HomeMy WebLinkAboutC15-341 EnergySmart Partners Second Amendment11/25/14
SECOND AMENDMENT TO AGREEMENT BETWEEN THE COUNTY OF EAGLE,
STATE OF COLORADO AND ENERGYSMART PARTNERS, LLC FOR
ADMINISTERING AN ENERGY EFFICIENCY AND RENEWABLE ENERGY
REVOLVING LOAN FUND PROGRAM
5eKTHIS SECOND AMENDMENT (this "Second Amendment ") is entered into on the 1
day of�014, by and between EnergySmart Partners, LLC ( "ESP "), a Colorado limited liability
company, a wholly owned subsidiary of Funding Partners for Housing Solutions, Inc., a non-
profit organization certified by the United States Department of Treasury CDFI as a community
development financial institution ( "CDFI") as Loan Fund Administrator, and the County of
Eagle, State of Colorado ( "County "), a body corporate and politic by and through its Board of
County Commissioners.
WHEREAS, ESP and County are parties to an Agreement for Administering an Energy
Efficiency and Renewable Energy Revolving Loan Fund Program dated June 11, 2012
( "Agreement "); and
WHEREAS, ESP and County entered into a First Amendment to the Agreement for the
purpose of expanding the program to allow residents of Lake County, Colorado to access up to
fifty thousand dollars of loan funds ( "First Amendment "); and
WHEREAS, Eagle County, Gunnison County and Pitkin County (hereinafter
collectively the "Counties ") were awarded an Energy Efficiency and Conservation Block Grant
also known as Better Building Grant funded by the United States Department of Energy
( "DOE ") through the American Recovery and Reinvestment Act of 2009 which is documented
by notice of award dated June 14, 2010 with an effective date of August 12, 2010 from DOE to
Counties (collectively the "Grant "); and
WHEREAS, Eagle County was designated as the lead agency in the Grant; and
WHEREAS, the energy efficiency and renewable energy revolving loan fund program
( "RLF ") established in the Agreement was funded by the Grant; and
WHEREAS, the Counties collaborated with various non -profit entities to establish the
Energy Smart Program to provide among other things education and access to energy efficiency
improvements; and
WHEREAS, one of the goals of the Grant is to create a program which can be utilized by
residents of other jurisdictions in achieving common energy efficiency goals; and
WHEREAS, various non - profit entities have established Energy Smart Colorado, Inc.
(`ESC ") for the purpose of expanding the Energy Smart Program; and
Cis -l" I
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WHEREAS, Eagle County with approval from Gunnison County and Pitkin County has
or will enter into an Agreement for the transfer of assets to allow for the on -going operation of
the Energy Smart Program by ESC and for certain access to and administration of the RLF by
ESC. The Agreement between Eagle County and ESC is hereinafter referred to as the "Transition
Agreement "; and
WHEREAS, the Counties have or will enter into a Second Amendment to the
Memorandum of Understanding authorizing Eagle County to enter into this Second Amendment
and the Transition Agreement and to take such future action in connection with the RLF as Eagle
County deems necessary without further approval from the Counties so long as such actions are
in accordance with DOE requirements; and
WHEREAS, the Grant concluded on November 1, 2014, but Grant obligations
associated with the RLF remain in effect; and
WHEREAS, Eagle County desires to amend the Agreement to allow ESC to access and
administer the RLF on the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, based upon the representations set forth in the foregoing recitals
and for good and valuable consideration as set forth in the Agreement, including the
promises set forth herein, the Parties agree to the following:
1. Paragraph 11 of the Agreement, PERFORMANCE REPORTS AND RECORDS is
hereby replaced with the following:
a. "ESP shall prepare and submit to County monthly a detailed Performance Report
- -no later than fifteen (15) days after the end of each month. Said report shall be
referenced in Exhibit H or in a format approved by County and shall be directly
related to the Scope of Services. The contents of the report shall provide data and
information to County and ESC to be used for coordinating, monitoring and
evaluating the Scope of Services to its completion. Failure to submit these reports
shall constitute a material breach of the Agreement.
b. ESP, or its parent organization, shall provide County and ESC a copy of its annual
report with its audited financial statement compliant with lOCFR 600.316 within
thirty (30) days after it is completed.
c. ESP shall maintain records of funds received and disbursed, correspondence, loan
applications, loans funded, promissory notes, security instruments, payment
histories and such other records for the duration of this Agreement, and for such
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longer time as may be required by the County. In no event shall such records be
destroyed or discarded prior to their being tendered to County upon the
termination of this Agreement or as may be agreed otherwise, in writing, between
the parties. County, and if applicable, state and federal auditors, shall have access
to those records, with or without notice, in accordance with the award, contracts
and other agreements and in accordance with laws, rules and regulations
applicable to them.
d. ESP shall provide County and ESC with such reports as required by the DOE
award to be submitted by the County to maintain compliance with the terms and
- J _ conditions of that award. Notwithstanding anything herein to the contrary, ESP is
not required to submit any reports directly to DOE"
2. Paragraph 12f of the Agreement TRANSFER OF FUNDS is hereby amended by the
addition of the following:
"From time to time, ESC may seek to reduce the balance of the RLF, if funds are
available, for purposes permitted by DOE. Such reductions are subject to prior
approval of DOE and Eagle County. Upon such approval, Eagle County shall
provide a Notice of Draw Down to ESP in the form attached hereto as Exhibit L
and ESP shall within two (2) business days transfer funds as directed by Eagle
County. Notwithstanding the foregoing, Eagle County may continue to access and
draw down the RLF in accordance with the terms of this Agreement and DOE
requirements."
3. The Agreement shall be amended by the addition of paragraph 23:
"23. EXPANSION/WITHDRAWAL.
a. Notwithstanding anything to the contrary herein, the RLF shall no longer be
restricted for use by residents of the Counties alone. At such time as ESC desires
to expand access to the RLF to residents of an eligible, new jurisdiction, the same
shall be accomplished by ESC providing notice to ESP and Eagle County in the
form attached hereto as Exhibit M. ESP shall not accept a Notice of Expansion
unless it strictly complies with the form set forth in Exhibit M. If the Notice of
Expansion form has been modified then ESP shall obtain Eagle County's written
consent prior to authorizing loans to residents of the new jurisdiction.
b. In the event a jurisdiction or entity participating in the Energy Smart Program and
RLF no longer desires or is prohibited from participating in the Energy Smart
Program or RLF, then ESC may provide notice to ESP and Eagle County in the
form attached as Exhibit N and no additional loans will be made to the residents
of that jurisdiction. Loans that have been made from the RLF as of the date of the
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notice shall remain in place in accordance with their terms. In no event may ESC
eliminate or reduce access to the RLF by residents of the Counties and any notice
from ESC to that effect shall be null and void.
c. Access to the RLF shall be on a first come, first served basis in accordance with
the terms of this Agreement, the Grant, related rules, regulations and guidance
which may be amended from time to time.
d. ESC may not expand the purposes or types of properties for which the RLF was
established without prior written approval of DOE and Eagle County and
execution of an amendment to this Agreement by and in a form satisfactory to
Eagle County and ESP.
e. In the event ESC establishes other sources of capital with ESP then such funds
shall be segregated and separately accounted for and not commingled with the
RLF."
5. Exhibit K to the Agreement is hereby deleted and ESP acknowledges and agrees that
residents of Lake County may access the RLF on a first come, first served basis in accordance
with the terms of the Agreement.
6. Exhibit A to the Agreement is hereby deleted and replaced with Exhibit A -1 which is
attached hereto and incorporated herein by reference.
7. Exhibit B to the Agreement is hereby deleted and replaced with Exhibit B -1 which is
attached hereto and incorporated herein by reference.
8. Exhibit C to the Agreement is hereby deleted and replaced with Exhibit C -1 which is
attached hereto and incorporated herein by reference.
9. Capitalized terms in this Second Amendment will have the same meaning as in the
Agreement. To the extent that the terms and provisions of the Second Amendment conflict with,
modify or supplement portions of the Agreement, the terms and provisions contained in this
Second Amendment shall govern and control the rights and obligations of the parties.
10. Except as expressly altered, modified and changed in this Second Amendment, all terms
and provisions of the Agreement shall remain in full force and effect, and are hereby ratified and
confirmed in all respects as of the date hereof.
11. This Second Amendment shall be binding on the parties hereto, their heirs, executors,
successors, and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to the
Agreement the day and year first above written.
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M.
STATE OF COLORADO )
)ss.
COUNTY OF LARIMER )
ERS, LLC,
company
oe Ro'wari, Executive Director
Funding Partners for Housing Solutions, Inc. as
its Member/Manager
qm` JI-- LUIS
On this. _ day of U. U , 204-4, Joe Rowan, Executive Director Funding Partners for Housing
Solutions, Inc. as Member/Manager of EnergySmart Partners, LLC, a Colorado limited liability executed
the foregoing Second Amendment.
WITNESS my hand and official seal.
Ath
M
4?�
Not Public
COUNTY OF EAGLE, STATE OF COLORADO,
By and Through Its BOARD OF COUNTY
COMMISSI NERS
By:
r 3 k Chairman
EXH031T L
NOTICE NUMBER OF DRAW DOWN
TO: EnergySmart Partners LLC
Attn., Joe Rowan
330 S. College Avenue #400
Fort Collins, CO 80524
Notice is hereby given that the existing balance of Revolving Loan Fund ( "RLF') established by
Agreement between the County of Eagle, State of Colorado and Energy Smart Partners LLC dated June
11, 2012 and amendments thereto (collectively the "RLF Agreement '') is to be reduced as set forth herein.
Please draw down the existing and available balance in the RLF in the amount of $ and
wire the funds to:
Energy Smart Colorado, Inc.
Attn:
Insert Address
Eagle County, Colorado
By:
Title:
Dated:
cc: Department of Energy, Attn:
Energy Smart Colorado, Inc.
111
NOTICE NUMBER OF EXPANSION OF RLF
TO: EnergySmart Partners LLC Eagle County, Colorado
Attn: Joe Rowan Attn: Adam Palmer
330 S. College Avenue #400
Fort Collins, CO 80524
Post Office Box 850
Eagle, CO 81631
Please accept this notice that as of , 20 residents of
are permitted access to the Revolving Loan Fund in accordance with the terms
of the Agreement between the County of Eagle, State of Colorado and EnergySmart Partners LLC dated
June 11, 2012 and amendments thereto (hereinafter the "RLF Agreement ") and terms of the grant from
the United States Department of Energy to Eagle County, Pitkin County and Gunnison County with an
effective date of August 12, 2010 ( "Grant "). Revolving Loan Funds are to be available on a first come,
first served basis for eligible projects /improvements as authorized under the Grant and RLF Agreement.
Energy Smart Colorado, Inc. by signing below confirms that it has obtained any necessary consent from
DOE and the residents of are eligible to participate in the RLF.
Energy Smart Colorado, Inc. by signing below acknowledges that it is responsible for ensuring new
contractors are trained and that any necessary contractor agreements, homeowner disclosures, disclaimers
are prepared and revised as may be necessary. Energy Smart Colorado, Inc. further acknowledges that it
has reviewed NEPA, Davis Bacon Act, Historic Preservation requirements and Buy American Act and
will comply with the same as access to the Revolving Loan Fund is expanded as set forth herein.
ENERGY SMART COLORADO, INC.
By:
Its:
Dated:
I W4
NOTICE NUMBER OF WITHDRAWAL OF JURISDICTION FROM RLF
TO: EnergySmart Partners LLC Eagle County, Colorado
Attn: Joe Rowan Attn: Adam Palmer
330 S. College Avenue #400 Post Office Box 850
Fort Collins, CO 80524 Eagle, CO 81631
Please accept this notice that as of , 20 residents of
are no longer permitted access to the Revolving Loan Fund in accordance with
the terms of the Agreement between the County of Eagle, State of Colorado and EnergySmart Partners
LLC dated June 11, 2012 and amendments thereto (hereinafter the "RLF Agreement ") and terms of the
grant from the United States Department of Energy to Eagle County, Pitldn County and Gunnison County
with an effective date of August 12, 2010 ( "Grant ").
Energy Smart Colorado, Inc. by signing below confirms that is has notified that its
residents will no longer be eligible for loans from the Revolving Loan Fund.
ENERGY SMART COLORADO, INC.
By:
Its:
Dated:
EXHIBIT A -1: ENERGY SMART PARTNER'S COMPLIANCE& LOAN
SERVICING STANDARDS
I. DOCUMENTATION AND UNDERWRITING CRITERIA
A. CONTRACTUAL LOAN SERVICES
1. Documentation Requirements The loan applicant is required to provide sufficient documentation
to verify eligibility under the Program guidelines approved by Eagle County. Such verifications may
include, but are not limited to, financial capacity standards, income limitations, credit assessments,
collateral quality and funds availability.
Loan referral sources shall forward copies of all necessary documentation to ESP within a reasonable
period prior to the scheduled closing date. ESP reserves the right to deny applications that lack
sufficient documentation to render verification of eligibility or where sufficient time has not been
afforded it to perform all duties required of it with available staff or capital resources. ESP Staff shall
review documentation and either: approve the application, request further information, or decline the
application. Staff shall issue a final determination in writing to the applicant within a reasonable
period of time, specifying the approved loan amount, all terms and provisions of the credit offer and
any documentation requirements prior to loan funding. The letter may be sent to the referral source
and shared with the applicant to expedite the loan closing sequence. A complete loan file must
include:
a. Application — Applicants shall complete, sign and date an application form provided by ESP,
which form shall require sufficient detail to determine eligibility and adequately assess relevant
characteristics of the credit request. Applicants shall acknowledge the right of ESP to verify as
accurate and complete all information provided within the application and supporting
documentation. Such right extends to third -party verifications, as deemed appropriate by ESP
according to the Program and nature of the credit request.
b. Income Verification — Applicants shall provide income and/or financial statements consistent
with prevailing ESP standards. Analysis of such information will remain consistent with ESP
programs unless otherwise specified within the relevant provisions of the Program.
In all cases, income measurements shall be defined using prevailing median income statistics
provided by the U.S. Department of Housing and Urban Development, as released annually for
the market area served by the proposed project and as adjusted for household size.
c. Supplemental Documentation — ESP shall collect additional documentation according to
prevailing standards of similar ESP programs or as dictated by the Program pursuant to Exhibit
1 of the Agreement. Collection and consideration of all supplemental documentation shall
conform to fair credit statutes and ethical business standards.
2. Underwriting Analysis - Qualification for the Program shall be evaluated for reasonable debt
capacity, adequacy of collateral and the provisions of Exhibit 1. Underwriting third -party programs
will typically entail:
a. Income/Revenue Determination — Applicants will be screened against minimum standards
identified under the Program, utilizing techniques and formulas prevalent under similar ESP
programs. At a minimum, applicants shall provide sufficient documentation to determine
current income through internally- prepared financial statements, federal tax returns, payroll
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Compliance & Loan Servicing Standards
statements and/or contractual agreements. ESP reserves the right to require any and all income
documentation deemed appropriate to the credit request.
Financial Capacity — As a result of the proposed financing applicants will be screened for
reasonable capacity to hold and service the debt according to all terms described within the
Program. ESP shall utilize techniques and formulas prevalent to similar ESP programs. In
addition to the proposed debt, all other contractual obligations of the applicant shall be
considered, including those disclosed by the applicant, verified through third - parties, public
records and companion credit terms and conditions relevant to the proposed transaction.
Single - payment items, taxes and discretionary obligations need not be considered unless
otherwise noted under the Program.
b. Collateral — The Program may require a grant of interest in real property owned or controlled by
the applicant. ESP shall identify and assess the proposed collateral as compliant to established
standards under the Program while taking reasonable caution to insure the collateral is not
unduly burdened by prior claims that diminish the security interest taken in the Applicant's real
property or evidence credit terms detrimental to the applicant's financial capacity. .
d. Loan Amount — Maximum loan amount standards shall be established by the Program as set
forth in Exhibit 1.
e. Borrower — All parties holding an ownership interest in the subject collateral property, as
applicable, must be obligated on the Promissory Note and Security Interest assignment.
Residential loans shall be issued to natural persons only. All signatories to the Program's loans
must be of legal age and provide a valid Social Security Number (SSN).
f. Consistency — All documentation used to underwrite a loan file shall be accurate and consistent
with all other documentation within the file.
3. Loan Approval — ESP shall have authorization to approve applications that meet all eligibility
criteria established for the Program and as set forth in Exhibit 1. Loan applications that are declined or
withdrawn shall be retained on file for period of two (2) years from the application date.
ESP reserves the right to deny funding under any program where the borrower or their agent is unable
to clearly demonstrate a valid purpose for the requested loan, or when elements of fraudulent activity
are discovered. Where applications are not compliant to the stated purpose or use of the requested
program, ESP retains the right to refer applicants to alternate financing sources.
4. Loan Funding — At such point that all underwriting conditions have been satisfied and in
accordance with timing requirements of performance contracts, ESP will provide a written detail of
any conditions or documents necessary prior to executing the promissory note and related documents.
To the extent practical, all loan documents utilized by ESP shall adequately protect the interests of the
organization while conforming to all applicable federal, state and local statutes. At a minimum, loan
documents shall be reviewed for enforceability and compliance by qualified counsel at least annually.
To the extent possible, the application referral source and/or borrower shall be provided copies of all
documents to be executed in advance of loan closing. The agent presenting the final loan documents
shall assume responsibility for satisfying such requirements prior to issuing loan funds to any party.
All multi-page documents shall bear the initial(s) of all borrowers at the bottom of each page of the
document, except where signature(s) are required. All persons holding title to the subject collateral
property, as listed on the Warranty Deed or transfer of ownership document, must also be
obligated on the Promissory Note and pledge their interest in the security through a deed of trust
or applicable assignment. However, persons not taking ownership to the subject property may be
added as additional guarantors on the promissory Note. The loan package must include the following:
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Compliance & Loan Servicing Standards
a. Settlement Statement —Prepared by ESP, dependent upon the loan to be made under the terms of
the Program. ESP shall review the statement in advance of closing to verify completeness and
accuracy of all entries. ESP shall be listed as a lender for the full and correct loan amount, with
all applicable loan fees listed by category. The file copy shall carry signatures of all parties to
the transaction.
b. Promissory Note — ESP shall prepare and review for accuracy a Promissory Note (Note) to be
executed by borrower(s) at loan closing. The terms of the approved loan shall be accurately
reflected on the appropriate Note form.
c. Deed of Trust or Collateral Assignment — ESP shall prepare and review for accuracy a Deed of
Trust or applicable assignment form that reflects exact terms and titles shown on the
Promissory Note. ESP or an approved Notary Public shall be employed to notarize and record
the executed document with the appropriate public office. If applicable, all necessary riders to
the Deed of Trust will be prepared and executed in a similar manner.
d. Federal Truth In Lending Notice and Other Applicable Disclosures — ESP shall prepare
applicable disclosures of loan terms, sample calculations and other relevant conditions or
provisions of the loan program, submitted as part of the final loan package.
e. Loan Proceeds — Within a reasonable timeframe prior to the scheduled loan closing, ESP shall
,set up a wire transfer to the bank account of the Contractor or Borrower in the amount of loan,
less any fees to be collected from borrower and payable to ESP. Where an ESP Staff
representative is present at loan closing, a cashier's check may be drawn for the amount of the
loan and made payable to the Contractor or borrower.
5. Post_Closing Procedures — Within a reasonable time period of loan closing, ESP must conduct a
complete review of the loan file to insure all documents are correct, complete, and compliant with all
ESP underwriting standards and secured in the permanent loan file. The live note shall be placed in
safe deposit with a financial institution, while the recorded Deed of Trust or collateral assignment shall
be securely maintained in the file. Additionally, ESP will assume responsibility for monitoring:
a. Receipt of recorded documents — Within 60 days of loan closing, ESP should be in receipt of all
recorded documents. If not received, ESP will contact the appropriate public office to
determine if. the instrument has been received, recorded, or subject to processing delays. If
recording has been delayed, an appropriate follow up period will be established. If recorded
more than 15 business days prior, ESP shall request the public office perform a document
search and report their findings within 10.days of such request. If not received within such
time, ESP shall request a certified copy of the document and forwarded by registered delivery
from escrow agent of record. If the document has not been received by the public office within
60 days, ESP shall contact the escrow agent to request a document search. Escrow agent shall
be instructed to provide gap coverage under the title insurance policy, obtain new signatures on
replacement documents, if necessary, and record the document at the earliest possibility.
b. Receipt of post closing verifications, compliance reports, work completion notices or similar
documentation associated with the loan program.
c. Loan Registration — Upon execution of the loan, ESP shall enter the new loan into the tracking
system and establish follow -up dates for annual review, hazard insurance renewal and maturity
notification.
d. Document Retention — All documentation used to evaluate and/or service individual loan files
will be retained in electronic and hard copy format for minimum of 4 years from the date of
final disposition. For loans that are denied or withdrawn for whatever reason, the date of
disposition will be the date upon which the file was officially classified as cancelled. For loans
that are originated, the date of final disposition will be the date of final and full repayment.
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Compliance & Loan Servicing Standards
Loans that are charged off as uncollectable shall be retained for the minimum period from the
date the file is returned from collection services as uncollectible. The maximum retention
period for all loan files shall be 5 years from the date of final disposition.
II. PORTFOLIO MANAGEMENT
A. CONTRACT LOAN SERVICES
1. Reporting, Risk and Compliance Review — Staff shall conduct ongoing review of outstanding
loans to establish compliance with loan provisions, which may include periodic written or telephone
contacts, review of public records, insurance or other notices and dialogue with other parties to the
transaction. ESP reserves the right to accelerate payment or prescribe other reasonable measures
should the borrower fail to comply with any such requirements.
ESP shall prepare and present to Eagle County and Energy Smart Colorado, Inc. the following reports
at least quarterly, more frequently as circumstances or contractual terms may dictate.
a. Comprehensive Report —A complete accounting of all outstanding loans, sorted by jurisdiction
and dedicated investment source, which details borrower name, family size, AMI percentage,
loan amount, parental status and date of the loan. Total loans funded and available capital, if
appropriate, shall also appear according to jurisdiction and dedicated investment source.
b. Summary Report — A composite accounting of total program capital, funds invested, principal
and interest recapture, loan loss, and aggregate loan characteristics.
c. Compliance Report — A separate report shall be compiled by staff, independent auditors or the
Executive Director to detail any incidence of non - compliance as such items are identified. The
report shall contain detail of the issue of suspected non - compliance, any corrective actions
taken or recommended and delivered to ESP management, as appropriate. ESP management is
authorized to take further action or refer the matter to the Board of Trustees of its' parent
organization for formal determination and further notice to affected parties. ESP management
is required to provide a report to its parent Board of Trustees which identifies any issues of non-
compliance, or attest to the absence of non - compliance, at least monthly.
2. Risk Rating and Loan Loss Reserves — Finance activity undertaken through contractual
relationships do not present capital exposure to ESP, by definition.
While ESP does not assume direct capital exposure under contractual finance activities, indirect
exposure is present in the form of errors, omissions and breach of fiduciary responsibility in
performing duties detailed within the service agreement. Within the service agreement or as a matter
of practice in the event such provision is not clearly established, ESP shall maintain minimum general
liability insurance coverage in the amount of $1,000,000 per incident or $2,000,000 aggregate. Such
amounts may be modified upward by action of ESP management. As deemed necessary, ESP may
seek coverage under a performance bond to further protect the interests of both the organization and
Eagle County, though insurance remains the preferred risk mitigation vehicle.
3. Loan Repayment - According to all terms and provisions of the Program, Staff shall deliver an
invoice to the borrower sufficiently prior to the payment due date to allow timely response. All
payments received shall be applied to accrued interest, late fees then principal. Payments in excess of
the invoice amount shall be applied as principal reduction. Should ESP determine the borrower is non-
compliant with any of conditions or provisions expressed within the loan documents, borrower shall be
instructed in writing to submit payment in full of outstanding principal and interest within thirty (30)
days of the notice.
4. Loan Maturity Procedure — ESP shall deliver a final payment request and maturity notice to the
borrower for an amount sufficient to retire all outstanding principal, interest and applicable fees prior
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Compliance & Loan Servicing Standards -
to the scheduled maturity date. Upon final settlement, ESP shall extinguish the loan according to
procedure noted as set forth herein after expiration of a reasonable payment hold period.
5. Delinquency - In all cases, payment of principal and interest are due no later than the close of
business on payment date(s) specified within the loan documents, or by the date shown on the demand
for payment noted in Par. 3. After such time, the loan shall be considered in default, with appropriate
action taken to remedy the loan. Until the point when payment is sixty (60) days past due, ESP shall
retain the ability to make all satisfactory arrangements for payment, including waiver of any penalties
where appropriate.
The following procedures shall be taken in cases of default:
A. 10 days past due — A late payment notice is mailed to the borrower, reflecting the amount due,
date of default and request for immediate payment.
b. 30 days past due — A second notice shall be mailed to borrower and mandatory direct contact
shall be performed.
c. 60 days past due — ESP shall complete a full report that details the nature of all contact with
borrower, any outstanding concerns of the borrower, and results of all discussions with
borrower, its representatives and /or counsel. The report shall be submitted to Eagle County and
Energy Smart Colorado, Inc. for informational purposes.
d. 90 days past due — ESP management shall determine whether further collection activity is
warranted based upon the nature of borrower representations, or lack thereof. If it is determined
that further negotiation, loan modification, or other curative efforts are warranted ESP shall
continue to hold the account in collection status and recognize an impairment of the asset for
accounting purposes. In the event ESP management determines further action by ESP is
unlikely to resolve the delinquency, ESP shall cease loan service activity on the account and
refer the item to a licensed professional agency in good standing with the State of Colorado for
further collection action. Upon referral of the item, ESP shalt recognize full impairment of the
asset
7. Bankruptcy — Upon receipt of a notice of bankruptcy petition, all direct collection efforts with the
borrower will cease.
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EXHIBIT B -1: ENERGY SMART RESIDENTIAL ENERGY EFFICIENCY
REVOLVING LOAN FUND CONTRACTOR AGREEMENT
Now, on this day of , EnergySmart Partners LLC, a Colorado
limited liability company ( "ESP "), and , a
contractor desiring to participate in the Energy Smart Residential Energy Efficiency Revolving
Loan Fund Program ( "Contractor "), state the following:
WHEREAS, EnergySmart Partners LLC, a Colorado limited liability company, is
administrator of the Energy Smart Residential Energy Efficiency Revolving Loan Fund Program
(the "Program");
WHEREAS, the purpose of the Program is to assist in the funding of construction projects
which make the borrower's homes more energy efficient and to create "green" construction jobs;
WHEREAS, as a condition of participation in the Program, the contractor has agreed to
conduct a project to be funded by the Program;
AGREEMENT
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Tasks to be performed: As a participant in the Program, the Contractor shall: 1) submit their
customer's loan application to ESP with an executed copy of the construction project contract,
contingent upon financing, setting forth the work to be performed, the price for such work and the
date by which the work will be completed. The sum of $25.00 serving as a loan application fee
shall also be delivered to ESP at the time of the submission of the loan application; 2) deliver to
their customer the loan documents prepared for that customer's signature by ESP; 3) obtain from
the customer the customer's executed loan documentation; and 4) deliver that loan documentation
to ESP. Upon receipt of the loan - proceeds, Contractor shall provide its executed lien waiver
affidavit wherein the Contractors customer (Customer) now ESP's borrower (Borrower) shall
acknowledge the amount paid to the contractor upon the loan settlement. The Contractor shall
verify that all suppliers and/or subcontractors for the project are paid in full with no further
recourse to the customer, and furnish lien waivers to that effect.
2. Representations: Contractor represents it shall perform all of its work for the customers
according to local standards and in a good and workmanlike fashion within the agreed time frame
and, at its own cost and expense, furnish all items, articles, operations mentioned or herein
specified, related labor services, tools, equipment, transportation and incidentals necessary and
required for satisfactory, acceptable completion of the agreed work or delivery of materials for or
to Customers as specified in the loan application documents and this agreement.
Contractor shall do all things necessary in its sole discretion to perform work for
Customers in the most diligent, expeditious and economical manner consistent with good
workmanship, all applicable building codes, sound business practice, and reasonable precautions for
safety.
All work to be performed for Customers under this Agreement shall be coordinated in
advance with the Customers and shall be performed only during such time periods as approved by
such Customers.
Contractor represents and warrants that it possesses the training, education, experience,
skill, competence, licensing, certifications, and resources needed to properly perform the work for
Customers as described in the loan application documents and related agreements. Contractor
further acknowledges and understands that ESP will not oversee any aspect of the
construction work and that this agreement is only for the benefit of Contractor's Customer.
Contractor shall maintain complete and accurate records of all work performed through the
Program.
2. Term of Agreement: This Agreement shall begin and become effective on the date of
execution by the Contractor, as specified on the signature page.
3. Payment for Work Performed: The terms and conditions of payment for work performed for a
Customer shall be solely between the Contractor and the Customer. Contractor shall not be paid by
ESP without the express authorization of Customer and in no event shall ESP be liable for
payment of any kind to Contractor for work performed pursuant to this Agreement.
4. Insurance Requirements: The Contractor shall procure and maintain at its own expense, the
following kinds and minimum .amounts of insurance for purposes of insuring the liability risks
which the Contractor has assumed until this Agreement has expired or is terminated. The Contractor
will be responsible for providing evidence of continued insurance when extending/renewing this
Agreement:
a. Commercial General Liability. This coverage should be provided on an ISO 1998
Form or most current with minimum limits of $600,000.00 combined single limit
for each occurrence.
b. Workers' Compensation and Employer's Liability. Workers' Compensation must
be maintained with the statutory limits. Employer's Liability is required for
minimum limits of $100,000.00 Each Accidentl$500,000.00 Disease - Policy
Limit/$ 100,000.00 Disease -Each Employee.
c. Vehicle Insurance. Contractor shall at all times carry insurance on Contractor's
vehicles in an amount not less than $300,000 per occurrence and $1,000,000 in the
aggregate.
The Contractor shall provide Certificates of Insurance for Contractor's Commercial
General Liability Coverage and Workers' Compensation and Employer's Liability Coverage to
the Customer.
These Certificates of Insurance shall also contain a valid provision or endorsement that
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these policies may not be canceled, terminated, changed or modified without thirty (30) days
written notice to the Borrower.
S. Training: Contractor agrees to maintain all permits, licensing, certifications required by any
governmental agency with jurisdiction over the construction project. Contractor agrees to
participate in any training program required for participation in the Program initially and from
time to time.
6. Quality Assurance: ESP shall have no responsibility to inspect or otherwise supervise work
performed for a Borrower, which remains Contractor's obligation.
7. Remedy of Failure: Contractor shall, at its sole expense, immediately correct and remedy all
defective work, damage or loss, caused in whole or in part by the direct or indirect act or
omission of Contractor, its subcontractors, employees or agents, or for which Contractor is
otherwise responsible. Contractor agrees to immediately remedy, at the Contractor's expense,
any failure by the Contractor resulting in a serious health and safety issue. Any failure to comply
with other program requirements discovered during a quality assurance check must be remedied
by the Contractor, at the Contractor's expense, within three (3) business days of reported
failure.
8. Warranties: All materials and equipment furnished to Customers by Contractor shall be new
and of first -class quality. Contractor agrees to warrant all work to the Customer to be free from
defects for a minimum of one (1) year after the date such work is completed and accepted by
the Customers (or such longer period as is industry custom or practice), and agrees to promptly
correct, at Contractor's sole cost and expense, any defect discovered during such period. If an
item of work for a Customer is defective or otherwise requires repair or correction, the aforesaid
warranty shall not commence to run with respect to such item until after it is satisfactorily
repaired, remedied and corrected.
Contractor will also transfer and assign to Customers all warranties of subcontractors,
materialmen, and manufacturers and suppliers of equipment used or installed in connection with
any work for Customers, and will cooperate with Customers in the enforcement of such warranties;
but the assignment of such warranties shall not relieve Contractor of its obligations under this
Agreement.
9. Nondiscrimination: The Contractor agrees to comply with the letter and spirit of the Colorado
Anti- Discrimination Act, C.R.S. § 24 -34 -401, et seq.• as amended, and all applicable local, state and
federal laws regarding discrimination and unfair employment practices.
10. Nondiscrimination Provisions Binding on Subcontractors: In all solicitations by the Contractor
for any work related to this Agreement to be performed under a subcontract, either by competitive
bidding or negotiation, the Contractor shall notify each potential subcontractor of the Contractor's
obligations under this Agreement, and of all pertinent regulations relative to nondiscrimination and
unfair employment practices.
11. Termination of Agreement: ESP may terminate this Agreement:
a. for cause (including, but not limited to: Contractor's failure to comply with the
Program requirements; Contractor's failure to perform any work for Customers with reasonable
promptness and diligence; the bankruptcy, financial insecurity or insolvency of Contractor; or for
any other breach of this Agreement); or
b. at any time without cause, by giving thirty (30) -days' prior written notice to
Contractor.
12. Indemnity: The Contractor shall be liable and responsible for any and all damages to persons or
property caused by or arising out of the actions, obligations, or omissions of the Contractor, its
employees, agents, representatives or other persons acting under the Contractor's direction or
control in performing or failing to perform any work under the Program or this Agreement. The
Contractor will indemnify and hold harmless, ESP, its members, officers, employees, agents
representatives, and its contract parties in the Program (the "indemnified parties "), from any and all
liability, claims, demands, actions, damages, losses, judgments, costs or expenses, including but not
limited to attorneys' fees, which may be made or brought or which may result against any of the
indemnified parties as a result or on account of the actions or omissions of the Contractor, its
employees, agents or representatives, or other persons acting under the Contractor's direction or
control.
13. LIMITATION OF DAMAGES: IN NO EVENT SHALL ESP, ALONG WITH THEIR
AGENTS AND EMPLOYEES (OR ANY OF THE OFFICERS, TRUSTEES, DIRECTORS,
PARTNERS, BENEFICIARIES, JOINT VENTURES, MEMBERS, STOCKHOLDERS OR
OTHER PRINCIPALS OR REPRESENTATIVES, AND THE LIKE, DISCLOSED OR
UNDISCLOSED AND ITS CONTRACT PARTIES IN THE PROGRAM), EVER BE LIABLE
._._ TO_ CONTRACTOR,..BORROWER, OR ANY OTHER THIRD PARTY, FOR ANY DIRECT,
INCIDENTAL, SPECIAL, INDIRECT, GENERAL OR CONSEQUENTIAL DAMAGES OR
LOSS OF ANY NATURE (SUCH AS DAMAGE TO PROPERTY, DAMAGES RESULTING
FROM DELAY, CLAIMS OF THIRD PARTIES, LOSS OF PROFITS, OR INJURY TO
PERSON) WHICH MAY ARISE IN CONNECTION WITH THIS AGREEMENT. THIS
CLAUSE SHALL SURVIVE EXPIRATION OF THIS AGREEMENT.
14. Employee verification: The Contractor agrees to not knowingly employ or contract with an
illegal .alien to perform work under this Agreement. The Contractor shall not enter into a contract
with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly
employ or contract with an illegal alien to perform work under this Agreement.
15. Criminal history: Contractor assures that all existing and every new staff member working on
site do not have a criminal history background that could indicate that they might present a threat to
residents or staff. Acceptable criminal background is no felony arrests or convictions within five
years and no pattern of misdemeanors (three or more) within five years.
16. Safe Work Practices: Contractor agrees to meet OSHA and Department of Labor Requirements
regarding personal protective equipment and safe work practices. Contractor agrees to comply with
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EPA requirements to become a Certified Lead Based Paint Renovation "Firm ", if applicable.
17. Independent Contractor: Contractor recognizes and agrees that Contractor is an independent
contractor for all purposes, both legal and practical, in performing services under the Program, and
that Contractor and its agents and employees are not agents or employees of ESP for any purpose.
As an independent contractor, Contractor shall be responsible for employing and directing such
personnel and agents as it requires to perform work for Customers under this the Program, shall
exercise complete authority over its personnel and agents, and shall be fully responsible for their
actions. Contractor acknowledges that it is not entitled to unemployment insurance benefits or
workers' compensation benefits from ESP. Contractor is obligated to pay federal and state income
tax on any monies earned pursuant to the Program or this Agreement.
18. Recovery Act Compliance: Contractor acknowledges that the Program is funded in whole or in
part by the American Recovery and Reinvestment Act of 2009 (the "Act ") and that therefore ESP
has certain reporting and compliance obligations. Contractor hereby agrees to take whatever actions
are necessary to comply with, and to ensure ESP's compliance with, the requirements of the Act.
ESP agrees to provide notice to Contractor of such requirements within a reasonable period of time,
as necessary to allow Contractor to report compliance.
19. Governing Law: The laws of the State of Colorado shall govern the interpretation and
enforcement of this Agreement. Any litigation that may arise between the parties involving the
interpretation or enforcement of the terms of this Agreement shall be initiated and pursued by the
parties in the district courts of the State of Colorado and the applicable Colorado Appellate Courts.
20. Termination of Prior Agreements: This Agreement cancels and terminates, as of its effective
date, all prior agreements between -the Parties relating to the services covered by this Agreement,
whether written or oral or partly written and partly oral.
21. Seyerability: If any provision of this Agreement is found to be invalid, illegal or unenforceable,
the validity and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
22. Representation of Authority. Each person signing this Agreement represents and warrants that
he or she is duly authorized and has legal capacity to execute and deliver this Agreement.
Contractor represents and warrants to ESP that the execution and delivery of the Agreement and the
performance of such party's obligations hereunder have been duly authorized and that the Agreement
is a valid and legal agreement binding on the Contractor and enforceable in accordance with its
terms.
23. Contractor departure from Service: If Contractor wishes to leave the Program, Contractor agrees
to provide written notice to ESP.
IN WITNESS WHEREOF, the Contractor has set its hand and seal this day
of , 20_.
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CONTRACTOR: ENERGYSMART PARTNERS, LLC
M.
Email Address: Its:
Email Address:
EXHIBIT C -1: ENERGYSMART RESIDENTIAL ENERGY EFFICIENCY PROGRAM
HOMEOWNER STATEMENT OF UNDERSTANDING
I have elected to participate in the Energy Smart Energy Efficiency Loan Program ( "the Program ")
administered by EnergySmart Partners, LLC ( "Lender ").
As a part of my participation in the Program, I may receive a list of contractors who have expressed a desire
to undertake energy efficient residential home improvement projects in participating Program areas. I
understand that neither the Lender nor the Program are affiliated with or have considered and approved the
capabilities of the contractors on this list.
I acknowledge that I have not been required by the Lender or the Program to utilize any of the contractors
-on the list as a prerequisite to my participation in the Program and that I may select the contractor or contractors
of my own choosing, so long as that contractor is willing to comply with the Program requirements for my
project.
I acknowledge that the contractors on the contractor list are independent contractors and that my
relationship with them is separate and in no manner related to my relationship with Lender. I further state that
in my selection of a contractor; I have not relied upon any representation, express or implied by the Lender or
the Program.
I UNDERSTAND THAT NEITHER LENDER NOR ENERGY SMART COLORADO, INC. OR ANY THIRD
PARTY WITH OBLIGATIONS UNDER THE GRANT WHICH FUNDED THE LOAN PROGRAM PROVIDE
ANY GUARANTEE OR WARRANTY, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND HABITALITY, WITH RESPECT TO
MY HOME IMPROVEMENT PROJECT AND, WITHOUT LIMITATION, ANY GUARANTEE OR
WARRANTY THAT THE PREMISES WILL MEET MY GOALS TO ACHIEVE ENERGY SAVINGS.
I EXPRESSLY STATE THAT MY DECISION TO UNDERTAKE MY ENERGY EFFICIENCY PROJECT IS
MY SOLE DECISION AND THAT I HAVE NOT RELIED UPON ENERGY SMART COLORADO, INC.'S
_. ENERGY EFFICIENCY . CALCULATORS OR ANY OTHER INFORMATION FURNISHED BY OR
THROUGH THE ENERGYSMART RESIDENTIAL ENERGY EFFECIENCY PROGRAM.
I AGREE THAT IN NO EVENT SHALL LENDER, ENERGY SMART COLORADO, INC., OR THIRD
PARTIES WITH OBLIGATIONS UNDER THE TERMS OF THE GRANT WHICH FUNDED THE LOAN
PROGRAM, THE PROGRAM, THEIR AGENTS, EMPLOYEES, MEMBERS, MANAGERS OR OFFICERS, BE
LIABLE FOR ANY ACTUAL, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES
ARISING FROM THE WORK PERFORMED BY MY CONTRACTOR. TO THE EXTENT PERMITTED BY
LAW, ANY STATUTORY REMEDIES WHICH ARE INCONSISTENT WITH THE PROVISIONS OF THESE
TERMS ARE WAIVED.
I acknowledge that pursuant to the terms of the grant funding the Program, the Lender may have certain
reporting and compliance obligations. I agree to provide, in a timely manner, such information regarding my
project and its energy efficiency outcomes as the Lender may reasonably request. Further, I authorize the
Lender to provide such financial information as it deems necessary to meet these reporting and compliance
obligation requirements to Energy Smart Colorado, Inc. and those third parties with obligations under terms of
the Grant as well as the United States' Department of Energy. Providing past and future utility usage data is
an example of the information that might be requested of me.
I acknowledge that because the Program is funded in whole or in part by a grant from the United States'
Department of Energy, the requirements of Section 106 of the Historic Preservation Act are applicable to the
Program. If my property is more than fifty years old or is currently listed on the State of Colorado or National
Register of Historic Places, approval to proceed by the Colorado Office of Archeology and Historic Places
(OAHP) may be required for any upgrades. Furthermore, I consent to the submission of all documentation,
including photographs, to OAHP by the Service for the purpose of determining the property's historic
preservation significance.
❑ My property is more than fifty years old, or is currently listed on the Colorado State or National Register
of Historic Places.
❑ My property is located in a Historic District.
By signing below, you indicate your understanding of the above stated terms.
Name (Printed) Signature Date
v*.. in 7n is
