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HomeMy WebLinkAbout2016 CON California Statewide Communities Development Authority (CSCDA) Various Administrators - Open PACE ProgramsNOTE TO FILE 07-15-2019 IN THE MATTER OF: The 2016 Cleanfund Commercial Pace Capital dba Clean Fund Agreement. Please note the following: NO FULLY EXECUTED ORIGINAL AGREEMENT WAS FILED WITH THE OFFICE OF THE CITY CLERK. ORIGINATING DEPARTMENT: NTF CDC X Housing & Economic Development City Attorney Human Resources City Manager MIS Community Svcs. Planning Engineering Police Finance Public Works Fire NOTE TO FILE 07-15-2019 IN THE MATTER OF: The 2016 Renewable Funding Agreement. Please note the following: NO FULLY EXECUTED ORIGINAL AGREEMENT WAS FILED WITH THE OFFICE OF THE CITY CLERK. ORIGINATING DEPARTMENT: NTF CDC X Housing & Economic Development City Attorney Human Resources City Manager MIS Community Svcs. Planning Engineering _ Police Finance Public Works Fire INDEMNIFICATION AND INSURANCE AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND PACE FUNDING GROUP, LLC d.b.a. "PACE Funding" This Indemnification and Insurance Agreement ("Agreement") is entered into by and between the City of National City, a municipal corporation ("City") and PACE Funding Group, LLC, a California limited liability company, d.b.a. "PACE Funding" ("Administrator"), the administrator of the California Statewide Communities Development Authority's PACE program "CSCDA Open PACE Program" or "Program". RECITALS WHEREAS, the California Statewide Communities Development Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the California Government Code (Section 6500 et. seq.) and the Joint Exercise of Powers Agreement entered into on June 1, 1988, as amended from time to time ("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, seismic strengthening improvements, electric vehicle charging infrastructure and such other infrastructure as may be authorized by law from time to time (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 Program; and WHEREAS, the City Council of the City of National City has approved the City joining the Authority, has consented to the inclusion in the CSCDA Open PACE Program of all of the properties in the jurisdictional boundaries of the City and to the acquisition, construction, and installation of the Improvements, upon the request by and voluntary agreement of owners of such properties, in compliance with the laws, rules and regulations applicable to the Program; and WHEREAS, the Authority and the Administrator have entered into a Third Party Administration Agreement, dated September 10, 2015 , in which the Administrator agrees to administer the CSCDA Open PACE Program; and WHEREAS, the Administrator agrees to indemnify the City and to provide insurance in connection with the administration of the CSCDA Open PACE Program in the City of National City. NOW, THERFORE, in consideration of the Recitals above and of the City's agreement to join the Authority and to participate in the CSCDA Open PACE Program, the parties agree as follows: 1. Agreement to Indemnify. The Administrator agrees to defend, indemnify, and hold harmless the City, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all claims, damages, losses, expenses, fines, penalties, judgments, demands, and defense costs (including, without limitation, actual, direct, out-of- pocket costs and expenses, and 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 CSCDA Open PACE Program, except such loss or damage which was caused by the sole negligence or willful misconduct of the City. The Administrator will conduct all defenses at its sole cost and expense, and the City shall reasonably approve selection of the Administrator's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies of the Administrator, its affiliates or any other parties are applicable thereto. 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. 2. Insurance. The Administrator agrees, at no cost or expense to the City, at all times during the administration of the CSCDA Open PACE Program, to maintain the insurance coverage set forth in Exhibit "A" to this Agreement. 3. Amendment/Interpretation of this Agreement. This Agreement, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both parties hereto. This Agreement shall not be interpreted for or against any party by reason of the fact that such party may have drafted this Agreement or any of its provisions. 4. Section Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. 5. Waiver. No waiver of any of the provisions of this Agreement shall be binding unless in the form of a writing signed by the party against whom enforcement is sought, and no such waiver shall operate as a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no Indemnification Insurance Agreement 2 City of National City and 2016 Pace Funding Group, LLC failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof. 6. Severability and Governing Law. If any provision or portion thereof of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California applicable to contracts made and to be performed in California. 7. Notices. All notices, demands and other communications required or permitted hereunder shall be made in writing and shall be deemed to have been duly given if delivered by hand, against receipt, or mailed certified or registered mail and addressed as follows: If to the Administrator: If to the City: obey+ Giles rot M embe,r Race, Fw c ►vis , Lt-G "1 SD U n ► eirs Ave.. , Sle 24O L.os 610 vs, CA g5o32_ Alfredo Ybarra Director, Housing, Grants, and Asset Management City of National City 1243 National City Boulevard National City, CA 91950-4301 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, which together shall constitute the same instrument. 9. Effective Date. This Agreement will be effective as of the date of the signature of City's representative as indicated below in the City's signature block. Indemnification Insurance Agreement 3 City of National City and 2016 Pace Funding Group, LLC IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date below. CITY CITY OF NATIONAL CITY By: Date: on Morrison, Mayor APPROVED AS TO FORM: Nicole Pedone Acting City Attorney ADMINISTRATOR PACE FUNDING GROUP, LLC d.b.a. "PACE Funding" By: Za,e- Name Title Date: F/P, /4 Indemnification Insurance Agreement 4 City of National City and 2016 Pace Funding Group, LLC INSURANCE A. Minimum Scope of Insurance Coverage shall be at least as broad as: EXHIBIT A 1. The coverage provided by Insurance Services Office Commercial General Liability coverage ("occurrence") Form Number CG 0001; and 2. The coverage provided by Insurance Services Office Form Number CA 0001 covering Automobile Liability. Coverage shall be included for all owned, non - owned and hired automobiles; and 3. Workers' Compensation insurance as required by the California Labor Code and Employers Liability insurance; and 4. Professional Liability Errors & Omissions for all professional services. There shall be no endorsement reducing the scope of coverage required above unless approved by the National City Risk Manager. B. Minimum Limits of Insurance Administrator shall maintain limits no less than: 1. Commercial General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit; and 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage; and 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the California Labor Code and Employers Liability limits of $1,000,000 per accident; and 4. Professional Liability Errors & Omissions $1,000,000 per occurrence/ aggregate limit. C. Deductibles and Self -Insured Retentions Any deductibles or self -insured retentions must be declared to, and approved by the National City Risk Manager. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City, its officers, employees, agents, contractors Indemnification Insurance Agreement 5 City of National City and 2016 Pace Funding Group, LLC and volunteers; or Administrator shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by the National City Risk Manager. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. Commercial General Liability and Automobile Liability Coverages. a. National City, its officers, employees, agents, contractors, and volunteers are to be covered as additional insureds as respects: Liability arising out of activities performed by or on behalf of Administrator; products and completed operations of Administrator; premises owned, leased, or used by Administrator; and automobiles owned, leased, hired or borrowed by Administrator. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, employees, agents, contractors, and volunteers. b. Administrator's insurance coverage shall be primary insurance as respects the City, its officers, employees, agents, contractors, and volunteers. Any insurance or self-insurance maintained by City, its officers, employees, agents, contractors, or volunteers shall be excess of Administrator's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies by Administrator shall not affect coverage provided to the City, its officers, employees, agents, contractors, or volunteers. d. Coverage shall state that Administrator's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. e. Coverage shall contain a waiver of subrogation in favor of the City, its officers, employees, agents, contractors, and volunteers. 2. Workers' Compensation and Employers' Liability. Coverage shall contain waiver of subrogation in favor of National City, its officers, employees, agents, contractors, and volunteers. 3. All Coverages Each insurance policy required by this AGREEMENT shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in limits except after thirty (30) days' prior written notice has been given to the City, except that ten (10) days' prior written notice shall apply in the event of cancellation for nonpayment of premium. Indemnification Insurance Agreement 6 City of National City and 2016 Pace Funding Group, LLC E. Acceptability of Insurers. Insurance is to be placed with insurers acceptable to the National City Risk Manager. F. Verification of Coverage. Administrator shall furnish the City with certificates of insurance and with original endorsements affecting coverage required by this AGREEMENT. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Proof of insurance shall be either emailed in pdf format to: eamaya@nationalcityca.gov or mailed to the following postal address or any subsequent address as may be directed in writing by the National City Risk Manager: City of National City Attn: Risk Manager 1243 National City Boulevard National City, CA 91950-4301 G. Subcontractors Administrator shall include all subcontractors as insureds under its policies or shall obtain separate certificates and endorsements for each subcontractor. Indemnification Insurance Agreement 7 City of National City and 2016 Pace Funding Group, LLC INDEMNIFICATION AND INSURANCE AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND SPRUCE PACE, LLC This Indemnification and Insurance Agreement ("Agreement") is entered into by and between the City of National City, a municipal corporation ("City") and Spruce PACE, LLC, a Delaware limited liability company, ("Administrator"), an administrator of the California Statewide Communities Development Authority's PACE program "CSCDA Open PACE Program" or "Program". RECITALS WHEREAS, the California Statewide Communities Development Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the California Government Code (Section 6500 et. seq) and the Joint Exercise of Powers Agreement entered into on June 1, 1988, as amended from time to time ("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, seismic strengthening improvements. electric vehicle charging infrastructure and such other infrastructure as may be authorized by law from time to time (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 Program; and WHEREAS, the City Council of the City of National City has approved the City joining the Authority, has consented to the inclusion in the CSCDA Open PACE Program of all of the properties in the jurisdictional boundaries of the City and to the acquisition, construction, and installation of the Improvements, upon the request by and voluntary agreement of owners of such properties, in compliance with the laws, rules and regulations applicable to the Program; and WHEREAS, the Authority and the Administrator have entered into a Professional Services Agreement, dated August 8, 2016 , in which the Administrator agrees to administer the CSCDA Open PACE Program; and WHEREAS, the Administrator agrees to indemnify the City and to provide insurance in connection with the administration of the CSCDA Open PACE Program in the City of National City. NOW, THERFORE, in consideration of the Recitals above and of the City's agreement to join the Authority and to participate in the CSCDA Open PACE Program, the parties agree as follows: 1. Agreement to Indemnify. The Administrator agrees to defend, indemnify, and hold harmless the City, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all claims, damages, losses, expenses, fines, penalties, judgments, demands, and defense costs (including, without limitation, actual, direct, out-of- pocket costs and expenses, and 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 CSCDA Open PACE Program, except such loss or damage which was caused by the sole negligence or willful misconduct of the City. The Administrator will conduct all defenses at its sole cost and expense, and the City shall reasonably approve selection of the Administrator's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies of the Administrator, its affiliates or any other parties are applicable thereto. 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. 2. Insurance. The Administrator agrees, at no cost or expense to the City, at all times during the administration of the CSCDA Open PACE Program, to maintain the insurance coverage set forth in Exhibit "A" to this Agreement. 3. Amendment/Interpretation of this Agreement. This Agreement, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both parties hereto. This Agreement shall not be interpreted for or against any party by reason of the fact that such party may have drafted this Agreement or any of its provisions. 4 . Section Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. 5. Waiver. No waiver of any of the provisions of this Agreement shall be binding unless in the form of a writing signed by the party against whom enforcement is sought, and no such waiver shall operate as a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no Indemnification and Insurance 2 City of National Cty and Agreement Spruce PACE. LLC failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof. 6. Severability and Governing Law. If any provision or portion thereof of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California applicable to contracts made and to be performed in California. 7. Notices. All notices, demands and other communications required or pelmitted hereunder shall be made in writing and shall be deemed to have been duly given if delivered by hand, against receipt, or mailed certified or registered mail and addressed as follows: If to the Administrator: If to the City: Spruce PACE, LLC Attn: Legal Department 50 Osgood Place, Suite 400 San Francisco, CA 94133 Alfredo Ybarra Director, Housing, Grants, and Asset Management City of National City 1243 National City Boulevard National City, CA 91950-4301 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, which together shall constitute the same instrument. 9. Effective Date. This Agreement will be effective as of the date of the signature of City's representative as indicated below in the City's signature block. Indemnification and Insurance • 3 City of National C:ty and Agreement Spruce PACE, EEC IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date below. CITY CITY OF TIONAL CITY By: Ron Morrison Mayor �/t3 Date: APPROVED AS TO FORM: ARIL P. MORRIS-JONES City By: Rob€rto M. Contreras Deputy City Attorney ADMINISTRATOR SPRUCE PACE, LLC By: Name: Stephanie Felix Title: Vice President, Underwriting Date: 6 g 124 )� Indemnification and Insurance 4 City of National Cty and Agreement Spruce PACE. LLC EXHIBIT A INSURANCE A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. The coverage provided by Insurance Services Office Commercial General Liability coverage ("occurrence") Form Number CG 0001; and 2. The coverage provided by Insurance Services Office Form Number CA 0001 covering Automobile Liability. Coverage shall be included for all owned, non - owned and hired automobiles; and 3. Workers' Compensation insurance as required by the California Labor Code and Employers Liability insurance; and 4. Professional Liability Errors & Omissions for all professional services. There shall be no endorsement reducing the scope of coverage required above unless approved by the National City Risk Manager. B. Minimum Limits of Insurance Administrator shall maintain limits no less than: 1. Commercial General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit; and 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage; and 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the California Labor Code and Employers Liability limits of $1,000,000 per accident; and 4. Professional Liability Errors & Omissions $1,000,000 per occurrence/ aggregate limit. C. Deductibles and Self -Insured Retentions Any deductibles or self -insured retentions must be declared to, and approved by the National City Risk Manager. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City, its officers, employees, agents, contractors Indemnification and Insurance 5 C'ity of National Cty and Agreement Spruce PACE. LI..0 and volunteers; or Administrator shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by the National City Risk Manager. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. Commercial General Liability and Automobile Liability Coverages. a. National City, its officers, employees, agents, contractors, and volunteers are to be covered as additional insureds as respects: Liability arising out of activities performed by or on behalf of Administrator; products and completed operations of Administrator; premises owned, leased, or used by Administrator; and automobiles owned, leased , hired or borrowed by Administrator. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, employees, agents, contractors, and volunteers. b. Administrator's insurance coverage shall be primary insurance as respects the City, its officers, employees, agents, contractors, and volunteers. Any insurance or self-insurance maintained by City, its officers, employees, agents, contractors, or volunteers shall be excess of Administrator's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies by Administrator shall not affect coverage provided to the City, its officers, employees, agents, contractors, or volunteers. d. Coverage shall state that Administrator's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. e. Coverage shall contain a waiver of subrogation in favor of the City, its officers, employees, agents, contractors, and volunteers. 2: Workers' Compensation and Employers' Liability. Coverage shall contain waiver of subrogation in favor of National City, its officers, employees, agents, contractors, and volunteers. 3. All Coverages Each insurance policy required by this AGREEMENT shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in limits except after thirty (30) days' prior written notice has been given to the City, except that ten (10) days' prior written notice shall apply in the event of cancellation for nonpayment of premium. Indemnification and Insurance 6 City of National Cty and Agreement Spruce PACE. EEC E. Acceptability ofInsurers. Insurance is to be placed with insurers acceptable to the National City Risk Manager. F. Verification of Coverage. Administrator shall furnish the City with certificates of insurance and with original endorsements affecting coverage required by this AGREEMENT. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Proof of insurance shall be either emailed in pdf format to: eamayarci?nationalcitvca.gov or mailed to the following postal address or any subsequent address as may be directed in writing by the National City Risk Manager: - City of National City Attn: Risk Manager 1243 National City Boulevard National City, CA 91950-4301 G. ,Subcontractors Administrator shall include all subcontractors as insureds under its policies or shall obtain separate certificates and endorsements for each subcontractor. Indemnification and Insurance Agreement 7 City of National City and 2018 Spruce PACE,LLC INDEMNIFICATION AND INSURANCE AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND COUNTERPOINTE ENERGY SOLUTIONS (CA) LLC d.b.a. "AllianceNRG Program" This Indemnification and Insurance Agreement ("Agreement") is entered into by and between the City of National City, a municipal corporation ("City") and CounterPointe Energy Solutions (CA) LLC, a Delaware limited liability company, d.b.a. "AllianceNRG Program" ("Administrator"), an administrator of the California Statewide Communities Development Authority's PACE program ("CSCDA Open PACE Program" or "Program"). RECITALS WHEREAS, the California Statewide Communities Development Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the California Government Code (Section 6500 et. seq.) and the Joint Exercise of Powers Agreement entered into on June 1, 1988, as amended from time to time ("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, seismic strengthening improvements, electric vehicle charging infrastructure and such other infrastructure as may be authorized by law from time to time (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 Program; and WHEREAS, the City Council of the City of National City has approved the City joining the Authority, has consented to the inclusion in the CSCDA Open PACE Program of all of the properties in the jurisdictional boundaries of the City and to the acquisition, construction, and installation of the Improvements, upon the request by and voluntary agreement of owners of such properties, in compliance with the laws, rules and regulations applicable to the Program; and WHEREAS, the Authority and the Administrator have entered into a Program Administration Agreement, dated May 7, 2015, as amended, in which the Administrator agrees to administer the CSCDA Open PACE Program; and WHEREAS, the Administrator agrees to indemnify the City and to provide insurance in connection with its administration of the CSCDA Open PACE Program in the City of National City. NOW, THERFORE, in consideration of the Recitals above and of the City's agreement to join the Authority and to participate in the CSCDA Open PACE Program, the parties agree as follows: 1. Agreement to Indemnify. The Administrator agrees to defend, indemnify, and hold harmless the City, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all claims, damages, losses, expenses, fines, penalties, judgments, demands, and defense costs (including, without limitation, actual, direct, out-of- pocket costs and expenses, and 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 Administrator's administration of the CSCDA Open PACE Program, except to the extent such loss or damage which was caused by the sole negligence or willful misconduct of the City. The Administrator will conduct all defenses at its sole cost and expense, and the City shall reasonably approve selection of the Administrator's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies of the Administrator, its affiliates or any other parties are applicable thereto. 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. 2. Insurance. The Administrator agrees, at no cost or expense to the City, at all times during its administration of the CSCDA Open PACE Program, to maintain the insurance coverage set forth in Exhibit "A" to this Agreement. 3. Amendment/Interpretation of this Agreement. This Agreement, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both parties hereto. This Agreement shall not be interpreted for or against any party by reason of the fact that such party may have drafted this Agreement or any of its provisions. 4. Section Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. 5. Waiver. No waiver of any of the provisions of this Agreement shall be binding unless in the form of a writing signed by the party against whom enforcement is sought, and no such waiver shall operate as a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no Indemnification Insurance Agreement 2 City of National City and 2016 CounterPointe Energy Solutions (CA) LLC failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof. 6. Severability and Governing Law. If any provision or portion thereof of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California applicable to contracts made and to be performed in California. 7. Notices. All notices, demands and other communications required or permitted hereunder shall be made in writing and shall be deemed to have been duly given if delivered by hand, against receipt, or mailed certified or registered mail and addressed as follows: If to the Administrator: If to the City: David S. Schaefer Chief Operating Officer CounterPointe Energy Solutions (CA) LLC 6401 Congress Avenue, Suite 200 Boca Raton, FL 33487 Alfredo Ybarra Director, Housing, Grants, and Asset Management City of National City 1243 National City Boulevard National City, CA 91950-4301 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, which together shall constitute the same instrument. 9. Effective Date. This Agreement will be effective as of the date of the signature of City's representative as indicated below in the City's signature block. Indemnification Insurance Agreement 3 City of National City and 2016 CounterPointe Energy Solutions (CA) LLC IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date below. CITY CITY OF NATIONAL CITY B Date: Morrison, Mayor APPROVED AS TO FORM: Nicole Pedone Acting City Attorney ADMINISTRATOR COUNTERPOINTE ENERGY SOLUTIONS (CA) LLC d.b.a. "AllianceNRG Program" By: David S. Schaefer Chief Operating Officer Date: Indemnification Insurance Agreement 4 City of National City and 2016 CounterPointe Energy Solutions (CA) LLC INSURANCE A. Minimum Scope of Insurance Coverage shall be at least as broad as: EXHIBIT A 1. The coverage provided by Insurance Services Office Commercial General Liability coverage ("occurrence") Form Number CG 0001; and 2. The coverage provided by Insurance Services Office Form Number CA 0001 covering Automobile Liability. Coverage shall be included for all owned, non - owned and hired automobiles; and 3. Workers' Compensation insurance as required by the California Labor Code and Employers Liability insurance; and 4. Professional Liability Errors & Omissions for all professional services. There shall be no endorsement reducing the scope of coverage required above unless approved by the National City Risk Manager. B. Minimum Limits of Insurance Administrator shall maintain limits no less than: 1. Commercial General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit; and 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage; and 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the California Labor Code and Employers Liability limits of $1,000,000 per accident; and 4. Professional Liability Errors & Omissions $1,000,000 per occurrence/ aggregate limit. C. Deductibles and Self -Insured Retentions Any deductibles or self -insured retentions must be declared to, and approved by the National City Risk Manager. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City, its officers, employees, agents, contractors Indemnification Insurance Agreement 5 City of National City and 2016 CounterPointe Energy Solutions (CA) LLC and volunteers; or Administrator shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by the National City Risk Manager. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. Commercial General Liability and Automobile Liability Coverages. a. National City, its officers, employees, agents, contractors, and volunteers are to be covered as additional insureds as respects: Liability arising out of activities performed by or on behalf of Administrator; products and completed operations of Administrator; premises owned, leased, or used by Administrator; and automobiles owned, leased, hired or borrowed by Administrator. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, employees, agents, contractors, and volunteers. b. Administrator's insurance coverage shall be primary insurance as respects the City, its officers, employees, agents, contractors, and volunteers. Any insurance or self-insurance maintained by City, its officers, employees, agents, contractors, or volunteers shall be excess of Administrator's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies by Administrator shall not affect coverage provided to the City, its officers, employees, agents, contractors, or volunteers. d. Coverage shall state that Administrator's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. e. Coverage shall contain a waiver of subrogation in favor of the City, its officers, employees, agents, contractors, and volunteers. 2. Workers' Compensation and Employers' Liability. Coverage shall contain waiver of subrogation in favor of National City, its officers, employees, agents, contractors, and volunteers. 3. All Coverages Each insurance policy required by this AGREEMENT shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in limits except after thirty (30) days' prior written notice has been given to the City, except that ten (10) days' prior written notice shall apply in the event of cancellation for nonpayment of premium. Indemnification Insurance Agreement 6 City of National City and 2016 CounterPointe Energy Solutions (CA) LLC E. Acceptability of Insurers. Insurance is to be placed with insurers acceptable to the National City Risk Manager. F. Verification of Coverage. Administrator shall furnish the City with certificates of insurance and with original endorsements affecting coverage required by this AGREEMENT. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Proof of insurance shall be either emailed in pdf format to: eamaya@nationalcityca.gov or mailed to the following postal address or any subsequent address as may be directed in writing by the National City Risk Manager: City of National City Attn: Risk Manager 1243 National City Boulevard National City, CA 91950-4301 G. Subcontractors Administrator shall include all subcontractors as insureds under its policies or shall obtain separate certificates and endorsements for each subcontractor. Indemnification Insurance Agreement 7 City of National City and 2016 CounterPointe Energy Solutions (CA) LLC RESOLUTION NO. 2016 — 132 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE CITY'S JURISDICTION IN THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY OPEN PACE PROGRAMS; AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO ACCEPT APPLICATIONS FROM PROPERTY OWNERS, CONDUCT CONTRACTUAL ASSESSMENT PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS WITHIN THE CITY'S JURISDICTION; AUTHORIZING THE MAYOR TO EXECUTE INDEMNIFICATION AND INSURANCE AGREEMENTS WITH PARTICIPATING ADMINISTRATORS; AND AUTHORIZING RELATED ACTIONS WHEREAS, the California Statewide Communities Development Authority (the "Authority") is a joint exercise of powers authority, the members of which include numerous cities and counties in the State of California, including the City of National City (the "City"); and WHEREAS, the Authority is implementing Property Assessed Clean Energy (PACE) programs, which it has designated CSCDA Open PACE, consisting of CSCDA Open PACE 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 assessments pursuant to Chapter 29 of the Improvement Bond Act of 1911, Division 7 of the Streets & Highways Code ("Chapter 29") within counties and cities throughout the State of California that elect to participate in such program; and WHEREAS, the program administrators currently active in administering Programs are Counterpointe Energy Solutions LLC, d.b.a. "AllianceNRG Program"; Counterpointe Energy Solutions (CA) LLC, d.b.a. "AllianceNRG Program"; Cleanfund Commercial Pace Capital, Inc., d.b.a. "Clean Fund"; Pace Funding Group, LLC, d.b.a. "PACE Funding"; Renewable Funding LLC; and Spruce Finance Inc., and the Authority will notify the City in advance of any requested additions or changes to the manner in which the program administrators operate within the City's jurisdiction; and WHEREAS, the Legislature has authorized cities and counties to assist property owners in financing the cost of installing Improvements through a voluntary contractual assessment program; and WHEREAS, the City desires to allow the owners of all of the property ("Participating Property Owners") in the incorporated area within the City to participate in the Programs and to allow the Authority to conduct assessment proceedings under Chapter 29 within its jurisdiction and to issue bonds to finance or refinance Improvements; and WHEREAS, the Authority will conduct all assessment proceedings under Chapter 29 for the Programs and issue any bonds issued in connection with the Programs; and WHEREAS, the City will not be responsible for the conduct of any assessment proceedings, the levy and collection of assessments or any required remedial action in the case of delinquencies in the payment of any assessments or the issuance, sale or administration of any bonds issued in connection with the CSCDA Open PACE Program. Resolution No. 2016 — 132 Page Two NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City as follows: Section 1. This City Council hereby finds and declares that the foregoing recitals are true and correct. Section 2. The City Council finds and declares that properties located within the City's jurisdiction will be benefited by the availability of the Programs to finance the installation of Improvements. Section 3. 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 City's jurisdiction and the issuance of bonds under the 1911 Act 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 or collection of assessments or any required remedial action in the case of delinquencies in such assessment payments; or the issuance, sale or administration, repayment or guarantee of any bonds or any other bonds issued in connection with the Programs. (3) The administrators of the CSCDA Open PACE Program listed in Section 5 below execute the City's Indemnification and Insurance Agreement on substantially similar terms as presented herewith. Section 4. The appropriate officials and staff of the City are hereby authorized and directed to make applications for the Programs available to all property owners who wish to finance or refinance Improvements; provided, that the Authority shall be responsible for providing such applications and related materials at its own expense. The following staff persons, together with any other staff persons chosen by the City Manager of the City from time to time, are hereby designated as the contact persons for the Authority in connection with the Programs: Alfredo Ybarra, Director of Housing, Grants, and Assessment Management, (619) 336-4254, aybarra(a�nationalcityca.gov. Section 5. The Mayor is authorized to execute the Indemnification and Insurance Agreement between the City and: Counterpointe Energy Solutions LLC, d.b.a. "AllianceNRG Program"; Counterpointe Energy Solutions (CA) LLC, d.b.a. "AllianceNRG Program"; Cleanfund Commercial Pace Capital, Inc., d.b.a. "Clean Fund"; Pace Funding Group, LLC, d.b.a. "PACE Funding"; Renewable Funding LLC; and Spruce Finance Inc., the administrators of the CSCDA Open PACE Program on substantially similar terms as presented herewith. Section 6. The City Manager, or her designees, are 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. Resolution No. 2016 — 132 Page Three Section 7. The 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 8. This Resolution shall take effect immediately upon its adoption. The City Clerk is hereby authorized and directed to transmit a certified copy of this resolution to the Secretary of the Authority at: Secretary of the Board, California Statewide Communities Development Authority, 1400 K Street, Sacramento, CA 95814. PASSED and ADOPTED this 6'h day of Septe . -r, 16. on Morrison, Mayor ATTEST: Michael R. Dalla, Cit Clerk PPROVED AS TO FORM: laudia Ga•'tua it City Att Passed and adopted by the Council of the City of National City, California, on September 6, 2016 by the following vote, to -wit: Ayes: Councilmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California A' City Clerk of the City of National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2016-132 of the City of National City, California, passed and adopted by the Council of said City on September 6, 2016. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA C a o\ G- 2 G COUNCIL AGENDA STATEMENT MEETING DATE: September 6, 2016 AGENDA ITEM NO. 11 ITEM TITLE: Resolution of the City Council of the City of National City consenting to the inclusion of properties within the City's jurisdiction in the CSCDA Open PACE Programs; authorizing the California Statewide Communities Development Authority to accept applications from property owners, conduct contractual assessment proceedings and levy contractual assessments within the City's jurisdiction; authorizing the Mayor to execute indemnification and insurance agreements with participating administrators; and authorizing related actions. PREPARED BY: Carlos Aguirre, Housing & Economi Development Manager PHONE: 619 336-4391 EXPLANATION: Please see Attachment No. 1. DEPARTMENT: Housing & Economic APPROVED ( Dopmnt Dept. FINANCIAL STATEMENT: ACCOUNT NO. There is no financial impact or liability on the City. APPROVED APPROVED: Finance MIS ENVIRONMENTAL REVIEW: This activity is not a project as defined in Section 57378 of the California Code of Regulations. Therefore, no action is required under the California Environmental Quality Act. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: 1. Background Report 2. Indemnification and Insurance Agreement for Participating Administrators 3. Resolution Attachment No. 1 CSCDA Open PACE Program Background Report CSCDA,1 the largest Joint Powers Authority in California, founded and sponsored by the League of California Cities and CSAC, is implementing Property Assessed Clean Energy ("PACE") under the provisions of Chapter 29 of Division 7 of the Streets & Highways Code (commonly referred to as "AB 811") on behalf of its member counties and cities. AB811 authorizes a legislative body to designate an area within which authorized public officials (including a joint powers authority like CSCDA) and free and willing property owners may enter into voluntary contractual assessments to finance the installation of renewable energy, energy efficiency, water efficiency, and seismic strengthening improvements as well as electric vehicle charging infrastructure, in each case affixed to real property (the "Improvements"). CSCDA's Commissioners pre -qualified and appointed the PACE Administrators to manage the CSCDA Open PACE program in order to offer members turn -key PACE solutions that provide residential and commercial property owners the choice among prequalified PACE financing providers, creating competition on terms, service and interest rates. The prequalified program administrators operating the following programs are doing business as AllianceNRG Program' , the Clean Fund, PACE Funding, Renew Financial (administering CaliforniaFIRST), and Spruce Finance. The City of National City ("City") will require that each legal entity acting as program administrators to enter into an Indemnification and Insurance Agreement in substantial conformance with the Agreement attached to this staff report (Please see Attachment No. 2). CSCDA's Open PACE program offers turnkey solutions to save California jurisdictions the time and resources of developing standalone PACE programs. Jurisdictions only need to adopt the form of resolution accompanying this staff report related to the CSCDA Open PACE program to begin the process. There is no cost to approving the resolution. PACE has been a very successful financing tool in California. PACE is operating in over 400 jurisdictions throughout the state, and over a billion dollars in energy efficiency, water efficiency and renewable projects have been funded. CSCDA Open PACE is being offered to allow property owners in participating cities and counties to finance renewable energy, energy water efficiency improvements, seismic improvements and electric vehicle charging infrastructure on their property. Participation in the assessment is 100% voluntary by the property owner. The improvements installed on the owner's property are financed by the issuance of bonds by CSCDA. The bonds are secured by a voluntary contractual assessment levied on the owner's property. Property owners who wish to participate in PACE agree to repay the money through the voluntary contractual assessment collected with property taxes. The voluntary contractual assessments will be levied by CSCDA and collected in annual installments through the applicable county secured property tax bill. 1 The California Statewide Communities Development Authority (CSCDA) was created in 1988, under California's Joint Exercise of Powers Act, to provide California's local governments with an effective tool for the timely financing of community -based public benefit projects. CSCDA has over 500 member agencies and is the Joint Powers Authority and conduit bond issuer sponsored by the League of California Cities and the California State Association of Counties. More information about CSCDA is available atwww.cscda.orq. 2 The AllianceNRG Program consists of Deutsche Bank Securities Inc., CounterPointe Energy Solutions LLC and Leidos Engineering, LLC. Page 1 of 4 Attachment No. 1 The benefits to the property owner include from the PACE Open PACE Program : • Competition: CSCDA Open PACE provides multiple options to property owners: AllianceNRG Program, the Clean Fund, PACE Funding, CaliforniaFIRST and Spruce Finance. Property owners can shop for the best price and service through the availability of the PACE administrators. • Eligibility: In today's economic environment, alternatives for property owners to finance renewable improvements may not be available. Many property owners do not have financing options available to them to lower their utility bills. • Savings: Energy prices continue to rise and installing energy efficient, water efficient and renewable energy models lower utility bills. • 100% voluntary: Only property owners who choose to finance improvements will have assessments placed on their property. • Payment obligation can stay with the property: Under Chapter 29, a voluntary contractual assessment stays with the property upon transfer of ownership. Most private loans are due on sale of the property. Certain mortgage providers will, however, require the assessment be paid at the time the property is refinanced or sold. • Prepayment option: The property owner can choose to pay off the assessments at any time, subject to applicable prepayment penalties. • Customer oriented: Part of the success of the CSCDA Open PACE is prompt customer service. • Favorable Terms: The economic terms of PACE financing will often be more favorable than other options. • Not a personal loan or mortgage: The PACE assessment in effect is not a personal obligation of the property owner through a conventional loan or mortgage but an assessment on the property secured by an assessment lien and collected as part of the regular tax roll on the property. The benefits to the City include: • Prequalified PACE Administrators. CSCDA has pre -qualified the PACE Administrators based on their business practices, qualifications, experience, and capital commitment to the PACE market. • Single Resolution. The City can pass a single resolution and provide access to Page 2 of 4 Attachment No. 1 residential and commercial property owners to highly qualified PACE administrators. There is no need to pass multiple resolutions to approve the administrators. • Project Eligibility. The CSCDA Open PACE platform can provide financing for all aspects of PACE including: 1) Residential, 2) Commercial, and 3) Resilience programs such as Mandatory Soft Story seismic strengthening programs, • Increase local jobs. Property improvements provide jobs in the local economy. • Increase in housing prices. Updated and higher efficient homes are generally more valuable. • Increase Revenue to the City. Property improvements result in an increase in sales, payroll and property tax revenue to the City. • No City Obligation. As in conventional assessment financing, the City is not obligated to repay the bonds or to pay the assessments levied on the participating properties. Unlike conventional assessment financing, the City has no administrative duties and its name is not on the bonds, as CSCDA's name is on the bonds. • No City staff support required. All CSCDA Open PACE and assessment administration, bond issuance and bond administration functions are handled by CSCDA and the Administrators. No City staff time is needed to participate in CSCDA Open PACE. • No internal management requirements. The City can provide access for its residents to CSCDA Open PACE without the higher staff costs that an independent program established by the City would require. • Availability of Information on Projects Financed. The City may receive, at its option, periodic updates on CSCDA Open PACE projects that have been completed in their community. • Demonstration of Community Commitment to the Environment. Participating in CSCDA Open PACE demonstrates the City's commitment to do everything in its power to improve the environment. Page 3 of 4 Attachment No. 1 The proposed resolution enables CSCDA Open PACE programs to be available to owners of residential and commercial property within the City to finance permanently fixed renewable energy, energy efficiency, water efficiency, and seismic strengthening improvements as well as electric vehicle charging infrastructure. CSCDA (and not the City) will be responsible for entering into voluntary contractual assessment agreements with participating property owners, levying the voluntary contractual assessments, issuing bonds to finance the Improvements and taking remedial actions in the event of delinquent assessment payments. The resolution expressly provides that the county or 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 assessment payments, or the issuance, sale or administration of any bonds issued in connection with CSCDA Open PACE. FISCAL IMPACTS: There is no negative fiscal impact to the City's/County's general fund by consenting to the inclusion of properties within the City limits in CSCDA Open PACE. All CSCDA Open PACE administrative costs are covered through an initial administrative fee included in the property owner's voluntary contractual assessment and an annual administrative fee, which is also collected on the property owner's tax bill. Page 4 of 4 Attachment No. 2 INDEMNIFICATION AND INSURANCE AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND CLEANFUND COMMERCIAL PACE CAPITAL, INC. d.b.a. "Clean Fund" This Indemnification and Insurance Agreement ("Agreement") is entered into by and between the City of National City, a municipal corporation ("City") and Cleanfund Commercial Pace Capital, Inc., a Delaware corporation, d.b.a. "Clean Fund" ("Administrator"), the administrator of the California Statewide Communities Development Authority's PACE program "CSCDA Open PACE Program" or "Program". RECITALS WHEREAS, the California Statewide Communities Development Authority ("Authority") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the California Government Code (Section 6500 et. seq.) and the Joint Exercise of Powers Agreement entered into on June 1, 1988, as amended from time to time ("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, seismic strengthening improvements, electric vehicle charging infrastructure and such other infrastructure as may be authorized by law from time to time (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 Program; and WHEREAS, the City Council of the City of National City has approved the City joining the Authority, has consented to the inclusion in the CSCDA Open PACE Program of all of the properties in the jurisdictional boundaries of the City and to the acquisition, construction, and installation of the Improvements, upon the request by and voluntary agreement of owners of such properties, in compliance with the laws, rules and regulations applicable to the Program; and WHEREAS, the Authority and the Administrator have entered into a Third Party Administration Agreement, dated April 7, 2016, in which the Administrator agrees to administer the CSCDA Open PACE Program; and WHEREAS, the Administrator agrees to indemnify the City and to provide insurance in connection with the administration of the CSCDA Open PACE Program in the City of National City. Indemnification Insurance Agreement 1 City of National City and 2016 Cleanfund Commercial Pace Capital, Inc. Attachment No. 2 NOW, THERFORE, in consideration of the Recitals above and of the City's agreement to join the Authority and to participate in the CSCDA Open PACE Program, the parties agree as follows: 1. Agreement to Indemnify. The Administrator agrees to defend, indemnify, and hold harmless the City, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all claims, damages, losses, expenses, fines, penalties, judgments, demands, and defense costs (including, without limitation, actual, direct, out-of- pocket costs and expenses, and 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 CSCDA Open PACE Program, except such loss or damage which was caused by the sole negligence or willful misconduct of the City. The Administrator will conduct all defenses at its sole cost and expense, and the City shall reasonably approve selection of the Administrator's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies of the Administrator, its affiliates or any other parties are applicable thereto. 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. 2. Insurance. The Administrator agrees, at no cost or expense to the City, at all times during the administration of the CSCDA Open PACE Program, to maintain the insurance coverage set forth in Exhibit "A" to this Agreement. 3. Amendment/Interpretation of this Agreement. This Agreement, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both parties hereto. This Agreement shall not be interpreted for or against any party by reason of the fact that such party may have drafted this Agreement or any of its provisions. 4. Section Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. 5. Waiver. No waiver of any of the provisions of this Agreement shall be binding unless in the form of a writing signed by the party against whom enforcement is sought, and no such waiver shall operate as a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no Indemnification Insurance Agreement 2 City of National City and 2016 Cleanfund Commercial Pace Capital, Inc. Attachment No. 2 failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof. 6. Severability and Governing Law. If any provision or portion thereof of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California applicable to contracts made and to be performed in California. 7. Notices. All notices, demands and other communications required or permitted hereunder shall be made in writing and shall be deemed to have been duly given if delivered by hand, against receipt, or mailed certified or registered mail and addressed as follows: If to the Administrator: If to the City: Alfredo Ybarra Director, Housing, Grants, and Asset Management City of National City 1243 National City Boulevard National City, CA 91950-4301 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, which together shall constitute the same instrument. 9. Effective Date. This Agreement will be effective as of the date of the signature of City's representative as indicated below in the City's signature block. Indemnification Insurance Agreement 3 City of National City and 2016 Cleanfund Commercial Pace Capital, Inc. Attachment No. 2 IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date below. CITY ADMINISTRATOR CITY OF NATIONAL CITY By: Ron Morrison, Mayor Date: APPROVED AS TO FORM: Claudia G. Silva City Attorney Indemnification Insurance Agreement CLEANFUND COMMERCIAL PACE CAPITAL, INC. d.b.a. "Clean Fund" By: Date: Name Title 4 City of National City and 2016 Cleanfund Commercial Pace Capital, Inc. Attachment No. 2 INSURANCE A. Minimum Scope of Insurance Coverage shall be at least as broad as: EXHIBIT A 1. The coverage provided by Insurance Services Office Commercial General Liability coverage ("occurrence") Form Number CG 0001; and 2. The coverage provided by Insurance Services Office Form Number CA 0001 covering Automobile Liability. Coverage shall be included for all owned, non - owned and hired automobiles; and 3. Workers' Compensation insurance as required by the California Labor Code and Employers Liability insurance; and 4. Professional Liability Errors & Omissions for all professional services. There shall be no endorsement reducing the scope of coverage required above unless approved by the National City Risk Manager. B. Minimum Limits of Insurance Administrator shall maintain limits no less than: 1. Commercial General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit; and 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage; and 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the California Labor Code and Employers Liability limits of $1,000,000 per accident; and 4. Professional Liability Errors & Omissions $1,000,000 per occurrence/ aggregate limit. C. Deductibles and Self -Insured Retentions Any deductibles or self -insured retentions must be declared to, and approved by the National City Risk Manager. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City, its officers, employees, agents, contractors Indemnification Insurance Agreement 5 City of National City and 2016 Cleanfund Commercial Pace Capital, Inc. Attachment No. 2 and volunteers; or Administrator shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by the National City Risk Manager. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. Commercial General Liability and Automobile Liability Coverages. a. National City, its officers, employees, agents, contractors, and volunteers are to be covered as additional insureds as respects: Liability arising out of activities performed by or on behalf of Administrator; products and completed operations of Administrator; premises owned, leased, or used by Administrator; and automobiles owned, leased, hired or borrowed by Administrator. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, employees, agents, contractors, and volunteers. b. Administrator's insurance coverage shall be primary insurance as respects the City, its officers, employees, agents, contractors, and volunteers. Any insurance or self-insurance maintained by City, its officers, employees, agents, contractors, or volunteers shall be excess of Administrator's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies by Administrator shall not affect coverage provided to the City, its officers, employees, agents, contractors, or volunteers. d. Coverage shall state that Administrator's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. e. Coverage shall contain a waiver of subrogation in favor of the City, its officers, employees, agents, contractors, and volunteers. 2. Workers' Compensation and Employers' Liability. Coverage shall contain waiver of subrogation in favor of National City, its officers, employees, agents, contractors, and volunteers. 3. All Coverages Each insurance policy required by this AGREEMENT shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in limits except after thirty (30) days' prior written notice has been given to the City, except that ten (10) days' prior written notice shall apply in the event of cancellation for nonpayment of premium. Indemnification Insurance Agreement 6 City of National City and 2016 Cleanfund Commercial Pace Capital, Inc. Attachment No. 2 E. Acceptability of Insurers. Insurance is to be placed with insurers acceptable to the National City Risk Manager. F. Verification of Coverage. Administrator shall furnish the City with certificates of insurance and with original endorsements affecting coverage required by this AGREEMENT. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Proof of insurance shall be either emailed in pdf format to: eamaya@nationalcityca.gov or mailed to the following postal address or any subsequent address as may be directed in writing by the National City Risk Manager: City of National City Attn: Risk Manager 1243 National City Boulevard National City, CA 91950-4301 G. Subcontractors Administrator shall include all subcontractors as insureds under its policies or shall obtain separate certificates and endorsements for each subcontractor. Indemnification Insurance Agreement 7 City of National City and 2016 Cleanfund Commercial Pace Capital, Inc. RESOLUTION NO. 2016 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE CITY'S JURISDICTION IN THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY OPEN PACE PROGRAMS; AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO ACCEPT APPLICATIONS FROM PROPERTY OWNERS, CONDUCT CONTRACTUAL ASSESSMENT PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS WITHIN THE CITY'S JURISDICTION; AUTHORIZING THE MAYOR TO EXECUTE INDEMNIFICATION AND INSURANCE AGREEMENTS WITH PARTICIPATING ADMINISTRATORS; AND AUTHORIZING RELATED ACTIONS WHEREAS, the California Statewide Communities Development Authority (the "Authority") is a joint exercise of powers authority, the members of which include numerous cities and counties in the State of California, including the City of National City (the "City"); and WHEREAS, the Authority is implementing Property Assessed Clean Energy (PACE) programs, which it has designated CSCDA Open PACE, consisting of CSCDA Open PACE 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 assessments pursuant to Chapter 29 of the Improvement Bond Act of 1911, Division 7 of the Streets & Highways Code ("Chapter 29") within counties and cities throughout the State of California that elect to participate in such program; and WHEREAS, the program administrators currently active in administering Programs are Counterpointe Energy Solutions LLC, d.b.a. "AllianceNRG Program"; Counterpointe Energy Solutions (CA) LLC, d.b.a. "AllianceNRG Program"; Cleanfund Commercial Pace Capital, Inc., d.b.a. "Clean Fund"; Pace Funding Group, LLC, d.b.a. "PACE Funding"; Renewable Funding LLC; and Spruce Finance Inc., and the Authority will notify the City in advance of any requested additions or changes to the manner in which the program administrators operate within the City's jurisdiction; and WHEREAS, the Legislature has authorized cities and counties to assist property owners in financing the cost of installing Improvements through a voluntary contractual assessment program; and WHEREAS, the City desires to allow the owners of all of the property ("Participating Property Owners") in the incorporated area within the City to participate in the Programs and to allow the Authority to conduct assessment proceedings under Chapter 29 within its jurisdiction and to issue bonds to finance or refinance Improvements; and WHEREAS, the Authority will conduct all assessment proceedings under Chapter 29 for the Programs and issue any bonds issued in connection with the Programs; and WHEREAS, the City will not be responsible for the conduct of any assessment proceedings, the levy and collection of assessments or any required remedial action in the case of delinquencies in the payment of any assessments or the issuance, sale or administration of any bonds issued in connection with the CSCDA Open PACE Program. Resolution No. 2016 — Page Two NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City as follows: Section 1. This City Council hereby finds and declares that the foregoing recitals are true and correct. Section 2. The City Council finds and declares that properties located within the City's jurisdiction will be benefited by the availability of the Programs to finance the installation of Improvements. Section 3. 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 City's jurisdiction and the issuance of bonds under the 1911 Act 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 or collection of assessments or any required remedial action in the case of delinquencies in such assessment payments; or the issuance, sale or administration, repayment or guarantee of any bonds or any other bonds issued in connection with the Programs. (3) The administrators of the CSCDA Open PACE Program listed in Section 5 below execute the City's Indemnification and Insurance Agreement on substantially similar terms as presented herewith. Section 4. The appropriate officials and staff of the City are hereby authorized and directed to make applications for the Programs available to all property owners who wish to finance or refinance Improvements; provided, that the Authority shall be responsible for providing such applications and related materials at its own expense. The following staff persons, together with any other staff persons chosen by the City Manager of the City from time to time, are hereby designated as the contact persons for the Authority in connection with the Programs: Alfredo Ybarra, Director of Housing, Grants, and Assessment Management, (619) 336-4254, aybarra a(�nationalcityca.gov. Section 5. The Mayor is authorized to execute the Indemnification and Insurance Agreement between the City and: Counterpointe Energy Solutions LLC, d.b.a. "AllianceNRG Program"; Counterpointe Energy Solutions (CA) LLC, d.b.a. "AllianceNRG Program"; Cleanfund Commercial Pace Capital, Inc., d.b.a. "Clean Fund"; Pace Funding Group, LLC, d.b.a. "PACE Funding"; Renewable Funding LLC; and Spruce Finance Inc., the administrators of the CSCDA Open PACE Program on substantially similar terms as presented herewith. Section 6. The City Manager, or her designees, are 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. Resolution No. 2016 — Page Three Section 7. The 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 8. This Resolution shall take effect immediately upon its adoption. The City Clerk is hereby authorized and directed to transmit a certified copy of this resolution to the Secretary of the Authority at: Secretary of the Board, California Statewide Communities Development Authority, 1400 K Street, Sacramento, CA 95814. PASSED and ADOPTED this 6th day of September, 2016. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk COUNTERPOINTE ENERGY SOLUTIONS (CA) LLC d.b.a AllianceNRG Program Indemnification and Insurance Agreement CSCDA Open PACE Program Carlos Aguirre (Housing & Economic Development) Forwarded Copy of Agreement to Counterpointe Energy Solutions dba AllianceNRG Program. CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk September 13, 2016 Secretary of the Board California Statewide Communities Development Authority 1400 K Street Sacramento, CA 95814 Dear Secretary of the Board, Enclosed is a certified copy of Resolution No. 2016-132 for your files. If you have any questions, please feel free to call me at 619-336-4226. Michael Dalla City Clerk Enclosure CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk February 7, 2018 Mr. Robert Giles PACE Funding 750 University Ave., Suite 240 Los Gatos, CA 95032 Dear Mr. Giles, On September 6th, 2016, Resolution No. 2016-132 was passed and adopted by the City Council of the City of National City, authorizing execution of an Agreement with Pace Funding Group, LLC d.b.a. PACE Funding. We are enclosing for your records a fully executed original Agreement. 1 Sincerely, alL Michael R. Dalla, CMC City Clerk Enclosures CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk April 26, 2018 Spruce PACE, LLC Attn: Legal Department 50 Osgood Place, Suite 400 San Francisco, CA 94133 Dear Legal Department, On September 6th, 2016, Resolution No. 2016-132 was passed and adopted by the City Council of the City of National City, authorizing execution of an Agreement with Spruce PACE, LLC. We are enclosing for your records a fully executed original Agreement. Sincerely, /1 f/d.a Michael R. Dalla, CMC City Clerk Enclosures