HomeMy WebLinkAboutItem 07 - Installment Sale Agreement with the California Infrastructure and Economic Development Bank (iBank) Department Name: Utilities
Cost Center: 6003
For Agenda of: June 16, 2020
Placement: Consent
Estimated Time: N/A
FROM: Aaron Floyd, Utilities Director
Prepared By: Jennifer Thompson, Utilities Business Manager
SUBJECT: EXECUTE AND DELIVER AN INSTALLMEN T SALE AGREEMENT WITH
CALIFORNIA INFRASTRUCTURE AND ECONOMIC DEVELOPMENT
BANK
RECOMMENDATION
Adopt a resolution authorizing the execution and delivery of an installment sale agreement,
between the City and California Infrastructure and Economic Development Bank, for financing
the Water Energy Efficiency Project and taking related actions (Attachment A).
DISCUSSION
Background
On November 19, 2019, the City Council voted 4-0-1 (Mayor Harmon Absent) to enter into an
agreement with Pacific Gas & Electric (PG&E) for implementation of the Water Energy
Efficiency Project (Project). This project will replace critical aging infrastructure with more
energy efficient equipment at the Water Treatment Plant. With this action, Council also approved
the debt financing of up to $14,300,000 for the construction of the project.
After analyzing two sources of funding, (1) a municipal lease from a commercial bank and (2) a
financing from the Infrastructure Bank (I Bank), City staff found I Bank to be the preferred
option. Staff considered the interest rate, other fees, term, and debt covenant requirements in
other existing Water Fund debt. I Bank offered the lowest interest rate of 2.5 percent (3 percent
true interest cost (TCI1)) and satisfies the debt covenants in existing Water Fund debt.
The project broke ground May 4, 2020 and is expected to be complete in July 2021. When the
agreement is executed, the Water fund will begin requesting reimbursement for project
expenditures made to-date.
Execution of Agreement
The terms of the agreement with I Bank have been reviewed and negotiated by outside Counsel,
Richards, Watson & Gerson. After adoption of this resolution, staff expects the agreement to be
executed and the transaction to close by June 18, 2020.
1 TCI includes all ancillary fees and cost along with factors related to the time value of money (TMV).
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Related Actions
The actions related to the execution of the agreement and included in the resolution are: (1)
acknowledge the City’s debt management policy; and (2) authorize the Mayor (or the Vice
Mayor) or the City Manager to execute the agreement.
Good Faith Estimate
Government Code Section 5852.1 requires the good faith estimate disclosure (of true interest
cost, finance charges, amount of proceeds, and total payment amount) to be made at a public
meeting of the City Council before the City Council can authorize the incurrence of debt with a
term longer than 13 months. The adoption of this resolution to authorize the execution and
delivery of the I Bank agreement will constitute an authorization to incur a debt with a term
longer than 13 months. The good faith estimates required by Government Code Section 5852.1
are disclosed in the fiscal impact section of this report as well as in a recital of the resolution.
Debt Management Policy
Government Code Section 8855 requires all local government issuers of debt to report the
issuance to the California Debt and Investment Advisory Commission (CDIAC). The report shall
include a certification by the issuer that it has adopted local debt policies concerning the use of
debt and that the contemplated debt issuance is consistent with those local debt policies.” The I
Bank Agreement is consistent with City’s Capital Financing and Debt Management Policy
(Attachment B). This policy is formally acknowledged in the current resolution.
Previous Council or Advisory Body Action
On May 21, 2019 the City Council adopted Resolution No. 11011 “A resolution of the City
Council of the City of San Luis Obispo, California, authorizing the submission of the application
to the California Infrastructure and Economic Development Bank (I Bank) for fin ancing the
Water Energy Efficiency project, authorizing the incurring of an obligation payable to I Bank for
the financing of the Water Energy Efficiency project if I Bank approves said application,
declaration of official intent to reimburse certain expenditures from proceeds of obligation, and
approving certain other matters in connection therewith.” This resolution allowed the City to
apply for I Bank financing.
On November 19, 2019, the City Council adopted Resolution No. 11063 “A resolution of the
City Council of the City of San Luis Obispo, California, authorizing use of water fund
unreserved working capital for the water energy efficiency project” This resolution authorized
the use of unreserved working capital for cash flow purposes.
On January 21, 2020 the City Council reviewed the good faith estimate in compliance with
Government Code Section 5851.2 disclosure requirements; adopted Resolution No. 11077, a
resolution accepting the good faith estimate; adopted Resolution No. 11078 authorizing the use
of up to $2,500,000 from Water Fund Unreserved Working Capital to pay of a State Revolving
Fund (SRF) loan as required by the I Bank loan; and authorized the use of $143,000 from Water
Fund Unreserved Working Capital to pay the I Bank origination fee.
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Policy Context
The good faith estimate public disclosure is required by State law: Government Code Section
5852.1.
Government Code section 8855(i) requires a certification by the issuer that it has adopted a local
debt policy concerning the use of debt and that the contemplated debt issuance is consistent with
the local debt policy.
Public Engagement
This is an administrative item, so no outside public engagement was completed. Public comment
can be provided to the City Council through written correspondence prior to the meeting and
through public testimony at the meeting.
CONCURRENCE
The Finance Department concurs with this recommendation.
ENVIRONMENTAL REVIEW
The City determined the activity funded by the I Bank loan, the Water Energy Efficien cy Project
is categorically exempt from the California Environmental Quality Act pursuant to CEQA
Guidelines section 15301, Class I - Existing Facilities and 15328. The exemption was filed with
the State Clearinghouse on January 24, 2019.
FISCAL IMPACT
Budgeted: Yes Budget Year: 2019-20
Funding Identified: Yes - Water Fund & Debt Financing
Fiscal Analysis:
The recommended action in this Council Agenda report does not include fiscal impacts that have
not been approved through previous council action. The good faith estimate serves as public
disclosure required to obtain financing for the Water Energy Efficiency Project.
True interest cost 3%
Finance Charge (including Origination Fee of $143,000.00
plus total Annual Fee of $485,529.46)
$628,529.46
Loan Proceeds ($14,300,000) less Finance Charges $13,671,470.54
Total Payments (including Principal and Interest through
6/1/2040 final maturity, plus Origination Fee and Annual
Fee)
$18,956,733.28
The annual debt payment is part of the Water Fund’s budget and will be considered each year
with the budget appropriation.
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ALTERNATIVES
Do not adopt the resolution to execute the agreement. This is not recommended because this
financing is necessary to complete the Water Energy Efficiency Project that replaces critical
infrastructure at the Water Treatment Plant.
Attachments:
a - Draft Resolution
b - Debt Management Policy
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R ______
RESOLUTION NO. ____ (2020 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, AUTHORIZING THE EXECUTION AND
DELIVERY OF AN INSTALLMENT SALE AGREEMENT, BETWEEN
THE CITY AND CALIFORNIA INFRASTRUCTURE AND ECONOMIC
DEVELOPMENT BANK, FOR FINANCING THE WATER ENERGY
EFFICIENCY PROJECT AND TAKING RELATED ACTIONS
WHEREAS, the California Infrastructure and Economic Development Bank (“IBank”)
administers a financing program to assist local governments with the financing of certain public
development facilities; and
WHEREAS, the City Council adopted Resolution No. 11011 (2019 Series) on May 21,
2019, approving the City’s submission of an application to IBank for assistance to finance the
City’s Water Energy Efficiency Project (the “Project”), in the principal amount not to exceed
$14,300,000; and
WHEREAS, IBank has accepted the City’s application and is willing to provide financing
for the Project (the “IBank Financing”) pursuant to the terms of an Installment Sale Agreement
(the “Installment Sale Agreement”), substantially in the form attached as Exhibit A; and
WHEREAS, pursuant to Government Code Section 5352.1, the following are good faith
estimates with respect to the IBank Financing: (i) the true interest cost will be three percent; (ii) the
finance charge of the transaction (including an origination fee and annual fees to i-Bank) will be
$628,529.46; (iii) the amount of proceeds to be received by the City less the finance charge will
be $13,671,470.54; and (iv) the total payment amount to be paid by the City (including principal
and interest components plus finance charge) under the Installment Sale Agreement will be
$18,956,733.28;
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo
as follows that:
SECTION 1. The above recitals are true and correct and are a substantive part of this
Resolution.
SECTION 2. The Installment Sale Agreement, in the form attached as Exhibit A, is
hereby approved. Each of the Mayor (or in the Mayor’s absence, the Vice Mayor), and the City
Manager (each, an “Authorized Officer”), acting individually, is hereby authorized and directed,
for and in the name and on behalf of the City, to execute and deliver the Installment Sale
Agreement in substantially said form, with such additions or changes as the Authorized Officer
executing the same may approve (such approval to be conclusively evidenced by such Authorized
Officer’s execution and delivery thereof).
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R ______
SECTION 3. Reference is hereby made to the City’s debt management policy (the “Debt
Policy”) set forth in the City’s 2019-21 Financial Plan (as approved pursuant to Resolution No.
11026 (2019 Series) and supplemented by Resolution No. 11027 (2019 Series)), under the caption
“Capital Financing and Debt Management” in the section entitled “Fiscal Policies.” The City
Council hereby finds that the IBank Financing is consistent with the Debt Policy.
SECTION 4. The Authorized Officers, the City Manager, the Finance Director, the
Utilities Director and all other officers of the City are hereby authorized, jointly and severally, to
execute and deliver any and all necessary documents and instruments and to do all things which
they may deem necessary or proper to effectuate the purposes of this Resolution and the
Installment Sale Agreement. Any actions previously taken by officers of the City consistent with
the purposes of this Resolution and such agreements are hereby ratified and confirmed.
Upon motion of _________________________, seconded by ______________________
and on the following roll call vote:
AYES:
NOES:
ABSENT:
The foregoing resolution was adopted this _____ day of ______________, 2020.
__________________________________
Mayor Heidi Harmon
ATTEST:
________________________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
________________________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo, California, on ____________________.
____________________________________
Teresa Purrington
City Clerk
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EXHIBIT A
3
INSTALLMENT SALE AGREEMENT
by and between the
CITY OF SAN LUIS OBISPO,
as Purchaser
and the
CALIFORNIA INFRASTRUCTURE AND
ECONOMIC DEVELOPMENT BANK (“IBANK”),
as Seller
___________________
Dated as of June 1, 2020
Agreement No. ISRF 20-135
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12767-0012\2412248v3.doc 1
INSTALLMENT SALE AGREEMENT
THIS INSTALLMENT SALE AGREEMENT, is dated as of June 1, 2020 (as defined in
Section 1.01, the “Agreement”), by and between the CITY OF SAN LUIS OBISPO, a Municipal
Corporation, as purchaser (the “Purchaser”), duly organized and validly existing under the laws of
the State of California, and the CALIFORNIA INFRASTRUCTURE AND ECONOMIC
DEVELOPMENT BANK, as seller (“IBank”), duly organized and validly existing pursuant to the
Bergeson-Peace Infrastructure and Economic Development Bank Act (the “Act,” as defined in
Section 1.01). IBank and the Purchaser are hereinafter at times collectively referred to as the
“Parties” and individually as a “Party.” Terms and words used herein with their initial letter, or
letters, capitalized shall have the meanings set forth in Section 1.01 of this Agreement, or the
meanings set forth in this paragraph, as applicable.
W I T N E S S E T H:
WHEREAS, the Purchaser has determined it is necessary to design and construct the
Project, consisting generally of certain improvements to its System that are intended to improve
System reliability, functionality, and energy efficiency;
WHEREAS, the Purchaser sought financing for the Project from IBank, payable from, and
secured by, Net System Revenues , and IBank wishes to provide such financing;
WHEREAS, on or about June 16, 2020, the City Council of the Purchaser adopted
Resolution No. ______, a copy of which is attached hereto as Exhibit A, among other things,
authorizing the purchase from IBank of the Facility, to be paid from and secured by Net System
Revenues, as evidenced by this Agreement;
WHEREAS, the Purchaser’s staff issued Proposition 218 notices necessary for the rates
and charges increases required to support the Purchaser’s System, including the Facility ;
WHEREAS, not having received written protests against the proposed increases from a
majority of parcels subject to the revised schedule of rates and charges, the Purchaser’s City
Council adopted the revised schedule of rates and charges pursuant to the terms of Resolution No.
11023 (2019 Series), and related documents, effective July 1, 2019;
WHEREAS, IBank has issued, or intends to issue, its tax-exempt Proceeds Bonds, the
proceeds of which may be used to provide all or a portion of the Facility Funds;
WHEREAS, IBank may pledge its rights, including the rights to receive payments, under
this Agreement to secure certain Secured Bonds that it has issued, or intends to issue, for the benefit
of its programs, and the Purchaser acknowledges that the issuance or existence of both the Proceeds
Bonds and the Secured Bonds impacts its rights and obligations as described herein; and
NOW, THEREFORE, in consideration of these premises and the mutual agreements herein
contained, the parties do hereby agree as follows:
ARTICLE I
DEFINITIONS, RULES OF CONSTRUCTION, AND CONDITIONS PRECEDENT
SECTION 1.01 Definitions. Unless the context clearly otherwise requires, the
capitalized terms in this Agreement shall have the respective meanings set forth below.
“2012 Bonds” means the $4,960,000 City of San Luis Obispo 2012 Water Revenue
Refunding Bonds issued by the Purchaser on January 31, 2012.
“2012 Bonds Instrument” means, collectively, any instrument evidencing, securing, or
governing the 2012 Bonds, including, without limitation, the Indenture of Trust dated as of January
1, 2012 by and between the Purchaser and U.S. Bank National Association, as trustee thereunder.
“2018 Bonds” means the $16,905,000 City of San Luis Obispo, California Water Revenue
Refunding Bonds, Series 2018, issued by the Purchaser on July 3, 2018.
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EXHIBIT A
12767-0012\2412248v3.doc 2
“2018 Bonds Instrument” means, collectively, any instrument evidencing, securing, or
governing the 2018 Bonds, including, without limitation, the Indenture dated as of July 1, 2018 by
and between the Purchaser and U.S. Bank National Association, as trustee ther eunder.
“Act” means the Bergeson-Peace Infrastructure and Economic Development Bank Act,
constituting Division 1 of Title 6.7 of the California Government Code (commencing at section
63000 thereof) as now in effect and as it may from time to time hereafter be amended.
“Additional Payments” means the payments made pursuant to Section 2.06.
“Agreement” means this Installment Sale Agreement, between IBank and the Purchaser,
as originally entered into and as amended from time to time pursuant to the provisions hereof.
“Amortization Schedule” means that certain amortization schedule attached hereto as
Exhibit E.
“Amortization Terms” shall have the meaning set forth in Section 2.03(d).
“Authorized Prepayment Period” has the meaning set forth in Section 2.08(b).
“Business Day” means any day, Monday through Friday, which is not a legal holiday of
the City, the State or the Trustee.
“Certificate of the Purchaser” means a written request or certificate signed by a duly
authorized representative of the Purchaser.
“Code” means the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder.
“Criteria” means the “Criteria, Priorities, and Guidelines for the Selection of Projects for
Financing under the ISRF Program” dated February 23, 2016, as may thereafter be amended from
time to time.
“Current Guidelines” has the meaning set forth in Section 5.07(g).
“Current Revenues” means revenues that are both received by the Purchaser and utilized
for the payment of the Purchase Price under this Agreement within a six month period.
“Debt Service” means, for any Fiscal Year, the sum of interest, and principal due and
payable under this Agreement during such Fiscal Year, the IBank Annual Fee for such Fiscal Year
and any Parity Debt Service for such Fiscal Year.
“Development Impact Fees” means fees charged by the Purchaser for the physical facilities
necessary to make a connection to the System, which fees are levied in accordance with Section
66013 of the Government Code of the State, or any successor statute.
“Effective Date” means the date on which this Agreement is last executed, as set forth on
the signature page hereto, and is the date this Agreement becomes effective and binding on the
Purchaser and IBank, subject to this Agreement’s terms and conditions.
“Enterprise Fund” means the water enterprise fund, separate and apart from the Purchaser’s
general operating funds, established by the Purchaser into which all System Revenues are
deposited and maintained by the Purchaser pursuant to Section 3.02 and in which IBank has a
certain security interest pursuant to the terms of this Agreement. The Purchaser’s Enterprise Fund
is composed of the funds received from water transmission, distribution, and sales services
provided to the Purchaser’s System customers.
“Event of Default” means any of the events described in Section 7.01.
“Facility” means those improvements financed with the Facility Funds provided by IBank
and to be sold by IBank to the Purchaser pursuant to terms and conditions of this Agreement as
more particularly described in Exhibit B, hereto.
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EXHIBIT A
12767-0012\2412248v3.doc 3
“Facility Costs” means the costs of the activities set forth in Exhibit B hereto for the
construction, acquisition and/or installation of the Facility, all as approved by IBank in its sole and
absolute discretion.
“Facility Delivery” has the meaning set forth in Section 2.02.
“Facility Funds” means the moneys provided by IBank to the Purchaser, as agent for IBank,
pursuant to this Agreement to purchase and/or construct the Facility as set forth in Section 2.05.
The amount of Facility Funds equals the total principal component of the Purchase Price set forth
in Section 2.03(b)(1).
“Facility Funds Reduction” means the reduction of the total Facility Funds amount by all
or a portion of the Facility Funds not disbursed previously.
“Facility Funds Reduction Request” means a written request of the Purchaser to reduce the
amount of total Facility funds by all or a portion of the Facility Funds n ot disbursed previously.
“Fiscal Year” means any twelve month period extending from July 1 in one calendar year
to June 30 of the succeeding calendar year, both dates inclusive, or any other twelve month period
selected and designated by the Purchaser as its official fiscal year period and approved by IBank.
“IBank Annual Fee” means the fee payable to IBank pursuant to Section 2.06.
“IBank Fiscal Year” means any twelve month period extending from July 1 in one calendar
year to June 30 of the succeeding calendar year, both dates inclusive.
“Independent Accountant” means any certified public accountant or firm of certified public
accountants duly licensed or registered or entitled to practice and practicing as such under the laws
of the State, appointed by the Purchaser who, or each of whom:
(a) Is in fact independent and not under the direct or indirect control of the Purchaser
or IBank;
(b) Does not have any substantial interest, direct or indirect, in the Purchaser , IBank,
or the Facility; and
(c) Is not connected with the Purchaser or IBank as a member, officer, or employee of
the Purchaser or IBank, but who may be regularly retained to make reports to the Purchaser or
IBank.
(d) “Independent Consultant” means any consultant or firm of such consultants judged
by the Purchaser to have experience in matters relating to the collection of System Revenues or
other experience with respect to the financing of System projects, as appropriate, appointed and
paid by the Purchaser who, or each of whom:
(a) Is in fact independent and not under the direct or indirect control of the
Purchaser or IBank;
(b) Does not have any substantial interest, direct or indirect, in the Purchaser
or IBank; and
(c) Is not connected with the Purchaser or IBank as a member, officer or
employee of the Purchaser or IBank, but who may be regularly retained to make reports to the
Purchaser or IBank.
“Installment Payments” means the principal and interest payments to be made by the
Purchaser to IBank in payment of the Purchase Price hereunder.
“Interest Payment Date” means June 1 and December 1 of every year in which the Purchase
Price remains unpaid.
“Investment Property” means any security or obligation, any annuity contract, or any other
investment-type property, but does not include any Tax Exempt Obligation unless such obligation
is a “specified private activity bond” within the meaning of section 57(a)(5)(C) of the Code.
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EXHIBIT A
12767-0012\2412248v3.doc 4
“IRS” has the meaning set forth in Section 5.07(g).
“Kessner Complaint” means Kessner, et al. v. City of Santa Clara; et al., Santa Clara
County Superior Court, Case No. 20CV364054.
“Liquidated Damages Charge” has the meaning set forth in Section 2.06(a)(4).
“Liquidated Damages Period” has the meaning set forth in Section 5.03(f).
“Maximum Annual Debt Service” means as of the date of calculation, the greatest total
Debt Service payable in any Fiscal Year during which this Agreement is in effect.
“Maximum Rate” has the meaning set forth in Section 8.23.
“Net System Revenues” means all System Revenues received by the Purchaser less the
Operations and Maintenance Costs incurred during the period in which System Revenues were
measured.
“Nongovernmental Persons” means any person or entity other than any state, or political
subdivision of a state, but excludes the United States and its agencies or instrumentalities.
“Operations and Maintenance Costs” means the reasonable and necessary costs paid or
incurred by the Purchaser for maintaining and operating the System, determined in accordance
with generally accepted accounting principles, consistently applied, including all reasonable
expenses of management, costs of repair, acquisition of material, equipment, electricity, fuel, or
water, and all other expenses necessary to maintain and preserve the System in good repair and
working order, and including all administrative costs of the Purchaser that are charged directly or
apportioned to the operation of the System, such as salaries and wages of employees, overhead,
taxes (if any), the cost of permits and licenses to operate the System and insurance premiums, and
including all other reasonable and necessary costs of the Purchaser or charges required to be paid
by it to comply with the terms hereof; but excluding in all cases depreciation, replacement and
obsolescence charges or reserves therefor and amortization of intangibles.
“Opinion of Counsel” means a written opinion of counsel of recognized national standing
in the field of law relating to municipal bonds, appointed by the Purchaser and approved by IBank,
or appointed by IBank, and in all cases paid for by the Purchaser and acceptable to IBank in its
sole and absolute discretion.
“Origination Fee” means a payment in the amount of $143,000 that shall be due and
payable by the Purchaser on the Effective Date.
“Parity Debt” means to the extent outstanding, the 2012 Bonds and the 2018 Bonds,
together with any loan, bond, note, advance, installment sale agreement, capital lease or other
indebtedness or agreement to incur or pay indebtedness, payable from and/or secured by a lien on
the Net System Revenues , on parity with the lien established by this Agreement securing the
Installment Payments and Additional Payments, issued or incurred pursuant to and in accordance
with the provisions of Section 2.11.
“Parity Debt Instrument” means, collectively, any instrument establishing, evidencing,
governing, or securing Parity Debt, including without limitation any indenture relating to such
Parity Debt, as applicable, and specifically including the 2012 Bonds Instrument and the 2018
Bonds Instrument.
“Parity Debt Service” means, for any Fiscal Year, the sum of the principal and interest due
and payable during such Fiscal Year for all outstanding Parity Debt.
“Payment Account” means the funds or accounts (or any portions of any funds or
accounts), established pursuant to Section 2.03(c) hereof, that will hold monies that the Purchaser
expects to use to pay the Purchase Price under this Agreement.
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EXHIBIT A
12767-0012\2412248v3.doc 5
“Phase I Environmental Site Assessment” means an investigation of the environmental
condition of the Facility, including all improvements and real property as well as surrounding
improvements and real property, to determine the possibility of contamination, based on visual
observation, interviews with knowledgeable persons, and the review of records and d atabases, in
a manner consistent with the current standards and practices employed typically by State
Registered Environmental Assessors, or other professionals licensed in the State as engineers or
geologists, performing environmental assessments in the same general geographic location as the
Facility.
“Phase II Environmental Site Assessment” means the in situ sampling and laboratory
analysis of any contamination discovered in connection with a Phase I Environmental Site
Assessment, in a manner consistent with the current standards and practices employed typically
by State Registered Environmental Assessors, or other professionals licensed in the State as
engineers or geologists, performing environmental assessments in the same general geographic
location as the Facility.
“Preliminary Costs” means architectural, engineering, surveying or soil testing costs,
reports such as environmental impact reports, Phase I or Phase II Environmental Site Assessments,
feasibility studies, rate studies and CEQA reports, and similar costs that are incurred prior to
commencement of acquisition, construction, or rehabilitation of a project, but not land acquisition,
site preparation or similar costs incident to the commencement of construction.
“Prepayment Agreement” has the meaning set forth in Section 2.08(f).
“Prepayment Request” means any written request of the Purchaser to prepay all or a portion
of the principal component of the Purchase Price.
“Prior Guidelines” has the meaning set forth in Section 5.07(g).
“Prior Guidelines Service Providers” has the meaning set forth in Section 5.07(g)(2).
“Proceeds Bonds” means bonds issued, or to be issued, by IBank the proceeds of which
may be used, in whole or part, to provide the Facility Funds.
“Prohibited Prepayment Period” has the meaning set forth in Section 2.08(a)(2).
“Prop 218 Law” means, collectively, the California Constitution article XIII D, the statutes
implementing it, and the published California Appellate Court and Supreme Court decisions
interpreting it in effect on the Effective Date and as such law may be amended or interpreted from
time to time.
“Purchase Price” means the principal amount plus the interest thereon owed by the
Purchaser to IBank under the conditions and terms hereof for the payment of the costs of the
Facility, and the incidental costs and expenses related thereto paid by IBank.
“Purchaser Representative” shall have the meaning set forth in Section 8.10 hereto.
“Rate Challenge” shall have the meaning set forth in Section 5.27 hereto.
“Replacement Agreement Covenant” shall have the meaning set forth in Section 5.11.
“Report” means a written document signed by an Independent Consultant or an
Independent Accountant, and including:
(a) A statement that the person or firm making or giving such Report has read the
pertinent provisions of this Agreement to which such Report relates;
(b) A brief statement as to the nature and scope of the examination or investigation
upon which the Report is based; and
(c) A statement that, in the opinion of such person or firm, sufficient examination or
investigation was made as is necessary to enable said consultant to express an informed opinion
with respect to the subject matter referred to in the Report.
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EXHIBIT A
12767-0012\2412248v3.doc 6
“Reporting Covenants” shall have the meaning set forth in Section 5.03(f).
“Revised Amortization Schedule” shall have the meaning set forth in Section 2.03(f).
“Secured Bonds” means bonds of one or more series issued, or to be issued, by IBank to
which certain rights of IBank under this Agreement, including the right to receive the Installment
Payments, may be from time to time pledged or assigned directly or indirectly as security for such
bonds.
“Senior Debt” means any loan, bond, note, advance, installment sale agreement, capital
lease or other indebtedness or agreement to incur or pay indebtedness, payable from and/or secured
by a lien on the Net System Revenues , which is senior to the lien established by this Agreement
securing the Installment Payments and Additional Payments.
“Senior Debt Instruments” means, collectively, any instrument establishing, evidencing,
governing, or securing Senior Debt, including without limitation any indenture relating to such
Senior Debt, as applicable.
“Service Contract” has the meaning set forth in Section 5.07(g).
“Service Provider” has the meaning set forth in Section 5.07(g)(1).
“State” means the State of California.
“Subordinate Debt” means any loan, bond, note, advance, installment sale agreement,
capital lease or other indebtedness or agreement to incur or pay indebtedness, payable from and/or
secured by a lien on Net System Revenues , which is subordinate to the lien established by this
Agreement securing the Installment Payments and Additional Payments.
“Subordinate Debt Instruments” means, collectively, any instrument establishing,
evidencing, governing, or securing Subordinate Debt, including without limitation any indenture
relating to such Subordinate Debt, as applicable.
“Subordinate Debt Service” means, for any Fiscal Year, the sum of the principal and
interest due and payable during such Fiscal Year for all outstanding Subordinate Debt.
“System” means the entire water production, storage, treatment, transmission, distribution,
sales, and delivery system owned or operated by the Purchaser, including but not limited to all
facilities, real and personal property, works, improvements, rights, and entitlements at any time
owned, operated or determined to be part of the System by the Purchaser for the treatment and
delivery of water, together with any necessary lands, rights, entitlements and other property useful
in connection therewith, together with all extensions thereof and improvements or additions thereto
hereafter acquired, constructed or installed by the Purchaser.
“System Revenues” means, whenever received and including any such moneys
accumulated in the Enterprise Fund at any time, all gross income and revenue received or
receivable by the Purchaser from the ownership or operation of the System, determined in
accordance with generally accepted accounting principles, consistently applied, including all rates,
fees and charges (including connection fees and charges) received by the Purchaser for the services
of the System, and all other income and revenue howsoever derived by the Purchaser from the
ownership or operation of the System or arising from the System, and also including all legally
available income from the deposit or investment of any money in the Enterprise Fund or any rate
stabilization fund, and the proceeds of any taxes that can be used legally to pay Debt Service, but
excluding in all cases any refundable deposits made to establish credit , and advances or
contributions in aid of construction, and Development Impact Fees.
“Tax Exempt Obligation” means any obligation the interest on which is excluded from
gross income for federal income tax purposes pursuant to section 103 of the Code or sect ion 103
of the Internal Revenue Code of 1954, as amended, and Title XIII of the Tax Reform Act of 1986,
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as amended, as well as stock in a regulated investment company to the extent at least ninety-five
percent (95%) of income to the stockholder is treated as interest that is excludable from gross
income under section 103 of the Code.
“Trustee” means the trustee acting in its capacity as such in connection with any Proceeds
Bonds or Secured Bonds, or any successor or assignee as therein provided, including IBank.
SECTION 1.02 Rules of Construction.
Except where the context otherwise requires, words imparting the singular number shall
include the plural number and vice versa, and pronouns inferring the masculine gender shall
include the feminine gender and vice versa. All references herein to particular articles or sections
are references to articles or sections of this Agreement. The headings, subheadings and Table of
Contents herein are solely for convenience of reference and shall not constitute a part of this
Agreement, nor shall they affect its meanings, construction or effect. Any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall not apply in
interpreting this Agreement.
SECTION 1.03. Conditions Precedent.
IBank shall have no obligation under this Agreement until the following conditions
precedent have, in IBank’s reasonable discretion, been satisfied fully.
(a) IBank shall have received two (2) copies of this Agreement bearing the Purchaser’s
original signature and IBank shall have counter-signed this Agreement and provided a copy of this
Agreement bearing its signature to the Purchaser.
(b) IBank shall have received a copy of a resolution duly adopted by the Purchaser’s
governing body approving entry into this Agreement in form and content acceptable to IBank, a
copy of which shall be attached hereto as Exhibit A.
(c) IBank shall have received an originally executed copy of an opinion of the
Purchaser’s legal counsel in form and content substantially similar to the Form of Opinion of Legal
Counsel to the Purchaser attached hereto as Exhibit D.
(d) IBank shall have received an originally executed copy of a Certificate of the
Purchaser from the Purchaser’s Utilities Engineer in form and content substantially similar to the
Form of Certificate of Utilities Engineer attached hereto as Exhibit F.
(e) IBank shall have received an originally executed copy of a Certificate of the
Purchaser from the Purchaser’s Utilities Director in form and content substantially similar to the
Form of Certificate of Purchaser’[s Utilities Director attached hereto as Exhibit G.
(f) The Purchaser shall have paid to IBank the Origination Fee.
(g) The Purchaser shall have provided satisfactory evidence that it has expended fully
its funds, or has immediately available committed funds to expend, for each of the items in Exhibit
H, Schedule of Sources and Uses of Facility Funds, denoted to be the responsibility of the
Purchaser, if any.
(h) The Purchaser shall have provided satisfactory evidence in IBank’s reasonable
discretion that as of the Effective Date the lien of this Agreement on Net System Revenues is on
Parity with the liens on Net System Revenues of the 2012 Bond Instrument and the 2018 Bond
Instrument.
ARTICLE II
TERMS OF SALE
SECTION 2.01 Purchase and Sale.
IBank hereby agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase
from IBank, the Facility under and subject to the terms of this Agreement. This Agreement
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constitutes a continuing agreement between the Purchaser and IBank to secure the full and final
payment of the Purchase Price, subject to the covenants, agreements, provisions and conditions
herein contained.
SECTION 2.02 Design, Acquisition, Construction, and Sale of the Facility.
(a) IBank hereby agrees to perform all necessary acts, including but not limited to
acquisition, entitlement, permitting, installation, design, remediation and improvement, to
construct and deliver an operational Facility (“Facility Delivery”) for the benefit of, and to sell the
Facility to, the Purchaser. In order to implement this provision, IBank hereby appoints the
Purchaser as its agent for the purpose of performing all necessary acts to achieve Facility Delivery;
and the Purchaser hereby accepts such appointment and agrees to perform all acts necessary to
achieve Facility Delivery, including, but not limited to, entry into such engineering, design and
construction contracts and purchase orders as may be necessary, as agent for IBank, to achieve
Facility Delivery. The Purchaser hereby agrees that as such agent it will cause the Facility
Delivery to be diligently pursued and completed as soon as reasonably possible given the nature
of, and inherent challenges in connection with, the construction of the Facility and prevailing
market conditions. IBank hereby agrees to sell, and hereby sells, the Facility to the Purchaser.
The Purchaser hereby agrees to purchase, and hereby purchases, the Facility from IBank.
Notwithstanding the foregoing, it is hereby expressly understood and agreed that IBank shall have
no obligations whatsoever for Facility Delivery and shall, except for providing the Facility Funds
pursuant to the terms of this Agreement, be under no liability of any kind or character whatsoever
for the payment of any costs or expenses incurred by the Purchaser (whether as agent for IBank or
otherwise) for any of the actions associated with the Facility Delivery and that all such costs and
expenses shall be paid by the Purchaser, regardless of whether Facility Funds are sufficient to
cover all such costs.
(b) The Purchaser represents and warrants that all construction contracts and
subcontracts necessary for Facility construction have been or will be awarded pursuant to all
competitive bidding requirements applicable to the Purchaser for similar construction contracts
and subcontracts.
(c) The Purchaser agrees to achieve Facility Delivery by July 1, 2021, or such later
date as consented to by IBank (which consent shall not unreasonably withheld).
(d) In the event IBank is served with a stop payment notice in connection with the
Facility, the Purchaser shall within thirty (30) days (or such longer period as may be consented to
by IBank, which consent shall not unreasonably withheld) cause such stop payment notice to be
discharged or released, whether by payment of the sum requested in such stop payment notice, by
procurement of a stop payment notice release bond, or by any other legally available means. IBank
shall withhold from the Purchaser amounts sufficient to pay the claim stated in the stop payment
notice, and to otherwise comply with applicable law, until the Purchaser provides reasonably
satisfactory evidence to IBank that such stop payment notice is released and/or discharged.
SECTION 2.03 Payment of Purchase Price; Term; Interest Rates.
(a) The Purchase Price to be paid by the Purchaser to IBank hereunder is the sum of
the principal amount of the Purchaser’s obligation hereunder plus interest, subject to prepayment
as provided in Section 2.08. Interest shall accrue on the entire principal balance, whether or not
disbursed, as set forth in the Amortization Schedule.
(b) For purposes of this Agreement:
(1) The total principal amount of the Purchase Price to be paid by the Purchaser
to IBank hereunder is $14,300,000.
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(2) The term of this Agreement commences on the Effective Date and ends on
June 1, 2040, except as sooner terminated as set forth herein or otherwise extended.
(3) The interest rate is 2.50% per annum.
(c) For purposes of compliance with Federal Tax laws applicable to IBank’s Proceeds
Bonds and/or Secured Bonds, the Purchaser hereby establishes a “Payment Account” within the
Enterprise Fund and agrees to deposit monies intended for paying such Installment Payments in
the Payment Account until the time that such Installment Payments become due and payable
whereupon the Purchaser would take steps to pay Installment Payments as provided herein.
(d) The Purchaser shall make Installment Payments of principal and interest as set forth
in the Amortization Schedule. IBank shall calculate the Amortization Schedule based on (i) the
initial principal amount of the Purchase Price as set forth in Section 2.03(b)(1) hereto, (ii) the term
of this Agreement as set forth in Section 2.03(b)(2) hereto, and (iii) the interest rate as set forth in
Section 2.03(b)(3) hereto (collectively, the “Amortization Terms”), and shall attach the
Amortization Schedule as Exhibit E hereto upon the Effective Date. Interest shall commence to
accrue hereunder on June 19, 2020, as set forth in the Amortization Schedule. All payments of
interest shall be computed on the basis of a 360-day year of 12 30-day months. In the absence of
manifest error, the Amortization Schedule shall be final, conclusive, and binding on the Purchaser.
(1) The first principal payment shall be due June 1, 2021, as set forth in the
Amortization Schedule.
(2) Interest only payments will be based upon the total outstanding principal
component of the Purchase Price, including the amounts not disbursed, using an interest rate of
2.50% per annum.
(3) Interest shall accrue on the entire outstanding principal balance of the
Purchase Price, whether or not Facility Funds have been disbursed, all as set forth in the
Amortization Schedule. Provided, however, as an offset against interest paid on undisbursed
Facility Funds, the Purchaser shall receive payment following the end of each IBank Fiscal Year
on any undisbursed portions of the Facility Funds (excepting any undisbursed Facility Funds
subject to a Facility Funds Reduction, as set forth in this Agreement) of the lesser of: (i) the actual
interest earned by IBank during such IBank Fiscal Year on the undisbursed portions of the Facility
Funds, or (ii) the interest that would have accrued during such IBank Fiscal Year on the
undisbursed portions of the Facility Funds calculated using the interest rate of this Agreement.
Said reimbursement shall be in the form of a check payable to the order of the Purchaser at the
address set forth in Section 8.09 of this Agreement on or about the ninetieth (90 th) calendar day
following the end of the IBank Fiscal Year.
(e) Commencing on the day following the end of the interest only period (if any), the
principal component of the Purchase Price shall be fully amortized over the remaining term of this
Agreement.
(f) IBank may, in its sole and absolute discretion, revise the Amortization Schedule (a
“Revised Amortization Schedule”) subsequent to the Effective Date (and promptly provide the
Purchaser a copy thereof) to (i) correct a computational error in the prior Amortization Schedule,
(ii) account for any partial prepayment permitted under Section 2.08, or (iii) account for any
Facility Funds Reduction permitted under Section 2.08. Any Revised Amortization Schedule shall
be calculated (i) such that IBank will receive the aggregate sum of all principal and interest
Installment Payments it would have received had the Amortization Schedule been calculated
correctly based on the Amortization Terms and interest commenced to accrue on June 19, 2020,
(ii) to account for any partial prepayment, or (iii) to account for any Facility Funds Reduction, as
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applicable. The Revised Amortization Schedule shall be incorporated herein automatically upon
its completion by IBank, and in the absence of manifest error, any such Revised Amortization
Schedule will be final, conclusive, and binding on the Purchaser.
(g) The obligation of the Purchaser to pay the Purchase Price by paying the Installment
Payments and Additional Payments is, subject to Section 5.10, absolute and unconditional. Until
such time as the Purchase Price shall have been paid in full, the Purchaser shall not discontinue or
suspend any Installment Payments or Additional Payments required to be paid by it under this
Agreement when due, whether or not the Facility or any part thereof is operating or operable, or
its use is suspended, interfered with, reduced, curtailed or terminated in whole or in part . The
payment of the Installment Payments and payment of the IBank Annual Fee component of the
Additional Payments shall not be subject to reduction whether by offset or otherwise and shall not
be conditional upon the performance or nonperformance by any party to any agreement for any
cause whatsoever.
SECTION 2.04 Payment on Business Days.
Whenever in this Agreement any amount is required to be paid on a day that is not a
Business Day, such payment shall be required to be made on the Business Day immediately
following such day.
SECTION 2.05 Disbursement of Facility Funds.
(a) IBank shall disburse Facility Funds solely for the purposes set forth in Exhibit H
hereto. The aggregate sum of disbursements for each category set forth in Exhibit H shall not
exceed the corresponding amounts set forth in Exhibit H. Upon compliance with disbursement
conditions set forth herein and receipt of a written request for disbursement, IBank will disburse a
portion of the Facility Funds to the Purchaser for Facility Costs in amounts of at least five thousand
dollars ($5,000), up to a total aggregate amount not to exceed the Facility Funds. All requests for
payment shall be accompanied by information and documentation as may be requested by IBank
to determine the amount of Facility Funds to be disbursed.
(b) Each disbursement request shall specify one or more of the following for Facility
Funds sought in the disbursement request:
(1) The Purchaser previously paid the Facility Costs and is requesting
reimbursement; or
(2) The Purchaser will pay the Facility Costs directly upon receipt of funds
from IBank.
(a) By submitting to IBank a disbursement request of the type set forth in subparagraph
(b)(1), above, the Purchaser represents and warrants that it has previously paid the Facility Costs
indicated in such disbursement request. By submitting to IBank a disbursement request of the type
set forth in subparagraph (b)(2), above, the Purchaser represents and warrants that it will pay the
Facility Costs indicated in such request directly upon receipt of funds from IBank.
(b) No Facility Funds shall be disbursed unless and until IBank receives
documentation, satisfactory to IBank, demonstrating that the Purchaser has incurred costs that
constitute both reasonable and necessary Facility Costs and which are consistent with the cost
categories, amounts and requirements described in this Agreement.
(c) Unless otherwise consented to in writing by IBank, the Purchaser must both:
(1) begin Facility construction no later than six months after the Effective Date; (2) achieve
Facility Delivery and commence occupation and use of the Facility by the date set forth in
paragraph 2.02(c); and (3) submit final invoices to IBank for the entire amount of the Facility
Funds no later than 35 months after the Effective Date. If the Purchaser fails to meet any of these
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conditions, IBank may, among other legally available remedies, elect to withhold any and all
undisbursed Facility Funds pursuant to Section 2.14 herein.
(d) Notwithstanding any contrary provisions of this Agreement or any related
documents, under no circumstances will IBank be obligated to make disbursements in excess of
the lesser of (i) actual Facility Costs incurred or (ii) the amount of the Facility Funds.
(e) Not more than ninety-five percent (95%) of each invoice payable from Facility
Funds designated for construction shall be disbursed until IBank receives a recorded notice of
completion for the Facility or other evidence of completion satisfactory to IBank and the Purchaser
has met all conditions precedent to final disbursement set forth herein.
SECTION 2.06 Additional Payments.
(a) The Purchaser shall pay Additional Payments to IBank as follows:
(1) A payment of the IBank Annual Fee on June 1st of each year during the term of
this Agreement in an amount equal to 0.3% of the outstanding principal component of the
remaining Installment Payments as set forth in the Amortization Schedule. Any unpaid portion of
the IBank Annual Fee shall accrue interest at the lesser of 12% per annum or the Maximum Rate;
and
(2) Amounts in each year as shall be required by IBank for the payment of
extraordinary expenses of IBank in connection with any amendment or modification of this
Agreement requested by the Purchaser, an Event of Default, or the enforcement of this Agreement
or any amendments hereto, including all expenses, fees and costs of accountants, trustees, and
attorneys, litigation costs, insurance premiums and all other extraordinary costs of IBank.
Extraordinary expenses and extraordinary costs are those documented expenses and costs related
to this Agreement that IBank determines in its reasonable discretion to be in excess of ordinary
and customary expenses and costs incurred as part of the IBank Annual Fee pursuant to this Section
2.06. IBank shall from time-to-time submit invoices to the Purchaser for such Additional
Payments, together with any appropriate supporting documents for such extraordinary costs or
expenses. The Purchaser shall pay such invoices by June 1st of the year in which the Borrower
received them and any amounts not so paid shall accrue interest at the lesser of 12% per annum or
the Maximum Rate;
(b) Reserved
(c) Unless expressly waived by IBank in writing, in the event the Purchaser fails to
cure any Reporting Covenants noncompliance as set forth in Section 5.03(f) or fails to cure any
Replacement Agreement Covenant noncompliance within 30 days after receipt by the Purchaser
of the replacement agreement from IBank as set forth in Section 5.11 of this A greement, the
amount of $1,000, shall automatically be imposed monthly as liquidated damages charged to the
Purchaser and not as a penalty (the “Liquidated Damages Charge”), and shall continue to be
imposed throughout the Liquidated Damages Period. The Purchaser shall be obligated to pay the
Liquidated Damages Charge as Additional Payments. Such Additional Payment shall be reflected
in an IBank invoice to the Purchaser. The Purchaser agrees that, under the circumstances existing
as of the date of this Agreement, such Liquidated Damages Charge represents a reasonable
estimate of the costs and expenses IBank will incur as a result of the Purchaser’s noncompliance
with the Reporting Covenants and/or the Replacement Agreement Covenant. Nothing herein shall
be construed as an express or implied agreement by IBank to forbear on its exercise of any other
rights or remedies provided by this Agreement, as a waiver of such rights or remedies, or as a
waiver of any default or Event of Default under this Agreement.
SECTION 2.07 Reserved.
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SECTION 2.08 Limitations on Prepayment and Facility Funds Reductions.
(a) Limitation on Early Prepayment. Except as provided in Section 5.10 (regarding
use of Net Proceeds for prepayment), the Purchaser is not permitted to prepay all or a portion of
the outstanding principal component of the Purchase Price during the period commencing with the
Effective Date and ending with the date that is ten (10) years after the Effective Date (the
“Prohibited Prepayment Period”).
(b) Authorized Prepayment Period. At any time, after ten (10) years from the Effective
Date (the “Authorized Prepayment Period), the Purchaser, upon satisfaction of the conditions of
this Section 2.08, may prepay all or a portion of the outstanding principal amount of the Purchase.
Further, the Purchaser shall pay to IBank all interest accrued and unpaid on the prepayment amount
through the date of prepayment, plus any Additional Payments, plus the pro rata portion of the
IBank Annual Fee.
(c) Facility Funds Reduction. During the Prohibited Prepayment Period the amount of
undisbursed Facility Funds will not be reduced and will continue to accrue interest and other
charges as set forth in this Agreement. During the Authorized Prepayment Period, upon
satisfaction of the conditions of this Section 2.08, the Purchaser may obtain a Facility Funds
Reduction. Further, the Purchaser shall pay to IBank all interest accrued and unpaid on the Facility
Funds Reduction amount through the date of the Facility Funds Reduction, plus any Additional
Payments, plus the pro rata portion of the Annual Fee.
(d) Written Request Required. The Purchaser must provide IBank with its Prepayment
Request in writing and at least ninety (90) days prior to the requested prepayment or reduction
date. IBank will not accept any prepayment funds from the Purchaser, or implement a Facility
Funds Reduction, unless and until all applicable requirements of this Section 2.08 have been met.
(e) Amendment for Partial Prepayment. If during the Authorized Prepayment Period
the Purchaser prepays a portion of the outstanding principal component of the Purchase Price
(through a prepayment pursuant to Section 2.08(c) or the obtaining of a Facility Funds Reduction
pursuant to Section 2.08(d)), then IBank and the Purchaser shall enter into an amendment to this
Agreement reflecting the terms of the prepayment, including a Revised Amortization Schedule,
and the Purchaser shall pay to IBank all interest accrued and unpaid on the prepayment amount,
plus the portion of the outstanding principal component of the Installment Payments approved for
prepayment, plus any Additional Payments, plus the pro rata portion of the Annual Fee. IBank
will not accept any prepayment, and any Facility Funds Reduction will not take effect, until the
Parties have executed such amendment to this Agreement, provided, however, IBank shall not
unreasonably delay the execution and delivery of any such amendment to this Agreement.
(f) Prepayment Agreement for Full Prepayment. In the event the Purchaser elects to
prepay the entire outstanding amount of the Purchase Price as set forth in paragraph 2.08(b), the
Parties shall enter into a prepayment agreement (a “Prepayment Agreement”) in form and content
acceptable to IBank in its reasonable discretion. IBank will not accept a full prepayment, and the
Purchaser’s obligations under this Agreement will not terminate as set forth in Section 8.05 of this
Agreement, until the Parties have executed a Prepayment Agreement; provided, however, IBank
shall not unreasonably delay the execution and delivery of a Prepayment Agreement.
SECTION 2.09 Validity of Pledge and First Lien.
The pledge of the Net System Revenues constitutes a valid pledge of and first position lien
on all of the Net System Revenues on parity with the lien(s) securing the Parity Debt.
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SECTION 2.10 Limited Obligation.
The Purchaser’s obligation to make Installment Payments is a special obligation of the
Purchaser payable solely from Net System Revenues as provided herein and does not constitute a
debt of the Purchaser or the State of California or of any political subdivision thereof within the
meaning of any constitutional or statutory debt limit or restriction.
SECTION 2.11 Permitted Additional Parity Debt.
(a) The Purchaser may, after the Effective Date, issue or incur Parity Debt in such
principal amount as shall be determined by the Purchaser subject to the requirements for additional
obligations as set forth in all existing Parity Debt Instruments and the following specific
conditions, which are hereby made conditions precedent to the Purchaser’s issuance and delivery
of such Parity Debt, provided that to the extent that an existing Parity Debt Instrument conflicts
with any of the requirements set forth in this Section 2.11, the more restrictive provision shall
prevail:
(1) No Event of Default hereunder or under any other instrument secured by
System Revenues shall have occurred and be continuing, and the Purchaser shall otherwise be in
compliance with all covenants set forth in this Agreement in all material respects; and
(2) Net System Revenues calculated pursuant to generally accepted accounting
principles, consistently applied, and excluding the proceeds of any taxes and also excluding any
balances in any fund at the beginning of the period of the computation, as shown by the books of
the Purchaser for the most recently completed Fiscal Year, or any more recent twelve month period
selected by the Purchaser ending not more than sixty (60) days prior to the adoption of the
resolution pursuant to which instrument such Parity Debt is issued or incurred, as shown by the
books of the Purchaser, plus, at the option of the Purchaser, either or both of the items below
designated in subsections (b)(1) and (b)(2), shall have amounted to at least 1.25 times the
Maximum Annual Debt Service taking into consideration the maximum annual debt service
payable in any Fiscal Year on the proposed Parity Debt, plus any regularly-occurring fees the
Purchaser is required to pay under the applicable Parity Debt Instrument, as set forth in the Report
of an Independent Accountant or Independent Consultant delivered to IBank; provided, however,
that where the proposed Parity Debt is with IBank, no Report of an Independent Accountant or
Independent Consultant shall be required.
(b) Either or both of the following allowances may be added to Net System Revenues
for the purpose of meeting the condition contained in subsection (a)(2) above:
(1) An allowance for increased System Revenues from any additions to or
improvements or extensions of the System to be made with the proceeds of such proposed Parity
Debt, and also for System Revenues from any such additions, improvements, or extensions which
have been made from moneys from any source but which, during all or any part of such Fiscal
Year or any more recent twelve month period, were not in service, all in an amount equal to ninety
percent (90%) of the estimated additional average annual System Revenues to be derived from
such additions, improvements, and extensions for the first thirty six (36) month period following
closing of the proposed Parity Debt, all as shown in the Report of an Independent Accountant or
Independent Consultant delivered to IBank; provided however, that in those instances where the
proposed Parity Debt is with IBank, no Report of an Independent Accountant or Independent
Consultant shall be required; and/or
(2) An allowance for increased System Revenues arising from any increase in
the charges made for service from the System which has become effective prior to the incurring of
such proposed Parity Debt but which, during all or any part of such Fiscal Year or any more recent
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twelve (12) month period, was not in effect in an amount equal to one hundred percent (100%) of
the amount by which System Revenues would have been increased if such increase to charges had
been in effect during the whole of such time period and any period prior to the incurring of such
proposed Parity Debt, as shown in the Report of an Independent Accountant or Independent
Consultant delivered to IBank; provided however, that where the proposed Parity Debt is with
IBank, no Report of an Independent Accountant or Independent Consultant shall be required.
(c) For purposes of making the calculations set forth in subsection (a)(2):
(1) If any Parity Debt includes capital appreciation bonds, then the accreted
value payment thereof shall be deemed a principal payment and interest that is compounded and
paid as accreted value shall be deemed due on the scheduled redemption or payment date of such
capital appreciation bond;
(2) If any Parity Debt includes interest payable pursuant to a variable interest
rate formula, the variable interest rate portion of such Parity Debt for periods when the actual
interest rate cannot yet be determined, shall be assumed to be the maximum interest rate under the
Parity Debt.
(d) The Purchaser shall deliver to IBank, prior to incurring or issuing such proposed
Parity Debt, a copy of the proposed Parity Debt Instrument and Certificate of the Purchaser
certifying that the conditions precedent to the issuance of such Parity Debt set forth in subsections
(a) and (b) above have been satisfied and, as applicable, the Report required by subsections (a) and
(b) above has been delivered; provided however, that where the proposed Parity Debt is with
IBank, no copy of the proposed Debt Instrument nor Report shall be required and the certification
required by this Section 2.11(d) may be made as part of the Parity Debt Instrument for the new
IBank Parity Debt.
(e) Notwithstanding subsections (a)(2), (b), (c), and (d) above, proposed Parity Debt to
be issued for the purpose of refunding outstanding Parity Debt may be issued without compliance
with subsections (a)(2), (b), (c) and (d) above, so long as such refunding results in lower Parity
Debt Service in each Fiscal Year after such refunding and the final maturity date of the refunding
Parity Debt is no later than the final maturity date of the refunded Parity Debt. The Purchaser shall
deliver to IBank the Parity Debt Instrument for such refunding within 30 days of such Parity Debt
issuance.
SECTION 2.12 The Purchaser’s Obligation for Other Facility Costs.
The Purchaser acknowledges and agrees that the amount of IBank’s obligations under this
Agreement is limited to the amount of the Facility Funds. As such, it is the Purchaser’s obligation
to pay all other costs associated with or needed for completion of the Facility in excess the Facility
Funds amount.
SECTION 2.13 Facility Description.
For the purposes of this Agreement, the description of each of the Facility shall be as set
forth in Exhibit B hereto.
SECTION 2.14 Withholding of Facility Funds.
(a) IBank may withhold all or any portion of the Facility Funds in the event that:
(1) The Purchaser has violated any of the material terms, provisions,
conditions, commitments, representations, warranties, or covenants of this Agreement, as
determined by IBank in its reasonable discretion, or if an Event of Default has occurred; or
(2) The Purchaser is unable to demonstrate, to the satisfaction of IBank in its
reasonable discretion, the ability to complete the Facility or to maintain adequate progress toward
completion thereof.
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(b) In the event that Facility Funds are withheld from the Purchaser, IBank shall notify
the Purchaser of the reasons, identify any conditions the Purchaser must satisfy in order to resume
disbursements, and advise the Purchaser of the time in which to remedy the failure or violation or
satisfy the applicable conditions.
(c) If Facility Funds are withheld pursuant to this section, the Purchaser remains
obligated to repay the entire amount of the Purchase Price but to the extent applicable, the
Purchaser may submit to IBank a Facility Funds Reduction Request pursuant to Section 2.08.
SECTION 2.15 Reserve Account.
In the event that (i) the Purchaser incurs Parity Debt after the Effective Date in accordance
with the requirements of Section 2.11; and (ii) such Parity Debt requires the Purchaser to establish
a reserve fund or account, unless waived in writing by IBank the Purchaser shall establish, fund,
and maintain, so long as any obligations under this Agreement remain outstanding, a reserve
account in favor of IBank in an amount equal to the reserve requir ement of such Parity Debt
multiplied by the proportion of the outstanding principal balance of the Purchase Price of this
Agreement to the Parity Debt Amount. By way of example only, if the Parity Debt is in the amount
of $10,000,000 and the reserve requirement for such Parity Debt is $1,000,000, and the outstanding
principal balance of the Purchase Price is $5,000,000, then the reserve fund or account to be
established in favor of IBank pursuant to this Section 2.15 shall be equal to $500,000
(({outstanding balance of Purchase Price}/$10,000,000) x $1,000,000). Said reserve account shall
be established and funded immediately upon the closing of the Parity Debt transaction.
SECTION 2.16 Permitted Subordinate Debt.
The Purchaser may issue or incur Subordinate Debt following the Effective Date in such
principal amount as shall be determined by the Purchaser subject to the following specific
conditions precedent to the issuance or incurrence of such Subordinate Debt.
(a) No Event of Default hereunder, and no default under any other obligation or
instrument secured by Net System Revenues, shall have occurred and be continuing, and the
Purchaser shall be in compliance with all covenants of this Agreement and any other instrument
securing, evidencing, governing, or relating to other obligations secured by, Net System Revenues.
(b) Net System Revenues calculated pursuant to generally accepted accounting
principles, consistently applied, and excluding the proceeds of any taxes and also excluding any
balances in any fund at the beginning of the period of the computation, as shown by the books of
the Purchaser for the most recently completed Fiscal Year, or any more recent twelve (12) month
period selected by the Purchaser ending not more than sixty (60) days prior to the adoption of the
resolution pursuant to which instrument such Subordinate Debt is issued or incurred, as shown by
the books of the Purchaser, shall have amounted to at least 1.10 times the aggregate sum of the
Maximum Annual Debt Service of all debt secured by Net System Revenues and the maximum
annual debt service payable in any Fiscal Year on all Subordinate Debt, including the proposed
Subordinate Debt, plus any regularly-occurring fees the Purchaser is required to pay under any
applicable Parity Debt Instrument, as set forth in the Report of an Independent Accountant or
Independent Consultant delivered to IBank.
ARTICLE III
PLEDGE OF REVENUES; APPLICATION OF FUNDS
SECTION 3.01 Pledge of Net System Revenues.
The Installment Payments and Additional Payments and all Parity Debt shall be equally
secured by a pledge of and first lien on all of the Net System Revenues, without preference or
priority for series, issue, number, dated date, sale date, date of execution or date of delivery. The
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Purchaser hereby grants a lien securing the obligations of this Agreement on Net System Revenues,
without any physical delivery thereof or further act, and such lien shall be valid and binding as
against all parties having claims of any kind in tort, contract or otherwise against the Purchaser.
Neither the Installment Payments, the Additional Payments nor this Agreement is a debt of IBank,
the State or any of its political subdivisions (other than the Purchaser) and neither IBank, the State
nor any of its political subdivisions (other than the Purchaser) is liable thereon. Pursuant to Section
5451 of the Government Code of the State, the pledge of the Purchaser’s Net System Revenues
for the repayment of the principal of, premium, if any, and interest components of the Installment
Payments constitutes a first lien and security interest which immediately attaches to such Net
System Revenues, and is effective and binding against the Purchaser and its successors and
creditors and all others asserting rights therein irrespective of whether those parties have notice of
the pledge, irrespective of whether such amounts are or may be deemed to be a fixture and without
the need for physical delivery, recordation, filing or further act.
SECTION 3.02 System Revenues to be Deposited in the Enterprise Fund.
In order to carry out its obligation to pay the Installment Payments and Additional
Payments, the Purchaser agrees and covenants that it shall maintain the Enterprise Fund as a
distinct fund separate and apart from the Purchaser’s other funds. All System Revenues received
by it shall be deposited when and as received in trust in the Enterprise Fund and shall be applied
and used only as and in the order provided herein: The Purchaser shall pay all Operations and
Maintenance Costs (including amounts reasonably required to be set aside in contingency reserves
for Operations and Maintenance Costs the payment of which is not then immediately required)
from the Enterprise Fund as they become due and payable, and all remaining money on deposit in
the Enterprise Fund shall then be used to pay Section 3.03 amounts. After making all the set asides
and payments hereinabove required to be made in each Fiscal Year, the Purchaser may expend in
such Fiscal Year any remaining money in the Enterprise Fund for any lawful purpose of th e
Purchaser. The Purchaser agrees and covenants to maintain the Enterprise Fund so long as any
portion of the Purchase Price remains unpaid.
SECTION 3.03 Priority of Payments Made from the Enterprise Fund.
The Purchaser shall promptly pay the following amounts in the following order and at the
following times:
(a) Installment Payments and Additional Payments.
(1) The Purchaser shall promptly pay to (A) IBank (i) the principal portion of
the Installment Payments, together with the IBank Annual Fee, which is due at IBank by June 1st
of each year, as set forth on the Amortization Schedule, and (ii) the interest portions of Installment
Payments, which are due at IBank by each Interest Payment Date, as set forth in the Amortization
Schedule; and (B) the trustee(s) or holder(s) of any Parity Debt, payment of Parity Debt Service
as it becomes due and payable, all on a pro rata basis.
(2) The Purchaser shall promptly pay to (A) IBank Additional Payments due
pursuant to Section 2.06, and (B) the trustee(s) or holder(s) of any other Parity Debt, payment of
any payments due under the applicable Parity Debt Instrument that are not Parity Debt Service, all
on a pro rata basis.
(b) Reserve Accounts.
Any amounts needed to replenish reserve accounts established hereunder or for any Parity
Debt, all on a pro rata basis.
(c) Approved Subordinate Debt Payments.
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Payment of Subordinate Debt Service, together with payment of any sums due under the
applicable Subordinate Debt Instrument that are not Subordinate Debt Service. all as it becomes
due and payable on Subordinate Debt pursuant to Subordinate Debt issued or incurred in
accordance with Section 2.16 hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 4.01 Organization; Authority.
The Purchaser is duly organized and existing as a municipal corporation under the laws of
the State and has all necessary power and authority to enter into and perform its duties (including,
but not limited to, the authority to set rents, fees, rates and charges without the approval of any
other governing body and to pledge the Net System Revenues ) under this Agreement.
SECTION 4.02 Agreement Valid and Binding.
This Agreement has been duly authorized, executed and delivered by the Purchaser and
constitutes the legal, valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, except as limited by applicable bankruptcy, insolvency, debt adjustment, receivership,
fraudulent conveyance or transfer, moratorium, reorganization, arrangements or other similar laws
affecting creditors’ rights, to the application of equitable principles, to the exercise of judicial
discretion in appropriate cases and to the limitations on legal remedies against public entities in
the State or other laws or equitable principles affecting the enforcement of creditors’ rights
generally.
SECTION 4.03 No Conflict in Execution of Agreement.
The execution and delivery by the Purchaser of this Agreement and compliance with the
provisions hereof will not conflict with or constitute a breach of or default by the Purchaser under
any law, administrative regulation, court decree, resolution, charter, by-law, or any agreement to
which the Purchaser is subject or by which it is bound or by which its properties may be affected.
SECTION 4.04 No Litigation.
Except for the Kessner Complaint, there is no action, suit, proceeding or investigation at
law or in equity before or by any court or governmental agency or body pending and notice of
which has been received by the Purchaser or, to the best of the Purchaser’s knowledge, threatened
against the Purchaser to restrain or enjoin the execution or delivery of this Agreement, or in any
way contesting or affecting the validity of this Agreement, or contesting the powers of the
Purchaser to enter into or perform its obligations under this Agreement , or that would affect the
Purchaser’s ability to perform its obligations under this Agreement , including, but not limited to,
the pledge of Net System Revenues.
SECTION 4.05 No Breach or Default.
The Purchaser is not in breach of or in default under any applicable law or administrative
regulation of the State or the United States, the Constitution of the State (including article XVI,
section 18 thereof), any applicable judgment or decree, any agreement, indenture, bond, note,
resolution, agreement or other instrument to which the Purchaser is a party or is otherwise subject
which, if not resolved in favor of the Purchaser, would have a material adverse impact on the
Purchaser’s ability to perform its obligations under this Agreement and no event has occurred and
is continuing which, with the passage of time or the giving of notice, or both, would constitute a
default or an event of default under any such instrument which, if not resolved in favor of the
Purchaser, would have a material adverse impact on the Purchaser’s ability to perform its
obligations under this Agreement.
SECTION 4.06 No Consent, Approval, or Permission Necessary.
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No consent or approval of any trustee or holder of any indebtedness of the Purchaser, any
entity to which the Purchaser is a member, or any other third party, and no consent, permission,
authorization, order or licenses of, or filing or registration with, any governm ental authority, is
necessary in connection with the execution and delivery of this Agreement or the consummation
of any transaction contemplated herein, except as have been obtained or made and as are in full
force and effect.
SECTION 4.07 Accuracy and Completeness of Information Submitted to IBank.
The information relating to the Purchaser and its System generated and submitted by the
Purchaser, and to the best of the Purchaser’s knowledge the information relating to the Purchaser
and the System generated by third parties, and in either case delivered by the Purchaser to IBank,
including, but not limited to, all information in the application for Facility Funds, was true at the
time submitted to IBank and, as of the Effective Date, remains true and correct in all material
respects; and such information did not and does not contain any untrue or misleading statement of
a material fact or omit to state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were made.
SECTION 4.08 Financial Statements of the Purchaser.
The Purchaser’s financial statements that have been furnished to IBank were prepared in
conformity with generally accepted accounting principles, consistently applied, and fairly present
in all material respects the financial condition of the Purchaser as of the date thereof and the results
of its operations for the period covered thereby. As of the Effective Date, to the best of the
Purchaser’s knowledge, there has been no material adverse change in the business, condition
(financial or otherwise), or operations of the Purchaser since the date of such financial statements.
Notwithstanding the foregoing, the Purchase is uncertain of the economic effect of the novel
coronavirus pandemic, as a result of which the Governor of the State proclaimed a State of
Emergency on March 4, 2020, and is unable to ascertain the degree to which such economic effect
will, or will not, impact the Purchasers Net System Revenues and sums within the Enterprise Fund.
SECTION 4.09 Licenses, Permits, and Approvals for Completion of Facility.
The Purchaser has obtained, or has applied for and will obtain within a timeframe sufficient
for the Purchaser to achieve Facility Delivery and to operate the Facility by the date set forth in
paragraph 2.02(c), all licenses, entitlements, certificates, authorizations, permits and approvals
from any governmental agency or authority having jurisdiction over the Purchaser or the Facility
required to commence construction of the Facility, for Facility Delivery, and to commence
operations of the Facility.
SECTION 4.10 Authority to Operate the System.
The Purchaser has obtained all licenses, entitlements, certificates, authorizations, permits,
and approvals from any governmental agency or authority having jurisdiction over the Purchaser
or the System required for the operation of the System.
SECTION 4.11 Valid Title; No Conflict.
(a) The Purchaser, upon completion of the Facility, will have good and valid title to
the Facility sufficient to carry out the purposes of this Agreement.
(b) To the best of the Purchaser’s knowledge no officer, member of the Board of
Directors, or official of IBank has any material interest in the Facility, the Purchaser, or in the
transactions contemplated by this Agreement. IBank represents to the Purchaser that, to the best
of the IBank’s knowledge no officer, member of the Board of Directors, or official of IBank has
any material interest in the Facility, the Purchaser, or in the transactions contemplated by this
Agreement.
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SECTION 4.12 Other Liens; No Lien Senior to IBank Lien.
Except as may otherwise be described herein, as of the Effective Date, there is no other
debt or obligation that places a lien on or in any way encumbers the Purchaser’s Net System
Revenues other than the first lien established by Section 3.01 of this Agreement, and, to the extent
outstanding, the lien established by the 20012 Bonds Instrument and/or the 2018 Bonds
Instrument. Further, the Purchaser represents and warrants that the lien on Net System Revenues
established by Section 3.01 of this Agreement is not junior to any lien.
SECTION 4.13 Purchaser’s Compliance with Prop 218 Law.
The Purchaser hereby represents and warrants that, as of the Effective Date, the rates, fees
and charges it imposes on its System customers are legal, valid, and comply with the Prop 218
Law. The Purchaser further specifically warrants and represents that (i) the rates, fees and char ges
it imposes on its System customers do not exceed, in the aggregate, the funds required to operate
the System, and (ii) its method of allocating rates, fees and charges among users of the System
complies with the proportionality requirements of the Prop 218 Law. IBank acknowledges the
Purchaser has provided notice of the Kessner Complaint, in which certain plaintiffs alleged, among
other things, that the Purchaser has failed to comply with Prop 218 Law.
SECTION 4.14 No Challenge to Purchaser’s Rates, Fees and Charges.
The Purchaser hereby represents and warrants that, as of the Effective Date, there is no
action, suit, proceeding or investigation at law or in equity before or by any court or governmental
agency or body pending and notice of which has been received by the Purchaser or, to the best of
the Purchaser’s knowledge, threatened challenging Purchaser’s compliance with the Prop 218 Law
as it applies to Purchaser’s rates, fees and charges, except for the Kessner Complaint.
SECTION 4.15 Purchaser’s Compliance with Conditions Precedent to Parity Debt
Set Forth in 2012 Bonds Instrument and 2018 Bonds Instrument.
The Purchaser represents, warrants, and by the execution of this Agreement certifies as of
the Effective Date, that (1) all conditions under the 2012 Bonds Instrument and the 2018 Bonds
Instrument precedent to the lien of this Agreement being on parity with the lien imposed by the
2012 Bonds Instrument and the 2018 Bonds Instrument have been satisfied, and (2) the lien of this
Agreement is on equal priority position with the liens of each of the 2012 Bonds Instrument and
the 2018 Bonds Instrument.
SECTION 4.16 Continuing Validity of Representations and Warranties.
Unless the representations and warranties set forth in this Article IV are limited by their
express terms to a specific time period or a point in time, the foregoing representations and
warranties are true, accurate, and correct as of the Effective Date and shall continue to be true,
accurate, and correct throughout the term of this Agreement.
ARTICLE V
AFFIRMATIVE COVENANTS OF THE PURCHASER
SECTION 5.01 Punctual Payment.
The Purchaser hereby covenants to punctually pay, or cause to be paid, all payments
required hereunder when due and in all other respects in strict conformity with the terms of this
Agreement, and to faithfully observe and perform all of the conditions, covenants, and
requirements of this Agreement.
SECTION 5.02 Payment of Claims.
The Purchaser hereby covenants that, from time to time, it will pay and discharge, or cause
to be paid and discharged, any and all lawful claims for labor, mater ials or supplies, which, if
unpaid, might become liens or charges upon the System and all personal and real property related
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thereto, or upon the System Revenues or any part thereof, or upon any funds in the hands of IBank,
or which might impair the security for the payment of the Installment Payments or Additional
Payments. Provided, however, nothing herein contained shall require the Purchaser to make any
such payment so long as the Purchaser in good faith shall contest the validity of said claims and
shall act promptly to remove any liens or charges arising from said claims, by, among other things,
obtaining surety bonds to cause the release of such liens or charges.
SECTION 5.03 Books and Accounts; Financial Statements.
(a) The Purchaser hereby covenants that it will keep proper books of record and
accounts in which complete and correct entries shall be made of all transactions relating to the
System Revenues. Such books of record and accounts shall at all times during business hours be
subject to the inspection of IBank or its designee.
To the extent that any continuing disclosure certificates entered into by the Purchaser in
connection with other debt or obligations require the information required in subsections (b)
through (e), the Purchaser may submit a copy of the information and materials required by such
continuing disclosure certificate instead of providing separate statements setting forth the required
information.
(b) The Purchaser shall prepare and file with IBank annually as soon as practicable,
but in any event not later than one hundred eighty (180) days after the close of each Fiscal Year,
so long as this Agreement has not been discharged by IBank, an audited financial statement of the
Purchaser relating to the System Revenues and the Enterprise Fund for the preceding Fiscal Year,
prepared by an Independent Accountant under generally accepted accounting procedures,
consistently applied; provided, however, that in the event that such audited financial statement is
not available by the above-referenced filing date, an unaudited financial statement may be
substituted therefore. In the event an unaudited financial statement is submitted, the Purchaser
shall file the audited financial statement with IBank as soon as it becomes available. The Purchaser
will furnish to IBank such reasonable number of copies of such audited financial statements as
may be required by IBank for distribution (at the expense of the Purchaser). Alternatively, the
Purchaser may furnish electronic copies of such audited financial statements to IBank in portable
document format, or other format acceptable to IBank in its sole and absolute discretion.
(c) Simultaneously with the delivery of the annual financial statements, or more
frequently following forty-five (45) calendar days’ written notice by IBank, as IBank shall
determine in its sole and absolute discretion, the Purchaser shall deliver to IBank a Certificate of
the Purchaser stating the following:
(1) The number of System users as of the end of the Fiscal Year, or as of any
other date specified in writing by IBank in its reasonable discretion;
(2) Calculation of the coverage ratios described in Section 5.06 for the Fiscal
Year most recently ended, or for any other 12-month period as specified in writing by IBank in
its reasonable discretion, together with a certification that adopted rates and charges comply with
the requirements of that section;
(3) Notification of the withdrawal of any System user generating four percent
(4%) or more of System Revenues since the last reporting date;
(4) Any significant System facility retirements or expansions planned or
undertaken since the last reporting date;
(5) Notification of any Parity Debt or Subordinate Debt incurred since the last
reporting date and certification that there has been no default or noncompliance under any
obligation secured by System Revenues;
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(6) Certification that (i) no Event of Default has occurred or is continuing and
no other event has occurred or is continuing, which, with the passing of time or the giving of notice
or of both, would constitute an Event of Default, or (ii) describing in detail any Event of Default
that has occurred and/or any event that has occurred which, with the passing of time or giving or
giving of notice, would constitute an Event of Default;
(7) Certification that the Purchaser is in compliance in all material respects with
the terms of this Agreement, including without limitation the Tax Covenants set forth in Section
5.07 hereof, or if the Purchaser has breached any such covenant, a detailed description of such
breach;
(8) Notification of any other event or circumstance that would materially affect
completion of the Facility or the payment of the Purchase Price;
(9) To the extent the 2012 Bonds Instrument and/or the 2018 Bonds Instrument
continue to impose a lien on Net System Revenues , certification that the Purchaser has in all
material respects complied with, kept, observed, and performed, and continues to comply with,
keep, observe, and perform, all requirements, conditions, covenants, duties, and terms thereunder
for the lien on Net System Revenues created by this Agreement to be on parity with the lien on
Net System Revenues created under the 2012 Bonds Instrument and/or the 2018 Bonds Instrument,
including, but not limited to, satisfying any debt service coverage and reserve account
requirements; and
(10) Such other information as IBank may request in its reasonable discretion.
(d) Subject to any legal requirements regarding the confidentiality or privacy of such
information, the Purchaser shall, upon request, furnish to IBank, in a format provided by IBank,
information concerning employment and other public benefits connected to the Facility.
(e) The Purchaser agrees to notify IBank, immediately, by telephone promptly
confirmed in writing, if any representation made in this Agreement or any representation made in
the application for financing to IBank shall at any time so long as this Agreement is outstanding
prove untrue or incorrect in any manner that could materially adversely affect the Purchaser’s
ability to perform its obligations under this Agreement. Further, the Purchaser agrees to notify
IBank, immediately, by telephone promptly confirmed in writing, if there is a stop payment notice,
litigation or any other legal proceeding which may materially adversely impact the completion of
the Facility. Additionally, the Purchaser agrees to notify IBank, immediately, by telephone
promptly confirmed in writing, if the Purchaser breaches any covenant set forth in this Agreement.
(f) The Purchaser’s covenants set forth in paragraphs 5.03(b) through (d) hereof are
hereinafter referred to as the “Reporting Covenants.”
SECTION 5.04 Protection of IBank’s Security and Rights.
The Purchaser will preserve and protect the security for payment of the Installment
Payments and the rights of IBank thereto. From and after the Effective Date, the payment of
Installment Payments and the Annual Fee component of Additional Payments under this
Agreement shall be incontestable by the Purchaser.
SECTION 5.05 Payments of Taxes and Other Charges.
The Purchaser will pay and discharge, or cause to be paid and discharged, all taxes, service
charges, assessments and other governmental charges, or charges in lieu thereof, which may
hereafter be lawfully imposed upon the Purchaser (to the extent impacting the System or System
Revenues), the System, or the System Revenue when the same shall become due. Nothing herein
contained shall require the Purchaser to make any such payment so long as the Purchaser in good
faith shall contest the validity of said taxes, assessments, or charges and shall have adequate funds
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for the payment thereof. The Purchaser will duly observe and conform to all valid requirements
of any governmental authority relative to the System or any part thereof.
SECTION 5.06 Maintenance of System Revenues; Rate Covenant.
(a) The Purchaser hereby covenants that, to the fullest extent permitted by law, it will
fix, prescribe, charge, and collect, or cause to be fixed, prescribed, charged, and collected, in each
Fiscal Year, such rates, fees, and charges for the use of and for the service furnished by the System
so that Net System Revenues realized (excluding any Development Impact Fees), together with
any amounts on deposit in a rate stabilization fund held by the Purchaser, are in an amount which
will be sufficient to be at least equal to 125% of annual Debt Service, and at least equal to 110%
of the sum of annual Debt Service and annual Subordinate Debt Service for such Fiscal Year.
(b) The Purchaser further covenants that, to the fullest extent permitted by law, it will
fix, prescribe, charge, and collect, or cause to be fixed, prescribed, charged, and collected, in each
Fiscal Year, such rates, fees, and charges for the use of and for the service furnished by the System
so that System Revenues realized are in an amount which will be sufficient to pay the following
amounts in the following order or priority:
(1) All Operations and Maintenance Costs estimated by the Purchaser to
become due and payable in such Fiscal Year;
(2) The Installment Payments, the IBank Annual Fee, and the principal,
interest, and any regulalry-occurring fees provided for under any Parity Debt Instrument for any
outstanding Parity Debt, as each becomes due and payable during such Fiscal Year, without
preference or priority;
(3) All amounts, if any, required to restore the balance of any reserve fund
required under this Agreement or any reserve fund or accounts required under any Parity Debt
Instrument, for any outstanding Parity Debt, to the full amount of any such reserve requirement;
and
(4) All payments required to meet any other obligations of the Purchaser which
are charges, liens, or encumbrances upon, or with are otherwise payable from, the System
Revenues or the Net System Revenues during such Fiscal Year, including any Additional
Payments.
(c) If for any reason Net System Revenues, or System Revenues, as applicable, prove
insufficient to comply with the requirements of subsections (a) and (b), the Purchaser first will
engage an Independent Consultant to recommend revised rents, rates, fees, charges, savings, or
assessments, or any combination thereof, and the Purchaser will, subject to any applicable
requirements and restrictions imposed by law, including, but not limited to, the Prop 218 Law, and
subject to the good faith determination of the Purchaser that such recommendations, in whole or
in part, are in the best interests of the Purchaser, take all actions necessary to increase System
Revenues through any combination of increased rents, rates, fees, charges, savings, or assessments
and that it will do so not later than one year following the date on which Net System Revenues
first fail to meet the requirements of this Section 5.06. The Purchaser may make adjustments from
time to time in such rents, rates, fees, and charges and may make such classification thereof as it
deems necessary, but shall not reduce the rents, rates, fees, and charges then in effect unless the
Net System Revenues from such reduced rents, rates, fees, and charges will at all times be
sufficient to meet the requirements of this section. Notwithstanding the foregoing, in lieu of taking
the preceding actions with respect to the Purchaser’s failure to comply with subsection (a), the
Purchaser may within one hundred eighty (180) days following the date Net System Revenues
first fail to meet the requirements of subsection (a) either establish and fund a rate stabilization
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fund, or increase monies held in an existing rate stabilization fund, in an amount sufficient to
satisfy the requirements of subsection (a). If the Purchaser elects to proceed accordingly, it shall
provide to IBank within such one hundred eighty (180) day period evidence satisfactory to IBank
in its reasonable discretion that the amounts held in such rate stabilization fund are sufficient to
satisfy the requirements of subsection (a).
SECTION 5.07 Tax Covenants.
The Purchaser recognizes that the Facility Funds may be derived from the proceeds of, or
payments made hereunder may be pledged to secure, bonds issued or to be issued by IBank, the
interest on which is excluded from gross income for federal income tax purposes under Section
103 of the Code. In order to maintain the tax-exempt status of, and perform its obligations with
respect to, the Proceeds Bonds and Secured Bonds, the Purchaser will not take any action, or fail
to take any action, if such action or failure to take such action would adversely affect the exclusion
from gross income of the interest on the Proceeds Bonds or Secured Bonds under the Code, and
the Purchaser specifically agrees to comply with all terms and conditions contained herein and to
provide annual certification of its compliance with the tax covenants set forth in this Section 5.07.
The Facility consists of certain improvements to the System, and, to the extent appropri ate for
purposes of the covenants set forth in this Section 5.07, the Facility will be treated as used on the
same basis as the System. The Purchaser will not directly or indirectly use or make any use of the
Facility Funds or any other funds of the Purchaser, or take or omit to take any action, if such use
or action would cause the Proceeds Bonds or Secured Bonds to be “arbitrage bonds” subject to
federal income taxation by reason of section 148 of the Code. In addition, the Purchaser covenants
and agrees that it, and/or any party related to it, will not acquire Proceeds Bonds or Secured Bonds
in an amount related to the amount of the Facility Funds. The provisions of this Section 5.07 shall
survive the discharge of the Purchaser’s obligations hereunder and shall apply to the Trustee or
any other successor or assignee described in Section 8.02.
(a) Eligible Uses of Facility Funds. Unless otherwise agreed to by IBank, Facility
Funds shall be used exclusively for the following purposes: (i) to pay or reimburse the Purchaser
for capital expenditures paid with respect to the Facility that meet the requirements of subsection
(b) of this Section 5.07; (ii) the Origination Fee; and (iii) initial operating expenses directly
associated with the Facility (in aggregate amount not exceeding five percent (5%) of the amount
of the Facility Funds).
(b) Allocation of Facility Funds to Expenditures. On May 21, 2019, the Purchaser
adopted a resolution stating its official intent to be reimbursed from the proceeds of a borrowing
to finance costs of the Facility (the "Reimbursement Resolution"). Absent written agreement by
IBank, all expenditures of Facility Funds will be used to pay or reimburse the Purchaser for capital
expenditures with respect to the Facility that are either:
(1) costs that are Preliminary Costs incurred with respect to the Facility prior
to the start of construction and in an aggregate amount not exceeding twenty percent 20% of the
Facility Funds;
(2) costs paid by the Purchaser no earlier than the date which is sixty (60) days
prior to the date of the adoption of the Reimbursement Resolution; or
(3) costs paid by the Purchaser on or after the Effective Date.
In addition, Facility Funds shall be allocated to paying or reimbursing the Purchaser for
capital expenditures no later than eighteen months after the later of the date the expenditure was
paid or the date the Facility is placed in service, but in the case of costs described in clause (2),
above, such allocations must be made in all events no later than three years after the cost was paid.
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(c) Prohibited Uses of Facility Funds. The Purchaser will not loan any of the Facility
Funds to any other person or entity. The Purchaser will not use Facility Funds directly or indirectly
to make principal, interest, or premium payments with respect to any bond, note, certificate of
participation or other obligation of the Purchaser or any person or entity that is a related party to
the Purchaser within the meaning of Treasury Regulation Section 1.150-1(b).
(d) Expectations Regarding Facility Funds and Facility; No Change in Use. The
Purchaser reasonably expects and consistent with this Section 5.07 hereof to use all Facility Funds
and all of the Facility for the entire stated term to maturity of this Agreement. The Purchaser does
not expect that the Facility or any part thereof will be sold or otherwise disposed of so long as the
Purchaser’s obligations under this Agreement are not discharged. Absent written agreement by
IBank, the Purchaser hereby agrees that it will use all Facility Funds and all of the Facility as set
forth in this Section 5.07.
(e) Funds for Making Installment Payments. All amounts used to fund the Payment
Account will be deemed to have been made from the Purchaser’s funds by using a last-in, first-out
accounting method, and amounts in the Payment Account will be treated as used to pay the
Installment Payments by using a first-in, first-out accounting method. The Purchaser agrees that
the amounts used to pay Installment Payments shall be both received by the Purchaser and utilized
for the payment of Installment Payments within a ninety (90) day period. The Payment Account
will be used primarily to achieve a proper matching of revenues and Installment Payments within
each year; a matching of revenues means that revenue and Installment Payments come in and go
out at approximately the same level and the Payment Account is cleared out to a very low balance
at least one time during the year. Current Revenues in the Payment Account shall be invested
without regard to yield so long as the Purchaser complies with this section.
(f) Nongovernmental Use of Facility Funds and Facility. The Purchaser understands
that the Facility Funds and the Facility are subject to certain restrictions on the use of the Facility
Funds or the Facility by any Nongovernmental Person, other than use as a member of the general
public. For this purpose a Nongovernmental Person will be treated as “using” Facility Funds to
the extent the Nongovernmental Person:
(1) borrows Facility Funds;
(2) acquires an ownership or lease interest with respect to any portion of the
Facility;
(3) uses any portion of the Facility (e.g., as a service provider, operator, or
manager), except pursuant to a contract that meets the requirements of subsection (g) of this
Section 5.07; or
(4) in the case of a Facility that provides water, electricity, or natural gas,
acquires such output from the Facility (except pursuant to generally applicable and uniformly
applied rates that are available to the general public).
The Purchaser hereby represents and covenants that it will not allow more than five percent
(5%) of the Facility Funds or more than five percent (5%) of the Facility to be used directly or
indirectly by any Nongovernmental Person, other than as a member of the general public.
(g) Management Contracts. The Purchaser understands that an arrangement with any
person or organization (other than a state or local governmental unit) which provides for such
person or organization to manage, operate, maintain or provide services with respect to the Facility
(a “Service Contract”) can give rise to use by a Nongovernmental Person that is subject to the
limitations of Section 5.07(f) of this Agreement. However, as of the Effective Date the Internal
Revenue Service (“IRS”) has issued two sets of guidelines that describe situations in which the
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IRS would rule that a Service Contract will not be treated as giving rise to a Nongovernmental
Person’s use of the Facility: (i) the guidelines set forth in Revenue Procedu re 97-13, as amended
by Revenue Procedure 2001-39, and as amplified by Notice 2014-67 (the “Prior Guidelines”); and
(ii) the guidelines set forth in Revenue Procedure 2017-13 (the “Current Guidelines”). The
Purchaser may apply the Prior Guidelines to any Service Contract entered into before August 18,
2017 that is not modified materially or extended on or after that date (other than pursuant to a
renewal option as defined in Treasury Regulation Section 1.141-1(b)). The Purchaser may apply
the Current Guidelines to Service Contracts entered into at any time.
Commencing with the Effective Date, at least thirty (30) days prior to the execution of any
modification to, extension or renewal of, or new operations and maintenance agreement relating
to the Facility or the portion of the System directly affected by the Facility, the Purchaser shall
(i) ensure that any such instrument meets the requirements for qualified management contracts
under the Code, and (ii) provide IBank a copy of any such instrument together with an explanation
of the basis for its conclusion that such instrument meets the requirements for qualified
management contracts under the Code. Provided, however, the Purchaser is not obligated to
provide to IBank contracts for services that are solely incidental to the primary governmental
function, or functions, of the Facility or the portion of the System directly affected by the Facility
(e.g., contracts for janitorial services, landscaping services, office equipment repair, escalator
repair, elevator repair, auditing services, legal services, or similar services).
(1) Current Guidelines. Service Contracts that relate to the use or operation of
the Facility by “service providers,” as that term is used in the Current Guidelines (the “Service
Providers”), will satisfy the Current Guidelines if the requirements of each of the following
subsections is satisfied:
(i) The compensation of the Service Provider under the contract must
be reasonable for the services rendered.
(ii) The contract must not provide to the Service Provider a share of net
profits from the operation of the Facility. Compensation to the Service Provider will not be treated
as providing a share of net profits if no element of the compensation takes into account, or is
contingent upon, either the Facility’s net profits or both the Facility’s revenues and expenses for
any fiscal period. For this purpose, the elements of the compensation are the eligibility for, the
amount of, and the timing of the payment of the compensation. Further, solely for purposes of
determining whether the amount of the compensation meets the r equirements of this section
5.07(g)(1)(ii), any reimbursements of actual and direct expenses paid by the Service Provider to
unrelated parties are disregarded as compensation. Incentive compensation will not be treated as
providing a share of net profits if the eligibility for the incentive compensation is determined by
the Service Provider's performance in meeting one or more standards that measure quality of
services, performance, or productivity, and the amount and the timing of the payment of the
compensation meet the requirements of this section 5.07(g)(1)(ii).
(iii) The contract must not, in substance, impose upon the Service
Provider the burden of bearing any share of net losses from the operation of the Facility. An
arrangement will not be treated as requiring the Service Provider to bear a share of net losses if:
(A) The determination of the amount of the Service Provider's compensation and the amount of
any expenses to be paid by the Service Provider (and not reimbursed), separately and collectively,
do not take into account either the Facility’s net losses or both the Facility’s revenues and expenses
for any fiscal period, and (B) the timing of the payment of compensation is not contingent upon
the Facility’s net losses. For example, a Service Provider whose compensation is reduced by a
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stated dollar amount (or one of multiple stated dollar amounts) for failure to keep the Facility’s
expenses below a specified target (or one of multiple specified targets) will not be treated as
bearing a share of net losses as a result of this reduction.
(iv) Without regard to whether the Service Provider pays expenses with
respect to the operation of the Facility without reimbursement by the qualified user (e.g., the
Purchaser), compensation for services will not be treated as providing a share of net profits or
requiring the Service Provider to bear a share of net losses under sections 5.02(2) and 5.02(3) of
the Current Guidelines if the compensation for services is: (A) based solely on a capitation fee, a
periodic fixed fee, or a per-unit fee; (B) incentive compensation described in the last sentence of
section 5.02(2) of the Current Guidelines; or (C) a combination of these types of compensation.
(v) Deferral due to insufficient net cash flows from the operation of the
Facility of the payment of compensation that otherwise meets the requirements of sections 5.02(2)
and 5.02(3) of the Current Guidelines will not cause the deferred compensation to be treated as
contingent upon net profits or net losses under sections 5.02(2) and 5.02(3) of the Current
Guidelines if the contract includes requirements that: (A) the compensation is payable at least
annually; (B) the qualified user is subject to reasonable consequences for late payment, such as
reasonable interest rate charges or late payment fees; and (C) the qualified user will pay such
deferred compensation (with interest or late payment fees) no later than the end of five years after
the original due date of the payment.
(vi) The term of the contract, including all renewal options, must not be
greater than the lesser of 30 years or 80 percent of the reasonably expected useful life of the
Facility. For this purpose, economic life is determined in the same manner as under section 147(b)
of the Code as of the beginning of the term of the contract. A contract that is materially modified
with respect to any matters relevant to section 5 of the Current Guidelines is retested under section
5 of the Current Guidelines as a new contract as of the date of the material modification.
(vii) The qualified user must exercise a significant degree of control over
the Facility. Service Contract provides such control if it requires the qualified user to approve:
(A) The annual budget of the Facility;
(B) Capital expenditures with respect to the Facility (for this
purpose, a qualified user may show approval of capital expenditures for the Facility by approving
an annual budget for capital expenditures described by functional purpose and specific maximum
amounts);
(C) each disposition of property that is part of the Facility;
(D) rates charged for use of the Facility (for this purpose, a
qualified user may show approval of rates charged for use of the managed property by either
expressly approving such rates (or the methodology for setting such rates) or by including in the
Service Contract a requirement that the Service Provider charge rates that are reasonabl e and
customary as specifically determined by an independent third party); and
(E) the general nature and type of use of the Facility (for
example, the type of services).
(i) The qualified user bears the risk of loss upon damage or destruction
of the Facility (for example, upon force majeure). A qualified user does not fail to meet this risk
of loss requirement as a result of insuring against risk of loss through a third party or imposing
upon the Service Provider a penalty for failure to operate the Facility in accordance with the
standards set forth in the Service Contract.
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(ii) The Service Provider must agree that it is not entitled to and will not
take any tax position that is inconsistent with being a Service Provider to the qualified user with
respect to the Facility.
(iii) The Service Provider must not have a role or relationship with the
qualified user (e.g., the Purchaser) that, in effect, substantially limits the ability of the qualified
user to exercise its rights, including cancellation rights, under the Service Contract, based on all
the facts and circumstances. Accordingly:
(A) Not more than 20 percent of the voting power of the
governing body of the qualified user (or IBank) in the aggregate may be vested in the Service
Provider and its directors, officers, shareholders, partners, members and employees.
(B) The governing body of the qualified user does not include
the chief executive officer of the Service Provider or the chairperson (or equivalent executive) of
the Service Provider’s governing body.
(C) The chief executive officer of the Service Provider is not the
chief executive officer of the qualified user or any related person (within the meaning of Treasury
Regulation 1.150-1(e)) to the qualified user.
For purposes of this section 5.07(g)(1)(x), the phrase Service Provider includes related
persons (within the meaning of Treasury Regulation 1.150-1(e)) and the phrase “chief executive
officer” includes a person with equivalent management responsibilities.
(iv) the Service Provider’s use of the Facility that is functionally related
to and subordinate to the performance of its services under a Service Contract for the Facility that
meets the conditions of Section 5 of the Current Guidelines does not result in private business use
of the Facility.
(2) Prior Guidelines. Service Contracts that relate to the use or operation of the
Facility by a “service provider,” as that term is used in the Prior Guidelines (the “Prior Guideline
Service Providers”), will satisfy the Prior Guidelines if, among other ways of satisfying the Prior
Guidelines, the requirements of each of the following requirements is satisfied:
(i) The compensation of the Prior Guidelines Service Provider under
the contract must be reasonable for the services rendered.
(ii) The contract must not provide for any compensation for services
based, in whole or in part, on a share of net profits from the operation of the Facility. Generally,
compensation is not based on a share of net profits if such compensation is based on a “capitation
fee” or a “per-unit fee.” Under the Prior Guidelines, “capitation fee” means a fixed periodic
amount for each person for whom the Prior Guidelines Service Provider assumes the responsibility
to provide all needed services for a specified period (so long as the quantity and type of services
actually provided to covered persons varies substantially). Under the Prior Guidelines, a “per-unit
fee” means a fee based on a unit of service provided (e.g., a stated dollar amount for each specified
medical procedure performed). Further, compensation based on a percentage of gross revenues or
a percentage of expenses (but not both) will generally not be considered as based on a share of net
profits.
(iii) A productivity reward for services in any annual period during the
term of the contract generally also does not cause the compensation to be based on a share of net
profits of the financed facility if (a) the eligibility for the productivity award is based on the quality
of the services provided under the management contract, rather than increases in revenues or
decreases in expenses of the facility; and (b) the amount of the productivity award is a stated dollar
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amount, a periodic fixed fee, or a tiered system of stated dollar amounts or periodic fixed fees
based solely on the level of performance achieved with respect to the applicable measure.
(iv) A Service Contract providing for a compensation arrangement that
satisfies any one of the following paragraphs will meet the Prior Guidelines:
(A) All of the compensation for services is based on a stated
amount; periodic fixed fee; a capitation fee; a per-unit fee; or a combination of the preceding. The
compensation for services also may include a percentage of gross revenues, adjusted gross
revenues, or expenses of the facility (but not both revenues and expenses). The term of the
contract, including all renewal options, does not exceed five years. Such contract need not be
terminable by the Purchaser prior to the end of the term. For purposes of this subsection
5.07(g)(2)(iv)(A), a tiered productivity award as described in subsection 5.07(g)(2)(iii) will be
treated as a stated amount or a periodic fixed fee, as appropriate.
(B) For a contract with a term, including renewal options, that is
not longer than (i) the lesser of 10 years or 80 percent of the reasonably expected useful life of the
financed property, or (ii) the lesser of 15 years or 80 percent of the reasonably expected useful life
of the financed property, at least 80 percent (in the case of a contract with a term described in
(i) hereof) or at least 95 percent (in the case of a contract with a term described in (ii) hereof) is
based on a periodic fixed fee. For purposes of this paragraph, a fee does not fail to qualify as a
periodic fixed fee as a result of a one-time incentive award during the term of the contract under
which compensation automatically increases when a gross revenue or expense (but not both) is
reached if that award is equal to a single, stated dollar amount.
(v) he Prior Guidelines Service Provider may not have a role or
relationship with the qualified user (or the Purchaser) that, in effect, substantially limits the ability
of the qualified user to exercise its rights, including cancellation rights, under the Service Contract.
Accordingly, not more than 20 percent of the voting power of the governing body of the qualified
user (or the Purchaser) in the aggregate may be vested in the Prior Guidelines Service Provider
and its directors, officers, shareholders and employees. Fur thermore, the group of persons
belonging to both the governing board of the qualified user (or the Purchaser) and the Prior
Guidelines Service Provider may not include the chief executive officers of the qualified user (or
the Purchaser) and the Prior Guidelines Service Provider, or their respective governing bodies.
Finally, neither the qualified user nor the Purchaser may be members of the same “controlled
group” (within the meaning of Treasury Regulations § 1.150-1(f)) or related person as the Prior
Guidelines Service Provider.
(h) No Other Replacement Proceeds. The Purchaser is not using any Facility Funds
and hereby agrees that it will not use any Facility Funds to replace funds of the Purchaser which
are or will be used to acquire Investment Property reasonably expected to produce a yield that is
materially higher than the yield on the Installment Payments under this Agreement.
(i) Federal Guarantee. The Purchaser will not directly or indirectly use
or permit the use of any Facility Funds or take or omit to take any action that would cause the
Proceeds Bonds or Secured Bonds to be obligations that are “federally guaranteed” within the
meaning of section 149(b) of the Code. In furtherance of this covenant, the Purchaser will not
allow the payment of principal or interest under this Agreement to be guaranteed (directly or
indirectly) in whole or in part by the United States or any agency or instrumentality thereof.
(i) No Hedge Bonds. The Purchaser reasonably expects that more than eighty-five
percent (85%) of the Facility Funds will be expended for the purposes of this Agreement within
three years of the Effective Date.
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SECTION 5.08 Maintenance and Operation of System.
The Purchaser hereby covenants that, so long as any portion of the Purchase Price is unpaid,
it will at its own cost and expense maintain, preserve, keep, and operate the System, and every
portion thereof, in good condition, repair and working order as necessary to operate the System
for its intended purpose in compliance with all laws, rules, regulations, codes, and ordinances,
subject only to normal wear and tear and that it will from time to time make or cause to be made
all necessary and proper repairs, replacements, and renewals necessary to maintain the System in
such a condition. The Purchaser will maintain in full force and effect all licenses, permits, and
approvals required by any governmental agency or authority having jurisdiction over the Purchaser
or the System at any time required for the operation of the System, and will obtain any licenses,
permits, or approvals that may be required in the future by any governmental agency or authority
having jurisdiction over the Purchaser or the System, all in a timely manner so as to prevent any
interruption in System activities. IBank will have no responsibility or obligation for any of these
matters. The Purchaser further covenants that it will operate the System in an efficient and
economical manner, and will pay all Operations and Maintenance Costs as they become due and
payable.
SECTION 5.09 Assumption of Obligations.
The obligations of the Purchaser under this Agreement may not be assumed by another
entity except in connection with a transfer of the entir e System by the Purchaser and only upon
prior written approval of IBank and receipt by IBank of:
(a) an Opinion of Counsel experienced in matters relating to the tax-exempt status of
interest on any Proceeds Bonds or Secured Bonds, and approved by IBank, to the effect that such
transfer would not cause interest on the Proceeds Bonds or Secured Bonds to be included in gross
income of the holders thereof for federal income tax purposes;
(b) a Report signed by an Independent Consultant or Independent Accountant
concluding that such transfer would not materially adversely affect the security for the Installment
Payments, Additional Payments, or the rights of IBank; and
(c) evidence satisfactory to IBank that the entity assuming the Purchaser’s obligation
hereunder is eligible pursuant to the Act.
SECTION 5.10 Damage, Destruction, Title Defect, and Condemnation; Use of Net
Proceeds.
(a) If prior to the termination of the term hereof (i) the System or any part thereof is
damaged or destroyed (each of which is hereinafter called “Damaged Improvements”) by a peril
covered by a policy of insurance described in Section 5.22 hereof (an “Insured Peril”); or (ii) title
to, or the right to possession, use, or occupancy, whether permanent or temporary, of, the System
or any portion thereof or the estate of the Purchaser in the System or any portion thereof is defective
or shall be taken under the exercise of the power of eminent domain by any governmental body or
by any person or firm or corporation acting under governmental authority, then the Purchaser will
cause the net proceeds of any loss or claim paid by an insurer under an insurance policy, or
condemnation award, resulting from any damage, destruction, loss of use, loss of possession, or
impairment of title to the System or any part thereof, (the “Net Proceeds”) to be transferred to
IBank and applied as follows:
(1) Net Proceeds Exceeding Costs. Within one hundred twenty (120) days of
the date of said Insured Peril, the Purchaser shall obtain written estimate(s) of the (i) cost of the
repair, replacement, and reconstruction of the Damaged Improvements (collectively referred to
herein as the “Reconstruction”), and (ii) Net Proceeds available to pay such costs. Copies of such
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estimate(s) shall be provided to IBank. If the one hundred twenty (120) day period is insufficient
to obtain said estimates, the period may be reasonably extended by the Purchaser. If the Net
Proceeds exceed the estimated costs of Reconstruction, the Damaged Improvements shall be
repaired, replaced, and reconstructed to the same or better quality as existed before the damage
occurred. The Purchaser shall commence and manage the Reconstruction and shall complete the
Reconstruction as soon as reasonably possible after the occurrence of such damage. Any balance
of Net Proceeds remaining after the Reconstruction has been completed shall be transferred , pro
rata based on outstanding principal amount, to IBank and to any trustee or holder of any Parity
Debt, for the payment of outstanding amounts under this Agreement and any such Parity Debt
Instrument. Net Proceeds remaining after payment of the amounts specified in the previous
sentence shall be transferred to the Purchaser.
(2) Costs Exceeding Net Proceeds. If the estimated costs of Reconstruction
exceed the Net Proceeds the Purchaser, in its sole discretion, may elect to budget and appropriate
to the Reconstruction the amount of such excess, and to manage the Reconstruction as set forth in
Section 5.10(a)(5). The Purchaser shall exercise this election by written notice thereof delivered
to IBank within thirty (30) days after the Purchaser obtains the written estimate(s).
(3) Net Proceeds Sufficient to Prepay All Unpaid Installment Payments. If the
Purchaser does not exercise the election to reconstruct pursuant to the above subsection and Net
Proceeds are at least sufficient to prepay all unpaid amounts of the Purchase Price, any due and
owing Additional Payments, and any unpaid Parity Debt, such Net Proceeds shall be transferred
to IBank to prepay such Purchase Price and any due and owing Additional Payments, and to any
trustee or holder of any Parity Debt to prepay such Parity Debt . If the Net Proceeds exceed such
amounts, the Purchaser shall be entitled to the amount of proceeds remaining after such
prepayment.
(4) Net Proceeds Insufficient to Prepay All Unpaid Installment Payments. If
the Purchaser does not exercise the election to reconstruct pursuant to Section 5.10(a)(2) and Net
Proceeds are insufficient to prepay the unpaid Purchase Price hereunder and any outstanding Parity
Debt, the Purchaser, in its sole discretion, may elect to budget and appropriate funds to cause the
prepayment of the Purchase Price and due and owing Additional Payments, together with any
outstanding amounts under any Parity Debt, and the Net Proceeds, together with such funds, shall
be transferred to IBank and the holders or trustees of any Parity Debt, as applicable, with directions
to apply the proceeds to the prepayment of the Purchase Price and due and owing Additional
Payments, and outstanding amounts under any Parity Debt; provided, that if the Purchaser elects
not to appropriate funds for such prepayment, the Purchaser shall apply Net Proceeds to the
Reconstruction. If the Purchaser, in its sole discretion, elects to budget or appropriate funds for
the prepayment of the unpaid Purchase Price, due and owing Additional Payments, and outstanding
amounts under any Parity Debt, the Purchaser shall transfer such funds to IBank for the prepayment
of Purchase Price and due and owing Additional Payments and to the trustees or holders, as
applicable, of any outstanding Parity Debt for the prepayment of such Parity Debt.
(5) Management of Reconstruction. If the System or any part thereof becomes
Damaged Improvements, the Purchaser shall promptly cause, manage, and supervise the
Reconstruction.
SECTION 5.11 Entry into Replacement Agreement.
The Purchaser acknowledges that IBank intends to issue, has issued, or may issue, Secured
Bonds or Proceeds Bonds subsequent to the Effective Date of this Agreement, and that one
requirement of the Secured Bonds and/or Proceeds Bonds will be the re-entry by the Purchaser
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into an agreement to replace this Agreement. So long as the terms of the replacement agreement
are substantially identical to the term of this Agreement, the Purchaser hereby covenants and
agrees to execute the replacement agreement and any related documents and to provide required
certifications in a timely manner. The Purchaser understands and acknowledges that time is of the
essence with respect to entry into such replacement agreement as such timing is mandated by
Federal tax laws applicable to IBank’s Proceeds Bonds and/or Secured Bonds. The Purchaser’s
covenant set forth in this Section 5.11 is hereinafter referred to as the “Replacement Agreement
Covenant.”
SECTION 5.12 Further Assurances.
The Purchaser will adopt, make, execute, and deliver any and all such further resolutions,
instruments, and assurances as may be reasonably required by IBank as necessary or proper to
carry out the intention or to facilitate the performance of this Agreement and for the better assuring
and confirming unto IBank of the rights, remedies, and benefits provided in this Agreement.
SECTION 5.13 Agreement to Complete Facility Delivery.
(a) The Purchaser agrees that it will perform all acts necessary to complete Facility
Delivery, and construct, acquire, improve or install other facilities and real and personal property
deemed by the Purchaser necessary for the operation of Facility. The Purchaser may supplement
or amend the Facility description with written approval from IBank from time to time, provided
that no such supplement or amendment shall (1) cause the Facility or any portion thereof to fail to
constitute an eligible project under the Act, or (2) in any way affect the tax-exempt status of any
Proceeds Bonds or Secured Bonds.
(b) At any time, upon request of IBank, the Purchaser agrees to make available to
IBank for review and copying all then current plans and specifications for the Facility. The
Purchaser may identify any proprietary information in such plans and specifications and, to the
extent legally permissible, IBank agrees to keep such information confidential. Provided,
however, for the avoidance of doubt, and not by limitation of the foregoing, IBank may disclose
any such confidential information in connection with any Proceeds Bonds or Secured Bonds or in
the event IBank is served with a subpoena, a valid discovery request, a notice to appear and
produce documents, or a valid California Public Records Act request, seeking, or that could be
construed reasonably as seeking, such confidential information.
(c) As soon as the Facility is completed, the Purchaser shall evidence such completion
by providing a certificate to IBank stating that (i) construction of the Facility has been completed
substantially in accordance with the final plans and specifications therefor and all labor, services,
materials, and supplies used in construction have been paid for, and (ii) all other facilities necessary
in connection with the Facility have been constructed, acquired, and installed in accordance with
the final plans and specifications therefor, and all costs and expenses incurred in connection
therewith have been paid. Notwithstanding the foregoing, such certificate may state that it is given
without prejudice to any rights of the Purchaser against third parties for the payment of any amount
not then due and payable which exist at the date of such certificate or which may subsequently
exist.
(d) The Purchaser shall notify IBank forthwith upon the filing of a stop payment notice
in connection with the Facility, the tender of a claim against any payment or performance bond
related to the Facility, the recordation of a mechanics lien against Facility, the filing of litigation
in connection with the Facility, the issuance of a mandatory or prohibitory injunction related to the
Facility, or any other legal proceeding which may impact the completion of the Facility.
SECTION 5.14 Collection of Rates, Fees and Charges.
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The Purchaser will have in effect at all times rules and regulations requiring each user of
the System to pay the rates, fees, and charges applicable to the services provided by the System to
each user. Except under circumstances required by law, including Executive Order N-42-20, the
Purchaser will not permit any part of the System or any facility thereof to be used or taken
advantage of free of charge by any corporation, firm, or person, or by any public agency (including
the United States of America, the State, and any city, county, district, political subdivision, public
corporation, or agency of any thereof); provided, that the Purchaser may without charge use the
services provided by the System.
SECTION 5.15 The Purchaser’s General Responsibility.
The Purchaser is solely responsible for the Facility Delivery and the operation and
maintenance of the Facility. Any review or approval of plans, specifications, bid documents, or
other construction documents by IBank is solely for the purpose of proper administration of
Facility Funds by IBank and shall not be deemed to relieve or restrict the Purchaser’s responsibility
or result in any duty, obligation, or responsibility on the part of IBank or the officers and agents
thereof.
SECTION 5.16 The Purchaser’s Assurances and Commitments.
(a) Compliance with Laws, Regulations and the Criteria.
The Purchaser shall at all times comply, and require its direct contractors, and their
subcontractors, to comply with all State prevailing wage laws, all applicable federal and State laws,
rules and regulations, the Criteria (except for any Criteria requirement that the Purchaser pre-
qualify direct contractors for the Facility using the Department of Industrial Relation’s model pre-
qualification questionnaire, which requirement the IBank Board of Directors waived), and all local
ordinances applicable to the Facility. This specifically includes, but is not limited to
environmental, procurement and safety laws, rules, regulations and ordinances. The Purchaser
acknowledges and agrees that under no circumstances would its failure to act in accordance with
the provisions of this subsection (a) result in any duty, obligation or responsibility on the part of
IBank or the officers and agents thereof.
(b) Facility Construction Activities.
The Purchaser shall ensure that adequate supervision and inspection of Facility
construction activities are maintained. IBank, either by itself or through its designee, reserves the
right to conduct an audit of the Purchaser’s construction expenditures during construction and for
up to three years following receipt by IBank of notice of completion or other evidence of
completion satisfactory to IBank. IBank, at its discretion, may require the Purchaser to conduct
an interim and/or a final audit at the Purchaser’s expense, such audit t o be conducted by and a
Report prepared by an Independent Accountant.
SECTION 5.17 Facility Access.
The Purchaser shall ensure that IBank or its designee have suitable access to the Facility
site at all reasonable times so long as the Purchase Price remains unpaid , and at any time in the
event of an IRS audit directly or indirectly related to the Facility, and shall include provisions
ensuring such access in all contracts and subcontracts relating to the Facility.
SECTION 5.18 Operation and Maintenance of the Facility.
The Purchaser agrees to commence operation of the Facility upon the completion thereof.
The Purchaser covenants and agrees that it will, at its own cost and expense, operate and maintain
the Facility and every portion thereof, in accordance with all governmental laws, ordinances,
approvals, rules, codes, regulations, and requirements including, without limitation, such zoning,
sanitary, pollution and safety ordinances and laws, and such rules and regulations thereunder as
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may be binding upon the Purchaser. The Purchaser further covenants and agrees that it will, at its
own cost and expense, maintain, preserve, keep, and operate the Facility and will maintain, keep,
preserve, and operate the same, now or hereafter at any time constituting part of the Facility, in
good repair, working order and condition as necessary to operate the Facility for their intended
purposes, subject only to normal wear and tear, and that it will from time to time make or cause to
be made all needful and proper replacements, repairs, renewals, and improvements, in each case
to the extent necessary so that the efficiency and value of the Facility shall not be impaired. IBank
shall have no responsibility or obligation for any of these matters or for the making of additions or
improvements to the Facility.
SECTION 5.19 Performance and Payment Bonds.
(a) The Purchaser shall require its direct contractor(s) for the Facility to certify under
penalty of perjury, and provide the Purchaser with a copy of such certification, which shall be
available for IBank’s inspection, if requested, that, in connection with the construction of the
Facility, it has obtained a bond or bonds by one or more authorized surety companies satisfactory
to the Purchaser; such surety companies must be authorized to do business in California, be an
admitted surety insurer, and have an agent for service of process in California.
(b) Said bonds shall be in the following amounts and for the following purposes: (i) a
performance bond(s) in an amount not less than one hundred percent (100%) of the total amount
of the construction agreement(s) for the Facility, guaranteeing the faithful performance of the
terms of the Facility construction agreement(s), including the maintenance of the work required
under the Facility construction agreement(s) for a period of one year from the date of the
Purchaser’s final acceptance, and the prompt correction of any defective work or labor done, or
defective materials furnished, pursuant to the Facility construction agreement(s) and (ii) a payment
bond(s) in an amount not less than one hundred percent (100%) of the total amount of the Facility
construction agreement(s), securing payment to the subcontractors and to persons renting
equipment or furnishing labor or materials to such subcontractors or to the Purchaser’s direct
contractors, or to any other claimant as defined in Civil Code Section 8004, under the Facility
construction agreement(s).
SECTION 5.20 Continuing Disclosure.
Upon IBank’s reasonable request, the Purchaser shall to furnish certain financial and
operating data pertaining to the Purchaser that may be required to enable: (i) IBank to issue any,
or perform its obligations under existing, Proceeds Bonds or Secured Bonds; (ii) any underwriter
of any Proceeds Bonds or Secured Bonds to comply with Rule 15c2-12(b)(5) of the Securities and
Exchange Commission; or (iii) IBank to comply with any audit, rating agency request, or State
law.
SECTION 5.21 Notice of Purchaser Event of Default.
The Purchaser covenants that it will deliver to IBank, immediately after the Purchaser shall
have obtained knowledge of the occurrence of an Event of Default or a failure as described in
Section 7.01, the written statement of an authorized officer of the Purchaser setting forth the details
of such Event of Default or failure, and the action which the Purchaser proposes to take with
respect thereto.
SECTION 5.22 Maintenance of Insurance.
(a) The Purchaser will procure and maintain or cause to be procured and maintained
insurance on the System with responsible insurers, in such amounts and against such risks
(including damage to or destruction of the System) as are usually covered in connection with
systems similar to the System. Provided, however, such insurance shall be in an amount at least
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equal to the full replacement value of the Facility. Such insurance may be subject to a deductible
clause of not to exceed one hundred thousand dollars ($100,000) or such greater amount as may
be covered by any self-insurance or self-funding method or plan permitted by this Section.
(b) The Purchaser shall procure and maintain, or cause to be procured and maintained
a standard commercial general liability insurance policy in protection of the Purchaser, the IBank
and their directors, officers and employees and, when requested by the IBank, the Trustee,
indemnifying and defending such parties against direct or contingent loss or liability for damages
for personal injury, death or property damage related to the possession, operation or use of the
System, with a minimum combined single limit of one million dollars ($1,000,000) for personal
injury or death of one or more persons, and for property damage, in each accident or event (subject
to a deductible clause of not to exceed one hundred thousand dollars ($100,000) or such greater
amount as may be covered by any self-insurance or self-funding method or plan permitted by this
Section). IBank shall be named as an additional insured, and when requested by IBank the Trustee
shall also be named as an additional insured.
(c) The Purchaser will cause to be procured and maintained a standard, commercially
reasonable, commercial general liability policy of the direct contractor(s) for the Facility with a
minimum combined single limit of one million dollars ($1,000,000) for personal injury or death
of one or more persons, and for property damage, in each accident or event (subject to a deductible
clause of not to exceed one hundred thousand dollars ($100,000). The Purchaser and IBank shall
each be named as an additional insured under such insurance policy. The Purchaser shall also
cause to be procured and maintained a standard, commercially reasonable, worker’s compensation
insurance policy of the direct contractor(s) for the Facilit y in an amount equal to at least the
required statutory minimum. The Purchaser and IBank shall each be named as an additional
insured under such insurance policy.
(d) The Purchaser will cause to be procured and maintained by its direct contractor(s)
a builder’s risk insurance policy in an amount equal to the lesser of the Facility Funds or the amount
of the Purchaser’s direct contract(s) for the construction of the Facility.
(e) With respect to the insurance described in subsections (a) and (b) above, the
Purchaser may maintain such insurance through a combination of self-insured retention (in an
amount not to exceed $500,000) and risk sharing pool coverage programs administered by a joint
powers authority formed in the State. The Purchaser shall on the Effective Date, and annually on
each anniversary of the Effective Date thereafter, provide a Certificate of the Purchaser to IBank
certifying that the insurance required under this Section 5.22 is in effect, together with copies of
the declarations pages for each policy required hereunder and each additional insured endorsement
required hereunder.
SECTION 5.23 Facility Construction.
(a) The Facility is described in Exhibit B and the Purchaser shall make no changes
thereto or the operation thereof without the prior written consent of IBank, which consent shall be
granted or denied in IBank’s reasonable discretion. Further, IBank may condition any such
consent upon receipt of an Opinion of Counsel to the effect that any such changes will not affect
the qualification of the Facility for tax exempt financing under the Code.
(b) The Purchaser shall not enter into a contract for the construction of the Facility
unless it is in the form of a fixed price construction contract.
SECTION 5.24 Compliance with Contracts.
The Purchaser will use good faith effort to comply with, keep, observe, and perform all
agreements, conditions, covenants, and terms, express or implied, required to be performed by it
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contained in all contracts for the use of the System, and all other contracts affecting or involving
the System to the extent that the Purchaser is a party thereto.
SECTION 5.25 Maintenance of Lien Parity.
To the extent the 2012 Bonds Instrument and/or the 2018 Bonds Instrument continue to
impose a lien on Net System Revenues , the Purchaser will at all times comply with, keep, observe,
and perform all requirements, conditions, covenants, duties, and terms set forth therein for the lien
on Net System Revenues created by this Agreement to be on parity with the lien on Net System
Revenues created by the 2012 Bonds Instruments and/or the 2018 Bonds Instrument.
SECTION 5.26 Covenant to Comply with Prop 218 Law.
The Purchaser shall at all times ensure that the rates, fees and charges imposed on its
System customers comply with the Prop 218 Law. In the event any party (or p arties) institutes
litigation or an administrative proceeding challenging the Purchaser’s rates and charges or any
other aspect of its compliance with Prop 218 Law (collectively, a “Rate Challenge”), the Purchaser
shall as soon as practicable, but no later than 30 days after the Purchaser receives actual notice of
the Rate Challenge, provide IBank with written notice of such Rate Challenge. Further, the
Purchaser will expeditiously take steps to (i) diligently defend against the Rate Challenge; or
(ii) conform its rates or other practices in a manner that fully addresses the deficiencies underlying
the Rate Challenge. The Purchaser shall provide IBank with a second written notice indicating its
chosen course of action as soon as practicable.
ARTICLE VI
NEGATIVE COVENANTS OF THE PURCHASER
SECTION 6.01 Limitation on Additional Obligations; No Senior Debt.
The Purchaser hereby covenants that, until the Purchase Price has been paid in full and this
Agreement has been discharged pursuant to Section 8.05, the Purchaser shall not after the date of
this Agreement issue or incur any Senior Debt and shall not issue any bonds, notes, or other
obligations, enter into any agreement or otherwise incur any loans, advances, or obligations, which
are in any case secured by a lien on all or any part of Net System Revenues that is on parity with
the lien established hereunder for the security for the payment of the Installment Payments and
Additional Payments, excepting only Parity Debt meeting the requirements of Section 2.11 herein.
The Purchaser may issue or incur Subordinate Debt upon compliance with the requirements of
Section 2.16 herein.
SECTION 6.02 Disposition of Property.
The Purchaser hereby covenants that it will not authorize or effect the disposition of real
or personal property constituting more than ten percent (10%) of the value of the System, measured
over the term of this Agreement, unless the Purchaser first obtains and provides a copy to IBank,
of: (i) a Report of an Independent Consultant concluding that such disposition will not
substantially adversely affect the security for the payment of the Installment Payments and
Additional Payments; and (ii) an Opinion of Counsel concluding that such disposition will not
cause the interest on any Secured Bonds or Proceeds Bonds to no longer be excluded from federal
gross income. The Purchaser hereby covenants that it will not dispose of any portion of the Facility
while the Purchase Price is unpaid except for property that is not operating or is worn out, and for
the dedication of public streets and public and private utility easements.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.01 Events of Default and Acceleration.
(a) Each of the following events shall constitute an Event of Default hereunder:
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(1) Failure by the Purchaser to pay any Installment Payment, accrued interest,
prepayment premium (if any), or any Additional Payment when and as the same shall become due
and payable;
(2) Failure by the Purchaser to observe and perform any of the covenants,
agreements or conditions on its part contained in this Agreement, other than as referred to in the
preceding subsection (1), or if any representation or warranty fails to be true and correct in all
material respects, for a period of sixty (60) days after written notice has been given to the Purchaser
by IBank, or to the Purchaser and IBank, specifying such failure and requesting that such failure
be remedied; provided, however, that if the failure stated in such notice can be corrected, but not
within such sixty (60) day period, IBank may consent to an extension of such time if corrective
action is instituted by the Purchaser within such sixty (60) day period and diligently pursued until
such failure is corrected;
(3) The filing by the Purchaser of a petition or answer seeking reorganization
or arrangement under the federal bankruptcy laws or any other applicable law of the United States
of America, or if a court of competent jurisdiction shall approve a petition, filed with or without
the consent of the Purchaser, seeking reorganization under the federal bankruptcy laws or any other
applicable law of the United States of America, or if, under the provisions of any other law for the
relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the
Purchaser or of the whole or any substantial part of its property;
(4) Any representation or other written statement made by the Purchaser
contained in this Agreement, the application for financing or in any instrument furnished in
compliance with or in reference thereto shall prove to have been incorrect in any material respect
as negatively affecting the Purchaser’s performance hereunder ;
(5) An unexcused failure by the Purchaser to pay amounts due from the
Enterprise Fund under any bond, note, installment sale agreement, capital lease, or other agreement
or instrument to which it is a party relating to the borrowing of money, if such unpaid amount shall
exceed fifty thousand dollars ($50,000); and
(6) The occurrence of an event of default with respect to any Parity Debt or any
Subordinate Debt which causes all principal of such Parity Debt or Subordinate Debt to become
due and payable immediately.
(b) If an Event of Default has occurred and is continuing, IBank may (i) declare the
principal of the Purchase Price, together with the accrued interest on all unpaid installments
thereof, to be due and payable immediately, and upon any such declaration the same shall become
immediately due and payable, anything in this Agreement to the contrary notwithstanding, and (ii)
exercise any other remedies available to IBank in law or at equity. Immediately upon becoming
aware of the occurrence of an Event of Default, IBank shall give notice of such Event of Default
to the Purchaser by telephone, telecopier, facsimile or other telecommunication device, promptly
confirmed in writing. This provision, however, is subject to the condition that if, at any time after
the principal of the Purchase Price shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or entered, the
Purchaser shall deposit with IBank a sum sufficient to pay all installments of principal of the
Purchase Price due prior to such declaration and all accrued interest thereon, with interest on such
overdue Installment Payments at the rate of the lesser of twelve percent (12%) per annum or the
maximum rate permitted by law, and the reasonable expenses of IBank (including but not limited
to attorney’s fees and costs), and any and all other defaults known to IBank (other than in the
payment of principal of and interest on the Purchase Price due and payable solely by reason of
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such declaration), including the payment of Additional Payments due and owing, shall have been
made good or cured to the satisfaction of IBank or provision deemed by IBank to be adequate shall
have been made therefor, then, and in every such case, IBank may, by written notice to the
Purchaser, rescind and annul such declaration and its consequences. However, no such rescission
and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any
right or power consequent thereon.
SECTION 7.02 Remedies.
Upon the occurrence of an Event of Default IBank shall have the following rights, in
addition to its rights under Section 7.01:
(a) By mandamus or other action or proceeding or suit at law or in equity to enforce its
rights against the Purchaser or any member, officer , or employee thereof, and to compel the
Purchaser or any such member, officer, or employee to perform and carry out its or his duties under
law and the agreements and covenants required to be performed by it or him contained herein;
(b) By suit in equity to enjoin any acts or things which are unlawful or violate the rights
of IBank; or
(c) By suit in equity to require the Purchasers and its members, officers, and employees
to account as the trustee of an express trust.
SECTION 7.03 Application of Funds upon Default.
All amounts received by IBank pursuant to any right given or action taken by IBank under
provisions of this Agreement, or otherwise held by IBank upon the occurrence of an Event of
Default, shall be applied by IBank in the following order:
(a) First, to the payment of the costs and expenses of IBank, including reasonable
compensation to their agents and attorneys, including IBank employees, as set forth in Section
2.06; and
(b) Second, to the payment of the whole amount of Installment Payments then due and
unpaid, with interest on overdue Installment Payments at the rate of the lesser of twelve percent
(12%) per annum or the Maximum Rate; provided, however, that in the event such amounts shall
be insufficient to pay in full the amount of such Installment Payments, then such amounts shall be
applied in the following order of priority:
(1) First, to the payment of all installments of interest on the Purchase Price
then due and unpaid, on a pro rata basis in the event that the available amounts are insufficient to
pay all such interest in full;
(2) Second, to the payment of principal of all installments of the Purchase Price
then due and unpaid, other than principal having come due and payable solely by reason of
acceleration pursuant to Section 7.01, on a pro rata basis in the event that the available amou nts
are insufficient to pay all such principal in full;
(3) Third, to the payment of principal of the Purchase Price then due and unpaid
and having come due and payable solely by reason of acceleration pursuant to Section 7.01, on a
pro rata basis in the event that the available amounts are insufficient to pay all such principal in
full; and
(c) Third, to the payment to IBank of other Additional Payments as described in
Section 2.06.
SECTION 7.04 No Waiver.
Nothing in this Article VII or in any other provision of this Agreement shall affect or impair
the obligation of the Purchaser, which is absolute and unconditional, to pay from the Net System
Revenues pledged hereunder, all payments due hereunder, or affect or impair the right of action,
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which is also absolute and unconditional, of IBank to institute suit to enforce such payment by
virtue of the contract embodied in this Agreement.
A waiver of any default by IBank shall not affect any subsequent default or impair any
rights or remedies on the subsequent default. No delay or omission of IBank to exercise any right
or power accruing upon any default shall impair any such right or power, or shall be construed to
be a waiver of any such default, or an acquiescence therein, and every power and remedy conferred
upon IBank by this Article VII may be enforced and exercised from time to time and as often as
shall be deemed expedient by IBank.
If a suit, action, or proceeding to enforce any right or exercise any remedy shall be
abandoned or determined adversely to IBank, the Purchaser and IBank shall be restored to their
former positions, rights, and remedies as if such suit, action, or proceeding had not been brought
or taken.
SECTION 7.05 Remedies Not Exclusive.
No remedy herein conferred upon or reserved to IBank is intended to be exclusive of any
other remedy. Every such remedy shall be cumulative and shall be in addition to every other
remedy given hereunder, or now or hereafter existing at law or in equity or by statute or otherwise,
and may be exercised without exhausting and without regard to any other remedy conferred by
law.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 California Law; Venue.
This Agreement shall be governed by and construed and interpreted in accordance with the
laws of the State. Any action or proceeding arising out of this Agreement shall be filed and
maintained in the Superior Court in and for the County of Sacramento, California, or in the United
States District Court in and for the Eastern District of California, unless otherwise expressly agreed
to by IBank in its sole and absolute discretion.
SECTION 8.02 Assignment of IBank’s Rights.
The Purchaser hereby agrees and acknowledges that IBank’s rights under this Agreement,
collectively or severally, may in IBank’s sole and absolute discretion be assigned by IBank, or by
the State, to any party for any purpose, including to the Trustee for the purpose of securing the
payment of any bonds, notes, or other obligations issued by IBank and secured by this Agreement
and the Installment Payments and Additional Payments, without the need for consent by the
Purchaser; provided, with respect to any such assignment. IBank and the assignee shall be
responsible for ensuring that such assignment complies with all applicable laws and regulations,
including but not limited to California Government Code Sections 5950 through 5955, and the
Purchaser shall have no responsibility or liability arising from any such non-compliance.
Accordingly, the Purchaser agrees to make all payments due hereunder to the Trustee when so
directed by IBank, notwithstanding any claim, defense, setoff or counterclaim whatsoever
(whether arising from a breach hereof or otherwise) that the Purchaser may have from time to time
against IBank. The Purchaser agrees to execute all documents, including notices of assignment
and chattel mortgages or financing statements, which IBank or the Trustee may reasonably request
in connection with any such assignment by IBank.
SECTION 8.03 Third Party Beneficiaries.
The Trustee is hereby expressly designated as a third party beneficiary hereunder for the
purpose of enforcing any of the rights hereunder assigned to said Trustee and for the purpose of
said Trustee enforcing its own rights. Nothing in this Agreement, expressed or implied, is intended
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to give to any person other than IBank, the Purchaser, and the Trustee, any right, remedy, or claim
under or by reason of this Agreement. All covenants, stipulations, promises, or agreements
contained in this Agreement by and on behalf of the Purchaser shall be for the sole and exclusive
benefit of IBank, the Trustee, and their permitted assigns.
SECTION 8.04 Successor Entities.
Whenever in this Agreement either the Purchaser or IBank is named or referred to, such
reference shall be deemed to include the permitted successors or assigns thereof, and all the
covenants and agreements in this Agreement contained by or on behalf of the Purchaser or IBank
shall bind and inure to the benefit of the respective permitted successors and assigns thereof,
whether so expressed or not. The Trustee will be IBank’s initial assignee.
SECTION 8.05 Discharge of Agreement.
Upon the Purchaser’s payment of the outstanding principal of, outstanding interest on, and
prepayment premium (if any) on the Purchase Price, together with all Additional Payments,
pursuant to this Agreement, then all obligations of IBank under this Agreement, all obligations of
the Purchaser under this Agreement with respect to the Purchase Price, and, at the written election
of the Purchaser, the pledge of and lien upon the Net System Revenues provided for in this
Agreement, shall cease and terminate, excepting only the obligations of the Purchaser pursuant to
the tax covenants herein, including but not limited to Section 5.07, indemnification obligations,
including but not limited to Section 8.14, and the choice of law and venue provisions under Section
8.01. Notice of such election shall be filed with IBank.
SECTION 8.06 Amendment.
No term or provision of this Agreement may be waived or otherwise modified except by a
written agreement signed by the Parties. The Parties acknowledge and agree that the previous
sentence shall be interpreted, enforced, and adhered to strictly, notwithstanding any legal doctrine,
rule, statute, or case law that may permit oral modification of this Agreement, or that may find
under certain circumstances the portion of this Section 8.06 requiring all modifications to this
Agreement be in writing is waived orally or by the Parties’ conduct. To the greatest extent
permissible under the law, the Parties hereby agree to waive any legal doctrine, rule, statute, or
case law that permits, or could be construed to permit, modification of this Agreement by means
other than a writing signed by both Parties.
SECTION 8.07 Waiver of Personal Liability.
No member, officer, agent, or employee of the Purchaser shall be individually or personally
liable for the payment of the principal of, premium, if any, or the interest under this Agreement;
but nothing herein contained shall relieve any such member, officer, agent, or employee from the
performance of any official duty provided by law.
SECTION 8.08 Arm’s Length Transaction.
The Purchaser acknowledges and agrees that IBank is acting solely as seller under this
Agreement and not an advisor to the Purchaser, including that: (i) the transaction contemplated
by this Agreement is an arm’s-length commercial transaction, (ii) in connection therewith and with
the financing discussions, undertakings and procedures leading up to the consummation of such
transaction, IBank is and has been acting solely as a principal and is not acting as the agent or
fiduciary of or in any way advising the Purchaser, including, without limitation, a “Municipal
Advisor” as such term is defined in Section 15B of the Securities and Exchange Act of 1934, as
amended, and the related final rules, (iii) IBank has not provided any advice or assumed an
advisory or fiduciary responsibility in favor of the Purchaser with respect to the financing
contemplated hereby or the discussions, undertakings and procedures leading thereto (irrespective
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of whether IBank, or any party related to IBank, has provided other services, or advised, or is
currently providing other services, or advising, the Purchaser on other matters) and IBank has no
obligation to the Purchaser with respect to the financing contemplated hereby except the
obligations expressly set forth in this Agreement, (iv) IBank has financial and other interests that
differ from those of the Purchaser , and (v) the Purchaser has consulted its own legal, financial and
other advisors to the extent it has deemed appropriate.
SECTION 8.09 Notices.
All written notices to be given under this Agreement shall be given by first-class mail or
personal delivery to the party entitled thereto at its address set forth below, or at such address as
the party may provide to the other party in writing from time to time, except that notices from the
Purchaser to IBank shall be given by registered mail, or by telecommunication confirmed in
writing. Notice shall be effective forty-eight (48) hours after deposit in the United States mail,
postage prepaid or, in the case of any notice to IBank, or in the case of personal delivery to any
person, upon actual receipt at the address set forth below:
If to IBank:
California Infrastructure and Economic Development Bank
Attn: Loan Servicing Manager, Agreement Number ISRF 20-135
P.O. Box 2830
Sacramento, CA 95812-2830
For overnight mail or personal delivery only:
California Infrastructure and Economic Development Bank
Attn: Loan Servicing Manager, Agreement Number ISRF 20-135
1325 J Street, Suite 1300
Sacramento, CA 95814
With a copy to the General Counsel of IBank at the same address.
If to the Purchaser: City of San Luis Obispo
879 Morro Street
San Luis Obispo, CA 93401
Attn.: Utilities Director
Or to such other address as may be designated in writing by the Purchaser.
SECTION 8.10 Contact Persons.
(a) The Executive Director of IBank or such other person as designated in writing by
IBank shall manage this Agreement for IBank and shall have authority to make determinations
and findings with respect to each controversy arising under or in connection with the interpretation,
performance, or payment for work performed under this Agreement.
(b) The Purchaser’s contact person shall be its Deputy Director Utilities - Water, or
such other person as may be designated in writing by the Purchaser (the “Purchaser
Representative”). The Purchaser’s Deputy Director Utilities - Water shall be the Purchaser
Representative for the administration of this Agreement and shall have full authority to act on
behalf of the Purchaser and may designate in writing another person or persons authorized to
request disbursement of Facility Funds. All communications given to the Purchaser’s Deputy
Director Utilities - Water shall be as binding as if given to the Purchaser.
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SECTION 8.11 Partial Invalidity.
The illegality, unenforceability, or invalidity of any provision of this Agreement with
regard to any Party or circumstance shall not render that provision illegal, unenforceable, or invalid
with regard to any other Party or circumstance. All provisions of this Agreement, in all other
respects, shall remain legal, enforceable, and valid to the fullest extent permitted by law. If any
provision of this Agreement is held to be illegal, unenforceable, or invalid by a court of competent
jurisdiction, then such provision shall be deemed severed from this Agreement and this Agreement
shall be construed and enforced as if such illegal, unenforceable, or invalid provision had never
been part hereof.
SECTION 8.12 Binding Effect.
This Agreement shall inure to the benefit of and shall be binding upon IBank and the
Purchaser and their respective successors and assigns.
SECTION 8.13 Entire Agreement.
Except as expressly stated herein, this Agreement, together with the exhibits and
attachments hereto, constitutes the entire agreement among the Parties. Except as expressly stated
herein, there are no understandings, agreements, representations or warranties, express or implied,
not specified herein or therein regarding this Agreement or the Facility financed hereunder. Any
terms and conditions of any purchase order or other document submitted by the Purchaser in
connection with this Agreement which are in addition to or inconsistent with the terms and
conditions of this Agreement will not be binding on IBank and will not apply to this Agreement.
SECTION 8.14 Indemnification.
The Purchaser shall, to the fullest extent permitted by law, indemnify, protect, hold
harmless, save and keep harmless IBank and its members, directors, officers, attorneys, advisors,
employees, and agents (collectively, the “Indemnified Parties”) from and against any and all
liability, obligations, losses, claims, demands, damages, actions, causes of action, liens, stop
payment notices, or costs whatsoever, arising from the Purchaser’s operation of the System or the
Purchaser’s performance hereunder regardless of the cause thereof (but excluding any and all
liability, obligations, losses, claims, demands, damages, actions, causes of action, liens, stop
payment notices, or costs to the extent caused by an Indemnified Party’s wrongful act), and
reasonable expenses in connection therewith, including, without limitation, counsel fees and
expenses as incurred, penalties and interest (collectively, a “Claim”), arising out of, related to or
as the result of entering into this Agreement, and the acquisition, construction, operation, use,
condition, or possession of the Facility and any portion thereof, including without limitation:
(a) any accident in connection with the operation, use, condition, or possession of the
Facility resulting in damage to property or injury to or death to any person including, without
limitation, any claim alleging latent and other defects, whether or not discoverable by the
Purchaser or IBank;
(b) patent, trademark or copyright infringement, or similar claims as a consequence of
the operation, use, occupancy, or maintenance of the Facility;
(c) strict liability in tort as a consequence of the operation, use, occupancy, or
maintenance of the Facility or the Project;
(d) any Claim based upon any environmental law or regulation relating to the Facility;
(e) any Claim of any nature directly arising from or related to the Facility, which Claim
is based upon the operation of the Facility from and after the Effective Date;
(f) the existence, placement, delivery, storage, or release of hazardous materials on or
from the Facility or contamination of property, arising therefrom;
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(g) either (a) the application of the Facility Funds, or other amounts treated as “gross
proceeds” of the Proceeds Bonds or Secured Bonds in such manner that any portion of the Proceeds
Bonds or Secured Bonds becomes an “arbitrage bond” within the meaning of Code sections
103(b)(2) and 148, with the result that interest on the Proceeds Bonds or Secured Bonds is or
becomes subject to federal income taxation of the holder of the Proceeds Bonds or Secured Bonds;
or (b) if as a result of any act, failure to act, or use of the proceeds of any portion of the Facility
Funds or the Facility, or any misrepresentation or inaccuracy in any of the representations,
warranties, or covenants contained in this Agreement or the enactment of any federal legislation
or the promulgation of any federal rule or regulation after the date of this Agreement, all or any
portion of the interest on any portion of the Proceeds Bonds or Secured Bonds becomes subject to
federal income taxation;
(h) the consummation or carrying out of any of the transactions contemplated by this
Agreement or any related document; and
(i) information provided by the Purchaser which is used in connection with the
Proceeds Bonds or the Secured Bonds.
The indemnification arising under this Section 8.14 shall continue in full force and effect
notwithstanding the full payment of all obligations hereunder and shall survive the termination of
this Agreement for any reason. Any party seeking indemnity hereunder shall promptly give notice
to the Purchaser of any Claim or liability hereby indemnified against upon learning of any
circumstances giving rise to any such Claim or liability. The Purchaser’s obligation to indemnify,
defend, protect, hold harmless, save, and keep harmless the Indemnified Parties as provided in this
Section 8.14 shall arise immediately upon any Claim covered under this Section 8.14 being
asserted against an Indemnified Party, whether orally, in writing, or in any court or administrative
action or proceeding.
SECTION 8.15 Expectations.
The undersigned is an authorized representative of the Purchaser acting for and on behalf
of the Purchaser in executing this Agreement. To the best of the knowledge and belief of the
undersigned, there are no other facts, estimates or circumstances that would materially change the
expectations as set forth herein, and said expectations are reasonable.
SECTION 8.16 Section Headings.
All section headings contained herein are for convenience of reference only and are not
intended to define or limit the scope of any provision hereof.
SECTION 8.17 Time of the Essence.
Subject to the remainder of this Section 8.17, time is of the essence with respect to this
Agreement and the performance of each obligation contained in this Agreement. Whenever the
time for performance of any obligation under this Agreement, or if under this Agreement a Party
must act by a particular time or date, or if an act is effective only if done by a particular time or
date, and the last date for performance of such obligation or the doing or effectiveness of such act
falls on a Saturday, Sunday, or legal holiday in the State, the time for performance of such
obligation or the doing or effectiveness of such act shall be extended to the next day that is not a
Saturday, Sunday, or a legal holiday in the State. The first day shall be excluded and the last day
shall be included when computing the time in which an obligation is to be performed or an act is
to be done under this Agreement. Unless otherwise provided herein all time periods shall end at
5:00 p.m. California time.
SECTION 8.18 Form of Documents.
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The form and substance of all documents and instruments to be delivered to IBank under
the terms of this Agreement, if any, shall be at all times subject to IBank’s approval, in its
reasonable discretion. No document or instrument delivered to IBank, or to be delivered to IBank,
or which is subject to the approval of IBank, shall be amended, modified, superseded, or terminated
in any respect whatsoever without IBank’s prior written approval.
SECTION 8.19 Waiver of Consequential Damages.
To the fullest extent permitted by law, the Purchaser shall not assert, and hereby waives,
any claim against IBank on any theory of liability for special, indirect, consequential, or punitive
damages (as opposed to direct actual damages) arising from, or in connection with, this Agreement.
SECTION 8.20 Nondiscrimination.
(a) During the performance of this Agreement, the Purchaser shall ensure that any
direct contractor and its subcontractors constructing the Facility shall not deny the contracts’
benefits to any person on the basis of race, color, religion, ancestry, national origin, ethnic group
identification, marital status, gender, sex, sexual orientation, age, medical condition, physical
handicap or disability, mental disability, political affiliation, or position in a labor dispute, nor
shall they discriminate unlawfully against any employee or applicant for employment because of
race, color, religion, national origin, ethnic group identification, ancestry, physical handicap or
disability, mental disability, medical condition, marital status, age, gender, sex, sexual orientation,
political affiliation, or position in a labor dispute. The Purchaser shall ensure that any direct
contractor and its subcontractor shall ensure that the evaluation and treatment of employees and
applicants for employment are free of such discrimination.
(b) The Purchaser shall ensure that any direct contractor and its subcontractors
constructing the Facility shall comply with the applicable provisions of the Fair Employment and
Housing Act (Government Code section 12900 et seq.), the regulations promulgated thereunder
(Title 2, California Code of Regulations, section 7285.0 et seq.) t he provisions of Article 9.5,
Chapter 1, Part 1, Division 3, Title 2 of the Government Code (sections 11135 -11139.5) and any
regulations promulgated thereunder.
(c) The Purchaser shall ensure that any direct contractor and its subcontractors
constructing the Facility shall not knowingly give preferential treatment of any kind whatsoever
in connection with any business transaction related to the construction or operation of the Facility
to any of its affiliates or to any business enterprise in which the Purchaser has any financial interest,
but in such business transactions shall deal at all times with such affiliates and enterprises on the
same basis as though dealing with any other parties.
(d) The Purchaser shall ensure that any direct contractor and its subcontractors
constructing the Facility shall, with respect to the Facility, give written notice of their obligations
under this section to labor organizations representing employees of the Purchaser and any
contractor or subcontractor performing work on the Facility which have a collective bargaining or
other contract with the Purchaser, such contractor or subcontractor.
(e) The Purchaser shall ensure that any direct contractor and its subcontractors
constructing the Facility shall include the provisions of this section in all subcontracts to perform
work with respect to the Facility.
SECTION 8.21 Execution in Counterparts.
This Agreement shall become enforceable upon its execution and delivery. This
Agreement may be executed and entered into in several counterparts, each of which shall be
deemed an original, and all of which shall constitute but one and the same instrument.
SECTION 8.22 Disclaimer of Warranties.
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IBank makes no warranty or representation, either express of implied, as to the value,
design, condition, merchantability, or fitness for any particular purpose or fitness for the use
contemplated by the Purchaser for the Facility, or any item thereof, or any other representation or
warranty with respect to the Facility or any item thereof.
SECTION 8.23 Usury Savings.
Nothing herein shall be construed as entitling IBank to charge, receive, or collect interest
in a sum greater than the maximum interest rate permitted to be charged by IBank to the Purchaser
under applicable law (the “Maximum Rate”). The Parties intend that this Agreement shall comply
with applicable law and that the rate or rates of interest charged hereunder shall not exceed the
Maximum Rate. If the occurrence of any circumstance, event or contingency should cause such
interest to exceed interest at the Maximum Rate, any such excess amount shall be applied to the
reduction of the unpaid principal component of the Installment Payments. As used herein, the
term “applicable law” shall mean the law in effect as of the date hereof; provided, however, that
in the event there is a change in the law which results in a different permissible rate of interest,
then this Agreement shall be governed by such new law as of its effective date.
[Signatures follow. Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be signed by
their respective officers on the dates set forth below.
CALIFORNIA INFRASTRUCTURE AND
ECONOMIC DEVELOPMENT BANK, as Seller
By:
Scott Wu
Executive Director
Date_____________________________________
CITY OF SAN LUIS OBISPO, as Purchaser
By_______________________________________
Title _____________________________________
Date_____________________________________
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EXHIBIT A
APPROVING RESOLUTION OF THE PURCHASER
[To be Attached to Executed Agreement]
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EXHIBIT B
DESCRIPTION OF FACILITY
Generally, the Facility consists of upgrades to improve System reliability and energy and
operational efficiency, and includes all necessary equipping, installation, design, engineering,
construction, construction contingency, demolition, removal, resurfacing, restoration, landscaping,
permitting, construction management, project administration, and general project development
activities. More specifically, the Facility includes the following elements:
• Improvements to the ozone disinfection processes at the Purchaser’s water
treatment plant;
• Installation of control systems at various transfer pump station upgrades to
eliminate pressure spikes and modulate pump speeds to more effectively meet
varying customer water demand;
• Replacement of an existing pump station with a larger system to efficiently
maintain the required system discharge pressure for the plant’s service water;
• Replace and upgrade System control hardware and software to allow for monitoring
and optimization of key components of the System; and
• Other components necessary or desirable in connection with an infrastructure
project of this type and that are consistent with the applicable requirements of the
IBank Act and the Criteria.
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EXHIBIT C
CONDITIONS PRECEDENT TO DISBURSEMENT
A. Conditions Precedent to Initial Disbursement
No Facility Funds shall be disbursed pursuant to this Agreement until and unless
the Purchaser has submitted the following to IBank:
(1) Insurance Certificate of the Purchaser required by Section 5.22;
B. Conditions Precedent to Disbursement for Construction Costs
No Facility Funds shall be disbursed for construction costs for the Facility until and
unless the Purchaser has submitted the following to IBank:
(1) A copy of the Purchaser’s direct contractor(s)’ builder’s risk,
commercial general liability, and worker’s compensation insurance policies satisfying the
requirements of Section 5.22, unless specifically waived by IBank;
(2) A copy of the Purchaser’s direct contractor’s payment and
performance bonds satisfying the requirements set forth in Section 5.19 of this Agreement; and
(3) A copy of the executed direct contract(s) for the Facility between
the Purchaser and its direct contractor(s), including any exhibits, attachments, or change orders, if
and when applicable.
C. Conditions Precedent to Final Disbursement
The final disbursement of Facility Funds shall not be made until the Purchaser has
provided the following to IBank:
(1) Recorded notice of completion for the Facility or other evidence of
completion satisfactory to IBank;
(2) Lien waivers for the Facility, or evidence of the passage of the
applicable statutory time periods for filing mechanics and other similar liens; and
(3) Certification by the Purchaser that the Facility has been completed
according to its approved final plans and specifications, that the completed Facility is consistent
with the definition of Facility in this Agreement and is acceptable to IBank.
.
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EXHIBIT D
FORM OF OPINION OF LEGAL COUNSEL TO PURCHASER
Attorney letterhead
To be signed and dated as of the Effective Date
City of San Luis Obispo
879 Morro Street
San Luis Obispo, CA 93401
California Infrastructure and Economic Development Bank
1325 J St. Suite 1823
Sacramento, CA 95814
RE: Installment Sale Agreement, By and Among the City of San Luis Obispo and the California
Infrastructure and Economic Development Bank (“IBank”), dated as of June 1, 2020.
Ladies and Gentlemen:
In my capacity as legal counsel to the City of San Luis Obispo (the “City”) and in connection with
the above described financing agreement (the “Financing Agreement”), I have examined the laws
pertaining to the City; the City Charter; copies of the Financing Agreement; Resolution No.
________(2020 Series) adopted by the City Council on June 16, 2020 (the “Resolution”); the City
of San Luis Obispo 2012 Water Revenue Refunding Bonds and the City of San Luis Obispo,
California Water Revenue Refunding Bonds, Series 2018, (collectively, the “Existing Bonds”) and
their respective indentures and other documents governing and securing the Existing Bonds
(collectively, the “Existing Bonds Documents”); the rate and fee structure for the City’s water
system; and such other information, opinions, certificates and documents as I considered necessary
to render this opinion.
Based upon the foregoing, it is my opinion that:
(i) the City is a municipal corporation and a public instrumentality of the State of
California duly organized and validly existing pursuant to the laws of the State of California;
(ii) the Resolution and other actions of the City approving and authorizing the
execution and delivery of the Financing Agreement were duly adopted at a meeting of the
governing body of the City which was called and held pursuant to law, in accordance with the
Charter and with all public notice required by law, and at which a quorum was present and acting
throughout, and such approval and authority is continuing and in full force and effect as of the date
hereof;
(iii) the City has the full right and lawful authority to execute and deliver the Financing
Agreement and the Financing Agreement has been duly authorized and executed on behalf of the
City and the Financing Agreement is the legal, valid and binding obligations of the City
enforceable in accordance with its terms and under the Charter, except as enforcement may be
limited by as limited by applicable bankruptcy, insolvency, debt adjustment, receivership,
fraudulent conveyance or transfer, moratorium, reorganization, arrangements or other similar laws
affecting creditors’ rights, to the application of equitable principles, to the exercise of judicial
discretion in appropriate cases and to the limitations on legal remedies against public entities in
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the State or other laws or equitable principles affecting the enforcement of creditors’ rights
generally;
(iv) to the best of my knowledge, after due inquiry, the execution and deliver y of the
Financing Agreement and compliance with the provisions thereof, under the circumstances
contemplated thereby, does not and will not, in any material respect, conflict with or constitute on
the part of the City a breach of or default under any agreement or other instrument to which the
City is a party, including the Existing Bonds and the Existing Bonds Documents, or by which it is
bound or any existing law, regulation, court order or consent decree to which the City is subject;
(v) the obligations of the City under the Financing Agreement (a) constitutes permitted
parity obligations under the Existing Bonds Documents, and (b) are on parity with the obligations
of the City under the Existing Bonds and the Existing Bonds Documents;
(vi) the rates, fees and charges the City imposes on its water system customers are legal,
valid and comply with California Constitution article XIIID, the statues implementing it, and the
published California Appellate Court and Supreme Court decisions interpreting it;
(vii) to the best of my knowledge, after due inquiry, there is no action, suit, proceeding,
inquiry or investigation before or by any court or public body pending and notice of which has
been received by the City or threatened against or affecting the City: (1) challenging or questioning
the transactions contemplated by the Financing Agreement or any other agreement, document or
certificate related to such transactions; (2) challenging or questioning the creation, organization,
existence or powers of the City; (3) seeking to enjoin or restrain the execution of the Financing
Agreement or the construction of the Facility (as defined in the Financing Agreement) or the
collection of any of the revenues used for making payments under the Financing Agreement; (4) in
any way questioning or affecting any authority for the execution of the Financing Agreement or
the validity or enforceability of the Financing Agreement; or (6) in any way questioning or
affecting any other agreement or instrument relating to the Financing Agreement to which the City
is a party.
The opinions expressed herein are based on such examination of the law of the State as I deemed
relevant for the purposes of this opinion letter. I have not considered the effect, if any, of the laws
of any other jurisdiction upon matters covered by this opinion letter. I have assumed the
genuineness of all documents and signatures presented to me. I have assumed and relied upon the
accuracy of the factual matters represented, warranted or certified in the documents. I express no
opinion as to the status of the Financing Agreement, the Installment Payments or any other
payments thereunder, or any other documents executed and delivered in connection with the
Financing Agreement under any federal securities laws or any state securities or “Blue Sky” law
or any federal, state or local tax law. Further, I express no opinion with respect to any
indemnification, contribution, liquidated damages, penalty (including any remedy deemed to
constitute a penalty), right of set-off, arbitration, judicial reference, choice of law, choice of forum,
choice of venue, non-exclusivity of remedies, waiver or severability provisions contained in the
Financing Agreement. Without limiting any of the foregoing, I express no opinion as to any matter
other than as expressly set forth above.
I am furnishing this opinion letter as City Attorney to the City. No attorney-client relationship has
existed or exists between me and iBank by virtue of this opinion letter. This opinion letter is
rendered solely in connection with the financing described herein, and may not be relied upon by
you for any other purpose. I disclaim any obligation to update this opinion letter. This opinion
letter and the opinions expressed herein shall not extend to, and may not be used, quoted, referred
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to, or relied upon by any other person, firm, corporation or other entity without my prior written
consent.
Sincerely,
_________________________
[Insert attorney name]
City Attorney, City of San Luis Obispo
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EXHIBIT E
AMORTIZATION SCHEDULE
Payment
Date
Ending
Principal
Balance
Principal
Payment
Interest
Payment
Total Principal
& Interest Annual Fee Total Payment
Total Payment
Fiscal Year
Ending June 30
19-Jun-2020 $14,300,000.00
1-Dec-2020 $160,875.00 $160,875.00 $160,875.00
1-Jun-2021 $13,740,196.06 $559,803.94 $178,750.00 $738,553.94 $42,900.00 $781,453.94 $781,453.94
1-Dec-2021 $171,752.45 $171,752.45 $171,752.45
1-Jun-2022 $13,166,397.02 $573,799.04 $171,752.45 $745,551.49 $41,220.59 $786,772.08 $958,524.53
1-Dec-2022 $164,579.96 $164,579.96 $164,579.96
1-Jun-2023 $12,578,253.00 $588,144.02 $164,579.96 $752,723.98 $39,499.19 $792,223.17 $956,803.13
1-Dec-2023 $157,228.16 $157,228.16 $157,228.16
1-Jun-2024 $11,975,405.39 $602,847.62 $157,228.16 $760,075.78 $37,734.76 $797,810.54 $955,038.70
1-Dec-2024 $149,692.57 $149,692.57 $149,692.57
1-Jun-2025 $11,357,486.58 $617,918.81 $149,692.57 $767,611.37 $35,926.22 $803,537.59 $953,230.16
1-Dec-2025 $141,968.58 $141,968.58 $141,968.58
1-Jun-2026 $10,724,119.81 $633,366.78 $141,968.58 $775,335.36 $34,072.46 $809,407.82 $951,376.40
1-Dec-2026 $134,051.50 $134,051.50 $134,051.50
1-Jun-2027 $10,074,918.86 $649,200.95 $134,051.50 $783,252.44 $32,172.36 $815,424.80 $949,476.30
1-Dec-2027 $125,936.49 $125,936.49 $125,936.49
1-Jun-2028 $9,409,487.89 $665,430.97 $125,936.49 $791,367.46 $30,224.76 $821,592.21 $947,528.70
1-Dec-2028 $117,618.60 $117,618.60 $117,618.60
1-Jun-2029 $8,727,421.15 $682,066.74 $117,618.60 $799,685.34 $28,228.46 $827,913.81 $945,532.40
1-Dec-2029 $109,092.76 $109,092.76 $109,092.76
1-Jun-2030 $8,028,302.73 $699,118.41 $109,092.76 $808,211.18 $26,182.26 $834,393.44 $943,486.20
1-Dec-2030 $100,353.78 $100,353.78 $100,353.78
1-Jun-2031 $7,311,706.36 $716,596.37 $100,353.78 $816,950.16 $24,084.91 $841,035.06 $941,388.85
1-Dec-2031 $91,396.33 $91,396.33 $91,396.33
1-Jun-2032 $6,577,195.08 $734,511.28 $91,396.33 $825,907.61 $21,935.12 $847,842.73 $939,239.06
1-Dec-2032 $82,214.94 $82,214.94 $82,214.94
1-Jun-2033 $5,824,321.02 $752,874.06 $82,214.94 $835,089.00 $19,731.59 $854,820.59 $937,035.53
1-Dec-2033 $72,804.01 $72,804.01 $72,804.01
1-Jun-2034 $5,052,625.10 $771,695.92 $72,804.01 $844,499.93 $17,472.96 $861,972.89 $934,776.90
1-Dec-2034 $63,157.81 $63,157.81 $63,157.81
1-Jun-2035 $4,261,636.79 $790,988.31 $63,157.81 $854,146.13 $15,157.88 $869,304.00 $932,461.82
1-Dec-2035 $53,270.46 $53,270.46 $53,270.46
1-Jun-2036 $3,450,873.77 $810,763.02 $53,270.46 $864,033.48 $12,784.91 $876,818.39 $930,088.85
1-Dec-2036 $43,135.92 $43,135.92 $43,135.92
1-Jun-2037 $2,619,841.67 $831,032.10 $43,135.92 $874,168.02 $10,352.62 $884,520.64 $927,656.56
1-Dec-2037 $32,748.02 $32,748.02 $32,748.02
1-Jun-2038 $1,768,033.77 $851,807.90 $32,748.02 $884,555.92 $7,859.53 $892,415.45 $925,163.47
1-Dec-2038 $22,100.42 $22,100.42 $22,100.42
1-Jun-2039 $894,930.67 $873,103.10 $22,100.42 $895,203.52 $5,304.10 $900,507.62 $922,608.04
1-Dec-2039 $11,186.63 $11,186.63 $11,186.63
1-Jun-2040 $0.00 $894,930.67 $11,186.63 $906,117.31 $2,684.79 $908,802.10 $919,988.73
Total $14,300,000.00 $4,028,203.82 $18,328,203.82 $485,529.46 $18,813,733.28 $18,813,733.28
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EXHIBIT F
FORM OF CERTIFICATE OF UTILITIES ENGINEER
[letterhead]
(To be signed and dated as of the Effective Date)
California Infrastructure and Economic Development Bank
1325 J St. Suite 1823
Sacramento, CA 95814
RE: Installment Sale Agreement, By and Among the City of San Luis Obispo (the “City”) and the
California Infrastructure and Economic Development Bank (“IBank”), dated as of June 1, 2020; Facility
Useful Life.
Ladies and Gentlemen:
In my capacity as the Utilities Engineer I, Corissa Burnett do hereby certify as follows:
1. I am a Professional Civil Engineer, #89763;
2. Per industry standards for the equipment specified in the Preliminary Engineering Assessment and
Investment Grade Audit the following useful life for upgrade equipment has been validated provided proper
maintenance procedures are performed.
3. Professional industry standards and guidelines provide median year equipment life expectancy for
equipment included in this upgrade. Whereas existing equipment’s lifetimes and product specifications
provide basis for reference.
4. The City of San Luis Obispo is in the process of undertaking a project to improve the energy and
operational efficiency of the City’s water treatment, distribution, and delivery system. In particular, the
City will upgrade the ozone disinfection facility at its water treatment plant, install variable control systems
for various transfer pump station motors, upgrade the water treatment plant cooling system, and will replace
control systems at the City’s water treatment plant and throughout its water system. In referencing industry
standards, existing equipment performance lifetime and the experience industry professionals the useful
life of improvements was determined. Therefore, in my opinion, as Professional Civil Engineer, the useful
life of the aforementioned project will be at least 20 years.
I, Corissa Burnett, hereby certify that each of the foregoing is true and correct.
Dated: ______________, 20__
Sincerely,
_________________________________________
Corissa Burnett
Utilities Engineer I
of the City of San Luis Obispo
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EXHIBIT G
FORM OF CERTIFICATE OF PURCHASER’S UTILITIES DIRECTOR
Purchaser letterhead
Signed Version to be Delivered to IBank as a Condition Precedent to IBank’s Obligations
Hereunder
California Infrastructure and Economic Development Bank
1325 J St. Suite 1300
Sacramento, CA 95814
RE: Installment Sale Agreement (“ISA”), By and Among the City of San Luis Obispo and the
California Infrastructure and Economic Development Bank (“IBank”), dated as of June 1, 2020;
Payment and Release of Lien of State Water Resources Control Board Agreement No. 02 -818-
550-0.
Ladies and Gentlemen:
In my capacity as the authorized representative of the City of San Luis Obispo (the “City”), I John
Moss, do hereby certify as follows:
1. On or about March 1, 2004 the City entered into Agreement No. 02-818-550-0 (the “Water
Board Agreement”) with the State Water Resources Control Board (the “Water Board”), pursuant
to which the City borrowed $8,883,231 from the Water Board (the “Water Board Loan”). Pursuant
to the Water Board Agreement, the Water Board Loan was secured by, and was payable from, a
lien on the System Revenues (as that term is defined in the ISA).
2. I signed the Water Board Agreement on behalf of the City, I am the authorized
representative of the City for matters relating thereto, and I am authorized to make this certification
on its behalf.
3. The City has paid in full the Water Board Loan. The Water Board Agreement has
terminated and no longer imposes a lien on System Revenues or any other real or personal property
of the City.
I, John Moss, hereby certify that each of the foregoing is true and correct.
Sincerely,
__________________________________
John Moss
Utilities Director, City of San Luis Obispo
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EXHIBIT H
SCHEDULE OF SOURCES AND USES OF FACILITY FUNDS
SOURCES and USES
Uses Sources
IBank City Total
Construction, Design, Entitlement and Related
Activities $14,300,000 $14,300,000
IBank Origination Fee $143,000 $143,000
Total $14,300,000 $143,000 $14,443,000
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EXHIBIT I
Reserved
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EXHIBIT J
Reserved
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TABLE OF CONTENTS
Page
i
ARTICLE I DEFINITIONS, RULES OF CONSTRUCTION, AND
CONDITIONS PRECEDENT ............................................................... 2
SECTION 1.01 Definitions ................................................................................. 2
SECTION 1.02 Rules of Construction................................................................. 9
ARTICLE II TERMS OF SALE............................................................................... 10
SECTION 2.01 Purchase and Sale .................................................................... 10
SECTION 2.02 Design, Acquisition, Construction, and Sale of the Facility ...... 10
SECTION 2.03 Payment of Purchase Price ....................................................... 11
SECTION 2.04 Payment on Business Days....................................................... 12
SECTION 2.05 Disbursement of Facility Funds ................................................ 12
SECTION 2.06 Additional Payments ................................................................ 14
SECTION 2.07 Reserved .................................................................................. 14
SECTION 2.08 Limitations on Prepayment and Facility Funds Reductions ....... 15
SECTION 2.09 Validity of Pledge and First Lien.............................................. 16
SECTION 2.10 Limited Obligation ................................................................... 16
SECTION 2.11 Permitted Additional Parity Debt ............................................. 16
SECTION 2.12 The Purchaser’s Obligation for Other Facility Costs ................. 18
SECTION 2.13 Facility Description .................................................................. 18
SECTION 2.14 Withholding of Facility Funds .................................................. 18
SECTION 2.15 Reserve Account ...................................................................... 18
SECTION 2.16 Permitted Subordinate Debt ..................................................... 19
ARTICLE III PLEDGE OF REVENUES .................................................................. 19
SECTION 3.01 Pledge of Net System Revenues ............................................... 19
SECTION 3.02 System Revenues to be Deposited in the Enterprise Fund ......... 20
SECTION 3.03 Priority of Payments Made from the Enterprise Fund ............... 20
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER ..................................................................................... 21
SECTION 4.01 Organization ............................................................................ 21
SECTION 4.02 Agreement Valid and Binding .................................................. 21
SECTION 4.03 No Conflict in Execution of Agreement ................................... 21
SECTION 4.04 No Litigation ........................................................................... 21
SECTION 4.05 No Breach or Default ............................................................... 21
SECTION 4.06 No Consent, Approval, or Permission Necessary ...................... 22
SECTION 4.07 Accuracy and Completeness of Information Submitted to
IBank ....................................................................................... 22
SECTION 4.08 Financial Statements of the Purchaser ...................................... 22
SECTION 4.09 Licenses, Permits, and Approvals for Completion of
Facility..................................................................................... 22
SECTION 4.10 Authority to Operate the System .............................................. 23
SECTION 4.11 Valid Title................................................................................ 23
SECTION 4.12 Other Liens .............................................................................. 23
SECTION 4.13 Purchaser’s Compliance with Prop 218 Law ............................ 23
SECTION 4.14 No Challenge to Purchaser’s Rates, Fees and Charges .............. 23
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SECTION 4.15 Purchaser’s Compliance with Conditions Precedent to
Parity Debt Set Forth in 2012 Bonds Instrument and 2018
Bonds Instrument ..................................................................... 24
SECTION 4.16 Continuing Validity of Representations and Warranties ........... 24
ARTICLE V AFFIRMATIVE COVENANTS OF THE PURCHASER .................... 24
SECTION 5.01 Punctual Payment .................................................................... 24
SECTION 5.02 Payment of Claims ................................................................... 24
SECTION 5.03 Books and Accounts ................................................................ 24
SECTION 5.04 Protection of IBank’s Security and Rights ................................ 26
SECTION 5.05 Payments of Taxes and Other Charges ..................................... 26
SECTION 5.06 Maintenance of System Revenues ............................................ 27
SECTION 5.07 Tax Covenants ......................................................................... 28
SECTION 5.08 Maintenance and Operation of System ..................................... 35
SECTION 5.09 Assumption of Obligations ....................................................... 35
SECTION 5.10 Damage, Destruction, Title Defect, and Condemnation ............ 35
SECTION 5.11 Entry into Replacement Agreement .......................................... 37
SECTION 5.12 Further Assurances................................................................... 37
SECTION 5.13 Agreement to Complete Facility Delivery ................................ 37
SECTION 5.14 Collection of Rates, Fees and Charges...................................... 38
SECTION 5.15 The Purchaser’s General Responsibility ................................... 38
SECTION 5.16 The Purchaser’s Assurances and Commitments ........................ 38
SECTION 5.17 Facility Access ......................................................................... 39
SECTION 5.18 Operation and Maintenance of the Facility ............................... 39
SECTION 5.19 Performance and Payment Bonds ............................................. 39
SECTION 5.20 Continuing Disclosure .............................................................. 40
SECTION 5.21 Notice of Purchaser Event of Default ....................................... 40
SECTION 5.22 Maintenance of Insurance ........................................................ 40
SECTION 5.23 Facility Construction ................................................................ 41
SECTION 5.24 Compliance with Contracts ...................................................... 41
SECTION 5.25 Maintenance of Lien Parity ...................................................... 42
SECTION 5.26 Covenant to Comply with Prop 218 Law .................................. 42
ARTICLE VI NEGATIVE COVENANTS OF THE PURCHASER .......................... 42
SECTION 6.01 Limitation on Additional Obligations ....................................... 42
SECTION 6.02 Disposition of Property ............................................................ 42
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES ....................................... 43
SECTION 7.01 Events of Default and Acceleration .......................................... 43
SECTION 7.02 Remedies ................................................................................. 44
SECTION 7.03 Application of Funds upon Default .......................................... 44
SECTION 7.04 No Waiver ............................................................................... 45
SECTION 7.05 Remedies Not Exclusive .......................................................... 45
ARTICLE VIII MISCELLANEOUS ............................................................................ 46
SECTION 8.01 California Law ......................................................................... 46
SECTION 8.02 Assignment of IBank’s Rights .................................................. 46
SECTION 8.03 Third Party Beneficiaries ......................................................... 46
SECTION 8.04 Successor Entities .................................................................... 46
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SECTION 8.05 Discharge of Agreement........................................................... 47
SECTION 8.06 Amendment ............................................................................. 47
SECTION 8.07 Waiver of Personal Liability .................................................... 47
SECTION 8.08 Arm’s Length Transaction........................................................ 47
SECTION 8.09 Notices..................................................................................... 48
SECTION 8.10 Contact Persons ....................................................................... 48
SECTION 8.11 Partial Invalidity ...................................................................... 49
SECTION 8.12 Binding Effect.......................................................................... 49
SECTION 8.13 Entire Agreement ..................................................................... 49
SECTION 8.14 Indemnification ........................................................................ 49
SECTION 8.15 Expectations ............................................................................ 50
SECTION 8.16 Section Headings ..................................................................... 51
SECTION 8.17 Time of the Essence ................................................................. 51
SECTION 8.18 Form of Documents ................................................................. 51
SECTION 8.19 Waiver of Consequential Damages ........................................... 51
SECTION 8.20 Nondiscrimination ................................................................... 51
SECTION 8.21 Execution in Counterparts ........................................................ 52
SECTION 8.22 Disclaimer of Warranties ......................................................... 52
SECTION 8.23 Usury Savings .......................................................................... 52
EXHIBIT A – APPROVING RESOLUTION OF THE PURCHASER
EXHIBIT B – DESCRIPTION OF FACILITY
EXHIBIT C – CONDITIONS PRECEDENT TO DISBURSEMENT
EXHIBIT D – FORM OF OPINION OF LEGAL COUNSEL TO PURCHASER
EXHIBIT E – AMORTIZATION SCHEDULE
EXHIBIT F – FORM OF CERTIFICATE OF UTILITIES ENGINEER
EXHIBIT G – FORM OF CERTIFICATE OF PURCHASER’S UTILITIES DIRECTOR
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Section 9. CAPITAL FINANCING AND DEBT MANAGEMENT
A. Capital Financing
1. The City will consider the use of debt financing only for one -time capital improvement
projects and only under the following circumstances:
a. When the project’s useful life will exceed the term of the financing.
b. When project revenues or specific resources will be sufficient to service the long -term
debt.
2. Debt financing will not be considered appropriate for any recurring purpose such as
current operating and maintenance expenditures. The issuance of short-term
instruments such as revenue, tax or bond anticipation notes is excluded from this
limitation. (See Investment Policy)
3. Capital improvements will be financed primarily through user fees, service charges,
assessments, special taxes or developer agreements when benefits can be specifically
attributed to users of the facility. Accordingly, development impact fees should be
created and implemented at levels sufficient to ensure that new development pays its fair
share of the cost of constructing necessary community facilities.
4. Transportation impact fees are a major funding source in financing transportation system
improvements. However, revenues from these fees are subject to significant fluctuation
based on the rate of new development. Accordingly, the following guidelines will be
followed in designing and building projects funded with transportation impact fees:
a. The availability of transportation impact fees in funding a specific project will be
analyzed on a case-by-case basis as plans and specification or contract awards are
submitted for City Manager or Council approval.
b. If adequate funds are not available at that time, the Council will make one of two
determinations:
• Defer the project until funds are available.
• Based on the high-priority of the project, advance funds from the General Fund,
which will be reimbursed as soon as funds become available. Repayment of
General Fund advances will be the first use of transportation impact fee funds
when they become available.
5. The City will use the following criteria to evaluate pay -as-you-go versus long-term
financing in funding capital improvements:
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a. Factors Favoring
Pay-As-You-Go Financing
1. Current revenues and adequate fund balances are available, or project phasing can be
accomplished.
2. Existing debt levels adversely affect the City's credit rating.
3. Market conditions are unstable or present difficulties in marketing.
b. Factors Favoring Long Term Financing
1. Revenues available for debt service are deemed sufficient and reliable so that long-
term financings can be marketed with investment grade credit ratings.
2. The project securing the financing is of the type which will support an investment
grade credit rating.
3. Market conditions present favorable interest rates and demand for City financings.
4. A project is mandated by state or federal requirements, and resources are
insufficient or unavailable.
5. The project is immediately required to meet or relieve capacity needs and current
resources are insufficient or unavailable.
6. The life of the project or asset to be financed is 10 years or longer.
7. Vehicle leasing when market conditions and operational circumstances present
favorable opportunities.
B. Debt Management
1. The City will not obligate the General Fund to secure long-term financings except when
marketability can be significantly enhanced.
2. An internal feasibility analysis will be prepared for each long -term financing which
analyzes the impact on current and future budgets for debt service and operations. This
analysis will also address the reliability of revenues to support debt service.
3. The City will generally conduct financings on a competitive basis. However, negotiated
financings may be used due to market volatility or the use of an unus ual or complex
financing or security structure.
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4. The City will seek an investment grade rating (Baa/BBB or greater) on any direct debt and
will seek credit enhancements such as letters of credit or insurance when necessary for
marketing purposes, availability and cost-effectiveness.
5. The City will monitor all forms of debt annually coincident with the City's Financial Plan
preparation and review process and report concerns and remedies, if needed, to the
Council.
6. The City will diligently monitor its compli ance with bond covenants and ensure its
adherence to federal arbitrage regulations.
7. The City will maintain good, ongoing communications with bond rating agencies about its
financial condition. The City will follow a policy of full disclosure on every financial report
and bond prospectus (Official Statement).
C. Debt Capacity
1. General Purpose Debt Capacity. The City will carefully monitor its levels of general -
purpose debt. Because our general-purpose debt capacity is limited, it is important that
we only use general purpose debt financing for high-priority projects where we cannot
reasonably use other financing methods for two key reasons:
a. Funds borrowed for a project today are not available to fund other projects tomorrow.
b. Funds committed for debt repayment today are not available to fund operations in
the future.
In evaluating debt capacity, general -purpose annual debt service payments should
generally not exceed 10% of General Fund revenues; and in no case should they exceed
15%. Further, direct debt will not exceed 2% of assessed valuation; and no more than
60% of capital improvement outlays will be funded from long -term financings.
2. Enterprise Fund Debt Capacity. The City will set enterprise fund rates at levels needed to
fully cover debt service requirements as well as operations, maintenance, administration
and capital improvement costs. The ability to afford new debt for enterprise operations
will be evaluated as an integral part of the City’s rate review and setting process.
D. Independent Disclosure Counsel
The following criteria will be used on a case -by-case basis in determining whether the City
should retain the services of an independent disclosure counsel in conjunction with specific
project financings:
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1. The City will generally not retain the services of an independent disclosure counsel when
all of the following circumstances are present:
a. The revenue source for repayment is under the management or control of the City,
such as general obligation bonds, revenue bonds, lease-revenue bonds or certificates
of participation.
b. The bonds will be rated or insured.
2. The City will consider retaining the services of an independent disclosure counsel when
one or more of following circumstances are present:
a. The financing will be negotiated, and the underwriter has not separately engaged an
underwriter’s counsel for disclosure purposes.
b. The revenue source for repayment is not under the management or control of the
City, such as land-based assessment districts, tax allocation bonds or conduit
financings.
c. The bonds will not be rated or insured.
d. The City’s financial advisor, bond counsel or underwriter recommends that the City
retain an independent disclosure counsel based on the circumstances of the financing.
E. Land-Based Financings
1. Public Purpose. There will be a clearly articulated public purpose in forming an
assessment or special tax district in financing public infrastructure improvements. This
should include a finding by the Council as to why this form of financing is preferre d over
other funding options such as impact fees, reimbursement agreements or direct
developer responsibility for the improvements.
New development should generally be expected to “pay its own way,” (i.e., provide
funding through one mechanism or another that funds its “proportional share” of
public improvement and infrastructure costs and ongoing operations and
maintenance costs).
(1) The City will consider the use of city-based funding sources to fund public
facility and infrastructure improvements that prov ide for the health, safety
and welfare of existing and future residents and/or provide measurable
economic development and fiscal benefits. In evaluating whether the City will
use city-based funding sources, the following evaluation criteria should be
considered:
(a) Significant public benefit, demonstrated by compliance with and
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furtherance of General Plan goals, policies, and programs
(b) Alignment with the Major City Goals and other important objectives
in place at the time of the application
(c) Head of Household Job Creation
(d) Housing Creation
(e) Circulation/Connectivity Improvements
(f) Net General Fund fiscal impact
(2) The City generally will not fund or offer public financing for
infrastructure improvements that confer only private benefit to
individual property owners or development projects.
(3) The City shall seek continuity (or improvements to) existing levels of
municipal service by assuring adequate funding for the City’s operation,
maintenance and infrastructure replacement costs.”
2. Eligible Improvements. Except as otherwise determined by the Council when
proceedings for district formation are commenced, preference in financing public
improvements through a special tax district shall be given for those public improvements
that help achieve clearly identified community facility and infrastructure goals in
accordance with adopted facility and infrastructure plans as set forth in key policy
documents such as the General Plan, Specific Plan, Facility or Infrastructure Master Plans,
or Capital Improvement Plan.
Such improvements include study, design, construction and/or acquisition of:
a. Public safety facilities.
b. Water supply, distribution and treatment systems.
c. Waste collection and treatment systems.
d. Major transportation system improvements, such as freeway interchanges; bridges;
intersection improvements; construction of new or widened arterial or collector
streets (including related landscaping and lighting); sidewalks and other pedestrian
paths; transit facilities; and bike paths.
e. Storm drainage, creek protection and flood protection improvements.
f. Parks, trails, community centers and other recreational facilities.
g. Open space.
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h. Cultural and social service facilities.
i. Other governmental facilities and improvements such as offices, information
technology systems and telecommunication systems.
School facilities will not be financed except under appropriate joint community facilities
agreements or joint exercise of powers agreements between the City and school districts.
3. Active Role. Even though land-based financings may be a limited obligation of the City,
we will play an active role in managing the district. This means that the City will select
and retain the financing team, including the financial advisor, bond counsel, trustee,
appraiser, disclosure counsel, assessment engineer and underwriter. Any costs incurred
by the City in retaining these services will generally be the responsibility of the property
owners or developer and will be advanced via a deposit when an application is filed; o r
will be paid on a contingency fee basis from the proceeds from the bonds.
4. Credit Quality. When a developer requests a district, the City will carefully evaluate the
applicant’s financial plan and ability to carry the project, including the payment of
assessments and special taxes during build-out. This may include detailed background,
credit and lender checks, and the preparation of independent appraisal reports and
market absorption studies. For districts where one property owner accounts for more
than 25% of the annual debt service obligation, a letter of credit further securing the
financing may be required.
5. Reserve Fund. A reserve fund should be established in the lesser amount of: the
maximum annual debt service; 125% of the annual average debt service; or 10% of the
bond proceeds.
6. Value-to-Debt Ratios. The minimum value-to-debt ratio should generally be 4:1. This
means the value of the property in the district, with the public improvements, should be
at least four times the amount of the assessment or special tax debt. In special
circumstances, after conferring and receiving the concurrence of the City’s financial
advisor and bond counsel that a lower value-to-debt ratio is financially prudent under the
circumstances, the City may consider allowing a value-to-debt ratio of 3:1. The Council
should make special findings in this case.
7. Appraisal Methodology. Determination of value of property in the district shall be based
upon the full cash value as shown on the ad valorem assessment roll or upon an appraisal
by an independent Member Appraisal Institute (MAI). The definitions, standards and
assumptions to be used for appraisals shall be determined by the City on a case -by-case
basis, with input from City consultants and district applicants, an d by reference to
relevant materials and information promulgated by the State of California, including the
Appraisal Standards for Land-Secured Financings prepared by the California Debt and
Investment Advisory Commission.
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8. Capitalized Interest During Construction. Decisions to capitalize interest will be made on
case-by-case basis, with the intent that if allowed, it should improve the credit quality of
the bonds and reduce borrowing costs, benefiting both current and future property
owners.
9. Maximum Burden. Annual assessments (or special taxes in the case of Mello-Roos or
similar districts) should generally not exceed 1% of the sales price of the property; and
total property taxes, special assessments and special taxes payments collected on the tax
roll should generally not exceed 2%.
10. Benefit Apportionment. Assessments and special taxes will be apportioned according to
a formula that is clear, understandable, equitable and reasonably related to the benefit
received by—or burden attributed to—each parcel with respect to its financed
improvement. Any annual escalation factor should generally not exceed 2%.
F. Development Impact Fees Guidelines and Policies
Development impact fees are one-time fees levied on new development, typically
levied at the time building permits are issued, to fund a range of the City’s public
facilities and infrastructure. Such fees are levied both on a citywide basis as well as for
specific areas (e.g., the Specific Plan Areas). The levy of development impact fees is
regulated by the State’s Mitigation Fee Act (Government Code Section 66000 et seq.).
1. Development impact fees should be set, consistent with the statutory
“nexus” analysis and findings, to fund new development’s proportional
share of public facility and infrastructure costs.
2. Improvements funded by development impact fees should be
referenced generally in the appropriate planning documents (e.g.,
General Plan, Specific Plans, etc.) and reflected in the City’s Capital
Improvement Program.
3. An exception to this policy may be created by a development agreement
between the City and a private developer. In this case public
investments are offset by measurable public benefits.
4. The City’s development impact fees can be “leveraged” through the use
of fee credit and reimbursement agreements with developers and
landowners.
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5. The City’s aggregate fee levels should not render new development that
is otherwise consistent with City plans and regulations economically
infeasible. Aggregate fee levels should be evaluated i n terms of a
reasonable standard, but not a strict limit (e.g., aggregate fee levels
should not exceed an average of approximately 10 to 12 percent of the
market value of the new development, either on a per-unit or per-
square foot basis).
6. The City may consider reductions or waivers of its development impact
fees in cases where a development project meets specific City planning
or economic development policies such as affordable housing projects.
In such cases the amount of funding foregone must be replaced with
other funding sources available to the City.
1. Special Tax District Administration. In the case of Mello-Roos or similar special tax
districts, the total maximum annual tax should not exceed 110% of annual debt service.
The rate and method of apportionment should include a back-up tax in the event of
significant changes from the initial development plan and should include procedures for
prepayments.
a. Community Facilities Districts or Assessment Districts offer a way to fund
infrastructure, maintenance, or municipal services through special taxes or
assessments levied on property owners benefiting from the thus -funded
improvements or services. It can be used for both capital improvements and
ongoing facility maintenance or services.
b. The City will consider the formation of financing districts using the State’s
assessment law or the Mello-Roos Community Facilities Act for its newly
developing areas on a case- by-case basis, consistent with technical analysis
and City priorities (i.e., capital or ongoing funding).
c. The City will consider the effect of the special tax on the City’s ability to
issue General Obligation bonds or other property-based tax measures.
d. Such districts should fund infrastructure or services serving or otherwise
providing benefit to the area subject to the assessment or special tax.
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e. Such districts can fund public facilities or infrastructure otherwise funded
with the City’s development impact fees or project-specific exactions. In
such cases the area’s development impact fee obligations will be adjusted
proportionately.
f. Within any such districts, property value-to-lien ratio should, consistent
with typical underwriting standards, be at least 4.0:1 after calculating the
value of the financed public improvements to be installed and considering
any prior or pending special taxes or improvement liens.
g. Consistent with underwriting standards and market considerations, and as a
matter of policy, the City will limit the maximum amount of special taxes to
be levied on any parcel of property within a Community Facilities District, in
any given fiscal year, together with the general property taxes, general
obligation bonds, and other special taxes and assessments levied on such
parcel, shall not exceed an amount equal to one and eight - tenths percent
(1.8 percent) of the projected assessed value of the parcel (and
improvements if applicable). How the special tax capacity is allocated
between capital and ongoing expenditures will depend upon the City’s
priorities.
h. The City shall have discretion to allow a special tax in excess of the
established limits for any lands within the CFD which are designated for
commercial or industrial uses.
i. As a part of such district formations, the City will retain a special tax consul tant to
prepare a report which recommends a special tax rate and method for the proposed
CFD and evaluates the special tax proposed to determine its ability to adequately fund
identified public facilities, City administrative costs, services (if applicable ) and other
related expenditures.
2. Foreclosure Covenants. In managing administrative costs, the City will establish minimum
delinquency amounts per owner, and for the district as a whole, on a case -by-case basis
before initiating foreclosure proceedings.
3. Disclosure to Bondholders. In general, each property owner who accounts for more than
10% of the annual debt service or bonded indebtedness must provide ongoing disclosure
information annually as described under SEC Rule 15(c)-12.
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4. Disclosure to Prospective Purchasers. Full disclosure about outstanding balances and
annual payments should be made by the seller to prospective buyers at the time that the
buyer bids on the property. It should not be deferred to after the buyer has made the
decision to purchase. When appropriate, applicants or property owners may be required
to provide the City with a disclosure plan.
G. Conduit Financings
1. The City will consider requests for conduit financing on a case -by-case basis using the
following criteria:
a. The City’s bond counsel will review the terms of the financing and render an opinion
that there will be no liability to the City in issuing the bonds on behalf of the applicant.
b. There is a clearly articulated public purpose in providing the conduit financing.
c. The applicant is capable of achieving this public purpose.
2. This means that the review of requests for conduit financing will generally be a two -step
process:
a. First asking the Council if they are interested in considering the request and
establishing the ground rules for evaluating it.
b. And then returning with the results of this evaluation and recommending approval of
appropriate financing documents if warranted.
This two-step approach ensures that the issues are clear for both the City and applicant,
and that key policy questions are answered.
3. The work scope necessary to address these issues will vary from request to request and
will have to be determined on a case-by-case basis. Additionally, the City should generally
be fully reimbursed for our costs in evaluating the request; however, this should also be
determined on a case-by-case basis.
B. Refinancing
1. General Guidelines. Periodic reviews of all outstanding debt will be undertaken to
determine refinancing opportunities. Refinancing will be considered (within federal tax
law constraints) under the following conditions:
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a. There is a net economic benefit.
b. It is needed to modernize covenants that are adversely affecting the City’s financial
position or operations.
c. The City wants to reduce the principal outstanding in order to achieve future debt
service savings, and it has available working capital to do so from other sources.
2. Standards for Economic Savings. In general, refinancing for economic savings will be
undertaken whenever net present value savings of at least five percent (5%) of the
refunded debt can be achieved.
a. Refinancing that produce net present value savings of less than five percent will be
considered on a case-by-case basis, provided that the present value savings are at
least three percent (3%) of the refunded debt.
b. Refinancing with savings of less than three percent (3%), or with negative savings, will
not be considered unless there is a compelling public policy objective.
C. Enhanced Infrastructure Financing District Guidelines and Policies
a. EIFD financing should be considered for public facilities or infrastructure
improvements that confer Citywide and/or regional benefits. This may include the
“City share” of infrastructure included in the City’s development impact fees.
b. Unless there is a Development Agreement in place that provides otherwise, EIFDs
should not be used to fund real estate projects’ proportional share of infrastructure
costs otherwise included in the City’s development impact fees or charged as project -
specific exactions (e.g., subdivision improvements).
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