HomeMy WebLinkAboutEnergy Indep Loan - Veridian, LLC - 08-151CS CITY OF PALM DESERT
OFFICE OF ENERGY MANAGEMENT
STAFF REPORT
REQUEST: AUTHORIZE THE MAYOR TO APPROVE THE ENERGY INDEPENDENCE
PROGRAM (EIP) PHOTOVOLTAIC SOLAR LOAN FOR VERIDIAN, LLC.
CITY LOAN # 08-151 CS
SUBMITTED BY: Patrick Conlon, Director of Office of Energy Management
DATE: February 26, 2009
CONTENTS: 1) Loan Agreement
Recommendation:
By Minute Motion: Upon final review and approval by our legal counsel, authorize the
Mayor to approve the commercial EIP loan for a 60.5 kW photovoltaic solar system in the
amount of $522,092 to be installed at 42635 Melanie Place. Applicant is Veridian, LLC.
Discussion:
All Energy Independence Program (EIP) loans over $200,000 require City Council approval. We
are now processing Phase 2 loans. Veridian, LLC's is our first commercial loan application. The
loan request is in the amount of $522,092 at an interest rate of 7% APR for a 20-year loan term.
The size of the photovoltaic solar system is 60,500 watts, consisting of 336 solar panels installed
on 2 support structures; 116' x 18' and 160' x 16'. The cost of the 2 support structures is included
in the loan cost. The size and location of these support structures have been reviewed and
approved by the Architectural Review Commission and the Planning Department.
As requested by our legal counsel, the loan applicant has secured a Consent Agreement with their
lender on the property approving the placement of the EIP loan lien on the property. ,�
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Due to the amount of this loan application, all final documents will be reviewed and approv�d by�
our legal counsel prior to forwarding to the Mayor for his signature. � �
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Submitted by: Approval: � � H � v
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Pa ick Conlon sti McCarthy �" p °1 � " �
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Director, Office of Energy Managerr�lt�YCO ana er � „ 3 „ N o
APPRO DEN . .........�.� � � a a`� �,
RECEIVED OTHER +� � �' �� a +'
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Paul Gibson MEE G DA � �' cD, ,� x
Director of Finance AYES: � p ° " " " �'
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VERtFICD BY:
Original on File wit6 Ci lerk's Office
Office Use Only Loan#08-151CS City file No.
LOAN AGREEMENT
CITY OF PALM DESERT ENERGY INDEPENDENCE PROGRAM
[MULTIPLE DISBURSEMENTS]
This Loan Agreement ("Agreement") is made and entered into as of this
4th day of February, by and between the CITY OF PALM DESERT, a California
municipal corporation ("City") and Veridian, LLC. ("Borrower").
RECITALS
A. City has established the Energy Independence Program (the "Program")
pursuant to which City may extend loans to property owners to finance the acquisition
and installation on their property of certain qualifying renewable energy systems and
energy efficient equipment. The purpose and method of administration of the loans
under the Program are described in the Energy Independence Program Report adopted
by the City Council on August 28, 2008, as it may be amended from time to time (the
"Report").
B. The Program is authorized by Chapter 29 of Part 3 of Division 7 of the
California Streets and Highways Code (the "Act").
C. The Borrower has submitted to the City that certain Palm Desert Energy
Independence Program Loan Application dated December 12, 2008, a copy of which is
attached hereto as Exhibit "A" and incorporated herein by this reference (the
"Application"). The Application describes, among other things, the renewable energy
system and/or energy efficient equipment which is to be financed with the proceeds of
the loan described herein, and to be constructed on or installed in the property of
Borrower described in Exhibit "B" attached hereto and incorporated herein by this
reference (the "Property"), and the City has approved the Application as provided in the
Report.
D. The Borrower wishes to participate in the Program by executing this
Agreement with the City and using the proceeds of the loan made by the City to the
Borrower hereunder to finance the acquisition and [construction] [installation] on the
Property of the [renewable energy system] [energy efficiency equipment] described in
the Application (the "Equipment"). The Equipment and its construction on or installation
in the Property is collectively referred to herein as the "Work".
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
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AGREEMENT
1. Loan Aqreement.
(a) Subject to the conditions set forth herein, City agrees to extend a
loan ("Loan") to Borrower in the amount of up to Five Hundred Twenty Two Thousand
Ninety Two Dollars ($522,092.00) (the "Loan Amount"). Notwithstanding anything to
the contrary contained herein, the Loan Amount shall not in any event exceed the
actual cost of the Work. The Loan Amount shall be adjusted, if necessary, prior to the
first disbursement of the Loan Amount to the Borrower and following the post-
completion inspection by the City's Office of Energy Management ("OEM") as described
in Section 3 below, and shall be adjusted by the Director of the OEM (the "Director") to
an amount equal to the actual cost of the Work. Any adjustment of the Loan Amount
by the Director shall be made on the basis of the best available written evidence of the
actual cost of the Work and in the exercise of the Director's reasonable judgment. The
Borrower shall be solely responsible for the payment of all cost of the Work which
exceeds the Loan Amount and Borrower agrees in any event to complete the Work and
to fund all costs associated with such completion which may be in excess of the Loan
Amount. This Agreement, together with the Application, the Report and the documents
and instruments attached to or referenced in this Agreement and the Application are
collectively referred to herein as the "Loan Documents."
(b) The term of the Loan and this Agreement shall be twenty (20)
years from the date that the proceeds of the Loan are first disbursed to the Borrower.
(c) Interest shall accrue on the unpaid principal balance of the Loan
Amount from the date first disbursed to Borrower at the simple interest rate of seven
percent (7%) per annum. Interest shall be computed on the basis of a three hundred
sixty (360) day year. If a law which applies to the Loan and which sets maximum
interest rates or loan charges is interpreted by a court of competent jurisdiction in a
manner as would cause the interest or other loan charges collected or to be collected in
connection with the Loan to exceed the limits permitted by such laws, then: (i) any such
interest or loan charge shall be reduced by the amount necessary to reduce the interest
or charge to the permitted limit; and (ii) any sums already collected which exceed
permitted limits will be refunded by the City. The City may choose to make the refund
by reducing the outstanding principal amount of the Loan or by making a direct
payment to the Borrower.
(d) The Borrower promises to pay to the City, without deduction or
offset, the Loan Amount and the interest accrued thereon as provided herein. The
repayment of the Loan Amount and interest accrued thereon shall be repaid by the
Borrower to the City by the payment of an assessment levied against the Property
pursuant to Section 5898.30 of the California Streets and Highway Code (the
"Assessment"). In addition to the Assessment, the Borrower promises to pay to the
City, without deduction or offset, an annual assessment levied against the Property to
pay costs incurre y the � ich result from the administration and collection of the
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Assessment or from the administration or registration of any associated bonds or
reserve or other related funds (the "Annual Administrative Assessment"). The Annual
Administrative Assessment shall not exceed Forty Dollars ($40.00) per year. The
Assessment and the Annual Administrative Assessment, and the interest and any
penalties thereon shall constitute a lien on the Property until they are paid. The
installments of the Assessment and the Annual Administrative Assessment (including
principal and interest) shall be collected on the property tax bill pertaining to the
Property, and shall be subject to the same penalties, remedies, and lien priorities as for
property taxes in the event of non-payment. The Borrower hereby expressly consents
to the levy of the Assessment and the Annual Administrative Assessment and the
imposition of the lien on the Property as described herein and in the Act.
(e) The amount of assessment installments that will be placed on the
Property each year is set forth in Exhibit "C" attached k�ereto and incorporated herein by
this reference.
(f) The Assessment may be prepaid, in whole or in part, at any time
upon the payment of a premium in an amount equal to three percent (3%) of the
amount of the Assessment to be prepaid.
2. Use of Proceeds.
All proceeds of the Loan shall be used by Borrower for the sole purpose
of paying for the reasonable costs and expenses of the Work on the Property, and in
connection therewith the Borrower shall comply with all requirements set forth herein, in
the Application and in the Report.
3. Disbursement Procedures.
(a) Except as otherwise provided in Section 3(b), the City shall have no
obligation to make any disbursement of the Loan Amount hereunder unless and until
each of the following conditions is satisfied, or any such condition is expressly waived
by the Director:
(i) The receipt by the Director of a written certification from
Borrower, and the contractor(s), if any, that pertormed the Work, stating that the Work
for which disbursement is requested is complete, and the actual cost of such Work.
Such certification shall be in form and substance acceptable to the Director.
(ii) An inspection of the Work by the OEM, and a determination
by the Director that the Work has been completed in full compliance with the
requirements of the Loan Documents.
(iii) The receipt by the Director of such other documents and
instruments as the Director may require, including but not limited to, if applicable, the
sworn statements of contr ctor(s) and releases or waivers of lien, all in compliance with
th�� quireme f appl' b .
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(iv) Borrower has, as appropriate, executed and delivered to
Director the Loan Documents and such other documents or instruments pertaining to
the Loan or the Work as the Director may require.
(v) As of the date of disbursement of the Loan Amount, the
Director shall have determined that the representations of the Borrower contained in the
Loan Documents are true and correct, and no Default (as defined in Section 12 below)
shall have occurred and be continuing.
(vi) No stop payment or mechanic's lien notice pertaining to the
Work has been served upon the City and remains in effect as of the date of
disbursement of the Loan Amount.
(vii) The City shall have received a title policy (the "Title Policy")
in the Loan Amount and insuring the Loan and the lien of the assessments described in
Section 1 (d) hereof. The Title Policy shall be in form and substance acceptable to the
Director.
(b) Notwithstanding the provisions of Section 3(a), the City , upon
written request of the Borrower, may make one disbursement of the Loan Amount as a
progress payment prior to the completion of the Work if each of the following conditions
is satisfied, or any such condition is expressly waived by the Director:
(i) The Loan Amount must be Twenty Thousand Dollars
($20,000) or greater;
(ii) The amount of the requested disbursement does not exceed
fifty percent (50%) of the Loan Amount;
(iii) The Director shall have determined that at least seventy-five
percent (75%), on a cost basis, of the Equipment or construction materials necessary
for its installation on the Property and constituting a portion of the Work shall have been
delivered to the Property and shall have been reasonably secured from theft or
vandalism;
(iv) The proceeds of the requested disbursement shall not
exceed the actual cost of the Equipment or related construction materials described in
(iii) above; and
(v) The conditions to disbursement of the Loan Amount
contained in Sections 3(a)(iv), (v), (vi) and (vii) above shall have been satisfied or
waived by the Director.
(c) Borrower will, within ten (10} days of presentation by the Director,
execute any and all documents or instruments required by the Loan Documents in
connection with he disbu ment of the Loan Amount.
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4. Reaorts.
Borrower agrees, upon the request of Director, to promptCy deliver to the
Director, or, if appropriate, cause its contractor(s� to promptly deliver to Director, a
written status report regarding the Work.
5. Representations and Warranties of Borrower.
Borrower promises that each representation and warranty set forth below
is true, accurate and complete as of the date of this Agreement, and the date of
disbursement of the Loan Amount. The disbursement of the Loan Amount shall be
deemed to be a reaffirmation by the Borrower of each and every representation and
warranty made by Borrower in this Agreement.
(a) Formation; Authoritv. If Borrower is anything other than a natural
person, it has complied with all laws and regulations concerning its organization,
existence and the transaction of its business, and is in good standing in each state in
which it conducts its business. Borrower is the owner of the Property and is authorized
to execute, deliver and perform its obligations under the Loan Documents, and all other
documents and instruments delivered by Borrower to the City in connection therewith.
This Agreement and the Application have been duly executed and delivered by
Borrower and are valid and binding upon and enforceable against the Borrower in
accordance with their terms, and no consent or approval of any third party, which has
not been previously obtained by the Borrower, is required for the Borrower's execution
thereof or the performance of its obligations contained therein.
(b) Compliance with Law. Neither Borrower nor the Property is in
violation ot, and the terms and provisions of the Loan Documents do not conflict with,
any regulation or ordinance, any order of any court or governmental entity, or any
building restrictions or governmental requirements affecting Borrower or the Property.
(c) No Violation. The terms and provisions of the Loan Documents,
the execution and delivery of the Loan Documents by Borrower, and the pertormance
by Borrower of its obligations contained therein, will not and do not conflict with or result
in a breach of or a default under any of the terms or provisions of any other agreement,
contract, covenant or security instrument by which the Borrower or the Property is
bound.
(d) Other Information. If Borrower is comprised of the trustees of a
trust, the foregoing representations shall also pertain to the trustor(s) of the trust. All
reports, documents, instruments, information and forms of evidence which have been
delivered to City concerning the Loan are accurate, correct and sufficiently complete to
give City true and accurate knowledge of their subject matter.
(e) Lawsuits. There are no lawsuits, tax claims, actions, proceedings,
investigations or other disputes pending or threatened against Borrower which may
impair Borrow r' ility t rfgrm its obligations hereunder.
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(f) No Event of Default. There is no event which is, or with notice or
lapse of time or both would be, a Default under this Agreement.
(g) Accuracy of Declarations. The declarations of the Borrower
contained in the Application are accurate, complete and true.
6. Borrower's Covenants.
Borrower promises to keep each of the following covenants:
(a) Completion of Work and Maintenance of Equipment. Borrower
shall, or shall cause its contractor to, promptly commence construction of the Work, and
diligently continue such Work to completion, in a good and workmanlike manner and in
accordance with sound construction and installation practices. Borrower shall maintain
the Equipment in good condition and repair.
(b) Compliance with Law and Agreements. in commencing and
completing the Work, Borrower shall comply with all existing and future laws,
regulations, orders, building restrictions and requirements of, and all agreements with
and commitments to, all governmental, judicial and legal authorities having jurisdiction
over the Property or the Work, and with all recorded instruments, agreements, and
covenants and restrictions affecting the Property.
(c) Permits, Licenses and Approvals. Borrower shall properly obtain,
comply with and keep in effect all permits, licenses and approvals which are required to
be obtained from any governmental authority in order to commence and complete the
Work. Borrower, upon the request of the Director, shall promptly deliver copies of all
such permits, licenses and approvals to the Director.
(d) Site Visits. Borrower grants City, its agents and representatives the
right to enter and visit the Property at any reasonable time, after giving reasonable
notice to Borrower, for the purposes of observing the Work. City will make reasonable
efforts during any site visit to avoid interfering with Borrower's use of the Property.
Borrower shall also allow City to examine and copy records and other documents of
Borrower which relate to the Work. City is under no duty to visit the Property, or
observe any aspects of the Work, or examine any records, and City shall not incur any
obligation or liability by reason of not making any such visit or examination. Any site
visit, observation or examination by City shall be solely for the purposes of protecting
City's rights under the Loan Documents.
(e) Protection Aaainst Lien Claims. Borrower shall promptly pay or
otherwise discharge any claims and liens for labor done and materials and services
furnished to the Property in connection with the Work. Borrower shall have the right to
contest in good faith any claim or lien, provided that it does so diligently and without
delay in completing the W rk.
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(f) Insurance. Borrower shall provide, maintain and keep in force at all
times until the Work is completed, builder's all risk property damage insurance on the
Property, with a policy limit equal to the full replacement cost of the Work.
(g) Notices. Borrower shall promptly notify City in writing of any
Default under this Agreement, or any event which, with notice or lapse of time or both,
would constitute a Default hereunder.
7. Completion of the Work.
Subject to Section 12(h), Borrower agrees to complete the Work on or
before August 4, 2009.
8. Mechanic's Lien and Stop Notices.
In the event of the filing of a stop notice or the recording of a mechanic's
lien pursuant to applicable law of the State of California and relating to the Work,
Director may summarily refuse to make any disbursement of the Loan Amount, and in
the event Borrower fails to furnish Director a bond causing such notice or lien to be
released within ten (10) days of notice from Director to do so, such failure shall at the
option of City constitute a Default under the terms of this Agreement. Borrower shall
promptly deliver to Director copies of all such notices or liens.
9. Indemnification.
(a) Borrower shall indemnify, defend, protect, and hold harmless the
City and any and all agents, employees, attorneys and representatives of the City
(collectively, the "City Parties"), from and against all losses, liabilities, claims, damages
(including consequential damages), penalties, fines, forfeitures, costs and expenses
(including all reasonable out-of-pocket litigation costs and reasonable attorney's fees)
and any demands of any nature whatsoever related directly or indirectly to, or arising
out of or in connection with, (i) the Loan Documents, (ii) the disbursement of the Loan
Amount, (iii) the Work, (iv) the Equipment, (v) any breach or Default by Borrower under
the Loan Documents, (vi) the Assessment and the Annual Administrative Assessment,
and (vii) any other fact, circumstance or event related to City's e�ension and
disbursement of the Loan to Borrower or Borrower's performance of its obligations
under the Loan Documents (collectively, the "Liabilities"), regardless of whether such
Liabilities shall accrue or are discovered before or after the disbursement of the Loan
Amount.
(b) The indemnity obligations described in this Section 9 shall survive
the disbursement of the Loan Amount, the repayment of the Loan, the transfer or sale
of the Property by the Borrower, and the termination of this Agreement.
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10. Wavier of Claims.
For and in consideration of the City's execution and delivery of this
Agreement, Borrower, for itself and for its successors-in-interest to the Property and for
any one claiming by, through, or under the Borrower , hereby waives the right to recover
from and fully and irrevocably releases the City Parties from any and all claims,
obligations, liabilities, causes of action, or damages, including attorneys' fees and court
costs, that Borrower may now have or hereafter acquire against any of the City Parties
and accruing from or related to (i) the Loan Documents, (ii) the disbursement of the
Loan Amount, (iii) the performance of the Work, (iv) the Equipment, (v) any damage to
or diminution in value of the Property that may result from the Work, (vi) any personal
injury or death that may result from the Work, (vi) the selection of manufacturer(s),
dealer(s), supplier(s), contractor(s) and/or installer(s), and their action or inaction with
respect to the Work or the Equipment, (vii) the merchantability and fitness for any
particular purpose, use or application of the Equipment, (vii) the amount of energy
savings resulting from the Work and the Equipment, (ix) the workmanship of any third
parties, and (x) any other matter with respect to the Program. This release includes
claims, obligations, liabilities, causes of action, and damages of which Borrower is not
presently aware or which Borrower does not suspect to exist which, if known by
Borrower, would materially affect Borrower's release of the City Parties.
BORROWER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542
("SECTION 1542"), WHICH IS SET FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR."
BY INITIALING BELOW, BORROWER HEREBY WAIVES THE
PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS
WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES.
Borrower's Initi
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The waivers and releases by Borrower contained in this Section 10 shall
survive the disbursement of the Loan Amount, the repayment of the Loan, the transfer
or sale of the Property by the Borrower, and the termination of this Agreement.
11. Further Assurances.
The B rrower shall execute any further documents or instruments
consistent ith V�term f this reement, including documents and instruments in
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recordable form, as City shall from time to time find necessary or appropriate to
effectuate its purposes in entering into this Agreement and making the Loan.
12. Events of Default.
(a) Subject to the further provisions of this Section 12, the failure of
any representation or warranty of the Borrower contained herein to be correct in all
material respects, or the failure or delay by Borrower to perform any of its obligations
under the terms or provisions of the Loan Documents, shall constitute a default
hereunder ("Default"). The Borrower must immediately commence to cure, correct, or
remedy such failure or delay and shall complete such cure, correction or remedy with
reasonable diligence, but in any event, within the time set forth in Sections 12(c) and (d)
below, as applicable.
(b) The City shall give written notice of default to Borrower, specifying
the default complained of by the City. Delay in giving such notice shall not constitute a
waiver of any default nor shall it change the time of default.
(c) If a monetary event of default occurs, prior to exercising any
remedies under the Loan Documents or the Act, City shall give Borrower written notice
of such default. Borrower shall have a period of thirty (30) days after such notice is
given within which to cure the default prior to exercise of remedies by City.
(d) If a non-monetary event of default occurs, prior to exercising any
remedies under the Loan Documents or the Act, City shall give Borrower notice of such
default. If the default is reasonabty capable of being cured within thirty (30) days,
Borrower shall have such period to effect a cure prior to exercise of remedies by City
under the Loan Documents or the Act. If the default is such that it is reasonably
capable of being cured, but not within such thirty (30) day period, and Borrower
(i) initiates corrective action within such thirty (30) day period, and (ii) diligently,
continually, and in good faith works to effect a cure as soon as possible, then Borrower
shall have such additional time as is reasonably necessary to cure the default prior to
exercise of any remedies by City. However, in no event shall City be precluded from
exercising remedies if its security becomes or is about to become materially
jeopardized by any failure to cure a default, or if the default is not cured within one
hundred and twenty (120) days after the first notice of default is given.
(e) If any Default occurs, then, upon the election of City, (i) if there has
been no disbursement of the Loan Amount, this Agreement shall terminate and, except
as otherwise expressly provided herein, the parties have no further obligations or rights
hereunder, or (ii) if the Loan Amount has been disbursed in whole or in part, City may
terminate its obligations to make any further disbursement of the Loan Amount and
exercise any or all of the rights and remedies available to it under applicable law, at
equity or as otherwise provided herein.
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(f) Any and ail costs and expenses incurred by the City in pursuing its
remedies hereunder shall be additional indebtedness of the Borrower to the City
hereunder, and shall be secured as provided in the Act.
(g) Except as otherwise expressly stated in this Agreement, the rights
and remedies of the City are cumulative, and the exercise of one or more of such rights
or remedies shall not preclude the exercise by the City, at the same time or different
times, of any other rights or remedies for the same Default or any other Default. No
failure or delay by City in asserting any of its rights and remedies as to any Default shall
operate as a waiver of any Default or of any such rights or remedies, or deprive the City
of its rights to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or remedies.
(h) Pertormance of the covenants and conditions imposed upon
Borrower hereunder with respect to the commencement and completion of the Work
shall be excused while and to the extent that, Borrower is prevented from complying
therewith by war, riots, strikes, lockouts, action of the elements, accidents, or acts of
God beyond the reasonable control of the Borrower; provided, however, that such event
is not caused by the fault, negligence or misconduct of Borrower; and provided, further,
as soon as the cause or event preventing compliance is removed or ceases to exist the
obligations shall be restored to full force and effect and Borrower shall immediately
resume compliance therewith and pertormance thereof.
13. Com�liance with Local, State and Federal Laws.
Borrower shall pertorm the Work, or cause the Work to be performed, in
conformity with all applicable laws, including all applicable federal, state and local
occupation, safety and health laws, rules, regulations and standards. Borrower agrees
to indemnify, defend and hold the City Parties harmless from and against any cost,
expense, claim, charge or liabiiity relating to or arising directly or indirectly from any
breach by or faiture of Borrower or its contractor(s) or agents to comply with such laws,
rules or regulations. The indemnification obligations described in this Section 13 shall
survive the disbursement of the Loan Amount, the repayment of the Loan, and the
termination of this Agreement.
14. Severabilitv.
Each and every provision of this Agreement is, and shall be construed to
be, a separate and independent covenant and agreement. If any term or provision of
this Agreement or the application thereof shall to any extent be held to be invalid or
unenforceable, the remainder of this Agreement, or the application of such term or
provision to circumstances other than those to which it is invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Agreement shall be valid
and shall be enforced to the extent permitted by law.
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15. Notices.
All notices and demands shall be given in writing by certified mail, postage
prepaid, and return receipt requested, or by personal delivery (by recognized courier
service or otherwise�. Notices shall be considered given upon the earlier of
(a) personal delivery or (b) two (2) business days following deposit in the United States
mail, postage prepaid, certified or registered, return receipt requested. Notices shall be
addressed as provided below for the respective party; provided that if any party gives
notice in writing of a change of name or address, notices to such party shall thereafter
be given as demanded in that notice:
To City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260-2578
Attention: Director, Office of Energy Management
To Borrower: Veridian, LLC.
42635 Melanie Place
Palm Desert, California 92211
Attention: Dick Baxley.
16. Attornevs' Fees and Costs.
In the event that any action is instituted to enforce payment or
performance under this Agreement, the parties agree that the non-prevailing party shall
be responsible for and shall pay all costs and all attorneys' fees incurred by the
prevailing party in enforcing this Agreement.
17. No Waiver.
No disbursement of the Loan Amount shall constitute a waiver of any
conditions to the City's obligation to make further disbursements nor, in the event
Borrower is unable to satisfy any such conditions, shall any such waiver have the effect
of precluding the City from thereafter declaring such inability to constitute a Default
under this Agreement. No disbursement of the Loan Amount based upon inadequate
or incorrect information shall constitute a waiver of the right of City to receive a refund
thereof from Borrower.
18. Governina Law.
This Agreement shalf be governed by the laws of the State of California.
Any legal action brought under this Agreement must be instituted in the Superior Court
of the County of Riverside, State of California, or in an appropriate municipal court in
that County or in the United States District Court for the Central District of California.
s', ��j
Borrower's nitials ��/
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 11
City file No.
19. Amendment of Aqreement.
No modification, rescission, waiver, release or amendment of any
provision of this Agreement shall be made except by a written agreement executed by
the Borrower and City.
20. Citv Mav Assiqn; Role of the Citv.
City, at its option, may (i) assign any or all of its rights and obligations
under the Loan and this Agreement, and (ii) pledge and assign its right to receive the
Assessment, the Annual Administrative Assessment, and the repayment of the Loan
and any other payments due to the City hereunder, without obtaining the consent of the
Borrower.
21. Borrower Assiqnment Prohibited
In no event shall Borrower assign or transfer any portion of this
Agreement or Borrower's rights or obligations under the Agreement without the prior
express written consent of City, which consent may be granted or withheld in the sole
and absolute discretion of the City.
22. Relationshin of Borrower and Citv
The relationship of Borrower and City pursuant to this Agreement is that of
debtor and creditor and shall not be or be construed to be a joint venture, equity
venture, partnership, or other relationship.
23. General.
Time is of the essence of this Agreement and of each and every provision
hereof. This Agreement, together with the other Loan Documents, constitutes the
entire agreement between the parties hereto, and there shall be no other agreement
regarding the subject matter thereof unless signed in writing by the part to be charged.
If there is more than one "Borrower," the obligations hereunder of all Borrowers shall be
joint and several.
24. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and atl of such counterparts together shall constitute one
and the same instrument.
25. Special Termination.
Notwithstanding anything to the contrary contained herein, this Agreement
shall terminate and be of o further force or effect If the Borrower has submitted to the
Director a notice its de ision cancel this transaction on or prior to the date and
� �
� ��
Borrower's Initials --'�'
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 12
City file No.
time described in the Notice of Right to Cancel which was delivered to the Borrower
upon its execution of this Agreement.
26. No Third Partv Beneficiary Riqhts
This Agreement is entered into for the sole benefit of Borrower and City
and, subject to the provisions of Sections 9, 10 and 20, no other parties are intended to
be direct or incidental beneficiaries of this Agreement and no third party shatl have any
right in, under or to this Agreement.
�
�����.. ` �,
., ,:�: �
orrower's Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 13
City file No.
IN WITNESS WHEREOF, Borrower and City have entered into this
Agreement as of the date and year first above written.
Borrower: City:
VERIDIAN, LLC, a California limited liability CITY OF PALM DESERT,
company. a California municipal corporation
By: Dick Baxley
Its Manager
By: � .
By:
Dick Baxley Name: Robert Spiegal
By: Dick Baxley and Paula Baxley Living Title: Mayor
Trust UTD 6/23/99
Its: Member
By:
� By�
Dick Baxley, Trustee Name: Justin McCarthy
By: Horton a 'ly T st at 6/5/07 Title: Acting City Manager
Its: Me' b
By:
� By.
Mike Horton, stee
By: Charles Richard Shepardson and Mary Name: Patrick Conlon
K. Shepardson Revocable Trust dated Title: Director, Office of Energy Mgmt.
7/3/03
Its: Member
ATTEST:
By:
Charles hepardson, Trustee
By: Melissa S. Layton Trust UTD 3/31/06 Rachelle D. Klassen, City Clerk
Its: Member
Date of Execution by Borrower:
By:
Melissa Layton, Trustee 20
P6402-0201\1080467v4.doc Energy Program Loan Agreement
STATE OF CALIFORNIA }ss.
COUNTY OF � .�O �'G�ie.. }
�n �� , before me, 1/�LL
a notary public, ersona y appeared ` j '
who proved to me on the basis of satis actory evidence to b the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal. � s. Niu
Co�M.# 1812087 r^
N NOiJIRY PUBLIC�GUfORN1A =�
Riv¢�S�Comm' �
� �^ Mr Caa►.Exv.SeP.�t�
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Signature
(This area for o�cial notarial seal)
STATE OF CALIFORNIA }ss.
COUNTY OF }
On , before me,
a notary public, personally appeared '
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(This area for official notarial seal)
P6402-020111080467v4.doc Energy Program Loan Agreement- 15
STATE OF CALIFORNIA }ss.
COUNTY OF � ���-- }
On � ' , before me, �J L L ,
a notary public, pe�sona y appeared
who proved to me on the basis of satisfactory evidence to e the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal. ,�"'""""'" S, H i�"""'�
- Co►�M.# 1612087 r^
N NO?ARY PUlLIC•CAUFORNIA =1
� RrvER8roe Coutm ,�
Mr Co�w.Exr,e�v,30��
Signature
(This area for official notarial seal)
STATE OF CALIFORNIA }ss.
COUNTY OF �;V,¢.d`9?��•- }
On �(n_)��!�,�_, before me, l7/l L ,
a notary public, personally appeared
who proved to me on the basis of satisfactory evidence to b the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person{s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
S. HILL�
WITNESS my hand and official seal. � NoC�MM.�#�e�Uo�� N
RtvERaroE Courm ^
Mr Caw.Exv.SEv.34,2012"'
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Signature
(This area for official notarial seal)
P6402-0201\1080467v4.doc Energy Program Loan Agreement-15
Form �'9 Request for Taxpayer Give form to the
(Rev.October 2007) Identification Number and Certification requester. Do not
Department of t�e Treasury send to the IRS.
Intemal Revenue Servlce
Name(as shqwn on Your income tax return)
� � 11a�t.�
aBusiness name,if different from above
c
0
a p Che ppropriate box: ❑ Individual/Sole proprietor ❑ Corporation ❑ Partnership
Exempt
�"� Limited liability company. Enter the tax classification(D=disregarded entity,C=corporation,P-partnership)► ___.__. � payee
o` 2 ❑ aner(see InsVuc,tions) ►
a � Address(number,street,and apt.or suite Requester's name and address(optional)
� `�� 2— �-LG—vS �i�� �Fv
w
�� it ,state,and ZIP code
°� ` Z b c7
N �
� Lis[account number(s)here(opt nal)
Tax ayer ldentification Number IN
Enter your TIN in the appropriate box. The TIN provided must match the name given on Line 1 to avoid sociai security number
backup withholding. For individuals, this is your social security number(SSN). However,for a resident
alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is
your employer identification number(EIN). If you do not have a number, see How to get a TIN on page 3. or
Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose Employer��t�tion numbe�
number to enter. `PO
Certification
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number(or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or(b} I have not been notified by the Internal
Revenue Service(IRS)that I am subject to backup withholding as a result of a failure to report all interest or dividends, or(c)the IRS has
notified me that I am no longer subject to backup withholding, and
3. I am a U.S. citizen or other U.S. person(defined below).
Certification instructions.You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement
arrangement(IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must
provide your correct TIN. See the instructions on page 4.
Sign Signature of
Here U.S.person ► c� Z �
Date ► � '�
General Instructions Definition of a U.S. person. For federal tax purposes, you are
Section references are to the Internal Revenue Code unless considered a U.S. person if you are:
otherwise noted. • An individual who is a U.S. citizen or U.S. resident alien,
• A partnership, corporation, company, or association created or
Purpose of Form organized in the United States or under the laws of the United
A person who is required to file an information return with the States,
IRS must obtain your correct taxpayer identification number(TIN) • An estate(other than a foreign estate), or
to report, for example, income paid to you, real estate • A domestic trust (as defined in Regulations section
transactions, mortgage interest you paid, acquisition or 301.7701-7).
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA. Special rules for partnerships. Partnerships that conduct a
Use Form W-9 only if you are a U.S. person (including a trade or business in the United States are generally required to
resident alien), to provide your correct TIN to the person Pay a withholding tax on any foreign partners' share of income
requesting it (the requester) and, when applicable, to: from such business. Further, in certain cases where a Form W-9
has not been received, a partnership is required to presume that
1. Certify that the TtN you are giving is correct (or you are a partner is a foreign person, and pay the withholding tax.
waiting for a number to be issued), Therefore, if you are a U.S. person that is a partner in a
2. Certify that you are not subject to backup withholding, or Partnership conducting a trade or business in the United States,
3. Claim exemption from backup withholding if you are a U.S. s�tatuls and avo d withho dP g onryou�r shase afl�part�ership
exempt payee. If applicable, you are also certifying that as a income.
U.S. person, your allocable share of any partnership income from
a U.S. trade or business is not subject to the withholding tax on The person who gives Form W-9 to the partnership for
foreign partners' share of effectively connected income. purposes of establishing its U.S. status and avoiding withholding
on its allocable share of net income from the partnership
Note. If a requester gives you a form other than Form W-9 to conducting a trade or business in the United States is in the
request your TIN, you must use the requester's form if it is following cases:
substantially similar to this Form W-9.
• The U.S. owner of a disregarded entity and not the e�tity,
Cat.No. 10231X Form w-9 (Fev. 10-2007)
TRUTH IN LENDIN DIS L RE TAT MENT
Creditor Applicant(s)
City of Palm Desert Veridian, LLC, a California limited liability company
Mailing Address Property Address
73-510 Fred Waring Drive 42635 Melanie Place
Palm Desert, California 92260-2578 Palm Desert,California 92211
ANNUALPERCENTAGE
RATE FINANCE CHARGE AMOUNT FINANCED TOTAL OF PAYMENTS
The cost of your credit as a The dollar amount the The amount of credit provided The amount you will have paid
yearly rate. credit will cost you. to you or on your behalf. after you have made all
payments as scheduled.
E 7.6056% E 5494,205.60 E$522,092.00 E$1,016,297.60
ITEMIZATION: You have a right at this time to an ITEMIZATION OF AMOUNT FINANCED.
IlWeO do � do not want an itemization.
YOUR PAYMENT SCHEDULE WILL BE:
NUMBER OF PAYMENTS *AMOUNT OF PAYMENTS WHEN PAYMENTS ARE DUE
40 $25,407.44 Payments Are Payable In The Same Manner And In The Same Installments As
The General Taxes Of The City On Real Property Are Payable.
"All amounts and payments are estimated based on the maximum loan amount. After the final disbursement of loan proceeds,a statement will be
provided showing principal and payment amounts.
SECURITY: The City will record a lien against the property at 42635 Melanie Place,Palm Desert,California 92211.
FILING/RECORDING FEES: $NONE
LATE CHARGES: Your payments will be collected in the same manner as your property taxes and will be subject to the same penalties,procedure,
sale and lien priority in case of delinquency as applicable for property taxes.
PREPAYMENT: If you prepay this loan in full or in part,you
QX will Qwill not have to pay a penalty.
� will XD will not be entitled to a refund of part of the finance charge. ,
See your contract documents for any additional information regarding non-payment,default,required repayment in full before scheduled
date,and prepayment refunds and penalties.
E means estimate.
INVe hereby acknowledge reading and receiving a complete copy of this disclosure. INVe understand there is no commitment for the creditor to make
this loan d there is no obligation for me/us to accept this loan eliv or ' ing of ihis disclosure.
n � �� �.'/ �
l
r' Si re Dat ro er's S ure Dat
Tr t r As Trustee of e Trust
� � 2
orrower's Si n�t ate Borrower's Signature Date
As Trustee of the rust
EXHIBIT "A"
[ATTACH COPY OF EXECUTED AND APPROVED APPLICATION]
P6402-0201\1080467v4.doc Energy Program Loan Agreement
Exhibit A
PALM DESERT a�3�-i StGS
ENERGY INDEPENDENCE PROGRAM
LOAN APPLICATION
The Energy Independence Program provides for the City of Palm Desert to make loans to property owners to finance the
installation of distributed generation renewable energy sources or energy efficiency improvements that are permanently
fixed to the real property. Loans will be made pursuant to Chapter 29 of Part 3 of Division 7 of the California Streets and
Highways Code(commencing with Section 5898.10)and the City of Palm Desert's Energy Independence Program Report
and Administrative Guidelines dated August 28,2008.
APPLICANT INFORMATION
Property Owner(s)Name(s): VERIDIAN LLC
Property Address(where improvements are to be installed): Mailing Address(if different):
42635 Melanie Place VERIDIAN LLC
Palm Desert,CA 9221 I 73712 Alessandro B-4
Palm Desert,CA 92260
Assessor's Parcel Number(9 digit APN): 634-260-030
Contact Name: Dick Baxlev
Daytime Telephone Number: (7601 773-3310
E-mail Address:dbaxley�a baxleyproperties com
Property Owner(s)(check one):
_lndividual(s) _Corporation x LLC
_Trust _Partnership Other,please specify
below
Other:
Are you,or the property described herein,currently involved in a bankruptcy proceeding? ❑yes _x_no
P6401-000111073723v9.doc 1
PROPERTY INFORMATION
Is properiy developed? _X�es ❑ no
Property Type
(check one): _Single Family Residential _Multi-Family Residential _x_Commercial
_lndustrial Mobile Home Other,please specify
below
Other:
IMPROVEMENTS INFORMATION
Proposed Improvements (please describe and attach separate sheet if necessary):
60.5 kW(DC) PV solar system with solar structures designed en�ineered 3ttd 111St3IIed bV SUNTREK
Itemized Estimated Cost of Improvements:*
A. (i) Construction contract (bid price for cost of materials and labor): or $ 456.805_
(ii) If self-installing, cost of equipment(do not include any labor costs): $
B. Contingency allowance (10%of(i) or(ii) above): $
C. Drafting, engineering andlor plan preparation fees: $
D. Permit fees:
E. Title Report* _x_Include in Loan ❑Pay Cash $ 200
F. Other(please specify on separate sheet): Solar Structure $ 65.087
Total: $ 522,092
Requested Loan Amount (minimum loan amount is $5,000): $522.092
Loan term requested: 20 years (20 years ma�cimum)
Multiple Disbursements requested (loans in excess of$2Q,000): _x Jyes ❑ no
* The Applicant will be responsible for one-half of the title costs,not to exceed$200.00 per Loan. The City of Palm Desert
will contribute the balance of the title costs. The Applicant's share of the title costs can be included in the Loan Amount or
the Applicant may pay this cost to the City in cash at the time of executing the Loan Agreement.
P6401-0001\1073723v9.doc 2
DECLARATIONS:
By signing this Application,the undersigned hereby declares under penalty of perjury under the laws of
the State of California all of the following:
1. I/we am/are all of the current owner(s) of record of the property described herein.
2. I/we am/are not, and the property described herein is not, currently involved in a bankruptcy
proceeding.
3. That(i) the information provided in this Application is true and correct as of the date set forth
opposite my/our signature(s) on this Application and(ii)that Uwe understand that any intentional
or negligent misrepresentation(s) of the information contained in this Application may result in
civil liability and/or criminal penalties including, but not limited to, fine or imprisonment or both
under the provisions of Title 18, United States Code, Section 1001, et seq. and liability for
monetary damages to the City of Palm Desert, its agents, successors and assigns, insurers and
any other person who may suffer any loss due to reliance upon any misrepresentation which I/we
have made in this Application.
4. I/we am/are applying for a loan pursuant to the City of Palm Desert's Energy Independence
Program. I/we understand that Uwe must execute a Loan Agreement with the City of Palm
Desert in order to receive a loan and I/we have the authority, without the consent of any third
party which has not been previously obtained, to execute and deliver the Loan Agreement, this
Application, and the various documents and instruments referenced herein.
5. I/we understand that the loan made pursuant to the Loan Agreement will be repayable through an
assessment levied against my/our property. The assessment and the interest and any penalties
thereon will constitute a lien against my/our property until they are paid, even if I/we sell the
property to another person. I/we understand that assessment installments (including principal and
interest) will be collected on my/our property tax bill in the same manner and at the same time as
property taxes and will be subject to the same penalties, remedies, and lien priorities as for
property taxes in the event of delinquency.
6. That executing the Loan Agreement, receiving the loan proceeds, and consenting to the
assessment levied against my/our property to repay the loan will not constitute a default under
any other agreement or security instrument which affects my/our property or to which I/we
am/are a party.
7. I/we agree that the selection of product(s), equipment, and/or measures referenced in this
Application (the "Equipment"), the selection of manufacturer(s), dealer(s), supplier(s),
contractor(s) and/or installer(s), and the decision regarding the purchase, installation and
ownership/maintenance of the Equipment is/are my/our sole responsibility and that Uwe have
not relied upon any representations or recommendations of the City of Palm Desert in making
such selection or decision, and that my manufacturer, dealer, supplier, contractor or installer of
the Equipment is not an agent or representative of the City of Palm Desert.
P6401-0001\1073723v9.doc 3
8. I/we understand that the City of Palm Desert makes no warranty, whether express or implied,
including without Iimitation, the implied wananties of inerchantability and fitness for any
particular purpose, use or application of the Equipment.
9. I/we agree that the City of Palm Desert has no liability whatsoever concerning (i) the quality or
safety of the Equipment, including its fitness for any purpose, (ii) the estimated energy savings
produced by the Equipment, (iii) the workmanship of any third parties, (iv)the installation or use
of the Equipment including, but not limited to, any effect on indoor pollutants, or any other
matter with respect to the City of Palm Desert Energy Independence Program.
10. Uwe understand that I/we is/are responsible for meeting all City of Palm Desert Energy
Independence Program requirements and complying with all applicable
Federal/State/County/City laws and the requirements of any agreement which effects the use of
the property (such as homeowner's association requirements, if any).
't� �
Signed on this� day of�Q� , 200�in the City of��{L�1 ���tate of �J�'�-,1 .
Property Owner Signature: Printed Name� ����X�� ��
J "
Property Owner Signature: Printed Name: �.�� ��-f tj :��,
�
REQUIRED ATTACHMENTS:
❑ Organizational Documents if Property Owner is not an individual(s)
0 Home Improvement Contract or contractor's bid or proposal, which includes contractor's name
and license number(unless self-installing)
❑ Disclosure Regarding Assessment Financing(please complete and sign)
❑ State of California Fair Lending Notice (please complete and sign)
IF YOUR APPLICATION IS DENIED, YOU HAVE THE RIGHT TO A WRITTEN STATEMENT
OF THE SPECIFIC REASONS FOR THE DENIAL. TO OBTAIN THE WRITTEN STATEMENT,
PLEASE CONTACT THE OFFICE OF ENERGY MANAGEMENT AT ('760) 837-0287, 73710 FRED
WARING DRIVE, SUITE 200A, PALM DESERT, CA 92260, OR SEND AN EMAIL TO
BDRUYONna,CI.PALM-DESERT.CA.US WITHIN 64 DAYS FROM THE DATE YOU ARE
NOTIFIED OF THE DENIAL. THE OFFICE OF ENERGY MANAGEMENT WILL PROVIDE YOU
A WRITTEN STATEMENT OF THE REASONS FOR THE DEr1IAL WITHIN 15 DAYS OF
RECEIVING YOUR REQUEST FOR THE STATEMENT.
THE FEDER.AL EQUAL CREDIT OPPORTUNITY ACT PROHIBITS CREDITORS FROM
DISCRIMINATING AGAINST CREDIT APPLICANTS ON THE BASIS OF RACE, COLOR,
RELIGION, NATIONAL ORIGIN, SEX, MARITAL STATUS, AGE (PROVIDED THE APPLICANT
HAS THE CAPACITY TO ENTER INTO A BINDING CONTRACT); BECAUSE ALL OR PART OF
THE APPLICANT'S INCOME DERIVES FROM ANY PUBLIC ASSISTANCE PROGRAM; OR
BECAUSE THE APPLICANT HAS IN GOOD FAITH EXERCISED ANY RIGHT UNDER THE
CONSUMER CREDIT PROTECTION ACT. THE FEDERAL AGENCY THAT ADMINISTERS
COMPLIANCE WITH THIS LAW CONCERNING THIS CREDITOR IS THE FEDERAL TRADE
COMMISSION, EQUAL CREDIT OPPORTLJNITY, WASHINGTON, DC 20580.
P6401-0001\I 073723v9.doc 4
DISCLOSURE REGARDING ASSESSMENT FINANCING
The Energy Independence Program establishes the manner by which the City of Palm Desert
(the "City")may make loans to property owners pursuant to Chapter 29 of Part 3 of Division 7
of the California Streets and Highways Code (commencing with Section 5898.10) to finance
the installation of distributed generation renewable energy sources or energy efficiency
improvements that aze permanently fixed to the owner's real property. Each loan will be made
pursuant to a loan agreement between the City and the property owner.
The loan will be secured by and repayable through an assessment levied by the City against the
owner's property. Each year until the loan is repaid, assessment installments (including principal
and interest) will be collected on the property tax bill for the property in the same manner and at
the same time as properiy taxes. Assessment installments will be subject to the same penalties,
remedies (including foreclosure and sale of the property), and lien priorities as for property taxes
in the event of delinquency.
The assessment and each installment thereof, and any interest and penalties thereon, will
constitute a lien against the property until paid even though prior to full payment the property is
conveyed to another person. An assessment lien wiil be recorded against the owner's property in
the office of the County Recorder of the County of Riverside. Such lien will be paramount to all
existing and future private liens against the property, including mortgages, deeds of trust and
other security instruments.
Before completing an Energy Independence Program Application, a property owner should
carefully review any agreement(s)or security instrument(s) which affect the property owner's
property or to which the property owner is a party. ENTERING INTO AN ENERGY
INDEPENDENCE PROGRAM LOAN AGREEMENT WITHOUT THE CONSENT OF
THE OWNER'S EXISTING LENDER(S) COULD CONSTITUTE AN EVENT OF
DEFAULT UNDER SUCH AGREEMENTS OR SECURITY INSTRUMENTS.
DEFAULTING UNDER AN EXISTING AGREEMENT OR SECURITY INSTRUMENT
COULD HAVE SERIOUS CONSEQUENCES TO THE PROPERTY OWNER, WHiCH
COULD INCLUDE THE ACCELERATION OF THE REPAYMENT OBLIGATIONS
DUE UNDER SUCH AGREEMENT OR SECURITY INSTRUMENT.
P6401-0001\1073723v9.doc 1 Of 2
A property owner must declaze under penalty of perjury in the Energy Independence Program
Application that (i) the owner has the authority, without the consent of any third party which has
not been previously obtained, to execute and deliver the loan agreement,the Application, and the
various documents and instruments referenced therein; and(ii) that executing the loan
agreement, receiving the loan proceeds, and consenting to the assessment levied against the
property owner's property will not constitute a default under any other agreement or security
instrument which effects the property owner's property or to which the property owner is a party.
If you have any questions regarding any agreements or security instruments which effect
your property or to which you are a party or your authority to execute the Energy
Independence Program Application or enter into a loan agreement with the City without
the prior consent of your existing lender(s), the City strongly encourages you to consult
with your own legal counsel and/or your lender(s). City Staff will not provide property
owners with advice regarding existing agreements or security instruments.
I have received a copy of this Notice. I have received a copy of this Notice.
Property Owner Signature: Prope ign e:
��
,.. �...
Printed Name:`V �C.VC��.`�"N c ` �-�f ��ted Name:
Date: (Z-'_ � � —�� Date: �2' (�' �
P6401-0001\1073723v9.doc 2 of 2
THE HOUSING F1NA1WCIAL I�ISCR1MtNAT7pN ACT QF �977
FAIR LENDING NC)Tl�CE
it is i[l�tl to di�criminAte in t*� provi�ion pf pr i» thl�availability pf finaarisl �istance
becauae of the cons;der�tio�ot
1. Trends, characieristics or canditions in the neishborhood o� geagraphic area sur-
roundin�s bousing accommociation,u�l�ess tbe finnncixl institution can demonatrnte
in the pArticulsr cr�se that such ronsidcratiou is requirrd to avoid ap •nsatc aed
unsoa�d business pr�ctice: or
Z, R�►ce, color, retigios►, s�x, murit�l st�tu�, dorrestic p�irt�er�ltip, n�ti4n�1 origia or'
ancestr�
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P6401-0001\1073723 v9.doc
�
Baxley
Propert�es
,�.
Sales- Leasing
Management
DATE: February 9, 2009
TO: Mike Horton mhortonChsadesign�rou�com
Chuck Shepardson cshe�ardson@hsadesi�ngrou� com
Melissa Layton mla�tonCdrminternet.com
FROM: Dick Baxley Pho: (760) 773-3310
BAXLEY PROPERTIES, INC FAX: (760) 773-3013
RE: Energy Independence Loan Program
For 42635 Melanie Place, Palm Desert
Dear Members:
Enclosed please find the"Loan Agreement" and related paperwork.
Please note the City is asking us to return the fully executed and notarized
paperwork within ten(10) days. Sandy at my office is a notary if you don't have
one you usually use.
Please review carefully since this is the formal paperwork.
'Thanks,
�
�
,�-
0113•3310
Fax: �60.773.3013
73-712 Alessandro, Suite B-4 . Palm Desert, CA 92260
www.baxlevproperties.com
Office Use Only Loan#08-151CS
City file No.
LOAN AGREEMENT
CITY OF PALM DESERT ENERGY INDEPENDENCE PROGRAM
[MULTIPLE DISBURSEMENTS]
This Loan Agreement ("Agreement") is made and entered into as of this
4th day of February, by and between the CITY OF PALM DESERT, a California
municipal corporation ("City") and Veridian, LLC. ("Borrower").
RECITALS
A. City has established the Energy Independence Program (the "Program")
pursuant to which City may extend loans to property owners to finance the acquisition
and installation on their property of certain qualifying renewable energy systems and
energy efficient equipment. The purpose and method of administration of the loans
under the Program are described in the Energy Independence Program Report adopted
by the City Council on August 28, 2008, as it may be amended from time to time (the
"Report").
B. The Program is authorized by Chapter 29 of Part 3 of Division 7 of the
California Streets and Highways Code (the °`Act").
C. The Borrower has submitted to the City that certain Palm Desert Energy
Independence Program Loan Application dated December 12, 2008, a copy of which is
attached hereto as Exhibit "A" and incorporated herein by this reference (the
"Application"). The Application describes, among other things, the renewable energy
system and/or energy efficient equipment which is to be financed with the proceeds of
the loan described herein, and to be constructed on or installed in the property of
Borrower described in Exhibit "B" attached hereto and incorporated herein by this
reference (the "Property"), and the City has approved the Application as provided in the
Report.
D. The Borrower wishes to participate in the Program by executing this
Agreement with the City and using the proceeds of the loan made by the City to the
Borrower hereunder to finance the acquisition and [construction] [installation] on the
Property of the [renewable energy system] (energy efficiency equipment] described in
the Application (the "Equipment"). The Equipment and its construction on or installation
in the Property is collectively referred to herein as the "Work".
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
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Borro er's Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreemenf- 1
City file No.
AGREEMENT
1. Loan Aareement.
(a) Subject to the conditions set forth herein, City agrees to extend a
loan ("Loan") to Borrower in the amount of up to Five Hundred Twenty Two Thousand
Ninety Two Dollars ($522,092.00) (the "Loan Amount"). Notwithstanding anything to
the contrary contained herein, the Loan Amount shall not in any event exceed the
actual cost of the Work. The Loan Amount shall be adjusted, if necessary, prior to the
first disbursement of the Loan Amount to the Borrower and following the post-
completion inspection by the City's Office of Energy Management ("OEM") as described
in Section 3 below, and shall be adjusted by the Director of the OEM (the "Director") to
an amount equal to the actual cost of the Work. Any adjustment of the Loan Amount
by the Director shall be made on the basis of the best available written evidence of the
actual cost of the Work and in the exercise of the Director's reasonable judgment. The
Borrower shall be solely responsible for the payment of all cost of the Work which
exceeds the Loan Amount and Borrower agrees in any event to complete the Work and
to fund alt costs associated with such completion which may be in excess of the Loan
Amount. This Agreement, together with the Application, the Report and the documents
and instruments attached to or referenced in this Agreement and the Application are
collectively referred to herein as the "Loan Documents."
(b) The term of the Loan and this Agreement shall be twenty (20)
years from the date that the proceeds of the Loan are first disbursed to the Borrower.
(c) Interest shall accrue on the unpaid principal balance of the Loan
Amount from the date first disbursed to Borrower at the simple interest rate of seven
percent (7%) per annum. Interest shall be computed on the basis of a three hundred
sixty (360) day year. If a law which applies to the Loan and which sets maximum
interest rates or loan charges is interpreted by a court of competent jurisdiction in a
manner as would cause the interest or other loan charges collected or to be collected in
connection with the Loan to exceed the limits permitted by such laws, then: (i) any such
interest or loan charge shall be reduced by the amount necessary to reduce the interest
or charge to the permitted limit; and (ii) any sums already collected which exceed
permitted limits will be refunded by the City. The City may choose to make the refund
by reducing the outstanding principal amount of the Loan or by making a direct
payment to the Borrower.
(d) The Borrower promises to pay to the City, without deduction or
offset, the Loan Amount and the interest accrued thereon as provided herein. The
repayment of the Loan Amount and interest accrued thereon shall be repaid by the
Borrower to the City by the payment of an assessment levied against the Property
pursuant to Section 5898.30 of the California Streets and Highway Code (the
"Assessment"). In addition to the Assessment, the Borrower promises to pay to the
City, without deduction or offset, an annual assessment levied against the Property to
paX;costs incurre y the ' ich result from the administration and collection of the
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Borro er's Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 2
City file No.
Assessment or from the administration or registration of any associated bonds or
reserve or other related funds (the "Annual Administrative Assessment"). The Annual
Administrative Assessment shall not exceed Forty Dollars ($40.00) per year. The
Assessment and the Annual Administrative Assessment, and the interest and any
penalties thereon shall constitute a lien on the Property until they are paid. The
installments of the Assessment and the Annual Administrative Assessment (including
principal and interest) shall be collected on the property tax bill pertaining to the
Property, and shall be subject to the same penalties, remedies, and lien priorities as for
property taxes in the event of non-payment. The Borrower hereby expressly consents
to the levy of the Assessment and the Annual Administrative Assessment and the
imposition of the lien on the Property as described herein and in the Act.
(e) The amount of assessment installments that will be placed on the
Property each year is set forth in Exhibit "C" attached hereto and incorporated herein by
this reference.
(f) The Assessment may be prepaid, in whole or in part, at any time
upon the payment of a premium in an amount equal to three percent (3%) of the
amount of the Assessment to be prepaid.
2. Use of Proceeds.
All proceeds of the Loan shall be used by Borrower for the sole purpose
of paying for the reasonable costs and expenses of the Work on the Property, and in
connection therewith the Borrower shall comply with all requirements set forth herein, in
the Application and in the Report.
3. Disbursement Procedures.
(a) Except as otherwise provided in Section 3(b), the City shall have no
obligation to make any disbursement of the Loan Amount hereunder unless and until
each of the following conditions is satisfied, or any such condition is expressly waived
by the Director:
(i) The receipt by the Director of a written certification from
Borrower, and the contractor(s), if any, that pertormed the Work, stating that the Work
for which disbursement is requested is complete, and the actual cost of such Work.
Such certification shall be in form and substance acceptable to the Director.
(ii) An inspection of the Work by the OEM, and a determination
by the Director that the Work has been completed in full compliance with the
requirements of the Loan Documents.
(iii) The receipt by the Director of such other documents and
instruments as the Director may require, including but not limited to, if applicable, the
sworn statements of contr ctor(s) and releases or waivers of lien, all in compliance with
tl� � quireme ,pf appl' b �v.
6
Bo'�rower's Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 3
City file No.
(iv) Borrower has, as appropriate, executed and delivered to
Director the Loan Documents and such other documents or instruments pertaining to
the Loan or the Work as the Director may require.
(v) As of the date of disbursement of the Loan Amount, the
Director shall have determined that the representations of the Borrower contained in the
Loan Documents are true and correct, and no Default (as defined in Section 12 below)
shall have occurred and be continuing.
(vi) No stop payment or mechanic's lien notice pertaining to the
Work has been served upon the City and remains in effect as of the date of
disbursement of the Loan Amount.
(vii) The City shall have received a title policy (the "Title Policy")
in the Loan Amount and insuring the Loan and the lien of the assessments described in
Section 1 (d) hereof. The Title Policy shall be in form and substance acceptable to the
Director.
(b) Notwithstanding the provisions of Section 3(a), the City , upon
written request of the Borrower, may make one disbursement of the Loan Amount as a
progress payment prior to the completion of the Work if each of the following conditions
is satisfied, or any such condition is expressly waived by the Director:
(i) The Loan Amount must be Twenty Thousand Dollars
($20,000) or greater;
(ii) The amount of the requested disbursement does not exceed
fifty percent (50%) of the Loan Amount;
(iii) The Director shall have determined that at least seventy-five
percent (75%), on a cost basis, of the Equipment or construction materials necessary
for its installation on the Property and constituting a portion of the Work shall have been
delivered to the Property and shall have been reasonably secured from theft or
vandalism;
(iv) The proceeds of the requested disbursement shall not
exceed the actual cost of the Equipment or related construction materials described in
(iii) above; and
(v) The conditions to disbursement of the Loan Amount
contained in Sections 3(a)(iv), (v), (vi) and (vii) above shall have been satisfied or
waived by the Director.
(c) Borrower will, within ten (10) days of presentation by the Director,
execute any and all documents or instruments required by the Loan Documents in
connection with he disbu ment of the Loan Amount.
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`�or '�edver's Initials \�
P6402-0201\1080467v4.doc Energy Program Loan Agreemenf- 4
City file No.
4. Reports.
Borrower agrees, upon the request of Director, to promptly deliver to the
Director, or, if appropriate, cause its contractor(s) to promptly deliver to Director, a
written status report regarding the Work.
5. Reqresentations and Warranties of Borrower.
Borrower promises that each representation and warranty set forth below
is true, accurate and complete as of the date of this Agreement, and the date of
disbursement of the Loan Amount. The disbursement of the Loan Amount shall be
deemed to be a reaffirmation by the Borrower of each and every representation and
warranty made by Borrower in this Agreement.
(a) Formation; Authoritv. If Borrower is anything other than a natural
person, it has complied with all laws and regulations concerning its organization,
existence and the transaction of its business, and is in good standing in each state in
which it conducts its business. Borrower is the owner of the Property and is authorized
to execute, deliver and perform its obligations under the Loan Documents, and all other
documents and instruments delivered by Borrower to the City in connection therewith.
This Agreement and the Application have been duly executed and delivered by
Borrower and are valid and binding upon and enforceable against the Borrower in
accordance with their terms, and no consent or approval of any third party, which has
not been previously obtained by the Borrower, is required for the Borrower's execution
thereof or the pertormance of its obligations contained therein.
(b) Compliance with Law. Neither Borrower nor the Property is in
violation of, and the terms and provisions of the Loan Documents do not conflict with,
any regulation or ordinance, any order of any court or governmental entity, or any
building restrictions or governmental requirements affecting Borrower or the Property.
(c) No Violation. The terms and provisions of the Loan Documents,
the execution and delivery of the Loan Documents by Borrower, and the pertormance
by Borrower of its obligations contained therein, will not and do not conflict with or result
in a breach of or a default under any of the terms or provisions of any other agreement,
contract, covenant or security instrument by which the Borrower or the Property is
bound.
(d) Other Information. If Borrower is comprised of the trustees of a
trust, the foregoing representations shall also pertain to the trustor(s) of the trust. All
reports, documents, instruments, information and forms of evidence which have been
delivered to City concerning the Loan are accurate, correct and sufficiently complete to
give City true and accurate knowledge of their subject matter.
(e) Lawsuits. There are no lawsuits, tax claims, actions, proceedings,
investigations or other disputes pending or threatened against Borrower which may
impair Borrow r' ility t rf rm its obligations hereunder.
;1.�1,�Ea'`'",:., �
Borro�v ' Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 5
City file No.
(f) No Event of Default. There is no event which is, or with notice or
lapse of time or both would be, a Default under this Agreement.
(g) Accuracy of Declarations. The declarations of the Borrower
contained in the Application are accurate, complete and true.
6. Borrower's Covenants.
Borrower promises to keep each of the following covenants:
(a) Completion of Work and Maintenance of Equipment. Borrower
shall, or shall cause its contractor to, promptly commence construction of the Work, and
diligently continue such Work to completion, in a good and workmanlike manner and in
accordance with sound construction and installation practices. Borrower shall maintain
the Equipment in good condition and repair.
(b) Compliance with Law and Agreements. In commencing and
completing the Work, Borrower shall comply with all existing and future laws,
regulations, orders, building restrictions and requirements of, and all agreements with
and commitments to, all governmental, judicial and legal authorities having jurisdiction
over the Property or the Work, and with all recorded instruments, agreements, and
covenants and restrictions affecting the Property.
(c) Permits, Licenses and Approvals. Borrower shall properly obtain,
comply with and keep in effect all permits, licenses and approvals which are required to
be obtained from any governmental authority in order to commence and complete the
Work. Borrower, upon the request of the Director, shall promptly deliver copies of all
such permits, licenses and approvals to the Director.
(d) Site Visits. Borrower grants City, its agents and representatives the
right to enter and visit the Property at any reasonable time, after giving reasonable
notice to Borrower, for the purposes of observing the Work. City will make reasonable
efforts during any site visit to avoid interfering with Borrower's use of the Property.
Borrower shall also allow City to examine and copy records and other documents of
Borrower which relate to the Work. City is under no duty to visit the Property, or
observe any aspects of the Work, or examine any records, and City shall not incur any
obligation or liability by reason of not making any such visit or examination. Any site
visit, observation or examination by City shall be solely for the purposes of protecting
City's rights under the Loan Documents.
(e) Protection Against Lien Claims. Borrower shall promptly pay or
otherwise discharge any claims and liens for labor done and materials and services
furnished to the Property in connection with the Work. Borrower shall have the right to
contest in good faith any claim or lien, provided that it does so diligently and without
delay in completing the W rk.
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Borrower's Initials `
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 6
City file No.
(f) Insurance. Borrower shall provide, maintain and keep in force at all
times until the Work is completed, builder's all risk property damage insurance on the
Property, with a policy timit equal to the full replacement cost of the Work.
(g) Notices. Borrower shall promptly notify City in writing of any
Default under this Agreement, or any event which, with notice or lapse of time or both,
would constitute a Default hereunder.
7. Completion of the Work.
Subject to Section 12(h), Borrower agrees to complete the Work on or
before August 4, 2009.
8. Mechanic's Lien and Stop Notices.
In the event of the filing of a stop notice or the recording of a mechanic's
lien pursuant to applicable law of the State of California and relating to the Work,
Director may summarily refuse to make any disbursement of the Loan Amount, and in
the event Borrower fails to furnish Director a bond causing such notice or lien to be
released within ten (10) days of notice from Director to do so, such failure shall at the
option of City constitute a Default under the terms of this Agreement. Borrower shall
promptly deliver to Director copies of all such notices or liens.
9. Indemnification.
(a) Borrower shall indemnify, defend, protect, and hold harmless the
City and any and all agents, employees, attorneys and representatives of the City
(collectively, the "City Parties"), from and against all losses, liabilities, claims, damages
(including consequential damages), penalties, fines, forfeitures, costs and expenses
(including all reasonable out-of-pocket litigation costs and reasonable attorney's fees)
and any demands of any nature whatsoever related directly or indirectly to, or arising
out of or in connection with, (i) the Loan Documents, (ii) the disbursement of the Loan
Amount, (iii) the Work, (iv) the Equipment, (v) any breach or Default by Borrower under
the Loan Documents, (vi) the Assessment and the Annual Administrative Assessment,
and (vii) any other fact, circumstance or event related to City's extension and
disbursement of the Loan to Borrower or Borrower's performance of its obligations
under the Loan Documents (collectively, the "Liabilities"), regardless of whether such
Liabilities shall accrue or are discovered before or after the disbursement of the Loan
Amount.
(b) The indemnity obligations described in this Section 9 shall survive
the disbursement of the Loan Amount, the repayment of the Loan, the transfer or sale
of the Property by the Borrower, and the termination of this Agreement.
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P6402-0201\1080467v4.doc Energy Program Loan Agreemenf- 7
City file No. �
10. Wavier of Claims.
For and in consideration of the City's execution and delivery of this
Agreement, Borrower, for itself and for its successors-in-interest to the Property and for
any one claiming by, through, or under the Borrower , hereby waives the right to recover
from and fully and irrevocably releases the City Parties from any and all claims,
obligations, liabilities, causes of action, or damages, including attorneys' fees and court
costs, that Borrower may now have or hereafter acquire against any of the City Parties
and accruing from or related to (i) the Loan Documents, (ii) the disbursement of the
Loan Amount, (iii) the performance of the Work, (iv) the Equipment, (v) any damage to
or diminution in value of the Property that may result from the Work, (vi) any personal
injury or death that may result from the Work, (vi) the selection of manufacturer(s),
dealer(s), supplier(s), contractor(s) and/or installer(s), and their action or inaction with
respect to the Work or the Equipment, (vii) the merchantability and fitness for any
particular purpose, use or application of the Equipment, (vii) the amount of energy
savings resulting from the Work and the Equipment, (ix) the workmanship of any third
parties, and (x) any other matter with respect to the Program. This release includes
claims, obligations, liabilities, causes of action, and damages of which Borrower is not
presently aware or which Borrower does not suspect to exist which, if known by
Borrower, would materially affect Borrower's release of the City Parties.
BORROWER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542
("SECTION 1542"), WHICH IS SET FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR."
BY INITIALING BELOW, BORROWER HEREBY WAIVES THE
PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS
WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES.
Borrower's Initi
���; � � J
�_.
The waivers and releases by Borrower contained in this Section 10 shall
survive the disbursement of the Loan Amount, the repayment of the Loan, the transfer
or sale of the Property by the Borrower, and the termination of this Agreement.
11. Further Assurances.
The B rrower shall execute any further documents or instruments
consistent ith ,�term f this reement, including documents and instruments in
��.�- .� �
BorroGver's Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 8
City file No.
recordable form, as City shall from time to time find necessary or appropriate to
effectuate its purposes in entering into this Agreement and making the Loan.
12. Events of Default.
(a) Subject to the further provisions of this Section 12, the failure of
any representation or warranty of the Borrower contained herein to be correct in all
material respects, or the failure or delay by Borrower to perform any of its obligations
under the terms or provisions of the Loan Documents, shall constitute a default
hereunder ("Default"). The Borrower must immediately commence to cure, correct, or
remedy such failure or delay and shall complete such cure, correction or remedy with
reasonable diligence, but in any event, within the time set forth in Sections 12(c) and (d)
below, as applicable.
(b) The City shall give written notice of default to Borrower, specifying
the default complained of by the City. Delay in giving such notice shall not constitute a
waiver of any default nor shall it change the time of default.
(c) If a monetary event of default occurs, prior to exercising any
remedies under the Loan Documents or the Act, City shall give Borrower written notice
of such default. Borrower shall have a period of thirty (30) days after such notice is
given within which to cure the default prior to exercise of remedies by City.
(d) If a non-monetary event of default occurs, prior to exercising any
remedies under the Loan Documents or the Act, City shall give Borrower notice of such
default. If the default is reasonably capable of being cured within thirty (30) days,
Borrower shall have such period to effect a cure prior to exercise of remedies by City
under the Loan Documents or the Act. If the default is such that it is reasonably
capable of being cured, but not within such thirty (30) day period, and Borrower
(i) initiates corrective action within such thirty (30) day period, and (ii) diligently,
continually, and in good faith works to effect a cure as soon as possible, then Borrower
shall have such additional time as is reasonably necessary to cure the default prior to
exercise of any remedies by City. However, in no event shall City be precluded from
exercising remedies if its security becomes or is about to become materially
jeopardized by any failure to cure a default, or if the default is not cured within one
hundred and twenty (120) days after the first notice of default is given.
(e) If any Default occurs, then, upon the election of City, (i) if there has
been no disbursement of the Loan Amount, this Agreement shall terminate and, except
as otherwise expressly provided herein, the parties have no further obligations or rights
hereunder, or (ii) if the Loan Amount has been disbursed in whole or in part, City may
terminate its obligations to make any further disbursement of the Loan Amount and
exercise any or all of the rights and remedies available to it under applicable law, at
equity or as otherwise provided herein.
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�orrciGver's Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 9
City file No.
(f) Any and all costs and expenses incurred by the City in pursuing its
remedies hereunder shall be additional indebtedness of the Borrower to the City
hereunder, and shall be secured as provided in the Act.
(g) Except as otherwise expressly stated in this Agreement, the rights
and remedies of the City are cumulative, and the exercise of one or more of such rights
or remedies shall not preclude the exercise by the City, at the same time or different
times, of any other rights or remedies for the same Default or any other Default. No
failure or delay by City in asserting any of its rights and remedies as to any Default shall
operate as a waiver of any Default or of any such rights or remedies, or deprive the City
of its rights to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or remedies.
(h) Performance of the covenants and conditions imposed upon
Borrower hereunder with respect to the commencement and completion of the Work
shall be excused while and to the extent that, Borrower is prevented from complying
therewith by war, riots, strikes, lockouts, action of the elements, accidents, or acts of
God beyond the reasonable control of the Borrower; provided, however, that such event
is not caused by the fault, negligence or misconduct of Borrower; and provided, further,
as soon as the cause or event preventing compliance is removed or ceases to exist the
obligations shall be restored to full force and effect and Borrower shall immediately
resume compliance therewith and performance thereof.
13. Compliance with Local, State and Federal Laws.
Borrower shall perform the Work, or cause the Work to be performed, in
conformity with all applicable laws, including all applicable federal, state and local
occupation, safety and health laws, rules, regulations and standards. Borrower agrees
to indemnify, defend and hold the City Parties harmless from and against any cost,
expense, claim, charge or liability relating to or arising directly or indirectly from any
breach by or failure of Borrower or its contractor(s) or agents to comply with such laws,
rules or regulations. The indemnification obligations described in this Section 13 shall
survive the disbursement of the Loan Amount, the repayment of the Loan, and the
termination of this Agreement.
14. Severabilitv.
Each and every provision of this Agreement is, and shalt be construed to
be, a separate and independent covenant and agreement. If any term or provision of
this Agreement or the application thereof shall to any extent be held to be invalid or
unenforceable, the remainder of this Agreement, or the application of such term or
provision to circumstances other than those to which it is invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Agreement shall be valid
and shall be enforced to the extent permitted by law.
� O �;f
�
Borrower's Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 10
City file No.
15. Notices.
All notices and demands shall be given in writing by certified mail, postage
prepaid, and return receipt requested, or by personal delivery (by recognized courier
service or otherwise). Notices shall be considered given upon the earlier of
(a) personal delivery or (b) two (2) business days following deposit in the United States
mail, postage prepaid, certified or registered, return receipt requested. Notices shall be
addressed as provided below for the respective party; provided that if any party gives
notice in writing of a change of name or address, notices to such party shall thereafter
be given as demanded in that notice:
To City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260-2578
Attention: Director, Office of Energy Management
To Borrower: Veridian, LLC.
42635 Melanie Place
Palm Desert, California 92211
Attention: Dick Baxley.
16. Attornevs' Fees and Costs.
In the event that any action is instituted to enforce payment or
pertormance under this Agreement, the parties agree that the non-prevailing party shall
be responsible for and shall pay all costs and all attorneys' fees incurred by the
prevailing party in enforcing this Agreement.
17. No Waiver.
No disbursement of the Loan Amount shall constitute a waiver of any
conditions to the City's obligation to make further disbursements nor, in the event
Borrower is unable to satisfy any such conditions, shall any such waiver have the effect
of precluding the City from thereafter declaring such inability to constitute a Default
under this Agreement. No disbursement of the Loan Amount based upon inadequate
or incorrect information shall constitute a waiver of the right of City to receive a refund
thereof from Borrower.
18. Governinq Law.
This Agreement shall be governed by the laws of the State of California.
Any legal action brought under this Agreement must be instituted in the Superior Court
of the County of Riverside, State of California, or in an appropriate municipal court in
that County or in the United States District Court for the Central District of California.
;� .
�.
�;- � ���j
Borrower's nitials �
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 11
City file No.
19. Amendment of Apreement
No modification, rescission, waiver, release or amendment of any
provision of this Agreement shail be made except by a written agreement executed by
the Borrower and City.
20. Citv Mav Assiqn; Role of the Citv
City, at its option, may (i) assign any or all of its rights and obligations
under the Loan and this Agreement, and (ii) pledge and assign its right to receive the
Assessment, the Annual Administrative Assessment, and the repayment of the Loan
and any other payments due to the City hereunder, without obtaining the consent of the
Borrower.
21. Borrower Assiqnment Prohibited
In no event shall Borrower assign or transfer any portion of this
Agreement or Borrower's rights or obligations under the Agreement without the prior
express written consent of City, which consent may be granted or withheld in the sole
and absolute discretion of the City.
22. Relationshiq of Borrower and Citv
The relationship of Borrower and City pursuant to this Agreement is that of
debtor and creditor and shall not be or be construed to be a joint venture, equity
venture, partnership, or other relationship.
23. GeneraL
Time is of the essence of this Agreement and of each and every provision
hereof. This Agreement, together with the other Loan Documents, constitutes the
entire agreement between the parties hereto, and there shall be no other agreement
regarding the subject matter thereof unless signed in writing by the part to be charged.
If there is more than one "Borrower," the obligations hereunder of all Borrowers shall be
joint and severaL
24. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and all of such counterparts together shall constitute one
and the same instrument.
25. Special Termination
Notwithstanding anything to the contrary contained herein, this Agreement
shall terminate and be of o further force or effect If the Borrower has submitted to the
Director a notice its de ision cancel this transaction on or prior to the date and
\�
Borrower's Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreemenf- 12
City file No.
time described in the Notice of Right to Cancel which was delivered to the Borrower
upon its execution of this Agreement.
26. No Third Partv Beneficiary RiQhts
This Agreement is entered into for the sole benefit of Borrower and City
and, subject to the provisions of Sections 9, 10 and 20, no other parties are intended to
be direct or incidental beneficiaries of this Agreement and no third party shall have any
right in, under or to this Agreement.
1 ,^ 1�
���, l �
, �
''�orrower s Initials
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 13
City file No.
IN WITNESS WHEREOF, Borrower and City have entered into this
Agreement as of the date and year first above written.
Borrower: City:
VERIDIAN, LLC, a California limited liability CITY OF PALM DESERT,
company. a California municipal corporation
By: Dick Baxley
Its Manager
By:
By:
Dick Baxley Name: Robert Spiegal
By: Dick Baxley and Paula Baxley Living Title: Mayor
Trust UTD 6/23/99
Its: Member
By. � By:
Dick Baxley, Trustee Name: Justin McCarthy
By: Horton a 'ly T st , at 6/5/07
Title: Acting City Manager
Its: Me b
By:
�
By:
Mike Horton, stee
By: Charles Richard Shepardson and Mary Name: Patrick Conlon
K. Shepardson Revocable Trust dated Title: Director, Office of Energy Mgmt.
7/3/03
Its: Member
ATTEST:
By:
Charles hepardson, Trustee
By: Melissa S. Layton Trust UTD 3/31/06
Rachelle D. Klassen, City Clerk
Its: Member
Date of Execution by Borrower:
By:
Melissa Layton, Trustee , 20
P6402-0201\1080467v4.doc Energy Program Loan Agreement
STATE OF CALIFORNIA }ss.
COUNTY OF � .�O �G�ie.. }
On �.� , before me, //�LL
a notary public, ersona y appeared ` 1 '
who proved to me on the basis of satis actory evidence to b the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal. s. H���
f^ CoF�M.# 1812087 '^
Y, NOTARY PUBLIC-CAUfORNIA `'
Rivews�oe Courm
� MY COAW.EXP.SEP.�30,20�1�
Signature
(This area for official notarial seal)
STATE OF CALIFORNIA }ss.
COUNTY OF }
On , before me,
a notary public, personally appeared '
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(This area for official notarial seal)
P6402-0201\1080467v4.doc Energy Program Loan Agreement- 15
STATE OF CALIFORNIA }ss.
COUNTY OF ���,�%.��-- }
On , before me, �J L L ,
a notary public, persona y appeared '
who proved to me on the basis of satisfactory evidence to e the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/heNtheir authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal. �� S. HILL
"'1� CoMM.# 1811087
v, NOTARY PU9l1C•CAUFORNIA �
� ��� MY CaRiu,Ex�8iP 30,7012'"
Signature
(This area for official notarial seal)
STATE OF CALIFORNIA }ss.
COUNTY OF ����,(�. }
On ��TT ��9` , before me, /!�l L ,
�I
a notary public, personally appeared
who proved to me on the basis of satisfactory evidence to b the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/heNtheir authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
'� s. Hiu
WITNESS my hand and official seal. " Co��.# 1812087 Ie
N NOTARY PU9LIC.GUfOitNU V'
�
�r c�E�s�3o zo�2�
Signature
(This area for official notarial seal)
P6402-0201\1080467v4.doc Energy Program Loan Agreement-15
Form W'9 Request for Taxpayer Give form to the
(Rev.October 2007) identification Number and Certification requester. �o not
Department of the Treasury send to the IRS.
Internal Revenue Service
Name(as shoyvn on your income tax return)
� � 1�1.}
aBusiness name,if different from above
c
0
a o C�ppropriate box: ❑ Individual/Sole proprietor ❑ Corporation ❑ Partnership
�"� Limited liability company. Enter the tax classification(D=disregarded entity,C=corporation,P=partnership)► ._.____ � Exempt
`o � ❑ Other(see instructiais) ► payee
a � Address(number,street,and apt,or suite Requester's name and address(optional)
� `� �— �-1��v5 �� �
�
�� it ,state,and ZIP code
a � Z.�o�
�
� �ist account number(s)here(opt nal)
Tax ayer ldentification Number IN
Enter your TIN in the appropriate box.The TIN provided must match the name given on Line 1 to avoid Socia�secur�ty number
backup withholding. For individuals, this is your social security number(SSN). However, for a resident �; �
alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is
your employer identification number(EIN). If you do not have a number, see How to get a TIN on page 3. or
Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose Empioyer iden'fication number
number to enter. ; O�O/ D �
tp
Certification
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number(or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or(b)I have not been notified by the Internal
Revenue Service (IRS)that I am subject to backup withholding as a result of a failure to report all interest or dividends, or(c)the IRS has
notified me that I am no longer subject to backup withholding, and
3. I am a U.S. citizen or other U.S. person (defined below).
Certification instructions.You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement
arrangement(IRA), and generally, payments other than interest and dividends,you are not required to sign the Certification, but you must
provide your correct TIN. See the instructions on page 4.
Sign Signature of � � �
Here U.S, person ► Date ► � '
G@tl@P3I It1St1"UCt1011S Definition of a U.S. person. For federal tax purposes, you are
Section references are to the Internal Revenue Code unless considered a U.S. person if you are:
otherwise noted. • An individual who is a U.S. citizen or U.S. resident alien,
• A partnership, corporation, company, or association created or
Purpose of Form organized in the United States or under the laws of the United
A person who is required to file an information return with the States,
IRS must obtain your correct taxpayer identification number(fIN) • An estate (other than a foreign estate), or
to report, for example, income paid to you, real estate • A domestic trust (as defined in Regulations section
transactions, mortgage interest you paid, acquisition or 301.7701-7).
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA.. Special rules for partnerships. Partnerships that conduct a
Use Form W-9 only if you are a U.S. person (including a trade or business in the United States are generally required to
resident alien), to provide your correct TIN to the person Pay a withholding tax on any foreign partners' share of income
requesting it(the requester) and, when applicable, to: from such business. Further, in certain cases where a Form W-9
has not been received, a partnership is required to presume that
1. Certify that the TIN you are giving is correct (or you are a partner is a foreign person, and pay the withholding tax.
waiting for a number to be issued), Therefore, if you are a U.S. person that is a partner in a
2. Certify that you are not subject to backup withholding, or Partnership conducting a trade or business in the United States,
3. Claim exemption from backup withholdin if ou are a U.S. Provide Form W-9 to the partnership to establish your U.S.
9 Y status and avoid withholding on your share of partnership
exempt payee. If applicable, you are also certifying that as a income.
U.S. person, your allocable share of any partnership income from The erson who
a U.S. trade or business is not subject to the withholding tax on p gives Form W-9 to the partnership for
foreign partners' share of effectively connected income, purposes of establishing its U.S. status and avoiding withholding
on its allocable share of net income from the partnership
Note. If a requester gives you a form other than Form W-9 to conducting a trade or business in the United States is in the
request your TIN, you must use the requester's form if it is following cases:
substantially similar to this Form W-9.
• The U.S. owner of a disregarded entity and not the entity,
CaL No. 10231X Form W-9 (Rev. 10-2007)
TR TH IN LEN ING DI LOSURE TATE ENT
Creditor Applicant(s)
City of Palm Desert Veridian, LLC, a California limited liability company
Mailing Address Property Address
73-510 Fred Waring Drive 42635 Melanie Place
Palm Desert, California 92260-2578 Palm Desert, California 92211
ANNUALPERCENTAGE
RATE FINANCE CHARGE AMOUNT FINANCED TOTAL OF PAYMENTS
The cost of your credit as a The dollar amount the The amount of credit provided The amount you will have paid
yearly rate. credit will cost you. to you or on your behalf.
after you have made all
payments as scheduled.
E 7.6056% E$494,205.60 E�522,092.00
E 51,016,297.60
ITEMIZATION: You have a right at this time to an ITEMIZATION OF AMOUNT FINANCED.
INVe� do � do not want an itemization.
YOUR PAYMENT SCHEDULE WILL BE:
NUMBER OF PAYMENTS "AMOUNT OF PAYMENTS
WHEN PAYMENTS ARE DUE
40 a25,407.44 Payments Are Payable In The Same Manner And In The Same Installments As
The Generaf Taxes Of The City On Real Property Are Payable.
"All amounts and payments are estimated based on the maximum loan amount. After the final disbursement of loan proceeds,a statement will be
provided showing principal and payment amounts.
SECURITY: The City will record a lien against the property at 42635 Melanie Place, Palm Desert,California 92211.
FILING/RECORDING FEES: $NONE
LATE CHARGES: Your payments will be collected in the same manner as your property taxes and wil�be subject to the same penalties,procedure,
sale and lien priority in case of delinquency as applicable for property taxes.
PREPAYMENT: If you prepay this loan in full or in part,you
0 W��� Q will not have to pay a penalty.
� will X[�will not be entitled to a refund of part of the finance charge.
See your contract documents for any additional information regarding non-payment,default,required repayment in full before scheduled
date,and prepayment refunds and penalties.
E means estimate.
INVe hereby acknowledge reading and receiving a complete copy of this disclosure. INVe understand there is no commitment for the creditor to make
this loan d there is no obligation for me/us to accept this loan elive or ' ing of this disc�osure.
n ��G
, / ( �
r' Si at re Dat � L �
Tr t � ro er's S ure Date
_ Z � ,
As Trustee of e Trust
orrower's Sign�t� ate Borrower's Signature
As Trustee of the�rust Date
RECORDING REQUESTED BY:
City of Palm Desert
PREPARED BY AND WHEN
RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn.: Benjamin Druyon
A.P.N: 634-260-030-4
File No:
CONSENT AGREEMENT
THIS AGREEMENT is rnade this 19th day of February, 2009, by and between VERIDIAN,
LLC, a California limited liability company ("Owner") and SUNRISE COMMUNITY BANK, a
California Corporation ("Beneficiary"), and for the benefit of the CITY OF PALM DESERT, a
municipal corporation ("Lender").
WITNESSETH
WHEREAS, Owner has executed a deed of trust dated July 16, 2007, to Beneficiary, as trustee
and beneficiary thereunder, covering that certain real property described in Exhibit A attached
hereto ("Property"), to secure a promissory note in the sum of$3;611,000.00, and recorded on
August 24, 2007 as Instrument No. 07-547006 in the Official Records of Riverside County
("Deed of Trust"); and
WHEREAS, Owner has executed, or is about to execute, a loan agreement with the Lender
("Loan Agreement") by which the Lender will make a loan to the Owner in a principal amount
not to exceed $523,000 ("Loan")to finance the purchase and installation of a certain renewable
energy system on the Property in connection with the Lender's Energy Independence Program,
and such Loan will be payable with interest and upon the terms and conditions described in the
Loan Agreement; and
WHEREAS, pursuant to Chapter 29 of Part 3 of Division 7 of the California Streets and
Highways Code, the repayment by the Owner of the principal and interest on the Loan will be
paid by a statutory assessment levied against the Property (the "Assessment") notice of which
shall be recorded against the Property in the Official Records of Riverside County, and which
Assessment, together with the interest thereon and any penalties, shall constitute a lien (the
"Lien") on the Property, and which Assessment shall be collected in installments on the property
tax bill pertaining to the Property, and shall be subject to the same penalties, remedies and lien
priorities as for real property taxes in the event of non-payment by the Owner; and
P6401-0001\1115449v 1.doc
WHEREAS, Lender is willing to make the Loan provided that the Beneficiary consents to the
Loan, the levy of the Assessment against the Property, the imposition of the Lien upon the
Property, and the recordation of the notice of Assessment in the Official Records of Riverside
County and acknowledges that the Lien shall be prior and superior to the lien or charge of the
Deed of Trust.
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and
other valuable consideration, the receipt and sufficiency of which consideration is hereby
acknowledged, and in order to induce Lender to make the Loan, it is hereby declared, understood
and agreed as follows:
1) That the Lien shall unconditionally be and remain at all times a lien on the
Property prior and superior to the lien or charge of the Deed of Trust.
2) That Lender would not make the Loan without this Agreement.
Beneficiary declares, agrees and acknowledges that:
1. Beneficiary consents to and approves (a) all provisions of the Loan Agreement,
including but not limited to those pertaining to the disbursement of the proceeds of the Loan, and
the Owner's execution of the Loan Agreement, and (b) the levy of the Assessment against the
Property, the imposition of the Lien upon the Property and the recordation of the notice of
Assessment in the Official Records of Riverside County with the effect as to its nature and
priority hereinabove described, and Beneficiary hereby confirms that the Owner's execution of
the Loan Agreement will not constitute a default under the Deed of Trust.
2. Lender in making disbursements pursuant to the Loan Agreement is under no
obligation or duty to Beneficiary, and Lender shall have no responsibility to see to the
application of the proceeds of the Loan by the Owner, or to such other person or persons to
whom Lender disburses such proceeds.
3. Beneficiary understands that in reliance upon, and in consideration of, this
consent, approval and confirmation, the Loan will be made by the Lender to the Owner and, as
part and parcel thereof, specific monetary and other obligations are being and will be entered into
which would not be made or entered into by the Lender or Owner but for and in reliance upon
this consent, approval and confirmation by Beneficiary.
The Beneficiary and Owner agree that:
A. This Agreement shall be binding on and inure to the benefit of the legal
representatives, heirs, successors and assigns of the parties hereto.
B. This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
C. This Agreement may be signed by different parties hereto in counterparts with the
same effect as if the signatures to each counterpart were upon a single instrument, and all
counterparts shall be deemed an original of this Agreement.
2
P6401-0001\1115449v l.doc
D. Each of the parties hereto shall, whenever and as often as they reasonably shall be
requested to do so by the other party, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, any and all such further instruments and documents as may be
reasonably necessary to carry out the intent and purpose of this Agreement, and to do any and all
further acts reasonably necessary to carry out the intent and purpose of this Agreement.
E. In the event any legal action is commenced by any party hereto concerning this
Agreement or the rights and duties hereunder of any party hereto, whether such action be an
action for damages, or for equitable or declaratory relief, the prevailing pariy in such litigation
shall be entitled to, in addition to all other relief as may be granted by the court, reasonable sums
as and for attorneys' fees in an amount to be set by the court.
F. Each person or entity executing this Agreement on behalf of a party hereto
represents and warrants that such person or entity is duly and validly authorized to do so on
behalf of such party with full right and authority to execute this Agreement and to bind such
party with respect to all of its obligations hereunder.
3
P6401-0001\1115449v 1.doc
BENEFICIARY: SUNRISE COM UNITY BANK
Ey:
!/
Name: Daniel T. Grenci
Title Executive V'ce President
By:
Name: Stu Bai
Title President
OWNER: VERIDIAN, LLC,
a California limited liability company
By: Dick Baxley
Its Manager
By:
Dick Baxley
By: Dick Baxley and Paula Baxley Living Trust
UDT 06/23/99
Its: Member
By:
Dick Baxley, Trustee
By: Horton Family Trust Dated 6/5/07
Its: Member
By:
Mike Horton, Trustee
4
P6401-0001\1115449v1.doc
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS AGREEMENT,
THE PARTIES CONSULT WITH THEIR ATTORNEYS WITH RESPECT THERETO
STATE OF California ) SS
COiJNTY OF Riverside)
On February 19, 2009, before me, William L. Few, a notary public, personally appeared
Stu Bailev and Daniel T. Grenci who proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s)�/are subscribed to the within instrument and acknowledged to me
that l�/sl�k/they executed the same in Nis/l�r/their authorized capacity(ies), and that by
hi1�/he�f/their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature �=�.�►----
My Commission Expires: ��.cr�.�-+��.� �1 Z��2
This area for official notarial seal.
v�n�u��
commissiw+�ta2600!
�ry Pablk-CNMonW►
R{wtsiM Couoh►
�omm.Ex ins Mc T 12
5
P6401-0001\11]5449v 1:doc
STATE OF ) SS
COUNTY OF )
On , before me, , a
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJLTRY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
My Commission Expires:
This area for official notarial seal.
STATE OF ) SS
COUNTY OF )
On , before me, , a
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJi1RY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
My Commission Expires:
This area for official notarial seal.
6
P6401-0001\I 115449v l.doc
STATE OF ) SS
COUNTY OF )
On , before me, , a
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
My Commission Expires:
This area for official notarial seal.
STATE OF ) SS
COUNTY OF )
On , before me, , a
notary public,personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJLJRY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
My Commission Expires:
This area for official notarial seal.
7
P6401-0001\1 I 15449v l.doc
EXHIBIT A
LEGAL DESCRIPTION
REAL PROPERTY 1N THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE
OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 2 AS SHOWN ON CERTIFICATE OF PARCEL MERGER NO. 473, AS
EVIDENCED BY DOCUMENT RECORDED SEPTEMBER 13, 1988 AS INSTRUMENT NO.
88-263915 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
PARCELS 21 AND 22 OF PARCEL MAP 21898, AS SHOWN BY MAP ON FILE IN BOOK
149 PAGES 58 AND 59 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LOT 21; THENCE NORTH 0°14'29"
WEST 252.15 FEET TO THE NORTHWEST CORNER OF LOT 22; THENCE NORTH
89°45'21" EAST 200.00 FEET TO THE NORTHEAST CORNER OF LOT 22; THENCE
SOUTH 0°14'39" EAST 227.21 FEET; THENCE SOUTH 44°45'S4" WET 35.36 FEET;
THENCE SOUTH 89°46'S4" WEST 174.39 FEET TO THE POINT OF BEGINNING.
�6401-OOOI\]115449v1.doc
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Yaw Sa1sr Energy Companp
HSA Design Group � Veridian LLC
60.S kW Solar Energy Project
Palm Desert Energy Independence Program
List of Materials and Costs
Comuonent uanti Cost
180 Watt Solar Modules 336 $274,083
Inverters 2 $ 45,680
Mounting System
& Electrical Devices Miscellaneous $ 22,840
Design, Engineering
Labor & Overhead 114 202
Total � $456,805
"Providing solar energy solutions is not just our Business, it's our Passion!"
Nov 26 08 11 :08a ' p, L
Baja Construction Co. Inc.
Specialist in Pre-Fabricated Stee] Construction
Cotporat¢O,g�Jre:Box 3080�223 Foster Street,Martinet,CA 94553(800)366-9600 Fax:(93�)2Z9-016I License No.4?2390
Phaenlx Offlce Fontana OfJ7ce Las Yegas Ojfice
(602}392-1163 (909)822-7678 (702}643-0060
Fax:(642)39�-1]G4 Fsx:(9D9)822-3030 Fa,c:(702)6�13-0669
License No.ROC20041? LicenseNo.412390 Licensallo.0032?57
CARPORT FROPOSAL #5686
� Rowision #1
DATE:November 26,2008 SHIP TO:
PREPARED Ft3R:Dave Mourhaus NAME:HSA Design Group .
NA141E:Suntrek ADDRES5:
ADDRE58:42970 Tennessee Ave. CITY:Palm Desert STATE:CA
CI'TY:Palm Desert STATE:CA 92211 PHUNE: �
� PHONE: 760-641-9778 Fax:760-4b9-8527
THIS PRdPp4A1.COVERS BA,1A STRUCI'URfiS
DESCRIDED aV�EfALJ ON APPSNDIX 1. $Upp11CC18L TiIS18�18(1
565,087A0 Subtotal Price
The Baja Proposat descn'bes a structare that has baen Permits Are Not lncluded
��alue er�ineered for best-cost effecti�eness. Wbile Sales Tax Included
meeting the appearance and fiuictian neede of the $��gp�,pp Fnll Cantiler-er
project it is not specifically perplans snd s�ecs, �41,180.00 T-Post
F1tElGHT—is pcapaid aad allotived to poinq in C�tinentaJ U,S.rL
UNess shipped u9d�strucwrn, cors,yw,ent vuts md a�assor;os arc This is a Non-Prevailin¢waqe rate price.
FOB,tvtanurecnuiny�taniwi�h no neight attowanc�. This cnntract amount is contingent on the material beins[released�
wha�tos9 or damage by ce�rier is visiote,in�iat�nocation ofmia �om our sopplier,for shipping bv March 3I.2009,In order for
tos:or dama�;on might bi11 ar express rocelpe by csrr9er's agent, the materia!to be released for shipainf the followiiu¢inforrnation
PERi4tYTS - �rhe piachdver awst assume respoasibiiiry for the must be received by Bsis aa or before March 3,2009:
sdoctian of structures ttiat will meet tha building code and or�er Approved ptani,Pre-Liea,si�ned Jo1nt cbecl:a�reement&color
requiranxnis of bis emz end for ucuring bulldinQ petmit and cost information.In lieu of the apgroved ulans a"tetter of release"
meroof 5eue� wi11 surnio� ercct;on a�w;nga and eagincering h.�be acceuted.!f ali infarmaiion nquired above is not recoivul
calculations iv fi�mished on�queu. �y Marcb 3,2009 a chan¢e order will be issued based oa the
ourrent merket price of materiaL
Submittsd by: ���Y ��(�J�f;{'�'i � Allow two weeks to prepare plans.
Frank Valencia,��
Rogional Sales Manager pAy��T TERMS �rHns PROP05AL sr��z.�,
License No: 412390 xEMwnv oPElt FOR 'CHIRTY
39 Spaces and les� DAY3 FRO.IZ DATE ABOVE.
1/3 Dowa wit6 a:ceptsnax of prpposal 5li8�IECT TO AVAII.ABILITY
DRAWII�GS, SPECIFICATl0�t5 A1vD OTFIER DOCC�ffi�rTS, 1�;Due upon delivery of m�eriala OF M.�TERiALS
INCLUDiNG TN�SE IN HLfiCfRONIC FOtiM,PREPARED BY galana due upon eompterlon
• BA]A CONSTRUCTION ARE NSTRUMET�TS OP SERVICE INTEAFST �CCRUFS AT I'HE
FOR USE SOLEY WITJi RESPECT TO THI9 PROJECT. B,4JA qp gpaaa a�d over: RATE OF 1'/s%PER 130M'I�ON
CONS'i RUCTION SHALL HL DEEMED T}iE A[JTHORS AND 10°io down wfth accoytancc of propr�sal AL,Y,PAS'f DUE LWOICES.
OWNERS OF TEiE1R RESPECTlVE A]STRUMETITS OF ypo,;dtu upon delivery of materials $'�°�'Z� ��� UPON
SERVICB A1dD SHAI.L RETAII9 ALI. COMMON LAW, Balanae due upon compfaion C�Mi'�T[dN
STaTUTORY APID OTFIER RE5ERvEa RIGHTS, iNCLUDINQ
COFYRIGHIS.
I'Hi3 PROPOSAL I5 SUBJECT T0:
(a)All of thc tam and conditions appearing ia this form.
� (b)Copies of Appandix 1 (Descriprion, Specisications and Prices of Structures)and Instapbtion and Dtiiling Ral�ase bcing attac6ed and made par±
hereof. ' .
{e)Written acknowlecigment by an auihoriud signacory of the seller ac Martinez,California.
(d)Yerifcationofcreditreferences. CreditApgro��l ��•rjpY„
PAGE1 •
i
�
Terms and �onde�ions
A. Contractor shall not be liable for any delays resulting from any cause beyond Contractor's reasonable control.
B. Unless different payment arrangcments have been made in advance,the entire balance is due on completion of the
' installation.Delinquent bills wil]be subject to the legal maximum amo�.u�►t ofinterest.Errors in calculations are subject to
correction.
' C. Contractor reserves the right to reject any order.
D. The terms and conditions of this contract are the complete and exclusive statement of the terms of the agreeznent
between the two parties. No modification, amendment or waiver of any provisions of this contract shall be
effective unless in writing and signed by both parties.
E. In any suit or proceedings arisinb out of or in connection with this contract,the prevailing party shall be entitled
to recover reasonable attorney's f'ees, c�sts and expenses.
F. WARRANTIES:This contract is made and to be performed in the States of California or Nevada,and its validity,
interpretation and effect shall be govemed by the laws of the States of California or Nevada applicable to agreements
; made and wholly performed therein.
1. Contractor warrants his labor and workmanship to be free froin defects under normal,and proper use for a
period of ten years from the date of installation.
2. The only product warranties to Buyer are the warranties provided by the individual component manufac-
! turers.
i
; 3. Contractor's obligation with respect to the products covered by Contractar's warranty (as distinguisHed
E from the products manufactured by and warranted separately by the solar equipment manufacturers)shall be
! limited to the repair, or, at Contractor's election, replacement of any product or part which is found to be
� defective. This warranty shall not apply to any product or part which has been removed,repaired,replaced,
i or altered by anyone other than Contractor,and shall not be in force if Buyer has not made full payment of the
installation price.
1
i 4. Contractor shall not be liablE for any consequential or incidental damages,e:�or any inconvenience, loss of
� time,.or incidental expenses arising from the use or failure of any of the products covered by this contract or
installation thereof.
I
�f 5. No officer,employee or other representative of Contractor is authorized to make any sepazate representation
or warranty or assume any liability on behalf of Contractor in connection with this order,the products cov-
ered by this contract, or their performance, application, or installation.
� G. "Under the Mechanics'Lien Law,any contractor,subcontractor,laborer,supplier or any other person who helps
improve your property but is not paid for his work or supplies, has a ri�ht to enforce a claim against your
property.This means that after a court hearing, your property could be sold by a court officer and the proceeds
of the sale used to satisfy the indebtedness.This can happen even if you have paid your own contractor in full,if
� the subcontractor, laborer, or supplier remains unpaid."
H. All labor and/or expenses incurred because of unusual or unantieipated conditions which could not reasonably be
foreseen by Contractor shall be chazged as extra work.
I. All pemuts,homeowner association approvals,applications,etc.,are the responsibility of the BuyerBuilder.
i Contraetors are required by law to be licensed and are rebulated by the Contractor's State License Board.Any questions concern-
� ing a contractor may be referred to the re�istrar of the board whose address is: California—9835 Goethe Road, Sacramento,
1 California 95826;Nevada—70 Linden Street,Reno,NV 89502.
,
Mov 26 08 11 : �Ba p,3
GENERAI.SPECLFICATIONS
The economy of Baja carpons,canopies and wallcway cavcrs is the result of simple design,pre-fabricarion aad mass production.
Framing consists of round or square cohunns and cold-formed channels thac are bohediteked together in tha field without
a�di�ianal.fiabriaations or fiold tivoLding.
Columns are imbedded in concrote footings for most oconomic installation,optional:columns with basa plates for security with
anchor balts.
Rooflng is secured with self-tappfng screws(combination metat and neaprent washer insured water tightrsoss.)Struct�ues up to
40'deep use single roof running from frocrt to rear,so end laps are eliminated.
Drainage:roof slope to firont or rear,as dasired Gutter is optional.
Attaehing a BaJa Structure to an existing stracture: Parts necessary for the attachment of a Baja siructure to another structure
oan be fiunished;lilsewise,parts af flashing�Baj a Struchue intn an existing structure can be fiun ished,bui,neither Ba,ja nor its
subeontractor is respaasible for tha structwal sfrength or weather tightriess at any point whare Baj a Structure is attached to ac
flashed�nto another struccure.
Trim:Choico of decorative metal tritn with baked pgint finish.Paint fmish is onty on exposed(outside)side of inetal uim,tba
backside af the trun has a white base coat of paint.
Des9gn Staadards:
All ligi�t gauge cold-formed structural panels aza designed in.accordaace with the specifications for the desi�of"Light Gauge
Cold-Frarncd Structural Members"as published by the American Iron and Steel Institute.
All siructural steel sectio:Ls and welded plate members are designed in accordattct with the American Iron and Steel Institute
specif cations for ffie design,fabrication and oreotion of steel buildings.
; , Wlad Load:SMxctures are designed Parhorizonta!wind load up to 25 psf.
' RoolLoad�Struchues are designed forthe following laads:
MODEL RQOF LNE LOAD MODEL ROOF LIVE LOAD
DP 14 PSF SP 1 U PS�
DP 20 SP 20
Dp 2S SP ZS
DP 30 SP 3Q
DP �0 SP 40
Roofing:B�ja deep-rib panels are oold•fornrai from hi•tinsile zincalume steel with a minirnum;•ield poinc of 84,000!50;OU0 or
33,000 psi steel af aquivalent section proporties.Zincalume pane}s aze furnished either unpainted or with factory appliedbakel paint
finish on one side and a white protsctive coat on the reverse side Baked .�'inishas other thar�white are also available for either or both
sides.
' Zincalume Caating: on roof panols are warranted for 20 years. Warranted coating maets �'ederal specificazion QQQ-775-C or
ASTMA A-123. (Jn columns it is 1.00 ounce per sq.it minimum average.Zincalume is a zinc alumin�nn ailo3�coati*�;,which,when
applied to steel, provides twioe tha service life of iraditianal�alvaniaed coatings. Z7Ik.�lUme i9 8 4�% zinc 55% alua�inum alloy
applied by a continuous hot dip c�eting process.It offors the stren�th of st�l and the corrosion resistance of alurninum.
Frsming Members are rnanufacteued from galvanized black or prime hi-tensile suel with a minia�um yield poinc of 50,000:50,OOQ or
33,000 psi steet equi�alent section properties.
Tubular Colmm�s:with�vall thiclmess of 0.075" or grtater are gatvanized black or prime painted high stren�th steel conforming to
ASTMA A-S00-A.Cotumns are available in rect�ngie onky.
� Hardware&AccessorSes:Galvaaized or chromate-dipped hardware flsmished wiL'�1%excess.. '
Note:due to continuous product improvement,Baja may make chanbas in spxificstions without noti�e.
INITIAL
PAGE 2
I
� Nav 26 08 11 :�9a p, 4
Baja Cons�ruction Co. Inc.
APPE?V�DIX 1—Page 3
DESClti�'TION AND PRICES OF STRUCTITRZS
tGenewl Speaficedo��:xe back ilda[or sqecificallors includiag rcof aad wind loads for whioh Bqja Pre-eng'sesred ctructuces�a d�igna�'j
Proposal for. HSA Desi�n Group Date: November 26,2008
STTE: If grade variance is not more then 6"across overall width or depth,sice is consid�zed te�el. ?ricetsi 3ssune installation on levcl sito unless
othen��ise noted. "If stea-doWns are roquirai io iastall c,arports proparly,buyer wil]bear the eutra costs fur matarieis and tabor.
SPECiFICATIOYS:lfapeaiaoations do aot epply to ull swotuaa,rxempriors rcust be cm'end'on eupplenest lo Appzndix l.Optional er accBSofY itzou touSt a1S0 bt ARed
RUUF FINIS�T ROOF TRIM
Co1or(Top) Prefuushed Trim Style 1 5/8" Color: Ba�a 5tandard Color
(Bottom White i?uot 2incalwne) Loca.tion: Ali Sides Columns: Standard
, � (Unless otherwise notod)
STRUCTURE .
End Fxts.rec�uired each Structura-�1one
t�ll standard straetural memixrs shipped:
❑ Galvanized � Black X Prime Painted Step-Downs required-None
Fainting of shuctures: Caniileo�er ends required-As Below
0 By Baja Constiuction Co X By other� End�Back Walls-Vone
—Model-- —Live Load-- --Wind Load— —Clear Height—
FCBfi/FCZ'BB Solar Suppart 2Q 85 EXP$ $'2"
t)'VERALL SIZE BAYS CANTILEVERBAYS CAR
NO. SIZE WIDTF3 DEPTR Nn.&WIDTH No.&WIDTH SYACE5
A 1 - 116' 18' 5�a,20' 2 a;8' -
B 1 10'x36' 160' 36' 7�a�0' 2 cr,l�' -
* SOILS Z,000 paf
NOTE: TOTAL CAR SPACES: -
-Prices in this praposal am good for 30 days from the dat�of this proposal for materials shipped
� prior ta Iviar�h 31,2009.Materials shippe�after this date will be subj ect to a price increase.
-Baja Canstruction Co.,Ine.is nat xesponsible for delays due to steel or concreta supply dislocatians.
-Pxice includes dzilling wi#h a bobcat-maunted auger.
-Rock eP�obstructed d.�illirg is extra at current market value,per hour.
-Hand digging is extra at$50.00 per hot�r,per man.�650.0(}for each spread foo#ing.
-Permits,electrical,pai.nting,wood fa�cia�,and the removal of spoi?s from the job site are n.ot inclnded
-Vlaterial and construction,as p�r Baja Construcrion Co.,Inc.,standard approved plans and calculatians.
-Prior to production of materials,Baja�or�str�ucqon must receive a capy of*he City approved
sit�e plan aud Baja c�rawings.
i ���
I PAGE 3
i—
i
� Suntrek Industries Photovoltaic Sales Agreement
' S Holland#215 • Irvine, Ca. 92618 • (949) 348-9276 • Lic. #859460
120 N.Pacific,Unit E-6�San Marcos,CA 92069 5040 Commercial Cirole#C�Concord,CA 94520 155 Fary St.#F•5imi Velley,CA 93065
Tel:(760)891-9092�Fax: (760)891-9094 Tei:(923)688-8975•Fax:(925)688-8984 Tel:(805)522-5102�Fax:(805)522-5602
39 N.CluffAve.#A�Lodi,CA 95240 6560 Spencer Street,#AI•I05,Las Vegas,NV 89119
Tel:(204)366-1962�Fax(209)366-2138 Tel:(702)362-3611•Fax:(702)362-3313•Lic.#70340•Bid limit�2,000,000
DATE 2 CUSTOMER I }J�7'c U TEL—HOME(�,
ADD S Z ` �e. Q U I W ORK (�� �`'�'I ` I�N
CITY �►''"\ �. �. STATE�ZIP � E-MAIL
SYSTEM DESIGN �
UTILITY COMPANY S�L�. CURRENT AVERAGE DAILY KWH USAGE�l�TOTAL SIZE OF SYSTEM DC�O
MAKE& #OF MODULES�XJ�c��CO � �O �3��_��& #OF INVERTERSS�� v " �a
PERMITS PLAN CHECK H.O.A. CONTACT INFO l "� 1 .Q, � �
INSTALLATION SPECIFICATIONS
TYPE ROOF— �lQ,TILT(DEGREES)= AZIMUTH(ORIENTATION DEGREES)
STORIES OF ROOF�21 3 SHADING FACTOR: NONE IMAL MEDIUM SEVERE ��Q% SOLAR ACCESS
MANUFACTURER OF BREAKER BOX AMP RATING OF BREAKER BOX #OF FREE SPACES IN BOX
REQUIRE SUB PANEL�N aY DISTANCE FROM ARRAY TO METER: FT. CONDUIT RUN:o EXTERIOR ❑ATTIC o OTHER
TRENCHING=❑ N o Y(__FT) CONCRETE CUTS=❑ N o Y L_,F'T) RACKING: GROUND MOUNT • ROOF RAC
PRE-SITE COMPLETED BYSO�.�, �. M�k�_
PROJECT DETAILS PAYMENT TERMS
' SOLAR MODULES � �.�V � �� ^ �
INVERTER S � v
EXTRAS � ��C /D ' ( � O
ESTIMATED REBATE t�J a� r — � .
� �TYMATED�4 L�REDIT Z � �� ��b-1- '�" � JD � � olJ
i '..t>"
� � .__L__ S
The complete system described is$���� due according to terms.
SPECIALINSTRUCTIONS � � Q'
I
� You the buyer may cancel this transaction at any time prior to the third business day of this transaction without penalty or forfeiture of fees.
CUSTOMER SIGNAT X DATE
� NOTICE:Your signatu fies your knowledge and understanding of the terms and conditions found on the reverse side of this page.
SUIVTREK REPRESENTATNE: DATE
THIS QUOTATION IS FIRM DAYS.Make all checks payable to SiJNTREK INDUSTRIES.
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HSA Design Group � Veridian LLC
Solar Energy Project
Palm Desert Energy Independence Progranz
Installation Highlights:
*Photovoltaic Svstem
336 solar panels�each rated at 180 DC Watts = 60.5 kW System
Each solar panel measures+/- 3' x 5'
Each solar panel weighs +/-35 pounds
Warranty=25 years
Life expectancy=60+years
Productivity warranty =90% at 12 years
80% at 25 years
Inverter system=two 30 kW with 10 year warranty
*Solar Structures
Two structures�one is 116' x 18' and one is 160' x 36'
Incidental benefit�will provided shaded parking for 30 cars
Engineered systems exceed industry and local building codes
Sub contractor has over 30 years of experience
*Anticipated Productivitv & Environmental Benefits
Photovoltaic system should generate 90,745 kWh per year
Should reduce CO2 emissions by 1,756 tons over 25 years
Environmental equivalent of:
S,715,392 miles NOT driven
30.1 acres of trees planted
�
�c�u� ���n+�r���rm►�a��
HSA Design Group � Veridian LLC
Solar Energy Project
Palm Desert Energy Independence Program
Installation Highlights:
*Photovoltaic Svstem
336 solar panels�each rated at 180 DC Watts = 60.5 kW System
Each solar panel measures +/- 3' x 5'
Each solar panel weighs+/-35 pounds
Warranty=25 years
Life expectancy=60+years
Productivity warranty=90% at 12 years
80% at 25 years
Inverter system = two 30 kW with 10 year warranty
�Solar Structures
Two structures�one is 116' x 18' and one is 160' x 36'
Incidental benefit�will provided shaded parking for 30 cars
Engineered systems exceed industry and local building codes
Sub contractor has over 30 years of experience
*Anticipated Productivitv & Environmental Benefits
Photovoltaic system should generate 90,745 kWh per year
Should reduce CO2 emissions by 1,756 torts over 25 years
Environmental equivalent of:
S,715,392 miles N�T driven
30.1 acres of trees planted
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Braced single post back 1/3 with thin film PV panels
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Baja Construction Co. Inc
223 Foster Street, Martinez, CA
Phone: 1-800-366-9600
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Full Cantilever Solar Carport with Pv Panels
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223 Foster Street, Martinez, CA
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