HomeMy WebLinkAbout2017-0641
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WHEREAS, the California Statewide Communities Development Authority (the
"Authority") is a joint exercise of powers authority, the members of which include numerous
cities and counties in the State of California, including the City of San Bernardino (the
and,
WHEREAS, the Authority has implemented Property Assessed Clean Energy
("PACE") programs, which it has designated CSCDA Open PACE, consisting of programs
each administered by a separate program administrator (collectively with any successors,
assigns, replacements or additions, the "Programs"), to allow the financing or refinancing of
renewable energy, energy efficiency, water efficiency and seismic strengthening•
improvements, electric vehicle charging infrastructure and such other improvements,
infrastructure or other work as may be authorized by law from time to time (collectively, the
"Improvements") through the levy of contractual -pro-oerty tax assessments pursuant to
Chapter 29 of Division 7 of the Streets & Highways Code ("Chapter 29") within counties and
cities throughout the State of California that consent to the inclusion of properties within their
respective territories in the Programs and the issuance of bonds from time to time; and,
WHEREAS, program administrators currently active in administering PACE
Programs are the AllianceNRG Program {presently consisting of CounterPointe Energy
Solutions LLC and Leidos Engineering, LLQ, PACE Funding LLC, Renewable Funding
LLC, CleanFund Commercial PACE Capital and Spruce Finance; and,
WHEREAS, the Authority will notify the City in advance of any additions or changes
to the Programs; and,
WHEREAS, Chapter 29 of Division 7 of the Streets & Highways Code provides the,
I.ssessments may be levied under its provisions only with the free and willing consent of th
owner or owners of each lot or parcel on which an assessment is levied at the time th
assessment is levied; and, I
WHEREAS, the City desires to allow owners of property ("Participating Propert
Owners") within its territory to participate in the PACE Programs and to allow the Authorit
to conduct assessment proceedings under Chapter 29 within its territory and to issue bonds t
finance or refinance Improvements; and, I
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WHEREAS, the territory within which assessments may be levied for the PACE
Programs shall include all of the territory within the City's official boundaries; and,
WHEREAS, the Authority will conduct all assessment proceedings under Chapter 29
for the Programs and issue any bonds issued in connection with the Programs- and,
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WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings; the levy of assessments- any required remedial action in the case of
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delinquencies in such assessment payments; or the issuance, sale or administration of any
bonds issued in connection with the Programs.
-W rA
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CIT WA
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COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS.
SECTION 1. That the Mayor and City Council hereby find an ec are t at properties in
the territory of the City will benefit from the availability of additional PACE Programs within
the territory of the City and, pursuant thereto, the conduct of special assessment proceedings
by the Authority pursuant to Chapter 29 and the issuance of bonds to finance or refinance
Improvements.
SECTIONconnection with the Programs, the City hereby consents to the conduct
of special assessment proceedings by the Authority pursuant to Chapter 29 on any property
within the territory of the City and the issuance of bonds to finance or refinance
Improvements, provided that:
(1) The Participating Property Owners, who shall be the legal owners of such property,
execute a contract pursuant to Chapter 29 and comply with other applicable provisions
of California law in order to accomplish the valid levy of assessments; and
,12) The City will not be resp onsible for the conduct of any assessment proceedings; the
levy of assessments; any required remedial action in the case of delinquencies in such
assessment payments; or the issuance, sale or administration of any bonds issued in
connection with theProgram; and
(3) The administering Program has executed an indemnification agreement in favor of the
City, the terms of which are at least as favorable to the City as those set forth in
Exhibit "A", Indemnification Agreement hereto. If the City Attorney approves the
form of an indemnification agreement pursuant to this resolution, and if such
agreement is executed by the Program, then the City Manager is authorized on behalf
of the City to, and shall, execute such agreement.
SECTION 3. The appropriate officials and staff of the City are hereby authorized and
directed to make applications for the Programs available to all property owners who wish to
finance or refinance Improvements; provided, that the Authority shall be responsible for
providinfz such applications and related materials at its own expense. The following staff
persons, together with any other staff designated by the City Manager, are hereby designated
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as the contact persons for the Authority in connection with the Programs: Cruz Esparza, IV,
Business Development ManaRer, City Manner's Office (909)384-5122.
SECTION 4. The City Manager is hereby authorized and directed to execute and deliver
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such certificates, requisitions, agreements and related documents as are reasonably required
by the Authority to implement the Programs.
SECTION 5. The Mayor and City Council hereby finds that adoption of this Resolution is
1� not a "project" under the California Environmental Quality Act, because the Resolution does
not involve any commitment to a specific project which may result in a potentially significant
physical impact on the environment, as contemplated by Title 14, California Code of
Regulations, Section 15378(b)(4).
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SECTION 6. This Resolution shall take effect immediately upon its adoption. The City
Clerk is hereby authorized and directed to transmit a certified copy of this Resolution to the
Secretary of the Authority at: Secretary of the Board, California Statewide Communities
Development Authority, 1400 K Street, Sacramento, CA 95814.
-t
MARQUEZ -X(S)
BARRIOS
1
VALDIVIA X(M�
IAC TT
NICKEL
INDEMNIFICATION AGREEMENT BETWEE
THE CITY OF SAN BERNARDINO AND
[Pace Program Administrator] I
This Indemnification Agreement (the "Agreement") is entered into this day of
20 , BY AND BETWEEN:
the City of San Bernardino, a Charter City organized under the laws of the State of
California, with an address of 300 N. "D" Street, San Bernardino, California (the
"CITY59);
[Pace Program Administrator], a [State] [Entity Type] formed under the laws of the State
of [State] (the "ADMINISTRATOR") (individually CITY or ADMINISTRATOR may
be referred to as a "PARTY" and collectively CITY and ADMINISTRATOR may be
referred to as the "PARTIES").
WHEREAS, the California Statewide Communities Development Authority
("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of
FWivision 7, Title I of the California Government Code (Section 6500 et. seq.) and the Amended -
and Restated Joint Exercise of Powers Agreement Relating to the California Statewide
Communities Development Authority entered into on June 1, 1988, as amended from time to
time; and
WHEREAS, the Authority has established a property -assessed clean energy ("PACE")
Program ("Authority PACE Program") to provide for the financing of renewable energy
generation, energy and water efficiency improvements, electric vehicle charging infrastructure,
and seismic retrofit projects (the "Improvements") pursuant to Chapter 29 of Division 7 of the
California Streets and Highways Code ("Chapter 29"), within counties and cities throughout the
State of California that elect to participate in the Authority PACE Program- and
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WHEREAS, the City, a member of the Authority, has consented to the inclusion in the
Authority PACE Program of all of the properties in the jurisdictional boundaries o t e City, and
has authorized the conduct of special assessment proceedings by the Authority pursuant to
Chapter 29 on any property within the territory of the City. and to the issuance of bonds to
finance or refinance Improvements in accordance with applicable laws, rules and regulations,
sub * ect to conditions that (1) the legal owners of participating properties execute a contract
pursuant to Chapter 29 and comply with other applicable provisions of California law in order to
accomplish the valid levy of assessments and (2) the City will not be responsible for the conduct
of any assessment proceedings, any required remedial action in the case of delinquencies in such
assessment payments, or the issuance sale, guarantee or administration of any bonds issued in
connection with the Authority PACE Program; and
INDEMNIFICATION AGREEMENT BETWEEN CITY AND [Pace Program Administrator]
Page 1 of 7
E.17-1,1JAS, the Authority and the Administrator have entered into an [Agreement for
Services], dated [Date], in which the Administrator agreed to serve as an administrator for the
Authority PACE Program on behalf of the Authority; and
WHEREAS, the Administrator agrees to indemnify the City and to provide insurance in
I with the Administrator's administration of the Authority PACE Program in the City
JLf
, San Bernardino.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein, the PARTIES hereby agree as follows:
The recitals set forth above are, by this reference, incorporated into and deemed a part of this
Agreement.
The ADMINISTRATOR agrees to defend, indemnify, and hold harmless the City, its officers,
elected and appointed officials, employees, agents, and volunteers (each, an "Indemnified
Party") from and against any and all claims, damages, losses, expenses, fines, penalties,
judgments, demands, and actual, direct, documented and reasonable out -of pocket defense costs
and expenses (including, without limitation, amounts paid in compromise or settlement and
reasonable outside legal fees arising from litigation of every nature or liability of any kind or
nature includim4 civil criminal administrative or investigative) arising out of or in connection
with the administration of the Authority PACE Program, except as to such loss or damage which
was caused by the sole negligence or willful misconduct of an Indemnified Party.
ADMINISTRATOR hereby waives any and all rights to any types of express or implied
indemnity against any of the Indemnified Parties arising out of the above referenced conduct.
The policy limits of any insurance of the ADMINISTRATOR, its affiliates or other parties are
not a limitation upon the obligation of the ADMINISTRATOR, including without limitation, the
amount of indemnification to be provided by the ADMINISTRATOR. The provisions of this
section shall survive the termination of this Agreement.
5.1 Minimum Scope and Limits of Insurance. ADMINISTRATOR shall obtain and
maintain during the life of this Agreement all of the following insurance
coverage:
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(a) Comprehensive general liability, including premise s -operations,
products/completed operations, broad form property damage, blanket
contractual liability, personal injury with a policy limit of not less than One
Million Dollars ($1,000,000.00), combined singles limits, per occurrence and
aggregate.
INDEMNIFICATION AGREEMENT BETWEEN CITY AND [Pace Program Administrator -
Page 2 of 7
(b) Automobile liability for owned vehicles, hired, and non -owned vehicles, with
a policy limit of not less than One Million Dollars ($1,000,000.00), combined
single limits, per occurrence and aggregate.
(c) Worker's compensation insurance as required by the State of California.
3.2 Endorsements. The comprehensive general liability insurance policy shall contain
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or be endorsed to contain the following provisions:
(a) Additional insureds: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insureds with
respect to this subject project and contract with City."
(b) Notice-, "Said policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced, until thirty (30) days after written notice is given to City."
(c) Other insurance® "Any other insurance maintained by the City of San
Bernardino shall be excess and not contributing with the 'insurance provided
by this policy."
3.3 Certificates of Insurance. ADMINISTRATOR shall provide to CITY certificates
of insurance showing the insurance coverages and required endorsements
described above, in a form and content approved by CITY, prior to performing
any services under this Agreement.
3.4 Non -limiting. Nothing in this Section shall be construed as limiting in any way,
the indemnification provision contained within this Agreement. or the extent to
which ADMINISTRATOR may be held responsible for payments of damages to
persons or property.
In the administration of the Authority PACE Program and in the hiring and recruitment of
employees, ADMINISTRATOR shall not engage in, nor permit its officers, employees or agents
to engage in, discrimination of persons because of their race, religion, color, national origin,
ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or
sexual orientation, or any other status protected by law.
C
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INDEMNIFICATION AGREEMENT BETWEEN CITY AND [Pace Program Administrator]
Page 3 of 7
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Any notices, documents, correspondence, or other communication concerning this Agreement or
the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally
delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by
U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after deposit in the U.S.
Mail as reflected by the official U.S. postmark.
Office of the City Mana -§ er [Address]
300 North "D" Street, 6t Floor
San Bernardino, CA 92418
Either PARTY may change the address for delivery of notices by sending notice of the change to
the other PARTY in conformity with this Section.
2"ID,
VD,19!15
In the event that litigation is brought by any PARTY in connection with this Agreement, the
prevailing party shall be entitled to recover from the opposing party all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its
rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions
hereof. The costs, salary and expenses of the City Attorney and members of his/her office in
enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the
purposes of this paragraph.
8, VENUE,
The parties hereto agree that all actions or proceedings arising in connection with this Agreement
shall be tried and litigated in the Superior Court of the State of California for the County of San.
The aforementioned choice of venue is intended by the parties to be mandatory and not
permissive in nature.
This Agreement shall be governed and construed under the laws of the State of California
without giving effect to that body of laws pertaining to conflict of laws.
This Agreement shall be binding on and inure to the benefit of the PARTIES to this Aeeme
grnt
and their respective heirs, representatives, successors, and assigns.
INDEMNIFICATION AGREEMENT BETWEEN CITY AND [Pace Program Administrator]
Page 4 of 7
11. HEADINGS.
The subject headings of the sections ®f this Agreement are included for the purposes of
convenience only and shall not affect the construction ®r the interpretation of any of its
provisions.
51,0 rcit
If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid or unenforceable for any reason, such determination shall not affect the validity or
enforceability of the remaining terms and provisions hereof or of the offending provision in any
other circumstance, and the remaining provisions of this Agreement shall remain in full force
and effect.
All remedies available to either PARTY for one or more breaches by the other PARTY are and
shall be deemed cumulative and may be exercised separately or concurrently without waiver of
any other remedies.
The delay or failure of either PARTY to require performance or compliance of the other of any
of its obligations under this Agreement shall in no way be deemed a waiver of those rights to
require such performance or compliance. No waiver of any proon of this Agreement shall be
effective unless made in writing and signed by a duly authorized representative of the PARTY
against whom it is sought. The waiver of any right or remedy with respect to any occurrence or
event shall not be deemed a waiver of such right or remedy with respect to any future
occurrences or events and shall not be deemed a continuing waiver.
R_VT" mot
This Agreement constitutes •the entire agreement and the understanding between the PARTIES,
and supersedes any prior agreements and understandings relating to the subject matter of this
Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall constitute one and the same agreement. In the
event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf'
format data file, such signature shall create a valid and binding obligation of the PARTY
executing (or on whose behalf such signature is execute) with the same force and effect as if
such facsimile or '4.pdf 'signature page were an original thereof.
INDEMNIFICATION AGREEMENT BETWEEN CITY AND [Pace Program Administrator,�
Page 5 of 7
No amendment to this Agreement will be effective unless it is in writing and signed by both
PARTIES.
Each person executing this Agreement on behalf of the PARTIES •hereto warrant that they are
duly authorized to execute this Agreement on behalf of said PARTIES and that by doing so, the
PARTIES hereto are formally bound to the provisions of this Agreement.
. ..........
WAS% Z W-1171 a
ADMINISTRATOR agrees to abide by all federal, state, and local laws, ordinances and
regulations.
The PARTIES have participated Jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises with respect to this Agreement,
this Agreement shall be construed as if drafted jointly by the PARTIES and in accordance with
its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any
Party by virtue of authorship of any of the provisions of this Agreement.
[Signature Page Follows]
INDEMNIFICATION AGREEMENT BETWEEN CITY AND [Pace Program Administrator]
Page 6 of 7
INDEMNIFICATION AGREEMENT BETWEEN
THE CITY OF SAN BERNARDINO AND
[Pace
Program
IN WITNESS
and date set forth below.
Dated: , 2
Dated , 2
�. _ ! • �" W's re is
M
Mark Scott, City Manager
APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By.AeAA!
INDEMNIFICATION AGREEMENT BETWEEN CITY AND [Pace Program Administrator]
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