any other document or instrument required or stated to be delivered hereunder or thereunder,
all in form and substance satisfactory to the Bank.
“Fiscal Year” means the 12 months commencing January 1 of any year and ending
December 31 of such year.
“Full Funding Date” means the date on which, if at all, the aggregate amount of all
Advances equals the Maximum Advance Amount.
“Gross Pledged Revenues” means all rates, fees, charges and revenues derived directly or
indirectly by the City from the operation and use of and otherwise pertaining to the System, or
any part thereof, whether resulting from Capital Improvements or otherwise, and includes all
rates, fees, charges and revenues received by the City from the System, including without
limitation:
(a) All rates, fees and other charges for the use of the System, or for any
service rendered by the City or the Enterprise in the operation thereof, directly or
indirectly, the availability of any such service, or the sale or other disposal of any
commodities derived therefrom, including, without limitation, connection charges, but:
(i) Excluding any moneys borrowed and used for the acquisition of
Capital Improvements or for the refunding of securities, and all income or other
gain from any investment of such borrowed moneys; and
(ii) Excluding any moneys received as grants, appropriations or gifts
from the Federal Government, the State, or other sources, the use of which is
limited by the grantor or donor to the construction of Capital Improvements,
except to the extent any such moneys shall be received as payments for the use of
the System, services rendered thereby, the availability of any such service, or the
disposal of any commodities therefrom; and
(b) All income or other gain from any investment of Gross Pledged Revenues
(including without limitation the income or gain from any investment of all Net Pledged
Revenues, but excluding borrowed moneys and all income or other gain thereon in any
project fund, construction fund, reserve fund, or any escrow fund for any Parity Bonds
5
4810-7991-0321.7
payable from Net Pledged Revenues heretofore or hereafter issued and excluding any
unrealized gains or losses on any investment of Gross Pledged Revenues); and
(c) All income and revenues derived from the operation of any other utility or
other income-producing facilities added to the System and to which the pledge and lien
herein provided are lawfully extended by the Board or by the qualified electors of the
City; and
(d) All revenues which the Enterprise receives from the repayment of Epic
Loans.
“Initial Advance” means the first Advance made by the Bank to the Enterprise pursuant
to Section 2.06 hereof.
“Interest Payment Date” means the first Business Day of each month, commencing the
first such day occurring after the Initial Advance continuing through and including the Maturity
Date.
“Interest Rate” means fixed rate of interest equal to __%.
“Light and Power Fund” means the special fund of that name heretofore created by the
City pursuant to Section 8-77 of the Code of the City of Fort Collins.
“Loan” means the Loan Amount bearing interest pursuant to the terms of this Agreement.
“Loan Amount” means, with respect to the Loan, a maximum amount of Two Million
Five Hundred Thousand and 00/100 U.S. Dollars ($2,500,000), or such lesser amount that has
been Advanced by the Bank from time to time in accordance with the terms and provisions of
this Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the business, property,
liabilities (actual and contingent), operations or condition (financial or otherwise), results of
operations, or prospects of the Enterprise taken as a whole, (b) the ability of the Enterprise to
perform its obligation under this Agreement, or (c) the validity or enforceability of this
Agreement or the rights or remedies of the Bank under this Agreement.
“Maturity Date” means April __, 2037.
“Maximum Advance Amount” means, with respect to the 2020 Note, $2,500,000.
“Maximum Rate” means 18% per annum.
“Net Pledged Revenues” means the Gross Pledged Revenues remaining after the payment
of the Operation and Maintenance Expenses of the System.
“Operation and Maintenance Expenses” means such reasonable and necessary current
expenses of the City, paid or accrued, of operating, maintaining and repairing the System
6
4810-7991-0321.7
including, except as limited by contract or otherwise limited by law, without limiting the
generality of the foregoing:
(a) All payments made to the Platte River Power Authority, a wholesale
electricity provider that acquires, constructs and operates generation capacity for the City,
or its successor in function;
(b) Engineering, auditing, legal and other overhead expenses directly related
and reasonably allocable to the administration, operation and maintenance of the System;
(c) Insurance and surety bond premiums appertaining to the System;
(d) The reasonable charges of any paying agent, registrar, transfer agent,
depository or escrow agent appertaining to the System or any bonds or other securities
issued therefor;
(e) Annual payments to pension, retirement, health and hospitalization funds
appertaining to the System;
(f) Any taxes, assessments, franchise fees or other charges or payments in
lieu of the foregoing;
(g) Ordinary and current rentals of equipment or other property;
(h) Contractual services, professional services, salaries, administrative
expenses, and costs of labor appertaining to the System and the cost of materials and
supplies used for current operation of the System;
(i) The costs incurred in the billing and collection of all or any part of the
Gross Pledged Revenues; and
(j) Any costs of utility services furnished to the System by the City or
otherwise.
“Operation and Maintenance Expenses” does not include:
(a) Any allowance for depreciation;
(b) Any costs of reconstruction, improvement, extensions, or betterments,
including without limitation any costs of Capital Improvements;
(c) Any accumulation of reserves for capital replacements;
(d) Any reserves for operation, maintenance, or repair of the System;
(e) Any allowance for the redemption of any bonds or other securities payable
from the Net Pledged Revenues or the payment of any interest thereon;
7
4810-7991-0321.7
(f) Any liabilities incurred in the acquisition of any properties comprising the
System; and
(g) Any other ground of legal liability not based on contract.
“Parity Debt” means any obligations of the Enterprise payable from and with a lien on
the Net Pledged Revenues on a parity basis with the 2019 Note and the 2020 Note.
“Permitted Investments” means any investment or deposit permissible under then
applicable law for governmental entities such as the Enterprise.
“Person” means an individual, a corporation, a partnership, an association, a joint
venture, a trust, an unincorporated organization or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
“Prime Rate” means a variable per annum rate of interest equal at all times to the rate of
interest established and quoted by the Bank as its “Prime Rate,” “Base Rate” or “Reference
Rate,” such rate to change contemporaneously with each change in such established and quoted
rate, provided that it is understood that the Prime Rate shall not necessarily be representative of
the rate of interest actually charged by the Bank on any loan or class of loans.
“Principal Payment Date” means the first Business Day of each month, commencing the
first such day occurring after the conversion to a Term Loan pursuant to Section 2.07 hereof and
continuing through and including the Maturity Date.
“Senior Debt” means the 2018A Bonds, the 2018B Bonds, and any obligations of the
Enterprise payable from and with a lien on the Net Pledged Revenues on a basis superior to the
2020 Note.
“Supplemental Public Securities Act” means Title 11, Article 57, C.R.S.
“System” means the City’s electric distribution system that furnishes electricity and
related services and excludes the City’s broadband system using fiber-optic technology. The
System consists of all properties, real, personal, mixed and otherwise, now owned or hereafter
acquired by the City, through purchase, construction and otherwise, and used in connection with
such system of the City, and in any way pertaining thereto and consisting of all properties, real,
personal, mixed or otherwise, now owned or hereafter acquired by the City, whether situated
within or without the City boundaries, used in connection with such system of the City, and in
any way appertaining thereto, including all present or future improvements, extensions,
enlargements, betterments, replacements or additions thereof or thereto and administrative
facilities.
“Unfunded Portion” means, as of any date, an amount equal to the Maximum Advance
Amount, less the total amount of all Advances funded as of such date, less any reduction of the
Unfunded Portion made pursuant to Section 2.01 hereof.
“Wall Street Journal Prime Rate” means the Wall Street Journal Prime Rate quoted by
the Bank from the Wall Street Journal or any successor thereto.
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4810-7991-0321.7
ARTICLE II
LOAN
Section 2.01. Loan.
(a) Agreement to Make Loan. The Bank hereby agrees to extend the Loan to
the Enterprise in the maximum aggregate principal amount of $2,500,000 subject to the
terms and conditions of this Agreement. The Loan shall be evidenced by the 2020 Note,
the form of which is set forth in Exhibit A attached hereto.
(b) Advances. Subject to the terms and conditions of this Agreement,
including without limitation satisfaction of the conditions set forth in Section 2.06 hereof
and upon delivery to the Bank of an Advance Request in the form of Exhibit B hereto, the
Bank hereby agrees to make Advances to the Enterprise from time to time during the
Advance Period in the aggregate original principal amounts not to exceed $2,500,000
with respect to the Loan (as more particularly defined in Article I hereof, the “Maximum
Advance Amount”). On the Advance Termination Date, the Unfunded Portion shall be
reduced to zero and no further Advances will be made hereunder.
(c) Note. The Loan shall be evidenced by the 2020 Note. On the Closing
Date, the Enterprise shall execute and deliver the 2020 Note payable to the Bank, in
substantially the form set forth in Exhibit A attached hereto. The Enterprise shall
maintain a book for the registration of ownership of the 2020 Note. Upon any transfer of
the 2020 Note as provided herein, such transfer shall be entered on such registration
books of the Enterprise.
With respect to each Advance funded by the Bank from time to time hereunder,
the Bank shall maintain, in accordance with its usual practices, records evidencing the
indebtedness resulting from each such Advance and the amounts of principal and interest
payable and paid from time to time hereunder. In any legal action or proceeding in
respect of any Advance or the Loan, the entries made in such records shall be conclusive
evidence (absent manifest error) of the existence and amounts of the obligations therein
recorded. The Note shall evidence the obligation of the Enterprise to pay the Loan and
shall evidence the obligation of the Enterprise to pay the principal amount of each
Advance funded by the Bank hereunder, as such amounts are outstanding from time to
time, and accrued interest
(d) Commitment Fee. The Enterprise shall pay to the Bank a nonrefundable
fee (the “Commitment Fee”), which shall be in the amount of 0.005% ($12,500) of the
maximum aggregate principal amount of the Loan. The Commitment Fee shall be paid
on the Closing Date.
(e) Application of Loan Proceeds. The Enterprise shall apply the proceeds of
each Advance to pay the costs of the Project.
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4810-7991-0321.7
(f) Special Obligations. All amounts due under this Agreement or the 2020
Note shall be payable and collectible solely out of the Net Pledged Revenues, which
revenues are hereby so pledged which pledge is in all respects subordinate to the pledge
and lien thereon of the Senior Debt at any time outstanding. The Bank may not look to
any general or other fund for the payment of such amounts; this Agreement and the 2020
Note shall not constitute a debt or indebtedness within the meaning of any constitutional,
charter, or statutory provision or limitation; and this Agreement and the 2020 Note shall
not be considered or held to be general obligations of the Enterprise or the City but shall
constitute special obligations of the Enterprise. No statutory or constitutional provision
enacted after the execution and delivery of this Agreement or the 2020 Note shall in any
manner be construed as limiting or impairing the obligation of the Enterprise to comply
with the provisions of this Agreement or the 2020 Note. None of the covenants,
agreements, representations and warranties contained herein or in the 2020 Note shall
ever impose or shall be construed as imposing any liability, obligation or charge against
the Enterprise or the City (except the Net Pledged Revenues and the special funds
pledged therefor), or against its general credit, or as payable out of its general fund or out
of any funds derived from taxation or out of any other revenue source (other than those
pledged therefor). The payment of the amounts due under this Agreement or the 2020
Note is not secured by an encumbrance, mortgage or other pledge of property of the City
or the Enterprise, except for the Net Pledged Revenues. No property of the City or the
Enterprise, subject to such exception, shall be liable to be forfeited or taken in payment of
such amounts.
Section 2.02. Interest Rate; Interest Payments; Principal Payments.
(a) Interest Rate. The unpaid principal balance of the Loan will bear interest
at the Interest Rate. All interest due and payable under this Agreement shall be
calculated on the basis of actual interest due based on a 360-day year. Interest payments
on the Loan shall be due on each Interest Payment Date and on the Maturity Date.
(b) Default Interest Rate. Immediately upon the occurrence of an Event of
Default or upon the Maturity Date, interest shall begin to accrue on all principal amounts
owing on the Loan at the Default Interest Rate for so long as such Event of Default
continues and remains uncured or, if after the Maturity Date, for so long as amounts due
on the Loan remain unpaid.
(c) Principal Payments. Repayment of principal amounts owing under the
Loan shall occur on each Principal Payment Date.
(d) Prepayment. The Loan may not be prepaid in whole until April ___,
2025. From April __, 2025 to April __, 2027; the Loan may be prepaid in whole at a
prepayment price equal to the principal amount so prepaid, plus accrued interest to the
prepayment date and a prepayment fee equal to 1% of the outstanding balance of the
Loan. On and after April __, 2027; the Loan may be prepaid in whole at a prepayment
price equal to the principal amount so prepaid, plus accrued interest without prepayment
fee. Notwithstanding the foregoing, the Enterprise may repay the Loan in part without
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penalty. All prepayments shall be made upon written notice to the Bank two Business
Days in advance of such prepayment.
(e) Obligations Unconditional. The Enterprise’s obligation to repay the Loan
hereunder and all of its other obligations under this Agreement shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Enterprise may have against the Bank or
any other Person, including, without limitation, any defense based on the failure of any
nonapplication or misapplication of the proceeds of the Loan hereunder, and irrespective
of the legality, validity, regularity or enforceability of all or any of the Financing
Documents, and notwithstanding any amendment or waiver of (other than an amendment
or waiver signed by the Bank explicitly reciting the release or discharge of any such
obligation), or any consent to, or departure from, all or any of the Financing Documents
or any exchange, release, or nonperfection of any collateral securing the obligations of
the Enterprise hereunder and any other circumstances or happening whatsoever, whether
or not similar to any of the foregoing; provided, however, that nothing contained in this
Section 2.02(e) shall abrogate or otherwise affect the rights of the Enterprise pursuant to
Section 8.06 hereof.
(f) Waivers, Etc. To the full extent permitted by law: (i) the Enterprise
hereby waives (A) presentment, demand, notice of demand, protest, notice of protest,
notice of dishonor and notice of nonpayment; (B) to the extent the Bank is not in default
hereunder, the right, if any, to the benefit of, or to direct application of, any security
hypothecated to the Bank until all obligations of the Enterprise to the Bank hereunder,
howsoever arising, have been paid; (C) the right to require the Bank to proceed against
the Enterprise hereunder, or against any Person under any guaranty or similar
arrangement, or under any agreement between the Bank and any Person or to pursue any
other remedy in the Bank’s power; and (D) any defense arising out of the election by the
Bank to foreclose on any security by one or more non-judicial or judicial sales; (ii) the
Bank may exercise any other right or remedy, even though any such election operates to
impair or extinguish the Enterprise’s right to repayment from, or any other right or
remedy it may have against, any Person, or any security; and (iii) the Enterprise agrees
that the Bank may proceed against the Enterprise or any Person directly and
independently of any other, and that any forbearance, change of rate of interest, or
acceptance, release or substitution of any security, guaranty, or loan or change of any
term or condition thereunder or under any Financing Document (other than by mutual
agreement between the Enterprise and the Bank) shall not in any way affect the liability
of the Enterprise hereunder.
(g) Manner of Payments. All interest, fees, and other payments to be made
hereunder by or on behalf of the Enterprise to the Bank shall be made, and shall not be
considered made until received, in United States dollars in immediately available funds.
The Enterprise shall make each payment hereunder in the manner and at the time
necessary so that each such payment is received by the Bank not later than 12:00 p.m.,
Colorado time, on the day when due in lawful money of the United States of America in
immediately available funds. Any payment received after 12:00 p.m., Colorado time,
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shall be deemed made on the next succeeding Business Day. All payments made
hereunder by or on behalf of the Enterprise to the Bank shall be applied to such amounts
due hereunder and under the Financing Documents in the following order: first, to unpaid
Commitment Fee, second, to accrued but unpaid interest, third, to principal and, fourth, to
any other amounts due hereunder.
(h) Default Interest Rate; Calculation of Interest and Fees. All interest and
fees due and payable under this Agreement shall be calculated on the basis of actual
interest due based on a 360-day year. Any sum due to the Bank and not paid when due
and any sum due to the Bank upon the occurrence or during the continuance of any Event
of Default hereunder shall bear interest at the Default Interest Rate.
Section 2.03. Costs, Expenses and Taxes. The Enterprise agrees to pay all reasonable
costs and expenses actually incurred by the Bank in connection with (a) the preparation,
execution and delivery of this Agreement or any other documents, including the other Financing
Documents, which may be delivered by any party in connection with this Agreement and the
other Financing Document, and (b) the filing, recording, administration (other than normal,
routine administration), enforcement, transfer, amendment, maintenance, renewal or cancellation
of this Agreement and all amendments or modifications thereto (or supplements hereto),
including, without limitation, the reasonable fees and out of pocket expenses of counsel for the
Bank and independent public accountants and other outside experts retained by the Bank in
connection with any of the foregoing; and. In addition, the Enterprise agrees to pay promptly all
reasonable costs and expenses of the Bank, including, without limitation, the actual, reasonable
fees and expenses of external counsel, for (i) any and all amounts which the Bank has paid
relative to the Bank’s curing of any Event of Default under this Agreement or any of the
Financing Documents; (ii) the enforcement of this Agreement or any of the Financing
Documents; or (iii) any action or proceeding relating to a court order, injunction, or other process
or decree restraining or seeking to restrain the Bank from paying any amount hereunder.
Without prejudice to the survival of any other agreement of the Enterprise hereunder, the
agreements and obligations contained in this Section 2.03 shall survive the payment in full of all
amounts owing to the Bank hereunder.
Section 2.04. Pledge. The Enterprise hereby pledges, assigns and grants to the Bank a
lien in the Net Pledged Revenues, which is subordinate to the lien which is pledged to secure the
payment of Senior Debt but on a pari passu basis with the Parity Debt, to secure its obligations to
the Bank hereunder and under the other Financing Documents. The lien of the Bank on the Net
Pledged Revenues hereunder shall be subject to no other liens except those liens granted on the
Net Pledged Revenues to any Senior Debt heretofore or hereafter issued in accordance with the
terms hereof and the Subordinate Debt. The Enterprise represents and warrants that, except for
the Senior Debt, the Net Pledged Revenues is not and shall not be subject to any other lien or
encumbrance without the prior written consent of the Bank except as otherwise permitted
pursuant to this Agreement.
Section 2.05. Conditions to Closing. The Closing on the Loan is conditioned upon the
satisfaction of each of the following:
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(a) all Financing Documents and other instruments applicable to the Loan are
in form and content satisfactory to the Bank and have been duly executed and delivered
in form and substance satisfactory to the Bank and shall have not been modified,
amended or rescinded, shall be in full force and effect on and as of the Closing Date and
executed original or certified copies of each thereof shall have been delivered to the
Bank;
(b) the Bank has received a certified copy of the Authorizing Ordinance of the
Enterprise, which shall be in form and content satisfactory to the Bank and authorize the
Enterprise to finance the Project, obtain the Loan and perform all acts contemplated by
this Agreement and all other Financing Documents; and a certified copy of all other
ordinances, resolutions and proceedings taken by the Enterprise authorizing the
Enterprise to finance the Project, obtain the Loan and the execution, delivery and
performance of this Agreement and the other Financing Documents and the transactions
contemplated hereunder and thereunder, together with such other certifications as to the
specimen signatures of the officers of the Enterprise authorized to sign this Agreement
and the other Financing Documents to be delivered by the Enterprise hereunder and as to
other matters of fact as shall reasonably be requested by the Bank;
(c) the Enterprise has provided a certificate certifying that on the Closing
Date each representation and warranty on the part of the Enterprise contained in this
Agreement and in any other Financing Document is true and correct and no Event of
Default, or event which would, with the passage of time or the giving of notice, constitute
an Event of Default, has occurred and is continuing and no default exists under any other
Financing Documents, or under any other agreements by and between the Enterprise and
the Bank and certifying as to such other matters as the Bank might reasonably request;
(d) the Enterprise has provided a certificate certifying that the only Senior
Debt outstanding as of the Closing Date is the 2018A Bonds and the 2018B Bonds and
that no Parity Debt (other than the 2019 Note) is outstanding as of the Closing Date;
(e) the Bank shall have received the opinion of Butler Snow LLP to the effect
that (i) the obligation of the Enterprise to pay the principal of and interest on the Loan
constitutes a valid and binding special obligation of the Enterprise payable solely from
the Net Pledged Revenues with a lien on the Net Pledged Revenues which is subordinate
to the lien thereon of the Senior Debt, and (ii) this Agreement and the Note are valid and
binding obligations of the Enterprise, enforceable against the Enterprise in accordance
with their respective terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting creditors’ rights
generally, and by equitable principles, whether considered at law or in equity;
(f) all proceedings taken in connection with the transactions contemplated by
this Agreement, and all instruments, authorizations and other documents applicable
thereto, are satisfactory to the Bank and its counsel;
(g) no law, regulation, ruling or other action of the United States, the State of
Colorado or any political subdivision or authority therein or thereof shall be in effect or
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shall have occurred, the effect of which would be to prevent the Enterprise from fulfilling
its obligations under this Agreement or the other Financing Documents;
(h) all Bank counsel fees and any other fees and expenses due and payable in
connection with the execution and delivery of this Agreement shall have been paid by the
Enterprise upon execution and delivery of this Agreement;
(i) the Bank shall have been provided with the opportunity to review all
pertinent financial information regarding the Enterprise, agreements, documents, and any
other material information relating to the Enterprise or the Net Pledged Revenues or any
other component of the collateral securing the obligations of the Enterprise hereunder;
(j) all information provided by the Enterprise to the Bank is accurate in all
respects;
(k) the Bank shall have received such other certificates, approvals, filings,
opinions and documents as shall be reasonably requested by the Bank;
(l) all other legal matters pertaining to the execution and delivery of this
Agreement and the other Financing Documents shall be reasonably satisfactory to the
Bank.
Section 2.06. Procedure for Requesting and Funding Advances.
(a) Conditions to Funding Advances. No Advance shall be requested by the
Enterprise and the Bank shall have no obligation to honor an Advance Request except in
accordance with the provisions and upon fulfillment of the terms and conditions set forth
in this Agreement. The funding by the Bank of each Advance is conditioned upon the
satisfaction of each of the following, each of which shall be satisfactory in all respects to
the Bank:
(i) Advance Frequency. Advance Requests may only be made during
the Advance Period and shall be submitted to the Bank no more than once in any
calendar month, unless permitted more frequently by the Bank. Advances shall
be made in amounts of $75,000 or more.
(ii) Representations and Warranties True; No Default. At the time
any Advance is to be made and as a result thereof, immediately thereafter, all
representations and warranties of the Enterprise set forth in Article IV are true and
correct as though made on the date of such Advance Request and on the date
when such Advance is funded and no Event of Default hereunder has occurred
and is continuing and no litigation is then pending or threatened concerning the
Enterprise’s authority to pledge the Net Pledged Revenues as provided herein, and
the Enterprise shall deliver an executed certificate of an Authorized Person to
such effect in connection with each Advance in substantially the form of Exhibit
B.
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(iii) Payments Current. The Enterprise shall be current on all of its
obligations hereunder.
(iv) Advance Request. The Bank shall have received an Advance
Request from the Enterprise, the form of which is attached hereto as Exhibit B
(each, an “Advance Request”), signed by the Authorized Person of the Enterprise
and containing the calculation of the amount of such Advance requested by the
Enterprise.
(v) Amount of Advance. The amount of the requested Advance, when
combined with the sum of all prior Advances made hereunder shall not exceed the
Maximum Advance Amount for the Loan. From each Advance the Bank will
transfer amounts as specified in each Advance Request.
(vi) Material Adverse Changes. Since December 31, 2018, there has
been no change in the business, property, prospects, condition (financial or
otherwise) or results of operations of the Enterprise which could reasonably be
expected to have a Material Adverse Effect.
(vii) Other Conditions Precedent to Funding Each Advance. No
Advance shall be requested or made after the Advance Termination Date.
(b) Funding of Advances. Provided that the conditions set forth in Section
2.06(a) above are satisfied, within 2 days of receipt by the Bank of an Advance Request
signed by the Authorized Person, the Bank shall provide the amount of such Advance to
the Enterprise at such depository as the Enterprise may direct.
Section 2.07. Conversion to Amortizing Term Loan. Provided that (i) no Event of
Default shall have occurred and be continuing (ii) all representations and certifications and
agreements herein are then true and correct, and (iii) the outstanding Senior Debt is rated in one
of its four highest rating categories by a national recognized organization which regularly rates
obligations such as the Senior Debt on the Advance Loan Maturity Date the Loan shall convert
to a term loan (a “Term Loan”) that shall be payable in full by no later than the 17th anniversary
of the Closing Date. The Term Loan shall bear interest at the Interest Rate.
ARTICLE III
FUNDS AND ACCOUNTS
Section 3.01. Light and Power Fund. So long as this Agreement is in effect, the entire
Gross Pledged Revenues, upon their receipt from time to time by the Enterprise, shall be set
aside and credited immediately to the Light and Power Fund. In each month, after making in full
all deposits or payments required in connection with the Senior Debt, the Enterprise shall pay to
the Bank from the Net Pledged Revenues remaining in the Light and Power Fund, the amounts
due under this Agreement and the Note.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ENTERPRISE
While any obligations hereunder or under any of the other Financing Documents are
unpaid or outstanding, the Enterprise continuously represents and warrants to the Bank as
follows:
Section 4.01. Due Organization. The Enterprise is an enterprise of the City duly
organized and validly existing under Charter and Enterprise Ordinances.
Section 4.02. Power and Authorization. The Enterprise has all requisite power and
authority to own and convey its properties and to carry on its business as now conducted and as
contemplated to be conducted under the Financing Documents; to execute, deliver and to
perform its obligations under this Agreement and the other Financing Documents; and to cause
the execution, delivery and performance of the Financing Documents.
Section 4.03. No Legal Bar. To the best of the Enterprise’s knowledge, the Enterprise
is not in violation of any of the provisions of the laws of the State of Colorado or the United
States of America or any of the provisions of any order of any court of the State of Colorado or
the United States of America which would affect its existence, or its powers referred to in the
preceding Section 4.02. The execution, delivery and performance by the Enterprise of this
Agreement and of the other Financing Documents (a) will not violate any provision of any
applicable law or regulation or of any order, writ, judgment or decree of any court, arbitrator or
governmental authority; (b) will not violate any provisions of any document constituting,
regulating or otherwise affecting the operations or activities of the Enterprise; and (c) will not
violate any provision of, constitute a default under, or result in the creation, imposition or
foreclosure of any lien, mortgage, pledge, charge, security interest or encumbrance of any kind
other than liens created or imposed by the Financing Documents, on any of the revenues or other
assets of the Enterprise which could have a material adverse effect on the assets, financial
condition, business or operations of the Enterprise, on the Enterprise’s power to cause the
Financing Documents to be executed and delivered, or its ability to pay in full in a timely fashion
the obligations of the Enterprise under this Agreement or the other Financing Documents.
Section 4.04. Consents. The Enterprise has obtained all consents, permits, licenses and
approvals of, and has made all registrations and declarations with any governmental authority or
regulatory body required for the execution, delivery and performance by the Enterprise of this
Agreement and the other Financing Documents.
Section 4.05. Litigation. Except as disclosed in writing to the Bank, there is no action,
suit, inquiry or investigation or proceeding to which the Enterprise is a party, at law or in equity,
before or by any court, arbitrator, governmental or other board, body or official which is pending
or, to the best knowledge of the Enterprise, threatened in connection with any of the transactions
contemplated by this Agreement or the Financing Documents or against or affecting the assets of
the Enterprise, nor, to the best knowledge of the Enterprise, is there any basis therefor, wherein
an unfavorable decision, ruling or finding (a) would adversely affect the validity or
enforceability of, or the authority or ability of the Enterprise to perform its obligations under, the
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4810-7991-0321.7
Financing Documents; or (b) would, in the reasonable opinion of the Enterprise, have a
materially adverse effect on the ability of the Enterprise to conduct its business as presently
conducted or as proposed or contemplated to be conducted.
Section 4.06. Enforceability. This Agreement and each other Financing Document
constitutes the legal, valid and binding special obligation of the Enterprise, enforceable against
the Enterprise in accordance with its terms (except as such enforceability may be limited by
bankruptcy, moratorium or other similar laws affecting creditors’ rights generally and provided
that the application of equitable remedies is subject to the application of equitable principles).
Section 4.07. Changes in Law. To the best knowledge of the Enterprise, there is not
pending any change of law which, if enacted or adopted could have a material adverse effect on
the assets, financial condition, business or operations of the Enterprise, on the Enterprise’s power
to enter into this Agreement or the other Financing Documents or its ability to pay in full in a
timely fashion the obligations of the Enterprise under this Agreement or the other Financing
Documents.
Section 4.08. Financial Information and Statements. The financial statements and
other information previously provided to the Bank or provided to the Bank in the future are or
will be complete and accurate and prepared in accordance with generally accepted accounting
principles. There has been no material adverse change in the Enterprise’s financial condition
since such information was provided to the Bank.
Section 4.09. Accuracy of Information. All information, certificates or statements
given to the Bank pursuant to this Agreement and the other Financing Documents will be true
and complete when given.
Section 4.10. Financing Documents. Each representation and warranty of the
Enterprise contained in any Financing Document is true and correct as of the Closing Date.
Section 4.11. Regulations U and X. The Enterprise is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U or X issued by the Board of Governors of the Federal Reserve System); and no
proceeds of the Loan will be or have been used to extend credit to others for the purpose of
purchasing or carrying any margin stock.
Section 4.12. Default, Etc. The Enterprise is not in default in the performance,
observance, or fulfillment of any of the obligations, covenants or conditions contained in any
Financing Document or other ordinance, resolution, agreement or instrument to which it is a
party which would have a material adverse effect on the ability of the Enterprise to perform its
obligations hereunder or under the other Financing Documents, or which would affect the
enforceability hereof or thereof.
Section 4.13. Sovereign Immunity. The Enterprise represents that, under Section 24-
10-106, C.R.S., its governmental immunity is limited to claims for injury which lie in tort or
could lie in tort. Under existing law, the Enterprise is not entitled to raise the defense of
sovereign immunity in connection with any legal proceedings to enforce its contractual
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obligations under the Financing Documents, or the transactions contemplated hereby or thereby
including, without limitation, the payment of the principal of and interest on the Note.
Section 4.14. No Filings. No filings, recordings, registrations or other actions are
necessary to create and perfect the pledges provided for herein; all obligations of the Enterprise
hereunder are secured by the lien and pledge provided for herein; and the liens and pledges
provided for herein constitute valid prior liens subject to no other liens.
Section 4.15. Outstanding Debt. Upon the execution and delivery of this Agreement,
except for the Financing Documents and the 2018A Bonds and 2018B Bonds, the Enterprise will
have no other Debt outstanding payable from or secured by the Net Pledged Revenues or any
portion thereof. The Enterprise represents and warrants that it will incur additional Debt only in
accordance with the provisions of Section 5.23 of this Agreement.
ARTICLE V
COVENANTS OF THE ENTERPRISE
While any obligations hereunder or under any of the other Financing Documents are
unpaid or outstanding, the Enterprise continuously warrants and agrees as follows:
Section 5.01. Performance of Covenants, Authority. The Enterprise covenants that it
will faithfully perform and observe at all times any and all covenants, undertakings, stipulations,
and provisions contained in the Authorizing Ordinance, this Agreement, the Note, the other
Financing Documents and all its proceedings pertaining thereto as though such covenants,
undertakings, stipulations, and provisions were set forth in full herein (for the purpose of this
provision the Financing Documents shall be deemed to continue in full force and effect
notwithstanding any earlier termination thereof so long as any obligation of the Enterprise under
this Agreement shall be unpaid or unperformed). The Enterprise covenants that it is duly
authorized under the constitution and laws of the State of Colorado, including, particularly and
without limitation, the Charter and the Enterprise Ordinances, to obtain the Loan and to execute
and deliver the Note, this Agreement, and the other Financing Documents, and that all action on
its part for the execution and delivery of the Note, this Agreement, and the other Financing
Documents has been duly and effectively taken and will be duly taken as provided herein, and
that the Loan, the Note, this Agreement, and the other Financing Documents are and will be
valid and enforceable obligations of the Enterprise according to the terms hereof and thereof.
Section 5.02. Contractual Obligations. The Enterprise shall perform all contractual
obligations undertaken by it under any agreements relating to the Loan, the Gross Pledged
Revenues, the Project, or the System, or any combination thereof.
Section 5.03. Further Assurances. At any and all times the Enterprise shall, so far as it
may be authorized by law, pass, make, do, execute, acknowledge, deliver and file or record all
and every such further instruments, acts, deeds, conveyances, assignments, transfers, other
documents and assurances as may be reasonably necessary or desirable for better assuring,
conveying, granting, assigning and confirming all and singular the rights, the Net Pledged
Revenues and other moneys and accounts hereby pledged or assigned, or intended so to be, or
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4810-7991-0321.7
which the Enterprise may hereafter become bound to pledge or to assign, or as may be
reasonable and required to carry out the purposes of this Agreement and to comply with any
instrument of the Enterprise amendatory thereof, or supplemental thereto. The Enterprise, acting
by and through its officers, or otherwise, shall at all times, to the extent permitted by law, defend,
preserve and protect the pledge of the Net Pledged Revenues and other moneys and accounts
pledged hereunder and all the rights of the Bank hereunder against all claims and demands of all
Persons whomsoever.
Section 5.04. Conditions Precedent. Upon the date of the execution and delivery of
this Agreement, all conditions, acts and things required by the Federal or State Constitution, the
Charter, the Supplemental Act, the Enterprise Ordinances, or any other applicable law to exist, to
have happened and to have been performed precedent to the execution and delivery of this
Agreement shall exist, have happened, and have been performed; and the Bonds, together with
all other obligations of the Enterprise, shall not contravene any debt or other limitation
prescribed by the State Constitution.
Section 5.05. Rules, Regulations and Other Details. The Enterprise shall observe and
perform all of the terms and conditions contained in this Agreement, and shall comply with all
valid acts, rules, regulations, orders and directions of any legislative, executive, administrative or
judicial body applicable to the System, the Enterprise, except for any period during which the
same are being contested in good faith by proper legal proceedings.
Section 5.06. Payment of Governmental Charges. The Enterprise shall pay or cause
to be paid all taxes and assessments or other governmental charges, if any, lawfully levied or
assessed upon or in respect of the System, or upon any part thereof, or upon any portion of the
Gross Pledged Revenues, when the same shall become due, and shall duly observe and comply
with all valid requirements of any governmental authority relative to the System or any part
thereof, except for any period during which the same are being contested in good faith by proper
legal proceedings. The Enterprise shall not create or suffer to be created any lien upon the
System, or any part thereof, or upon the Gross Pledged Revenues, except the pledge and lien
created by for Senior Debt and Parity Debt and except as herein otherwise permitted. The
Enterprise shall pay or cause to be discharged or shall make adequate provision to satisfy and to
discharge, within 60 days after the same shall become payable, all lawful claims and demands
for labor, materials, supplies or other objects which, if unpaid, might by law become a lien upon
the System, or any part thereof, or the Gross Pledged Revenues; but nothing herein requires the
Enterprise to pay or cause to be discharged or to make provision for any such tax, assessment,
lien or charge, so long as the validity thereof is contested in good faith and by appropriate legal
proceedings.
Section 5.07. Protection of Security. The Enterprise and its officers, agents and
employees shall not take any action in such manner or to such extent as might prejudice the
security for the payment of the amounts due under this Agreement or the Note. No contract shall
be entered into nor any other action taken by which the rights of the Bank might be prejudicially
and materially impaired or diminished.
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Section 5.08. Prompt Payment. The Enterprise shall promptly pay the amounts due
under this Agreement or the Note at the places, on the dates and in the manner specified herein
and in the Agreement or the Note according to the true intent and meaning hereof.
Section 5.09. Use of Funds and Accounts. The funds and accounts described herein
shall be used solely and only for the purposes described herein.
Section 5.10. Other Liens. Other than the 2018A Bonds and 2018B Bonds, there are no
liens or encumbrances of any nature whatsoever on or against the System, or any part thereof, or
on or against the Net Pledged Revenues on a parity with or superior to the lien thereon of this
Agreement and the Note.
Section 5.11. Reasonable and Adequate Charges. The fees, rates and other charges
due to the Enterprise for the use of or otherwise pertaining to and services rendered by the
System to the Enterprise, to its inhabitants and to all other users within and without the
boundaries of the Enterprise shall be reasonable and just, taking into account and consideration
public interests and needs, the cost and value of the System, the Operation and Maintenance
Expenses thereof, and the amounts necessary to meet the debt service requirements of all Senior
Debt, Parity Debt, and any other securities payable from the Net Pledged Revenues, including,
without limitation, reserves and any replacement accounts therefor.
Section 5.12. Adequacy and Applicability of Charges. There shall be charged against
users of service pertaining to and users of the System, except as provided by Section 5.13 hereof,
such fees, rates and other charges so that the Gross Pledged Revenues shall be adequate to meet
the requirements of this Section. Such charges pertaining to the System shall be at least
sufficient so that the Gross Pledged Revenues annually are sufficient to pay in each Fiscal Year:
(a) Operation and Maintenance Expenses. amount equal to the annual
Operation and Maintenance Expenses for such Fiscal Year that are payable from the
Gross Pledged Revenues
(b) Principal and Interest. An amount equal to 125% of the debt service
requirements on the Senior Debt and any Parity Debt then outstanding in that Fiscal Year
(excluding the reserves therefor), and
(c) Deficiencies. All sums, if any, due and owing to meet then existing
deficiencies pertaining to any fund or account relating to the Gross Pledged Revenues or
any securities payable therefrom.
Section 5.13. Limitations Upon Free Service. No free service or facilities shall be
furnished by the System, except that the City shall not be required to pay for any use by the City
of any facilities of the System for municipal purposes. If the City chooses, in its sole discretion,
to pay for its use of the System, all the income so derived from the City shall be deemed to be
income derived from the operation of the System, to be used and to be accounted for in the same
manner as any other income derived from the operation of the System.
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4810-7991-0321.7
Section 5.14. Collection of Charges. The Enterprise shall cause all fees, rates and other
charges pertaining to the System to be collected as soon as is reasonable, shall reasonably
prescribe and enforce rules and regulations or impose contractual obligations for the payment of
such charges, and for the use of the System, and shall provide methods of collection and
penalties, to the end that the Gross Pledged Revenues shall be adequate to meet the requirements
of this Agreement and the Note
Section 5.15. Maintenance of Records. Proper books of record and account shall be
kept by the Enterprise, separate and apart from all other records and accounts.
Section 5.16. Accounting Principles. System records and accounts, and audits thereof,
shall be currently kept and made, as nearly as practicable, in accordance with the then generally
accepted accounting principles, methods and terminology followed and construed for utility
operations comparable to the System, except as may be otherwise provided herein or required by
applicable law or regulation or by contractual obligation existing on the execution and delivery
of this Agreement.
Section 5.17. Laws, Permits and Obligations. The Enterprise will comply in all
material respects with all applicable laws, rules, regulations, orders and directions of any
governmental authority and all agreements and obligations binding on the Enterprise,
noncompliance with which would have a material adverse effect on the Enterprise, its financial
condition, assets or ability to perform its obligations under the other Financing Documents;
provided that the Enterprise may in good faith contest such laws, rules, regulations, orders and
directions and the applicability thereof to the Enterprise to the extent that such action would not
be likely to have a material adverse effect on the Enterprise’s ability to perform its obligations
hereunder.
Section 5.18. Bonding and Insurance. The Enterprise shall carry general liability
coverage, workers’ compensation, public liability, and such other forms of insurance on
insurable Enterprise property upon the terms and conditions, and issued by recognized insurance
companies, as in the judgment of the Enterprise would ordinarily be carried by entities having
similar properties of equal value, such insurance being in such amounts as will protect the
Enterprise and its operations.
Section 5.19. Other Liabilities. The Enterprise shall pay and discharge, when due, all
of its liabilities, except when the payment thereof is being contested in good faith by appropriate
procedures which will avoid financial liability and with adequate reserves provided therefor.
Section 5.20. Proper Books and Records. The Enterprise shall keep or cause to be
kept adequate and proper records and books of account in which complete and correct entries
shall be made with respect to the Enterprise, the Net Pledged Revenues and all of the funds and
accounts established or maintained pursuant to any of the Financing Documents. The Enterprise
shall (a) maintain accounting records in accordance with generally recognized and accepted
principles of accounting consistently applied throughout the accounting periods involved;
(b) provide the Bank with such information concerning the business affairs and financial
condition (including insurance coverage) of Enterprise as the Bank may request; and (c) without
request, provide the Bank with the information set forth below.
21
4810-7991-0321.7
Section 5.21. Reporting Requirements.
(a) The Enterprise shall notify the Bank promptly of all interim litigation or
administrative proceedings, threatened or pending, against the Enterprise which would, if
adversely determined, in the Enterprise’s reasonable opinion, have a material effect on
the Enterprise’s financial condition arising after the date hereof.
(b) The Enterprise shall provide the following to the Bank at the times and in
the manner provided below:
(i) as soon as available, but not later than 210 days following the end
of each Fiscal Year, the Enterprise shall furnish to the Bank its audited financial
statements prepared in accordance with generally accepted accounting principles
consistently applied, in reasonable detail and certified by a firm of independent
certified public accountants selected by the Enterprise;
(ii) within 30 days of each calendar year’s quarter end, the Enterprise’s
financial statements with respect to the collection of revenue of the EPIC
Program; and
(iii) promptly upon request of the Bank, the Enterprise shall furnish to
the Bank such other reports or information regarding the collateral securing the
obligations of the Enterprise hereunder or the assets, financial condition, business
or operations of the Enterprise, as the Bank may reasonably request.
(c) The Enterprise shall promptly notify the Bank of any Event of Default of
which the Enterprise has knowledge, setting forth the details of such Event of Default and
any action which the Enterprise proposes to take with respect thereto.
(d) The Enterprise shall notify the Bank as soon as possible after the
Enterprise acquires knowledge of the occurrence of any event which, in the reasonable
judgment of the Enterprise, is likely to have a material adverse effect on the financial
condition of the Enterprise or affect the ability of the Enterprise to perform its obligations
under this Agreement or under any other Financing Documents.
Section 5.22. Visitation and Examination. Unless otherwise prohibited by law, the
Enterprise will permit any Person designated by the Bank to visit any of its offices to examine
the Enterprise’s books and financial records, and make copies thereof or extracts therefrom, and
to discuss its affairs, finances and accounts with its principal officers, all at such reasonable
times and as often as the Bank may reasonably request.
Section 5.23. Additional Debt. The Enterprise may issue Debt with a lien on the Net
Pledged Revenues that is on a parity with or subordinate to the lien of this Agreement, without
the Bank’s prior written consent. The Enterprise may issue Debt with a lien on the Net Pledged
Revenues that is senior to the lien of this Agreement, without the Bank’s prior written consent, if
such Debt is issued pursuant to the provisions of the 2018 Bond Ordinance.
22
4810-7991-0321.7
ARTICLE VI
INVESTMENTS
Section 6.01. Permitted Investments Only. All moneys held in the Light and Power
Fund shall be invested in Permitted Investments only.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default. The occurrence of any one or more of the following
events or the existence of any one or more of the following conditions shall constitute an Event
of Default under this Agreement (whatever the reason for such event or condition and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment,
decree, rule, regulation or order of any court or any administrative or governmental body):
(a) the Enterprise fails to pay the principal of or interest on the Note or any
Parity Debt when due;
(b) the Enterprise fails to pay when due any other amounts due and payable to
the Bank under this Agreement or any other Financing Documents;
(c) the Enterprise fails to observe or perform any other of the covenants,
agreements or conditions on the part of the Enterprise in this Agreement, the Note, or the
Authorizing Ordinance and the Enterprise fails to remedy the same within 30 days after
the Bank has provided the Enterprise with notice thereof;
(d) any representation or warranty made by the Enterprise in this Agreement
or in any other Financing Document or any certificate, instrument, financial or other
statement furnished by the Enterprise to the Bank, proves to have been untrue or
incomplete in any material respect when made or deemed made;
(e) the pledge of the collateral or any other security interest created hereunder
fails to be fully enforceable with the priority required hereunder or thereunder;
(f) any judgment or court order for the payment of money exceeding any
applicable insurance coverage by more than $100,000 in the aggregate is rendered against
the Enterprise and the Enterprise fails to vacate, bond, stay, contest, pay or satisfy such
judgment or court order for 60 days;
(g) the Enterprise shall initiate, acquiesce or consent to any proceedings to
dissolve the Enterprise or to consolidate the Enterprise with other similar entities into a
single entity or the Enterprise shall otherwise cease to exist;
(h) a change occurs in the financial or operating conditions of the Enterprise,
or the occurrence of any other event that, in the Bank’s reasonable judgment, will have a
materially adverse impact on the ability of the Enterprise to generate Net Pledged
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4810-7991-0321.7
Revenues sufficient to satisfy the Enterprise’s obligations under this Agreement or its
other obligations, and the Enterprise fails to cure such condition within six months after
receipt by the Enterprise of written notice thereof from the Bank;
(i) the Enterprise shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it or seeking to adjudicate it insolvent or a bankrupt or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts; or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for itself or for any substantial part of
its property, or the Enterprise shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Enterprise any case, proceeding or
other action of a nature referred to in clause (i) and the same shall remain undismissed; or
(iii) there shall be commenced against the Enterprise any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its property which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal, within 60 days from the entry thereof; (iv) the Enterprise shall take
action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any
of the acts set forth in clause (i), (ii) or (iii) above; or (v) the Enterprise shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they
become due;
(j) this Agreement or any other Financing Document, or any material
provision hereof or thereof, (i) ceases to be valid and binding on the Enterprise or is
declared null and void, or the validity or enforceability thereof is contested by the
Enterprise (unless being contested by the Enterprise in good faith), or the Enterprise
denies it has any or further liability under any such document to which it is a party; or
(ii) any pledge or security interest created fails to be fully enforceable with the priority
required hereunder or thereunder; and
(k) the Enterprise’s auditor delivers a qualified opinion with respect to the
Enterprise’s status as an on-going concern.
Section 7.02. Remedies. Upon the occurrence and during the continuance of any Event
of Default, the Loan shall bear interest at the Default Interest Rate. Upon the occurrence and
during the continuance of any Event of Default, the Bank, at its option, may take any action or
remedy available under the other Financing Documents or any other document, or at law or in
equity. Notwithstanding anything to the contrary herein, acceleration of the Loan shall not be an
available remedy for the occurrence or continuance of an Event of Default. In exercising any
remedy hereunder, the Bank shall give notice to all Notice Parties.
Section 7.03. Notice to Bank of Default. Notwithstanding any cure period described
above, the Enterprise will immediately notify the Bank in writing when the Enterprise obtains
knowledge of the occurrence of any Event of Default or any event which would, with the
passage of time or the giving of notice, constitute an Event of Default.
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4810-7991-0321.7
Section 7.04. Additional Bank Rights. Upon the occurrence of an Event of Default the
Bank may at any time take such other steps to protect or preserve the Bank’s interest in the Net
Pledged Revenues.
Section 7.05. Delay or Omission No Waiver. No delay or omission of the Bank to
exercise any right or power accruing upon any default shall exhaust or impair any such right or
power or shall be construed to be a waiver of any such default, or acquiescence therein; and
every power and remedy given by this Agreement may be exercised from time to time and as
often as may be deemed expedient.
Section 7.06. No Waiver of One Default to Affect Another; All Remedies
Cumulative. No waiver of any Event of Default hereunder shall extend to or affect any
subsequent or any other then existing Event of Default or shall impair any rights or remedies
consequent thereon. All rights and remedies of the Bank provided herein shall be cumulative
and the exercise of any such right or remedy shall not affect or impair the exercise of any other
right or remedy.
Section 7.07. Other Remedies. Nothing in this Article VII is intended to restrict the
Bank’s rights under any of the Financing Documents or at law or in equity, and the Bank may
exercise all such rights and remedies as and when they are available.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Loan Agreement and Relationship to Other Documents. The
warranties, covenants and other obligations of the Enterprise (and the rights and remedies of the
Bank) that are outlined in this Agreement and the other Financing Documents are intended to
supplement each other. In the event of any inconsistencies in any of the terms in the Financing
Documents, all terms will be cumulative so as to give the Bank the most favorable rights set
forth in the conflicting documents, except that if there is a direct conflict between any preprinted
terms and specifically negotiated terms (whether included in an addendum or otherwise), the
specifically negotiated terms will control.
Section 8.02. Assignments, Participations, etc. by the Bank. The Bank may not
assign or transfer this Agreement or the Note or participate any of the Bank’s interests in the
Agreement or the Note without the Enterprise’s prior written consent. Any such assignment
without the Enterprise’s prior written consent shall be deemed null and void and of no effect.
Section 8.03. Notice of Claims Against Bank; Limitation of Certain Damages. In
order to allow the Bank to mitigate any damages to the Enterprise from the Bank’s alleged
breach of its duties under the Financing Documents or any other duty, if any, to the Enterprise,
the Enterprise agrees to give the Bank written notice no later than 30 days after the Enterprise
knows of any claim or defense it has against the Bank, whether in tort or contract, relating to any
action or inaction by the Bank under the Financing Documents, or the transactions related
thereto, or of any defense to payment of the obligations of the Enterprise hereunder for any
reason. The requirement of providing timely notice to the Bank represents the parties’ agreed to
25
4810-7991-0321.7
standard of performance regarding the duty of the Bank to mitigate damages related to claims
against the Bank. Notwithstanding any claim that the Enterprise may have against the Bank, and
regardless of any notice the Enterprise may have given the Bank, the Bank will not be liable to
the Enterprise for indirect, consequential and/or special damages arising therefrom, except those
damages arising from the Bank’s willful misconduct, negligence or bad faith. Failure by the
Enterprise to give notice to the Bank shall not waive any claims of the Enterprise but such failure
shall relieve the Bank of any duty to mitigate damages prior to receiving notice.
Section 8.04. Notices. Notices shall be deemed delivered when the notice has been
(a) deposited in the United States Mail, postage pre-paid; (b) received by overnight delivery
service; (c) received by Electronic Notification; or (d) when personally delivered at the following
addresses (the “Notice Parties”): Notice of any record shall be deemed delivered when the
record has been (a) deposited in the United States Mail, postage pre-paid; (b) received by
overnight delivery service; (c) received by Electronic Notification; or (d) when personally
delivered at the following addresses (the “Notice Parties”):
to Enterprise: City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
Attn: City Manager
with a copy to: City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
Attn: City Attorney
to Bank: ZB, N.A., dba Vectra Bank Colorado
2000 S. Colorado Boulevard
Suite 2-1200
Denver, CO 80222
Attention: Conrad Freeman
Email: cfreeman@vectrabank.com
Telephone: (720) 947-8802
Section 8.05. Payments. Payments due on the Loan shall be made in lawful money of
the United States. All payments may be applied by the Bank to principal, interest and other
amounts due under the Note and this Agreement pursuant to the terms of this Agreement.
Section 8.06. Applicable Law and Jurisdiction; Interpretation; Severability. This
Agreement and all other Financing Documents will be governed by and interpreted in
accordance with the internal laws of the State of Colorado, except to the extent superseded by
Federal law. Invalidity of any provisions of this Agreement will not affect any other provision.
TO THE EXTENT PERMITTED BY LAW, THE ENTERPRISE AND THE BANK HEREBY
CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT SITUATED IN
LARIMER COUNTY, COLORADO, AND WAIVE ANY OBJECTIONS BASED ON FORUM
NON CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR
26
4810-7991-0321.7
PROCEEDINGS RELATING TO THIS AGREEMENT, THE NOTE, THE NET PLEDGED
REVENUES, ANY OTHER FINANCING DOCUMENT, OR ANY TRANSACTIONS
ARISING THEREFROM, OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF
THE FOREGOING. Nothing in this Agreement will affect the Bank’s rights to serve process in
any manner permitted by law. This Agreement, the other Financing Documents and any
amendments hereto (regardless of when executed) will be deemed effective and accepted only at
the Bank’s offices, and only upon the Bank’s receipt of the executed originals thereof. Invalidity
of any provision of this Agreement shall not affect the validity of any other provision.
Section 8.07. Copies; Entire Agreement; Modification. The Enterprise hereby
acknowledges the receipt of a copy of this Agreement and all other Financing Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING,
EXPRESSING CONSIDERATION AND SIGNED BY THE PARTIES ARE ENFORCEABLE.
NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS AGREEMENT
MAY ONLY BE CHANGED BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE
SHALL ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS
NOW IN EFFECT BETWEEN THE ENTERPRISE AND THE BANK. A MODIFICATION
OF ANY OTHER CREDIT AGREEMENT NOW IN EFFECT BETWEEN THE ENTERPRISE
AND THE BANK, WHICH OCCURS AFTER RECEIPT BY THE ENTERPRISE OF THIS
NOTICE, MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR
IMPLIED MODIFICATIONS TO ANY SUCH CREDIT AGREEMENT IS NOT
ENFORCEABLE AND SHOULD NOT BE RELIED UPON.
Section 8.08. Waiver of Jury Trial; Class Action Waiver. As permitted by applicable
law, each party waives their respective rights to a trial before a jury in connection with any
Dispute (as "Dispute" is hereinafter defined), and Disputes shall be resolved by a judge sitting
without a jury. If a court determines that this provision is not enforceable for any reason and at
any time prior to trial of the Dispute, but not later than 30 days after entry of the order
determining this provision is unenforceable, any party shall be entitled to move the court for an
order compelling arbitration and staying or dismissing such litigation pending arbitration
("Arbitration Order"). To the extent permitted by applicable law, each party also waives the
right to litigate in court or an arbitration proceeding any Dispute as a class action, either as a
member of a class or as a representative, or to act as a private attorney general.
Section 8.09. Attachments. All documents attached hereto, including any appendices,
schedules, riders and exhibits to this Agreement, are hereby expressly incorporated by reference.
Section 8.10. No Recourse Against Officers and Agents. Pursuant to
Section 11-57-209 of the Supplemental Public Securities Act, if a member of the Board, or any
officer or agent of the Enterprise, acts in good faith in the performance of his duties as a member,
officer, or agent of the Board or the Enterprise and in no other capacity, no civil recourse shall be
available against such member, officer or agent for payment of the principal of and interest on
the Loan. Such recourse shall not be available either directly or indirectly through the Board or
the Enterprise, or otherwise, whether by virtue of any constitution, statute, rule of law,
27
4810-7991-0321.7
enforcement of penalty, or otherwise. By the acceptance of the delivery of the Note evidencing
the Loan and as a part of the consideration for such transfer, the Bank and any Person purchasing
or accepting the transfer of the obligation representing the Loan specifically waives any such
recourse.
Section 8.11. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Public Securities Act, this Agreement is entered into pursuant to certain provisions of the
Supplemental Public Securities Act. Such recital shall be conclusive evidence of the validity and
the regularity of the issuance of this Agreement after delivery for value.
Section 8.12. Limitation of Actions. Pursuant to Section 11-57-212 of the
Supplemental Public Securities Act, no legal or equitable action brought with respect to any
legislative acts or proceedings in connection with the authorization or issuance of the Loan shall
be commenced more than 30 days after the authorization of the Loan.
Section 8.13. Pledge of Revenues. The creation, perfection, enforcement, and priority
of the pledge of revenues to secure or pay the Loan provided herein shall be governed by
Section 11-57-208 of the Supplemental Public Securities Act, this Agreement, the Note, and the
Authorizing Ordinance. The amounts pledged to the payment of the Loan shall immediately be
subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of
such pledge shall have a first priority. The lien of such pledge shall be valid, binding, and
enforceable as against all Persons having claims of any kind in tort, contract, or otherwise
against the Enterprise irrespective of whether such Persons have notice of such liens.
Section 8.14. No Liability. The Bank, including its agents, employees, officers,
directors and controlling Persons, shall not have any liability to the Enterprise, and the Enterprise
assumes all risk, responsibility and liability for (a) the form, sufficiency, correctness, validity,
genuineness, falsification and legal effect of any demands and other documents, instruments and
other papers relating to the Loan even if such documents, should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (b) the general and particular conditions
stipulated therein; (c) the good faith acts of any Person whosoever in connection therewith;
(d) failure of any Person (other than the Bank, subject to the terms and conditions hereof) to
comply with the terms of the Loan; (e) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telex, telegraph, wireless or otherwise, whether or
not they be in code; (f) errors in translation or errors in interpretation of technical terms; (g) for
any other consequences arising from causes beyond the Bank’s control; or (h) any use of which
may be made of the proceeds of the Loan, except to the extent of any direct, as opposed to
indirect, consequential, or special damages suffered by the Enterprise which direct damages are
proven by the Enterprise to be caused by the Bank’s willful or grossly negligent failure to make
lawful payment under the Loan.
Section 8.15. No Waiver; Modifications in Writing. No failure or delay on the part of
the Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy preclude any other
right, power or remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to the Bank at law or in equity or otherwise. No
amendment, modification, supplement, termination or waiver of or to any provision of this
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4810-7991-0321.7
Agreement, nor consent to any departure by the Enterprise therefrom, shall be effective unless
the same shall be in writing and signed by or on behalf of the Bank and the Enterprise. Any
amendment, modification or supplement of or to any provision of this Agreement, and any
consent to any departure by the Enterprise from the terms of any provision of this Agreement,
shall be effective only in the specific instance and for the specific purpose for which made or
given. No notice to or demand on the Enterprise in any case shall entitle the Enterprise to any
other or further notice or demand in similar or other circumstances or constitute a waiver of the
right of the Bank to any other or further action in any circumstances without notice or demand.
Section 8.16. Document Imaging. The Bank shall be entitled, in its sole discretion, to
image all or any selection of the Financing Documents, other instruments, documents, items and
records governing, arising from or relating to the Loan, and may destroy or archive the paper
originals. The Enterprise hereby waives any right to insist that the Bank produce paper originals;
agrees that such images shall be accorded the same force and effect as the paper originals; and
further agrees that the Bank is entitled to use such images in lieu of destroyed or archived
originals for any purpose, including as admissible evidence in any demand, presentment or
proceedings.
Section 8.17. Payment on Non-Business Days. Whenever any payment hereunder shall
be stated to be due on a day which is not a Business Day, such payment may be made on the next
succeeding Business Day.
Section 8.18. Execution in Counterparts; Electronic Storage. This Agreement may
be executed in counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which counterparts, taken together, shall constitute but one and the same
Agreement. The parties hereto agree that the transactions described herein may be conducted
and related documents may be stored by electronic means. Copies, telecopies, facsimiles,
electronic files and other reproductions of original executed documents shall be deemed to be
authentic and valid counterparts of such original documents for all purposes, including the filing
of any claim, action or suit in the appropriate court of law.
Section 8.19. Severability. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or nonauthorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or legality of such provision
in any other jurisdiction.
Section 8.20. Headings. Article and Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction of this Agreement.
Section 8.21. Waiver of Rules of Construction. The Enterprise hereby waives any and
all provisions of law to the effect that an ambiguity in a contract or agreement should be
interpreted against the party responsible for its drafting.
Section 8.22. Integration. This Agreement is intended to be the final agreement
between the parties hereto relating to the subject matter hereof and this Agreement and any
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4810-7991-0321.7
agreement, document or instrument attached hereto or referred to herein shall supersede all oral
negotiations and prior writings with respect to the subject matter hereof.
Section 8.23. Patriot Act Notice. The Bank hereby notifies the Enterprise that pursuant
to the requirements of the Patriot Act it is required to obtain, verify and record information that
identifies the Enterprise, which information includes the name and address of the Enterprise and
other information that will allow the Bank to identify the Enterprise in accordance with the
Patriot Act. The Enterprise hereby agrees that it shall promptly provide such information upon
request by the Bank.
Section 8.24. Termination of Agreement. At such time as all amounts due to the Bank
have been duly paid, or provided for, this Agreement shall terminate.
4810-7991-0321.7
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
set forth above.
ZB, N.A., DBA VECTRA BANK COLORADO,
a national banking association
By _______________________________________
Name _____________________________________
Title ______________________________________
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE, an
enterprise of the City of Fort Collins, Colorado
By _______________________________________
President
[SEAL]
Attest:
By
Secretary
[Signature Page to Loan Agreement]
A-1
EXHIBIT A
FORM OF 2020 NOTE
THIS NOTE MAY NOT BE SOLD TRANSFERRED OR OTHERWISE DISPOSED OF
WITHOUT THE CONSENT OF THE ENTERPRISE.
UNITED STATES OF AMERICA
STATE OF COLORADO
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
2020 TAXABLE SUBORDINATE LIEN REVENUE NOTE
IN THE AGGREGATE PRINCIPAL AMOUNT OF
NOT TO EXCEED $2,500,000
Advances Not to Exceed US $2,500,000 __________, 2020
FOR VALUE RECEIVED, CITY OF FORT COLLINS, COLORADO, ELECTRIC
UTILITY ENTERPRISE, an enterprise of the City of Fort Collins, Colorado, (hereinafter
referred to as “Maker”), promises to pay to the order of ZB, N.A., DBA VECTRA BANK
COLORADO, a national banking association, its successors and assigns (hereinafter referred to
as “Payee”), at the office of Payee or its agent, designee, or assignee at ___________________
or at such place as Payee or its agent, designee, or assignee may from time to time designate in
writing, all Advances made in an amount not to exceed the principal sum of TWO MILLION
FIVE HUNDRED THOUSAND AND NO/100 DOLLARS (US $2,500,000) (this “Note”)
pursuant to the terms of the Loan Agreement dated of even date herewith by and between Maker
and Payee (the “Loan Agreement”), in lawful money of the United States of America.
This Note shall bear interest, be payable, and mature pursuant to the terms and provisions
of the Loan Agreement. All capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed in the Loan Agreement.
All amounts due under this Note shall be payable and collectible solely out of the Net
Pledged Revenues, which revenues are hereby so pledged which pledge is in all respects
subordinate to the pledge and lien thereon of the Senior Debt at any time outstanding. The Bank
may not look to any general or other fund for the payment of such amounts; this Note shall not
constitute a debt or indebtedness within the meaning of any constitutional, charter, or statutory
provision or limitation; and this Note shall not be considered or held to be general obligations of
the Enterprise or the City but shall constitute a special obligation of the Enterprise. No statutory
or constitutional provision enacted after the execution and delivery of the Note shall in any
manner be construed as limiting or impairing the obligation of the Enterprise to comply with the
provisions of this Note. None of the covenants, agreements, representations and warranties
contained herein or in this Note shall ever impose or shall be construed as imposing any liability,
obligation or charge against the Enterprise or the City (except the Net Pledged Revenues and the
special funds pledged therefor), or against its general credit, or as payable out of its general fund
or out of any funds derived from taxation or out of any other revenue source (other than those
A-2
pledged therefor). The payment of the amounts due under this Note is not secured by an
encumbrance, mortgage or other pledge of property of the City or the Enterprise, except for the
Net Pledged Revenues. No property of the City or the Enterprise, subject to such exception,
shall be liable to be forfeited or taken in payment of such amounts.
Amounts received by Payee under this Note shall be applied in the manner provided by
the Loan Agreement. All amounts due under this Note shall be payable without setoff,
counterclaim or any other deduction whatsoever by Maker.
Unless payments are made in the required amount in immediately available funds in
accordance with the provisions of the Loan Agreement, remittances in payment of all or any part
of the amounts due and payable hereunder shall not, regardless of any receipt or credit issued
therefor, constitute payment until the required amount is actually received by Payee in funds
immediately available at the place where this Note is payable (or any other place as Payee, in
Payee’s sole discretion, may have established by delivery of written notice thereof to Maker) and
shall be made and accepted subject to the condition that any check or draft may be handled for
collection in accordance with the practice of the collecting bank or banks. Acceptance by Payee
of any payment in an amount less than the amount then due shall be deemed an acceptance on
account only and any unpaid amounts shall remain due hereunder, all as more particularly
provided in the Loan Agreement.
In the event of nonpayment of this Note, Payee shall be entitled to all remedies under the
Loan Agreement and at law or in equity, and all remedies shall be cumulative.
It is expressly stipulated and agreed to be the intent of Maker and Payee at all times to
comply with applicable state law and applicable United States federal law. If the applicable law
(state or federal) is ever judicially interpreted so as to render usurious any amount called for
under this Note or under the Loan Agreement, or contracted for, charged, taken, reserved or
received with respect to the indebtedness evidenced by this Note, then it is Maker’s and Payee’s
express intent that all excess amounts theretofore collected by Payee be credited on the principal
balance of this Note (or, if this Note has been or would thereby be paid in full, refunded to
Maker), and the provisions of this Note shall immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of
any new document, so as to comply with the applicable law, but so as to permit the recovery of
the fullest amount otherwise called for hereunder and under the Loan Agreement. All sums paid
or agreed to be paid to Payee for the use, forbearance and detention of the indebtedness
evidenced hereby and by the Loan Agreement shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such indebtedness until
payment in full so that the rate or amount of interest on account of such indebtedness does not
exceed the maximum rate permitted under applicable law from time to time in effect and
applicable to the indebtedness evidenced hereby for so long as such indebtedness remains
outstanding.
Maker and any endorsers, sureties or guarantors hereof jointly and severally waive
presentment and demand for payment, protest and notice of protest and nonpayment, all
applicable exemption rights, valuation and appraisement, notice of demand, and all other notices
in connection with the delivery, acceptance, performance, default or enforcement of the payment
A-3
of this Note and the bringing of suit and diligence in taking any action to collect any sums owing
hereunder or in proceeding against any of the rights and collateral securing payment hereof.
Maker and any surety, endorser or guarantor hereof agree (a) that the time for any payments
hereunder may be extended from time to time without notice and consent; (b) to the acceptance
of further collateral; (c) to the release of any existing collateral for the payment of this Note;
(d) to any and all renewals, waivers or modifications that may be granted by Payee with respect
to the payment or other provisions of this Note; and/or (e) that additional makers, endorsers,
guarantors or sureties may become parties hereto all without notice to them and without in any
manner affecting their liability under or with respect to this Note. No extension of time for the
payment of this Note shall affect the liability of Maker under this Note or any endorser or
guarantor hereof even though Maker or such endorser or guarantor is not a party to such
agreement.
Failure of Payee to exercise any of the options granted herein to Payee upon the
happening of one or more of the events giving rise to such options shall not constitute a waiver
of the right to exercise the same or any other option at any subsequent time in respect to the same
or any other event. The acceptance by Payee of any payment hereunder that is less than payment
in full of all amounts due and payable at the time of such payment shall not constitute a waiver
of the right to exercise any of the options granted herein or in the Loan Agreement to Payee at
that time or at any subsequent time or nullify any prior exercise of any such option without the
express written acknowledgment of Payee.
Maker (and the undersigned representative of Maker, if any) represents that Maker has
full power, authority and legal right to execute, deliver and perform its obligations pursuant to
this Note and this Note constitutes the legal, valid and binding obligation of Maker.
All notices or other communications required or permitted to be given hereunder shall be
given in the manner and be effective as specified in the Loan Agreement, directed to the parties
at their respective addresses as provided therein.
This Note is governed by and interpreted in accordance with the internal laws of the State
of Colorado, except to the extent superseded by federal law. Invalidity of any provisions of this
Note will not affect any other provision.
Pursuant to Section 11-57-210 of the Colorado Revised Statutes, as amended, this Note is
entered into pursuant to and under the authority of the Supplemental Public Securities Act, being
Title 11, Article 57, of the Colorado Revised Statutes, as amended. Such recital shall be
conclusive evidence of the validity and the regularity of the issuance of this Note after delivery
for value and shall conclusively impart full compliance with all provisions and limitations of said
statutes, and this Note shall be incontestable for any cause whatsoever after delivery for value.
By acceptance of this instrument, the Payee agrees and consents to all of the limitations
in respect of the payment of the principal of and interest on this Note contained herein, in the
Authorizing Ordinance of the Maker authorizing the issuance of this Note and in the Agreement,
as the same may be amended from time to time.
A-4
TO THE EXTENT PERMITTED BY LAW, MAKER HEREBY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE COURT SITUATED IN LARIMER
COUNTY, COLORADO, AND WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR
PROCEEDINGS RELATING TO THIS NOTE, THE LOAN AGREEMENT, THE NET
PLEDGED REVENUES, ANY OTHER FINANCING DOCUMENT, OR ANY
TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR
INTERPRETATION OF ANY OF THE FOREGOING.
TO THE EXTENT PERMITTED BY LAW, MAKER HEREBY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO
THIS NOTE, THE LOAN AGREEMENT, OR ANY OF THE OTHER FINANCING
DOCUMENTS, THE OBLIGATIONS THEREUNDER, ANY COLLATERAL SECURING
THE OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM OR
CONNECTED THERETO. MAKER REPRESENTS TO PAYEE THAT THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
THE PROVISIONS OF THIS NOTE MAY BE AMENDED OR REVISED ONLY BY
AN INSTRUMENT IN WRITING SIGNED BY MAKER AND PAYEE. THERE ARE NO
ORAL AGREEMENTS BETWEEN MAKER AND PAYEE WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, an authorized representative of City of Fort Collins,
Colorado, Electric Utility Enterprise, as Maker, has executed this Note as of the day and year
first above written.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
President
[SEAL]
Attest:
By
Secretary
4810-7991-0321.7
EXHIBIT B
FORM OF ADVANCE REQUEST
City of Fort Collins, Colorado, Electric Utility Enterprise
Loan Agreement
The undersigned certifies that he/she is an Authorized Person under that certain Loan
Agreement dated as of April __, 2020 (the “Agreement”) by and between City of Fort Collins,
Colorado, Electric Utility Enterprise and ZB, N.A., dba Vectra Bank Colorado (the “Bank”). All
capitalized terms used in this Advance Request (“Advance Request”) shall have the respective
meanings assigned in the Agreement.
The undersigned Authorized Person hereby makes a request to the Bank for an Advance
on the Loan, and in support thereof states:
(i) The amount of the Advance so requested is $___________.
(ii) Upon the funding of such Advance, the sum of all Advances will not exceed the
Maximum Advance Amount of the Loan.
(iii) At the time the requested Advance is to be made and as a result thereof,
immediately thereafter, all representations and warranties of the Enterprise set forth in Article IV
of the Loan Agreement are true and correct as though made on the date hereof and will be true
and correct as though made on the Advance Date and no Event of Default shall have occurred
and be continuing on the date hereof and on the Advance Date and no litigation is currently
pending or threatened concerning the Enterprise’s authority to pledge the Net Pledged Revenues
as provided in the Loan Agreement.
(iv) The outstanding Senior Debt is rated in one of its four highest rating categories by
a national recognized organization which regularly rates obligations such as the Senior Debt.
(v) The requested Advance shall be made by the Bank by ACH batch transfer to the
Enterprise in accordance with the instructions set forth below:
[Insert wire instructions]
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ________,
20__.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
Authorized Person
-1-
ORDINANCE NO. 010
OF THE CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
AUTHORIZING A LOAN AGREEMENT WITH THE COLORADO ENERGY OFFICE TO
PROVIDE FUNDING FOR THE EPIC LOAN PROGRAM
WHEREAS, the City of Fort Collins, Colorado (the “City”) is a duly organized and
existing home rule municipality of the State of Colorado, created and operating pursuant to
Article XX of the Constitution of the State of Colorado and the home rule charter of the City (the
“Charter”); and
WHEREAS, the members of the City Council of the City (the “Council”) have been duly
elected and qualified; and
WHEREAS, Section 19.3(b) of the Charter Article V (“Section 19.3(b)”) provides that
the Council may, by ordinance establish the City’s electric utility (the “Utility”) as an enterprise
of the City; and
WHEREAS, pursuant to Section 19.3(b), the Council has heretofore established the
Utility as an enterprise of the City (the “Enterprise”) in ordinances codified in Section 26-392 of
the Code of the City of Fort Collins; and
WHEREAS, pursuant to Section 19.3(b) and Code Section 26-392, the Council has
authorized the Enterprise, by and through the Council, sitting as the board of the Enterprise (the
“Board”), to issue, by ordinance, revenue and refunding securities and other debt; and
WHEREAS, the City has established a program (the “Epic Program”) to assist certain
customers of the Utility in financing home energy efficiency and renewable energy
improvements by making loans to customers who are property owners (“Epic Loans”); and
WHEREAS, the Board has determined that in order to finance Epic Loans (the
“Project”), it is necessary and advisable and in the best interests of the Enterprise (i) to enter into
a loan agreement (the “Loan Agreement”) the State of Colorado acting by and through the
Colorado Energy Office (the “CEO”) pursuant to which the CEO shall loan the Enterprise
$800,000 (the “Loan”) for such purposes, and (ii) to issue a promissory note (the “Note”) to the
CEO to evidence the Enterprise’s repayment obligations under the Loan Agreement; and
WHEREAS, the Loan shall accrue interest at 0% interest and shall be repaid in one
principal payment of $800,000 on April 20, 2035; and
WHEREAS, the Enterprise has previously incurred the following financial obligations
which are payable from and secured by a lien on the Enterprise’s “Net Pledged Revenues” (as
defined in Exhibit “A” of the Loan Agreement): (i) its “City of Fort Collins, Colorado, Electric
Utility Enterprise, Tax-Exempt Revenue Bonds, Series 2018A” and its “City of Fort Collins,
Colorado, Electric Utility Enterprise, Taxable Revenue Bonds, Series 2018B,” both approved in
Enterprise Ordinance No. 003 (jointly, the “2018 Bonds”), (ii) a loan agreement with U.S. Bank
National Association approved in Enterprise Ordinance No. 007 as amended in Enterprise
Ordinance No. 008 (the “2019 Loan Agreement”), and (iii) a loan agreement with Vectra Bank
Colorado approved in Enterprise Ordinance No. 009 (the “2020 Loan Agreement”); and
-2-
WHEREAS, the 2018 Bonds, the 2019 Loan Agreement and the 2020 Loan Agreement
shall be collectively referred to herein as the “Prior Obligations”; and
WHEREAS, except for the Prior Obligations, neither the City nor the Enterprise has
pledged or hypothecated the Enterprise’s “Gross Pledged Revenues” (as defined in Exhibit “A”
of the Loan Agreement) to the payment of any bonds or for any other purpose, with the result
that the Net Pledged Revenues may now be pledged lawfully and irrevocably to the payment of
the Loan which pledge will be subordinate to the pledge of Net Pledged Revenues to the
payment of the Prior Obligations; and
WHEREAS, pursuant to Enterprise Ordinance No. 003, the Mayor of the City has been
appointed President of the Enterprise (the President”), the City Financial Officer has been
appointed Treasurer of the Enterprise (the “Treasurer”), and the City Clerk has been appointed
Secretary of the Enterprise (the “Secretary”) which appointments the Board hereby reaffirms and
ratifies for purposes of this Ordinance; and
WHEREAS, there are attached hereto as Exhibit “A” and incorporated herein by
reference the forms of the Loan Agreement and the Note (jointly, “the “Financing Documents”).
BE IT ORDAINED BY THE BOARD OF THE CITY OF FORT COLLINS,
COLORADO, ELECTRIC UTILITY ENTERPRISE AS FOLLOWS:
Section 1. Adoption of Recitals, Approvals, Authorizations, and Amendments. The
Board hereby adopts and incorporates herein by reference as operative provisions of this
Ordinance the recitals set forth above. The forms of the Financing Documents in substantially
the forms attached hereto as Exhibit “A” are hereby approved. The Enterprise shall enter and
perform its obligations under the Financing Documents in the forms of such documents, with
such changes as are not inconsistent herewith and as are hereafter approved by the President or
the Treasurer. The President and Secretary are hereby authorized and directed to execute the
Financing Documents and to affix the seal of the Enterprise thereto, and further to execute and
authenticate such other documents or certificates as are deemed necessary or desirable in
connection therewith. The Financing Documents shall be executed in substantially the forms
approved at this meeting. The execution of any instrument or certificate or other document in
connection with the matters referred to herein by the President, the Secretary, the Treasurer, any
member of the Board, or by other appropriate officers of the Enterprise, shall be conclusive
evidence of the approval by the Enterprise of such instrument.
Section 2. Pledge of Revenues. The amounts pledged to the payment of the Loan
evidenced by the Financing Documents shall immediately be subject to the lien of such pledge
without any physical delivery, filing, or further act subject to. The lien of such pledge shall have
the priority described in the Financing Documents. The lien of such pledge shall be valid,
binding, and enforceable as against all persons having claims of any kind in tort, contract, or
otherwise against the Enterprise irrespective of whether such persons have notice of such liens.
Section 3. Limited Obligation; Special Obligation. The Loan evidenced by the
Financing Documents is payable solely from the Net Pledged Revenues of the Enterprise and the
-3-
Financing Documents do not constitute a debt within the meaning of any constitutional, charter
or statutory limitation or provision.
Section 4. Authorized Persons. Pursuant to the Loan Agreement, the President and
the Treasurer are hereby designated as the Authorized Persons (as defined in the Loan
Agreement) for the purpose of performing any act or executing any document relating to the
Loan, the Enterprise, or the Financing Documents. A copy of this Ordinance shall be furnished
to the CEO as evidence of such designation. The President may designate additional authorized
Persons.
Section 5. Direction to Take Authorizing Action. The appropriate officers of the
Enterprise and members of the Board are hereby authorized and directed to take all other actions
necessary or appropriate to effectuate the provisions of this Ordinance, including but not limited
to such certificates and affidavits as may reasonably be required by the CEO.
Section 6. Ratification and Approval of Prior Actions. All actions heretofore taken
by the officers of the Enterprise and members of the Board, not inconsistent with the provisions
of this Ordinance, relating to the Financing Documents, or actions to be taken in respect thereof,
are hereby ratified, approved, and confirmed.
Section 7. Severability. If any section, paragraph, clause, or provision of this
Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability of such section, paragraph, clause, or provision shall not affect any of the
remaining provisions of this Ordinance, the intent being that the same are severable.
Section 8. Repealer. All orders, resolutions, bylaws, ordinances or regulations of the
Enterprise, or parts thereof, inconsistent with this Ordinance are hereby repealed to the extent
only of such inconsistency.
Section 9. Ordinance Irrepealable. After the Financing Documents are executed and
delivered, this Ordinance shall constitute an irrevocable contract between the Enterprise and the
CEO and shall be and remain irrepealable until the Loan and the interest thereon, as applicable,
shall have been fully paid, satisfied, and discharged. No provisions of any constitution, statute,
charter, ordinance, resolution or other measure enacted after the Financing Documents are
executed and delivered shall in any manner be construed as impairing the obligations of the
Enterprise to keep and perform the covenants contained in this Ordinance.
Section 10. Disposition. A true copy of this Ordinance, as adopted by the Board, shall
be numbered and recorded on the official records of the Board and its adoption and publication
shall be authenticated by the signatures of the President and the Secretary, and by a certificate of
the publisher.
-4-
Introduced, considered favorably on first reading and ordered published this 20th day of
March, 2020, and to be presented for final passage on the 7th day of April, 2020.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By:________________________________
President
ATTEST:
_________________________________
Secretary
Passed and adopted on final reading this 7th day of April, 2020.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By:________________________________
President
ATTEST:
_________________________________
Secretary
Page 1 of 20
Summary
Maximum Amount: U$800,000
UAgreement Identification:
Contract Encumbrance #: U U
Contract Management System #: (State of Colorado’s contract tracking #)
Project Information:
Project/Award Number:
Project Name: On-Bill Financing (“Epic Loan”) Capitalization Program
Performance Period: Start Date: Loan
Maturity: April 20, 2035
Brief Description of Project /
Assistance:
The loan will be issued to the City of Fort Collins, Colorado, Electric
Utility Enterprise to administer the Epic Loan program, which enables
utility customers to borrow funds to install energy efficiency and
renewable energy improvements on their properties and pay it back
through a charge on their monthly utility bill.
Program & Funding Information:
Program Name
Funding source:
Catalog of Federal Domestic Assistance (CFDA) Number (if federal funds):
Funding Account Codes:
LOAN AGREEMENT
Between
STATE OF COLORADO
COLORADO ENERGY OFFICE
And
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY
ENTERPRISE
EXHIBIT A
Page 2 of 20
TABLE OF CONTENTS
27T1. PARTIES27T .............................................................................................................................................................................
2
27T2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY.27T ............................................................................................... 2
27T3. RECITALS27T ..........................................................................................................................................................................
2
27T4. DEFINITIONS27T ....................................................................................................................................................................
3
27T5. LOAN AGREEMENT TERM.27T ........................................................................................................................................... 4
27T6. STATEMENT OF PROJECT27T ............................................................................................................................................. 4
27T7. PAYMENTS TO BORROWER27T .......................................................................................................................................... 5
27T8. REPORTING - NOTIFICATION27T ....................................................................................................................................... 6
27T9. BORROWER RECORDS27T ................................................................................................................................................... 6
27T10. CONFIDENTIAL INFORMATION-STATE RECORDS27T ................................................................................................ 7
27T11. CONFLICTS OF INTEREST27T............................................................................................................................................ 7
27T12. REPRESENTATIONS AND WARRANTIES27T.................................................................................................................. 8
27T13. INSURANCE27T ....................................................................................................................................................................
8
27T14. BREACH27T .........................................................................................................................................................................
10
27T15. REMEDIES27T .....................................................................................................................................................................
10
27T16. NOTICES and REPRESENTATIVES27T ............................................................................................................................ 12
27T17. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE27T ....................................................................... 13
27T18. STATEWIDE CONTRACT MANAGEMENT SYSTEM27T .............................................................................................. 13
27T19. RESTRICTION ON PUBLIC BENEFITS27T ...................................................................................................................... 13
27T20. GENERAL PROVISIONS27T .............................................................................................................................................. 14
27T21. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)27T ............................................................... 16
27TSIGNATURE PAGE Contract Routing Number ----------27T ......................................................................................... 20
EXHIBIT A – STATEMENT OF PROJECT
EXHIBIT B – DOE AWARD TERMS AND CONDITIONS
EXHIBIT C – FEDERAL PROVISIONS
EXHIBIT D - PROMISSORY NOTE
1. PARTIES
This Loan Agreement (hereinafter called “Loan Agreement”) is entered into by and between City of Fort
Collins, Colorado, Electric Utility Enterprise, an enterprise established and existing pursuant to the home rule
charter of the City of Fort Collins, Colorado (hereinafter called “Borrower”), and the STATE OF COLORADO
acting by and through the Colorado Energy Office (hereinafter called the “State” or “CEO”).
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY.
This Loan Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State
Controller or designee (hereinafter called the “Effective Date”). The State shall not be liable to pay or reimburse
Borrower for any performance hereunder except for payment not to exceed the Loan Funds specified in Section
IV. of Exhibit A. The State shall not be liable to pay or reimburse Borrower for costs or expenses incurred, or
be bound by any provision hereof, prior to the Effective Date or after termination of the Loan Agreement.
3. RECITALS
A. Authority, Appropriation, and Approval
Authority to enter into this Loan Agreement exists in CRS §24-38.5-101, et seq. and funds have been
budgeted, appropriated and otherwise made available pursuant to the U.S. Department of Energy (DOE)
Award No. DE-EE0007470, CFDA No. 81.041 and a sufficient unencumbered balance thereof remains
available for payment. Required approvals, clearance and coordination have been accomplished from and
with appropriate agencies.
B. Consideration
The Parties acknowledge that the mutual promises and covenants contained herein and other good and
valuable consideration are sufficient and adequate to support this Loan Agreement.
C. Purpose
The purpose of this Loan Agreement is described in Exhibit A.
Page 3 of 20
D. References
All references in this Loan Agreement to sections (whether spelled out or using the § symbol), subsections,
exhibits or other attachments, are references to sections, subsections, exhibits or other attachments
contained herein or incorporated as a part hereof, unless otherwise noted.
4. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows:
A. Budget
“Budget” means the budget for the Project and/or Work described in Exhibit A.
B. Evaluation
14T“Evaluation” means the process 14Tof examining Loan Agreement’s Work and rating it based on criteria
established in §8 and Exhibit A.
C. Event of Default
“14TEvent14T of Default” shall exist when any one or more of the following events occur(s) and is occuring after
notice to Borrower of such non-performance and lapse of the cure period pursuant to §14(B):
i. Borrower fails to pay any portion of the Indebtedness when due or payable.
ii. Borrower fails to perform or observe any of the covenants or agreements contained in the Loan
Agreement or any related document.
iii. Borrower fails to meet target dates.
iv. There is a default or event of default, however defined, under the Deed (if any) or under any other
document or instrument now or hereafter securing the Indebtedness.
v. Borrower shall be generally unable to pay its debts as they become due, or shall make an assignment
for the benefit of creditors; or the Borrower shall apply for or consent to the appointment of any
receiver, trustee or similar officer for it or for all or any substantial part of its property; or such a
receiver, trustee or similar officer shall be appointed without the application or consent of the State,
and such appointment shall continue undischarged for a period of ninety (90) days; or the Borrower
shall institute (by petition, application, answer or otherwise) any bankruptcy, insolvency,
reorganization, readjustment of debt, dissolution, liquidation or similar proceedings under the laws of
any jurisdiction; or any such proceeding shall be instituted against the Borrower; or the Borrower shall
terminate or dissolve.
vi. Any representation of the Borrower made herein or made by the Borrower or any employee of the
Borrower in any submission or document delivered by or on behalf of the Borrower in connection with
the Indebtedness shall prove to be materially untrue.
D. Exhibits and other Attachments
The following are attached hereto and incorporated by reference herein:
i. Exhibit A (Statement of Project)
ii. Exhibit B (DOE Award Terms and Conditions)
iii. Exhibit C (Federal Provisions)
iv. Exhibit D (Promissory Note)
E. Goods
“Goods” means tangible materials acquired, produced, or delivered by Borrower either separately or in
conjunction with the Services Borrower renders under this Loan Agreement.
F. Indebtedness
“Indebtedness” means the indebtedness evidenced by the Note and any other amounts for which Borrower
becomes responsible under this Loan Agreement and any related document.
G. Loan Agreement
“Loan Agreement” means this agreement, its terms and conditions, attached exhibits, documents
incorporated by reference pursuant to the terms of this Loan Agreement, and any future modifying
agreements, exhibits, attachments or references incorporated herein pursuant to Colorado State law, Fiscal
Rules, and State Controller Policies.
H. Loan Funds
Page 4 of 20
“Loan Funds” means available funds payable by the State to Borrower pursuant to this Loan Agreement.
I. Note
“Note” means the fully executed promissory note attached as Exhibit D.
J. Party or Parties
“Party” means the State or Borrower and “Parties” means both the State and Borrower.
K. Project
“Project” means the overall project described in Exhibit A including, without limitation, the Work and the
Services.
L. Program
“Program” means the program specified on the first page of this Loan Agreement that provides the funding
for this Loan Agreement.
M. Review
“Review” means examining Borrower’s Work to ensure that it is adequate, accurate, correct and in
accordance with the criteria established in §8 and Exhibit A.
N. Services
“Services” means the required services to be performed by Borrower pursuant to this Loan Agreement.
O. Subcontractor
“Subcontractor” means third-parties, if any, engaged by Borrower to carry out specific vendor related
services.
P. Subject Property
“Subject Property” means the real property, if any, for which Loan Funds are used to acquire, construct,
rehabilitate, or clear or demolish existing structures.
Q. Work
“Work” means the tasks and activities Borrower is required to perform to fulfill its obligations under this
Loan Agreement.
R. Work Product
“Work Product” means the tangible or intangible results of Borrower’s Work, including, but not limited to,
software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents,
drawings, models, surveys, maps, materials, or work product of any type, including drafts.
5. LOAN AGREEMENT TERM.
A. Loan Agreement Commencement.
Unless otherwise permitted in §2 above, the Parties respective performances under this Loan Agreement
shall commence on the Effective Date. This Loan Agreement shall terminate upon full repayment of the
Note and any other amounts due under this Loan Agreement or as otherwise provided in this Loan
Agreement.
B. Term-Work Completion.
Borrower shall complete all Work as provided in Exhibit A. The State shall not be liable to compensate
Borrower for any Work performed prior to the Effective Date or after completion of construction as
outlined in Exhibit B.
C. Two Month Extension
The State, at its sole discretion upon written notice to Borrower as provided in §16, may unilaterally extend
the term of this Loan Agreement for a period not to exceed two months if the Parties are negotiating a
replacement Loan Agreement (and not merely seeking a term extension) at or near the end of any initial
term or any extension thereof. The provisions of this Loan Agreement in effect when such notice is given,
including, but not limited to prices, rates, and delivery requirements, shall remain in effect during the two
month extension. The two-month extension shall immediately terminate when and if a replacement Loan
Agreement is approved and signed by the Colorado State Controller.
6. STATEMENT OF PROJECT
A. Completion of Project
Borrower shall complete the Project and other Borrower obligations as provided in this Loan Agreement
and Exhibit A.
Page 5 of 20
B. Goods and Services
Borrower shall procure Goods and Services necessary to complete the Work. Such procurement shall not
increase the maximum amount payable by the State.
C. Employees
All persons employed by Borrower shall be considered Borrower’s employee(s) for all purposes hereunder
and shall not be employees of the State for any purpose as a result of this Loan Agreement.
7. PAYMENTS TO BORROWER
The State shall, in accordance with the provisions of this §7, pay Borrower in the following amounts and using
the methods set forth below:
A. Maximum Amount
The maximum amount payable under this Loan Agreement to Borrower by the State is $800,000.00 (Eight
hundred thousand dollars), as determined by the State from available funds. Borrower agrees to provide
any additional funds required for the successful completion of the Work. Payments to Borrower are limited
to the unpaid obligated balance of the Loan Funds as set forth in Exhibit A.
B. Payment
i. Payments
Any payment allowed under this Loan Agreement or in Exhibit A shall comply with State Fiscal
Rules and be made in accordance with the provisions of this Loan Agreement. Borrower shall initiate
a payment of loan proceeds by submitting an invoice to the State in the form and manner set forth and
approved by the State.
ii. Available Funds-Contingency-Termination
The State is prohibited by law from making fiscal commitments beyond the term of the State’s current
fiscal year. Therefore, Borrower’s compensation is contingent upon the continuing availability of State
appropriations as provided in the Colorado Special Provisions, set forth below. If federal funds are
used with this Loan Agreement in whole or in part, the State’s performance hereunder is contingent
upon the continuing availability of such funds. Payments pursuant to this Loan Agreement shall be
made only from available funds encumbered for this Loan Agreement and the State’s liability for such
payments shall be limited to the amount remaining of such encumbered funds. If State or federal funds
are not fully appropriated, or otherwise become unavailable for this Loan Agreement, the State may
immediately terminate this Loan Agreement in whole or in part to the extent of funding reduction
without further liability in accordance with the provisions herein.
iii. Erroneous Payments
At the State’s sole discretion, payments made to Borrower in error for any reason, including, but not
limited to overpayments or improper payments, and unexpended or excess funds received by
Borrower, may be recovered from Borrower by deduction from subsequent payments under this Loan
Agreement or other agreements between the State and Borrower or by other appropriate methods and
collected as a debt due to the State. Such funds shall not be paid to any person or entity other than the
State.
iv. Retroactive Payments
As specified in Exhibit B, the State may, in its discretion, pay Borrower for costs or expenses incurred
or performance by the Borrower prior to the Effective Date, only if (1) the Loan Funds involve federal
funding and (2) federal laws, rules and regulations applicable to the Work provide for such retroactive
payments to the Borrower. Any such retroactive payments shall comply with State Fiscal Rules and
be made in accordance with the provisions of this Loan Agreement or such Exhibit. Borrower shall
initiate any payment request by submitting an invoice to the State in the form and manner set forth and
approved by the State.
C. Use of Funds
Loan Funds shall be used only for eligible costs identified herein and Exhibit A.
D. Borrower’s Repayment Obligation
The Borrower’s obligation to repay the $800,000 loan to the CEO shall be as provided in Exhibit A and
Exhibit D.
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8. REPORTING - NOTIFICATION
Reports, Evaluations, and Reviews required under this §8 shall be in accordance with the procedures of and in
such form as prescribed by the State and in accordance with §19, if applicable.
A. Performance, Progress, Personnel, and Funds
State shall submit a report to the Borrower upon expiration or sooner termination of this Loan Agreement,
containing an Evaluation and Review of Borrower’s performance and the final status of Borrower's
obligations hereunder. In addition, Borrower shall comply with all reporting requirements, if any, set forth
in Exhibit B.
B. Litigation Reporting
Within 10 days after being served with any pleading in a legal action filed with a court or administrative
agency, related to this Loan Agreement or which may affect Borrower’s ability to perform its obligations
hereunder, Borrower shall notify the State of such action and deliver copies of such pleadings to the State’s
principal representative as identified herein. If the State’s principal representative is not then serving, such
notice and copies shall be delivered to the Executive Director of CEO.
C. Noncompliance
Borrower’s failure to provide reports and notify the State in a timely manner in accordance with this §8
may result in the delay of payment of funds and/or termination as provided under this Loan Agreement.
D. Subcontracts
Copies of any and all subcontracts entered into by Borrower to perform its obligations hereunder shall be
submitted to the State or its principal representative. Any and all subcontracts entered into by Borrower
related to its performance hereunder shall comply with all applicable federal and state laws and shall
provide that such subcontracts be governed by the laws of the State of Colorado.
9. BORROWER RECORDS
Borrower shall make, keep, maintain and allow inspection and monitoring of the following records:
A. Maintenance
Borrower shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file
of all records, documents, communications, notes and other written materials, electronic media files, and
communications, pertaining in any manner to the Work or the delivery of Services (including, but not
limited to the operation of programs) or Goods hereunder. Borrower shall maintain such records (the
“Record Retention Period”) until the last to occur of the following:
(i) a period of three years after the date this Loan Agreement is completed or terminated, or final
payment is made hereunder, whichever is later, or
(ii) for such further period as may be necessary to resolve any pending matters, or
(iii) if an audit is occurring, or Borrower has received notice that an audit is pending, then until such
audit has been completed and its findings have been resolved.
B. Inspection
Borrower shall permit the State, the federal government (if Loan Funds include federal funds) and any
other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or
transcribe Borrower's records related to this Loan Agreement during the Record Retention Period for a
period of three years following termination of this Loan Agreement or final payment hereunder, whichever
is later, to assure compliance with the terms hereof or to evaluate Borrower's performance hereunder. The
State reserves the right to inspect the Work at all reasonable times and places during the term of this Loan
Agreement, including any extension. If the Work fails to conform to the requirements of this Loan
Agreement, the State may require Borrower promptly to bring the Work into conformity with Loan
Agreement requirements, at Borrower’s sole expense. If the Work cannot be brought into conformance by
re-performance or other corrective measures, the State may require Borrower to take necessary action to
ensure that future performance conforms to Loan Agreement requirements and exercise the remedies
available under this Loan Agreement, at law or in equity in lieu of or in conjunction with such corrective
measures.
Page 7 of 20
C. Monitoring
i. Borrower. Borrower shall permit the State, the federal government (if Loan Funds include federal
funds), and other governmental agencies having jurisdiction, in their sole discretion, to monitor all
activities conducted by Borrower pursuant to the terms of this Loan Agreement using any reasonable
procedure, including, but not limited to: internal evaluation procedures, examination of program data,
special analyses, on-site checking, formal audit examinations, or any other procedures. All monitoring
controlled by the State shall be performed in a manner that shall not unduly interfere with Borrower’s
performance hereunder.
ii. Subcontractor. Borrower shall monitor its Subcontractors, if any, during the term of this Loan
Agreement. Results of such monitoring shall be documented by Borrower and maintained on file.
D. Final Audit Report
Borrower shall provide a copy of its audit report(s) to CEO as specified in Exhibit A.
10. CONFIDENTIAL INFORMATION-STATE RECORDS
Borrower shall comply with the provisions of this §10 if it becomes privy to confidential information in
connection with its performance hereunder. Confidential information, includes, but is not necessarily limited to,
state records, personnel records, and information concerning individuals.
A. Confidentiality
Borrower shall keep all State records and information confidential at all times and comply with all laws and
regulations concerning confidentiality of information. Any request or demand by a third party for State
records and information in the possession of Borrower shall be immediately forwarded to the State’s
principal representative. Except as otherwise provided in this Loan Agreement, Borrower shall keep all
tenant, patient and offender information confidential.
B. Notification
Borrower shall notify its agent, employees, and assigns who may come into contact with State records and
confidential information that each is subject to the confidentiality requirements set forth herein, and shall
provide each with a written explanation of such requirements before they are permitted to access such
records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by Borrower
or its agents in any way, except as authorized by this Loan Agreement or approved in writing by the State.
Borrower shall provide and maintain a secure environment that ensures confidentiality of all State records
and other confidential information wherever located. Confidential information shall not be retained in any
files or otherwise by Borrower or its agents, except as permitted in this Loan Agreement or approved in
writing by the State.
D. Disclosure-Liability
Disclosure of State records or other confidential information by Borrower for any reason may be cause for
legal action by third parties against Borrower, the State or their respective agents. Borrower shall, to the
extent permitted by law, indemnify, save, and hold harmless the State, its employees and agents, against
any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and
related costs, incurred as a result of any act or omission by Borrower, or its employees, agents, or assignees
pursuant to this §10.
11. CONFLICTS OF INTEREST
Borrower shall not engage in any business or personal activities or practices or maintain any relationships which
conflict in any way with the full performance of Borrower’s obligations hereunder. Borrower acknowledges that
with respect to this Loan Agreement, even the appearance of a conflict of interest is harmful to the State’s
interests. Absent the State’s prior written approval, Borrower shall refrain from any practices, activities or
relationships that reasonably appear to be in conflict with the full performance of Borrower’s obligations to the
State hereunder. If a conflict or appearance exists, or if Borrower is uncertain whether a conflict or the
appearance of a conflict of interest exists, Borrower shall submit to the State a disclosure statement setting forth
the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow
the State’s direction in regard to the apparent conflict constitutes a breach of this Loan Agreement.
Page 8 of 20
12. REPRESENTATIONS AND WARRANTIES
Borrower makes the following specific representations and warranties, each of which was relied on by the State
in entering into this Loan Agreement.
A. Standard and Manner of Performance
Borrower shall perform its obligations hereunder in accordance with the highest standards of care, skill and
diligence in the industry, trades or profession and in the sequence and manner set forth in this Loan
Agreement.
B. Legal Authority – Borrower and Borrower’s Signatory
Borrower warrants that it possesses the legal authority to enter into this Loan Agreement and that it has
taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and
to lawfully authorize its undersigned signatory to execute this Loan Agreement, or any part thereof, and to
bind Borrower to its terms. If requested by the State, Borrower shall provide the State with proof of
Borrower’s authority to enter into this Loan Agreement within 15 days of receiving such request.
C. Licenses, Permits, etc.
Borrower represents and warrants that as of the Effective Date it has, and that at all times during the term
hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other
authorization required by law to perform its obligations hereunder. Borrower warrants that it shall maintain
all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to
properly perform this Loan Agreement, without reimbursement by the State or other adjustment in Loan
Funds. Additionally, all employees and agents of Borrower performing Services under this Loan
Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities.
Borrower, if a foreign corporation or other foreign entity transacting business in the State of Colorado,
further warrants that it currently has obtained and shall maintain any applicable certificate of authority to
transact business in the State of Colorado and has designated a registered agent in Colorado to accept
service of process. Any revocation, withdrawal or non-renewal of licenses, certifications, approvals,
insurance, permits or any such similar requirements necessary for Borrower to properly perform the terms
of this Loan Agreement shall be deemed to be a material breach by Borrower and constitute grounds for
termination of this Loan Agreement.
D. Exclusion, Debarment and/or Suspension
Borrower represents and warrants that Borrower, its employees, or authorized Subcontractors, are not
presently excluded from participation, debarred, suspended, proposed for debarment, declared ineligible,
voluntarily excluded, or otherwise ineligible to participate in a federal payment program by any federal or
State of Colorado department or agency. If Borrower or any of its respective Subcontractors or their
employees or authorized agents, is excluded from participation, or becomes otherwise ineligible to
participate in any such program during the term of this Loan Agreement, Borrower will notify the State in
writing within three (3) days after such event. Upon the occurrence of such event, whether or not such
notice is given to Borrower, the State, in its sole discretion, reserves the right to immediately cease
contracting with Borrower and terminate this Loan Agreement without penalty.
13. INSURANCE
Borrower shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as
specified in this section at all times during the term of this Loan Agreement. All insurance policies required by
this Loan Agreement shall be issued by insurance companies with an AM Best rating of A-VIII or better.
A. Workers’ Compensation
Workers’ compensation insurance as required by State statute, and employer’s liability insurance covering
all Borrower and Subcontractor employees acting within the course and scope of their employment.
B. General Liability
Commercial General Liability Insurance written on an Insurance Services Office occurrence form,
covering premises operations, fire damage, independent contractors, products and completed operations,
blanket contractual liability, personal injury, and advertising liability with minimum limits as follows:
i. $1,000,000 each occurrence;
ii. $1,000,000 general aggregate;
iii. $1,000,000 products and completed operations aggregate; and
Page 9 of 20
iv. $50,000 any one fire.
Notwithstanding the foregoing, the Borrower can be self-insured for all or part of these coverages.
C. Professional Liability Insurance
This section shall | shall not apply to this Loan Agreement.
Borrower and Subcontractors shall maintain in full force and effect a Professional Liability Insurance
Policy in the minimum amount of $1,000,000 per occurrence and $3,000,000 in the aggregate, written on
an occurrence form, which policy provides coverage for its work undertaken pursuant to this Loan
Agreement. If a policy written on an occurrence form is not commercially available, the claims-made
policy shall remain in effect for the duration of this Loan Agreement and for at least two years beyond the
completion and acceptance of the work under this Loan Agreement, or, alternatively, a two year extended
reporting period must be purchased. The Borrower or Subcontractor shall be responsible for all claims,
damages, losses or expenses, including attorney's fees, arising out of or resulting from such party’s
performance of professional services under this Loan Agreement, a subcontract.
D. Crime Insurance
Crime insurance including employee dishonesty coverage with minimum limits as follows:
i. $1,000,000 each occurrence;
ii. $1,000,000 general aggregate.
Nothwithstanding the foregoing, the Borrower can be self-insured for all or part of these coverages.
E. Miscellaneous Insurance Provisions
Certificates of Insurance and/or insurance policies required under this Loan Agreement shall be subject
to the following stipulations and additional requirements:
i. Deductible. Any and all deductibles or self-insured retentions contained in any Insurance policy shall
be assumed by and at the sole risk of the Borrower or its Subcontractors.
ii. In Force. If any of the said policies shall fail at any time to meet the requirements of the Loan
Agreement as to form or substance, or if a company issuing any such policy shall be or at any time
cease to be approved by the Division of Insurance of the State of Colorado, or be or cease to be in
compliance with any stricter requirements of the Loan Agreement, the Borrower and its Subcontractor
shall promptly obtain a new policy.
iii. Public Entities. If Borrower is a "public entity" within the meaning of the Colorado Governmental
Immunity Act, §24-10-101, et seq., C.R.S. (the “GIA”), Borrower shall maintain, in lieu of the liability
insurance requirements stated above, at all times during the term of this Contract such liability
insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA.
If a Subcontractor is a public entity within the meaning of the GIA, Borrower shall ensure that the
Subcontractor maintains at all times during the terms of this Contract, in lieu of the liability insurance
requirements stated above, such liability insurance, by commercial policy or self-insurance, as is
necessary to meet the Subcontractor’s obligations under the GIA.
iv. Additional Insured
The State shall be named as additional insured on all commercial general liability policies required of
Borrower and Subcontractors.
v. Primacy of Coverage
Coverage required of Borrower and Subcontractors shall be primary over any insurance or self-
insurance program carried by Borrower or the State.
vi. Cancellation
The above insurance policies shall include provisions preventing cancellation or non-renewal without
at least 30 days prior notice to the Borrower and Borrower shall forward such notice to the State in
accordance with §16 (Notices and Representatives) within seven days of Borrower’s receipt of such
notice.
vii. Subrogation Waiver
All insurance policies in any way related to this Loan Agreement and secured and maintained by
Borrower or its Subcontractors as required by this Loan Agreement shall include clauses stating that
each carrier shall waive all rights of recovery, under subrogation or otherwise, against Borrower or the
State, its agencies, institutions, organizations, officers, agents, employees, and volunteers.
Page 10 of 20
F. Certificates
Upon request by the State at any other time during the term of this Loan Agreement or subcontract,
Borrower and Subcontractor shall, within 10 days of such request, supply to the State evidence satisfactory
to the State of compliance with the provisions of this §13.
14. BREACH
A. Defined
In addition to any breaches specified in other sections of this Loan Agreement, the failure of either Party to
perform any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner,
constitutes a breach. The institution of proceedings under any bankruptcy, insolvency, reorganization or
similar law, by or against Borrower, or the appointment of a receiver or similar officer for Borrower or any
of its property, which is not vacated or fully stayed within 20 days after the institution or occurrence
thereof, shall also constitute a breach.
B. Notice and Cure Period
In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in
the manner provided in §16. If such breach is not cured within 30 days of receipt of written notice, or if a
cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued
with due diligence, the State may exercise any of the remedies set forth in §15. Notwithstanding anything
to the contrary herein, the State, in its sole discretion, need not provide advance notice or a cure period and
may immediately terminate this Loan Agreement in whole or in part if reasonably necessary to preserve
public safety or to prevent immediate public crisis.
15. REMEDIES
Except for the remedies listed in §15(C) which do not require a notice and cure period for Borrower’s breach
and may be immediately exercised by the State, if Borrower is in breach under any provision of this Loan
Agreement or if the State terminates this Loan Agreement pursuant to §15(B), the State shall have the remedies
listed in this §15 in addition to all other remedies set forth in other sections of this Loan Agreement following
the notice and cure period set forth in §14(B), if applicable. The State may exercise any or all of the remedies
available to it, in its sole discretion, concurrently or consecutively.
A. Termination for Cause and/or Breach
If Borrower fails to perform any of its obligations hereunder with such diligence as is required to ensure its
completion in accordance with the provisions of this Loan Agreement and in a timely manner, the State
may notify Borrower of such non-performance in accordance with the provisions herein. If Borrower
thereafter fails to promptly cure such non-performance within the cure period, the State, at its option, may
terminate this entire Loan Agreement or such part of this Loan Agreement as to which there has been delay
or a failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its
obligations hereunder. Borrower shall continue performance of this Loan Agreement to the extent not
terminated, if any.
i. Obligations and Rights
To the extent specified in any termination notice, Borrower shall not incur further obligations or
render further performance hereunder past the effective date of such notice, and shall terminate
outstanding orders and subgrants/subcontracts with third parties. However, Borrower shall complete
and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may
incur obligations as are necessary to do so within this Loan’s terms. At the sole discretion of the State,
Borrower shall assign to the State all of Borrower's right, title, and interest under such terminated
orders or subgrants/subcontracts. Upon termination, Borrower shall take timely, reasonable and
necessary action to protect and preserve property in the possession of Borrower in which the State has
an interest. All materials owned by the State in the possession of Borrower shall be immediately
returned to the State. All Work Product, at the option of the State, shall be delivered by Borrower to
the State and shall become the State’s property.
ii. Payments
The State shall reimburse Borrower only for accepted performance up to the date of termination. If,
after termination by the State, it is determined that Borrower was not in breach or that Borrower's
action or inaction was excusable, such termination shall be treated as a termination in the public
Page 11 of 20
interest and the rights and obligations of the Parties shall be the same as if this Loan Agreement had
been terminated in the public interest, as described herein.
iii. Damages and Withholding
Notwithstanding any other remedial action by the State, Borrower also shall remain liable to the State
for any damages sustained by the State by virtue of any breach under this Loan Agreement by
Borrower and the State may withhold any payment to Borrower for the purpose of mitigating the
State’s damages, until such time as the exact amount of damages due to the State from Borrower is
determined. The State may withhold any amount that may be due to Borrower as the State deems
necessary to protect the State, including loss as a result of outstanding liens or claims of former lien
holders, or to reimburse the State for the excess costs incurred in procuring similar goods or services.
Borrower shall be liable for excess costs incurred by the State in procuring from third parties
replacement Work, Services or substitute Goods as cover.
B. Early Termination in the Public Interest
The State is entering into this Loan Agreement for the purpose of carrying out the public policy of the State
of Colorado, as determined by its Governor, General Assembly, and/or Courts. If this Loan Agreement
ceases to further the public policy of the State, the State, in its sole discretion, may terminate this Loan
Agreement in whole or in part. Exercise by the State of this right shall not constitute a breach of the State’s
obligations hereunder. This subsection shall not apply to a termination of this Loan Agreement by the State
for cause or breach by Borrower, which shall be governed by §15(A) or as otherwise specifically provided
for herein.
i. Method and Content
The State shall notify Borrower of such termination in accordance with §16. The notice shall specify
the effective date of the termination and whether it affects all or a portion of this Loan Agreement.
ii. Obligations and Rights
Upon receipt of a termination notice, Borrower shall be subject to and comply with the same
obligations and rights set forth in §15(A)(i).
iii. Payments
If this Loan Agreement is terminated by the State pursuant to this §15(B), Borrower shall be paid an
amount which bears the same ratio to the total reimbursement under this Loan Agreement as the
Services satisfactorily performed bear to the total Services covered by this Loan Agreement, less
payments previously made. Additionally, if this Loan Agreement is less than 60% completed, the State
may reimburse Borrower for a portion of actual out-of-pocket expenses (not otherwise reimbursed
under this Loan) incurred by Borrower which are directly attributable to the uncompleted portion of
Borrower’s obligations hereunder; provided that the sum of any and all reimbursement shall not
exceed the maximum amount payable to Borrower hereunder.
C. Untimely Expenditure of Funds
The State will track administrative and reporting requirements as described in Exhibit A. If, at any time
during the term of this Loan Agreement, State determines the Borrower is not meeting its administrative
and reporting requirements, State may elect to take one or more of the following actions, which shall not be
deemed a breach of its obligations hereunder:
i. Technical Assistance. State may elect to conduct on-site monitoring and work closely with Borrower
until the Project is back on schedule. State shall provide prior written notice to Borrower if its elects to
conduct on-site monitoring, which shall be conducted during normal business hours and shall not
unduly disrupt Borrower’s business operations.
ii. Terminate Loan Agreement. The State, at its option, may terminate this entire Loan Agreement as to
which there has been a failure to properly meet its administrative and reporting requirements,
Borrower shall continue performance of this Loan Agreement to the extent not terminated, if any.
a) Method and Content.
The State shall notify Borrower of such termination in accordance with §16. The notice shall
specify the effective date of the termination and whether it affects all or a portion of this Loan
Agreement.
b) Obligations and Rights.
Upon receipt of a termination notice, Borrower shall be subject to and comply with the same
obligations and rights set forth in §15(A)(i).
Page 12 of 20
c) Deobligation of Loan Funds; Repayment by Borrower of Received Funds.
If this Loan Agreement is terminated by the State pursuant to this §15(C)(ii), State shall de-
obligate any remaining unexpended Loan Funds for the Project, as applicable, and shall
provide notice to Borrower that such Project has failed to meet its administrative and reporting
requirements and that as a result, Borrower is required to immediately return to the State any
previously received Loan Funds for the Project.
D. Remedies Not Involving Termination
The State, at its sole discretion, may exercise one or more of the following remedies in addition to other
remedies available to it:
i. Suspend Performance
Suspend Borrower’s performance with respect to all or any portion of this Loan Agreement pending
necessary corrective action as specified by the State without entitling Borrower to an adjustment in
price/cost or performance schedule. Borrower shall promptly cease performance and incurring costs in
accordance with the State’s directive and the State shall not be liable for costs incurred by Borrower
after the suspension of performance under this provision.
ii. Withhold Payment
Withhold payment to Borrower until corrections in Borrower’s performance are satisfactorily made
and completed.
iii. Deny Payment
Deny payment for those obligations not performed, that due to Borrower’s actions or inactions, cannot
be performed or, if performed, would be of no value to the State; provided, that any denial of payment
shall be reasonably related to the value to the State of the obligations not performed.
iv. Removal
Demand removal of any of Borrower’s employees or agents from the Project whom the State deems
incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued
relation to this Loan Agreement is deemed to be contrary to the public interest or not in the State’s
best interest.
v. Intellectual Property
If Borrower infringes on a patent, copyright, trademark, trade secret or other intellectual property right
while performing its obligations under this Loan Agreement, Borrower shall, at the State’s option (a)
obtain for the State or Borrower the right to use such products and services; (b) replace any Goods,
Services, or other product involved with non-infringing products or modify them so that they become
non-infringing; or, (c) if neither of the foregoing alternatives are reasonably available, remove any
infringing Goods, Services, or products and refund the price paid therefore to the State.
16. NOTICES and REPRESENTATIVES
Each individual identified below is the principal representative of the designating Party. All notices required to
be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such
Party’s principal representative at the address set forth below. In addition to, but not in lieu of a hard-copy
notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either Party may from
time to time designate by written notice substitute addresses or persons to whom such notices shall be sent.
Unless otherwise provided herein, all notices shall be effective upon receipt.
A. State:
Will Toor, Executive Director
Colorado Energy Office
1580 Logan Street, Suite 100
Denver, Colorado 80203
Email: will.toor@state.co.us
B. Borrower:
Page 13 of 20
Darin Atteberry
City Manager
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80521
Email: datteberry@fcgov.com
17. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE
This section shall | shall not apply to this Loan Agreement.
Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models,
materials, or Work Product of any type, including drafts, prepared by Borrower in the performance of its
obligations under this Loan Agreement shall be the exclusive property of the State and, all Work Product shall
be delivered to the State by Borrower upon completion or termination hereof. The State’s exclusive rights in
such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare
derivative works. Borrower shall not use, willingly allow, cause or permit such Work Product to be used for any
purpose other than the performance of Borrower's obligations hereunder without the prior written consent of the
State.
18. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to Borrower under this Loan Agreement is greater than $100,000, either on the
Effective Date or at anytime thereafter, this §19 applies.
Borrower agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24-102-206, §24-103-
601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor performance on state Loans and
inclusion of Loan Agreement performance information in a statewide Contract Management System.
Borrower’s performance may be subject to Evaluation and Review in accordance with the terms and conditions
of this Loan Agreement, State law, including CRS §24-103.5-101, and State Fiscal Rules, Policies and
Guidance. Evaluation and Review of Borrower’s performance shall be part of the normal Loan Agreement
administration process and Borrower’s performance will be systematically recorded in the statewide Contract
Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality, cost and
timeliness. Collection of information relevant to the performance of Borrower’s obligations under this Loan
Agreement shall be determined by the specific requirements of such obligations and shall include factors
tailored to match the requirements of Borrower’s obligations. Such performance information shall be entered
into the statewide Contract Management System at intervals established herein and a final Evaluation, Review
and Rating shall be rendered within 30 days of the end of the Loan Agreement term. Borrower shall be notified
following each performance Evaluation and Review, and shall address or correct any identified problem in a
timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that Borrower demonstrated a gross failure to
meet the performance measures established hereunder, the Executive Director of the Colorado Department of
Personnel and Administration (Executive Director), upon request by the Colorado Energy Office, and showing
of good cause, may debar Borrower and prohibit Borrower from receiving future grants and bidding on future
contracts. Borrower may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements,
which may result in either removal or correction of the evaluation (CRS §24-105-102(6)), or (b) under CRS
§24-105-102(6), exercising the debarment protest and appeal rights provided in CRS §§24-109-106, 107, 201 or
202, which may result in the reversal of the debarment and reinstatement of Borrower, by the Executive
Director, upon a showing of good cause.
19. RESTRICTION ON PUBLIC BENEFITS
This section shall | shall not apply to this Loan Agreement.
Borrower must confirm that any individual natural person is lawfully present in the United States pursuant to 8
U.S.C. §§1101-1646 when such individual applies for public benefits provided under this Loan Agreement by
requiring the applicant to execute a residency declaration as satisfactory to the State.
Page 14 of 20
20. GENERAL PROVISIONS
A. Assignment and Subgrants
Borrower’s rights and obligations hereunder are personal and may not be transferred, assigned or
subgranted without the prior, written consent of the State. Any attempt at assignment, transfer, or
subgranting without such consent shall be void. All assignments, subgrants, or subcontracts approved by
Borrower or the State are subject to all of the provisions hereof. Borrower shall be solely responsible for all
aspects of subgranting and subcontracting arrangements and performance.
B. Binding Effect
Except as otherwise provided in §21(A), all provisions herein contained, including the benefits and
burdens, shall extend to and be binding upon the Parties’ respective heirs, legal representatives, successors,
and assigns.
C. Captions
The captions and headings in this Loan Agreement are for convenience of reference only, and shall not be
used to interpret, define, or limit its provisions.
D. Counterparts
This Loan Agreement may be executed in multiple identical original counterparts, all of which shall
constitute one agreement.
E. Entire Understanding
This Loan Agreement represents the complete integration of all understandings between the Parties and all
prior representations and understandings, oral or written, are merged herein. Prior or contemporaneous
additions, deletions, or other changes hereto shall not have any force or effect whatsoever, unless embodied
herein.
F. Indemnification-General
Borrower shall, to the extent permitted by law, indemnify, save, and hold harmless the State, its employees
and agents, against any and all claims, damages, liability and court awards including costs, expenses, and
attorney fees and related costs, incurred as a result of any act or omission by Borrower, or its employees,
agents, or assignees pursuant to the terms of this Loan Agreement; however, the provisions hereof shall not
be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits,
protection, or other provisions, of the GIA, or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., as
applicable, as now or hereafter amended.
G. Applicable Law
At all times during the performance of this Loan Agreement, Borrower shall comply with all applicable
Federal and State laws and their implementing regulations, currently in existence and as hereafter amended,
Applicable Laws. Borrower also shall require compliance with such laws and regulations by subgrantees
under subgrants permitted by this Loan Agreement.
H. RESERVED
I. Modification
i. By the Parties
Except as otherwise provided in this Loan Agreement, any modification to this Loan Agreement shall
only be effective if agreed to in a written amendment by both Parties.
ii. By Operation of Law
This Loan Agreement is subject to such modifications as may be required by changes in Federal or
Colorado State law, or their implementing regulations. Any such required modification automatically
shall be incorporated into and be part of this Loan Agreement on the effective date of such change, as
if fully set forth herein.
J. Order of Precedence
The provisions of this Loan Agreement shall govern the relationship of the Parties. In the event of conflicts
or inconsistencies between this Loan Agreement and its exhibits and attachments including, but not limited
to, those provided by Borrower, such conflicts or inconsistencies shall be resolved by reference to the
documents in the following order of priority:
i. Exhibit B (DOE Award Terms and Conditions)
Page 15 of 20
ii. Exhibit C (Federal Provisions)
iii. Colorado Special Provisions.
iv. The provisions of the main body of this Loan Agreement
v. Exhibit A (Statement of Project)
vi. Exhibit D (Promissory Note)
vii. Any document incorporated by reference which is not included in any item listed in (i) through (vi)
above
K. Severability
Provided this Loan Agreement can be executed and performance of the obligations of the Parties
accomplished within its intent, the provisions hereof are severable and any provision that is declared
invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof.
L. Survival of Certain Loan Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Loan Agreement requiring continued
performance, compliance, or effect after termination hereof, shall survive such termination and shall be
enforceable by the State if Borrower fails to perform or comply as required.
M. Taxes
The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all
State and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such exemptions
apply when materials are purchased or services rendered to benefit the State; provided however, that certain
political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the
product or service is provided to the State. Borrower shall be solely liable for paying such taxes as the State
is prohibited from paying for or reimbursing Borrower for them.
N. Third Party Beneficiaries
Enforcement of this Loan Agreement and all rights and obligations hereunder are reserved solely to the
Parties, and not to any third party. Any services or benefits which third parties receive as a result of this
Loan Agreement are incidental to the Loan Agreement, and do not create any rights for such third parties.
O. Waiver
Waiver of any breach of a term, provision, or requirement of this Loan Agreement, or any right or remedy
hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of
any subsequent breach of such term, provision or requirement, or of any other term, provision, or
requirement.
P. CORA Disclosure
To the extent not prohibited by federal law, this Loan Agreement and the performance measures and
standards under CRS §24-103.5-101, if any, are subject to public release through the Colorado Open
Records Act, CRS §24-72-101, et seq.
S. Safeguarding PII
“PII” means personally identifiable information including, without limitation, any information maintained
by the State about an individual that can be used to distinguish or trace an individual‘s identity, such as name,
social security number, date and place of birth, mother‘s maiden name, or biometric records; and any other
information that is linked or linkable to an individual, such as medical, educational, financial, and
employment information. PII includes, but is not limited to, all information defined as personally identifiable
information in §24-72-501, C.R.S. If Borrower or any of its Subcontractors will or may receive PII under
this Loan Agreement, Borrower shall provide for the security of such PII, in a manner and form acceptable
to the State, including, without limitation, State non-disclosure requirements, use of appropriate technology,
security practices, computer access security, data access security, data storage encryption, data transmission
encryption, security inspections, and audits. Borrower shall be a “Third-Party Service Provider” as defined
in §24-73-103(1)(i), C.R.S. and shall maintain security procedures and practices consistent with §§24-73-
101 et seq., C.R.S.
T. Federal Provisions
Grantee shall comply with all applicable requirements of Exhibit C at all times during the term of this Grant.
Page 16 of 20
21. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all contracts except where noted in italics.
A CONTROLLER'S APPROVAL. §24-30-202(1) C.R.S. This Loan Agreement shall not be valid
until it has been approved by the Colorado State Controller or designee.
B. FUND AVAILABILITY. §24-30-202(5.5) C.R.S. Financial obligations of the State payable
after the current fiscal year are contingent upon funds for that purpose being appropriated,
budgeted, and otherwise made available.
C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property
arising from the negligence of the State, its departments, boards, commissions committees,
bureaus, offices, employees and officials shall be controlled and limited by the provisions of
the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort
Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management
statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Loan Agreement shall be
construed or interpreted as a waiver, express or implied, of any of the immunities, rights,
benefits, protections, or other provisions, contained in these statutes.
D. INDEPENDENT CONTRACTOR. Borrower shall perform its duties hereunder as an
independent contractor and not as an employee. Neither Borrower nor any agent or employee
of Borrower shall be deemed to be an agent or employee of the State. Borrower shall not have
authorization, express or implied, to bind the State to any agreement, liability, or
understanding, except as expressly set forth herein. Borrower and its employees and agents
are not entitled to unemployment insurance or workers compensation benefits through
the State and the State shall not pay for or otherwise provide such coverage for Borrower
or any of its agents or employees. Borrower shall pay when due all applicable
employment taxes and income taxes and local head taxes incurred pursuant to this Loan
Agreement. Borrower shall (a) provide and keep in force workers' compensation and
unemployment compensation insurance in the amounts required by law, (b) provide proof
thereof when requested by the State, and (c) be solely responsible for its acts and those of
its employees and agents.
E. COMPLIANCE WITH LAW. Borrower shall comply with all applicable federal and State
laws, rules, and regulations in effect or hereafter established, including, without limitation, laws
applicable to discrimination and unfair employment practices.
F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations
issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of
this Loan Agreement. Any provision included or incorporated herein by reference which
conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related
to this Loan Agreement shall be filed and proceedings held in the State of Colorado and
exclusive venue shall be in the City and County of Denver.
G. PROHIBITED TERMS. Any term included in this Loan Agreement that requires the State to
indemnify or hold Borrower harmless; requires the State to agree to binding arbitration; limits
Borrower’s liability for damages resulting from death, bodily injury, or damage to tangible
property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this
Loan Agreement shall be construed as a waiver of any provision of §24-106-109 C.R.S. Any
term included in this Loan Agreement that limits Borrower’s liability that is not void under this
section shall apply only in excess of any insurance to be maintained under this Loan
Page 17 of 20
Agreement, and no insurance policy shall be interpreted as being subject to any limitations of
liability of this Loan Agreement.
H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Loan
Agreement shall not be used for the acquisition, operation, or maintenance of computer
software in violation of federal copyright laws or applicable licensing restrictions. Borrower
hereby certifies and warrants that, during the term of this Loan Agreement and any extensions,
Borrower has and shall maintain in place appropriate systems and controls to prevent such
improper use of public funds. If the State determines that Borrower is in violation of this
provision, the State may exercise any remedy available at law or in equity or under this Loan
Agreement including, without limitation, immediate termination of this Loan Agreement and
any remedy consistent with federal copyright laws or applicable licensing restrictions.
I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-
507 C.R.S. The signatories aver that to their knowledge, no employee of the State has any
personal or beneficial interest whatsoever in the service or property described in this Loan
Agreement. Borrower has no interest and shall not acquire any interest, direct or indirect, that
would conflict in any manner or degree with the performance of Borrower’s services and
Borrower shall not employ any person having such known interests.
J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202 (1) and 24-30-202.4
C.R.S. [Not Applicable to intergovernmental Loan Agreements] The State Controller may
withhold payment under the State’s vendor offset intercept system for debts owed to State
Agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of
tax, accrued interest, or other charges specified in §39-21-101, et seq. C.R.S.; (c) unpaid loans
due to the Student Loan Division of the Department of Higher Education; (d) amounts required
to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the
State as a result of final agency determination or judicial action. The State may also recover, at
the State’s discretion, payments made to Borrower in error for any reason, including, but not
limited to, overpayments or improper payments, and unexpended or excess funds received by
Borrower by deduction from subsequent payments under this Loan Agreement, deduction from
any payment due under any other contracts, grants or Loan Agreements between the State and
Borrower, or by any other appropriate method for collecting debts owed to the State.
K. PUBLIC CONTRACTS FOR SERVICES. §8-17.5-101 C.R.S. [Not Applicable to Loan
Agreements relating to the offer, issuance, or sale of securities, investment advisory services or
fund management services, sponsored projects, intergovernmental Loan Agreements, or
information technology services or products and services] Borrower certifies, warrants, and
agrees that it does not knowingly employ or contract with an illegal alien who will perform
work under this Loan Agreement and will confirm the employment eligibility of all employees
who are newly hired for employment in the United States to perform work under this Loan
Agreement, through participation in the E-Verify Program or the Department program
established pursuant to §8-17.5-102(5)(c), C.R.S. Borrower shall not knowingly employ or
contract with an illegal alien to perform work under this Loan Agreement or enter into a
contract with a subcontractor that fails to certify to Borrower that the subcontractor shall not
knowingly employ or contract with an illegal alien to perform work under this Loan
Agreement. Borrower (a) shall not use E-Verify Program or Department program procedures to
undertake pre-employment screening of job applicants while this Loan Agreement is being
performed, (b) shall notify the subcontractor and the contracting State Agency within three
days if Borrower has actual knowledge that a subcontractor is employing or contracting with an
illegal alien for work under this Loan Agreement, (c) shall terminate the subcontract if a
subcontractor does not stop employing or contracting with the illegal alien within three days of
Page 18 of 20
receiving the notice, and (d) shall comply with reasonable requests made in the course of an
investigation, undertaken pursuant to §8-17.5-102(5) C.R.S., by the Colorado Department of
Labor and Employment. If Borrower participates in the Department program, Borrower shall
deliver to the contracting State Agency, Institution of Higher Education or political subdivision
a written, notarized affirmation, affirming that Borrower has examined the legal work status of
such employee, and shall comply with all of the other requirements of the Department program.
If Borrower fails to comply with any requirement of this provision or §8-17.5-101 et seq.,
C.R.S., the contracting State Agency, Institution of Higher Education or political subdivision
may terminate this Loan Agreement for breach and, if so terminated, Borrower shall be liable
for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §24-76.5-101 C.R.S. Borrower, if a
natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of
perjury that Borrower (a) is a citizen or otherwise lawfully present in the United States
pursuant to federal law, (b) shall comply with the provisions of §24-76.5-101 et seq. C.R.S.,
and (c) has produced one form of identification required by §24-76.5-103 C.R.S. prior to the
effective date of this Loan Agreement.
Page 19 of 20
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 20 of 20
SIGNATURE PAGE Contract Routing Number ----------
THE PARTIES HERETO HAVE EXECUTED THIS LOAN
* Persons signing for Borrower hereby swear and affirm that they are authorized to act on Borrower’s behalf and
acknowledge that the State is relying on their representations to that effect.
BORROWER
City of Fort Collins, Colorado, Electric Utility Enterprise
By: _____________________________________________
Wade Troxell
Title: President
Official Title of Authorized Individual
Attest:
______________________________________________
Delynn Coldiron, Secretary
Date: __________________________________
STATE OF COLORADO
Jared S. Polis, GOVERNOR
COLORADO ENERGY OFFICE
By:__________________________________________
Will Toor, Executive Director
Date: __________________________________
ALL LOANS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State loans. This Loan Agreement is not valid until
signed and dated below by the State Controller or delegate. Borrower is not authorized to begin performance until
such time. If Borrower begins performing prior thereto, the State of Colorado is not obligated to pay Borrower for
such performance or for any goods and/or services provided hereunder.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By:___________________________________________
Date:_____________________
Exhibit A Page 1 of 6
EXHIBIT A, STATEMENT OF PROJECT
I. Project Description and Objective:
The Colorado Energy Office (“CEO”) is providing an $800,000.00 loan to the City of Fort Collins,
Colorado, Electric Utility Enterprise (“Enterprise”) to capitalize an on-bill financing program (“Epic
Loan”), which enables utility customers to borrow funds to install energy efficiency and renewable
energy improvements on their residential properties and pay it back through a charge on their monthly
utility bill. The program removes the upfront cost barrier for customers to pursue energy upgrades. The
objective is for the Enterprise to scale the program and to provide more loans to a greater percentage of
customers, particularly low- to moderate-income customers so they can make their homes more energy
efficient and reduce their energy burden.
II. Borrower’s Obligations
The Enterprise shall be responsible for administering and marketing the Epic Loan, maintaining properly
segregated accounting records, and tracking each project and ensuring compliance with federal
requirements including the National Environmental Policy Act (NEPA) and the National Historic
Preservation Act. The Enterprise will also be responsible for providing reporting as outlined below in
Section VI.
Borrower is also responsible for segregating, tracking and reporting program income as defined in 2
CFR § 200.80.
The Enterprise’s payment obligations under the Note shall be payable and collectable solely from the
Enterprise’s “Net Pledged Revenues” (as defined below) which revenues are hereby so pledged, but this
pledge is in all respects subordinate to the pledge and lien thereon of the “Senior Debt” (as defined
below) at any time outstanding but on a pari passu basis with the Parity Debt (as defined below). The
CEO may not look to any general or other fund of the Enterprise or of the City of Fort Collins (the
“City”) for the payment of such obligations owed under the Note. Notwithstanding the foregoing, the
Enterprise may issue hereafter, without the CEO’s prior written consent, other debt secured with a lien
on the Net Pledged Revenues that is on parity with or subordinate to the lien in this Agreement. However,
the Enterprise may not issue future debt with a lien on the Net Pledged Revenues that is senior to the
lien in this Agreement without the CEO’s prior written consent unless such debt is issued pursuant to the
provisions of the Senior Debt.
UNet Pledged RevenuesU means the “Gross Pledged Revenues” (as defined below) remaining after the
payment of the “Operation and Maintenance Expenses” (as defined below) of the “System” (as defined
below).
UGross Pledged RevenuesU means all rates, fees, charges and revenues derived directly or indirectly by the
City from the operation and use of and otherwise pertaining to the System, or any part thereof, whether
resulting from capital improvements or otherwise, and includes all rates, fees, charges and revenues
received by the City from the System, including without limitation:
Exhibit A Page 2 of 6
(a) All rates, fees and other charges for the use of the System, or for any service
rendered by the City or the Enterprise in the operation thereof, directly or indirectly, the
availability of any such service, or the sale or other disposal of any commodities derived
therefrom, including, without limitation, connection charges, but:
(i) Excluding any moneys borrowed and used for the acquisition of capital
improvements or for the refunding of securities, and all income or other gain from any
investment of such borrowed moneys; and
(ii) Excluding any moneys received as grants, appropriations or gifts from the
Federal Government, the State, or other sources, the use of which is limited by the grantor
or donor to the construction of capital improvements, except to the extent any such
moneys shall be received as payments for the use of the System, services rendered
thereby, the availability of any such service, or the disposal of any commodities
therefrom; and
(b) All income or other gain from any investment of Gross Pledged Revenues
(including without limitation the income or gain from any investment of all Net Pledged
Revenues, but excluding borrowed moneys and all income or other gain thereon in any project
fund, construction fund, reserve fund, or any escrow fund for any Senior Debt payable from Net
Pledged Revenues heretofore or hereafter issued and excluding any unrealized gains or losses on
any investment of Gross Pledged Revenues); and
(c) All income and revenues derived from the operation of any other utility or other
income-producing facilities added to the System and to which the pledge and lien herein provided
are lawfully extended by the Board or by the qualified electors of the City; and
(d) All revenues which the Enterprise receives from the repayment of Epic Loans.
UOperation and Maintenance ExpensesU means such reasonable and necessary current expenses of the
City, paid or accrued, of operating, maintaining and repairing the System including, except as limited by
contract or otherwise limited by law, without limiting the generality of the foregoing:
(a) All payments made to the Platte River Power Authority, a wholesale electricity
provider that acquires, constructs and operates generation capacity for the City, or its successor
in function;
(b) Engineering, auditing, legal and other overhead expenses directly related and
reasonably allocable to the administration, operation and maintenance of the System;
(c) Insurance and surety bond premiums appertaining to the System;
(d) The reasonable charges of any paying agent, registrar, transfer agent, depository
or escrow agent appertaining to the System or any bonds or other securities issued therefor;
(e) Annual payments to pension, retirement, health and hospitalization funds
appertaining to the System;
Exhibit A Page 3 of 6
(f) Any taxes, assessments, franchise fees or other charges or payments in lieu of the
foregoing;
(g) Ordinary and current rentals of equipment or other property;
(h) Contractual services, professional services, salaries, administrative expenses, and
costs of labor appertaining to the System and the cost of materials and supplies used for current
operation of the System;
(i) The costs incurred in the billing and collection of all or any part of the Gross
Pledged Revenues; and
(j) Any costs of utility services furnished to the System by the City or otherwise.
Operation and Maintenance Expenses does not include:
(k) Any allowance for depreciation;
(l) Any costs of reconstruction, improvement, extensions, or betterments, including
without limitation any costs of capital improvements;
(m) Any accumulation of reserves for capital replacements;
(n) Any reserves for operation, maintenance, or repair of the System;
(o) Any allowance for the redemption of any bonds or other securities payable from
the Net Pledged Revenues or the payment of any interest thereon;
(p) Any liabilities incurred in the acquisition of any properties comprising the
System; and
(q) Any other ground of legal liability not based on contract.
Parity Debt means any obligations of the Enterprise payable from and with a lien on the Net Pledged
Revenues on a parity basis with the Enterprise’s loan agreement with U.S. Bank Association approved
in Enterprise Ordinance No. 007, as amended in Enterprise Ordinance No. 008, and its loan agreement
with Vectra Bank Colorado approved in Enterprise Ordinance No. 009.
USenior DebtU means the “City of Fort Collins, Colorado, Electric Utility Enterprise, Tax-Exempt Revenue
Bonds, Series 2018A” and its “City of Fort Collins, Colorado, Electric Utility Enterprise, Taxable
Revenue Bonds, Series 2018B,” both approved in Enterprise Ordinance No. 003.
USystemU means the City’s electric distribution system that furnishes electricity and related services and
Uexcludes Uthe City’s broadband system using fiber-optic technology. The System consists of all
properties, real, personal, mixed and otherwise, now owned or hereafter acquired by the City, through
purchase, construction and otherwise, and used in connection with such system of the City, and in any
way pertaining thereto and consisting of all properties, real, personal, mixed or otherwise, now owned
or hereafter acquired by the City, whether situated within or without the City boundaries, used in
connection with such system of the City, and in any way appertaining thereto, including all present or
Exhibit A Page 4 of 6
future improvements, extensions, enlargements, betterments, replacements or additions thereof or
thereto and administrative facilities.
III. CEO Responsibilities
The CEO will be responsible for transferring the $800,000.00 from its DOE State Energy Program (SEP)
ARRA Repurposed Funds to Enterprise. CEO will work with Enterprise to ensure it establishes proper
accounting and project tracking procedures to comply with federal requirements.
IV. Payment
Upon execution of this Agreement, CEO shall advance funds to Enterprise in the amount of $800,000.00.
CEO has received an advance payment waiver pursuant to State of Colorado Fiscal Rule 2-2,
Commitment Vouchers, Section 8.2, which allows waivers in the event that “advance payment is an
industry standard and/or provides a benefit to the State at least equal to the cost and risk of the advance
payment.”
V. Administrative Requirements
A. Accounting
1) At all times from the Effective Date of this Agreement until completion of the term,
Enterprise shall maintain properly segregated books of State Funds, and other funds
associated with the Work.
2) All receipts and expenditures associated with said Work shall be documented in a detailed
and specific manner, and shall accord with the Work set forth herein.
B. Monitoring
1) The State shall monitor this Work on an as-needed basis. The State may choose to audit the
business activities performed under this loan. Borrower shall maintain a complete file of all
records, documents, communications, notes, and other written materials or electronic media,
files or communications, which pertain in any manner to the operation of activities
undertaken pursuant to an executed loan. Such books and records shall contain
documentation of the participant’s pertinent activity under this loan in a form consistent with
good accounting practice.
VI. Reporting
Unless otherwise provided in this Exhibit or the exhibits hereto, Enterprise shall be responsible for the
following reporting requirements. Required reports shall be submitted to the CEO in accordance with
the timelines specified below. The preparation of reports in a timely manner shall be the responsibility
of the Enterprise and failure to comply may result in the delay of payment of funds and/or termination
of this Loan Agreement.
A. Monthly Loan Report
Enterprise shall submit, on a monthly basis by the 7P
th
P business day of the month, a loan report that
lists the total number of loans made to utility customers for energy improvements during the prior
month. The report shall include each loan’s unique identifier, the closing date, the loan amount, a
Exhibit A Page 5 of 6
brief project description noting the approved energy measures that were installed, the interest rate,
and the loan term. The report shall also include the borrower’s annual income, FICO score, and debt-
to-income ratio but exclude any personally identifiable information. The format of the report shall be
agreed upon by both Parties.
B. Quarterly Financial Reports
Enterprise shall submit, on a quarterly basis, by the 15P
th
P business day of the month following the
ending of each quarter based on State Fiscal Year (July 1 through June 30):
1) A loan report that records each loan and the original loan amount, the principal and interest
payments made, the loan balance and the term. The report shall also note any late payments
or defaults.
2) A program report that details the program income generated (including interest, fees, or other
sources of income) and administrative expenses paid from program income. Program income
may be used as additional capital or for administrative expenses of the Epic Loan program and
shall be documented by the Enterprise. At the end of this Loan Agreement, any unexpended
program income is due and payable to CEO.
The format of the reports shall be agreed upon by both Parties.
C. Annual Reports
1) UNarrative progress reportU. Enterprise shall submit a written narrative progress report by July
30P
th
P of each year that includes a description of the work completed during the State’s Fiscal
Year. The narrative shall analyze the performance of the on-bill financing program under this
Loan and note whether the program met its annual and cumulative goals with regards to the
number of loans and the target population reached. It shall also summarize the program
activities conducted in the reporting period (such as marketing and outreach strategies), the
results and energy savings achieved, highlight any significant outcomes or success stories,
note any recurring or unanticipated challenges encountered, and actions taken to overcome
these barriers or to address underperformance of the program, if applicable.
2) UFederal requirements complianceU. Enterprise shall maintain on an ongoing basis, a
spreadsheet based on the template developed by CEO, including property address and
estimated energy savings, to document that each project financed under this Loan Agreement
complies with the flowdown requirements for State Energy Program ARRA Repurposed
funds, specifically NEPA and the National Historic Preservation Act. Enterprise shall submit
the spreadsheet to CEO each year by September 10P
th
P for the period covering September 1P
st
P
to August 30P
th
P.
VII. TESTING AND ACCEPTANCE CRITERIA
Exhibit A Page 6 of 6
The CEO shall evaluate this Project through review of Enterprise submitted Project reports. Reports
considered not complete will be returned to Enterprise within one week. CEO Program Manager is
responsible for reviewing each deliverable and determining if it is acceptable. The deliverables will be
deemed acceptable if they are received on time and in the CEO and Enterprise agreed upon format. If a
deliverable is not acceptable, CEO Program Manager will provide and document written instructions to
Enterprise outlining the changes that need to be made to the deliverable and the timeline in which those
changes need to be made. Enterprise will then be responsible for making any required changes in the
timeframe outlined by CEO.
Exhibit B Page 1 of 10
EXHIBIT B, DOE AWARD TERMS AND CONDITIONS
EERE 350: Special Terms and Conditions
The Subrecipient agrees to apply the terms and conditions of this Department of Energy (DOE) Award,
as applicable, including the Intellectual Property Provisions, (and subcontractors, as appropriate) as
required by 2 CFR 200.101 and to require their strict compliance therewith. Further, the Subrecipient
must apply the Award terms as required by 2 CFR 200.326 to all subrecipients (and subcontractors, as
appropriate) and to require their strict compliance therewith.
The following are incorporated into this Award by reference:
a) Applicable program regulations, including 10 CFR Part 420 – State Energy Program at
38TUhttp://eCFR.govU38T.
b) DOE Assistance Regulations, 2 CFR part 200 as amended by 2 CFR part 910 at
38Thttp://www.eCFR.gov38T.
c) National Policy Assurances to be incorporated as Award Terms in effect on date of award
at 38Thttp://www.nsf.gov/awards/managing/rtc.jsp38T.
A. COMPLIANCE WITH FEDERAL, STATE, AND MUNICIPAL LAW
Subrecipient is required to comply with applicable Federal, state, and local laws and regulations for all
work performed under this Award. Subrecipent is required to obtain all necessary Federal, state, and
local permits, authorizations, and approvals for all work performed under this Award.
B. INCONSISTENCY WITH FEDERAL LAW
Any apparent inconsistency between Federal statutes and regulations and the terms and conditions
contained in this award must be referred to the CEO for guidance.
C. FEDERAL STEWARDSHIP
The Office of Energy Efficiency and Renewable Energy (“EERE”) will exercise Federal stewardship
in overseeing the project activities performed under this award. Stewardship activities include, but are
not limited to, conducting site visits; reviewing performance and financial reports; providing technical
assistance and/or temporary intervention in unusual circumstances to correct deficiencies which
develop during the project; assuring compliance with terms and conditions; and reviewing technical
performance after project completion to ensure that the award objectives have been accomplished.
D. SITE VISITS
EERE's authorized representatives have the right to make site visits at reasonable times to review
project accomplishments and management control systems and to provide technical assistance, if
required. Subrecipient must provide, reasonable access to facilities, office space, resources, and
assistance for the safety and convenience of the government representatives in the performance of their
duties. All site visits and evaluations must be performed in a manner that does not unduly interfere
with or delay the work.
E. NEPA REQUIRMENTS
a. Authorization.
Exhibit B Page 2 of 10
CEO must comply with the National Environmental Policy Act (NEPA) prior to authorizing the use of
Federal funds. EERE has determined that activities that fall under the bounded categories are
categorically excluded and require no further NEPA review, absent extraordinary circumstances,
cumulative impacts, or connected actions that may lead to significant impacts on the environment, or
any inconsistency with “integral elements” (as contained in 10 C.F.R. Part 1021, Appendix B) as they
relate to a particular project. Subrecipient is thereby authorized to use current Program Year Federal
funds for project activities that fall within the bounded categories subject to the conditions listed in
paragraph b. “Conditions”.
b. Conditions.
1) The activities must comply with the restrictions set forth for each of the bounded categories;
2) As set forth in Term 8 “Historic Preservation”, the Subrecipient must comply with Section 106 of
the National Historic Preservation Act (NHPA) consistent with DOE's 2009 letter of delegation of
authority regarding the NHPA;
3) This authorization does not include activities where the following elements exist: extraordinary
circumstances, cumulative impacts, or connected actions that may lead to significant impacts on
the environment, or any inconsistency with the "integral elements" (as contained in 10 C.F.R. Part
1021, Appendix B) as they relate to a particular project;
4) Subrecipient must identify and promptly notify DOE of extraordinary circumstances, cumulative
impacts, or connected actions that may lead to significant impacts on the environment, or any
inconsistency with the “integral elements” (as contained in 10 C.F.R. Part 1021, Appendix B) as
they relate to a particular project; and
5) Subrecipient must document in writing its review of projects to determine there are no
extraordinary circumstances, cumulative impacts, or connected actions that may lead to significant
impacts on the environment, or any inconsistency with the “integral elements” (as contained in 10
C.F.R. Part 1021, Appendix B) as they relate to a particular project and compliance with Section
106 of the National Historic Preservation Act (NHPA), as applicable;
6) Subrecipient must document that project activities do not occur in a floodplain or wetland. If the
project activities do occur in a floodplain or wetland, (except those under Bounded Categories 1-7g
as listed in the Program Year 2018 SEP Formula Guidance), those project activities are subject to
additional NEPA review and approval by DOE.
c. Modifications/Activities Outside the Bounded Categories.
If the Subrecipient later intends to undertake activities/projects that do not fall within the bounded
categories, those activities/projects are subject to additional NEPA review by DOE and are not
authorized for Federal funding unless and until the contracting officer provides written authorization
on those additions or modifications. Should the Subrecipient elect to undertake activities/projects prior
to written authorization from the contracting officer, the Subrecipient does so at risk of not receiving
Federal funding for those activities/projects, and such costs may not be recognized as allowable cost
match.
E. HISTORIC PRESERVATION
Prior to the expenditure of Federal funds to alter any structure or site, the Subrecipient is required to
comply with the requirements of Section 106 of the National Historic Preservation Act (NHPA),
consistent with DOE's 2009 letter of delegation of authority regarding the NHPA. Section 106 applies
Exhibit B Page 3 of 10
to historic properties that are listed in or eligible for listing in the National Register of Historic Places.
In order to fulfill the requirements of Section 106, the subrecipient must contact the State Historic
Preservation Officer (SHPO), and, if applicable, the Tribal Historic Preservation Officer (THPO), to
coordinate the Section 106 review outlined in 36 CFR Part 800. SHPO contact information is
available at the following link: http://ncshpo.org/. THPO contact information is available at the
following link: 38Thttp://www.nathpo.org/map.html38T
Section 110(k) of the NHPA applies to DOE funded activities. Subrecipients shall avoid taking any
action that results in an adverse effect to historic properties pending compliance with Section 106.
Subrecipients should be aware that the CEO will consider the subrecipient in compliance with Section
106 of the NHPA only after the Subrecipient has submitted adequate background documentation to the
SHPO/THPO for its review, and the SHPO/THPO has provided written concurrence to the
Subrecipient that it does not object to its Section 106 finding or determination. Subrecipients shall
provide a copy of this concurrence to the CEO.
G. PERFORMANCE OF WORK IN UNITED STATES
a. Requirement.
All work performed under this Grant must be performed in the United States unless the contracting
officer provides a waiver. This requirement does not apply to the purchase of supplies and equipment;
however, the Subrecipient should make every effort to purchase supplies and equipment within the
United States.
b. Failure to Comply.
If the Subrecipient fails to comply with the Performance of Work in the United States requirement, the
CEO may deny reimbursement for the work conducted outside the United States and such costs may
not be recognized as allowable Grantee cost share regardless if the work is performed by the
Subrecipient, subrecipients, vendors or other project partners.
c. Waiver for Work Outside the U.S.
All work performed under this Grant must be performed in the United States. However, the Grantee
may approve the Grantee to perform a portion of the work outside the United States under limited
circumstances. Grantee must obtain a waiver from the contracting officer prior to conducting any work
outside the U.S. To request a waiver, the Grantee must submit a written waiver request to the CE,
which includes the following information:
• The rationale for performing the work outside the U.S.;
• A description of the work proposed to be performed outside the U.S.;
• Proposed budget of work to be performed; and
• The countries in which the work is proposed to be performed.
Exhibit B Page 4 of 10
For the rationale, the Grantee must demonstrate to the satisfaction of the CEO that the performance of
work outside the United States would further the purposes of the FOA that the Award was selected
under and is in the economic interests of the United States. The CEO may require additional
information before considering such request.
G. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND
PRODUCTS-SENSE OF CONGRESS
It is the sense of the Congress that, to the greatest extent practicable, all equipment and products
purchased with funds made available under this Award should be American-made.
H. REPORTING REQUIREMENTS
a. Requirements.
The reporting requirements for this Award are identified on the Federal Assistance Reporting
Checklist, attached to this Award. Failure to comply with these reporting requirements is considered a
material noncompliance with the terms of the Award. Noncompliance may result in withholding of
future payments, suspension, or termination of the current award, and withholding of future awards. A
willful failure to perform, a history of failure to perform, or unsatisfactory performance of this and/or
other financial assistance awards, may also result in a debarment action to preclude future awards by
Federal agencies.
b. Dissemination of scientific/technical reports.
Scientific/technical reports submitted under this Award will be disseminated on the Internet via the
DOE Information Bridge (38Twww.osti.gov/bridge38T), unless the report contains patentable material,
protected data or SBIR/STTR data. Citations for journal articles produced under the Award will
appear on the DOE Energy Citations Database (38Twww.osti.gov/energycitations38T).
c. Restrictions.
Reports submitted to the DOE Information Bridge must not contain any Protected Personal Identifiable
Information (PII), limited rights data (proprietary data), classified information, information subject to
export control classification, or other information not subject to release.
I. LOBBYING
By accepting funds under this Grant, the Subrecipient agrees that none of the funds obligated on the
Grant shall be expended, directly or indirectly, to influence congressional action on any legislation or
appropriation matters pending before Congress, other than to communicate to Members of Congress as
described in 18 U.S.C. § 1913. This restriction is in addition to those prescribed elsewhere in statute
and regulation.
J. PUBLICATIONS
a. Subrecipient is encouraged to publish or otherwise make publicly available the results of the work
conducted under the award.
b. An acknowledgment of Federal support and a disclaimer must appear in the publication of any
Exhibit B Page 5 of 10
material, whether copyrighted or not, based on or developed under this project, as follows:
Acknowledgment: "This material is based upon work supported by the Department of Energy, Office
of Energy Efficiency and Renewable Energy (EERE) under Award Number DE-EE0007470.”
Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United
States Government. Neither the United States Government nor any agency thereof, nor any of their
employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for
the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed,
or represents that its use would not infringe privately owned rights. Reference herein to any specific
commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not
necessarily constitute or imply its endorsement, recommendation, or favoring by the United States
Government or any agency thereof. The views and opinions of authors expressed herein do not
necessarily state or reflect those of the United States Government or any agency thereof."
K. PROPERTY STANDARDS
The complete text of the Property Standards can be found at 2 CFR 200.310 through 200.316. Also
see 2 CFR 910.360 for additional requirements for real property and equipment for For-Profit
subrecipients.
L. INSURANCE COVERAGE
See 2 CFR 200.310 for insurance requirements for real property and equipment acquired or improved
with Federal funds. Also see 2 CFR 910.360(d) for additional requirements for real property and
equipment for For-Profit subrecipients.
M. REAL PROPERTY
Subject to the conditions set forth in 2 CFR 200.311, title to real property acquired or improved under
a Federal award will conditionally vest upon acquisition in the non-Federal entity. The non-Federal
entity cannot encumber this property and must follow the requirements of 2 CFR 200.311 before
disposing of the property.
Except as otherwise provided by Federal statutes or by the Federal awarding agency, real property will
be used for the originally authorized purpose as long as needed for that purpose. When real property is
no longer needed for the originally authorized purpose, the non-Federal entity must obtain disposition
instructions from DOE or pass-through entity. The instructions must provide for one of the following
alternatives: (a) retain title after compensating DOE as described in 2 CFR 200.311(c)(1);(b) Sell the
property and compensate DOE as specified in 2 CFR 200.311(c)(2); or (c) transfer title to DOE or to
a third party designated/approved by DOE as specified in 2 CFR 200.311(c)(3).
See 2 CFR 200.311 for additional requirements pertaining to real property acquired or improved under
a Federal award. Also see 2 CFR 910.360 for additional requirements for real property for For-Profit
subrecipients.
N. EQUIPMENT
Subject to the conditions provided in 2 CFR 200.313, title to equipment (property) acquired under a
Federal award will conditionally vest upon acquisition with the non-Federal entity. The non-Federal
Exhibit B Page 6 of 10
entity cannot encumber this property and must follow the requirements of 2 CFR 200.313 before
disposing of the property.
A state must use equipment acquired under a Federal award by the state in accordance with state laws
and procedures.
Equipment must be used by the non-Federal entity in the program or project for which it was acquired
as long as it is needed, whether or not the project or program continues to be supported by the Federal
award. When no longer needed for the originally authorized purpose, the equipment may be used by
programs supported by DOE in the priority order specified in 2 CFR 200.313(c)(1)(i) and (ii).
Management requirements, including inventory and control systems, for equipment are provided in 2
CFR 200.313(d).
When equipment acquired under a Federal award is no longer needed, the non-Federal entity must
obtain disposition instructions from DOE or pass-through entity.
Disposition will be made as follows: (a) items of equipment with a current fair market value of $5,000
or less may be retained, sold, or otherwise disposed of with no further obligation to DOE; (b) Non-
Federal entity may retain title or sell the equipment after compensating DOE as described in 2 CFR
200.313(e)(2); or (c) transfer title to DOE or to an eligible third party as specified in 2 CFR
200.313(e)(3).
See 2 CFR 200.313 for additional requirements pertaining to equipment acquired under a Federal
award. Also see 2 CFR 910.360 for additional requirements for equipment for For-Profit
subrecipients. See also 2 CFR 200.439 Equipment and other capital expenditures.
O. SUPPLIES
See 2 CFR 200.314 for requirements pertaining to supplies acquired under a Federal award. See also 2
CFR 200.453 Materials and supplies costs, including costs of computing devices.
P. PROPERTY TRUST RELATIONSHIP
Real property, equipment, and intangible property, that are acquired or improved with a Federal award
must be held in trust by the non-Federal entity as trustee for the beneficiaries of the project or program
under which the property was acquired or improved. See 2 CFR 200.316 for additional requirements
pertaining to real property, equipment, and intangible property acquired or improved under a Federal
award.
Q. RECORD RETENTION
Consistent with 2 CFR 200.333 through 200.337, the Subrecipient is required to retain records relating
to this Award.
R. AUDITS
a. Government-Initiated Audits.
The Subrecipient is required to provide any information, documents, site access, or other assistance
requested by CEO, EERE, DOE or Federal auditing agencies (e.g., DOE Inspector General,
Exhibit B Page 7 of 10
Government Accountability Office) for the purpose of audits and investigations. Such assistance may
include, but is not limited to, reasonable access to the Subrecipient’s records relating to this Award.
Consistent with 2 CFR part 200 as amended by 2 CFR part 910, CEO may audit the Subrecipient’s
financial records or administrative records relating to this Award at any time. Government-initiated
audits are generally paid for by CEO.
CEO may conduct a final audit at the end of the project period (or the termination of the Award, if
applicable). Upon completion of the audit, the Subrecipient is required to refund to CEO any
payments for costs that were determined to be unallowable. If the audit has not been performed or
completed prior to the closeout of the award, CEO retains the right to recover an appropriate amount
after fully considering the recommendations on disallowed costs resulting from the final audit.
CEO will provide reasonable advance notice of audits and will minimize interference with ongoing
work, to the maximum extent practicable.
b. Annual Independent Audits (Single Audit or Compliance Audit).
The Subrecipient is required to comply with the annual independent audit requirements in 2
CFR 200.500 through .521 for institutions of higher education, nonprofit organizations, and
state and local governments (Single audit), and 2 CFR 910.500 through .521 for for-profit
entities (Compliance audit). The annual independent audits are separate from Government-
initiated audits discussed in paragraph A of this Term, and must be paid for by the
Recipient. To minimize expense, the Subrecipient may have a compliance audit in
conjunction with its annual audit of financial statements. The financial statement audit is
not a substitute for the compliance audit. If the audit (Single audit or Compliance audit,
depending on Subrecipient entity type) has not been performed or completed prior to the
closeout of the award, CEO may impose one or more of the actions outlined in 2 CFR
200.338, Remedies for Noncompliance.
S. ALLOWABLE COSTS
CEO determines the allowability of costs through reference to 2 CFR part 200 as amended by 2 CFR
part 910. All project costs must be allowable, allocable, and reasonable. The Subrecipient must
document and maintain records of all project costs, including, but not limited to, the costs paid by
Federal funds, costs claimed by its subrecipients and project costs that the Subrecipient claims as cost
sharing, including in-kind contributions. The Subrecipient is responsible for maintaining records
adequate to demonstrate that costs claimed have been incurred, are reasonable, allowable and
allocable, and comply with the cost principles. Upon request, the Subrecipient is required to provide
such records to CEO. Such records are subject to audit. Failure to provide contracting officer adequate
supporting documentation may result in a determination by the contracting officer that those costs are
unallowable.
The Subrecipient is required to obtain the prior written approval of the contracting officer for any
foreign travel costs.
T. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS
Notwithstanding any other provisions of this Contract, the Government shall not be responsible for or
have any obligation to the subrecipient for (i) Decontamination and/or Decommissioning (D&D) of
Exhibit B Page 8 of 10
any of the subrecipient's facilities, or (ii) any costs which may be incurred by the subrecipient in
connection with the D&D of any of its facilities due to the performance of the work under this
Contract, whether said work was performed prior to or subsequent to the effective date of this
Contract.
U. USE OF PROGRAM INCOME
If the Subrecipient earns program income during the project period as a result of this Grant, the
subrecipient must add the program income to the funds committed to the Grant and used to further
eligible project objectives.
V. NONDISCLOSURE AND CONFIDENTIALITY AGREEMENTS ASSURANCES
By entering into this agreement, the Subrecipient attests that it does not and will not require its
employees or contractors to sign internal nondisclosure or confidentiality agreements or statements
prohibiting or otherwise restricting its employees or contractors from lawfully reporting waste, fraud,
or abuse to a designated investigative or law enforcement representative of a Federal department or
agency authorized to receive such information.
The Subrecipient further attests that it does not and will not use any Federal funds to implement or
enforce any nondisclosure and/or confidentiality policy, form, or agreement it uses unless it contains
the following provisions:
i. ‘‘These provisions are consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or liabilities created by existing
statute or Executive order relating to (1) classified information, (2) communications
to Congress, (3) the reporting to an Inspector General of a violation of any law,
rule, or regulation, or mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety, or (4) any
other whistleblower protection. The definitions, requirements, obligations, rights,
sanctions, and liabilities created by controlling Executive orders and statutory
provisions are incorporated into this agreement and are controlling.’’
ii. The limitation above shall not contravene requirements applicable to Standard
Form 312, Form 4414, or any other form issued by a Federal department or agency
governing the nondisclosure of classified information.
iii. Notwithstanding provision listed in paragraph (a), a nondisclosure or
confidentiality policy form or agreement that is to be executed by a person
connected with the conduct of an intelligence or intelligence-related activity, other
than an employee or officer of the United States Government, may contain
provisions appropriate to the particular activity for which such document is to be
used. Such form or agreement shall, at a minimum, require that the person will not
disclose any classified information received in the course of such activity unless
specifically authorized to do so by the United States Government. Such
nondisclosure or confidentiality forms shall also make it clear that they do not bar
disclosures to Congress, or to an authorized official of an executive agency or the
Department of Justice, that are essential to reporting a substantial violation of law.
W. CONFERENCE SPENDING
Exhibit B Page 9 of 10
The Subrecipient shall not expend any funds on a conference not directly and programmatically related
to the purpose for which the grant or cooperative agreement was awarded that would defray the cost to
the United States Government of a conference held by any Executive branch department, agency,
board, commission, or office for which the cost to the United States Government would otherwise
exceed $20,000, thereby circumventing the required notification by the head of any such Executive
Branch department, agency, board, commission, or office to the Inspector General (or senior ethics
official for any entity without an Inspector General), of the date, location, and number of employees
attending such conference.
X. RECIPIENT INTEGRITY AND PERFORMANCE MATTERS
A. General Reporting Requirement
If the total value of your currently active Financial Assistance awards, cooperative
agreements, and procurement contracts from all Federal awarding agencies exceeds
$10,000,000 for any period of time during the period of performance of this Federal award,
then you as the subrecipient during that period of time must maintain the currency of
information reported to the System for Award Management (SAM) that is made available
in the designated integrity and performance system (currently the Federal Awardee
Performance and Integrity Information System (FAPIIS)) about civil, criminal, or
administrative proceedings described in paragraph 2 of this term. This is a statutory
requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As
required by section 3010 of Public Law 111-212, all information posted in the designated
integrity and performance system on or after April 15, 2011, except past performance
reviews required for Federal procurement contracts, will be publicly available.
B. Proceedings About Which You Must Report
Submit the information required about each proceeding that:
i. Is in connection with the award or performance of a Financial Assistance,
cooperative agreement, or procurement contract from the Federal Government;
ii. Reached its final disposition during the most recent five year period; and
iii. Is one of the following:
1. A criminal proceeding that resulted in a conviction, as defined in paragraph
E of this award term and condition;
2. A civil proceeding that resulted in a finding of fault and liability and
payment of a monetary fine, penalty, reimbursement, restitution, or damages
of $5,000 or more;
3. An administrative proceeding, as defined in paragraph E of this term, that
resulted in a finding of fault and liability and your payment of either a
monetary fine or penalty of $5,000 or more or reimbursement, restitution, or
damages in excess of $100,000; or
4. Any other criminal, civil, or administrative proceeding if:
a. It could have led to an outcome described in paragraph B.iii.1, 2, or 3
of this term;
b. It had a different disposition arrived at by consent or compromise
with an acknowledgment of fault on your part; and
c. The requirement in this term to disclose information about the
proceeding does not conflict with applicable laws and regulations.
Exhibit B Page 10 of 10
C. Reporting Procedures
Enter in the SAM Entity Management area the information that SAM requires about each
proceeding described in paragraph B of this term. You do not need to submit the
information a second time under assistance awards that you received if you already
provided the information through SAM because you were required to do so under Federal
procurement contracts that you were awarded.
D. Reporting Frequency
During any period of time when you are subject to the requirement in paragraph A of this
term, you must report proceedings information through SAM for the most recent five year
period, either to report new information about any proceeding(s) that you have not reported
previously or affirm that there is no new information to report. Subrecipients that have
Federal contract, Financial Assistance awards, (including cooperative agreement awards)
with a cumulative total value greater than $10,000,000, must disclose semiannually any
information about the criminal, civil, and administrative proceedings.
E. Definitions
For purposes of this term:
i. Administrative proceeding means a non-judicial process that is adjudicatory in
nature in order to make a determination of fault or liability (e.g., Securities and
Exchange Commission Administrative proceedings, Civilian Board of Contract
Appeals proceedings, and Armed Services Board of Contract Appeals proceedings).
This includes proceedings at the Federal and State level but only in connection with
performance of a Federal contract or Financial Assistance awards. It does not
include audits, site visits, corrective plans, or inspection of deliverables.
ii. Conviction means a judgment or conviction of a criminal offense by any court of
competent jurisdiction, whether entered upon a verdict or a plea, and includes a
conviction entered upon a plea of nolo contendere.
iii. Total value of currently active Financial Assistance awards, cooperative agreements
and procurement contracts includes—
1. Only the Federal share of the funding under any Federal award with a
subrecipient cost share or match; and
2. The value of all expected funding increments under a Federal award and
options, even if not yet exercised.
Federal Provisions Page 1 of 10
EXHIBIT C, FEDERAL PROVISIONS
1. APPLICABILITY OF PROVISIONS.
1.1. The Loan Agreement to which these Federal Provisions are attached has been funded, in whole
or in part, with an Award of Federal funds. In the event of a conflict between the provisions of
these Federal Provisions, the Special Provisions, the body of the Loan Agreement, or any
attachments or exhibits incorporated into and made a part of the Loan Agreement, the provisions
of these Federal Provisions shall control.
2. DEFINITIONS.
2.1. For the purposes of these Federal Provisions, the following terms shall have the meanings
ascribed to them below.
2.1.1. “Award” means an award of Federal financial assistance, and the Loan Agreement setting
forth the terms and conditions of that financial assistance, that a non-Federal Entity receives
or administers.
2.1.1.1. Awards may be in the form of:
2.1.1.1.1. Grants;
2.1.1.1.2. Contracts;
2.1.1.1.3. Cooperative Contracts, which do not include cooperative research and development
Contracts (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as
amended (15 U.S.C. 3710);
2.1.1.1.4. Loans;
2.1.1.1.5. Loan Guarantees;
2.1.1.1.6. Subsidies;
2.1.1.1.7. Insurance;
2.1.1.1.8. Food commodities;
2.1.1.1.9. Direct appropriations;
2.1.1.1.10. Assessed and voluntary contributions; and
2.1.1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds
by non-Federal Entities.
2.1.1.1.12. Any other items specified by OMB in policy memoranda available at the OMB
website or other source posted by the OMB.
2.1.1.2. Award does not include:
2.1.1.2.1. Technical assistance, which provides services in lieu of money;
2.1.1.2.2. A transfer of title to Federally-owned property provided in lieu of money; even if the
award is called a grant;
2.1.1.2.3. Any award classified for security purposes; or
Federal Provisions Page 2 of 10
2.1.1.2.4. Any award funded in whole or in part with Recovery funds, as defined in section 1512
of the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111-
5).
2.1.2. “Contractor” means the party or parties to a Loan Agreement funded, in whole or in part,
with Federal financial assistance, other than the Prime Recipient, and includes grantees,
subgrantees, Subrecipients, and borrowers. For purposes of Transparency Act reporting,
Contractor does not include Vendors.
2.1.3. “Data Universal Numbering System (DUNS) Number” means the nine-digit number
established and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity.
Dun and Bradstreet’s website may be found at: http://fedgov.dnb.com/webform.
2.1.4. “Entity” means all of the following as defined at 2 CFR part 25, subpart C;
2.1.4.1. A governmental organization, which is a State, local government, or Indian Tribe;
2.1.4.2. A foreign public entity;
2.1.4.3. A domestic or foreign non-profit organization;
2.1.4.4. A domestic or foreign for-profit organization; and
2.1.4.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non-Federal
entity.
2.1.5. “Executive” means an officer, managing partner or any other employee in a management
position.
2.1.6. “Federal Award Identification Number (FAIN)” means an Award number assigned by a
Federal agency to a Prime Recipient.
2.1.7. “Federal Awarding Agency” means a Federal agency providing a Federal Award to a
Recipient as described in 2 CFR §200.37
2.1.8. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public
Law 109-282), as amended by §6202 of Public Law 110-252. FFATA, as amended, also is
referred to as the “Transparency Act.”
2.1.9. “Federal Provisions” means these Federal Provisions subject to the Transparency Act and
Uniform Guidance, as may be revised pursuant to ongoing guidance from the relevant Federal
or State of Colorado agency or institutions of higher education.
2.1.10. “Loan Agreement” means the Loan Agreement to which these Federal Provisions are
attached and includes all Award types in §2.1.1.1 of this Exhibit.
2.1.11. “OMB” means the Executive Office of the President, Office of Management and Budget.
2.1.12. “Prime Recipient” means a Colorado State agency or institution of higher education that
receives an Award.
2.1.13. “Subaward” means an award by a Recipient to a Subrecipient funded in whole or in part by
a Federal Award. The terms and conditions of the Federal Award flow down to the Award
unless the terms and conditions of the Federal Award specifically indicate otherwise in
accordance with 2 CFR §200.38. The term does not include payments to a contractor or
payments to an individual that is a beneficiary of a Federal program.
Federal Provisions Page 3 of 10
2.1.14. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Award or Subaward
to a non-Federal Entity) receiving Federal funds through a Prime Recipient to support the
performance of the Federal project or program for which the Federal funds were awarded. A
Subrecipient is subject to the terms and conditions of the Federal Award to the Prime
Recipient, including program compliance requirements. The term “Subrecipient” includes
and may be referred to as Subgrantee. The term does not include an individual who is a
beneficiary of a federal program.
2.1.15. “Subrecipient Parent DUNS Number” means the subrecipient parent organization’s 9-digit
Data Universal Numbering System (DUNS) number that appears in the subrecipient’s System
for Award Management (SAM) profile, if applicable.
2.1.16. “System for Award Management (SAM)” means the Federal repository into which an Entity
must enter the information required under the Transparency Act, which may be found at
http://www.sam.gov.
2.1.17. “Total Compensation” means the cash and noncash dollar value earned by an Executive
during the Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the
following:
2.1.17.1. Salary and bonus;
2.1.17.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount
recognized for financial statement reporting purposes with respect to the fiscal year in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised
2005) (FAS 123R), Shared Based Payments;
2.1.17.3. Earnings for services under non-equity incentive plans, not including group life, health,
hospitalization or medical reimbursement plans that do not discriminate in favor of
Executives and are available generally to all salaried employees;
2.1.17.4. Change in present value of defined benefit and actuarial pension plans;
2.1.17.5. Above-market earnings on deferred compensation which is not tax-qualified;
2.1.17.6. Other compensation, if the aggregate value of all such other compensation (e.g.
severance, termination payments, value of life insurance paid on behalf of the employee,
perquisites or property) for the Executive exceeds $10,000.
2.1.18. “Transparency Act” means the Federal Funding Accountability and Transparency Act of
2006 (Public Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency
Act also is referred to as FFATA.
2.1.19. “Uniform Guidance” means the Office of Management and Budget Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards, which
supersedes requirements from OMB Circulars A-21, A-87, A-110, and A-122, OMB
Circulars A-89, A-102, and A-133, and the guidance in Circular A-50 on Single Audit Act
follow-up. The terms and conditions of the Uniform Guidance flow down to Awards to
Subrecipients unless the Uniform Guidance or the terms and conditions of the Federal Award
specifically indicate otherwise.
2.1.20. “Vendor” means a dealer, distributor, merchant or other seller providing property or services
required for a project or program funded by an Award. A Vendor is not a Prime Recipient or
a Subrecipient and is not subject to the terms and conditions of the Federal award. Program
compliance requirements do not pass through to a Vendor.
Federal Provisions Page 4 of 10
3. COMPLIANCE.
3.1. Contractor shall comply with all applicable provisions of the Transparency Act, all applicable
provisions of the Uniform Guidance, and the regulations issued pursuant thereto, including but
not limited to these Federal Provisions. Any revisions to such provisions or regulations shall
automatically become a part of these Federal Provisions, without the necessity of either party
executing any further instrument. The State of Colorado may provide written notification to
Contractor of such revisions, but such notice shall not be a condition precedent to the
effectiveness of such revisions.
4. SYSTEM FOR AWARD MANAGEMENT (SAM) AND DATA UNIVERSAL NUMBERING
SYSTEM (DUNS) REQUIREMENTS.
4.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor
submits the final financial report required under the Award or receives final payment, whichever
is later. Contractor shall review and update SAM information at least annually after the initial
registration, and more frequently if required by changes in its information.
4.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update
Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration,
and more frequently if required by changes in Contractor’s information.
5. TOTAL COMPENSATION.
5.1. Contractor shall include Total Compensation in SAM for each of its five most highly
compensated Executives for the preceding fiscal year if:
5.1.1. The total Federal funding authorized to date under the Award is $25,000 or more; and
5.1.2. In the preceding fiscal year, Contractor received:
5.1.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
5.1.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
5.1.3. The public does not have access to information about the compensation of such Executives
through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of
1934 (15 U.S.C. 78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986.
6. REPORTING.
6.1. Contractor shall report data elements to SAM and to the Prime Recipient as required in this
Exhibit if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct
payment shall be made to Contractor for providing any reports required under these Federal
Provisions and the cost of producing such reports shall be included in the Loan Agreement price.
The reporting requirements in this Exhibit are based on guidance from the US Office of
Management and Budget (OMB), and as such are subject to change at any time by OMB. Any
such changes shall be automatically incorporated into this Loan Agreement and shall become
part of Contractor’s obligations under this Loan Agreement.
7. EFFECTIVE DATE AND DOLLAR THRESHOLD FOR REPORTING.
Federal Provisions Page 5 of 10
7.1. Reporting requirements in §8 below apply to new Awards as of October 1, 2010, if the initial
award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award
modifications result in a total Award of $25,000 or more, the Award is subject to the reporting
requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more,
but funding is subsequently de-obligated such that the total award amount falls below $25,000,
the Award shall continue to be subject to the reporting requirements.
7.2. The procurement standards in §9 below are applicable to new Awards made by Prime Recipient
as of December 26, 2015. The standards set forth in §11 below are applicable to audits of fiscal
years beginning on or after December 26, 2014.
8. SUBRECIPIENT REPORTING REQUIREMENTS.
8.1. If Contractor is a Subrecipient, Contractor shall report as set forth below.
8.1.1. To SAM. A Subrecipient shall register in SAM and report the following data elements in
SAM for each Federal Award Identification Number no later than the end of the month
following the month in which the Subaward was made:
8.1.1.1. Subrecipient DUNS Number;
8.1.1.2. Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT)
account;
8.1.1.3. Subrecipient Parent DUNS Number;
8.1.1.4. Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and
Congressional District;
8.1.1.5. Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are
met; and
8.1.1.6. Subrecipient’s Total Compensation of top 5 most highly compensated Executives if
criteria in §4 above met.
8.1.2. To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective
date of the Loan Agreement, the following data elements:
8.1.2.1. Subrecipient’s DUNS Number as registered in SAM.
8.1.2.2. Primary Place of Performance Information, including: Street Address, City, State,
Country, Zip code + 4, and Congressional District.
9. PROCUREMENT STANDARDS.
9.1. Procurement Procedures. A Subrecepient shall use its own documented procurement procedures
which reflect applicable State, local, and Tribal laws and regulations, provided that the
procurements conform to applicable Federal law and the standards identified in the Uniform
Guidance, including without limitation, §§200.318 through 200.326 thereof.
Federal Provisions Page 6 of 10
9.2. Procurement of Recovered Materials. If a Subrecepient is a State Agency or an agency of a
political subdivision of the State, its contractors must comply with section 6002 of the Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The
requirements of Section 6002 include procuring only items designated in guidelines of the
Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage
of recovered materials practicable, consistent with maintaining a satisfactory level of
competition, where the purchase price of the item exceeds $10,000 or the value of the quantity
acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management
services in a manner that maximizes energy and resource recovery; and establishing an
affirmative procurement program for procurement of recovered materials identified in the EPA
guidelines.
10. ACCESS TO RECORDS
10.1. A Subrecipient shall permit Recipient and auditors to have access to Subrecipient’s records and
financial statements as necessary for Recipient to meet the requirements of §200.331
(Requirements for pass-through entities), §§200.300 (Statutory and national policy requirements)
through 200.309 (Period of performance), and Subpart F-Audit Requirements of the Uniform
Guidance. 2 CFR §200.331(a)(5).
11. SINGLE AUDIT REQUIREMENTS
11.1. If a Subrecipient expends $750,000 or more in Federal Awards during the Subrecipient’s fiscal
year, the Subrecipient shall procure or arrange for a single or program-specific audit conducted
for that year in accordance with the provisions of Subpart F-Audit Requirements of the Uniform
Guidance, issued pursuant to the Single Audit Act Amendments of 1996, (31 U.S.C. 7501-7507).
2 CFR §200.501.
11.1.1. Election. A Subrecipient shall have a single audit conducted in accordance with Uniform
Guidance §200.514 (Scope of audit), except when it elects to have a program-specific audit
conducted in accordance with §200.507 (Program-specific audits). The Subrecipient may
elect to have a program-specific audit if Subrecipient expends Federal Awards under only
one Federal program (excluding research and development) and the Federal program's
statutes, regulations, or the terms and conditions of the Federal award do not require a
financial statement audit of Prime Recipient. A program-specific audit may not be elected
for research and development unless all of the Federal Awards expended were received from
Recipient and Recipient approves in advance a program-specific audit.
11.1.2. Exemption. If a Subrecipient expends less than $750,000 in Federal Awards during its fiscal
year, the Subrecipient shall be exempt from Federal audit requirements for that year, except
as noted in 2 CFR §200.503 (Relation to other audit requirements), but records shall be
available for review or audit by appropriate officials of the Federal agency, the State, and the
Government Accountability Office.
11.1.3. Subrecepient Compliance Responsibility. A Subrecipient shall procure or otherwise
arrange for the audit required by Part F of the Uniform Guidance and ensure it is properly
performed and submitted when due in accordance with the Uniform Guidance. Subrecipient
shall prepare appropriate financial statements, including the schedule of expenditures of
Federal awards in accordance with Uniform Guidance §200.510 (Financial statements) and
provide the auditor with access to personnel, accounts, books, records, supporting
documentation, and other information as needed for the auditor to perform the audit required
by Uniform Guidance Part F-Audit Requirements.
Federal Provisions Page 7 of 10
12. LOAN AGREEMENT PROVISIONS FOR SUBRECEPIENT LOAN AGREEMENTS
12.1. If Contractor is a Subrecipient, then it shall comply with and shall include all of the following
applicable provisions in all subcontracts entered into by it pursuant to this Loan Agreement.
12.1.1. Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all
contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part
60-1.3 shall include the equal opportunity clause provided under 41 CFR 60-1.4(b), in
accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319,
12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375,
“Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and
implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor.
12.1.1.1. During the performance of this Loan Agreement, the contractor agrees as follows:
12.1.1.1.1. Contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, or national origin. The contractor will take
affirmative action to ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, color, religion, sex, or
national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer, recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. The contractor agrees to post in
conspicuous places, available to employees and applicants for employment, notices
to be provided by the contracting officer setting forth the provisions of this
nondiscrimination clause.
12.1.1.1.2. Contractor will, in all solicitations or advertisements for employees placed by or on
behalf of the contractor, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, or national origin.
12.1.1.1.3. Contractor will send to each labor union or representative of workers with which he
has a collective bargaining Contract or other contract or understanding, a notice to be
provided by the agency contracting officer, advising the labor union or workers'
representative of the contractor's commitments under section 202 of Executive Order
11246 of September 24, 1965, and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
12.1.1.1.4. Contractor will comply with all provisions of Executive Order 11246 of September
24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
12.1.1.1.5. Contractor will furnish all information and reports required by Executive Order 11246
of September 24, 1965, and by the rules, regulations, and orders of the Secretary of
Labor, or pursuant thereto, and will permit access to his books, records, and accounts
by the contracting agency and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and orders.
Federal Provisions Page 8 of 10
12.1.1.1.6. In the event of Contractor's non-compliance with the nondiscrimination clauses of
this Loan Agreement or with any of such rules, regulations, or orders, this Loan
Agreement may be canceled, terminated or suspended in whole or in part and the
contractor may be declared ineligible for further Government contracts in accordance
with procedures authorized in Executive Order 11246 of September 24, 1965, and
such other sanctions may be imposed and remedies invoked as provided in Executive
Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary
of Labor, or as otherwise provided by law.
12.1.1.1.7. Contractor will include the provisions of paragraphs (1) through (7) in every
subcontract or purchase order unless exempted by rules, regulations, or orders of the
Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of
September 24, 1965, so that such provisions will be binding upon each subcontractor
or vendor. The contractor will take such action with respect to any subcontract or
purchase order as may be directed by the Secretary of Labor as a means of enforcing
such provisions including sanctions for noncompliance: Provided, however, that in
the event Contractor becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction, the contractor may request the
United States to enter into such litigation to protect the interests of the United States.”
12.1.2. Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required
by Federal program legislation, all prime construction contracts in excess of $2,000 awarded
by non-Federal entities must include a provision for compliance with the Davis-Bacon Act
(40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations
(29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally
Financed and Assisted Construction”). In accordance with the statute, contractors must be
required to pay wages to laborers and mechanics at a rate not less than the prevailing wages
specified in a wage determination made by the Secretary of Labor. In addition, contractors
must be required to pay wages not less than once a week. The non-Federal entity must place
a copy of the current prevailing wage determination issued by the Department of Labor in
each solicitation. The decision to award a contract or subcontract must be conditioned upon
the acceptance of the wage determination. The non-Federal entity must report all suspected
or reported violations to the Federal awarding agency. The contracts must also include a
provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as
supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or
Grants from the United States”). The Act provides that each contractor or Subrecipient must
be prohibited from inducing, by any means, any person employed in the construction,
completion, or repair of public work, to give up any part of the compensation to which he or
she is otherwise entitled. The non-Federal entity must report all suspected or reported
violations to the Federal awarding agency.
12.1.3. Rights to Inventions Made Under a Contract or Contract. If the Federal Award meets
the definition of “funding Contract” under 37 CFR §401.2 (a) and Subrecipient wishes to
enter into a contract with a small business firm or nonprofit organization regarding the
substitution of parties, assignment or performance of experimental, developmental, or
research work under that “funding Contract,” Subrecipient must comply with the
requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants, Contracts and Cooperative Contracts,”
and any implementing regulations issued by the awarding agency.
Federal Provisions Page 9 of 10
12.1.4. Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33
U.S.C. 1251-1387), as amended. Contracts and subgrants of amounts in excess of $150,000
must contain a provision that requires the non-Federal award to agree to comply with all
applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C.
7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-
1387). Violations must be reported to the Federal awarding agency and the Regional Office
of the Environmental Protection Agency (EPA).
12.1.5. Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see
2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the
System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR
180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3
CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the
names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties
declared ineligible under statutory or regulatory authority other than Executive Order 12549.
12.1.6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an
award exceeding $100,000 must file the required certification. Each tier certifies to the tier
above that it will not and has not used Federal appropriated funds to pay any person or
organization for influencing or attempting to influence an officer or employee of any agency,
a member of Congress, officer or employee of Congress, or an employee of a member of
Congress in connection with obtaining any Federal contract, grant or any other award covered
by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that
takes place in connection with obtaining any Federal award. Such disclosures are forwarded
from tier to tier up to the non-Federal award.
13. CERTIFICATIONS.
13.1. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to
submit certifications and representations required by Federal statutes or regulations on an annual
basis. 2 CFR §200.208. Submission may be required more frequently if Subrecipient fails to
meet a requirement of the Federal award. Subrecipient shall certify in writing to the State at the
end of the Award that the project or activity was completed or the level of effort was expended.
2 CFR §200.201(3). If the required level of activity or effort was not carried out, the amount of
the Award must be adjusted.
14. EXEMPTIONS.
14.1. These Federal Provisions do not apply to an individual who receives an Award as a natural
person, unrelated to any business or non-profit organization he or she may own or operate in his
or her name.
14.2. A Contractor with gross income from all sources of less than $300,000 in the previous tax year
is exempt from the requirements to report Subawards and the Total Compensation of its most
highly compensated Executives.
14.3. There are no Transparency Act reporting requirements for Vendors.
15. EVENT OF DEFAULT.
Federal Provisions Page 10 of 10
15.1. Failure to comply with these Federal Provisions shall constitute an event of default under the
Loan Agreement and the State of Colorado may terminate the Loan Agreement upon 30 days
prior written notice if the default remains uncured five calendar days following the termination
of the 30 day notice period. This remedy will be in addition to any other remedy available to the
State of Colorado under the Loan Agreement, at law or in equity.
EXHIBIT D - Promissory Note
Principal Amount: $800,000.00 Note Date:
Borrower: Payee:
City of Fort Collins, Colorado, State of Colorado, acting by and
Electric Utility Enterprise through the Colorado Energy Office
P.O. Box 580 1580 Logan Street, Suite 100
Fort Collins, CO 80522 Denver, CO 80203
Loan Rate: 0% Per Annum
FOR VALUE RECEIVED, City of Fort Collins, Colorado, Electric Utility Enterprise, (the
“Borrower”) promises to pay to the order of the State of Colorado acting by and through the
Colorado Energy Office (the “Payee”), together with other amounts which may be due in
accordance with the provisions of this Promissory Note (the “Note”) the principal sum of Eight
Hundred Thousand Dollars ($800,000.00), with interest on the outstanding principal balance at the
rate of zero percent (0%) per annum from the date hereof until paid in full, plus any unexpended
Program Income, as defined and set forth at 2 CFR § 200.80. The Borrower and Payee have
entered into a Loan Agreement to which this Note is attached as Exhibit “D” (the “Loan
Agreement”).
Principal shall be paid in one payment of Eight Hundred Thousand Dollars ($800,000.00)
on April 20, 2035. This payment of principal and Program Income shall be made at Payee’s office
at the address shown above or at such other place as Payee shall designate to Borrower in writing.
In the event this payment of principal is not paid when due, interest shall thereafter accrue on the
full amount of such payment at the rate of 4.0% annum until paid in full, and all payments received
shall be applied first to accrued interest and then to the retirement of principal. This Note may be
prepaid in whole or in part at any time and from time to time without premium or penalty.
All amounts due under this Note shall be payable and collectible solely out of the “Net
Pledged Revenues” (as defined in Exhibit “A” of the Loan Agreement), which revenues are hereby
so pledged which pledge is in all respects subordinate to the pledge and lien thereon of the “Senior
Debt” (as defined in Exhibit “A” of the Loan Agreement) at any time outstanding but on a pari
passu basis with the Parity Debt (as defined in Exhibit “A” of the Loan Agreement). The Payee
may not look to any general or other fund for the payment of such amounts; this Note shall not
constitute a debt or indebtedness within the meaning of any constitutional, charter, or statutory
provision or limitation; and this Note shall not be considered or held to be general obligations or
special fund of the Borrower or of the City of Fort Collins (the “City”), but shall constitute a special
obligation of the Borrower from the Net Pledged Revenues only. No statutory or constitutional
provision enacted after the execution and delivery of the Note shall in any manner be construed as
limiting or impairing the obligation of the Borrower to comply with the provisions of this Note.
None of the covenants, agreements, representations and warranties contained in Loan Agreement
or in this Note shall ever impose or shall be construed as imposing any liability, obligation or
charge against the Borrower or the City (except against the Net Pledged Revenues), or against its
general credit, or as payable out of its general fund or out of any funds derived from taxation or
out of any other revenue source (other than those pledged therefor). The payment of the amounts
due under this Note is not secured by an encumbrance, mortgage or other pledge of property of the
City or of the Borrower, except for the Net Pledged Revenues. No property of the City or the
Borrower, subject to such exception, shall be liable to be forfeited or taken in payment of such
amounts.
Each maker, indorser, and guarantor, and any other person who is now or may hereafter
become primarily or secondarily liable for the payment of this Note or any portion thereof (a)
waives presentment, notice of dishonor, and protest, (b) agrees that the payee or other holder may
release, agree not to sue, suspend its rights to enforce this Note against, or otherwise discharge or
deal with any person against whom such maker, indorser, guarantor, or other person has a right of
recourse, and may release, fail, or agree not to enforce or perfect its rights in or against, or
otherwise deal with any collateral for the payment of this Note, or any potion thereof, and (c) if
this Note or interest thereon is not paid when due or if suit is brought, agrees to pay upon demand
all reasonable costs of collection including reasonable attorneys’ fees incurred in connection with
such proceedings, including the fees of counsel for attendance at meetings of creditors or other
committees.
If the payment of principal, Program Income, or any other amount payable hereunder is
not paid promptly when due, the Payee or other holder may declare the entire outstanding principal
balance of the Note, any subsequently accrued interest, and all other amounts payable hereunder
immediately due and payable, without notice or demand. Within 10 business days of an event set
forth below, notice shall be given to Payee at Payee’s office at the address shown above or at such
other place as Payee shall designate to Borrower in writing: (i) if maker, indorser, or guarantor, or
any other person who is now or may hereafter become primarily or secondarily liable for the
payment of this Note or any portion thereof (a) commences (or takes any action for the purpose of
commencing) any proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, moratorium, or similar law or statute; or (b) commences a proceeding against any such person
under any bankruptcy, reorganization, arrangement, readjustment of debt, moratorium, or similar
law or statute, and relief is ordered against it.
This Note shall be governed in all respects by the laws of the State of Colorado. Exclusive
venue shall be proper in the City and County of Denver.
City of Fort Collins, Colorado, Electric Utility
Enterprise
By: ________________________________
(Signature)
________________________________
Wade Troxell, President
ATTEST:
__________________________
Delynn Coldiron, Secretary