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HomeMy WebLinkAbout2018-2771 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2018-277 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE TERRITORY OF THE CITY IN THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY (CMFA) OPEN PACE PROGRAMS, AUTHORIZING CMFA TO ACCEPT APPLICATIONS FROM PROPERTY OWNERS, CONDUCT CONTRACTUAL ASSESSMENT PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS WITHIN THE TERRITORY OF THE CITY, AND AUTHORIZING RELATED ACTIONS WHEREAS, the California Municipal Finance Authority includes numerous cities and counties in the State of California, including the City of San Bernardino (the "City"); and, WHEREAS, the Authority has implemented Property Assessed Clean Energy ("PACE") programs, which it has designated CMFA 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 property 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, the program administrators currently active in administering Programs are Energy Efficient Equity, Inc.; B1ueFlame PACE Services LLC; OnPACE Energy Solutions, LLC; PACE Equity, LLC; Samas Capital LLC; Structured Finance Associates, LLC; and Twain Community Partners H LLC; and the Authority will notify the City in advance of any additions or changes; 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 that assessments may be levied under its provisions only with the free and willing consent of the owner or owners of each lot or parcel on which an assessment is levied at the time the assessment is levied; and, WHEREAS, the City desires to allow owners of property ("Participating Property Owners") within its territory to participate in the PACE Programs and to allow the Authority to conduct assessment proceedings under Chapter 29 within its territory and to issue bonds to finance or refinance Improvements; and, 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, 1 1' 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, 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 delinquencies in such assessment payments; or the issuance, sale or administration of any bonds issued in connection with the Programs. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the Mayor and City Council hereby find and declare that 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. SECTION 2. In connection 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 (2) 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 delinquencies in such assessment payments; or the issuance, sale or administration of any bonds issued in connection with the Program; and (3) The administering Programs have executed indemnification agreements in favor of the City, the terms of which are at least as favorable to the City as those set forth in Exhibit "Al through AT', Indemnification Agreements hereto. If the City Attorney approves the forms 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 agreements. SECTION 3. The City Manager or designee is 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 providing such applications and related materials at its own expense. The City Manager or designee is hereby designated as the contact persons for the Authority in connection with the Programs. 2 1 2 3 4 5 6 7 8 9 10; 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 4. The City Manager is hereby authorized and directed to execute and deliver 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 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). SECTION 6. The City may withdraw from the Programs or any Program upon six (6) months written notice to the Authority. The City may withdraw its consent and approval for the conduct of special assessment proceedings by any specific program administrator under a Program within the jurisdictional limits of the City upon thirty (30) days written notice to the Authority without (a) liability to the Authority or any affiliated entity, and (b) withdrawing its consent and approval for the conduct of special assessment proceedings by any other program administrators under the other Programs. The City's withdrawal from any Program shall not affect the validity of any voluntary assessment contract entered into prior to the date of such withdrawal or entered into after the date of such withdrawal so long as the application for such voluntary assessment contract was submitted to and approved by the Authority prior to the date of the City's notice of withdrawal. SECTION 7. 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 Financial Advisor of the Authority at: California Municipal Finance Authority, 2111 Palomar Airport Road, Suite 320, Carlsbad, California 92011, Attn: Travis Cooper. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE TERRITORY OF THE CITY IN THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY (CMFA) OPEN PACE PROGRAMS, AUTHORIZING CMFA TO ACCEPT APPLICATIONS FROM PROPERTY OWNERS, CONDUCT CONTRACTUAL ASSESSMENT PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS WITHIN THE TERRITORY OF THE CITY, AND AUTHORIZING RELATED ACTIONS I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the P day of October 2018, by the following vote, to wit: Council Members: AYES MARQUEZ )I BARRIOS < VALDIVIA X SHORETT m NICKEL X RICHARD X MULVIHILL 5 NAYS ABSTAIN ABSENT GeorgeanAianna, CM City Clerk The foregoing Resolution is hereby approved this P day of October 201 Approved as to form: Gary D. Saenz, City Attorney W -ARA wlllffrmm� vim 4 R. Carey Dav' , Mayor City of San emardino Exhibit A-1 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND BLUEFLAME PACE SERVICES LLC This Indemnification Agreement (the "Agreement") is entered into this 3rd day of September, 2018, BY AND BETWEEN: WN 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 "CITY"); B1ueFlame PACE Services LLC, a Delaware LLC formed under the laws of the State of Delaware (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 Municipal Finance Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and following) (the "Act") and the Joint Power Agreement entered into on July 1, 1993, as amended from time to time (the "Authority JPA"); 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 WHEREAS, the Mayor and City Council, by resolution, have consented to the inclusion in the Authority PACE Program of all of the properties in the jurisdictional boundaries of the 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, subject 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 B1ueFlame PACE Services LLC Page 1 of 7 Exbibit A-1 WHEREAS, 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 connection with the Administrator's administration of the Authority PACE Program in the City of San Bernardino. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. INCORPORATION OF RECITALS. The recitals set forth above are, by this reference, incorporated into and deemed a part of this Agreement. 2. INDEMNIFICATION. 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 including 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. 3. INSURANCE. 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: (a) Comprehensive general liability, including premises -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 B1ueFlame PACE Services LLC Page 2 of 7 Exhibit A-1 (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 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 N_on-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. 4. NON-DISCREVIINATION. 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. 5. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. ADMINISTRATOR warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of ADMINISTRATOR to practice its business or profession. INDEMNIFICATION AGREEMENT BETWEEN CITY AND B1ueFlame PACE Services LLC Page 3 of 7 Exhibit A-1 6. NOTICES. 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. TO THE CITY: Office of the City Manler 300 North "D" Street, 6 Floor San Bernardino, CA 92418 TO THE ADMINISTRATOR: B1ueFlame PACE Services LLC 6814 Embarcadero Ln, Carlsbad, CA 92011 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. 7. ATTORNEYS' FEES 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 Bernardino. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 9. GOVERNING LAW. 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. 10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement and their respective heirs, representatives, successors, and assigns. INDEMNIFICATION AGREEMENT BETWEEN CITY AND B1ueFlame PACE Services LLC Page 4 of 7 Exhibit A-1 11. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 12. SEVERABILITY. 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. 13. REMEDIES; WAIVER. 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 provision 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. 14. ENTIRE AGREEMENT. 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. 15. COUNTERPARTS. 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 ".pdf ' signature page were an original thereof. INDEMNIFICATION AGREEMENT BETWEEN CITY AND B1ueFlame PACE Services LLC Page 5 of 7 Exhibit A-1 16. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 17. CORPORATE AUTHORITY. 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. 18. COMPLIANCE WITH LAW ADMINISTRATOR agrees to abide by all federal, state, and local laws, ordinances and regulations. 19. CONSTRUCTION. 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 B1ueFlame PACE Services LLC Page 6 of 7 Exhibit g-1 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND [Pace Program Administrator] IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: , 20 [Pace Program Administrator] Its: Dated , 20 CITY OF SAN BERNARDINO Lo Andrea M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney Lo INDEMNIFICATION AGREEMENT BETWEEN CITY AND B1ueFlame PACE Services LLC Page 7 of 7 Exhibit A-2 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ENERGY EFFICIENT EQUITY, INC. This Indemnification Agreement (the "Agreement") is entered into this 3rd day of September, 2018, BY AND BETWEEN: AND, 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 "CITY"); Energy Efficient Equity, Inc., a Delaware Corporation formed under the laws of the State of Delaware (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 Municipal Finance Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and following) (the "Act") and the Joint Power Agreement entered into on July 1, 1993, as amended from time to time (the "Authority JPA"); 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 WHEREAS, the Mayor and City Council, by resolution, have consented to the inclusion in the Authority PACE Program of all of the properties in the jurisdictional boundaries of the 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, subject 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 ENERGY EFFICIENT EQUITY, INC. Page 1 of 7 Exhibit A-2 WHEREAS, 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 connection with the Administrator's administration of the Authority PACE Program in the City of San Bernardino. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. INCORPORATION OF RECITALS. The recitals set forth above are, by this reference, incorporated into and deemed a part of this Agreement. 2. INDEMNIFICATION. 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 including 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. 3. INSURANCE. 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: (a) Comprehensive general liability, including premises -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 ENERGY EFFICIENT EQUITY, INC. Page 2 of 7 Exhibit A-2 (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 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. 4. NON-DISCRIMINATION. 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. 5. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. ADMINISTRATOR warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of ADMINISTRATOR to practice its business or profession. INDEMNIFICATION AGREEMENT BETWEEN CITY AND ENERGY EFFICIENT EQUITY, INC. Page 3 of 7 Ex bit A-2 6. NOTICES. 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. TO THE CITY: TO THE ADIVIINISTRATOR: Office of the City Manler Energy Efficient Equity, Inc. 300 North "D" Street, 6 Floor 12100 Wilshire Blvd. San Bernardino, CA 92418 Suite 800 Los Angeles, CA 90025 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. 7. ATTORNEYS' FEES 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 Bernardino. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 9. GOVERNING LAW. 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. 10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement and their respective heirs, representatives, successors, and assigns. INDEMNIFICATION AGREEMENT BETWEEN CITY AND ENERGY EFFICIENT EQUITY, INC. Page 4 or 7 Exhibit A-2 11. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 12. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such detennination 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. 13. REMEDIES; WAIVER 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 provision 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. 14. ENTIRE AGREEMENT. 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. 15. COUNTERPARTS. 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 ".pdf' signature page were an original thereof. INDEMNIFICATION AGREEMENT BETWEEN CITY AND ENERGY EFFICIENT EQUITY, INC. Page 5 of 7 Exhibit A-2 : ur 011 71 XLW No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 17. CORPORATE AUTHORITY. 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. 18. COMPLIANCE WITH LAW ADMINISTRATOR agrees to abide by all federal, state, and local laws, ordinances and regulations. 19. CONSTRUCTION. 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 ENERGY EFFICIENT EQUITY, INC. Page 6 of 7 Exhibit A-2 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND [Pace Program Administrator] IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: 720 1 Pace Program Administrator LE Its: Dated .20 CITY OF SAN BERNARDINO LIM Andrea M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney INDEMNIFICATION AGREEMENT BETWEEN CITY AND ENERGY EFFICIENT EQUITY, INC. Page 7 of 7 Exhibit A-3 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ONPACE ENERGY SOLLUTIONS, LLC This Indemnification Agreement (the "Agreement") is entered into this 3rd day of September, 2018, BY AND BETWEEN: W� . 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 "CITY"); OnPACE Energy Solutions, LLC, a Delaware LLC formed under the laws of the State of Delaware (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 Municipal Finance Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and following) (the "Act") and the Joint Power Agreement entered into on July 1, 1993, as amended from time to time (the "Authority JPA"); 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 WHEREAS, the Mayor and City Council, by resolution, have consented to the inclusion in the Authority PACE Program of all of the properties in the jurisdictional boundaries of the 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, subject 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 ONPACE ENERGY SOLUTIONS, LLC Page 1 of 7 Exhibit A-3 WHEREAS, 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 connection with the Administrator's administration of the Authority PACE Program in the City of San Bernardino. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. INCORPORATION OF RECITALS. The recitals set forth above are, by this reference, incorporated into and deemed a part of this Agreement. 2. INDEMNIFICATION. 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 including 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. 3. INSURANCE. 5.1 Minimum Scone and Limits of Insurance. ADMINISTRATOR shall obtain and maintain during the life of this Agreement all of the following insurance coverage: (a) Comprehensive general liability, including premises -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 ONPACE ENERGY SOLUTIONS, LLC Page 2 of 7 Exhibit A-3 (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 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. 4. NON-DISCREM[INATION. 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. 5. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. ADMINISTRATOR warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of ADMINISTRATOR to practice its business or profession. INDEMNIFICATION AGREEMENT BETWEEN CITY AND ONPACE ENERGY SOLUTIONS, LLC Page 3 of 7 Exhibit A-3 6. NOTICES. 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. TO THE CITY: Office of the City Manajer 300 North "D" Street, 6 Floor San Bernardino, CA 92418 TO THE ADMINISTRATOR: OnPACE Energy Solutions, LLC P.O. Box 230850 Encinitas, CA 92023 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. 7. ATTORNEYS' FEES 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 Bernardino. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 9. GOVERNING LAW. 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. 10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement and their respective heirs, representatives, successors, and assigns. INDEMNIFICATION AGREEMENT BETWEEN CITY AND ONPACE ENERGY SOLUTIONS, LLC Page 4 of 7 Exhibit A-3 11. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 12. SEVERABILITY. 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. 13. REMEDIES; WAIVER. 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 provision 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. 14. ENTIRE AGREEMENT. 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. 15. COUNTERPARTS. 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 ".pdf' signature page were an original thereof. INDEMNIFICATION AGREEMENT BETWEEN CITY AND ONPACE ENERGY SOLUTIONS, LLC Page 5 of 7 Exhibit A-3 16. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 17. CORPORATE AUTHORITY. 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. 18. COMPLIANCE WITH LAW ADIVIINISTRATOR agrees to abide by all federal, state, and local laws, ordinances and regulations. 19. CONSTRUCTION. 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 ONPACE ENERGY SOLUTIONS, LLC Page 6 of 7 Exhibit A-3 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND [Pace Program Administrator] IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: 20 [Pace Program Administrator] Its: Dated . 20 CITY OF SAN BERNARDINO Lo Andrea M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney Lo INDEMNIFICATION AGREEMENT BETWEEN CITY AND ONPACE ENERGY SOLUTIONS, LLC Page 7 of 7 Exhibit A4 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PACE EQUITY, LLC This Indemnification Agreement (the "Agreement") is entered into this 3rd day of September, 2018, BY AND BETWEEN: .K p 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 "CITY"); PACE Equity, LLC, a Wisconsin LLC formed under the laws of the State of Wisconsin (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 Municipal Finance Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and following) (the "Act") and the Joint Power Agreement entered into on July 1, 1993, as amended from time to time (the "Authority JPA"); 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 WHEREAS, the Mayor and City Council, by resolution, have consented to the inclusion in the Authority PACE Program of all of the properties in the jurisdictional boundaries of the 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, subject 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 EQUITY, LLC Page 1 of 7 Exhibit A4 WHEREAS, 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 connection with the Administrator's administration of the Authority PACE Program in the City of San Bernardino. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. INCORPORATION OF RECITALS. The recitals set forth above are, by this reference, incorporated into and deemed a part of this Agreement. 2. INDEMNIFICATION. 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 including 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. 3. INSURANCE. 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: (a) Comprehensive general liability, including premises -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 EQUITY, LLC Page 2 of 7 Exhibit A-4 (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 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 -limier. 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. 4. NON-DISCRIMINATION. 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. 5. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. ADMINISTRATOR warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of ADMINISTRATOR to practice its business or profession. INDEMNIFICATION AGREEMENT BETWEEN CITY AND PACE EQUITY, LLC Page 3 of 7 Exhibit A4 6. NOTICES. 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. TO THE CITY: Office of the City Manler 300 North "D" Street, 6 Floor San Bernardino, CA 92418 TO THE ADMINISTRATOR: PACE Equity, LLC 731 North Jackson Street Suite 420 Milwaukee, WI 53202 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. 7. ATTORNEYS' FEES 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 Bernardino. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 9. GOVERNING LAW. 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. 10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement and their respective heirs, representatives, successors, and assigns. INDEMNIFICATION AGREEMENT BETWEEN CITY AND PACE EQUITY, LLC Page 4 of 7 Exhibit A-4 11. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 12. SEVERABILITY. 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. 13. REMEDIES; WAIVER 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 provision 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. 14. ENTIRE AGREEMENT. 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. 15. COUNTERPARTS. 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 ".pdf' signature page were an original thereof. INDEMNIFICATION AGREEMENT BETWEEN CITY AND PACE EQUITY, LLC Page 5 of 7 Exhibit A4 16. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 17. CORPORATE AUTHORITY. 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. 18. COMPLIANCE WITH LAW ADMINISTRATOR agrees to abide by all federal, state, and local laws, ordinances and regulations. 19. CONSTRUCTION. 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 EQUITY, LLC Page 6 of 7 Exhibit A-4 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND [Pace Program Administrator] IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: ?0 [Pace Program Administrator] Its: Dated 20 CITY OF SAN BERNARDINO Andrea M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attomey LIM INDEMNIFICATION AGREEMENT BETWEEN CITY AND PACE EQUITY, LLC Page 7 of 7 Fshibit A-5 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAMAS CAPITAL, LLC This Indemnification Agreement (the "Agreement") is entered into this 3rd day of September, 2018, BY AND BETWEEN: AND, 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 "CITY"); Samas Capital LLC, a CA LLC formed under the laws of the State of CA (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 Municipal Finance Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and following) (the "Act") and the Joint Power Agreement entered into on July 1, 1993, as amended from time to time (the "Authority JPA"); 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 WHEREAS, the Mayor and City Council, by resolution, have consented to the inclusion in the Authority PACE Program of all of the properties in the jurisdictional boundaries of the 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, subject 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 SAMAS CAPITAL LLC Page 1 of 7 Exhibit A-5 WHEREAS, 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 connection with the Administrator's administration of the Authority PACE Program in the City of San Bernardino. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. INCORPORATION OF RECITALS. The recitals set forth above are, by this reference, incorporated into and deemed a part of this Agreement. 2. INDEMNIFICATION. 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 including 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. 3. INSURANCE. 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: (a) Comprehensive general liability, including premises -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 SAMAS CAPITAL LLC Page 2 of 7 Exhibit A-5 (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 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 -limier. 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. 4. NON-DISCRMINATION. 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. 5. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. ADMINISTRATOR warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of ADMINISTRATOR to practice its business or profession. INDEMNIFICATION AGREEMENT BETWEEN CITY AND SAMAS CAPITAL LLC Page 3 of 7 Exhibit A-5 6. NOTICES. 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. TO THE CITY: Office of the City Manajer 300 North "D" Street, 6 Floor San Bernardino, CA 92418 TO THE ADMINISTRATOR: Sainas Capital LLC 32 Executive Park Suite 105 Irvine, CA 92614 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. 7. ATTORNEYS' FEES 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 Bernardino. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 9. GOVERNING LAW. 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. 10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement and their respective heirs, representatives, successors, and assigns. INDEMNIFICATION AGREEMENT BETWEEN CITY AND SAMAS CAPITAL LLC Page 4 of 7 Exhibit A-5 11. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 12. SEVERABILITY. 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. 13. REMEDIES; WAIVER. 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 provision 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. 14. ENTIRE AGREEMENT. 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. 15. COUNTERPARTS. 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 ".pdf' signature page were an original thereof. INDEMNIFICATION AGREEMENT BETWEEN CITY AND SAMAS CAPITAL LLC Page 5 of 7 Exhibit A-5 16. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 17. CORPORATE AUTHORITY. 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. 18. COMPLIANCE WITH LAW ADMINISTRATOR agrees to abide by all federal, state, and local laws, ordinances and regulations. 19. CONSTRUCTION. 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 SAMAS CAPITAL LLC Page 6 of 7 Exhibit A-5 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND [Pace Program Administrator] IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: , 20 [Pace Program Administrator] Its: Dated , 20 CITY OF SAN BERNARDINO Andrea. M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney Un INDEMNIFICATION AGREEMENT BETWEEN CITY AND SAMAS CAPITAL LLC Page 7 of 7 Exhibit A-6 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND STRUCTURED FINANCE ASSOCIATES, LLC This Indemnification Agreement (the "Agreement") is entered into this 3rd day of September, 2018, 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 "CITY"); Structured Finance Associates, LLC, a California LLC formed under the laws of the State of California (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 Municipal Finance Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and following) (the "Act") and the Joint Power Agreement entered into on July 1, 1993, as amended from time to time (the "Authority JPA"); 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 WHEREAS, the Mayor and City Council, by resolution, have consented to the inclusion in the Authority PACE Program of all of the properties in the jurisdictional boundaries of the 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, subject 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 STRUCTURED FINANCE ASSOCIATES, LLC Page 1 of 7 Exhibit A-6 WHEREAS, 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 connection with the Administrator's administration of the Authority PACE Program in the City of San Bernardino. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. INCORPORATION OF RECITALS. The recitals set forth above are, by this reference, incorporated into and deemed a part of this Agreement. 2. INDEMNIFICATION. 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 including 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. 3. INSURANCE. 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: (a) Comprehensive general liability, including premises -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 STRUCTURED FINANCE ASSOCIATES, LLC Page 2 of 7 Exhibit A-6 (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 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. 4. NON-DISCRIMINATION. 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. 5. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. ADMINISTRATOR warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of ADMINISTRATOR to practice its business or profession. INDEMNIFICATION AGREEMENT BETWEEN CITY AND STRUCTURED FINANCE ASSOCIATES, LLC Page 3 of 7 Exhibit A-6 6. NOTICES. 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. TO THE CITY: Office of the City Manler 300 North "D" Street, 6 Floor San Bernardino, CA 92418 TO THE ADMINISTRATOR: Structured Finance Associates, LLC 1605 San Pablo Drive San Marcos, CA 92078 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. 7. ATTORNEYS' FEES 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 Bernardino. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 9. GOVERNING LAW. 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. 10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement and their respective heirs, representatives, successors, and assigns. INDEMNIFICATION AGREEMENT BETWEEN CITY AND STRUCTURED FINANCE ASSOCIATES, LLC Page 4 of 7 Exhibit A-6 11. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 12. SEVERABILITY. 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 o l' this Agreement shall remain in full force and effect. 13. REMEDIES; WAIVER. 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 provision 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. 14. ENTIRE AGREEMENT. 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. 15. COUNTERPARTS. 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 ".pdf' signature page were an original thereof. INDEMNIFICATION AGREEMENT BETWEEN CITY AND STRUCTURED FINANCE ASSOCIATES, LLC Page 5 of 7 Exhibit A-6 16. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 17. CORPORATE AUTHORITY. 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. 18. COMPLIANCE WITH LAW ADMINISTRATOR agrees to abide by all federal, state, and local laws, ordinances and regulations. 19. CONSTRUCTION. 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 STRUCTURED FINANCE ASSOCIATES, LLC Page 6 of 7 Exhibit A-6 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND [Pace Program Administrator] IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: 20 [Pace Program Administrator] LIM Its: Dated , 20 CITY OF SAN BERNARDINO Andrea M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney INDEMNIFICATION AGREEMENT BETWEEN CITY AND STRUCTURED FINANCE ASSOCIATES, LLC Page 7 of 7 Exhibit A-7 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TWAIN COMMMNITY PARTNERS H LLC This Indemnification Agreement (the "Agreement") is entered into this 3rd day of September, 2018, BY AND BETWEEN: AND, 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 "CITY"); Twain Community Partners II LLC, a Missouri LLC formed under the laws of the State of Missouri (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 Municipal Finance Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and following) (the "Act") and the Joint Power Agreement entered into on July 1, 1993, as amended from time to time (the "Authority JPA"); 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 WHEREAS, the Mayor and City Council, by resolution, have consented to the inclusion in the Authority PACE Program of all of the properties in the jurisdictional boundaries of the 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, subject 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 TWAIN COMMUNITY PARTNERS II LLC Page 1 of 7 Exhibit A-7 WHEREAS, 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 connection with the Administrator's administration of the Authority PACE Program in the City of San Bernardino. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. INCORPORATION OF RECITALS. The recitals set forth above are, by this reference, incorporated into and deemed a part of this Agreement. 2. INDEMNIFICATION. The ADMINISTRATOR agrees to defend, indemnify, and hold harmless the City, its officers, elected and appointed officials, employees, agents, and volunteers (each, an "Indemnified Parry") 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 including 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. 3. INSURANCE. 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: (a) Comprehensive general liability, including premises -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 TWAIN COMMUNITY PARTNERS II LLC Page 2 of 7 Exhibit A-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 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-limitin . 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. 4. NON-DISCRIMINATION. 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. 5. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. ADMINISTRATOR warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of ADMINISTRATOR to practice its business or profession. INDEMNIFICATION AGREEMENT BETWEEN CITY AND TWAIN COMMUNITY PARTNERS H LLC Page 3 of 7 Exhibit A-7 6. NOTICES. 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 Manager 300 North "D" Street, 6 Floor San Bernardino, CA 92418 TO THE ADMINISTRATOR: Twain Community Partners H LLC 1232 Washington Ave, Suite 200 St. Louis MO 63101 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. 7. ATTORNEYS' FEES 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 Bernardino. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 9. GOVERNING LAW. 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. 10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement and their respective heirs, representatives, successors, and assigns. INDEMNIFICATION AGREEMENT BETWEEN CITY AND TWAIN COMMUNITY PARTNERS H LLC Page 4 of 7 Exhibit A-7 11. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 12. SEVERABILITY. 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. 13. REMEDIES; WAIVER. 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 provision 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. 14. ENTIRE AGREEMENT. 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. 15. COUNTERPARTS. 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 ".pdf' signature page were an original thereof. INDEMNIFICATION AGREEMENT BETWEEN CITY AND TWAIN COMMUNITY PARTNERS II LLC Page 5 of 7 Exhibit A-7 16. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 17. CORPORATE AUTHORITY. 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. 18. COMPLIANCE WITH LAW ADMINISTRATOR agrees to abide by all federal, state, and local laws, ordinances and regulations. 19. CONSTRUCTION. 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 TWAIN COMMUNITY PARTNERS H LLC Page 6 of 7 Exhibit A-7 INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND [Pace Program Administrator] IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: , 20 [Pace Program Administrator] [3y: Its: Dated .20 CITY OF SAN BERNARDINO Andrea M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney Un INDEMNI11CATION AGREEMENT BETWEEN CITY AND TWAIN COMMUNITY PARTNERS II LLC Page 7 of 7