HomeMy WebLinkAboutItem 4.3 - 1721 Consideration of Property Assessed Clean En
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STAFF REPORT
CITY COUNCIL
DATE: December 5, 2017
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Participation in Two Additional Property Assessed Clean Energy Financing
Programs and Approval of the Association of Bay Area Governments'
Regional Collaborative Services Agreement
Prepared by: Shannan Young, Environmental Coordinator
EXECUTIVE SUMMARY:
The City Council will consider joining the Golden State Finance Authority (GSFA) Joint
Powers Authority (JPA) as an Associate Member and permitting City of Dublin property
owners to participate in the GSFA Senate Bill 555 Community Facilities District and
Assembly Bill 811 Authority Property Assessed Clean Energy (PACE) Program;
participating in the California Municipal Finance Authority Open PACE Program; and
participating in the Association of Bay Area Governments' member addendum to the
PACE Regional Collaborative Services Agreement.
STAFF RECOMMENDATION:
Adopt the following Resolutions Consenting to:
1. Inclusion of Properties within the City of Dublin’s Jurisdiction in the Golden State
Finance Authority Community Facilities District No. 2014 -1 (Clean Energy) to
Finance Renewable Energy Improvements, Energy Efficiency, Water
Conservation Improvements, Electric Vehicle Charging Infrastructure and other
Improvements; and Approving Associate Membership in the Joint Exercise of
Powers Authority Related Thereto;
2. Inclusion of Properties within the City of Dublin’s Jurisdiction in the Golden S tate
Finance Authority Program to Finance Renewable Energy Generation, Energy
and Water Efficiency Improvements, Electric Vehicle Charging Infrastructure, and
Other Improvements and Approving Associate Membership in the Joint Exercise
of Powers Authority Related Thereto;
3. Inclusion of Properties within the Territory of the City of Dublin in the California
Municipal Finance Authority Open Property Assessed Clean Energy Programs;
Authorizing the California Municipal Finance Authority to Accept Applications
from Property Owners, Conduct Contractual Assessment Proceedings and Levy
Contractual Assessments within the Territory of the City of Dublin; and
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Authorizing Related Actions;
4. Approval of Property Assessed Clean Energy Programs in the City of Dublin; and
5. Participation in and Acknowledgement of the Association of Bay Area
Governments' Regional Collaborative Services Agreement, as executed between
the Association of Bay Area Governments and Residential Property Assessed
Clean Energy Providers.
FINANCIAL IMPACT:
Adoption of the Resolutions and actions contained herein would not result in any
additional costs to the City. All costs of marketing, financing, and program
administration are borne by the program administrators and with private capital. There
will be no impact to the General Fund.
DESCRIPTION:
There are currently three Property Assessed Clean Energy (PACE) programs operating
in the City of Dublin. The first PACE program authorized in the City of Dublin was the
California Enterprise Development Authority California PACE Program which was
approved on March 20, 2012 by Resolution 36 -12 (Attachment 1) and on October 21,
2014 by Resolution 179-14 (Attachment 2). The California PACE program is an
economic development incentive program for commercial properties. Subsequently, the
California HERO Program (a residential PACE Program) was authorized on October 6,
2015 by Resolution 157-15 (Attachment 3). Most recently, City Council authorized the
California Statewide Communities Development Authority (CSCDA) Open PACE
Program on January 10, 2017 by Resolution 02-17 (Attachment 4). The CSCDA Open
PACE Program includes five PACE providers, offering a mix of residential and
commercial providers.
Legislation Background
Two pieces of legislation enabled PACE programs in California and then several
additional laws clarified and expanded this legislation:
1. California Assembly Bill (AB) 811 (July 21, 2008) allows renewable energy
sources and energy efficiency upgrades to be financed through an
assessment district. California AB 474 (January 1, 2010) and California Senate
Bill (SB) 1340 (September 30, 2010) expanded AB 811 to include water -
efficiency improvements and the installation of charging stations for electric
vehicles.
2. SB 555 (October 5, 2011) amended the Mello-Roos Community Facilities Act
to allow for the creation of Community Facilities Districts (CFDs) for financing
or refinancing the acquisition, installation, and improvement of energy
efficiency, water conservation, renewable energy and electric vehicle charging
infrastructure. Individual properties can be annexed into the district and can be
subject to the special tax that is imposed to repay project financing if a City
Council adopts a resolution consenting to the inclusion of parcels in the
incorporated areas of a City within the CFD and each participating owner
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provides its unanimous written approval for annexation of its property into the
PACE CFD.
In July 2010, the Federal Housing Finance Agency (FHFA), along with Fannie Mae and
Freddie Mac, objected to the first priority lien status of residential PACE financing and
announced they would not purchase mortgages for homes with PACE obligations due to
concerns that PACE loans would be paid first in case of foreclosure. This
announcement slowed the residential PACE market for several years. To address this
issue, in 2013 Governor Brown signed SB 96, which created a $10 million PACE Loan
Loss Reserve to keep mortgage lenders whole during a foreclosure or a forced sale of a
property with a PACE assessment. While the FHFA has not changed its position, the
California PACE market has grown rapidly with the assurance of the State reserve.
PACE Programs
PACE Programs are intended to allow property owners to finance energy and water
efficiency improvements and pay off the debt through annual installments on their
property tax bill. The intent is to provide an additional means of financing to make
environmentally sustainable property improvements and seismic upgrades more
affordable and accessible to property owners.
The potential benefits of PACE financing over other financing options include 100%
financing for eligible improvements, a longer repayment period of up to 20 years, and
the reliability of pre-approved contractors. These programs also differ from traditional
financing in its repayment structure. Debt obligations run with the property rather than
the applicant, because the repayment is generated from the utility savings associated
with the improvements. Terms vary by program, but are generally considered in-line
with market rate options for similar improvements. As with other forms of private
lending, all transactions are voluntary, and no property owner is required to participate
in any program.
Creating a competitive PACE marketplace provides a variety of options for home and
business owners to finance improvement projects based on finance terms, conditions of
approval, and eligible measures offered by the different programs. Additionally,
authorizing multiple providers ensures that financing will remain available if one or more
providers cease to operate in the City of Dublin. Finally, it is anticipated that there will be
increased economic activity because of each new provider operating locally.
Authorizing the two additional PACE providers would not limit City Council’s ability to
consider additional providers in Dublin at a later date. An overview of each of the
proposed PACE programs follows.
Ygrene PACE Program
The Ygrene PACE Program serves residential and commercial projects , and is the only
provider originating in multiple states. In California, over 180 cities and counties have
adopted the program since its launch in 2013, including Alameda County and the cities
of Hayward, Oakland, Union City, San Leandro and Fremont. To d ate, the program has
approved funding of more than $1.1 billion and has certified over 2,500 contractors in
California.
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The Ygrene PACE Program requires City Council approval of membership in the
Golden State Finance Authority (GSFA), which administers th e program. Membership in
this Joint Powers Authority authorizes the program to provide services in Dublin and is
limited in scope to the PACE program only. Due to the unique nature of the GSFA
Ygrene program, two Resolutions are required for authorization. The first Resolution
(Attachment 5) would make all properties in Dublin eligible to participate in GSFA's
Community Facilities District (CFD) for PACE financing as authorized under SB 555.
The GSFA JPA Agreement is included for reference as Exhibit A to the Resolution
(Attachment 6) as well as Exhibit B to the Resolution, the GSFA new member
acknowledgement page (Attachment 7). The second Resolution (Attachment 8) would
make all properties in Dublin eligible to participate in GSFA's Contractual Assessmen t
program for PACE authorized under AB 811. The GSFA JPA Agreement is included for
reference as Exhibit A to the Resolution (Attachment 9), along with Exhibit B to the
Resolution, the GSFA new member acknowledgement page (Attachment 10).
CMFA Open PACE Program
CMFA Open PACE Program launched in August 2015 and operates under AB 811. It is
sponsored by the California Municipal Finance Authority (CMFA), of which Dublin is a
member (Attachment 11). CMFA is utilizing the Open PACE structure with the goal of
creating a platform to evaluate and pre-qualify PACE providers so that local
governments only need to pass a single resolution to authorize multiple programs. The
CMFA along with its current Program Administrators, which includes Energy Efficient
Equity, Inc.; BlueFlame PACE Services LLC; OnPACE Energy Solutions, LLC; Petros
PACE Administrator, LLC; Structured Finance Associates, LLC; and Twain Community
Partners II LLC, are offering PACE financing for residential and commercial property
owners in its member territories. The CMFA is expected to issue limited obligation
bonds, notes or other forms of indebtedness to fund the projects.
Since implementation, over 75 cities and counties have approved the CMFA Open
PACE suite of programs, including Alameda County, Fremont, Hayward and San
Leandro. Since the City of Dublin is already a member of the CMFA JPA, the
Resolution (Attachment 12) authorizing CMFA to operate PACE Programs in Dublin is
all that is required for the City to participate in this Open PACE Program.
Potential Future PACE Programs
Given the numerous PACE choices available to businesses and residents in the City of
Dublin, Staff does not anticipate recommending additional PACE providers for approval
in the near future. However, to streamline the process of PACE approvals in the future,
Staff recommends that City Council consider authorizing the City Manager to approve
new PACE programs as described in the Resolution (Attachment 13).
ABAG Regional Collaborative Services Agreement
Private financing companies entered the PACE market by partnering with joint powers
authorities (JPA) to establish and finance PACE programs. Since the PACE provider’s
primary relationship is with the JPA partner, cities have had little control over local
PACE activities. To safeguard consumer interests and promote program success, the
Association of Bay Area Governments (ABAG) and the Bay Area Regional Energy
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Network developed the Regional Collaborative Services Agreement (RCSA) which
establishes the terms, conditions and rules each residential PACE provider will follow
when operating in ABAG territory (the RCSA does not apply to commercial PACE
programs). While the Agreement is between ABAG and the PACE provider, the
language of the agreement states that it also ap plies to actions of the PACE provider in
participating cities/towns.
Features of the RCSA include:
Designates ABAG as the liaison to the Residential PACE Providers (RPP) locally
Requires all RPPs to have clearly visible disclosures regarding the FHFA’s
policies on residential PACE programs
Requires all RPPs to participate in the State’s PACE Loss Reserve program
Limits claims that RPPs (or their designated contractors) can make to applicants
regarding the tax deductibility of PACE assessments
Requires data sharing between the RPPs and participating entities to monitor
program performance locally and report out to local stakeholders
Requires RPPs to accept responsibility for negligence in administering PACE
programs
At this time, the residential PACE providers indicated below have signed on to the
RCSA with ABAG. By authorizing execution of the ABAG acknowledgement forms for
each of these residential PACE providers as outlined in the Resolution (Attachment 14)
and Exhibit A to the Resolution (Attachment 15), City Council would be providing
additional safeguards for Dublin residents that chose to invest in their property using
PACE financing. A compendium of the fully executed RCSA documents for the
participating RPPs listed below is provided in Attachment 16:
CounterPointe Energy Solutions (CA) LLC (AllianceNRG Program)
Energy Efficiency Equity
Figtree Financing (Figtree PACE Program/California PACE Program)
PACE Funding Group LLC
Western Riverside Council of Governments (California HERO Program)
Ygrene Energy Fund California LLC (Ygrene PACE Program)
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution 36-12
2. Resolution 179-14
3. Resolution 157-15
4. Resolution 02-17
5. Resolution for Golden State Finance Authority's Community Facilities District for
PACE Financing
6. Exhibit A to Resolution Golden State Finance Authority JPA Agreement
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7. Exhibit B to the Resolution Golden State Finance Authority Signature Page for New
Associate Members
8. Resolution for Golden State Finance Authority's Contractual Assessment Program
for PACE Authorized Under AB 811
9. Exhibit A to Resolution Golden State Finance Authority JPA Agreement
10. Exhibit B to the Resolution Golden State Finance Authority Signature Page for New
Associate Members
11. California Municipal Finance Authority JPA Agreement
12. Resolution California Municipal Finance Authority Open PACE Program
13. Resolution Authorizing Approval of Property Assessed Clean Energy Programs
14. Resolution Acknowledging the ABAG Regional Collaborative Services Agreement
15. Exhibit A to Resolution Acknowledging the ABAG Regional Collaborative Services
Agreement
16. Compendium of Fully Executed RCSA documents
RESOLUTION NO. 36 -12
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
AUTHORIZING THE CITY OF DUBLIN TO JOIN THE CALIFORNIA PACE PROGRAM;
AUTHORIZING THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY TO
CONDUCT CONTRACTUAL ASSESSMENT PROCEEDINGS AND LEVY CONTRACTUAL
ASSESSMENTS WITHIN THE TERRITORY OF THE CITY OF DUBLIN; AND AUTHORIZING
RELATED ACTIONS
WHEREAS, the City Council established a Fiscal Year 2011 -2012 Strategic Initiative to
continue to develop economic incentives for retail, office, restaurants, and industrial users; and
WHEREAS, the California Enterprise Development Authority ( "CEDA ") 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 Dublin (the "City "); and
WHEREAS, CEDA has established the California PACE program ( "California PACE ") to
allow the financing of certain renewable energy, energy efficiency and water efficiency
improvements (the "Improvements ") through the levy of contractual assessments pursuant to
Chapter 29 of Division 7 of the Streets & Highways Code ( "Chapter 29 ") and the issuance of
improvement bonds (the "Bonds ") under the Improvement Bond Act of 1915 (Streets and
Highways Code Sections 8500 et seq.) (the "1915 Act ") upon the security of the unpaid
contractual assessments; and
WHEREAS, Chapter 29 provides that assessments may be levied under its provisions
only with the free and willing consent of the owner 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 the owners of property within its jurisdiction
( "Participating Property Owners ") to participate in California PACE and to allow CEDA to
conduct assessment proceedings under Chapter 29 and to issue Bonds under the 1915 Act to
finance the Improvements; and
WHEREAS, CEDA will conduct assessment proceedings under Chapter 29 and issue
Bonds under the 1915 Act to finance Improvements; and
WHEREAS, the City Council has been presented with a proposed form of Resolution of
Intention ( "the ROI "), a copy of which is attached hereto as Exhibit A, to be utilized by CEDA in
connection with such assessment proceedings; and
WHEREAS, the territory within which assessments may be levied for California PACE
shall be coterminous with the City's official boundaries of record ( "the Proposed Boundaries ") at
the time of the adoption of the ROI.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Dublin, as
follows:
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Section 1. On the date hereof, the City Council hereby finds and determines that the issuance of
bonds by CEDA in connection with California PACE will provide significant public benefits,
including without limitation, savings in effective interest rate, bond preparation, bond
underwriting and bond issuance costs and reductions in effective user charges levied by water
and electricity providers within the boundaries of the City.
Section 2. The City Council hereby authorizes CEDA to, pursuant to Chapter 29 and with
respect to any property within the Proposed Boundaries, conduct assessment proceedings, levy
assessments, pursue remedies in the event of delinquencies and issue bonds or other forms of
indebtedness to finance the Improvements in connection with the California PACE Program,
provided that:
(1) Such proceedings are conducted pursuant to one or more Resolutions of Intention in
substantially the form of the ROI;
(2) The Participating Property Owners, who shall be the legal owners of such property,
voluntarily 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
(3) The City will not be responsible for the conduct of any assessment proceedings; the
levy of assessments or any required remedial action in the case of delinquencies in
such assessment payments; or the issuance, sale or administration of the Bonds or
any other bonds issued in connection with California PACE.
Section 3. Pursuant to the requirements of Chapter 29, CEDA has prepared and will update
from time to time the "Program Report" for California PACE (the 'Program Report "), and CEDA
will undertake assessment proceedings and the financing of Improvements as set forth in the
Program Report.
Section 4. The City Manager or her designee is hereby authorized and directed to make
applications for California PACE available to all property owners who wish to finance
Improvements.
Section 5. The City Manager or her designee is hereby authorized and directed to execute and
deliver such closing certificates, requisitions, agreements and related documents as are
reasonably required by CEDA in accordance with the Program Report to implement California
PACE for Participating Property Owners.
Section 6. The City Council hereby finds that adoption of this Resolution is not a "project" under
the California Environmental Quality Act ( "CEQA "), 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 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 Secretary of
CEDA.
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Section 8. Services related to the formation and administration of the assessment district will be
provided by CEDA at no cost to the City per the AB811 Services Agreement attached hereto as
Exhibit B.
Section 9. The City Manager is authorized to execute the Agreement attached hereto as Exhibit
B substantially in the form attached hereto and to undertake such further action as may be
necessary and desirable to carry out the intent of this Resolution.
vote:
PASSED, APPROVED AND ADOPTED this 20th day of March, 2012, by the following
AYES: Councilmembers Biddle, Hart, Swalwell, and Mayor Sbranti
NOES: None
ABSENT: Councilmember Hildenbrand
ABSTAIN: None
/v
ATTEST•
��
City Clerk
Reso No. 36 -12, Adopted 3- 20 -12, Item 8.3 Page 3 of 3
Mayor
Exhibit A to the Resolution
FORM OF RESOLUTION DECLARING INTENTION TO FINANCE
INSTALLATION OF DISTRIBUTED GENERATION RENEWABLE ENERGY
SOURCES, ENERGY EFFICIENCY AND WATER EFFICIENCY
IMPROVEMENTS
CITY OF
WHEREAS, the California Enterprise Development Authority ( "CEDA ") is authorized under the
authority granted CEDA pursuant to Chapter 5 of Division 7 of Title 1 of the Government Code of the
State of California in accordance with Chapter 29 of Part 3 of Division 7 of the Streets & Highways Code
of the State of California ( "Chapter 29 ") to authorize assessments to finance the installation of distributed
generation renewable energy sources, energy efficiency and water efficiency improvements that are
permanently fixed to real property ( "Authorized Improvements "); and
WHEREAS, Chapter 29 authorizes CEDA to enter into contractual assessments to finance the
installation of Authorized. Improvements in the City of (the "City "); and
WHEREAS, CEDA wishes to declare its intention to establish a California PACE program ( "California
PACE ") in the City, pursuant to which CEDA, subject to certain conditions set forth below, would enter
into contractual assessments to finance the installation of Authorized Improvements in the City.
NOW, THEREFORE, BE IT RESOLVED by the California Enterprise Development Authority, as
follows:
Section 1. Findings. CEDA hereby finds and declares the following:
(a) The above recitals are true and correct.
(b) Energy conservation efforts, including the promotion of energy - related Authorized
Improvements to residential, commercial, industrial, or other real property, are necessary to
address the, issue of global climate change and the reduction of greenhouse gas emissions in
the City.
(c) Water conservation efforts, including the promotion of water - related Authorized
Improvements to residential, commercial, industrial, or other real property, are necessary to
address the issue of chronic water shortages in California.
(d) The upfront cost of making residential, commercial, industrial, or other real property more
energy and water efficient, along with the fact that most commercial loans for that purpose are
due on the sale of the property, prevents many property owners from installing Authorized
Improvements.
(e). A public purpose will be served by establishing a contractual assessment program, to be known as
California PACE, pursuant to which CEDA will finance the installation of Authorized
Improvements to residential, commercial, industrial, or other real property in the City.
Section 2. Determination of Public Interest. CEDA hereby determines that (a) it would be convenient,
advantageous, and- in the public interest to designate an area, which shall encompass the entire geographic
territory within the boundaries of the City, within which CEDA and property owners within the City may enter
into contractual assessments to finance the installation of Authorized Improvements pursuant to Chapter '29
and (b) it is in the public interest for CEDA to finance the installation of Authorized Improvements in the City
pursuant.to Chapter 29.
Section 3. Identification of Authorized Improvements. CEDA hereby declares that it proposes to make
contractual assessment financing available to property owners to finance installation of Authorized
Improvements, including but not limited to those. improvements detailed in the. Report described in Section 8
below, as that Report may be amended from time to time.
Section 4. Identification of Boundaries. Contractual assessments may be entered into by property owners
located within the entire geographic territory of the City-, provided, however, that CEDA shall not enter into
contractual assessments to finance the installation of Authorized Improvements with the owner of any property
in the City unless requested to do so first by the City.
Section 5. Proposed Financing Arrangements. Under Chapter 29, CEDA may issue bonds, notes or other
forms of indebtedness pursuant to Chapter 29 that are payable by .contractual assessments. Division 10
(commencing with Section 8500) of the Streets & Highways Code of the State (the "Improvement Bond Act of
1915") shall apply to any indebtednesss issued pursuant to Chapter 29, insofar as the Improvement Bond Act
of 1915 is not in conflict with Chapter 29. The creditworthiness of a property owner to participate in the.
financing of Authorized Improvements will be based on the criteria developed by the Program Administrator
in consultation with the California PACE financing team as on file with the Clerk. In connection with
indebtednesss issued under the Improvement Bond Act of 1915 that are payable from contractual
assessments, serial and /or term improvement bonds or other indebtedness shall be issued in such series
and shall mature in such principal amounts and at such times (not to exceed 20 years from the second day
of September next following their date) and at such rate or rates of interest (not to exceed the maximum
rate permitted by applicable law) as shall be determined by CEDA at the time of the issuance and sale of
the indebtedness. The provisions of Part 11.1 of the Improvement Bond Act of 1915 shall apply to the
calling of the bonds. It is the intention of CEDA to create a special reserve fund for the bonds under Part
16 of the Improvement Bond Act of 1915. CEDA will not advance available surplus fiends from its
treasury to cure any deficiency in the redemption fund to be created with respect to the indebtedness-,
provided, however, that this determination shall not prevent CEDA from, in its sole discretion, so
advancing funds. The bonds may be refiinded under Division 11.5 of the California Streets and Highways
Code or other applicable laws permitting refunding, upon the conditions specified by and at the
determination of CEDA.
CEDA hereby authorizes the Program Administrator, after consultation with bond counsel and the
California PACE underwriter, to provide for the issuance of bonds, notes or other forms of indebtedness
permitted by Chapter 29 payable from contractual assessments.
In connection with the issuance of bonds payable from contractual assessments, CEDA expects to
obligate . itself, through a covenant with the owners of the bonds, to exercise its foreclosure rights with
respect to delinquent contractual assessment installments under specified circumstances.
Section 6. Public Hearing. Pursuant to the Act, CEDA hereby orders that a public hearing be held
before this Board, at on 20 at for the purposes of allowing
interested persons to object to or inquire about the proposed program or any of its particulars. The public
hearing may be continued from time to time as-determined by the Board for a time not exceeding a total
of 180 days.
At the time of the hearing, the Report described in Section 8 below shall be summarized and the
Commission shall afford all persons who are present an opportunity to comment upon, object to, or
present evidence with regard to the proposed contractual assessment program, the extent of the area
proposed to be included within the program, the terms and conditions of the draft Contract described in
Section 8 below, or the proposed financing provisions. Following the public hearing, CEDA may adopt a
resolution confirming the Report (the "Resolution Confirming Report") or may direct the Report's
modification in any respect, or may abandon the proceedings.
The Board hereby orders the Clerk to publish a notice of public hearing once a week for two successive
weeks. Two publications in a newspaper published once a week or more often, with at least five days
intervening between the respective publication dates not counting such publication dates, are sufficient.
The period of notice will commence upon the first day of publication and terminate at the end of the
fourteenth day. The first publication shall occur not later than 20 days before the date of the public
hearing.
Section 7. Notice to Water and Electric Providers. Pursuant to Section 5898.24 of the Streets &
Highways Code, written notice of the proposed contractual assessment program within the City to all
water and electric providers within the boundaries of the City has been provided.
Section 8. Report. The Commission hereby directs the Program Administrator for California PACE to
prepare and file with the Commission a report (the "Report") at or before the time of the public hearing
described in Section 6 above containing all of the following:
a) A map showing the boundaries of the territory within which contractual assessments are proposed
to be offered, as set forth in Section 4 above.
b) A draft contract (the "Contract ") specifying the terms and conditions of the agreement between
CEDA and a property owner within the City.
c) A. statement of CEDA's policies concerning contractual assessments including all of the
following:
(1) Identification of types of Authorized Improvements that may be financed through the use of
contractual assessments.
(2) Identification of CEDA official authorized to enter into contractual assessments on behalf of
CEDA.
(3) A maximum aggregate dollar amount of contractual assessments in the City.
(4) A method for setting requests from property owners for financing through contractual
assessments in priority order in the event that requests appear likely to .exceed the
authorization amount.
d) A plan for raising a capital amount required to pay for work. performed in connection with
contractual assessments. The plan may include the sale of a bond or bonds or other financing
relationship pursuant to Section 5898.28. of Chapter 29. The plan (i) shall include a statement of,
or method for determining, the interest rate and time period during which contracting property
owners would pay any assessment(ii) shall provide for any reserve fiend or funds and (iii) shall
provide for the apportionment of all or any portion of the costs incidental to financing,
administration, and collection of the contractual assessment program among the consenting
property owners and CEDA.
e) A report on the results of the consultations with the County Auditor- Controller described in
Section 10 below concerning the additional fees, if any, that will be charged to CEDA for
incorporating the proposed contractual assessments into the assessments of the general taxes of the
County on real property, and .a plan for financing the payment of those fees.
Section 9. Nature of Assessments. Assessments levied pursuant to Chapter 29, and the interest and any
penalties thereon, will constitute a lien against the lots and parcels of land on which they are made, until
they are paid. Unless otherwise directed by CEDA, the assessments shall be collected in the same manner
and at the same time as the general taxes of the County on real property are payable, and subject to the
same penalties and remedies and lien priorities in the event of delinquency and default.
Section 10. Consultations with County Auditor- Controller. CEDA hereby directs the Program
Administrator to enter into consultations with the County Auditor- Controller in order to reach agreement
on what additional fees, if any, will be charged to CEDA for incorporating the proposed contractual
assessments into the assessments of the general taxes of the County on real property.
Section 11. Preparation of Current Roll of Assessment. Pursuant to Section 5898.24(c), CEDA hereby
designates the Program Administrator (or his /her designee) as the responsible party for annually preparing
the current roll of assessment obligations by assessor's parcel number on property subject to a voluntary
contractual assessment.
Section 12. Procedures for Responding to Inquiries. The Program Administrator shall establish
procedures to promptly respond to inquiries concerning current and future estimated liability for a
voluntary contractual assessment.
Section 13. Professionals Appointed. CEDA hereby appoints , A Professional Law
Corporation, , as bond counsel and disclosure counsel to CEDA in
connection . with California PACE. The Commission hereby authorizes and directs an Authorized
Signatory of CEDA (as determined from time to time by the Commission by separate resolution) to enter
into appropriate agreements with such firm for its services to CEDA in connection with the matters
addressed in this Resolution.
Section 14. Effective Date. This resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED by the California Enterprise Development Authority this
,2D
I, the undersigned, the duly appointed, and qualified member of the Commission of the California
Enterprise Development Authority, DO HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Commission of said Authority at a duly called meeting of the Commission of said
Authority held in accordance with law on ,20
Member
The California Enterprise Development Authority (CEDA) has contracted with the firm of FIGtree
Energy Resource Company (FIGtree) to provide AB 811 formation and administration services to
participating member agencies.
SCOPE OF SERVICES (No Cost Services)
::California: Property Assessed Clean Energy (California PACE) Program.
FIGtree will provide CEDA and the City of Dublin, (the "City ") formation and administration services in
connection with the California PACE program. These services will be provided at no cost to the City.
These services include, but are not limited to the following:
EXPERTRESOURCE. First and foremost, FIGtree will act as the "expert resource" for the City and is
available to answer questions and advise the City on particular issues involving energy districts(s)
established per California Streets and Highways Code beginning with Sections 5898.10 (originally
approved under Assembly Bill 811 — AB811).
DATA COLLECTION. FIGtree will gather and review data pertinent to the formation of the Property
Assessed Clean Energy (California PACE) District. FIGtree will maintain and periodically update a
database of all parcels within the district and relevant parcel information.
ANNUAL ASSESSMENT ROLL. FIGtree will calculate the annual assessment for each parcel and
submit the amount for each parcel to the County Auditor /Controller in the format and medium required.
FORMA7TON PACE REPORT . FIGtree will prepare the energy district formation Report as required
by Section 5898.22 of the California Streets and Highway Code.
RESOLUTIONS. FIGtree will prepare the required resolutions to be adopted by the City.
UTfLITYN07TCES. FIGtree will prepare and send the required notices that must be transmitted to the
local utility companies.
ANNUAL REPORT. FIGtree will provide a comprehensive Annual Report that will show a detailed
listing of the amounts submitted to the assessment roll, details of delinquent assessments, paid off parcels
and release of liens.
Addition at Services
The team at FIGtree is readily available to assist the City in its endeavors to promote PACE
financing to its property owners. FIGtree can assist from organizing workshops to property
owners and contractors to preparing marketing materials.
FIGtree Energy Resource Companyl 9915 Mira Mesa Blvd, Suite 130., San Diego, CA 92131
Page 1 of 2
0
v P+ia
In the event that City would like to engage FIGtree to perform additional services above and
beyond the no cost Scope of Services, the additional services authorized by the City will be
billed at this rate or the then applicable hourly rate.
Title
Hourly Rate
Executive
$ 270
Senior Consultant
225
Analyst
125
Clerical /Support
55
ANNUAL ASSESSMENT COST RECO VERY
In order to be able to provide AB811 services to the City at no cost, revenues will be derived
under the California PACE program from multiple sources. One such source is the Annual
Assessment Cost Recovery (the "Cost Recovery").
The Cost Recovery is the revenue collected annually on the property tax rolls in the amount of
five percent (5 %) of the annual assessment amount due by the property owner. The City
acknowledges that Cost Recovery collected on an annual basis will be apportioned to the
following parties as follows:
COST RECOVERY SCHEDULE:
Participating Agency
5% Cost Recovery
CEDA
0.75%
city
2.00%
FIGtree
2.25%
FIGtree Energy Revource Company
Mahesh Shah
CEO f 1
Title Date
City of Dublin
Joni Pattillo
City Manager l
Title Date
FTGtree Energy Resource Cognpanyl 9915 Mira Mesa Blvd, Suite 130., San Diego, CA 92131
Page 2 of 2
RESOLUTION NO. 179 - 14
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN ASSOCIATE MEMBERSHIP AGREEMENT BETWEEN THE CALIFORNIA
ENTERPRISE DEVELOPMENT AUTHORITY AND THE CITY OF DUBLIN
WHEREAS, the City of Dublin, California (the "City"), a municipal corporation, duly
organized and existing under the Constitution and the laws of the State of California; and
WHEREAS, the City, upon authorization of the City Council, may pursuant to Chapter 5
of Division 7 of Title 1 of the Government Code of the State of California, commencing with
Section 6500 (the "JPA Law") enter into a joint exercise of powers agreement with one or more
public agencies pursuant to which such contracting parties may jointly exercise any power
common to them; and
WHEREAS, the City and other public agencies wish to jointly participate in economic
development financing programs for the benefit of businesses and nonprofit entities within their
jurisdictions offered by membership in the California Enterprise Development Authority ("CEDA")
pursuant to an associate membership agreement and Joint Exercise of Powers Agreement
Relating to the California Enterprise Development Authority (the "Agreement"); and
WHEREAS, under the JPA Law and the Agreement, CEDA is a public entity separate
and apart from the parties to the Agreement and the debts, liabilities and other obligations of
CEDA will not be the debts, liabilities or obligations of the City or other members of the
Authority; and
WHEREAS, the form of Associate Membership Agreement ("Membership Agreement")
between the City and CEDA is incorporated by this reference as Exhibit 1; and
WHEREAS, the City is willing to become an Associate Member of CEDA subject to the
provisions of the Membership Agreement.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Dublin hereby
approves the Associate Membership Agreement, attached hereto as Exhibit 1, titled "Associate
Membership Agreement by and between the California Enterprise Development Authority and
the City of Dublin, California."
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Agreement substantially in the form attached hereto and to undertake such further action as
may be necessary and desirable to carry out the intent of this Resolution.
Page 1 of 2
PASSED, APPROVED AND ADOPTED this 21st day of October, 2014 by the following
vote:
AYES: Councilmembers Biddle, Gupta, Hart, Haubert, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
V e its.a-
Mayor
ATTEST:
C14,40Z' / .:CD4/-*
City Clerk
Reso No. 179-14,Adopted 10-21-14, Item 4.7 Page 2 of 2
ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and the
CITY OF DUBLIN,CALIFORNIA
THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership
Agreement"), dated as of April 26, 2012 by and between CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY(the"Authority")and the CITY OF DUBLIN,CALIFORNIA,
a municipal corporation, duly organized and existing under the laws of the State of California
the"City");
WITNESSETH:
WHEREAS, the Cities of Selma, Lancaster and Eureka (individually, a"Member" and
collectively, the "Members"), have entered into a Joint Powers Agreement, dated as of June 1,
2006(the"Agreement"),establishing the Authority and prescribing its purposes and powers;and
WHEREAS, the Agreement designates the Executive Committee of the Board of
Directors and the President of the California Association for Local Economic Development as
the initial Board of Directors of the Authority;and
WHEREAS, the Authority has been formed for the purpose, among others,to assist for
profit and nonprofit corporations and other entities to obtain financing for projects and purposes
serving the public interest; and
WHEREAS, the Agreement permits any other local agency in the State of California to
join the Authority as an associate member(an"Associate Member");and
WHEREAS,the City desires to become an Associate Member of the Authority;
WHEREAS, City Council of the City has adopted a resolution approving the Associate
Membership Agreement and the execution and delivery thereof;
WHEREAS,the Board of Directors of the Authority has determined that the City should
become an Associate Member of the Authority;
NOW, THEREFORE, in consideration of the above premises and of the mutual
promises herein contained,the Authority and the City do hereby agree as follows:
4833-7301-9141.1
Section 1. Associate Member Status. The City is hereby made an Associate Member of
the Authority for all purposes of the Agreement and the Bylaws of the Authority,the provisions
of which are hereby incorporated herein by reference. From and after the date of execution and
delivery of this Associate Membership Agreement by the City and the Authority, the City shall
be and remain an Associate Member of the Authority.
Section 2. Restrictions and Rights of Associate Members. The City shall not have the
right, as an Associate Member of the Authority, to vote on any action taken by the Board of
Directors or by the Voting Members of the Authority. In addition, no officer, employee or
representative of the City shall have any right to become an officer or director of the Authority
by virtue of the City being an Associate Member of the Authority.
Section 3. Effect of Prior Authority Actions. The City/County hereby agrees to be
subject to and bound by the A.Agreement and B.Bylaws of the Authority.
Section 4. No Obligations of Associate Members. The debts, liabilities and obligations
of the Authority shall not be the'debts,liabilities and obligations of the City.
Section S. Execution of the Agreement. Execution of this Associate Membership
Agreement and the Agreement shall satisfy the requirements of the Agreement and Article XII of
the Bylaws of the Authority for participation by the City in all programs and other undertakings
of the Authority.
4833-7301-9141.1 2
IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership
Agreement to be executed and attested by their proper officers thereunto duly authorized, on the
day and year first set forth above.
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
By: /
Gurbax ahota,'Chair
Attest:
7. /
is
Michhqlle Stephens,Asst. )etary
tinCITYOFDub CALIFORNIA
By:
Christopher L. Foss, City Manager
Attest:
City Clerk
4833-7301-9141.1 3
RESOLUTION NO. 157 - 15
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN, CALIFORNIA, CONSENTING
TO THE INCLUSION OF PROPERTIES WITHIN THE CITY'S JURISDICTION IN THE CALIFORNIA
HERO PROGRAM TO FINANCE DISTRIBUTED - GENERATION RENEWABLE ENERGY
SOURCES, ENERGY AND WATER EFFICIENCY IMPROVEMENTS AND ELECTRIC VEHICLE
CHARGING INFRASTRUCTURE AND APPROVING THE AMENDMENT TO A CERTAIN JOINT
POWERS AGREEMENT RELATED THERETO
WHEREAS, the Western Riverside Council of Governments ( "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 April 1, 1991, as amended from time to time (the "Authority JPA "); and
WHEREAS, Authority intends to establish the California HERO Program to provide for the
financing of renewable energy distributed generation sources, energy and water efficiency
improvements and electric vehicle charging infrastructure (the "Improvements ") pursuant to Chapter
29 of the Improvement Bond Act of 1911, being 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 such program; and
WHEREAS, City of Dublin (the "City ") is committed to development of renewable energy
sources and energy efficiency improvements, reduction of greenhouse gases, protection of our
environment, and reversal of climate change; and
WHEREAS, in Chapter 29, the Legislature has authorized cities and counties to assist
property owners in financing the cost of Improvements through a voluntary contractual assessment
program; and
WHEREAS, installation of such Improvements by property owners within the jurisdictional
boundaries of the counties and cities that are participating in the California HERO Program would
promote the purposes cited above; and
WHEREAS, the City wishes to provide innovative solutions to its property owners to achieve
energy and water efficiency and independence, and in doing so cooperate with Authority in order to
efficiently and economically assist property owners the City in financing such Improvements; and
WHEREAS, Authority has authority to establish the California HERO Program, which will be
such a voluntary contractual assessment program, as permitted by the Act, the Authority JPA,
originally made and entered into April 1, 1991, as amended to date, and the Amendment to Joint
Powers Agreement Adding the City of Dublin as an Associate Member of the Western Riverside
Council of Governments to Permit the Provision of Property Assessed Clean Energy (PACE) Program
Services within the City (the "JPA Amendment "), by and between Authority and the City, a copy of
which is attached as Exhibit "A" hereto, to assist property owners within the incorporated area of the
City in financing the cost of installing Improvements; and
Page 1 of 2
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 California HERO Program.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. The City Council of the City of Dublin finds and declares that properties in the City's
incorporated area will be benefited by the availability of the California HERO Program to finance the
installation of Improvements.
2. The City Council of the City of Dublin consents to inclusion in the California HERO
Program of all of the properties in the incorporated area within the City and to the Improvements,
upon the request by and voluntary agreement of owners of such properties, in compliance with the
laws, rules and regulations applicable to such program; and to the assumption of jurisdiction
thereover by Authority for the purposes thereof.
3. The consent of the City Council of the City of Dublin constitutes assent to the
assumption of jurisdiction by Authority for all purposes of the California HERO Program and
authorizes Authority, upon satisfaction of the conditions imposed in this resolution, to take each and
every step required for or suitable for financing the Improvements, including the levying, collecting
and enforcement of the contractual assessments to finance the Improvements and the issuance and
enforcement of bonds to represent and be secured by such contractual assessments.
4. The City Council of the City of Dublin hereby approves the JPA Amendment, attached
hereto as Exhibit A, and authorizes the Mayor to execute the Agreement.
5. City staff is authorized and directed to coordinate with Authority staff to facilitate
operation of the California HERO Program within the City.
6. This Resolution shall take effect immediately upon its adoption. The City Clerk is
directed to send a certified copy of this resolution to the Secretary of the Authority Executive
Committee.
PASSED, APPROVED AND ADOPTED this 6th day of October 2015, by the following vote:
AYES: Councilmembers Biddle, Gupta, Hart, Wehrenberg, and Mayor Haubert
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
61,� & /(1-1 i;/r
City Clerk
Reso No. 157 -15, Adopted 10 -6 -15, Item 4.1 Page 2 of 2
Mayor
AMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF DUBLIN AS
AN ASSOCIATE MEMBER OF THE
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
TO PERMIT THE PROVISION OF PROPERTY ASSESSED CLEAN
ENERGY (PACE) PROGRAM SERVICES WITH SUCH CITY
This Amendment to the Joint Powers Agreement ( "JPA Amendment ") is made and entered into
on the 6th day of October, 2015, by City of Dublin ( "City ") and the Western Riverside Council of
Governments ( "Authority ") (collectively the "Parties ").
RECITALS
WHEREAS, 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 "Joint Exercise of Powers Act ") and the Joint Power Agreement entered into
on April 1, 1991, as amended from time to time (the "Authority JPA "); and
WHEREAS, as of October 1, 2012, Authority had 18 member entities (the "Regular
Members "); and
WHEREAS, Chapter 29 of the Improvement Act of 1911, being Division 7 of the
California Streets and Highways Code ( "Chapter 29 ") authorizes cities, counties, and cities and
counties to establish voluntary contractual assessment programs, commonly referred to as a
Property Assessed Clean Energy ( "PACE ") program, to fund certain renewable energy sources,
energy and water efficiency improvements, and electric vehicle charging infrastructure (the
"Improvements ") that are permanently fixed to residential, commercial, industrial, agricultural or
other real property; and
WHEREAS, Authority intends to establish a PACE program to be known as the
"California HERO Program" pursuant to Chapter 29 as now enacted or as such legislation may
be amended hereafter, which will authorize the implementation of a PACE financing program for
cities and county throughout the state; and
WHEREAS, City desires to allow owners of property within its jurisdiction to participate in
the California HERO Program and to allow Authority to conduct proceedings under Chapter 29
to finance Improvements to be installed on such properties; and
WHEREAS, this JPA Amendment will permit City to become an Associate Member of
Authority and to participate in California HERO Program for the purpose of facilitating the
implementation of such program within the jurisdiction of City; and
WHEREAS, pursuant to the Joint Exercise of Powers Act, the Parties are approving this
JPA Agreement to allow for the provision of PACE services, including the operation of a PACE
financing program, within the incorporated territory of City; and
WHEREAS, the JPA Amendment sets forth the rights, obligations and duties of City and
Authority with respect to the implementation of the California HERO Program within the
incorporated territory of City.
MUTUAL UNDERSTANDINGS
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
hereinafter stated, the Parties hereto agree as follows:
EXHIBIT A
A. JPA Amendment.
1. The Authority JPA. City agrees to the terms and conditions of the Authority JPA,
attached.
2. Associate Membership. By adoption of this JPA Amendment, City shall become an
Associate Member of Authority on the terms and conditions set forth herein and the
Authority JPA and consistent with the requirements of the Joint Exercise of Powers
Act. The rights and obligations of City as an Associate Member are limited solely to
those terms and conditions expressly set forth in this JPA Amendment for the
purposes of implementing the California HERO Program within the incorporated
territory of City. Except as expressly provided for by the this JPA Amendment, City
shall not have any rights otherwise granted to Authority's Regular Members by the
Authority JPA, including but not limited to the right to vote on matters before the
Executive Committee or the General Assembly, the right to amend or vote on
amendments to the Authority JPA, and the right to sit on committees or boards
established under the Authority JPA or by action of the Executive Committee or the
General Assembly, including, without limitation, the General Assembly and the
Executive Committee. City shall not be considered a member for purposes of Section
9.1 of the Authority JPA.
3. Rights of Authority. This JPA Amendment shall not be interpreted as limiting or
restricting the rights of Authority under the Authority JPA. Nothing in this JPA
Amendment is intended to alter or modify Authority Transportation Uniform Mitigation
Fee (TUMF) Program, the PACE Program administered by Authority within the
jurisdictions of its Regular Members, or any other programs administered now or in
the future by Authority, all as currently structured or subsequently amended.
B. Implementation of California HERO Program within City Jurisdiction.
Boundaries of the California HERO Program within City Jurisdiction City shall determine
and notify Authority of the boundaries of the incorporated territory within City's jurisdiction
within which contractual assessments may be entered into under the California HERO
Program (the "Program Boundaries "), which boundaries may include the entire
incorporated territory of City or a lesser portion thereof.
2. Determination of Eligible Improvements Authority shall determine the types of
distributed generation renewable energy sources, energy efficiency or water conservation
improvements, electric vehicle charging infrastructure or such other improvements as
may be authorized pursuant to Chapter 29 (the "Eligible Improvements ") that will be
eligible to be financed under the California HERO Program.
3. Establishment of California HERO Program Authority will undertake such proceedings
pursuant to Chapter 29 as shall be legally necessary to enable Authority to make
contractual financing of Eligible Improvements available to eligible property owners within
the Program Boundaries.
4. Financing the Installation of Eligible Improvements Authority shall develop and
implement a plan for the financing of the purchase and installation of the Eligible
Improvements under the California HERO Program.
EXHIBIT A
5. Ongoing Administration. Authority shall be responsible for the ongoing administration of
the California HERO Program, including but not limited to producing education plans to
raise public awareness of the California HERO Program, soliciting, reviewing and
approving applications from residential and commercial property owners participating in
the California HERO Program, establishing contracts for residential, commercial and
other property owners participating in such program, establishing and collecting
assessments due under the California HERO Program, adopting and implementing any
rules or regulations for the California HERO Program, and providing reports as required
by Chapter 29.
City will not be responsible for the conduct of any proceedings required to be taken under
Chapter 29; 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 of any bonds issued in connection with the California HERO Program.
6. Phased Implementation. The Parties recognize and agree that implementation of the
California HERO Program as a whole can and may be phased as additional other cities
and counties execute similar agreements. City entering into this JPA Amendment will
obtain the benefits of and incur the obligations imposed by this JPA Amendment in its
jurisdictional area, irrespective of whether cities or counties enter into similar agreements.
Miscellaneous Provisions.
1. Withdrawal. City or Authority may withdraw from this JPA Amendment upon six (6)
months written notice to the other party; provided, however, there is no outstanding
indebtedness of Authority within City. The provisions of Section 6.2 of the Authority JPA
shall not apply to City under this JPA Amendment. City may withdraw approval for
conduct of the HERO Program within the jurisdictional limits of City upon thirty (30)
written notice to WRCOG without liability to the Authority or any affiliated entity. City
withdrawal shall not affect the validity of any voluntary assessment contracts (a) entered
prior to the date of such withdrawal or (b) entered into after the date of such withdrawal
so long as the applications for such voluntary assessment contracts were submitted to
and approved by WRCOG prior to the date of City's notice of withdrawal.
2. Mutual Indemnification and Liability. Authority and City shall mutually defend, indemnify
and hold the other party and its directors, officials, officers, employees and agents free
and harmless from any and all claims, demands, causes of action, costs, expenses,
liabilities, losses, damages or injuries of any kind, in law or equity, to property or persons,
including wrongful death, to the extent arising out of the willful misconduct or negligent
acts, errors or omissions of the indemnifying party or its directors, officials, officers,
employees and agents in connection with the California HERO Program administered
under this JPA Amendment, including without limitation the payment of expert witness
fees and attorneys fees and other related costs and expenses, but excluding payment of
consequential damages. Without limiting the foregoing, Section 5.2 of the Authority JPA
shall not apply to this JPA Amendment. In no event shall any of Authority's Regular
Members or their officials, officers or employees be held directly liable for any damages
or liability resulting out of this JPA Amendment.
3. Environmental Review. Authority shall be the lead agency under the California
Environmental Quality Act for any environmental review that may be required in
implementing or administering the California HERO Program under this JPA Amendment.
EXHIBIT A
4. Cooperative Effort. City shall cooperate with Authority by providing information and other
assistance in order for Authority to meet its obligations hereunder. City recognizes that
one of its responsibilities related to the California HERO Program will include any
permitting or inspection requirements as established by City.
5. Notice. Any and all communications and /or notices in connection with this JPA
Amendment shall be either hand - delivered or sent by United States first class mail,
postage prepaid, and addressed as follows:
Authority:
Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS1032
Riverside, CA 92501 -3609
Attn: Executive Director
City:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Manager
6. Entire Agreement. This JPA Amendment, together with the Authority JPA, constitutes the
entire agreement among the Parties pertaining to the subject matter hereof. This JPA
Amendment supersedes any and all other agreements, either oral or in writing, among
the Parties with respect to the subject matter hereof and contains all of the covenants
and agreements among them with respect to said matters, and each Party acknowledges
that no representation, inducement, promise of agreement, oral or otherwise, has been
made by the other Party or anyone acting on behalf of the other Party that is not
embodied herein.
7. Successors and Assigns. This JPA Amendment and each of its covenants and
conditions shall be binding on and shall inure to the benefit of the Parties and their
respective successors and assigns. A Party may only assign or transfer its rights and
obligations under this JPA Amendment with prior written approval of the other Party,
which approval shall not be unreasonably withheld.
8. Attorney's Fees. If any action at law or equity, including any action for declaratory relief
is brought to enforce or interpret the provisions of this Agreement, each Party to the
litigation shall bear its own attorney's fees and costs.
9. Governing Law. This JPA Amendment shall be governed by and construed in
accordance with the laws of the State of California, as applicable.
10. No Third Party Beneficiaries. This JPA Amendment shall not create any right or interest
in the public, or any member thereof, as a third party beneficiary hereof, nor shall it
authorize anyone not a Party to this JPA Amendment to maintain a suit for personal
injuries or property damages under the provisions of this JPA Amendment. The duties,
obligations, and responsibilities of the Parties to this JPA Amendment with respect to
third party beneficiaries shall remain as imposed under existing state and federal law.
EXHIBIT A
11. Severability. In the event one or more of the provisions contained in this JPA
Amendment is held invalid, illegal or unenforceable by any court of competent
jurisdiction, such portion shall be deemed severed from this JPA Amendment and the
remaining parts of this JPA Amendment shall remain in full force and effect as though
such invalid, illegal, or unenforceable portion had never been a part of this JPA
Amendment.
12. Headings. The paragraph headings used in this JPA Amendment are for the
convenience of the Parties and are not intended to be used as an aid to interpretation.
13.Amendment. This JPA Amendment may be modified or amended by the Parties at any
time. Such modifications or amendments must be mutually agreed upon and executed in
writing by both Parties. Verbal modifications or amendments to this JPA Amendment
shall be of no effect.
14. Effective Date. This JPA Amendment shall become effective upon the execution thereof
by the Parties hereto.
IN WITNESS WHEREOF, the Parties hereto have caused this JPA Amendment to be
executed and attested by their officers thereunto duly authorized as of the date first above
written.
[SIGNATURES ON FOLLOWING PAGES]
EXHIBIT A
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
ED
Executive Committee Chair
Western Riverside Council of Governments
CITY OF DUBLIN
Mayor
City of Dublin
Date:
Date:
EXHIBIT A
RESOLUTION NO. 02 — 17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * **
CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE TERRITORY OF THE CITY
OF DUBLIN 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 TERRITORY OF THE CITY OF DUBLIN; 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 Dublin (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 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
AllianceNRG Program (presently
Engineering, LLC), PACE Fundin g
Capital and Spruce Finance; and
consisting of CounterPointe
LLC, Renewable Funding
in administering Programs are the
Energy Solutions LLC and Leidos
LLC, CleanFund Commercial PACE
WHEREAS, Chapter 29 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 the owners of property (Participating Property Owners)
within its territory to participate in the 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 Programs shall
include all of the territory within the City's official boundaries; and
WHEREAS, the Authority will conduct all assessment proceedings under Chapter 29 for the
Programs and issue any bonds issued in connection with the Programs; and
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
Reso No. 02 -17, Adopted 01/10/2017, Item No. 4.3 Page 1 of 3
assessment payments; or the issuance, sale or administration of any bonds issued in connection with
the Programs.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does as
follows:
Section 1. This City Council hereby finds and declares that properties in the territory of the
City will benefit from the availability of the 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 Programs.
Section 3. The appropriate officials and staff of the City are hereby authorized and directed
to make applications for the Programs available to all property owners who wish to finance or
refinance Improvements; provided, that the Authority shall be responsible for 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: Environmental Coordinator.
Section 4. The appropriate officials and staff of the City 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.
Section 5. 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 6. This Resolution shall take effect immediately upon its adoption. The City Clerk is
hereby authorized and directed to transmit a certified copy of this resolution to the Secretary of the
Authority at: Secretary of the Board, California Statewide Communities Development Authority, 1400
K Street, Sacramento, CA 95814.
Reso No. 02 -17, Adopted 01/10/2017, Item No. 4.3 Page 2 of 3
PASSED, APPROVED AND ADOPTED this 10th day of January 2017, by the following vote:
AYES: Councilmembers Biddle, Goel, Gupta, Hernandez and Mayor Haubert
NOES:
ABSENT:
ABSTAIN:
ATTEST:
rglyz-e-k
City Clerk
Reso No. 02 -17, Adopted 01/10/2017, Item No. 4.3 Page 3 of 3
RESOLUTION NO. xx-17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***********
CONSENTING TO INCLUSION OF PROPERTIES WITHIN THE CITY OF DUBLIN’S
JURISDICTION IN THE GOLDEN STATE FINANCE AUTHORITY COMMUNITY
FACILITIES DISTRICT NO. 2014-1 (CLEAN ENERGY) TO FINANCE RENEWABLE
ENERGY IMPROVEMENTS, ENERGY EFFICIENCY AND WATER CONSERVATION
IMPROVEMENTS, ELECTRIC VEHICLE CHARGING INFRASTRUCTURE AND
OTHER IMPROVEMENTS; AND APPROVING ASSOCIATE MEMBERSHIP IN THE
JOINT EXERCISE OF POWERS AUTHORITY RELATED THERETO
WHEREAS, the Golden State Finance Authority, a California joint powers
authority formerly known as California Home Finance Authority (Authority), has
established the Community Facilities District No. 2014-1(Clean Energy) in accordance
with the Mello-Roos Community Facilities Act, set forth in sections 53311 through
53368.3 of the California Government Code (Act) and particularly in accordance with
sections 53313.5(l) and 53328.1(a) (District); and
WHEREAS, the purpose of the District is to finance or refinance (including the
payment of interest) the acquisition, installation, and improvement of energy efficiency,
water conservation, renewable energy and electric vehicle charging infrastructure
improvements permanently affixed to private or publicly-owned real property
(Authorized Improvements); and
WHEREAS, the City of Dublin is committed to development of renewable energy
generation and energy efficiency improvements, reduction of greenhouse gases, and
protection of the environment; and
WHEREAS, in the Act, the Legislature has authorized a parcel within the territory
of the District to annex to the District and be subject to the special tax levy of the District
only (i) if the city or county within which the parcel is located has consented, by the
adoption of a resolution by the applicable city council or county board of supervisors, to
the inclusion of parcels within its boundaries in the District and (ii) with the unanimous
written approval of the owner or owners of the parcel when it is annexed (Una nimous
Approval Agreement), which, as provided in section 53329.6 of the Act, shall constitute
the election required by the California Constitution; and
WHEREAS, the City wishes to provide innovative solutions to its property owners
to achieve energy efficiency and water conservation and in doing so cooperate with the
Authority in order to efficiently and economically assist property owners the City in
financing such Authorized Improvements; and
WHEREAS, the Authority has established the District, as permitted by the Act,
the Authority JPA, originally made and entered into July 1, 1993, as amended to date,
and the City, desires to become an Associate Member of the JPA by acknow ledgement
of the JPA Agreement to participate in the programs of the JPA, and to assist property
owners within the incorporated area of the City in financing the cost of installing
Authorized Improvements; and
WHEREAS, the City will not be responsible for the conduct of any special tax
proceedings; the levy and collection of special taxes or any required remedial action in
the case of delinquencies in the payment of any special taxes in connection with the
District.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. This City Council finds and declares that properties in the City’s
incorporated area will be benefited by the availability of the Authority CFD No. 2014-1
(Clean Energy) to finance the installation of the Authorized Improvements.
2. This City Council consents to inclusion in the Authority CFD No. 2014-1
(Clean Energy) of all of the properties in the incorporated area within the City and to the
Authorized Improvements, upon the request of and execution of the Unanimous
Approval Agreement by the owners of such properties when such properties are
annexed, in compliance with the laws, rules and regulations applicable to such program;
and to the assumption of jurisdiction there over by Authority for the purposes thereof.
3. The consent of this City Council constitutes assent to the assumption of
jurisdiction by Authority for all purposes of the Authority CFD No. 2014-1 (Clean Energy)
and authorizes Authority, upon satisfaction of the conditions imposed in this resolution,
to take each and every step required for or suitable for financing the Authorized
Improvements.
4. City staff is authorized and directed to coordinate with Authority staff to
facilitate operation of the Authority CFD No. 2014-1 (Clean Energy) within the City, and
report back periodically to this City Council on the success of such program.
5. This Resolution shall take effect immediat ely upon its adoption. The City
Clerk is directed to send a certified copy of this resolution to the Secretary of the
Authority.
BE IT FURTHER RESOLVED that the City Council of the City of Dublin does
hereby approve joining the JPA as an Associate Member, with a copy of the JPA
Agreement attached hereto as Exhibit “A,” and authorizes the City Manager to execute
the Golden State Finance Authority Signature Page for New Associate Members
attached hereto as Exhibit “B,” and any necessary documents to effectuate such
membership.
PASSED, APPROVED AND ADOPTED this 5th day of December 2017 by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________________
Mayor
ATTEST:
_______________________________________
City Clerk
Attachments:
1. Exhibit A. GSFA JPA Agreement
2. Exhibit B. Golden State Finance Authority Signature Page for New Associate
Members
SIGNATURE PAGE FOR NEW ASSOCIATE MEMBERS
NAME OF COUNTY OR CITY:
______________________________ Dated:
By:
Name:
Title:
Attest:
By __________________________________
[Clerk of the Board Supervisors or City Clerk]
SIGNATURE PAGE FOR NEW ASSOCIATE MEMBERS
ACKNOWLEDGING RECEIPT OF THE GOLDEN STATE FINANCE AUTHORITY
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
CITY OF DUBLIN
By: Dated:
Christopher L. Foss,
City Manager
Attest:
By __________________________________
City Clerk
RESOLUTION NO. xx-17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***********
CONSENTING TO INCLUSION OF PROPERTIES WITHIN THE CITY OF DUBLIN’S
JURISDICTION IN THE GOLDEN STATE FINANCE AUTHORITY PROGRAM TO FINANCE
RENEWABLE ENERGY GENERATION, ENERGY AND WATER EFFICIENCY
IMPROVEMENTS, ELECTRIC VEHICLE CHARGING INFRASTRUCTURE, AND OTHER
IMPROVEMENTS AND APPROVING ASSOCIATE MEMBERSHIP IN THE JOINT
EXERCISE OF POWERS AUTHORITY RELATED THERETO
WHEREAS, the Golden State Finance Authority (GSFA) 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) (Act) and the Joint Power Agreement
entered into on July 1, 1993, as amended from time to time (GSFA JPA); and
WHEREAS, GSFA has established a property assessed clean energy (PACE) Program
(GSFA PACE Program) to provide for the financing of renewable energy generation, energy
and water efficiency improvements, electric vehicle charging infrastructure, and other
improvements (Improvements) pursuant to Chapter 29 of the Improvement Bond Act of 1911,
being Division 7 of the California Streets and Highways Code (Chapter 29) within counties and
cities throughout the State of California that e lect to participate in such program; and
WHEREAS, City of Dublin (City) is committed to development of renewable energy
generation and energy and water efficiency improvements, reduction of greenhouse gases,
and protection of the environment; and
WHEREAS, in Chapter 29, 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, installation of such Improvements by property owners within the
jurisdictional boundaries of the counties and cities that are participating in the GSFA PACE
Program would promote the purposes cited above; and
WHEREAS, the City wishes to provide innovative solutions to its property owners to
achieve energy and water efficiency, and in doing so cooperate with GSFA in order to
efficiently and economically assist property owners within the City in financing such
Improvements; and
WHEREAS, GSFA has established the GSFA PACE Program, which is such a
voluntary contractual assessment program, as permitted by the Act, the GSFA JPA, originally
made and entered into July 1, 1993, as amended to date, and the City, desires to become an
Associate Member of the JPA by acknowledgment of the JPA Agreement to participate in the
programs of the JPA, and to assist property owners within the jurisdiction of the City in
financing the cost of installing Improvements; 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 GSFA PACE Program.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. This City Council finds and declares that properties in the City’s incorporated
area will be benefited by the availability of the GSFA PACE Program to finance the installation
of the Improvements.
2. This City Council consents to inclusion in the GSFA PACE Program of all of the
properties in the jurisdictional boundaries of the City and to the Improvements, upon the
request by and voluntary agreement of owners of such properties, in compliance with the laws,
rules and regulations applicable to such program ; and to the assumption of jurisdiction there
over by GSFA for the purposes thereof.
3. The consent of this City Council constitutes assent to the assumption of
jurisdiction by GSFA for all purposes of the GSFA PACE Program and authorizes GSFA, upon
satisfaction of the conditions imposed in this resolution, to take each and every step required
for or suitable for financing the Improvements, including the levying, collecting and
enforcement of the contractual assessments to finance the Improvements and the issuan ce
and enforcement of bonds to represent such contractual assessments.
4. City staff is authorized and directed to coordinate with GSFA Authority staff to
facilitate operation of the GSFA PACE Program within the City.
5. This Resolution shall take effect immedia tely upon its adoption. The City Clerk is
directed to send a certified copy of this resolution to the Secretary of the Authority.
BE IT FURTHER RESOLVED that the City Council of the City of Dublin does hereby
approve joining the JPA as an Associate Member, with a copy of the JPA Agreement attached
hereto as Exhibit “A,” and authorizes the City Manager to execute the Golden State Finance
Authority Signature Page for New Associate Members attached hereto as Exhibit “B,” and any
necessary documents to effectuate such membership.
PASSED, APPROVED AND ADOPTED this 5th day of December, 2017 by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_________________________________
Mayor
ATTEST:
_______________________________________
City Clerk
Attachments:
1. Exhibit A. Golden State Finance Authority JPA Agreement
2. Exhibit B. Golden State Finance Authority Signature Page for New Associate Members
SIGNATURE PAGE FOR NEW ASSOCIATE MEMBERS
NAME OF COUNTY OR CITY:
______________________________ Dated:
By:
Name:
Title:
Attest:
By __________________________________
[Clerk of the Board Supervisors or City Clerk]
SIGNATURE PAGE FOR NEW ASSOCIATE MEMBERS
ACKNOWLEDGING RECEIPT OF THE GOLDEN STATE FINANCE AUTHORITY
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
CITY OF DUBLIN
By: Dated:
Christopher L. Foss,
City Manager
Attest:
By __________________________________
City Clerk
JOINT EXERCISE OF POWERS AGREEMENT
RELATING TO THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY
-qoj�-- I LA
THIS AGREEMENT, dated as of January 1, 2004, among the parties executing this
Agreement (all such parties, except those which have withdrawn as provided herein, are referred
to as the "Members" and those parties initially executing this Agreement are referred to as the
"Initial Members "):
WITNESSETH
WHEREAS, pursuant to Title 1, Division 7, Chapter 5 of the California Government
Code (in effect as of the date hereof and as the same may from time to time be amended or
supplemented, the "Joint Exercise of Powers Act "), two or more public agencies may by
agreement jointly exercise any power common to the contracting parties; and
WHEREAS, each of the Members is a "public agency" as that term is defined in Section
6500 of the Joint Exercise of Powers Act; and
WHEREAS, each of the Members is empowered by law to promote economic, cultural
and community development, including, without limitation, the promotion of opportunities for
the creation or retention of employment, the stimulation of economic activity, the increase of the
tax base, and the promotion of opportunities for education, cultural improvement and public
health, safety and general welfare; and
WHEREAS, each of the Members may accomplish the purposes and objectives described
in the preceding preamble by various means, including through making grants, loans or
providing other financial assistance to governmental and nonprofit organizations; and
WHEREAS, each Member is also empowered by law to acquire and dispose of real
property for a public purpose; and
WHEREAS, the Joint Exercise of Powers Act authorizes the Members to create a joint
exercise of powers entity with the authority to exercise any powers common to the Members, as
specified in this Agreement and to exercise the additional powers granted to it in the Joint
Exercise of Powers Act and any other applicable provisions of the laws of the State of California;
and
WHEREAS, a public entity established pursuant to the Joint Exercise of Powers Act is
empowered to issue or execute bonds, notes, commercial paper or any other evidences of
indebtedness, including leases or installment sale agreements or certificates of participation
therein (herein "Bonds "), and to otherwise undertake financing programs under the Joint
Exercise of Powers Act or other, applicable provisions of the laws of the State of California to
accomplish its public purposes; and
Exhibit A to
Attachment I
•J
J If
WHEREAS, the Members have determined to specifically authorize a public entity
authorized pursuant to the Joint Exercise of Powers Act to issue Bonds pursuant to the Joint
Exercise of Powers Act or other applicable provisions of the laws of the State of California; and
WHEREAS, it is the desire of the Members to use a public entity established pursuant to
the Joint Exercise of Powers Act to undertake the financing and/or refinancing of projects of any
nature, including, but not limited to, capital or working capital projects, insurance, liability or
retirement programs. or facilitating Members use of existing or new financial instruments and
mechanisms; and
WHEREAS, it is further the intention of the Members that the projects undertaken will
result in significant public benefits to the inhabitants of the jurisdictions of the Members; and
WHEREAS, by this Agreement, each Member. desires to create and establish the
"California Municipal Finance Authority" for the purposes set forth herein and to exercise the
powers provided herein;
NOW, THEREFORE, the Members, for and in consideration of the mutual promises and
agreements herein contained, do agree as follows:
Section 1. Purpose.
This Agreement is made pursuant to the provisions of the Joint Exercise of Powers Act.
The purpose of this Agreement is to establish a public entity for the joint exercise of powers
common to the Members and for the exercise of additional'powers given to a joint powers entity
under the Joint Powers Act or any other applicable law, including, but not limited to, the
issuance of Bonds for any purpose or activity permitted under the Joint Exercise of Powers Act
or any other applicable law. Such purpose will be accomplished and said power exercised in the
manner hereinafter set forth.
Section 2. Term.
This Agreement shall become effective in accordance with Section 17 as of the date
hereof and shall continue in full force and effect until such time as it is terminated in writing by
all the Members; provided, however, that this Agreement shall not terminate or be terminated
until all Bonds issued or caused to be issued by the Authority (defined below) shall no longer be
outstanding under the terms of the indenture, trust agreement or other instrument pursuant to
which such Bonds are issued, or unless a successor to the Authority assumes all of the
Authority's debts, liabilities and obligastions.
Section-3. Authority.
A. CREATION AND POWERS OF AUTHORITY.
Pursuant to the Joint Exercise of Powers Act, there is hereby created a public
entity to be known as the "California Municipal Finance Authority" (the "Authority "),
and said Authority shall be a public entity separate and apart from the Members. Its
0 (-' -
debts, liabilities and obligations do not constitute debts, liabilities or obligations of any
Members.
I: :••' �
The Authority shall be administered by the Board of Directors (the "Board," or
the "Directors" and each a "Director ") of the California Foundation for Stronger
Communities, a nonprofit public benefit corporation organized under the laws of the
State of California (the "Foundation "), with each such Director serving in his or her
individual capacity as a Director of the Board. The Board shall be the administering
agency of this Agreement and, as such, shall be vested with the powers set forth herein,
and shall administer this Agreement in accordance with the purposes and functions
provided herein. The number of Directors, the appointment of Directors, alternates and
successors, their respective terms of office, and: all other provisions relating to the
qualification and office of the Directors shall be as provided in the Articles and Bylaws
of the Foundation, or by resolution of the Board adopted in accordance with the Bylaws
of the Foundation.
All references in this Agreement to any Director shall be deemed to refer to and
include the applicable alternate Director, if any, when so acting in place of a regularly
appointed Director.
Directors may receive reasonable compensation for serving as such, and shall be
entitled to reimbursement for any expenses actually incurred in connection with serving
as a Director, if the Board shall determine that such expenses shall be reimbursed and
there are unencumbered funds available for such purpose.
The Foundation may be removed as administering agent hereunder and replaced
at any time by amendment of this Agreement approved as provided in Section 16;
provided that a successor administering agent of this Agreement has been appointed -and
accepted its duties and responsibilities under this Agreement.
C. OFFICERS; DUTIES; OFFICIAL BONDS.
The officers of the Authority shall be the Chair, Vice - Chair, Secretary and
Treasurer (defined below). The Board, in its capacity as administering agent of this
Agreement, shall elect a Chair, a Vice - Chair, and a Secretary of the Authority from
among Directors to serve until such officer is re- elected or a successor to such office is
elected by the Board. The Board shall appoint one or more of its officers or employees to
serve as treasurer, auditor, and- controller of the Authority (the "Treasurer ") pursuant to
Section 6505.6 of the Joint Exercise of Powers Act to serve until such officer is re- elected
or a successor to such office is elected by the Board.
Subject to the applicable provisions of any resolution, indenture, trust agreement
or other instrument or proceeding authorizing or- securing Bonds (each such resolution,
indenture, trust agreement, instrument and proceeding being herein referred to as an
"Indenture ") providing for a trustee or other fiscal agent, and except as may otherwise be
specif ed by resolution of the Board, the Treasurer is designated as the depositary of the
Authority to have custody of all money of the Authority, from whatever source derived
and shall have the powers, duties and responsibilities specified in Sections 6505, 6505.5
and 6509.5 of the Joint Exercise of Powers Act.
The Treasurer of the Authority is designated as the public officer or person who
has charge of, handles, or has access to any property of the Authority, and such officer
shall file an official bond with the Secretary of the Authority in the amount specified by
resolution of the Board but in no event less than $1,000.
The Board shall have the power to appoint such other officers and employees as it
may deem necessary and to retain independent counsel, consultants and accountants.
The Board shall have the power, by resolution, to the extent permitted by the Joint
Exercise of Power Act or any other applicable law, to delegate any of its functions to one
or more of the Directors or officers, employees or agents of the Authority and to cause
any of said Directors, officers, employees or agents to take any actions and execute any
documents or instruments for and in the name and on behalf of the Board or the
Authority.
D. MEETINGS OF THE BOARD.
(1) Ralph M. Brown Act.
All meetings of the Board, including, without limitation, regular,
adjourned regular, special, and adjourned special meetings shall be called,
noticed, held and conducted in accordance with the provisions of the
Ralph M. .Brown Act (commencing with Section 54950 of the
Government Code of the State of California), or any successor legislation
hereinafter enacted (the "Brown Act ").
(2) Regular Meetings
The Board shall provide for its regular meetings; provided,
however, it shall hold at least one regular meeting each year. The date,
hour and place of the holding of the regular meetings shall be fixed by
resolution of the Board. To the extent permitted by the Brown Act, such
meetings may be held by telephone conference.
(3) Special Meetings.
Special meetings of the Board may be called in accordance with
the provisions of Section 54956 of the Government Code of the State of
California.. To the extent permitted by the Brown Act, such meetings may
be held by telephone conference.
7
(4) Minutes.
The Secretary of the Authority shall cause to be kept minutes of
the regular, adjourned regular, special, and adjourned special meetings of
the Board and shall, as soon as possible after each meeting, cause a copy
of the minutes to be forwarded to each Director.
(5) Quoru m.
A majority of the Board shall constitute a quorum for the
transaction of business. No action may be taken by the Board except upon
the affirmative vote of a majority of the Directors constituting a quorum,
except that less than a quorum may adjourn a meeting to another time and
place.
E. RULES AND REGULATIONS.
The Authority may adopt, from time to time, by resolution of the Board such rules
and regulations for the conduct of its meetings and affairs as may be required.
Section 4. Powers.
The Authority shall have the power, in its own name, to exercise the common powers of
the Members and to exercise all additional powers given to a joint powers entity under any of the
laws of the State of California, including, but not limited to, the Joint Exercise of Powers Act, for
any purpose authorized under this Agreement. Such powers shall include the common powers
specified in this Agreement and may be exercised in the manner and according to the method
provided in this Agreement. The Authority is hereby authorized to do all acts necessary for the
exercise. of such power, including, but not limited to, any of all of the following: to make and
enter into contracts; to employ agents and employees; to acquire, construct, provide for
maintenance and operation of, or maintain and operate, any buildings, works or improvements;
to acquire, hold or dispose of property wherever located; to incur debts, liabilities or obligations;
to receive gifts, contributions and donations of property, funds, services, and other forms of
assistance from person, firms, corporations and any governmental entity; to sue and be sued in its
own name; to make grants, loans or provide other financial assistance to governmental and
nonprofit organizations (e.g., the Members or the Foundation) to accomplish any of its purposes;
and generally to do any and all things necessary or convenient to accomplish its purposes.
. Without limiting the generality of the foregoing, the Authority may issue or cause to be
issued Bonds, and pledge any property or revenues as security to the extent permitted under the
Joint Exercise of Powers Act, or any other applicable provision of law; provided, however, the
Authority shall not issue Bonds with respect to any project located in the jurisdiction of one or
more. Members unless the governing body of any such Member, or its duly authorized
representative, shall approve, conditionally or unconditionally, the project, including the issuance
of Bonds therefor. Such approval may be evidenced by resolution, certificate, order, report or
such other means of written approval of such project as may be selected by the Member (or its
authorized representative) whose approval is required. No such approval shall be required in
connection with Bonds that refund Bonds previously issued by the Authority and approved by
the governing board of a Member.
The manner in which the Authority shall exercise its powers and perform its duties is and
shall be subject to the restrictions upon the manner in which a California general law city could
exercise such powers and perform such duties. The manner in which the Authority shall exercise
-its powers and perform its duties shall not be subject to any restrictions applicable to the manner
in which any other public agency could exercise such powers or perform such duties; whether
such agency is a party to this Agreement or not.
.Section 5. Fiscal Year.
For the purposes of this Agreement, the term "Fiscal Year" shall mean the fiscal year as
established from time to time by resolution of the Board, being, at the date of this Agreement, the
period from July 1 to and including the following June 30, except for. the first Fiscal Year which
shall be the period from the date of this Agreement to June 30, 2004.
Section 6. Disposition of Assets.
At the end of the term hereof or upon the earlier termination of this Agreement as set
forth in Section 2, after payment of all expenses and liabilities of the Authority, all property of
the Authority both real and personal shall automatically vest in the Members in the manner and
amount determined by the Board in its sole discretion and shall thereafter remain the sole
property of the Members; provided, however, that any surplus money on hand shall be returned
in proportion to the contributions made by the Members.
Section 7. Bonds.
From time to time the Authority shall issue Bonds, in one or more series, for the purpose
of exercising its powers and raising the funds necessary to carry out its purposes under this
Agreement.
The services of bond counsel, financing consultants and other consultants and advisors
working on the projects and/or their financing shall be used by the Authority. The expenses of
the Board shall be paid from the proceeds of the Bonds or any other unencumbered funds of the
Authority available for such purpose.
Section 8. Bonds Only Limited and Special Obligations of Authority.
The Bonds, together with the interest and premium, if any, thereon, shall not be deemed
to constitute a debt of. any Member or pledge of the faith and credit of the Members or the
Authority. The Bonds shall be only special obligations of the Authority, and the Authority shall
under no circumstances be obligated to pay the Bonds except from revenues and other funds
pledged therefor. Neither the Members nor the Authority shall be obligated to pay the principal
of, premium, if any, or interest on the Bonds, or other costs incidental thereto, except from the
revenues and funds pledged therefor, and neither the faith and credit nor the taxing power of the
Members nor the faith and credit of the Authority shall be pledged to the payment of the
110 , / i
principal of, premium, if any, or interest on the Bonds nor shall the Members or the Authority in
any manner be obligated-to inake any appropriation for, such payment.
No covenant, or agreement contained in any Bond or related document shall be deemed to
be a covenant or agreement of any Director, or any officer, employee or agent of the Authority in
his or her individual capacity and neither the Board of the Authority nor any Director or officer
thereof executing the Bonds shall be liable personally on any Bond or be subject to any personal
liability or accountability by reason of the issuance of any Bonds.
Section 9. Accounts and Reports.
All funds of the Authority shall be strictly accounted for. The Authority shall establish
and maintain such funds and accounts as may be required by good accounting practice and by
any provision of any Indenture (to the extent such duties are not assigned to a trustee of Bonds).
The books and records of the Authority shall be open to inspection at all reasonable times by
each Member.
The Treasurer of the Authority shall cause an independent audit to be made of the books
of accounts and financial records of the Authority by a certified public accountant or public
accountant in compliance with the provisions of Section 6505 of the Joint Exercise of Powers
Act. In each case the minimum requirements of the audit shall be those prescribed by the State
Controller for special districts under Section 26909 of the Government Code of the State of
California and shall conform to generally accepted auditing standards. When such an audit of
accounts and records is made by a certified public accountant or public accountant, a report
thereof shall be filed as a public record with each Member and also with the county auditor of
each county in which a Member is located; provided, however, that to the extent permitted by
law, the Authority may, instead of filing such report with each Member and such county auditor,
elect to post such report as a public record electronically on a website designated by the
Authority. Such report if made shall be filed within 12 months of the end of the Fiscal Year or
Years under examination.
The Treasurer is hereby directed to report in writing on the first day of July, October,
January, and April of each year to the Board and the Members which report shall describe the
amount of money held by the Treasurer for the Authority, the amount of receipts since. the last
such report, and the amount paid out since the last such report (which may exclude amounts held
by a trustee or other fiduciary in connection with any Bonds to the extent that such trustee or
other fiduciary provided regular reports covering such amounts.)
Any costs of the audit, including contracts with, or employment of, certified public
accountants or public accountants in making an audit pursuant to this Section, shall be borne by
the Authority and shall be a charge against any unencumbered funds of the Authority available
for that purpose.
In any Fiscal Year the Board may, by resolution adopted by unanimous vote, replace the
annual special audit with an audit covering a two -year period.
o
Section 10. Funds.
Subject to the applicable provisions of any Indenture, which may provide for a trustee or
other fiduciary to receive, have custody of and disburse Authority funds, the Treasurer of the
Authority shall receive, have the custody of and disburse Authority funds pursuant to the
accounting procedures developed under Sections 3.0 and 9, and shall make the disbursements
required by this Agreement or otherwise necessary to carry out any of the provisions of purposes
of this Agreement.
Section 11. Notices.
Notices and other communications hereunder to the Members shall be sufficient if
delivered to the clerk of the governing body of each Member; provided, however, that to the,
extent permitted by law, the Authority may, provide notices and other communications and
postings electronically (including, without limitation, through email or by posting to a website).
Section 12. Additional Members/Withdrawal of Members.
Qualifying public agencies may be added as parties to this Agreement and become
Members upon: (1) the filing by such public agency with the Authority of an executed
counterpart of this Agreement, together with a copy of the resolution of the governing body of
such public agency approving this Agreement and the execution and delivery hereof; and (2)
adoption of a resolution of the Board approving the addition of such public agency as a Member.
Upon satisfaction of such conditions, the Board shall file such executed counterpart of this
Agreement as an amendment hereto, effective upon such filing.
A Member may withdraw from this Agreement upon written notice to the Board;
provided, however, that no such withdrawal shall result in the dissolution of the Authority so
long as any Bonds remain outstanding. Any such withdrawal shall be effective only upon receipt
of the notice of withdrawal by the Board which shall acknowledge receipt of such notice of
withdrawal in writing and shall file such notice as an amendment to this Agreement effective
upon such filing.
Section 13. Indemnification.
To the full extent permitted by law, the Board may authorize indemnification by the
Authority of any person who is or was a Director or an officer, employee of other agent of the
Authority, and who was or is a party or is threatened to be made a party to a proceeding by
reason of the fact that such person is or was such a Director or an officer, employee or other
agent of the Authority, against expenses, including attorneys fees, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with.such proceeding, if such
person acted in good faith in a manner such person reasonably believed to be in the best interests
of the Authority and, in the case of a criminal proceeding, had no reasonable cause to believe the
conduct of such person was unlawful and, in the case of an action by or in the right of the
Authority, acted with such care, including reasonable inquiry, as an ordinarily prudent person in
a like position would use under similar circumstances.
Section 14. Contributions and Advances.
Contributions or advances of public funds and of the use of personnel, equipment or
property may be made to the Authority by the Members for any of the purposes of this
Agreement. Payment of public funds may be made to defray the cost of any such contribution or
advance. Any such advance may be made subject to repayment, and in such case shall be repaid,
in the manner agreed upon by the Authority and the Member making such advance at the time of
such advance. It is ,mutually understood and agreed to that no Member has any obligation to
make advances or contributions to the Authority to provide for the costs and expenses of
administration of the Authority, even though any Member may do so. The Members understand
and agree that a portion of the funds of the Authority that otherwise may be allocated or
distributed_ to the Members may instead be used to make grants, loans or provide other financial
assistance to governmental units and nonprofit organizations (e.g., the Foundation) to
accomplish any of the governmental unit's or nonprofit o,rganization's purposes.
Section 15. Immunities.
All of the privileges and immunities from liabilities, exemptions from laws, ordinances
and rules, and other benefits which apply to the activity of officers, agents or employees of
Members when performing their respective functions within the territorial limits of .their
respective public agencies, shall apply to the same degree and extent to the Directors, officers,
employees, agents or other representatives of the Authority while engaged in the performance of
any of their functions or duties under the provisions of this Agreement.
Section 16. Amendments.
Except as.provided in Section 12 above, this Agreement shall not be amended, modified,
or altered, unless the negative consent of each of the Members is obtained. To obtain the
negative consent of each of the Members, the following negative consent procedure shall be
followed: (a) the Authority shall provide each Member with a notice at least sixty (60) days
prior to the date such proposed amendment is to become effective explaining the nature of such
proposed amendment and this negative consent procedure; (b) the Authority shall provide each
Member who did not respond a reminder notice with a notice at least thirty (30) days prior to the
date such proposed amendment is to become effective; and (c) if no Member objects to the
proposed amendment in writing within sixty (60) days after the initial notice, the proposed
amendment shall become effective with respect to all Members.
Section 17. Effectiveness.
This Agreement shall become effective and be in full force and effect and a legal, valid
and binding obligation of each of the Members on the date that the Board shall have received
from two of the Initial Members an executed counterpart of this Agreement, together with a
certified copy of a resolution of the governing body of each such Initial Member approving this
Agreement and the execution and delivery hereof.
Section 18. Partial Invalidity.
If any one or more of the terms, provisions, promises, covenants or conditions of this
Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any
reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms,
provisions, promises, covenants and conditions of this Agreement shall not be affected thereby,
and shall be valid and enforceable to the fullest extent permitted by law.
Section 19.. Successors.
This Agreement shall be binding upon and shall inure to the benefit of the successors of
the parties hereto. Except to the extent expressly provided herein, no Member may assigri any
right or obligation hereunder without the consent of the other Members.
Section 20. Miscellaneous.
This Agreement may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
The section headings herein are for convenience only and are not to be construed as
modifying or governing the language in the section referred to_
Wherever in this Agreement any consent or approval is required, the same shall not be
unreasonably withheld.
This Agreement shall be governed under the laws of the State of California.
This Agreement is the complete and exclusive statement of the agreement among the
Members, which supercedes and merges all prior proposals, understandings, and other
agreements, whether oral, written, or implied in conduct, between and among the Members
relating to the subject matter of this Agreement.
IN WITNESS WHEREOF, the City of Dublin has caused this Agreement to be executed
acid attested by its duly authorized representatives as of the 21 day of December, 2010.
Member:
CITY OF DUBLIN
By
Name: k-4-- C -1]�,� v
Title: C
ATTEST-1
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Name:
Title:
OHSUSA:759366422.3
RESOLUTION NO. xx-17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***********
CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE TERRITORY OF
THE CITY IN THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY OPEN PACE
PROGRAMS; AUTHORIZING THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY
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 (CMFA) 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 Dublin (City); and
WHEREAS, the CMFA is implementing Property Assessed Clean Energy
(PACE) programs, which it has designated CMFA Open PACE, consisting of CMFA
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 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.; BlueFlame PACE Services LLC; OnPACE
Energy Solutions, LLC; Petros PACE Administrator, LLC; Structured Finance
Associates, LLC; and Twain Community Partners II LLC; and the CMFA will notify the
City in advance of any additions or changes; and
WHEREAS, Chapter 29 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 the owners of property (Participating
Property Owners) within its territory to participate in the Program s 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
2
OHSUSA:759366422.3
WHEREAS, the territory within which assessments may be levied for the
Programs shall include all of the territory within the City’s official boundaries; and
WHEREAS, the CMFA 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, administration
repayment or guarantee of any bonds issued in connection with the Programs;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Dublin
as follows:
1. This City Council hereby finds and declares that properties in the territory
of the City will benefit from the availability of the Program s within the territory of the City
and, pursuant thereto, the conduct of special assessm ent proceedings by the CMFA
pursuant to Chapter 29 and the issuance of bonds to finance or refinance
Improvements.
2. In connection with the Programs, the City hereby consents to the conduct
of special assessment proceedings by the CMFA 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
(a) 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
(b) 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,
administration, repayment or guarantee of any bonds issued in connection with
the Programs.
3. The appropriate officials and staff of the City 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.
4. The City may withdraw from the Programs or any Program upon six
months written notice to the CMFA. 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 30 days written notice to
the CMFA without (a) liability to the Authority or any affiliated entity, and (b) withdrawing
its consent and approval for the conduct of special assessment proceedin gs by any
other program administrators under the other Programs. The City’s withdrawal from any
3
OHSUSA:759366422.3
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 s uch withdrawal so
long as the application for such voluntary assessment contract was submitted to and
approved by the CMFA prior to the date of the City’s notice of withdrawal.
5. 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.
PASSED, APPROVED AND ADOPTED this 5th day of December, 2017 by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_________________________________
Mayor
ATTEST:
_______________________________________
City Clerk
RESOLUTION NO. xx-17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***********
AUTHORIZING APPROVAL OF PROPERTY ASSESSED CLEAN ENERGY
PROGRAMS
WHEREAS, City of Dublin (City) is committed to development of renewable
energy generation and energy and water efficiency improvements, reduction of
greenhouse gases, and protection of the environment; and
WHEREAS, in Chapter 29 of the Improvement Bond Act of 1911, being Division
7 of the California Streets and Highways Code (Chapter 29) the Legislature has
authorized cities and counties to assist property owners in financing the cost of installing
energy and water efficiency improvements (Improvements) through a voluntary
contractual assessment program; and
WHEREAS, property assessed clean energy (PACE) programs offer an
innovative mechanism for financing voluntary energy efficiency, renewable energy
improvements and seismic upgrades on residential and commercial properties; and
WHEREAS, the City wishes to provide innovative solutions to its property owners
to achieve energy and water efficiency and independence; and
WHEREAS, City Council has to date consented to the inclusion of properties
within the City of Dublin in five PACE Programs offered to commercial and residential
property owners; and
WHEREAS, creating a competitive PACE marketplace provides a variety of
options for home and business owners to finance improvement projects based on
finance terms, conditions of approval, and e ligible measures offered by the different
programs; and
WHEREAS, it is the intent of the City to streamline the process of PACE
Program approvals.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Dublin does hereby:
1) Authorize the City Manager to accept and allow new PACE Programs in the
City of Dublin and execute any agreements related thereto; and
2) Make these authorizations effective as of the date of this Resolution until
rescinded by the City Council.
PASSED, APPROVED AND ADOPTED this 5th day of December, 2017 by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________________
Mayor
ATTEST:
_______________________________________
City Clerk
RESOLUTION NO. xx-17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***********
ACKNOWLEDGING THE ASSOCIATION OF BAY AREA GOVERNMENTS’
REGIONAL COLLABORATIVE SERVICES AGREEMENT
WHEREAS, in Chapter 29 of the Improvement Bond Act of 1911, being Division
7 of the California Streets and Highways Code (Chapter 29) the Legislature has
authorized cities and counties to assist property owners in financing the cost of installing
energy and water efficiency improvements (Improvements) through a voluntary
contractual assessment program; and
WHEREAS, property assessed clean energy (PACE) programs offer an
innovative mechanism for financing voluntary energy efficiency, renewable energy
improvements and seismic upgrades on residential and commercial properties; and
WHEREAS, City Council has consented to the inclusion of properties within the
City of Dublin in five PACE Programs; and
WHEREAS, private financing companies entered the PACE market by partnering
with joint powers authorities (JPA) to establish and finance PACE programs; and
WHEREAS, the PACE provider’s primary relationship is with the JPA partner,
hence cities have had little control over local PACE activities; and
WHEREAS, to safeguard consumer interests and promote PACE program
success, the Association of Bay Area Governments (ABAG) and the Bay Area Regional
Energy Network developed the Regional Collaborative Services Agreement (RCSA)
which establishes the terms, conditions and rules each residential PACE provider will
follow when operating in the nine county ABAG territory.
.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Dublin does hereby:
1) Authorize execution by the City Manager of the ABAG member
acknowledgement forms (Acknowledgements) for each of the residential
PACE providers operating in the City of Dublin that have signed the RCSA
with ABAG.
2) Authorize the City Manager to execute acknowledgment forms for PACE
providers that sign the RCSA subsequent to the date of this Resolution.
3) Direct the City Clerk to send a copy of the Acknowledgement s to ABAG and
the PACE Providers included herein as Exhibit “A.”
PASSED, APPROVED AND ADOPTED this 5th day of December, 2017 by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________________
Mayor
ATTEST:
_______________________________________
City Clerk
Attachments:
1. Exhibit A – ABAG Member Acknowledgement Forms
Exhibit A.
ABAG Member Acknowledgement Forms
TO: CounterPointe Energy Solutions (CA), LLC:
IN WITNESS WHEREOF, City of Dublin has executed this Agreement as of December 5, 2017.
City of Dublin:
By: __________________________________
Christopher L. Foss,
City Manager
Method and Place of Giving Notice. All notices to City of Dublin shall be made in writing and
shall be given by personal delivery or by U.S. Mail or courier service. Notices shall be
addressed as follows and as set forth in the signature page for City of Dublin:
Name: Environmental Coordinator
Address: Public Works/Environmental Services Division
100 Civic Plaza
Dublin, CA 94568
Phone Number: 925-833-6630
E-mail: environmental.services@dublin.ca.gov
TO: Energy Efficient Equity:
IN WITNESS WHEREOF, City of Dublin has executed this Agreement as of December 5, 2017.
City of Dublin:
By: __________________________________
Christopher L. Foss,
City Manager
Method and Place of Giving Notice. All notices to City of Dublin shall be made in writing and
shall be given by personal delivery or by U.S. Mail or courier service. Notices shall be
addressed as follows and as set forth in the signatur e page for City of Dublin:
Name: Environmental Coordinator
Address: Public Works/Environmental Services Division
100 Civic Plaza
Dublin, CA 94568
Phone Number: 925-833-6630
E-mail: environmental.services@dublin.ca.gov
TO: Figtree Company, Inc.:
IN WITNESS WHEREOF, City of Dublin has executed this Agreement as of December 5, 2017.
City of Dublin:
By: __________________________________
Christopher L. Foss,
City Manager
Method and Place of Giving Notice. All notices to City of Dublin shall be made in writing and
shall be given by personal delivery or by U.S. Mail or courier service. Notices shall be
addressed as follows and as set forth in the signature page for City of Dublin:
Name: Environmental Coordinator
Address: Public Works/Environmental Services Division
100 Civic Plaza
Dublin, CA 94568
Phone Number: 925-833-6630
E-mail: environmental.services@dublin.ca.gov
TO: PACE Funding Group LLC,:
IN WITNESS WHEREOF, City of Dublin has executed this Agreement as of December 5, 2017.
City of Dublin:
By: __________________________________
Christopher L. Foss,
City Manager
Method and Place of Giving Notice. All notices to City of Dublin shall be made in writing and
shall be given by personal delivery or by U.S. Mail or courier service. Notices shall be
addressed as follows and as set forth in the signature page for City of Dublin:
Name: Environmental Coordinator
Address: Public Works/Environmental Services Division
100 Civic Plaza
Dublin, CA 94568
Phone Number: 925-833-6630
E-mail: environmental.services@dublin.ca.gov
TO: Western Riverside Council of Governments:
IN WITNESS WHEREOF, City of Dublin has executed this Agreement as of December 5, 2017.
City of Dublin:
By: __________________________________
Christopher L. Foss,
City Manager
Method and Place of Giving Notice. All notices to City of Dublin shall be made in writing and
shall be given by personal delivery or by U.S. Mail or courier service. Notices shall be
addressed as follows and as set forth in the signature page for City of Dublin:
Name: Environmental Coordinator
Address: Public Works/Environmental Services Division
100 Civic Plaza
Dublin, CA 94568
Phone Number: 925-833-6630
E-mail: environmental.services@dublin.ca.gov
TO: Ygrene Energy Fund California, LLC.:
IN WITNESS WHEREOF, City of Dublin has executed this Agreement as of December 5, 2017.
City of Dublin:
By: __________________________________
Christopher L. Foss,
City Manager
Method and Place of Giving Notice. All notices to City of Dublin shall be made in writing and
shall be given by personal delivery or by U.S. Mail or courier service. Notices shall be
addressed as follows and as set forth in the signature page for City of Dublin:
Name: Environmental Coordinator
Address: Public Works/Environmental Services Division
100 Civic Plaza
Dublin, CA 94568
Phone Number: 925-833-6630
E-mail: environmental.services@dublin.ca.gov
Exhibit 16. Compendium of Fully Executed RCSA Documents
AGREEMENT FOR COLLABORATIVE SERVICES
FOR PROPERTY ASSESSED CLEAN ENERGY FINANCING
This Agreement ("Agreement"), dated as of _.....:........L _____ -' 2016 r'Effective
Date") is by and among the Association of Bay Area Governments (hereinafter IIABAG"),
[CounterPointe Energy Solutions (CA) LLCL (hereinafter "PACE Provider"), as an entity
administering a Property Assessed Clean Energy (PACE) financing program utilizing
either the California Assembly Bill 811 and/or California Senate Bill 555 model and the
RECITALS
WHEREAS, ABAG is committed to mitigating and adapting to the causes and impacts of
climate change and supporting energy independence from fossil fuels to safeguard the
environment, human health and the economy; and
WHEREAS, ABAG as Program Administrator for the Bay Area Regional Energy Network
(BayREN), works closely with 101 cities in the nine county Bay Area region (ABAG
territory) to develop and implement innovative energy efficiency programs, including
supporting commercial and residential Property Assessed Clean Energy (PACE)
programs; and
WHEREAS, the BayREN offers programs, technical resources and education for energy
upgrades and retrofits; and
WHEREAS, the objective of the BayREN is to help property owners save energy, save
money, and live comfortably; and
WHEREAS, the BayREN seeks to assist local governments to understand all aspects of
partnering with PACE Providers in order to minimize customer confusion, provide access
to education and information to property owners and assist with making informed
decisions on rebates and incentives, contractor programs, and financing options; and
WHEREAS, the PACE Provider is willing to participate to support community climate
goals and minimize consumer and contractor confusion; and
WHEREAS, the PACE Provider will provide support and resources to Participating Entity
as requested related to education, outreach and development of the energy upgrade
industry and trades; and
WHEREAS, the PACE Provider will support, align and integrate its efforts with the
community-wide goals for job creation, resource demand reduction, and renewable
energy generation; and
WHEREAS, the~PACEProvider~wllLestablish~OWI+~interestrates, repayment terms, and
fees as state and federal laws and the market defines and allows; and
WHEREAS, the PACE Provider will arrange for the collection of Property Assessed Clean
Energy assessments it has financed directly with the Participating Entity's County Tax
Collector's Office; and
WHEREAS, this Agreement does not include any financial arrangements between the
PACE Provider, ABAG and the Participating Entity that signs this Agreement, nor does it
preclude any separate contracts, contract terms for services or support; and
WHEREAS, the purpose of this Agreement is to set forth the mutual understandings
between ABAG and the PACE Provider and to establish basic operating procedures for
any PACE provider operating within the ABAG territory.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, the parties hereto agree as follows:
AGREEMENT
1 Definitions.
1.1 ((Eligible improvement" is a technology, product or tool officially approved by
the PACE provider. The improvements may include distributed generation
renewable energy sources, energy and water efficiency improvements, and
electric vehicle charging infrastructure improvements that will be permanently
affixed to real property, and any additional improvements deemed eligible in
the future by the California Legislature and/or the California Judiciary.
1.2 IIPACE Provider" is an entity participating in ABAG territory administering a
program providing Property Assessed Clean Energy (PACE) financing.
1.3 "Participating Entity" is any city, town, county or the City and County of San
Francisco located within ABAG's geographical boundaries that adopt this
Agreement.
1.4 IlParticipating Contractor" is any contractor that has agreed to, and abides, by
the terms and conditions of the PACE Provider's contractor standards.
1.5 "Property Assessed Clean Energy (PACE) Financing" is a means of financing
distributed generation, renewable energy sources, energy and water efficiency
improvements, electric vehicle charging infrastructure and other
improvements deemed eligible by the California legislature that will be
permanently affixed to real property, whereby the funds provided to pay for
the improvements are repaid through contractual assessments and/or special
taxes, utilizing either California Assembly Bill 811 (Levine, 2008) ("AB 811"),
which amended §§5898.10-5899.3 of the California Streets and Highways
Code; or California Senate Bill 555 (Hancock, 2011) ("SB 555/1), which amended
certain portions of §§53311-53368.3 of the California Government Code and
each as subsequently amended.
1.6 "Work" as defined throughout this Agreement is the collaborative, non-
competitive, effort between the PACE Provider and ABAG to support the
citizens of ABAG member jurisdictions in completing water, energy efficiency
upgrades, and the installation of renewable energy generating improvements.
2 Scope of Work I Collaboration.
2.1 PACE Provider's Specified Services. The PACE Provider will offer and provide
Property Assessed Clean Energy Financing under the requirements of AB 811
and/or SB 555.
2.2 Performance Standard. PACE Provider shall perform all work hereunder in a
manner consistent with the level of competency and standard of care normally
observed by an organization administering a Property Assessed Clean Energy
financing program pursuant to California Assembly Bill 811 and/or California
Senate Bill 555. ABAG has relied upon the professional ability and expertise of
PACE Provider as a material inducement to enter into this Agreement. PACE
Provider hereby agrees to provide all services under this Agreement in
accordance with generally accepted professional practices and standards of
care, as well as the requirements of applicable federat state and local laws. If
ABAG is concerned that any of PACE Provider's work is not in accordance with
the level of competency and standard of care described herein, ABAG shall
have the right to do any or all of the following: (a) require PACE Provider to
discuss with Participating Entity and/or to review the quality of the work and
resolve matters of concern; (b) terminate this Agreement pursuant to the
provisions of Section 5, Termination; or (c) pursue any and all other remedies
available to ABAG at law or in equity.
Financing Provision Requirements.
The PACE Provider will:
2.3.1 Include a process to receive acknowledgement and confirmation of
satisfaction with work completed from the applicant before project
payment is disbursed and have a published dispute resolution process
available for customers.
2.3.2 Provide summary of financing details (including assessment or special tax
amount and terms, financing installments and estimated administrative
expenses) to the applicant specific to the requested amount of the
financing.
2.3.3 For residential properties, require an applicant's acknowledgment of the
Federal Housing Finance Agency position on PACE by a separate
signature/initial acknowledgement, in a Residential Disclosure Signature
Form that is substantially similar in content to Attachment l(a) and/or
l(b), as approved by ABAG.
2.3.4 Provide training to contractors and information to property owners on
the availability of rebates (for all utility and generation types), including
and not limited to city and county rebate programs, BayREN programs,
PG&E programs, and other such offerings. (For information about local
programs, the contractor and/or home owner may be directed to the
BayREN Home Upgrade Advisor at 866-878-6008.)
2.3.5 Require that applicable building permits are obtained for all
improvements in Participating Entities.
2.3.6 Verify that property owners are current on all property taxes for the
subject property.
2.3.7 Recommend that property owners consult with a tax professional prior to
claiming any tax deductions associated with the project and not
recommend that homeowners take any particular filing position
regarding their annual or semi-annual PACE assessment payments.
2.3.8 Not represent that the full assessment is tax deductible.
2.3.9 Have a consistent plan for removal of assessments at end of repayment
term, prepayment and/or in the event of program closure.
The PACE Provider will:
For programs offering residential PACE financing, be an active participant
in the California Alternative Energy and Advanced Transportation
Financing Authority (CAEATFA) PACE Loan Loss Reserve Program or
comparable loan loss reserve program which includes at minimum the
parameters outlined in Attachment 2.
2.4.2 Notify ABAG six months in advance if funding capacity available from the
PACE Provider to prospective PACE customers in the Participating Entity
operation.
2.4.3 Notify ABAG of any foreclosure action as a result of a default in the
payment of a PACE assessment on property within ABAG's geographical
boundaries, where the PACE assessment was originated by the PACE
Provider.
2.5 Documents, Data, and Information Policies.
The PACE Provider will:
2.5.1 Provide to Participating Entity (for internal evaluation purposes only and
not for distribution to any third party or for marketing purposes) by
request of Participating Entity, electronic access to the name, business
name, and California State Contractors license number of participating
contractors of the PACE Provider's program whose business address is
located in the requesting Participating Entity or who conduct business in
the requesting Participating Entity.
2.5.2 Retain completed Residential Disclosure (hardcopy or electronic) on file
for duration of assessment, and furnish to Participating Entity upon
request.
2.5.3 Provide upon request either direct real time access to data or quarterly
reports in an open electronic file format (such as Microsoft Excel) to
Participating Entity by request for internal evaluation purposes only (and
not for distribution to any third party, including! without limitation, utility
companies, services providers and equipment manufacturers or for
marketing purposes) that includes the following information for each
assessment:
a. Required data:
i. Assessor's Parcel Number (APN) of the property
ii. amount financed (the amount of the assessment
iii. Listing of all energy efficiency and water conservation
eligible improvements installed by virtue of the
financing, including the unit of measure for the
improvement and the quantity installed as captured by
Participating Contractor
iv. Listing of all renewable generation improvements
installed and the solar STC-DC rating in watts or kilowatts
as captured by Participating Contractor
v. Estimated energy and water savings (in appropriate
units) associated with the project
vi.
b. If available (in the aggregate):
i. Amount of rebate or incentive dollars associated with
the project (not financed) and the name of the program
ii. How the customer heard about PACE financing
iii. Why the customer selected PACE over other financing
instruments available
iv. Why the customer selected their final PACE Provider
over the other members
The Participating Entity will:
Maintain the privacy and security of data received from PACE Provider. Participating
Entity shall comply with all applicable state and federal laws, regulations and applicable
California Public Utilities Commission regulations. Participating Entity may only provide
reports relating to Section 2.s.3{a)(ii)-(v) for public distribution that aggregate the data
such that individual customer information cannot be identified, unless such customer
has authorized written release of individual customer information, and shall not share
with any third party reports relating to Section 2.s.3(b) (if any).
2.5.4 Provide the documents required for participation in the PACE Providers'
PACE Financing program to Participating Entity officials.
2.5.5 Provide support to Participating Entity's staff to facilitate adoption of
required participation documents.
2.6 ABAG will encourage Participating Entity to offer staff resources and
support to bring forward to their respective boards or councils the documents
provided by the PACE Provider required for participation in the PACE Provider's PACE
financing product.
2.7
The Parties will:
2.7.1 Collaborate on any local and/or regional efforts that may impact PACE
financing participation to achieve the best possible outcome for property
owners.
2.7.2 Represent the role of ABAG as the local neutral third party, not-for-profit,
public service agency supporting the public through the upgrade process,
with the following message to consumers: Among the financing products
available, competition is encouraged to the benefit of the consumer, with
The PACE Provider will:
2.7.3 Provide assistance to ABAG and any Participating Entity signing this
Agreement for: (1) coordinating and implementing the integration of the
PACE Provider into applicable BayREN and other relevant energy
efficiency programs; and (2) support of contractor training.
2.7.4 Provide specific training for participating contractors engaged with local
PACE programs using the PACE Provider's financing product, materials,
collateral, tools, and associated software, through training offered
directly from the PACE Provider.
2.7.5 Provide professional services, template documents, and other services
reasonably necessary to staff for integrating the PACE Provider's
financing option into the websites of any Participating Entity requesting
such assistance.
2.7.6 Provide training and resources to any Participating Entity as needed to
build understanding and support for use of the PACE financing product
ABAG will encourage ABAG members to:
2.7.7 Present with impartiality the financing products of the PACE Providers in
all venues to the public.
2.7.8 Present marketing collateral of all financing products (where applicable)
with impartiality in education and outreach materials and events
2.8 PACE Providers Responsibilities Regarding Participating Contractor.
PACE Providers will:
2.8.1 Require that contractors have the appropriate California State License
Board (CSLB) license in good standing
2.8.2 Require, in accordance with California State License Board requirements,
that contractors' bonding is in
2.8.3 Require, in accordance with California State license Board requirements,
that contractors have appropriate Workers' Compensation coverage
2.8.4 Require that contractors have a minimum of $lM of commercial general
liability insurance
2.8.5 NOT endorse, recommend, or refer any specific contractor other than
contractors who are to PACE Provider's knowledge, in good standing with
CSLB, are insured and meet material program eligibility requirements
2.8.6 NOT make any representation or warranty regarding the qualifications,
licensing, products, or workmanship of any contractor
2.8.7 NOT make any warranty regarding the contractor's work or products
purchased from contractors provided
2.8.8 NOT accept any liability that may be alleged to arise from the work of any
listed contractor on a customer project or from any reliance on any
claims, statements, or other descriptions regarding a contractor's
certifications, licenses, qualifications or products
2.8.9 Comply with provisions of Section 2.3.7 of this Agreement.
2.8.10 Via trainings and customer complaint system, require that contractors
and their representatives, employees, and agents do not represent
themselves as agents, representatives, contractors, subcontractors, or
employees of ABAG or any Participating Entity, or claim association or
affiliation with ABAG or any Participating Entity.
2.8.11 Independently engages the Participating Entity's Tax Collector for
administration of property tax assessments placed through its financing
product.
3 Payment. This Agreement does not include any financial arrangements between the
PACE Provider and ABAG, nor does it preclude any separate contracts for services or
support.
4 Term of Agreement. The term of this Agreement shall be from the Effective Date
until termination in accordance with the provisions of Section 5, Termination below.
5 Termination.
5.1 Termination without Cause. Notwithstanding any other provision of this
Agreement, at any time and without cause, ABAG, PACE Provider, or
PartiCipating Entity shall have the right, in its sole discretion, to terminate this
Agreement by giving 30 days written notice to the other Party of this
Agreement; provided that a
section shall not automatically terminate any other agreement or contract
between the other parties.
5.2 Termination for Cause. Notwithstanding any other provision of this Agreement,
should the PACE Provider fail to uphold any of its obligations under this
Agreement in a material way, within the time and in the manner herein
provided, or otherwise materially violate any of the terms of this Agreement,
ABAG or the Participating Entity may immediately terminate this Agreement by
giving PACE Provider written notice of such termination, stating the reason for
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automatically terminate any other agreement or contract between or among
the parties.
5.3 Delivery of Data and Information upon Termination. In the event of
termination, PACE Provider, within 14 days following the date of termination,
shall deliver to the extent legally permitted to Participating Entity all raw data
and information in an editable electronic format as outlined in and subject to
the terms of Section 2.5, Document, Data, and Information Policies.
5.4 Authority to Terminate. The Executive Director of ABAG has the authority to
terminate this Agreement on behalf of ABAG
5.5 Effect of Termination. Termination of this Agreement by ABAG or Participating
Entity shall not affect the ability to levy and collect assessments and the PACE
Provider's ability to issue bonds for assessment contracts located within the
jurisdiction of such entity which have been entered into prior to the date of
termination.
In the event of termination pursuant to this Section 5 by ABAG, ABAG may
notify all Participating Entities of said termination.
6 Hold Harmless, Indemnity and Waiver of Subrogation.
To the fullest extent allowed by law, PACE Provider shall defend, indemnify, save
harmless and waive subrogation against the ABAG, and its members, elected and
appointed officials, officers and employees {lndemnitees) against any and all liability,
claims, losses, damages, or expenses, including reasonable attorneys' fees, arising from
all acts or omissions to act of PACE Provider or its officers, agents, or employees in
rendering services under this contract; excluding, however, such liability, claims, losses,
damages or expenses resulting from an intentional act or the gross negligence of an
Indemnitee.
This section shall in no event be construed to require indemnification by PACE Provider
to a greater extent than permitted under public policy or the
California. These defense and indemnification obligations are undertaken in addition to,
and shall not in any way be limited by, the insurance obligations set forth in this
Agreement. These defense and indemnification obligations shall survive the termination
or expiration of the contract for the full period of time permitted by law.
7 Insurance Requirements. PACE provider shall obtain and maintain insurance as
required in Attachment 2.
8 Prosecution of Work. The execution of this Agreement shall constitute PACE
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Agreement.
9 Representations of PACE Provider.
9.1 Standard of Care. ABAG and Participating Entity have relied upon the
professional ability and training of PACE Provider as a material inducement to
entering into this Agreement. PACE Provider hereby agrees that all its work will
be performed and that its operations shall be conducted in accordance with
generally accepted and applicable professional practices and standards as well
as the requirements of applicable federal, state and local laws.
9.2 Status of PACE Provider. The parties intend that PACE Provider, in performing
the services specified herein, shall act as an independent contractor and shall
control the work and the manner in which it is performed. PACE Provider is not
to be considered an agent or employee of ABAG or the Participating Entity and
is not entitled to participate in any pension plan, worker's compensation plan,
insurance, bonus, employment protection, or similar benefits that ABAG or the
Participating Entity provides its employees.
9.3 Conflict of Interest. PACE Provider covenants that it presently has no interest
and that it will not acquire any interest, direct or indirect, that represents a
financial conflict of interest under state law or that would otherwise conflict in
any manner or degree with the performance of its services hereunder. PACE
Provider further covenants that in the performance of this Agreement no
person having any such interests shall be employed.
9.4 Statutory Compliance. PACE Provider agrees to comply with all federal, state
and local laws, regulations, statutes and policies applicable to the services
provided under this Agreement as they exist now and as they are changed,
amended or modified during the term of this Agreement.
9.5 Nondiscrimination. Without limiting any other provision hereunder, PACE
Provider shall comply with all applicable federal, state, and local laws, rules, and
regulations in regard to nondiscrimination in employment because of race,
color, ancestry, national origin, religion, sex, gender identity, marital status, age,
medical condition, pregnancy, disability, sexual orientation or other prohibited
basis. All nondiscrimination rules or regulations required by law to be included
in this Agreement are incorporated herein by this reference.
9.6 Authority. The undersigned hereby represents and warrants that he or she has
authority to execute and deliver this Agreement on behalf of PACE Provider.
10 Demand for Assurance. Each party to this Agreement undertakes the obligation
that the other's expectation of receiving due performance will not be impaired.
When reasonable grounds for insecurity arise with respect to the performance of
either party, the other may in writing demand adequate assurance of due
performance and until such assurance is received may, if commercially reasonable,
suspend any performance for which the agreed return has not been received.
"Commercially reasonable" includes not only the conduct of a party with respect to
performance under this Agreement, but also conduct with respect to other
agreements with parties to this Agreement or others. After receipt of a justified
demand, failure to provide within a reasonable time, but not exceeding thirty (30)
days, such assurance of due performance as is adequate under the circumstances of
the particular case is a repudiation of this Agreement. Acceptance of any improper
delivery, conduct, or service does not prejudice the aggrieved party's right to
demand adequate assurance of future performance. Nothing in this Article limits
the parties' right to terminate this Agreement pursuant to Section 5, Termination.
11 Assignment and Delegation. No party hereto shall assign, delegate, sublet, or
transfer any interest in or duty under this Agreement without the prior written
consent of the other, and no such transfer shall be of any force or effect whatsoever
unless and until the other party shall have so consented; provided however, that
PACE Provider may assign this Agreement in connection with a merger or the sale of
all or substantially all of its assets or equity ownership without the prior written
consent of any other party provided that the successor expressly assumes all of the
obligations, including this Agreement, and confirms all of the representations,
warranties and covenants of PACE Provider hereunder.
12 Method and Place of Giving Notice. All notices shall be made in writing and shall be
given by personal delivery or by U.S. Mail or courier service to:
TO: ABAG:
TO: PACE PROVIDER:
Address
Facsimile:
CounterPointe Energy Solutions (CA) LLC
6401 Congress Avenue, Suite 200
Boca Raton, FL 33487
Attn: David S. Schaefer
Chief Operating Officer
Email address:david@counterpointeep.com
When a notice is given by a generally recognized overnight courier service, the notice
shall be deemed received on the next business day. When a copy of a notice is sent by
facsimile or email, the notice shall be deemed received upon transmission as long as (1)
the original copy of the notice is promptly deposited in the U.S. mail and postmarked on
the date of the facsimile or email, (2) the sender has a written confirmation of the
facsimile transmission or email, and (3) the facsimile or email is transmitted before 5
p.m. (recipient's time). In all other instances, notices shall be effective upon receipt by
the recipient. Changes may be made in the names and addresses of the person to
whom notices are to be given by giving notice pursuant to this paragraph.
13 Miscellaneous Provisions.
13.1 No Waiver of Breach. The waiver by a party of any breach of any term or
promise contained in this Agreement shall not be deemed to be a waiver of
such term or provision or any subsequent breach of the same or any other
term or promise contained in this Agreement.
13.2 Construction. To the fullest extent allowed by law, the provisions of this
Agreement shall be construed and given effect in a manner that avoids any
violation of statute, ordinance, regulation, or law. The parties covenant and
that in the event provision of this is held a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired, or invalidated thereby. PACE Provider
and ABAG acknowledge that they have each contributed to the making of
this Agreement and that, in the event of a dispute over the interpretation of
this Agreement, the language of the Agreement will not be construed against
one party in favor of the other. Each party hereto acknowledges that they
have each had an adequate opportunity to consult with counsel in the
negotiation and preparation of this Agreement
13.3 Consent. Wherever in this Agreement the consent or approval of one party
is required to an act of the other party, such consent or approval shall not
be unreasonably withheld or delayed.
13.4 No Third Party Beneficiaries. Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in
third parties.
13.5 Applicable Law and Forum. This Agreement shall be construed and
interpreted according to the substantive law of California, regardless of the
law of conflicts to the contrary in any jurisdiction. Any action to enforce the
terms of this Agreement or for the breach thereof shall be brought and tried
in the County of Alameda.
13.6 Captions. The captions in this Agreement are solely for convenience of
reference. They are not a part of this Agreement and shall have no effect on
its construction or interpretation.
13.7 Merger. This writing is intended both as the final expression of the
Agreement between the parties hereto with respect to the included terms
and as a complete and exclusive statement of the terms of the Agreement,
pursuant to Code of Civil Procedure Section 1856. No modification of this
Agreement shall be effective unless and until such modification is evidenced
by a writing signed by both parties.
13.8 Survival of Terms. All express representations, waivers, indemnifications,
and limitations of liability included in this Agreement will survive
completion or termination for any reason.
13.9 Time is and shall be of the essence of this Agreement and
every provision hereof.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, a complete set of which shall be deemed an original, constituting
one and the same instrument. The delivery by facsimile or electronic mail of an
executed copy of this Amendment shall be deemed valid as if an original
signature was delivered
Continued on next page:
IN WITNESS WHEREOF, the ABAG and the PACE Provider hereto have executed this
Agreement as of the Effective Date.
ABAG: ________________ _
By: ___ --'"' __ _
Name: David S. Schaefer
Title: Chief Operating Officer Title: -------------------
Date: March 31, 2016 Date: -----I----f-----L-----
APPROVED AS TO FORM FOR ABAG
Date:
ATTACHMENT l(a)
ALERT: Fannie Mae/Freddie Mac Instructions for Lenders
SINGLE FAMILY HOME OWNERS: In May, 2010, Fannie Mae and Freddie Mac, government
sponsored enterprises that purchase a large segment of conforming single family home
mortgages, issued new instructions to lending institutions on how to treat properties with
assessments undel PI opel ty Assessed Clean Energy (PACE) programs such as . These
letters, and additional statements issued by the Federal Housing Finance Agency, the agency
that regulates single family home lenders, instruct lenders to treat energy assessments as
"loans" instead of "assessments."
On August 31, 2010, the agencies issued additional instructions to lenders that Fannie Mae and
Freddie Mac "will not purchase mortgage loans secured by properties with an outstanding PACE
obligation./I
These letters and statements may lead lenders to conclude the PACE assessment should be
paid off before a property transfers or is refinanced. In addition, it may lead some lenders to
conclude that participating in PACE program is a violation of typical mortgage terms
prohibiting prior liens without lender consent. If you are selling your property, a buyer's
lender may refuse to finance the buyer's first mortgage loan unless the assessment is paid
off. We urge you to carefully read the disclosure information in the Program application, review
your mortgage documents, evaluate the risks of proceeding with an application at this time,
and contact your lender if you have any concerns or for information regarding any other
financing options that may be available to you.
I/We have read the above statement. All property owners on title must initial below:
Initials Date
Initials Date
Continued on next page:
Electronic links to the copies of letters from the Federal
programs:
Initials Date
Initials Date
Housing Authority re: PACE
•
•
•
•
•
•
ATIACHMENT l(b)
BEFORE COMPLETING A PROGRAM APPLICATION, YOU SHOULD CAREFULLY
REVIEW ANY MORTGAGE AGREEMENT(S) OR OTHER
SECURITY INSTRUMENT(S) WHICH AFFECT THE PROPERTY OR TO WHICH
YOU AS THE PROPERTY OWNER ARE A PARTY. ENTERING
INTO A PROGRAM ASSESSMENT CONTRACT WITHOUT THE CONSENT OF
YOUR EXISTING LENDER(S) COULD CONSTITUTE AN
EVENT OF DEFAULT UNDER SUCH AGREEMENTS OR SECURITY
INSTRUMENTS. DEFAULTING UNDER AN EXISTING MORTGAGE
~ --~ AGREE~iENT OR SECURIT'l INSTRUMENT COULD HAVE SERIOUS
CONSEQUENCES TO YOU, WHICH COULD INCLUDE THE
ACCELERATION OF THE REPAYMENT OBLIGATIONS DUE UNDER SUCH
AGREEMENT OR SECURITY INSTRUMENT. IN ADDITION,
FANNIE MAE AND FREDDIE MAC, THE OWNER OF A SIGNIFICANT PORTION
OF ALL HOME MORTGAGES, STATED THAT THEY WOULD
NOT PURCHASE HOME LOANS WITH ASSESSMENTS SUCH AS THOSE OFFERED
BY THE AUTHORITY. THIS MAY MEAN THAT PROPERTY
OWNERS WHO SELL OR REFINANCE THEIR PROPERTY MAY BE REQUIRED TO
PREPAY SUCH ASSESSMENTS AT THE TIME THEY
CLOSE THEIR SALE OR REFINANCING.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials Date
Initials Date Initials Date
Insurance Requirements. PACE Provider shall maintain insurance as required by this contract to
the fullest amount allowed by law and shall maintain insurance for a period of five (5) years
following the completion of this project. PACE Provider shall provide a copy of section 21 of this
contract and these insurance requirements to its insurance broker or insurer to confirm
compliance. In the event PACE Provider fails to obtain or maintain completed operations
coverage as required by this agreement, ABAG, at its sole discretion, may purchase the
coverage required and the cost will be paid by PACE Provider. The limits of insurance required
in hereunder may be satisfied by a combination of primary and umbrella or excess insurance.
Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Indemnitees (if agreed to in a written contract or agreement) before the any Indemnitee's own
Insurance or self-insurance shall be called upon to protect it as a named insured.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence Form CG 0001).
Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any
auto).
Workers' Compensation insurance as required by the State of California and Employer's Liability
Insurance.
Errors and Omissions Liability insurance appropriate to the PACE Provider1s profession.
Architects' and engineers' coverage is to be endorsed to include contractual liability.
(b) Minimum Limits of Insurance. PACE Provider shall maintain limits no less than:
General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property
damage. If Commercial General 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.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Errors and Omissions Liability: $1/000/000 per claim/aggregate.
(c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be
declared to and approved by ABAG. The insurer shall reduce or such deductibles or
self-insured or the
(SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either
the named Insured or any of the Indemnitees.
(d) Other Insurance Provisions. The commercial general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
(i) The Indemnitees are to be covered as additional insureds as respects: liability arising
out of work or operations performed by or on behalf of PACE Provider; completed
operations; or automobiles owned, leased, hired or borrowed by PACE Provider.
(ii) For any claims related to this project, the PACE Provider's insurance coverage shall
be primary insurance as respects the Indemnitees.
(iii) Any insurance or self-insurance maintained by the Indemnitees shall be excess of
PACE Provider's insurance and shall not contribute with it.
(iv) Except for General Liability and Automobile Liability, each insurance policy required
by this clause shall be endorsed to state that coverage shall not be canceled by either
party, except after thirty(30) days' prior written notice by certified mail, return receipt
requested, has been given to ABAG. For General Liability and Automobile Liability, PACE
Provider shall provide ABAG with thirty (30) day's prior notice of cancellation by either
the insurer or PACE Provider.
(v) Coverage shall not extend to any defense or indemnity coverage for the active
negligence of the Indemnitees in any case where an agreement to defend and indemnify
the Indemnitees would be invalid under Subdivision (b) of Section 2782 of the Civil
Code.
(e) Other Insurance Provisions -Workers Compensation. The Workers Compensation
insurance shall be endorsed to waive subrogation against the Indemnitees.
(f) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A: VII, unless otherwise acceptable to ABAG.
(g) Verification of Coverage. PACE Provider shall furnish the ABAG with original certificates
and amendatory endorsements effecting coverage required by this clause. All certificates
and endorsements are to be received and approved by ABAG before work commences.
ABAG reserves the right to require complete, certified copies of all required insurance
policies, including endorsements effecting the coverage required by these specifications at
any time.
AGREEMENT FOR COLLABORATIVE SERVICES
FOR PROPERTY ASSESSED CLEAN ENERGY FINANCING
This Agreement for Collaborative Services ("Agreement"), dated as of April 6, 2016,
("Effective Date") is by and among the Association of Bay Area Governments
(hereinafter "ABAG"), Figtree Company, Inc., (hereinafter "PACE Provider"), as an entity
administering a Property Assessed Clean Energy (PACE) financing program utilizing
either the California Assembly Bill 811 and/or California Senate Bill 555 model and any
Participating Entity, as defined in Section 1.3 below, that adopts this Agreement.
RECITALS
WHEREAS, ABAG is committed to mitigating and adapting to the causes and impacts of
climate change and supporting energy independence from fossil fuels to safeguard the
environment, human health and the economy; and
WHEREAS, ABAG as Program Administrator for the Bay Area Regional Energy Network
(BayREN), works closely with 101 cities in the nine county Bay Area region (ABAG
territory) to develop and implement innovative energy efficiency programs, including
supporting commercial and residential Property Assessed Clean Energy (PACE)
programs; and
WHEREAS, the BayREN offers programs, technical resources and education for energy
upgrades and retrofits; and
WHEREAS, the objective of the BayREN is to help property owners save energy, save
money, and live comfortably; and
WHEREAS, the BayREN seeks to assist local governments to understand all aspects of
partnering with PACE Providers in order to minimize customer confusion, provide access
to education and information to property owners and assist with making informed
decisions on rebates and incentives, contractor programs, and financing options; and
WHEREAS, the PACE Provider is willing to participate to support community climate
goals and minimize consumer and contractor confusion; and
WHEREAS, the PACE Provider will provide support and resources to any Participating
Entity as requested related to education, outreach and development of the energy
upgrade industry and trades; and
WHEREAS, the PACE Provider will support, align and integrate its efforts with the
community-wide goals for job creation, resource demand reduction, and renewable
energy generation; and
WHEREAS, the PACE Provider will establish its own interest rates, repayment terms, and
fees as state and federal laws and the market defines and allows; and
WHEREAS, the PACE Provider will arrange for the collection of Property Assessed Clean
Energy assessments it has financed directly with the Participating Entity's County Tax
Collector's Office; and
WHEREAS, this Agreement does not include any financial arrangements between the
PACE Provider, ABAG and the Participating Entity adopting this Agreement, nor does it
preclude any separate contracts, contract terms for services or support; and
WHEREAS, the purpose of this Agreement is to set forth the mutual understandings
between ABAG and the PACE Provider and to establish basic operating procedures for
any PACE provider operating within the ABAG territory, and any Participating Entity that
adopts this agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, the parties hereto agree as follows:
AGREEMENT
1 Definitions.
1.1 If Eligible improvement" is a technology, product or tool officially approved by
the PACE provider. The improvements may include distributed generation
renewable energy sources, energy and water efficiency improvements, and
electric vehicle charging infrastructure improvements that will be permanently
affixed to real property, and any additional improvements deemed eligible in
the future by the California Legislature and/or the California Judiciary.
1.2 "PACE Provider" is an entity participating in ABAG territory administering a
program providing Property Assessed Clean Energy (PACE) financing.
1.3 "Participating Entity" is any city, town, county or the City and County of San
Francisco located within ABAG's geographical boundaries that adopt this
Agreement.
1.4 "Participating Contractor" is any contractor that has agreed to, and abides, by
the terms and conditions of the PACE Provider's contractor standards.
1.5 "Property Assessed Clean Energy (PACE) Financing" is a means of financing
distributed generation, renewable energy sources, energy and water efficiency
improvements, electric vehicle charging infrastructure and other
improvements deemed eligible by the California legislature that will be
permanently affixed to real property, whereby the funds provided to pay for
the improvements are repaid through contractual assessments and/or special
taxes, utilizing either California Assembly Bill 811 (Levine, 2008) ("AB 811"),
which amended §§5898.10-5899.3 of the California Streets and Highways
Code; or California Senate Bill 555 (Hancock, 2011) (IISB 555"), which amended
certain portions of §§53311-53368.3 of the California Government Code and
each as subsequently amended.
1.6 "Work" as defined throughout this Agreement is the collaborative, non-
competitive, effort between the PACE Provider and ABAG to support the
citizens of ABAG member jurisdictions in completing water, energy efficiency
upgrades, and the installation of renewable energy generating improvements.
2 Scope of Work I Collaboration.
2.1 PACE Provider's Specified Services. The PACE Provider will offer and provide
Property Assessed Clean Energy Financing under the requirements of AB 811
and/or SB 555.
2.2 Performance Standard. PACE Provider shall perform all work hereunder in a
manner consistent with the level of competency and standard of care normally
observed by an organization administering a Property Assessed Clean Energy
financing program pursuant to California Assembly Bill 811 and/or California
Senate Bill 555. ABAG has relied upon the professional ability and expertise of
PACE Provider as a material inducement to enter into this Agreement. PACE
Provider hereby agrees to provide all services under this Agreement in
accordance with generally accepted professional practices and standards of
care, as well as the requirements of applicable federal, state and local laws. If
ABAG is concerned that any of PACE Provider's work is not in accordance with
the level of competency and standard of care described herein, ABAG shall
the right to do any or all of the following: (a) require PACE Provider to
discuss with Participating Entity and/or to review the quality of the work and
resolve matters of concern; (b) terminate this Agreement pursuant to the
provisions of Section 5, Termination; or (c) pursue any and all other remedies
available to ABAG at law or in equity.
Financing Provision Requirements.
The PACE Provider will:
2.3.1 Include a process to receive acknowledgement and confirmation of
satisfaction with work completed from the applicant before project
payment is disbursed and have a published dispute resolution process
available for customers.
2.3.2 Provide summary of financing details (including assessment or special tax
amount and terms, financing installments and estimated administrative
expenses) to the applicant specific to the requested amount of the
financing.
2.3.3 For residential properties, require an applicant's acknowledgment of the
Federal Housing Finance Agency position on PACE by a separate
signature/initial acknowledgement, in a Residential Disclosure Signature
Form that is substantially similar in content to Attachment l(a) or l(b), as
approved by ABAG.
2.3.4 Provide training to contractors and information to property owners on
the availability of rebates (for all utility and generation types), including
and not limited to city and county rebate programs, BayREN programs,
PG&E programs, and other such offerings. (For information about local
programs, the contractor and/or home owner may be directed to the
BayREN Home Upgrade Advisor at 866-878-6008.)
2.3.5 Require that applicable building permits are obtained for all
improvements in Participating Entities.
2.3.6 Verify that all property taxes for the assessed property are current for the
previous three years or since the current owner acquired the property,
whichever is shorter.
2.3.7 Recommend that property owners consult with a tax professional prior to
claiming any tax deductions associated with the project and not
recommend that homeowners take any particular filing position
regarding their annual or semi-annual PACE assessment payments.
2.3.8 Not represent that the full assessment is tax deductible.
2.3.9 Have a consistent plan for removal of assessments at end of repayment
term, prepayment and/or in the event of program closure.
2.4 Financial Policies.
The PACE Provider will:
2.4.1 For programs offering residential PACE financing, be an active participant
in the California Alternative Energy and Advanced Transportation
Financing Authority (CAEATFA) PACE Loan Loss Reserve Program or
comparable loan loss reserve program which includes at minimum the
parameters outlined in Attachment 2.
2.4.2 Notify ABAG six months in advance if funding capacity available from the
PACE Provider to prospective PACE customers in the Participating Entity
will fall below the amount dispersed in the previous six months of
operation.
2.4.3 Notify ABAG of any foreclosure action as a result of a default in the
payment of a PACE assessment on property within ABAG's geographical
boundaries, where the PACE assessment was originated by the PACE
Provider.
2.5 Documents, Data, and Information Policies.
The PACE Provider will:
2.5.1 Provide to Participating Entity (for internal evaluation purposes only and
not for distribution to any third party or for marketing purposes, other
than as required by law) by request of Participating Entity, electronic
access to the name, business name, and California State Contractors
license number of participating contractors of the PACE Provider's
program whose business address is located in the requesting
Participating Entity or who conduct business in the requesting
Participating Entity.
2.5.2 Retain completed Residential Disclosure (hardcopy or electronic) on file
for duration of assessment, and furnish to Participating Entity upon
request.
2.5.3 Provide upon request either direct real time access to data or quarterly
reports in an open electronic file format (such as Microsoft Excel) to
Participating Entity by request for internal evaluation purposes only (and
not for distribution to any third party, including, without limitation, utility
companies, services providers and equipment manufacturers or for
marketing purposes) that includes the following information for each
assessment:
a. Required data:
i. Assessor's Parcel Number (APN) of property
ii. Dollar amount financed (the amount of the assessment
and/or special tax)
iii. Listing of all energy efficiency and water conservation
eligible improvements installed by virtue of the
financing, including the unit of measure for the
improvement and the quantity installed as captured by
Participating Contractor
iv. Listing of all renewable generation improvements
installed and the solar STC-DC rating in watts or kilowatts
as captured by Participating Contractor
v. Estimated energy and water savings (in appropriate
units) associated with the project
vi.
b. If available (in the aggregate):
i. Amount of rebate or incentive dollars associated with
the project (not financed) and the name of the program
ii. How the customer heard about PACE financing
iii. Why the customer selected PACE over other financing
instruments available
iv. Why the customer selected their final PACE Provider
over the other members
The Participating Entity will:
Maintain the privacy and security of data received from PACE Provider. Participating
Entity shall comply with all applicable state and federal laws, regulations and applicable
California Public Utilities Commission regulations. Participating Entity may only provide
reports relating to Section 2.s.3(a)(ii)-(v} for public distribution that aggregate the data
such that individual customer information cannot be identified, unless such customer
has authorized written release of individual customer information. A Participating Entity
shall not share with any third party the data and reports provided by a PACE Provider
pursuant to Section 2.5.3(b) (if any).
2.5.4 Provide the documents required for participation in the PACE Providers'
PACE Financing program to Participating Entity officials.
2.5.5 Provide support to Participating Entity's staff to facilitate adoption of
required participation documents.
2.6 ABAG will encourage Participating Entity to offer staff resources and
support to bring forward to their respective boards or councils the documents
provided by the PACE Provider required for participation in the PACE Provider's PACE
financing product.
2.7 Branding I Marketing Requirements.
The Parties will:
2.7.1 Collaborate on any local and/or regional efforts that may impact PACE
financing participation to achieve the best possible outcome for property
owners.
2.7.2 Represent the role of ABAG as the local neutral third party, not-for-profit,
public service agency supporting the public through the upgrade process,
with the following message to consumers: Among the financing products
available, competition is encouraged to the benefit of the consumer, with
the common goal of successful completion of projects.
The PACE Provider wi":
2.7.3 Provide assistance to ABAG and any Participating Entity signing this
Agreement for: (1) coordinating and implementing the integration of the
PACE Provider into applicable BayREN and other relevant energy
efficiency programs; and (2) support of contractor training.
2.7.4 Provide specific training for participating contractors engaged with local
PACE programs using the PACE Provider's financing product, materials,
collaterat tools, and associated software, through training offered
directly from the PACE Provider.
2.7.5 Provide professional services, template documents, and other services
reasonably necessary to staff for integrating the PACE Provider's
financing option into the websites of any Participating Entity requesting
such assistance.
2.7.6 Provide training and resources to any Participating Entity as needed to
build understanding and support for use of the PACE financing product
ABAG will encourage ABAG members to:
2.7.7 Present with impartiality the financing products of the PACE Providers in
all venues to the public.
2.7.8 Present marketing co"ateral of all financing products (where applicable)
with impartiality in education and outreach materials and events
2.8 PACE Providers Responsibilities Regarding Participating Contractor.
PACE Providers will:
2.8.1 Require that contractors have the appropriate California State license
Board (CSLB) license in good standing
2.8.2 Require, in accordance with California State license Board requirements,
that contractors' bonding is in good standing
2.8.3 Require, in accordance with California State license Board requirements,
that contractors have appropriate Workers' Compensation coverage
2.8.4 Require that contractors have a minimum of $lM of commercial general
liability insurance
2.8.5 NOT endorse, recommend, or refer any specific contractor other than
contractors who are to PACE Provider's knowledge, in good standing with
CSLB, are insured and meet material program eligibility requirements
2.8.6 NOT make any representation or warranty regarding the qualifications,
licensing, products, or workmanship of any contractor
2.8.7 NOT make any warranty regarding the contractor's work or products
purchased from contractors provided
2.8.8 NOT accept any liability that may be alleged to arise from the work of any
listed contractor on a customer project or from any reliance on any
claims, statements, or other descriptions regarding a contractor's
certifications, licenses, qualifications or products
2.8.9 Comply with provisions of Section 2.3.7 of this Agreement.
2.8.10 Via trainings and customer complaint system, require that contractors
and their representatives, employees, and agents do not represent
themselves as agents, representatives, contractors, subcontractors, or
employees of ABAG or any Participating Entity, or claim association or
affiliation with ABAG or any Participating Entity.
2.8.11 Independently engages the Participating Entity's Tax Collector for
administration of property tax assessments placed through its financing
product.
3 Payment. This Agreement does not include any financial arrangements between the
PACE Provider and ABAG, nor does it preclude any separate contracts for services or
support.
4 Term of Agreement. The term of this Agreement shall be from the Effective Date
until termination in accordance with the provisions of Section 5, Termination below.
5 Termination.
5.1 Termination without Cause. Notwithstanding any other provision of this
Agreement, at any time and without cause, ABAG, PACE Provider, or any
Participating Entity shall have the right, in its sole discretion, to terminate this
Agreement by giving 30 days written notice to the other Party to this
Agreement; provided that a party's termination of this Agreement under this
section shall not automatically terminate any other agreement or contract
between the other parties.
5.2 Termination for Cause. Notwithstanding any other provision of this Agreement,
should the PACE Provider fail to uphold any of its obligations under this
Agreement in a material way, within the time and in the manner herein
provided, or otherwise materially violate any of the terms of this Agreement,
ABAG or a Participating Entity may, after providing the PACE Provider with a
thirty (30) day cure period, immediately terminate this Agreement by giving
PACE Provider written notice of such termination, stating the reason for
termination; provided that the termination of this Agreement shall not
automatically terminate any other agreement or contract between or among
the parties.
5.3 Delivery of Data and Information upon Termination. In the event of
termination, PACE Provider, within 14 days following the date of termination,
shall deliver to the extent legally permitted to Participating Entity all raw data
and information in an editable electronic format as outlined in and subject to
the terms of Section 2.5, Document, Data, and Information Policies.
5.4 Authority to Terminate. The Executive Director of ABAG has the authority to
terminate this Agreement on behalf of ABAG
5.5 Effect of Termination. Termination of this Agreement by ABAG or Participating
Entity shall not affect the ability to levy and collect assessments and the PACE
Provider's ability to issue bonds for assessment contracts located within the
jurisdiction of such entity which have been entered into prior to the date of
termination.
In the event of termination pursuant to this Section 5 by ABAG, ABAG may
notify all Participating Entities of said termination.
6 Hold Harmless, Indemnity and Waiver of Subrogation.
To the fullest extent allowed by law, PACE Provider shall defend, indemnify, save harmless
and waive subrogation against the ABAG, and its members, elected and appointed
officials, officers and employees (Indemnitees) against any and all liability, claims, losses,
damages, or expenses, including reasonable attorneys' fees, arising from all acts or
omissions to act of PACE Provider or its officers, agents, or employees in rendering
services under this contract; excluding, however, such liability, claims, losses, damages or
expenses resulting from an intentional act or the gross negligence of an Indemnitee.
This section shall in no event be construed to require indemnification by PACE Provider
to a greater extent than permitted under the public policy or laws of the State of
California. These defense and indemnification obligations are undertaken in addition to,
and shall not in any way be limited by, the insurance obligations set forth in this
Agreement. These defense and indemnification obligations shall survive the termination
or expiration of the contract for the full period of time permitted by law.
7 Insurance Requirements. PACE provider shall obtain and maintain insurance as
required in Attachment 2.
8 Prosecution of Work. The execution of this Agreement shall constitute PACE
Provider's authority to proceed immediately with the performance of this
Agreement.
9 Representations of PACE Provider.
9.1 Standard of Care. ABAG and Participating Entity have relied upon the
professional ability and training of PACE Provider as a material inducement to
entering into this Agreement. PACE Provider hereby agrees that all its work will
be performed and that its operations shall be conducted in accordance with
generally accepted and applicable professional practices and standards as well
as the requirements of applicable federal, state and local laws.
9.2 Status of PACE Provider. The parties intend that PACE Provider, in performing
the services specified herein, shall act as an independent contractor and shall
control the work and the manner in which it is performed. PACE Provider is not
to be considered an agent or employee of ABAG or of any Participating Entity
and is not entitled to participate in any pension plan, worker's compensation
plan, insurance, bonus, employment protection, or similar benefits that ABAG or
the Participating Entity provides its employees.
9.3 Conflict of Interest. PACE Provider covenants that it presently has no interest
and that it will not acquire any interest, direct or indirect, that represents a
financial conflict of interest under state law or that would otherwise conflict in
any manner or degree with the performance of its services hereunder. PACE
Provider further covenants that in the performance of this Agreement no
person having any such interests shall be employed.
9.4 Statutory Compliance. PACE Provider agrees to comply with all federal, state
and local laws, regulations, statutes and policies applicable to the services
provided under this Agreement as they exist now and as they are changed,
amended or modified during the term of this Agreement.
9.5 Nondiscrimination. Without limiting any other provision hereunder, PACE
Provider shall comply with all applicable federal, state, and local laws, rules, and
regulations in regard to nondiscrimination in employment because of race,
color, ancestry, national origin, religion, sex, gender identity, marital status, age,
medical condition, pregnancy, disability, sexual orientation or other prohibited
basis. All nondiscrimination rules or regulations required by law to be included
in this Agreement are incorporated herein by this reference.
9.6 Authority. The undersigned hereby represents and warrants that he or she has
authority to execute and deliver this Agreement on behalf of PACE Provider.
10 Demand for Assurance. Each party to this Agreement undertakes the obligation
that the other's expectation of receiving due performance will not be impaired.
When reasonable grounds for insecurity arise with respect to the performance of
either party, the other may in writing demand adequate assurance of due
performance and until such assurance is received may, if commercially reasonable,
suspend any performance for which the agreed return has not been received. After
receipt of a justified demand, failure to provide within a reasonable time, but not
exceeding thirty (30) days, such assurance of due performance as is adequate under
the circumstances of the particular case is a repudiation of this Agreement.
Acceptance of any improper delivery, conduct, or service does not prejudice the
aggrieved party's right to demand adequate assurance of future performance.
Nothing in this Article limits the parties' right to terminate this Agreement pursuant
to Section 5, Termination.
11 Assignment and Delegation. No party hereto shall assign, delegate, sublet, or
transfer any interest in or duty under this Agreement without the prior written
consent of the other, and no such transfer shall be of any force or effect whatsoever
unless and until the other party shall have so consented; provided however, that
PACE Provider may assign this Agreement in connection with a merger or sale
all or substantially all of its assets or equity ownership without the prior written
consent of any other party provided that the successor expressly assumes all of the
obligations, including this Agreement, and confirms all of the representations,
warranties and covenants of PACE Provider hereunder.
12 Method and Place of Giving Notice. All notices shall be made in writing and shall be
given by personal delivery or by U.S. Mail or courier service to:
TO: ABAG:
TO: PACE PROVIDER:
Address
Facsimile:
Email address: ------------------------
Figtree Company, Inc.
9915 Mira Mesa Blvd, Suite 130
San Diego, CA 92131
Attn: Mahesh Shah, CEO
Email address:mshah@figtreefinancing.com
When a notice is given by a generally recognized overnight courier service, the notice
shall be deemed received on the next business day. When a copy of a notice is sent by
facsimile or email, the notice shall be deemed received upon transmission as long as (1)
the original copy of the notice is promptly deposited in the U.S. mail and postmarked on
the date of the facsimile or email, (2) the sender has a written confirmation of the
facsimile transmission or email, and (3) the facsimile or email is transmitted before 5
p.m. (recipient's time). In all other instances, notices shall be effective upon receipt by
the recipient. Changes may be made in the names and addresses of the person to
whom notices are to be given by giving notice pursuant to this paragraph.
13 Miscellaneous Provisions.
13.1 No Waiver of Breach. The waiver by a party of any breach of any term or
promise contained in this Agreement shall not be deemed to be a waiver of
such term or provision or any subsequent breach of the same or any other
term or promise contained in this Agreement.
13.2 Construction. To the fullest extent allowed by law, the provisions of this
Agreement shall be construed and given effect in a manner that avoids any
violation of statute, ordinance, regulation, or law. The parties covenant
agree that in the event that any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired, or invalidated thereby. PACE Provider
and ABAG acknowledge that they have each contributed to the making of
this Agreement and that, in the event of a dispute over the interpretation of
this Agreement, the language of the Agreement will not be construed against
one party in favor of the other. Each party hereto acknowledges that they
have each had an adequate opportunity to consult with counsel in the
negotiation and preparation of this Agreement.
13.3 Consent. Wherever in this Agreement the consent or approval of one party
is required to an act of the other party, such consent or approval shall not
be unreasonably withheld or delayed.
13.4 No Third Party Beneficiaries. Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in
third parties.
13.5 Applicable Law and Forum. This Agreement shall be construed and
interpreted according to the substantive law of California, regardless of the
law of conflicts to the contrary in any jurisdiction. Any action to enforce the
terms of this Agreement or for the breach thereof shall be brought and tried
in the County of Alameda.
13.6 Captions. The captions in this Agreement are solely for convenience of
reference. They are not a part of this Agreement and shall have no effect on
its construction or interpretation.
13.7 Merger. This writing is intended both as the final expression of the
Agreement between the parties hereto with respect to the included terms
and as a complete and exclusive statement of the terms of the Agreement,
pursuant to Code of Civil Procedure Section 1856. No modification of this
Agreement shall be effective unless and until such modification is evidenced
by a writing signed by both parties.
13.8 Survival of Terms. All express representations, waivers, indemnifications,
and limitations of liability included in this Agreement will survive its
completion or termination for any reason.
13.9 Time of Essence. Time is and shall be of the essence of this Agreement and
every provision hereof.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, a complete set of which shall be deemed an originat constituting
one and the same instrument. The delivery by facsimile or electronic mail of an
executed copy of this Amendment shall be deemed valid as if an original
signature was delivered
Continued on next page:
IN WITNESS WHEREOF} the ABAG and the PACE Provider hereto have executed this
Agreement as of the Effective Date.
ABAG: _________________ _
Name: Mahesh Shah ---------Name: -------~--~----
Title: CEO ________ _ Title:
Date: April6} 2016 _____ _ Date: ----I
APPROVED AS TO FORM FOR ABAG
Date: -------T-i----::-------
ATIACHMENT l(a)
ALERT: Fannie Mae/Freddie Mac Instructions for Lenders
SINGLE FAMILY HOME OWNERS: In May, 2010, Fannie Mae and Freddie Mac,
government sponsored enterprises that purchase a large segment of conforming single
family home mortgages, issued new instructions to lending institutions on how to treat
properties with assessments under Property Assessed Clean Energy (PACE) programs
such as . These letters, and additional statements issued by the Federal
Housing Finance Agency, the agency that regulates single family home lenders, instruct
lenders to treat energy assessments as "loans" instead of "assessments."
On August 31, 2010, the agencies issued additional instructions to lenders that Fannie
Mae and Freddie Mac "will not purchase mortgage loans secured by properties with an
outstanding PACE obligation."
These letters and statements may lead lenders to conclude the PACE assessment
should be paid off before a property transfers or is refinanced. In addition, it may lead
some lenders to conclude that participating in PACE program is a violation of typical
mortgage terms prohibiting prior liens without lender consent. If you are selling your
property, a buyer's lender may refuse to finance the buyer's first mortgage loan unless
the assessment is paid off. We urge you to carefully read the disclosure information in
the Program application, review your mortgage documents, evaluate the risks of
proceeding with an application at this time, and contact your lender if you have any
concerns or for information regarding any other financing options that may be available
to you.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials Date
Initials Date Initials Date
Continued on next page:
Electronic links to the copies of letters from the Federal Financing Housing Authority re:
PACE programs:
•
•
•
•
•
•
ATTACHMENT l(b)
BEFORE COMPLETING A PROGRAM APPLICATION, YOU SHOULD
CAREFULL Y REVIEW ANY MORTGAGE AGREEMENT(S) OR OTHER
SECURITY INSTRUMENT(S) WHICH AFFECT THE PROPERTY OR TO
WHICH YOU AS THE PROPERTY OWNER ARE A PARTY. ENTERING
INTO A PROGRAM ASSESSMENT CONTRACT WITHOUT THE CONSENT
OF YOUR EXISTING LENDER(S) COULD CONSTITUTE AN
EVENT OF DEFAULT UNDER SUCH AGREEMENTS OR SECURITY
INSTRUMENTS. DEFAULTING UNDER AN EXISTING MORTGAGE
AGREEMENT OR SECURITY INSTRUMENT COULD HAVE SERIOUS
CONSEQUENCES TO YOU, WHICH COULD INCLUDE THE
ACCELERATION OF THE REPAYMENT OBLIGATIONS DUE UNDER SUCH
AGREEMENT OR SECURITY INSTRUMENT. IN ADDITION,
FANNIE MAE AND FREDDIE MAC, THE OWNER OF A SIGNIFICANT
PORTION OF ALL HOME MORTGAGES, STATED THAT THEY WOULD
NOT PURCHASE HOME LOANS WITH ASSESSMENTS SUCH AS THOSE
OFFERED BY THE AUTHORITY. THIS MAY MEAN THAT PROPERTY
OWNERS WHO SELL OR REFINANCE THEIR PROPERTY MAY BE
REQUIRED TO PREPAY SUCH ASSESSMENTS AT THE TIME THEY
CLOSE THEIR SALE OR REFINANCING.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials
Initials Date Initials
Date
Date
ATIACHMENT 2
Insurance Requirements. PACE Provider shall maintain insurance as required by this
contract to the fullest amount allowed by law and shall maintain insurance for a period
of five (5) years following the completion of this project. PACE Provider shall provide a
copy of section 21 of this contract and these insurance requirements to its insurance
broker or insurer to confirm compliance. In the event PACE Provider fails to obtain or
maintain completed operations coverage as required by this agreement, ABAG, at its
sole discretion, may purchase the coverage required and the cost will be paid by PACE
Provider. The limits of insurance required in hereunder may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of the Indemnitees (if
agreed to in a written contract or agreement) before the any Indemnitee's own
Insurance or self-insurance shall be called upon to protect it as a named insured.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence Form CG 0001).
Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1
(any auto).
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
Errors and Omissions Liability insurance appropriate to the PACE Provider's profession.
Architects' and engineers' coverage is to be endorsed to include contractual liability.
(b) Minimum Limits of Insurance. PACE Provider shall maintain limits no less than:
General Liability: $1,000,000 per occurrence for bodily injury, personal injury and
property damage. If Commercial General 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.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Errors and Omissions Liability: $1,000,000 per claim/aggregate.
(c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions
must be to and approved by ABAG. or
deductibles or self-insured retentions as respects the Indemnitees; or the PACE Provider
shall satisfy any such deductibles or self-insured retentions . In addition, policies
containing any self-insured retention (SIR) provision shall provide or be endorsed to
provide that the SIR may be satisfied by either the named Insured or any of the
Indemnitees.
(d) Other Insurance Provisions. The commercial general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
(i) The Indemnitees are to be covered as additional insureds as respects: liability
arising out of work or operations performed by or on behalf of PACE Provider;
completed operations; or automobiles owned, leased, hired or borrowed by
PACE Provider.
(ii) For any claims related to this project, the PACE Provider's insurance coverage
shall be primary insurance as respects the Indemnitees.
(iii) Any insurance or self-insurance maintained by the Indemnitees shall be
excess of PACE Provider's insurance and shall not contribute with it.
(iv) Except for General Liability and Automobile Liability, each insurance policy
required by this clause shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty(30) days' prior written notice by
certified mail, return receipt requested, has been given to ABAG. For General
Liability and Automobile Liability, PACE Provider shall provide ABAG with thirty
(30) day's prior notice of cancellation by either the insurer or PACE Provider.
(v) Coverage shall not extend to any defense or indemnity coverage for the
active negligence of the Indemnitees in any case where an agreement to defend
and indemnify the Indemnitees would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
(e) Other Insurance Provisions -Workers Compensation. The Workers
Compensation insurance shall be endorsed to waive subrogation against the
Indemnitees.
(f) Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A: VII, unless otherwise acceptable to ABAG.
(g) Verification of Coverage. PACE Provider shall furnish the ABAG with original
certificates and amendatory endorsements effecting coverage required by this
clause. All certificates and endorsements are to be received and approved by ABAG
before work commences. ABAG reserves the right to require complete, certified
Agreement For Collaborative Services for Pace Financing Marketplace -[PACF Dr,.", •
copies of all required insurance policies, including endorsements effecting the
coverage required by these specifications at any time.
AGREEMENT FOR COLLABORATIVE SERVICES
FOR PROPERTY ASSESSED CLEAN ENERGY FINANCING
This Agreement for Collaborative Services ("Agreement"), dated as of
, 2016 ("Effective Date") is by and among the Association of Bay Area Governments
(hereinafter "ABAG"), PACE Funding Group LLC, (hereinafter IIPACE Provider"), as an
entity administering a Property Assessed Clean Energy (PACE) financing program
utilizing either the California Assembly Bill 811 and/or California Senate Bill
and any Participating Entity, as defined in Section 1.3 below, that adopts this
Agreement.
RECITALS
model
WHEREAS, ABAG is committed to mitigating and adapting to the causes and impacts of
climate change and supporting energy independence from fossil fuels to safeguard the
environment, human health and the economy; and
WHEREAS, ABAG as Program Administrator for the Bay Area Regional Energy Network
(BayREN), works closely with 101 cities in the nine county Bay Area region (A BAG
territory) to develop and implement innovative energy efficiency programs, including
supporting commercial and residential Property Assessed Clean Energy (PACE)
programs; and
WHEREAS, the BayREN offers programs, technical resources and education for energy
upgrades and retrofits; and
WHEREAS, the objective of the BayREN is to help property owners save energy, save
money, and live comfortably; and
WHEREAS, the BayREN seeks to assist local governments to
partnering with PACE Providers in order to minimize customer
C .. ·C'T-. .... " all ~C"n.,r'lrTC"
provide access
to education and information to property owners and with
decisions on rebates and incentives, contractor programs, and
WHEREAS, the PACE Provider is willing to participate to support community climate
goals and minimize consumer and contractor confusion;
WHEREAS, the PACE Provider will provide support and resources to any Participating
Entity as requested related to education, outreach and development of the energy
upgrade industry and trades; and
WHEREAS, the PACE Provider will support, align and integrate its efforts with the
community-wide goals for job creation, resource demand reduction, and renewable
energy generation; and
WHEREAS, the PACE Provider will establish its own interest rates, repayment terms, and
fees as state and federal laws and the market defines and allows; and
WHEREAS, the PACE Provider will arrange for the collection of Property Assessed Clean
Energy assessments it has financed directly with the Participating Entity's County Tax
Collector's Office; and
WHEREAS, this Agreement does not include any financial arrangements between the
PACE Provider, ABAG and the Participating Entity adopting this Agreement, nor does it
preclude any separate contracts, contract terms for services or support; and
WHEREAS, the purpose of this Agreement is to set forth the mutual understandings
between ABAG and the PACE Provider and to establish basic operating procedures for
any PACE provider operating within the ABAG territory, and any Participating Entity that
adopts this agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, the parties hereto agree as follows:
AGREEMENT
1 Definitions.
1.1 "Eligible improvement" is a technology, product or
the PACE provider. The improvements may include
approved by
renewable energy sources, energy and water improvements,
electric vehicle charging infrastructure improvements that will be permanently
affixed to real property, and any additional improvements deemed eligible in
the future by the California Legislature and/or the California Judiciary.
1.2 "PACE Provider" is an entity participating in ABAG a
nl"'rHTI""::l1"'n providing Property I""'\';>';;''';;.;>.,'';;\,.i
1.3 IIParticipating Entity" is any city, town, county or the City and County of San
Francisco located within ABAG's geographical boundaries that adopt this
Agreement.
1.4 "Participating Contractor" is any contractor that has agreed to, and abides, by
the terms and conditions of the PACE Provider's contractor standards.
1.5 "Property Assessed Clean Energy (PACE) Financing" is a means of financing
distributed generation, renewable energy sources, energy and water efficiency
improvements, electric vehicle charging infrastructure and other
improvements deemed eligible by the California legislature that will be
permanently affixed to real property, whereby the funds provided to pay for
the improvements are repaid through contractual assessments and/or special
taxes, utilizing either California Assembly Bill 811 (Levine, 2008) (f{AB 811"),
which amended §§5898.10-5899.3 of the California Streets and Highways
Code; or California Senate Bill 555 (Hancock, 2011) ("SB 555"), which amended
certain portions of §§53311-53368.3 of the California Government Code and
each as subsequently amended.
1.6 "Work" as defined throughout this Agreement is the collaborative, non-
competitive, effort between the PACE Provider and ABAG to support the
citizens of ABAG member jurisdictions in completing water, energy efficiency
upgrades, and the installation of renewable energy generating improvements.
2 Scope of Work I Collaboration.
2.1 PACE Provider's Specified Services. The PACE Provider will offer and provide
Property Assessed Clean Energy Financing under the requirements of AB 811
and/or SB 555.
2.2 Performance Standard. PACE Provider shall perform all work hereunder in a
manner consistent with the level of competency and standard of care normally
observed by an organization administering a Property Clean Energy
financing program pursuant to California Assembly Bill
Senate Bill ABAG relied upon the nrr\Ta(~CI,.,.n
Provider as a fY\~'f"arl~1 inducement to enter PACE
Provider hereby to provide all '"" .... rulE·'e.".
accordance with generally accepted professional practices and standards of
care, as well as the requirements of applicable federal, state and local laws. If
ABAG is concerned that any of PACE Provider's work is not in accordance with
the level of competency and standard of care described herein, ABAG shall
to or to
discuss with Participating Entity and/or to review the quality of the work and
resolve matters of concern; (b) terminate this Agreement pursuant to the
provisions of or (c) pursue any and all other remedies
available to ABAG at law or in equity.
Financing Provision Requirements.
The PACE Provider will:
2.3.1 Include a process to receive acknowledgement and confirmation of
satisfaction with work completed from the applicant before project
payment is disbursed and have a published dispute resolution process
available for customers.
2.3.2 Provide summary of financing details (including assessment or special tax
amount and terms, financing installments and estimated administrative
expenses) to the applicant specific to the requested amount of the
financing.
2.3.3 For residential properties, require an applicant's acknowledgment of the
Federal Housing Finance Agency position on PACE by a separate
signature/initial acknowledgement, in a Residential Disclosure Signature
Form that is substantially similar in content to Attachment l(a) or l(b), as
approved by ABAG.
2.3.4 Provide training to contractors and information to property owners on
the availability of rebates (for all utility and generation types), including
and not limited to city and county rebate programs, BayREN programs,
PG&E programs, and other such offerings. (For information about local
programs, the contractor and/or home owner may be directed to the
BayREN Home Upgrade Advisor at 866-878-6008.)
2.3.5 Require that applicable building permits are obtained for all
improvements in Participating Entities.
Verify that all property taxes for the assessed property are current the
previous three years or since the current owner acquired the property,
whichever is shorter.
Recommend that property owners consult a tax ....... r .... "'.rc-prior to
claiming any tax deductions associated with the F\rr"L3,-r not
recommend that homeowners take
regarding their annual or semi-annual PACE assessment payments.
2.3.8 Not represent that the full assessment is tax deductible.
Have a consistent plan for removal of assessments at end of repayment
prepayment and/or in the event of nrrH''I'rc:lt''Y'l
2.4
The PACE Provider will:
2.4.1 For programs offering residential PACE financing, an participant
in the California Alternative Energy and Advanced Transportation
Financing Authority (CAEATFA) PACE Loan Loss Reserve or
comparable loan loss reserve program which includes at minimum the
parameters outlined in Attachment 2.
2.4.2 Notify ABAG six months in advance if funding capacity available from the
PACE Provider to prospective PACE customers in the Participating Entity
will fall below the amount dispersed in the previous six months of
operation.
2.4.3 Notify ABAG of any foreclosure action as a result of a default in the
payment of a PACE assessment on property within ABAG's geographical
boundaries, where the PACE assessment was originated by the PACE
Provider.
2.5 Documents, Data, and Information Policies.
The PACE Provider will:
2.5.1 Provide to Participating Entity (for internal evaluation purposes only and
not for distribution to any third party or for marketing purposes, other
than as required by law) by request of Participating Entity, electronic
access to the name, business name, and California State Contractors
license number of participating contractors of the PACE Provider's
program whose business address is located in the requesting
Participating Entity or who conduct business in the requesting
Participating Entity.
2.5.2 Retain completed Residential Disclosure (hardcopy or electronic) on file
for duration of assessment, and furnish to Participating Entity upon
request.
Provide upon request either direct real time access to data or quarterly
reports in an open electronic file format (such as to
Participating Entity by request for internal
not for distribution to any third party, including, without .. ..."...1"""\1'., .........
companies, services providers and equipment manufacturers or for
marketing purposes) that includes the following information for each
assessment:
a. Required data:
Number
ii. Dollar amount financed (the amount the assessment
and/or special tax)
iii. Listing of all energy efficiency and water conservation
eligible improvements installed by virtue of the
financing, including the unit of measure the
improvement and the quantity installed as captured by
Participating Contractor
iv. Listing of all renewable generation improvements
installed and the solar STC-DC rating in watts or kilowatts
as captured by Participating Contractor
v. Estimated energy and water savings (in appropriate
units) associated with the project
vi.
b. If available (in the aggregate):
i. Amount of rebate or incentive dollars associated with
the project (not financed) and the name of the program
ii. How the customer heard about PACE financing
iii. Why the customer selected PACE over other financing
instruments available
iv. Why the customer selected their final PACE Provider
over the other members
The Participating Entity will:
Maintain the privacy and security of data received from PACE Provider. Participating
Entity shall comply with all applicable state and federal laws, regulations and applicable
California Public Utilities Commission regulations. Participating Entity may only provide
reports relating to Section 2.S.3(a)(ii)-(v) for public distribution that aggregate the data
such that individual customer information cannot be identified, unless such customer
has authorized written release of individual customer information. A Participating Entity
shall not share with any third party the data and reports by a Provider
pursuant to Section 2.5.3(b) (if
2.5.4 Provide the required in
PACE Financing program to Participating officials.
2.5.5 Provide support to Participating Entity's staff to facilitate adoption of
required participation documents.
2.6 ABAG will encourage Participating Entity to offer resources and
support to bring forward to their "'~I-T"",'.o boards or
provided by the PACE Provider required for participation in the PACE Provider's PACE
financing product.
2.7 Branding I Marketing Requirements.
The Parties will:
2.7.1 Collaborate on any local and/or regional efforts that may impact PACE
financing participation to achieve the best possible outcome for property
owners.
2.7.2 Represent the role of ABAG as the local neutral third party, not-for-profit,
public service agency supporting the public through the upgrade process,
with the following message to consumers: Among the financing products
available, competition is encouraged to the benefit of the consumer, with
the common goal of successful completion of projects.
The PACE Provider will:
2.7.3 Provide assistance to ABAG and any Participating Entity signing this
Agreement for: (1) coordinating and implementing the integration of the
PACE Provider into applicable BayREN and other relevant energy
efficiency programs; and (2) support of contractor training.
2.7.4 Provide specific training for participating contractors engaged with local
PACE programs using the PACE Provider's financing product, materials,
collateral, tools, and associated software, through training offered
directly from the PACE Provider.
2.7.5 Provide professional services, template documents, and other services
reasonably necessary to staff for integrating the PACE Provider's
financing option into the websites of any Participating Entity requesting
such assistance.
Provide training and resources to any Participating as needed to
build understanding and support for use of PACE financing product
ABAG will encourage members to:
Present with impartiality the financing in
all venues to the public.
2.7.8 Present marketing collateral of all financing products (where applicable)
with impartiality in education and outreach materials and events
2.8 Providers Responsibilities Regarding ~..;;..;...;;..;.o;;;..;;:.;..;;;.;;.;..:~;;..;;:....;...;...;;;..;....;;...;;;...;..;;;;...;;..~
.... r,-,"lJrlClyC will:
Require that contractors have the appropriate California
Board (CSlB) license in good
Require, in accordance with California State
that contractors' bonding is in good standing
Iralnea Board requirements,
2.8.3 Require, in accordance with California State license Board requirements,
that contractors have appropriate Workers' Compensation coverage
2.8.4 Require that contractors
liability insurance
a minimum of $lM of commercial general
2.8.5 NOT endorse, recommend, or refer any specific contractor other than
contractors who are to PACE Provider}s knowledge} in good standing with
CSlB, are insured and meet material program eligibility requirements
2.8.6 NOT make any representation or warranty regarding the qualifications,
licensing, products, or workmanship of any contractor
2.8.7 NOT make any warranty regarding the contractor's work or products
purchased from contractors provided
2.8.8 NOT accept any liability that may be alleged to arise from the work of any
listed contractor on a customer project or from any reliance on any
claims, statements, or other descriptions regarding a contractor's
certifications, licenses, qualifications or products
2.8.9 Comply with provisions of Section 2.3.7 of this Agreement.
2.8.10 Via trainings and customer complaint system, require that contractors
and their representatives, employees, and agents do not represent
themselves as agents, representatives, contractors, subcontractors, or
employees of ABAG or any Participating Entity, or claim association or
affiliation with ABAG or any Participating Entity.
2.8.11 Independently engages the Participating Entity's Tax Collector for
administration of property tax assessments placed through financing
product.
3 Payment. This Agreement does not include any financial
PACE Provider and ABAG, nor does it preclude contracts or
support.
4 Term of Agreement. The term of this Agreement shall be from the Effective Date
until termination in accordance with the provisions of ~d!!:m....;2LJ~u!!'!B!!.!QI! below.
5 Termination.
5.1 Termination without Cause. Notwithstanding any other provision of this
Agreement, at any time and without cause, ABAG, PACE Provider, or any
Participating Entity shall have the right, in its discretion, to terminate this
Agreement by giving 30 days written notice to the other Party to this
Agreement; provided that a party's termination of this Agreement under this
section shall not automatically terminate any other agreement or contract
between the other parties.
5.2 Termination for Cause. Notwithstanding any other provision of this Agreement,
should the PACE Provider fail to uphold any of its obligations under this
Agreement in a material way, within the time and in the manner herein
provided, or otherwise materially violate any of the terms of this Agreement,
ABAG or a Participating Entity may, after providing the PACE Provider with a
thirty (30) day cure period, immediately terminate this Agreement by giving
PACE Provider written notice of such termination, stating the reason for
termination; provided that the termination of this Agreement shall not
automatically terminate any other agreement or contract between or among
the parties.
5.3 Delivery of Data and Information upon Termination. In the event of
termination, PACE Provider, within 14 days following the date of termination,
shall deliver to the extent legally permitted to Participating Entity all raw data
and information in an editable electronic format as outlined in and subject to
the terms of Section 2.5, Document, Data, and Information Policies.
5.4 Authority to Terminate. The Executive Director of ABAG has the authority to
terminate this Agreement on behalf of ABAG
5.5 Effect of Termination. Termination of this Agreement by ABAG or Participating
Entity shall not affect the ability to levy and collect assessments and the PACE
ProviderJ s ability to issue bonds for assessment contracts located within
jurisdiction of such entity which have been entered into prior to the date
termination.
In the event of termination pursuant to this Section 5 by
notify all Participating Entities of said termination.
6 Hold Harmless, Indemnity and Waiver of Subrogation.
To the fullest extent allowed by law, PACE Provider shall defend, indemnify, save
harmless and waive subrogation against the ABAG, and its members, elected and
appointed officials, and employees (lndemnitees) and all liability,
claims, ''-JJ.H .... J. reasonable :..II. ,-.r .. <. ... ,,,-from
all acts or omissions to act of PACE Provider or its officers, agents, or employees in
rendering services under this contract; excluding, however, such liability, claims, losses,
damages or expenses resulting from an intentional act or the negligence of an
Indemnitee.
This section shall in no event be construed to require indemnification by PACE Provider
to a greater extent than permitted under the public policy or laws of the State of
California. These defense and indemnification obligations are undertaken in addition to,
and shall not in any way be limited by, the insurance obligations set forth in this
Agreement. These defense and indemnification obligations shall survive the termination
or expiration of the contract for the full period of time permitted by law.
7 Insurance Requirements. PACE provider shall obtain and maintain insurance as
required in Attachment 2.
8 Prosecution of Work. The execution of this Agreement shall constitute PACE
Provider's authority to proceed immediately with the performance of this
Agreement.
9 Representations of PACE Provider.
9,1 Standard of Care. ABAG and Participating Entity have relied upon the
professional ability and training of PACE Provider as a material inducement to
entering into this Agreement. PACE Provider hereby agrees that all its work will
be performed and that its operations shall be conducted in accordance with
generally accepted and applicable professional practices and standards as well
as the requirements of applicable federal, state and local laws.
Status of PACE Provider. The parties intend that PACE in performing
the services specified herein, shall act as an independent contractor and shall
control the work and the manner in which it is performed.
to be an agent or employee of ABAG or
and is not entitled to participate in any pension plan,
plan, insurance, bonus, employment protection, or
the Participating Entity provides its employees.
LJrr""r .. ",r is not
ABAG or
9.3 Conflict of Interest. PACE Provider covenants that it presently has no interest
and that it will not acquire any interest, direct or .nn,r<..>rT a
interest state or
any manner or degree with the performance of its services hereunder. PACE
Provider further covenants that in the performance of this Agreement no
person having any such interests shall be employed.
9.4 Statutory Compliance. PACE Provider agrees to comply with all federal, state
and local laws, regulations, statutes and policies applicable to the services
provided under this Agreement as they exist now and as they are changed,
amended or modified during the term of this Agreement.
9.5 Nondiscrimination. Without limiting any other provision hereunder, PACE
Provider shall comply with all applicable federal, state, and local laws, rules, and
regulations in regard to nondiscrimination in employment because of race,
color, ancestry, national origin, religion, sex, gender identity, marital status, age,
medical condition, pregnancy, disability, sexual orientation or other prohibited
basis. All nondiscrimination rules or regulations required by law to be included
in this Agreement are incorporated herein by this reference.
9.6 Authority. The undersigned hereby represents and warrants that he or she has
authority to execute and deliver this Agreement on behalf of PACE Provider.
10 Demand for Assurance. Each party to this Agreement undertakes the obligation
that the other's expectation of receiving due performance will not be impaired.
When reasonable grounds for insecurity arise with respect to the performance of
either party, the other may in writing demand adequate assurance of due
performance and until such assurance is received may, if commercially reasonable,
suspend any performance for which the agreed return has not been received. After
receipt of a justified demand, failure to provide within a reasonable time, but not
exceeding thirty (30) days, such assurance of due performance as is adequate under
the circumstances of the particular case is a repudiation of this "fH~L.>L.>rn
Acceptance of any improper delivery, conduct, or service
aggrieved party's right to demand adequate assurance of
Nothing in this limits right to terminate
to .... C.,~T.,.,.n;
11 Assignment and Delegation. No party hereto shall assign, delegate, sublet! or
transfer any interest in or duty under this Agreement without the prior written
consent of the other, and no such transfer shall be of any force or whatsoever
and the party so
PACE Provider may assign this Agreement in connection with a or the of
all or substantially all of its assets or equity ownership without the prior written
consent of any other party provided that the successor expressly assumes all of the
obligations, including this Agreement, and confirms all of the representations,
warranties and covenants of PACE Provider hereunder.
12 Method and Place of Giving Notice. All notices shall be made in writing and shall be
given by personal delivery or by U.S. Mail or courier service to:
TO: ABAG: Address
Facsimile:
Email address: --~--------------------
TO: PACE PROVIDER: PACE Funding Group
1 Valley Oak Street
Portola Valley, CA 94028
Email address:bob@pacefunding.com
When a notice is given by a generally recognized overnight courier service, the notice
shall be deemed received on the next business day. When a copy of a notice is sent by
facsimile or email, the notice shall be deemed received upon transmission as long as (1)
the original copy of the notice is promptly deposited in the u.s. mail and postmarked on
the date of the facsimile or email, (2) the sender has a written confirmation of the
facsimile transmission or email, and (3) the facsimile or email is transmitted before 5
p.m. (recipient's time). In all other instances, notices shall be effective upon receipt by
the recipient. Changes may be made in the names and addresses of the person to
whom notices are to be given by giving notice pursuant to this paragraph.
13 Miscellaneous Provisions.
13.1 No Waiver of Breach. waiver by a party of term or
promise contained in this Agreement shall not of
such term or provision or any subsequent breach of the same or any other
term or promise contained in this Agreement.
13.2 the fullest extent allowed by law;
and in a manner
violation of statute, ordinance, regulation, or law. parties covenant and
agree that in the event that any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired, or invalidated thereby. PACE Provider
and ABAG acknowledge that they have each contributed to the making of
this Agreement and that, in the event of a dispute over the interpretation of
this Agreement, the language of the Agreement will not be construed against
one party in favor of the other. Each party hereto acknowledges that they
have each had an adequate opportunity to consult with counsel in the
negotiation and preparation of this Agreement.
13.3 Consent. Wherever in this Agreement the consent or approval of one party
is required to an act of the other party, such consent or approval shall not
be unreasonably withheld or delayed.
13.4 No Third Party Beneficiaries. Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in
third parties.
13.5 Applicable Law and Forum. This Agreement shall be construed and
interpreted according to the substantive law of California, regardless of the
law of conflicts to the contrary in any jurisdiction. Any action to enforce the
terms of this Agreement or for the breach thereof shall be brought and tried
in the County of Alameda.
13.6 Captions. The captions in this Agreement are solely for convenience of
reference. They are not a part of this Agreement and shall no on
its construction or interpretation.
Merger. This writing is intended both as the
Agreement between the parties hereto with racno,~1"
and as a complete and exclusive statement of terms
pursuant to Code of Civil Procedure Section 1856. No
terms
this
Agreement shall be effective unless and until
by a writing signed by both parties.
modification is evidenced
13.8 All express representations} waivers} indemnifications,
13.9
and limitations of liability included in this Agreement will survive its
completion or termination any reason .
..:....:.:..;:...:..=-..=...:....=:...::.::..:...::::..::.. Time is and shall be of the essence of this Agreement and
every provision hereof.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, a complete set of which shall be deemed an original, constituting
one and the same instrument. The delivery by facsimile or electronic mail of an
executed copy of this Amendment shall be deemed valid as if an original
signature was delivered
Continued on next page:
IN WITNESS WHEREOF, the ABAG and the PACE Provider hereto have executed this
Agreement as of the Effective Date.
PACE PROVIDER: ______ _
By:
Name: __ ~_~~~ ______ _ Name: ________ ~ ______ __
Title: Title: ---------------------
Date: Date: __ ~+-.-&::--==---_I_....!..-...:=---
APPROVED AS TO FORM FOR ABAG
Date: ___ --I--I~ ____ _
ATIACHMENT l(a)
ALERT: Fannie Mae/Freddie Mac Instructions for Lenders
SINGLE FAMILY HOME OWNERS: In May, 2010, Fannie Mae and Freddie Mac,
government sponsored enterprises that purchase a large segment of conforming single
family home mortgages, issued new instructions to lending institutions on how to treat
properties with assessments under Property Assessed Clean Energy (PACE) programs
such as . These letters, and additional statements issued by the Federal
Housing Finance Agency, the agency that regulates single family home lenders, instruct
lenders to treat energy assessments as "loans" instead of "assessments."
On August 31, 2010, the agencies issued additional instructions to lenders that Fannie
Mae and Freddie Mac "will not purchase mortgage loans secured by properties with an
outstanding PACE obligation."
These letters and statements may lead lenders to conclude the PACE assessment
should be paid off before a property transfers or is refinanced. In addition, it may lead
some lenders to conclude that participating in PACE program is a violation of typical
mortgage terms prohibiting prior liens without lender consent. If you are selling your
property, a buyer's lender may refuse to finance the buyer's first mortgage loan unless
the assessment is paid off. We urge you to carefully read the disclosure information in
the Program application, review your mortgage documents, evaluate the risks of
proceeding with an application at this time, and contact your lender if you have any
concerns or for information regarding any other financing options that may be available
to you.
I/We have read the above statement. All property owners on must
Date Date
Initials Date Initials Date
Continued on next page:
Electronic links to the CO[lIes Federal re:
PACE nrnrrr~
•
•
•
•
•
•
ATTACHMENT l(b)
BEFORE COMPLETING A PROGRAM APPLICATION, YOU SHOULD
CAREFULL Y REVIEW ANY MORTGAGE AGREEMENT(S) OR OTHER
SECURITY INSTRUMENT(S) WHICH AFFECT THE PROPERTY OR TO
WHICH YOU AS THE PROPERTY OWNER ARE A PARTY. ENTERING
INTO A PROGRAM ASSESSMENT CONTRACT WITHOUT THE CONSENT
OF YOUR EXISTING LENDER(S) COULD CONSTITUTE AN
EVENT OF DEFAULT UNDER SUCH AGREEMENTS OR SECURITY
INSTRUMENTS. DEFAULTING UNDER AN EXISTING MORTGAGE
AGREEMENT OR SECURITY INSTRUMENT COULD HAVE SERIOUS
CONSEQUENCES TO YOU, WHICH COULD INCLUDE THE
ACCELERATION OF THE REPAYMENT OBLIGATIONS DUE UNDER SUCH
AGREEMENT OR SECURITY INSTRUMENT. IN ADDITION,
FANNIE MAE AND FREDDIE MAC, THE OWNER OF A SIGNIFICANT
PORTION OF ALL HOME MORTGAGES, STATED THAT THEY WOULD
NOT PURCHASE HOME LOANS WITH ASSESSMENTS SUCH AS THOSE
OFFERED BY THE AUTHORITY. THIS MAY MEAN THAT PROPERTY
OWNERS WHO SELL OR REFINANCE THEIR PROPERTY MAY BE
REQUIRED TO PREPAY SUCH ASSESSMENTS AT THE TIME THEY
CLOSE THEIR SALE OR REFINANCING.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials
Initials Date Initials
Date
Date
ATTACHMENT 2
Insurance Requirements. PACE Provider shall maintain insurance as required by this
contract to the fullest amount allowed by law and shall maintain insurance for a period
of five (5) years following the completion of this project. PACE Provider shall provide a
copy of section 21 of this contract and these insurance requirements to its insurance
broker or insurer to confirm compliance. In the event PACE Provider fails to obtain or
maintain completed operations coverage as required by this agreement, ABAG, at its
sole discretion, may purchase the coverage required and the cost will be paid by PACE
Provider. The limits of insurance required in hereunder may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of the Indemnitees (if
agreed to in a written contract or agreement) before the any Indemnitee's own
Insurance or self-insurance shall be called upon to protect it as a named insured.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence Form CG 0001).
Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1
(any auto).
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
Errors and Omissions Liability insurance appropriate to the PACE Provider's profession.
Architects' and engineers' coverage is to be endorsed to include contractual liability.
(b) Minimum Limits of Insurance. PACE Provider shall maintain limits no than:
_0 ... \0 ....... 1 Liability: $1,000,000 per occurrence for bodily
property damage, If Commercial General Liability Insurance or
general aggregate limit is used, either the general -:3lTlT"'OlT-:31"O
to this project/location or the general aggregate limit shall
occurrence limit.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Errors and Omissions Liability: $1,000,000 per claim/aggregate.
deductibles or self-insured retentions as respects the Indemnitees; or the PACE Provider
shall satisfy any such deductibles or self-insured retentions. In addition, policies
containing any self-insured retention (SIR) provision shall provide or be endorsed to
provide that the SIR may be satisfied by either the named Insured or any of the
Indemnitees.
(d) Other Insurance Provisions. The commercial general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
(i) The Indemnitees are to be covered as additional insureds as respects: liability
arising out of work or operations performed by or on behalf of PACE Provider;
completed operations; or automobiles owned, leased, hired or borrowed by
PACE Provider.
(ii) For any claims related to this project, the PACE Provider's insurance coverage
shall be primary insurance as respects the Indemnitees.
(iii) Any insurance or self-insurance maintained by the Indemnitees shall be
excess of PACE Provider's insurance and shall not contribute with it.
(iv) Except for General Liability and Automobile Liability, each insurance policy
required by this clause shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty(30) days' prior written notice by
certified mail, return receipt requested, has been given to ABAG. For General
Liability and Automobile Liability, PACE Provider shall provide ABAG with thirty
(30) day's prior notice of cancellation by either the insurer or PACE Provider.
(v) Coverage shall not extend to any defense or indemnity coverage for the
active negligence of the Indemnitees in any case where an agreement to defend
and indemnify the Indemnitees would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
(e) Other Insurance Provisions -Workers Compensation.
Compensation insurance shall endorsed to
Indemnitees,
(f) Acceptability of Insurers. Insurance is to be placed
A.M. Best's rating of no than A: VII, unless otherwise
a current
to ABAG.
(g) Verification of Coverage. PACE Provider shall furnish the ABAG with original
certificates and amendatory endorsements effecting coverage required by this
clause. All certificates and endorsements are to be and approved by ABAG
commences. ABAG reserves to
copies of all required insurance including endorsements the
coverage required by these specifications at any time.
AGREEMENT FOR COLLABORATIVE SERVICES
FOR PROPERTY ASSESSED CLEAN ENERGY FINANCING
This Agreement for Collaborative Services ("Agreement"L dated as of
I 2016 ({{Effective Date Jl
) is by and among the Association of Bay Area Governments
(hereinafter "ABAG"L Western Riverside Council of Governments (hereinafter "PACE
Provider")' as an entity administering a Property Assessed Clean Energy (PACE) financing
program utilizing either the California Assembly Bill 811 and/or California Senate Bill
model and any Participating Entity, as defined in Section 1.3 below, that adopts this
Agreement.
WHEREAS, ABAG is committed to mitigating and adapting to the causes and impacts of
climate change and supporting energy independence from fossil fuels to safeguard the
environment, human health and the economy; and
WHEREAS, ABAG as Program Administrator for the Bay Area Regional Energy Network
(BayREN), works closely with 101 cities in the nine county Bay Area region (ABAG
territory) to develop and implement innovative energy efficiency programs, including
supporting commercial and residential Property Assessed Clean Energy (PACE)
programs; and
WHEREAS, the BayREN offers programs, technical resources and education for energy
upgrades and retrofits; and
WHEREAS, the objective of the BayREN is to help property owners save energy, save
money, and live comfortably; and
WHEREAS, the BayREN to assist local governments to understand all aspects of
partnering with PACE Providers in order to minimize customer confusion, provide access
to education and information to property owners and assist with informed
decisions on rebates and incentives, contractor programs, and financing options; and
WHEREAS, the PACE Provider is willing to participate to support community climate
goals and minimize consumer and contractor confusion; and
WHEREAS, the Provider will provide support and resources to any Participating
Entity as requested related to education, outreach and development of the energy
industry and trades; and
WHEREAS, the PACE Provider will support, align and integrate its efforts with the
community-wide goals for job creation, resource demand reduction, and renewable
energy generation; and
WHEREAS, the PACE Provider will establish its own interest rates, repayment terms, and
fees as state and federal laws and the market defines and allows; and
WHEREAS, the PACE Provider will arrange for the collection of Property Assessed Clean
Energy assessments it has financed directly with the Participating Entity's County Tax
Collector's Office; and
WHEREAS, this Agreement does not include any financial arrangements between the
PACE Provider, ABAG and the Participating Entity adopting this Agreement, nor does it
preclude any separate contracts, contract terms for services or support; and
WHEREAS, the purpose of this Agreement is to set forth the mutual understandings
between ABAG and the PACE Provider and to establish basic operating procedures for
any PACE provider operating within the ABAG territory, and any Participating Entity that
adopts this agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, the parties hereto agree as follows:
AGREEMENT
1 Definitions.
1.1 "Eligible improvement" is a technology, product or tool officially approved by
PACE improvements include distributed
renewable energy sources, energy and water efficiency improvements, and
electric vehicle charging infrastructure improvements that will be permanently
affixed to real property, and any additional improvements deemed eligible in
the future by the California Legislature and/or the California Judiciary.
1.2 "PACE Provider" is an entity participating in ABAG territory administering a
program providing Property Clean (PACE) financing.
1.3 "Participating Entity" is any city, town, county or the City and County of San
Francisco located within ABAG's geographical boundaries that adopt this
1.4 "Participating Contractor" is any contractor that has agreed to, and abides, by
the terms and conditions of the PACE Provider's contractor standards.
1.5 "Property Assessed Clean Energy (PACE) Financing" is a means of financing
distributed generation, renewable energy sources, energy and water efficiency
improvements, electric vehicle charging infrastructure and other
improvements deemed eligible by the California legislature that will be
permanently affixed to real property, whereby the funds provided to pay for
the improvements are repaid through contractual assessments and/or special
taxes, utilizing either California Assembly Bill 811 (Levine, 2008) (flAB 811")'
which amended §§5898.10-5899.3 of the California Streets and Highways
Code; or California Senate Bill 555 (Hancock, 2011) (((SB 555"), which amended
certain portions of §§53311-53368.3 of the California Government Code and
each as subsequently amended.
1.6 "Work" as defined throughout this Agreement is the collaborative, non-
competitive, effort between the PACE Provider and ABAG to support the
citizens of ABAG member jurisdictions in completing water, energy efficiency
upgrades, and the installation of renewable energy generating improvements.
2 Scope of Work / Collaboration.
2.1 PACE Provider's Specified Services. The PACE Provider will offer and provide
Property Assessed Clean Energy Financing under the requirements of AB 811
and/or SB 555.
2.2 Performance Standard. PACE Provider shall perform all work hereunder in a
manner consistent with the level of competency and standard of care normally
observed by an organization administering a Property Assessed Clean Energy
financing program pursuant to California Assembly Bill 811 and/or California
Senate Bill 555. ABAG has relied upon the professional ability and expertise of
PACE Provider as a material inducement to enter into this Agreement. PACE
Provider hereby agrees to provide all services under this Agreement in
accordance with generally accepted professional practices and standards of
care, as well as the requirements of applicable federal, state and local laws. If
ABAG is concerned that any of PACE Provider's work is not in accordance with
the level of competency and standard of care described herein, ABAG shall
have the right to do any or all of the following: (a) require PACE Provider to
discuss with Participating Entity and/or to review the quality of the work and
resolve matters of concern; (b) terminate this Agreement pursuant to the
provisions of . or (c) pursue any and all other remedies
available to ABAG at law or in equity.
The PACE Provider will:
2.3.1 Include a process to receive acknowledgement and confirmation of
satisfaction with work completed from the applicant before project
payment is disbursed and have a published dispute resolution process
available for customers.
2.3.2 Provide summary of financing details (including assessment or special tax
amount and terms, financing installments and estimated administrative
expenses) to the applicant specific to the requested amount of the
financing.
2.3.3 For residential properties, require an applicant's acknowledgment of the
Federal Housing Finance Agency position on PACE by a separate
signature/initial acknowledgement, in a Residential Disclosure Signature
Form that is substantially similar in content to Attachment l(a) or l(b), as
approved by ABAG.
2.3.4 Provide training to contractors and information to property owners on
the availability of rebates (for all utility and generation typesL including
and not limited to city and county rebate programs, BayREN programs,
PG&E programs, and other such offerings. (For information about local
programs, the contractor and/or home owner may be directed to the
BayREN Home Upgrade Advisor at 866-878-6008.)
2.3.5 Require that applicable building permits are obtained for all
improvements in Participating Entities.
2.3.6 Verify that all property taxes for the assessed property are current for the
previous three years or since the current owner acquired the property,
whichever is shorter.
2.3.7 Recommend that property owners consult with a tax professional prior to
claiming any tax deductions associated with the project and not
recommend that homeowners take any particular filing position
regarding their annual or semi-annual PACE assessment payments.
2.3.8 Not represent that the full assessment is tax deductible.
2.3.9 Have a consistent plan for removal of assessments at end of repayment
term, prepayment and/or in the event of program closure.
2.4
The PACE Provider will:
2.4.1 For programs offering residential PACE financing, be an active participant
in the California Alternative Energy and Advanced Transportation
Financing Authority (CAEATFA) PACE loan loss Reserve Program or
comparable loan loss reserve program which includes at minimum the
parameters outlined in Attachment 2.
2.4.2 Notify ABAG six months in advance if funding capacity available from the
PACE Provider to prospective PACE customers in the Participating Entity
will fall below the amount dispersed in the previous six months of
operation.
2.4.3 Notify ABAG of any foreclosure action as a result of a default in the
payment of a PACE assessment on property within ABAG's geographical
boundaries, where the PACE assessment was originated by the PACE
Provider.
2.5 Documents, Data, and Information Policies.
The PACE Provider will:
2.5.1 Provide to Participating Entity (for internal evaluation purposes only and
not for distribution to any third party or for marketing purposes, other
than as required by law) by request of Participating Entity, electronic
access to the name, business name, and California State Contractors
license number of participating contractors of the PACE Provider's
program whose business address is located in the requesting
Participating Entity or who conduct business in the requesting
Participating Entity.
2.5.2 Retain completed Residential Disclosure (hardcopy or electronic) on file
for duration of assessment, and furnish to Participating Entity upon
request.
Provide upon request either direct real time access to data or quarterly
reports in an open electronic file format (such as Microsoft Excel) to
Entity by for internal evaluation purposes only (and
not for distribution to any third party, including, without limitation, utility
companies, services providers and equipment manufacturers or for
marketing purposes) that includes the following information for each
assessment:
a. Required data:
Number (APN)
iL Dollar amount financed (the amount of the assessment
and/or special tax)
iii. of all energy efficiency and water conservation
eligible improvements installed by virtue of the
financing, including the unit of measure for the
improvement and the quantity installed as captured by
Participating Contractor
iv. Listing of all renewable generation improvements
installed and the solar STC-DC rating in watts or kilowatts
as captured by Participating Contractor
v. Estimated energy and water savings (in appropriate
units) associated with the project
vi.
b. If available (in the aggregate):
i. Amount of rebate or incentive dollars associated with
the project (not financed) and the name of the program
ii. How the customer heard about PACE financing
iii. Why the customer selected PACE over other financing
instruments available
iv. Why the customer selected their final PACE Provider
over the other members
The Participating Entity will:
Maintain the privacy and security of data received from PACE Provider. Participating
Entity shall comply with all applicable state and federal laws, regulations and applicable
California Public Utilities Commission regulations. Participating Entity may only provide
reports relating to Section 2.S.3{a)(ii}-(v) for public distribution that aggregate the data
such that individual customer information cannot be identified, unless such customer
has authorized written release of individual customer information. A Participating Entity
shall not share with any third party the data and reports provided by a PACE Provider
pursuant to Section 2.S.3(b) (if any).
participation in Providers'
PACE Financing program to Participating Entity officials.
2.S.5 Provide support to Participating Entity's staff to facilitate adoption of
required participation documents.
2.6 ABAG will encourage Participating Entity to offer staff resources and
support to bring forward to their respective boards or councils the documents
provided by the PACE Provider required for participation in the PACE Provider's PACE
financing product.
2.7
The Parties will:
2.7.1 Collaborate on any local and/or regional efforts that may impact PACE
financing participation to achieve the best possible outcome for property
owners.
2.7.2 Represent the role of ABAG as the local neutral third party, not-for-profit,
public service agency supporting the public through the upgrade process,
with the following message to consumers: Among the financing products
available, competition is encouraged to the benefit of the consumer, with
the common goal of successful completion of projects.
The PACE Provider will:
2.7.3 Provide assistance to ABAG and any Participating Entity signing this
Agreement for: (1) coordinating and implementing the integration of the
PACE Provider into applicable BayREN and other relevant energy
efficiency programs; and (2) support of contractor training.
2.7.4 Provide specific training for participating contractors engaged with local
PACE programs using the PACE Provider's financing product, materials,
collateral, tools, and associated software, through training offered
directly from the PACE Provider.
2.7.5 Provide professional services, template documents, and other services
reasonably necessary to staff for integrating the PACE Provider's
financing option into the websites of any Participating Entity requesting
such assistance.
2.7.6 Provide training and resources to any Participating Entity as needed to
build understanding and support for use of the PACE financing product
ABAG will encourage ABAG members to:
2.7.7 products of PACE Providers in
all venues to the public.
2.7.8 Present marketing collateral of all financing products (where applicable)
with impartiality in education and outreach materials and events
2.8 PACE Providers Responsibilities Regarding .:.......;;;;.;~~;...::.:..:.,.~::...=...;...:...;:;.;....;:;..;;;...::..;=-.:..
2.8.1 Require that contractors have the appropriate California State License
Board (CSLB) license in good standing
2.8.2 Require, in accordance with California State License Board requirements,
that contractors' bonding is in good standing
2.8.3 Require, in accordance with California State License Board requirements,
that contractors have appropriate Workers' Compensation coverage
2.8.4 Require that contractors have a minimum of $lM of commercial general
liability insurance
2.8.5 NOT endorse, recommend, or refer any specific contractor other than
contractors who are to PACE Provider's knowledge, in good standing with
CSLB, are insured and meet material program eligibility requirements
2.8.6 NOT make any representation or warranty regarding the qualifications,
licensing, products, or workmanship of any contractor
2.8.7 NOT make any warranty regarding the contractor's work or products
purchased from contractors provided
2.8.8 NOT accept any liability that may be alleged to arise from the work of any
listed contractor on a customer project or from any reliance on any
claims, statements, or other descriptions regarding a contractor's
certifications, licenses, qualifications or products
2.8.9 Comply with provisions of Section 2.3.7 of this Agreement.
2.8.10 Via trainings and customer complaint system, require that contractors
and their representatives, employees, and agents do not represent
themselves as agents, representatives, contractors, subcontractors, or
employees of ABAG or any Participating Entity, or claim association or
affiliation with ABAG or any Participating Entity.
2.8.11 Independently engages the Participating Entity's Tax Collector for
administration of property tax assessments placed through its financing
product.
3 Payment. This Agreement does not include any financial arrangements between the
PACE Provider and ABAG, nor does it preclude any separate contracts for services or
support.
4 Term of Agreement. The term of this Agreement shall be from the Effective Date
until termination in accordance with the provisions of Section 5, Termination below.
5 Termination.
5.1 ~:....;..:-:...;..;..;;..;;.;...;;..;....;;;.;;..,;--:....:....;...;;.~:.;..;:.....:::..;:;;...:;~. Notwithstanding any other provision of this
Agreement, at any time and without cause, ABAG, PACE Provider, or any
Participating Entity shall have the right, in its sole discretion, to terminate this
Agreement by giving 30 days written notice to the other Party to this
Agreement; provided that a party's termination of this Agreement under this
section shall not automatically terminate any other agreement or contract
between the other parties.
5.2 Termination for Cause. Notwithstanding any other provision of this Agreement,
should the PACE Provider fail to uphold any of its obligations under this
Agreement in a material way, within the time and in the manner herein
provided, or otherwise materially violate any of the terms of this Agreement,
ABAG or a Participating Entity may, after providing the PACE Provider with a
thirty (30) day cure period, immediately terminate this Agreement by giving
PACE Provider written notice of such termination, stating the reason for
termination; provided that the termination of this Agreement shall not
automatically terminate any other agreement or contract between or among
the parties.
5.3 Delivery of Data and Information upon Termination. In the event of
termination, PACE Provider, within 14 days following the date of termination,
shall deliver to the extent legally permitted to Participating Entity all raw data
and information in an editable electronic format as outlined in and subject to
the terms of Section 2.5, Document, Data, and Information Policies.
5.4 Authority to Terminate. The Executive Director of ABAG has the authority to
terminate this Agreement on behalf of ABAG
5.5 Effect of Termination. Termination of this Agreement by ABAG or Participating
Entity shall not affect the ability to levy and collect assessments and the PACE
Provider's ability to issue bonds for assessment contracts located within the
jurisdiction of such entity which have been entered into prior to the date of
termination.
In the event of termination pursuant to this Section 5 by ABAG, ABAG may
notify all Participating Entities of said termination.
6 Hold Harmless, Indemnity and Waiver of Subrogation.
To the fullest extent allowed by law, PACE Provider shall defend, indemnify, save
harmless and waive subrogation against the ABAG, and its members, elected and
appointed officials, officers and employees (Indemnitees) against any and all liability,
or including reasonable ':lTTnrr'\ou'C' from
all acts or omissions to act of PACE Provider or its officers, agents, or employees in
rendering services under this contract; excluding, however, such liability, claims, losses,
damages or expenses resulting from an intentional act or the gross negligence of an
Indemnitee.
This shall in no event construed to indemnification PACE Provider
to a greater extent than permitted under the public policy or laws of the State of
California. These defense and indemnification obligations are undertaken in addition to,
and shall not in any way be limited by, the insurance obligations set forth in this
Agreement. These defense and indemnification obligations shall survive the termination
or expiration of the contract for the full period of time permitted by law.
7 Insurance Requirements. PACE provider shall obtain and maintain insurance as
required in Attachment 2.
8 Prosecution of Work. The execution of this Agreement shall constitute PACE
Provider's authority to proceed immediately with the performance of this
Agreement.
9 Representations of PACE Provider.
9.1 Standard of Care. ABAG and Participating Entity have relied upon the
professional ability and training of PACE Provider as a material inducement to
entering into this Agreement. PACE Provider hereby agrees that all its work will
be performed and that its operations shall be conducted in accordance with
generally accepted and applicable professional practices and standards as well
as the requirements of applicable federal, state and local laws.
9.2 Status of PACE Provider. The parties intend that PACE Provider, in performing
the services specified herein, shall act as an independent contractor and shall
control the work and the manner in which it is performed. PACE Provider is not
to be considered an agent or employee of ABAG or of any Participating Entity
and is not entitled to participate in any pension plan, compensation
plan, insurance, bonus, employment protection, or similar benefits that ABAG or
the Participating Entity provides its employees.
Provider covenants that it presently has no interest
and that it will not acquire any interest, direct or indirect, that represents a
of interest state or that would in
any manner or degree with the performance of its services hereunder. PACE
Provider further covenants that in the performance of this Agreement no
person having any such interests shall employed.
PACE Provider agrees to comply with all federal, state
and local laws, regulations, statutes and policies applicable to the services
provided under this Agreement as they exist now and as they are changed,
amended or modified during the term of this Agreement.
9.5 Nondiscrimination. Without limiting any other provision hereunder, PACE
Provider shall comply with all applicable federal, state, and local laws, rules, and
regulations in regard to nondiscrimination in employment because of race,
color, ancestry, national origin, religion, sex, gender identity, marital status, age,
medical condition, pregnancy, disability, sexual orientation or other prohibited
basis. A" nondiscrimination rules or regulations required by law to be included
in this Agreement are incorporated herein by this reference.
9.6 Authority. The undersigned hereby represents and warrants that he or she has
authority to execute and deliver this Agreement on behalf of PACE Provider.
10 Demand for Assurance. Each party to this Agreement undertakes the obligation
that the other's expectation of receiving due performance will not be impaired.
When reasonable grounds for insecurity arise with respect to the performance of
either party, the other may in writing demand adequate assurance of due
performance and until such assurance is received may, if commercially reasonable,
suspend any performance for which the agreed return has not been received. After
receipt of a justified demand, failure to provide within a reasonable time, but not
exceeding thirty (3D) days, such assurance of due performance as is adequate under
the circumstances of the particular case is a repudiation of this Agreement.
Acceptance of any improper delivery, conduct, or service does not prejudice the
aggrieved party's right to demand adequate assurance of future performance.
Nothing in this Article limits the parties' right to terminate this Agreement pursuant
to Section 5, Termination.
11 Assignment and Delegation. No party hereto shall assign, delegate, sublet, or
transfer any interest in or duty under this Agreement without the prior written
consent of the other, and no such transfer shall be of any force or effect whatsoever
unless and until the other party shall have so consented; provided however, that
PACE Provider may assign this Agreement in connection with a merger or the sale of
all or substantially all of its assets or equity ownership without the prior written
consent of any other party provided that the successor expressly assumes all of the
obligations, including this Agreement, and confirms all of the representations,
warranties and covenants of PACE Provider hereunder.
12 Method and Place of Giving Notice. All notices shall be made in writing and shall be
given by personal delivery or by U.S. Mail or courier service to:
TO: ABAG:
TO: PACE PROVIDER:
101 8th Street
Oakland, CA 94607
Attn: Jennifer K. Berg
JennyB@abag.ca.gov
Western Riverside Council of Governments
4080 Lemon Street, 3 rd Floor, MS 1032
Riverside, CA 92501
Attn: Executive Director
bishop@wrcog.cog.ca.us
When a notice is given by a generally recognized overnight courier service, the notice
shall be deemed received on the next business day. When a copy of a notice is sent by
facsimile or email, the notice shall be deemed received upon transmission as long as (1)
the original copy of the notice is promptly deposited in the U.S. mail and postmarked on
the date of the facsimile or email, (2) the sender has a written confirmation of the
facsimile transmission or email, and (3) the facsimile or email is transmitted before 5
p.m. (recipient's time). In all other instances, notices shall be effective upon receipt by
the recipient. Changes may be made in the names and addresses of the person to
whom notices are to be given by giving notice pursuant to this paragraph.
13 Miscellaneous Provisions.
13.1 No Waiver of Breach. The waiver by a party of any breach of any term or
promise contained in this Agreement shall not be deemed to be a waiver of
such term or provision or any subsequent breach of the same or any other
term or promise contained in this Agreement.
13.3
13.4
To the fullest extent allowed by law, the provisions of this
Agreement shall be construed and given effect in a manner that avoids any
violation of statute, ordinance, regulation, or law. parties covenant and
agree that in the event that any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected} impaired, or invalidated thereby. PACE Provider
and ABAG acknowledge that they have each contributed to the making of
this Agreement and that, in the event of a dispute over the interpretation of
this Agreement} the language of the Agreement will not be construed against
one party in favor of the other. Each party hereto acknowledges that they
have each had an adequate opportunity to consult with counsel in the
negotiation and preparation of this Agreement.
Wherever in this Agreement the consent or approval of one party
is required to an act of the other party, such consent or approval shall not
be unreasonably withheld or delayed.
Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in
third parties.
13.5 Applicable Law and Forum. This Agreement shall be construed and
interpreted according to the substantive law of California, regardless of the
law of conflicts to the contrary in any jurisdiction. Any action to enforce the
terms of this Agreement or for the breach thereof shall be brought and tried
in the County of Alameda.
13.6 Captions. The captions in this Agreement are solely for convenience of
reference. They are not a part of this Agreement and shall have no effect on
its construction or interpretation.
13.7 This writing is intended both as the final expression of the
Agreement between the parties hereto with respect to the included terms
and as a complete and exclusive statement of the terms of the Agreement,
pursuant to Code of Civil Procedure Section 1856. No modification of this
Agreement shall be effective unless and until such modification is evidenced
by a writing signed both parties.
13.8 Survival of Terms. All express representationsl waivers, indemnifications,
and limitations of liability included in this Agreement will survive its
completion or termination for any reason.
13.9 Time is and shall be of the essence of this Agreement and
every provision hereof.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, a complete set of which shall be deemed an original, constituting
one and the same instrument. The delivery by facsimile or electronic mail of an
executed copy of this Amendment shall be deemed valid as jf an original
signature was delivered
Continued on next page:
IN WITNESS WHEREOF, the ABAG and the PACE Provider hereto have executed this
as of Date.
PACE PROVIDER: Western Riverside_
Council of Governments
By:
Name: Rick Bishop
Title: Executive Director
Date: March 21, 2016 ____ _
Name: ________ ~ ________ _
Title:
Date: ----~+-----r_------
APPROVED AS TO FORM FOR ABAG
Date: __ +-____ ~~---------
APPROVED AS TO FORM FOR PACE PROVIDER
Date: March 21, 2016 By: __________________ _
Mrunal Shah, Bond Counsel to
Western Riverside Council of
Governments
ALERT: Fannie Mae/Freddie Mac Instructions for Lenders
SINGLE FAMILY HOME OWNERS: In May, 2010, Fannie Mae and Freddie Mac,
government sponsored enterprises that purchase a large segment of conforming single
family home mortgages, issued new instructions to lending institutions on how to treat
properties with assessments under Property Assessed Clean Energy (PACE) programs
such as . These letters, and additional statements issued by the Federal
Housing Finance Agency, the agency that regulates single family home lenders, instruct
lenders to treat energy assessments as ({loans" instead of {{assessments."
On August 31, 2010, the agencies issued additional instructions to lenders that Fannie
Mae and Freddie Mac "will not purchase mortgage loans secured by properties with an
outstanding PACE obligation."
These letters and statements may lead lenders to conclude the PACE assessment
should be paid off before a property transfers or is refinanced. In addition, it may lead
some lenders to conclude that participating in PACE program is a violation of typical
mortgage terms prohibiting prior liens without lender consent. If you are selling your
property, a buyer's lender may refuse to finance the buyer's first mortgage loan unless
the assessment is paid off. We urge you to carefully read the disclosure information in
the Program application, review your mortgage documents, evaluate the risks of
proceeding with an application at this time, and contact your lender if you have any
concerns or for information regarding any other financing options that may be available
to you.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials Date
Initials Date Initials Date
Continued on next page:
Electronic links to the copies of letters from the Federal Financing Housing Authority re:
programs:
•
•
•
•
•
•
l012.pdf
l020.pdf
ATTACHMENT l(b)
BEFORE COMPLETING A PROGRAM APPLICATION, YOU SHOULD
CAREFULL Y REVIEW ANY MORTGAGE AGREEMENT(S) OR OTHER
SECURITY INSTRUMENT(S) WHICH AFFECT THE PROPERTY OR TO
WHICH YOU AS THE PROPERTY OWNER ARE A PARTY. ENTERING
INTO A PROGRAM ASSESSMENT CONTRACT WITHOUT THE CONSENT
OF YOUR EXISTING LENDER(S) COULD CONSTITUTE AN
EVENT OF DEFAULT UNDER SUCH AGREEMENTS OR SECURITY
INSTRUMENTS. DEFAULTING UNDER AN EXISTING MORTGAGE
AGREEMENT OR SECURITY INSTRUMENT COULD HAVE SERIOUS
CONSEQUENCES TO YOU, WHICH COULD INCLUDE THE
ACCELERATION OF THE REPAYMENT OBLIGATIONS DUE UNDER SUCH
AGREEMENT OR SECURITY INSTRUMENT. IN ADDITION,
FANNIE MAE AND FREDDIE MAC, THE OWNER OF A SIGNIFICANT
PORTION OF ALL HOME MORTGAGES, STATED THAT THEY WOULD
NOT PURCHASE HOME LOANS WITH ASSESSMENTS SUCH AS THOSE
OFFERED BY THE AUTHORITY. THIS MAY MEAN THAT PROPERTY
OWNERS WHO SELL OR REFINANCE THEIR PROPERTY MAY BE
REQUIRED TO PREPAY SUCH ASSESSMENTS AT THE TIME THEY
CLOSE THEIR SALE OR REFINANCING.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials
Initials Date Initials
Date
Date
PACE Provider shall maintain insurance as required by this
contract to the fullest amount allowed by law and shall maintain insurance for a period
of five (5) years following the completion of this project. PACE Provider shall provide a
copy of section 21 of this contract and these insurance requirements to its insurance
broker or insurer to confirm compliance. In the event PACE Provider fails to obtain or
maintain completed operations coverage as required by this agreement, ABAG, at its
sole discretion, may purchase the coverage required and the cost will be paid by PACE
Provider. The limits of insurance required in hereunder may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of the Indemnitees (if
agreed to in a written contract or agreement) before the any Indemnitee's own
Insurance or self-insurance shall be called upon to protect it as a named insured.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence Form CG 0001).
Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1
(any auto}.
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
Errors and Omissions Liability insurance appropriate to the PACE Provider's profession.
Architects' and engineers' coverage is to be endorsed to include contractual liability.
(b) Minimum Limits of Insurance. PACE Provider shall maintain limits no less than:
General Liability: $1,000,000 per occurrence for bodily injury, personal injury and
property damage. If Commercial General 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.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Errors and Omissions Liability: $1,000,000 per claim/aggregate.
(c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions
must to and insurer shall or such
deductibles or self-insured retentions as respects the Indemnitees; or the PACE Provider
shall satisfy any such deductibles or self-insured retentions. In addition, policies
containing any self-insured retention (SIR) provision shall provide or be endorsed to
provide that the SIR may be satisfied by either the named Insured or any of the
Indemnitees.
(d) Other Insurance Provisions. The commercial general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
(i) The Indemnitees are to be covered as additional insureds as respects: liability
arising out of work or operations performed by or on behalf of PACE Provider;
completed operations; or automobiles owned, leased, hired or borrowed by
PACE Provider.
(ii) For any claims related to this project, the PACE Provider's insurance coverage
shall be primary insurance as respects the Indemnitees.
(iii) Any insurance or self-insurance maintained by the Indemnitees shall be
excess of PACE Provider's insurance and shall not contribute with it.
(iv) Except for General Liability and Automobile Liability, each insurance policy
required by this clause shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty(30) days' prior written notice by
certified mail, return receipt requested, has been given to ABAG. For General
Liability and Automobile Liability, PACE Provider shall provide ABAG with thirty
(30) day's prior notice of cancellation by either the insurer or PACE Provider.
(v) Coverage shall not extend to any defense or indemnity coverage for the
active negligence of the Indemnitees in any case where an agreement to defend
and indemnify the Indemnitees would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
(e) Other Insurance Provisions -Workers Compensation. The Workers
Compensation insurance shall be endorsed to waive subrogation against the
Indemnitees.
(f) Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A: VII, unless otherwise acceptable to ABAG.
(g) Verification of Coverage. PACE Provider shall furnish the ABAG with original
certificates and amendatory endorsements effecting coverage required by this
clause. All certificates and endorsements are to be received and approved by ABAG
before work commences. ABAG reserves the right to require complete, certified
copies of all required insurance policies, including endorsements effecting the
coverage required by these specifications at any time.
AGREEMENT FOR COLLABORATIVE SERVICES
FOR PROPERTY ASSESSED CLEAN ENERGY FINANCING
This Agreement for Collaborative Services ("Agreement"), dated as of March 21L..2016
("Effective Date") is by and among the Association of Bay Area Governments
(hereinafter "ABAG"), Ygrene Energy Fund California LLC, (hereinafter "PACE Provider"),
as an entity administering a Property Assessed Clean Energy (PACE) financing program
utilizing either the California Assembly Bill 811 and/or California Senate Bill 555 model
and any Participating Entity, as defined in Section 1.3 below, that adopts this
Agreement.
RECITALS
WHEREAS, ABAG is committed to mitigating and adapting to the causes and impacts of
climate change and supporting energy independence from fossil fuels to safeguard the
environment, human health and the economy; and
WHEREAS, ABAG as Program Administrator for the Bay Area Regional Energy Network
(BayREN), works closely with 101 cities in the nine county Bay Area region (A BAG
territory) to develop and implement innovative energy efficiency programs, including
supporting commercial and residential Property Assessed Clean Energy (PACE)
programs; and
WHEREAS, the BayREN offers programs, technical resources and education for energy
upgrades and retrofits; and
WHEREAS, the objective of the BayREN is to help property owners save energy, save
money, and live comfortably; and
WHEREAS, the BayREN seeks to assist local governments to understand all aspects of
partnering with PACE Providers in order to minimize customer confusion, provide access
to education and information to property owners and assist with making informed
decisions on rebates and incentives, contractor programs, and financing options; and
WHEREAS, the PACE Provider is willing to participate to support community climate
goals and minimize consumer and contractor confusion; and
WHEREAS, the PACE Provider will provide support and resources to any Participating
Entity as requested related to education, outreach and development of the energy
upgrade industry and trades; and
WHEREAS, the PACE Provider will support, align and integrate its efforts with the
community-wide goals for job creation, resource demand reduction, and renewable
energy generation; and
WHEREAS, the PACE Provider will establish its own interest rates, repayment terms, and
fees as state and federal laws and the market defines and allows; and
WHEREAS, the PACE Provider will arrange for the collection of Property Assessed Clean
Energy assessments it has financed directly with the Participating Entity's County Tax
Collector's Office; and
WHEREAS, this Agreement does not include any financial arrangements between the
PACE Provider, ABAG and the Participating Entity adopting this Agreement, nor does it
preclude any separate contracts, contract terms for services or support; and
WHEREAS, the purpose of this Agreement is to set forth the mutual understandings
between ABAG and the PACE Provider and to establish basic operating procedures for
any PACE provider operating within the ABAG territory, and any Participating Entity that
adopts this agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, the parties hereto agree as follows:
AGREEMENT
1 Definitions.
1.1 "Eligible improvement" is a technology, product or tool officially approved by
the PACE provider. The improvements may include distributed generation
renewable energy sources, energy and water efficiency improvements, and
electric vehicle charging infrastructure improvements that will be permanently
affixed to real property, and any additional improvements deemed eligible in
the future by the California Legislature and/or the California Judiciary.
1.2 "PACE Provider" is an entity participating in ABAG territory administering a
program providing Property Assessed Clean Energy (PACE) financing.
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1.3 "Participating Entity" is any city, town, county or the City and County of San
Francisco located within ABAG's geographical boundaries that adopts this
Agreement.
1.4 IIParticipating Contractor' is any contractor that has agreed to, and abides, by
the terms and conditions of the PACE Provider's contractor standards.
1.5 "Property Assessed Clean Energy (PACE) Financing" is a means of financing
distributed generation, renewable energy sources, energy and water efficiency
improvements, electric vehicle charging infrastructure and other
improvements deemed eligible by the California legislature that will be
permanently affixed to real property, whereby the funds provided to pay for
the improvements are repaid through contractual assessments and/or special
taxes, utilizing either California Assembly Bill 811 (levine, 2008) ("AB 811")'
which amended §§5898.10-5899.3 of the California Streets and Highways
Code; or California Senate Bill 555 (Hancock, 2011) ("SB 555"), which amended
certain portions of §§53311-53368.3 of the California Government Code and
each as subsequently amended.
1.6 IIWork" as defined throughout this Agreement is the collaborative, non-
competitive, effort between the PACE Provider and ABAG to support the
citizens of ABAG member jurisdictions in completing water, energy efficiency
upgrades, and the installation of renewable energy generating improvements.
2 Scope of Work I Collaboration.
2.1 PACE Provider's Specified Services. The PACE Provider will offer and provide
Property Assessed Clean Energy Financing under the requirements of AB 811
and/or SB 555.
2.2 Performance Standard. PACE Provider shall perform all work hereunder in a
manner consistent with the level of competency and standard of care normally
observed by an organization administering a Property Assessed Clean Energy
financing program pursuant to California Assembly Bill 811 and/or California
Senate Bill 555. ABAG has relied upon the professional ability and expertise of
PACE Provider as a material inducement to enter into this Agreement. PACE
Provider hereby agrees to provide all services under this Agreement in
accordance with generally accepted professional practices and standards of
care, as well as the requirements of applicable federal, state and local laws. If
ABAG is concerned that any of PACE Provider's work is not in accordance with
the level of competency and standard of care described herein, ABAG shall
have the right to do any or all of the following: (a) require PACE Provider to
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discuss with Participating Entity and/or to review the quality of the work and
resolve matters of concern; (b) terminate this Agreement pursuant to the
provisions of Section 5, Termination; or (c) pursue any and all other remedies
available to ABAG at law or in equity.
2.3 Financing Provision Requirements.
The PACE Provider will:
2.3.1 Include a process to receive acknowledgement and confirmation of
satisfaction with work completed from the applicant before project
payment is disbursed and have a published dispute resolution process
available for customers.
2.3.2 Provide summary of financing details (including assessment or special tax
amount and terms, financing installments and estimated administrative
expenses) to the applicant specific to the requested amount of the
financing.
2.3.3 For residential properties, require an applicant's acknowledgment of the
Federal Housing Finance Agency position on PACE by a separate
signature/initial acknowledgement, in a Residential Disclosure Signature
Form that is substantially similar in content to Attachment l(a) or l(b), as
approved by ABAG.
2.3.4 Provide training to contractors and information to property owners on
the availability of rebates (for all utility and generation types), including
and not limited to city and county rebate programs, BayREN programs,
PG&E programs, and other such offerings. (For information about local
programs, the contractor and/or home owner may be directed to the
BayREN Home Upgrade Advisor at 866-878-6008.)
2.3.5 Require that applicable building permits are obtained for all
improvements in Participating Entities.
2.3.6 Verify that all property taxes for the assessed property are current for the
previous three years or since the current owner acquired the property,
whichever is shorter.
2.3.7 Recommend that property owners consult with a tax professional prior to
claiming any tax deductions associated with the project and not
recommend that homeowners take any particular filing position.
regarding their annual or semi-annual PACE assessment payments.
2.3.8 Not represent that the full assessment is tax deductible.
2.3.9 Have a consistent plan for removal of assessments at end of repayment
term, prepayment and/or in the event of program closure.
ABAG&
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2.4 Financial Policies.
The PACE Provider will:
2.4.1 For programs offering residential PACE financing, be an active participant
in the California Alternative Energy and Advanced Transportation
Financing Authority (CAEATFA) PACE Loan Loss Reserve Program or
comparable loan loss reserve program which includes at minimum the
parameters outlined in Attachment 2.
2.4.2 Notify ABAG six months in advance if funding capacity available from the
PACE Provider to prospective PACE customers in the Participating Entity
will fall below the amount dispersed in the previous six months of
operation.
2.4.3 Notify ABAG of any foreclosure action as a result of a default in the
payment of a PACE assessment on property within ABAG's geographical
boundaries, where the PACE assessment was originated by the PACE
Provider.
2.5 Documents, Data, and Information Policies.
The PACE Provider will:
2.5.1 Provide to Participating Entity (for internal evaluation purposes only and
not for distribution to any third party or for marketing purposes, other
than as required by law, by request of Participating Entity, electronic
access to the name, business name} and California State Contractors
license number of participating contractors of the PACE Provider's
program whose business address is located in the requesting
Participating Entity or who conduct business in the requesting
Participating Entity.
2.5.2 Retain completed Residential Disclosure (hardcopy or electronic) on file
for duration of assessment, and furnish to Participating Entity upon
request.
2.5.3 Provide upon request either direct real time access to data or quarterly
reports in an open electronic file format (such as Microsoft Excel) to
Participating Entity by request for internal evaluation purposes only (and
not for distribution to any third party, including, without limitation, utility
companies, services providers and equipment manufacturers or for
marketing purposes) that includes the following information for each
assessment:
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a. Required data:
i. Assessor's Parcel Number (APN) of the property
ii. Dollar amount financed (the amount of the assessment
and/or special tax)
iii. Listing of all energy efficiency and water conservation
eligible improvements installed by virtue of the
financing, including the unit of measure for the
improvement and the quantity installed as captured by
Participating Contractor
iv. Listing of all renewable generation improvements
installed and the solar STC-DC rating in watts or kilowatts
as captured by Participating Contractor
v. Estimated energy and water savings (in appropriate
units) associated with the project
b. If available (in the aggregate):
i. Amount of rebate or incentive dollars associated with
the project (not financed) and the name of the program
ii. How the customer heard about PACE financing
iii. Why the customer selected PACE over other financing
instruments available
iv. Why the customer selected their final PACE Provider
over the other members
The Participating Entity will:
Maintain the privacy and security of data received from PACE Provider. Participating
Entity shall comply with all applicable state and federal laws, regulations and applicable
California Public Utilities Commission regulations. Participating Entity may only provide
reports relating to Section 2.5.3(a)(ii}-(v) for public distribution that aggregate the data
such that individual customer information cannot be identified, unless such customer
has authorized written release of individual customer information. A Participating Entity
shall not share with any third party the data and reports provided by a PACE Provider
pursuant to Section 2.5.3(b) (if any).
2.5.4 Provide the documents required for participation in the PACE
Providers' PACE Financing program to Participating Entity officials.
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2.5.5 Provide support to Participating Entity's staff to facilitate adoption
of required participation documents.
2.6 ABAG will encourage Participating Entity to offer staff resources and
support to bring forward to their respective boards or councils the documents
provided by the PACE Provider required for participation in the PACE Provider's PACE
financing product.
2.7 Branding I Marketing Requirements.
The Parties will:
2.7.1 Collaborate on any local and/or regional efforts that may impact PACE
financing participation to achieve the best possible outcome for property
owners.
2.7.2 Represent the role of ABAG as the local neutral third party, not-for-profit,
public service agency supporting the public through the upgrade process,
with the following message to consumers: Among the financing products
available, competition is encouraged to the benefit of the consumer, with
the common goal of successful completion of projects.
The PACE Provider will:
2.7.3 Provide assistance to ABAG and any Participating Entity signing this
Agreement for: (1) coordinating and implementing the integration of the
PACE Provider into applicable BayREN and other relevant energy
efficiency programs; and (2) support of contractor training.
2.7.4 Provide specific training for participating contractors engaged with local
PACE programs using the PACE Provider's financing product, materials,
collateral, tools, and associated software, through training offered
directly from the PACE Provider.
2.7.5 Provide professional services, template documents, and other services
reasonably necessary to staff for integrating the PACE Provider's
financing option into the websites of any Participating Entity requesting
such assistance.
2.7.6 Provide training and resources to any Participating Entity as needed to
build understanding and support for use of the PACE financing product.
ABAG will encourage ABAG members to:
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2.7.7 Present with impartiality the financing products of the PACE Providers in
all venues to the public.
2.7.8 Present marketing collateral of all financing products (where applicable)
with impartiality in education and outreach materials and events
2.8 PACE Providers Responsibilities Regarding Participating Contractor.
PACE Providers will:
2.8.1 Require that contractors have the appropriate California State License
Board (CSLB) license in good standing
2.8.2 Require, in accordance with California State License Board requirements,
that contractors' bonding is in good standing
2.8.3 Require, in accordance with California State License Board requirements,
that contractors have appropriate Workers' Compensation coverage
2.8.4 Require that contractors have a minimum of $1M of commercial general
liability insurance
2.8.S NOT endorse, recommend, or refer any specific contractor other than
contractors who are to PACE Provider's knowledge, in good standing with
CSLB, are insured and meet material program eligibility requirements
2.8.6 NOT make any representation or warranty regarding the qualifications,
licensing, products, or workmanship of any contractor
2.8.7 NOT make any warranty regarding the contractor's work or products
purchased from contractors provided
2.8.8 NOT accept any liability that may be alleged to arise from the work of any
listed contractor on a customer project or from any reliance on any
claims, statements, or other descriptions regarding a contractor's
certifications, licenses, qualifications or products
2.8.9 Comply with provisions of Section 2.3.7 of this Agreement.
2.8.10 Via trainings and customer complaint system, require that contractors
and their representatives, employees, and agents do not represent
themselves as agents, representatives, contractors, subcontractors, or
employees of ABAG or any Participating Entity, or claim association or
affiliation with ABAG or any Participating Entity.
2.8.11 Independently engages the Participating Entity's Tax Collector for
administration of property tax assessments placed through its financing
product.
ABAG& Fund CA
3 Payment. This Agreement does not include any financial arrangements between the
PACE Provider and ABAG, nor does it preclude any separate contracts for services or
support.
4 Term of Agreement. The term of this Agreement shall be from the Effective Date
until termination in accordance with the provisions of Section 5, Termination below.
5 Termination.
5.1 Termination without Cause. Notwithstanding any other provision of this
Agreement, at any time and without cause, ABAG, PACE Provider, or any
Participating Entity shall have the right, in its sole discretion, to terminate this
Agreement by giving 30 days written notice to the other Party to this
Agreement; provided that a party's termination of this Agreement under this
section shall not automatically terminate any other agreement or contract
between the other parties.
5.2 Termination for Cause. Notwithstanding any other provision of this Agreement,
should the PACE Provider fail to uphold any of its obligations under this
Agreement in a material way, within the time and in the manner herein
provided, or otherwise materially violate any of the terms of this Agreement,
ABAG or a Participating Entity may, after providing the PACE Provider with a
thirty (30) day cure period, immediately terminate this Agreement by giving
PACE Provider written notice of such termination, stating the reason for
termination; provided that the termination of this Agreement shall not
automatically terminate any other agreement or contract between or among
the parties.
5.3 Delivery of Data and Information upon Termination. In the event of
termination, PACE Provider, within 14 days following the date of termination,
shall deliver to the extent legally permitted to Participating Entity all raw data
and information in an editable electronic format as outlined in and subject to
the terms of Section 2.5, Document, Data, and Information Policies.
5.4 Authority to Terminate. The Executive Director of ABAG has the authority to
terminate this Agreement on behalf of ABAG
5.5 Effect of Termination. Termination of this Agreement by ABAG or Participating
Entity shall not affect the PACE Provider's ability to levy and collect assessments
and/or special taxes and the PACE Provider's ability to issue bonds or otherwise
finance contracts located within the jurisdiction of such Participating Entity,
which have been entered into prior to the date of termination. In the event of
termination pursuant to this Section 5 by ABAG, ABAG may notify all
Participating Entities of said termination.
6 Hold Harmless, Indemnity and Waiver of Subrogation.
To the fullest extent allowed by law, PACE Provider shall defend, indemnify, save
harmless and waive subrogation against the ABAG, and its members, elected and
appointed officials, officers and employees (Indemnitees) against any and all liability,
claims, losses, damages, or expenses, including reasonable attorneys' fees, arising from
all acts or omissions to act of PACE Provider or its officers, agents, or employees in
rendering services under this contract; excluding, however, such liability, claims, losses,
damages or expenses resulting from an intentional act or the gross negligence of an
Indemnitee.
This section shall in no event be construed to require indemnification by PACE Provider
to a greater extent than permitted under the public policy or laws of the State of
California. These defense and indemnification obligations are undertaken in addition to,
and shall not in any way be limited by, the insurance obligations set forth in this
Agreement. These defense and indemnification obligations shall survive the termination
or expiration of the contract for the full period of time permitted by law.
7 Insurance Requirements. PACE provider shall obtain and maintain insurance as
required in Attachment 2.
8 Prosecution of Work. The execution of this Agreement shall constitute PACE
Provider's authority to proceed immediately with the performance of this
Agreement.
9 Representations of PACE Provider.
9.1 Standard of Care. ABAG and Participating Entity have relied upon the
professional ability and training of PACE Provider as a material inducement to
entering into this Agreement. PACE Provider hereby agrees that all its work will
be performed and that its operations shall be conducted in accordance with
generally accepted and applicable professional practices and standards as well
as the requirements of applicable federal, state and local laws.
9.2 Status of PACE Provider. The parties intend that PACE Provider, in performing
the services specified herein, shall act as an independent contractor and shall
control the work and the manner in which it is performed. PACE Provider is not
to be considered an agent or employee of ABAG or of any Participating Entity
and is not entitled to participate in any pension plan, worker's compensation
plan, insurance, bonus, employment protection, or similar benefits that ABAG or
the Participating Entity provides its employees.
9.3 Conflict of Interest. PACE Provider covenants that it presently has no interest
and that it will not acquire any interest, direct or indirect, that represents a
financial conflict of interest under state law or that would otherwise conflict in
any manner or degree with the performance of its services hereunder. PACE
Provider further covenants that in the performance of this Agreement no
person having any such interests shall be employed.
9.4 Statutory Compliance. PACE Provider agrees to comply with all federal, state
and local laws, regulations, statutes and policies applicable to the services
provided under this Agreement as they exist now and as they are changed,
amended or modified during the term of this Agreement.
9.5 Nondiscrimination. Without limiting any other provision hereunder, PACE
Provider shall comply with all applicable federal, state, and local laws, rules, and
regulations in regard to nondiscrimination in employment because of race,
color, ancestry, national origin, religion, sex, gender identity, marital status, age,
medical condition, pregnancy, disability, sexual orientation or other prohibited
basis. All nondiscrimination rules or regulations required by law to be included
in this Agreement are incorporated herein by this reference.
9.6 Authority. The undersigned hereby represents and warrants that he or she has
authority to execute and deliver this Agreement on behalf of PACE Provider.
10 Demand for Assurance. Each party to this Agreement undertakes the obligation
that the other's expectation of receiving due performance will not be impaired.
When reasonable grounds for insecurity arise with respect to the performance of
either party, the other may in writing demand adequate assurance of due
performance and until such assurance is received may, if commercially reasonable,
suspend any performance for which the agreed return has not been received. After
receipt of a justified demand, failure to provide within a reasonable time, but not
exceeding thirty (30) days, such assurance of due performance as is adequate under
the circumstances of the particular case is a repudiation of this Agreement.
aggrieved party's right to demand adequate assurance of future performance.
Nothing in this Article limits the parties' right to terminate this Agreement pursuant
to Section 5, Termination.
11 Assignment and Delegation. No party hereto shall assign, delegate, sublet, or
transfer any interest in or duty under this Agreement without the prior written
consent of the other, and no such transfer shall be of any force or effect whatsoever
unless and until the other party shall have so consented; provided however, that
PACE Provider may assign this Agreement in connection with a merger or the sale of
all or substantially all of its assets or equity ownership without the prior written
consent of any other party provided that the successor expressly assumes all of the
obligations, including this Agreement, and confirms all of the representations,
warranties and covenants of PACE Provider hereunder.
12 Method and Place of Giving Notice. All notices shall be made in writing and shall be
given by personal delivery or by U.S. Mail or courier service to:
TO: ABAG:
TO: PACE PROVIDER:
Address: ---------------------------
Facsimile: ---------------------------
Email address: ------------------------
Ygrene Energy Fund California LLC
Attn: Bart Van Voorhis
Executive Vice-President
815 5th Street
Santa Rosa, CA 95404
Email address:bart@ygrene.us
When a notice is given by a generally recognized overnight courier service, the notice
shall be deemed received on the next business day. When a copy of a notice is sent by
facsimile or email, the notice shall be deemed received upon transmission as long as (1)
the original copy of the notice is promptly deposited in the U.S. mail and postmarked on
the date of the facsimile or email, (2) the sender has a written confirmation of the
facsimile transmission or email, and (3) the facsimile or email is transmitted before 5
p.m. (recipient's time). In all other instances, notices shall be effective upon receipt by
the recipient. Changes may be made in the names and addresses of the person to
whom notices are to be given by giving notice pursuant to this paragraph.
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13 Miscellaneous Provisions.
13.1 No Waiver of Breach. The waiver by a party of any breach of any term or
promise contained in this Agreement shall not be deemed to be a waiver of
such term or provision or any subsequent breach of the same or any other
term or promise contained in this Agreement.
13.2 Construction. To the fullest extent allowed by law, the provisions of this
Agreement shall be construed and given effect in a manner that avoids any
violation of statute, ordinance, regulation, or law. The parties covenant and
agree that in the event that any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired, or invalidated thereby. PACE Provider
and ABAG acknowledge that they have each contributed to the making of
this Agreement and that, in the event of a dispute over the interpretation of
this Agreement, the language of the Agreement will not be construed against
one party in favor of the other. Each party hereto acknowledges that they
have each had an adequate opportunity to consult with counsel in the
negotiation and preparation of this Agreement.
13.3 Consent. Wherever in this Agreement the consent or approval of one party
is required to an act of the other party, such consent or approval shall not
be unreasonably withheld or delayed.
13.4 No Third Party Beneficiaries. Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in
third parties.
13.5 Applicable Law and Forum. This Agreement shall be construed and
interpreted according to the substantive law of California, regardless of the
law of conflicts to the contrary in any jurisdiction. Any action to enforce the
terms of this Agreement or for the breach thereof shall be brought and tried
in the County of Alameda.
13.6 Captions. The captions in this Agreement are solely for convenience of
reference. They are not a part of this Agreement and shall have no effect on
its construction or interpretation.
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13.7 Merger. This writing is intended both as the final expression of the
Agreement between the parties hereto with respect to the included terms
and as a complete and exclusive statement of the terms of the Agreement,
pursuant to Code of Civil Procedure Section 1856. No modification of this
Agreement shall be effective unless and until such modification is evidenced
by a writing signed by both parties.
13.8 Survival of Terms. All express representations, waivers, indemnifications,
and limitations of liability included in this Agreement will survive its
completion or termination for any reason.
13.9 Time of Essence. Time is and shall be of the essence of this Agreement and
every provision hereof.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, a complete set of which shall be deemed an original,
constituting one and the same instrument. The delivery by facsimile or
electronic mail of an executed copy of this Amendment shall be deemed
valid as if an original signature was delivered
Continued on next page:
IN WITNESS WHEREOF, the ABAG and the PACE Provider hereto have executed this
Agreement as of the Effective Date.
PACE PROVIDER: ________ _ ABAG: ~ ____________ ~
YGRENE ENERGY FUND CALIFORNIA LLC,
ite~Liability Company
/
By:
Name: Stacey Lawson _____ _ Name: --------~--------
Title: President/CEO _____ _ Title:
Date: Date: __ --+ __ -1--1-___ _
APPROVED AS TO FORM FOR ABAG
Date: ~f-----=--:I'--BY:f---~ __
AnACHMENT l(a)
ALERT: Fannie Mae/Freddie Mac Instructions for Lenders
SINGLE FAMILY HOME OWNERS: In May, 2010, Fannie Mae and Freddie Mac,
government sponsored enterprises that purchase a large segment of conforming single
family home mortgages, issued new instructions to lending institutions on how to treat
properties with assessments under Property Assessed Clean Energy (PACE) programs
such as . These letters, and additional statements issued by the Federal
Housing Finance Agency, the agency that regulates single family home lenders, instruct
lenders to treat energy assessments as "loans" instead of "assessments."
On August 31, 2010, the agencies issued additional instructions to lenders that Fannie
Mae and Freddie Mac "will not purchase mortgage loans secured by properties with an
outstanding PACE obligation."
These letters and statements may lead lenders to conclude the PACE assessment
should be paid off before a property transfers or is refinanced. In addition, it may lead
some lenders to conclude that participating in PACE program is a violation of typical
mortgage terms prohibiting prior liens without lender consent. If you are selling your
property, a buyer's lender may refuse to finance the buyer's first mortgage loan unless
the assessment is paid off. We urge you to carefully read the disclosure information in
the Program application, review your mortgage documents, evaluate the risks of
proceeding with an application at this time, and contact your lender if you have any
concerns or for information regarding any other financing options that may be available
to you.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials Date
Initials Date Initials Date
Continued on next page:
Electronic links to the copies of letters from the Federal Financing Housing Authority re:
PACE programs:
KeglOnal Coilaborative Services Aar'=>Pl"I'1lpnr for ABAG& Fund CA LLC
160f20
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ABAG&
ATTACHMENT l(b)
BEFORE COMPLETING A PROGRAM APPLICATION, YOU SHOULD
CAREFULL Y REVIEW ANY MORTGAGE AGREEMENT(S) OR OTHER
SECURITY INSTRUMENT(S) WHICH AFFECT THE PROPERTY OR TO
WHICH YOU AS THE PROPERTY OWNER ARE A PARTY. ENTERING
INTO A PROGRAM ASSESSMENT CONTRACT WITHOUT THE CONSENT
OF YOUR EXISTING LENDER(S) COULD CONSTITUTE AN EVENT OF
DEFAULT UNDER SUCH AGREEMENTS OR SECURITY INSTRUMENTS.
DEFAULTING UNDER AN EXISTING MORTGAGE AGREEMENT OR
SECURITY INSTRUMENT COULD HAVE SERIOUS CONSEQUENCES TO
YOU, WHICH COULD INCLUDE THE ACCELERATION OF THE
REPAYMENT OBLIGATIONS DUE UNDER SUCH AGREEMENT OR
SECURITY INSTRUMENT. IN ADDITION, FANNIE MAE AND FREDDIE
MAC, THE OWNER OF A SIGNIFICANT PORTION OF ALL HOME
MORTGAGES, STATED THAT THEY WOULD NOT PURCHASE HOME
LOANS WITH ASSESSMENTS SUCH AS THOSE OFFERED BY THE
AUTHORITY. THIS MAY MEAN THAT PROPERTY OWNERS WHO SELL OR
REFINANCE THEIR PROPERTY MAY BE REQUIRED TO PREPAY SUCH
ASSESSMENTS AT THE TIME THEY CLOSE THEIR SALE OR
REFINANCING.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials Date
Initials Date Initials Date
ABAG&
ATTACHMENT 2
Insurance Requirements. PACE Provider shall maintain insurance as required by this
contract to the fullest amount allowed by law and shall maintain insurance for a period
of five (5) years following the completion of this project. PACE Provider shall provide a
copy of section 21 of this contract and these insurance requirements to its insurance
broker or insurer to confirm compliance. In the event PACE Provider fails to obtain or
maintain completed operations coverage as required by this agreement, ABAG, at its
sole discretion, may purchase the coverage required and the cost will be paid by PACE
Provider. The limits of insurance required in hereunder may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of the Indemnitees (if
agreed to in a written contract or agreement) before the any Indemnitee's own
Insurance or self-insurance shall be called upon to protect it as a named insured.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence Form CG 0001).
Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1
(any auto}.
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
Errors and Omissions Liability insurance appropriate to the PACE Provider's profession.
Architects' and engineers' coverage is to be endorsed to include contractual liability.
(b) Minimum Limits of Insurance. PACE Provider shall maintain limits no less than:
General Liability: $1,000,000 per occurrence for bodily injury, personal injury and
property damage. If Commercial General 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.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Errors and Omissions Liability: $1,000,000 per claim/aggregate.
(c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions
must be declared to and approved by ABAG. The insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects the Indemnitees; or the PACE Provider
ABAG&
shall satisfy any such deductibles or self-insured retentions. In addition, policies
containing any self-insured retention (SIR) provision shall provide or be endorsed to
provide that the SIR may be satisfied by either the named Insured or any of the
Indemnitees.
(d) Other Insurance Provisions. The commercial general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
(i) The Indemnitees are to be covered as additional insureds as respects: liability
arising out of work or operations performed by or on behalf of PACE Provider;
completed operations; or automobiles owned, leased, hired or borrowed by
PACE Provider.
(ii) For any claims related to this project, the PACE Provider's insurance coverage
shall be primary insurance as respects the Indemnitees.
(iii) Any insurance or self-insurance maintained by the Indemnitees shall be
excess of PACE Provider's insurance and shall not contribute with it.
(iv) Except for General Liability and Automobile Liability, each insurance policy
required by this clause shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty(30) days' prior written notice by
certified mail, return receipt requested, has been given to ABAG. For General
Liability and Automobile Liability, PACE Provider shall provide ABAG with thirty
(30) day's prior notice of cancellation by either the insurer or PACE Provider.
(v) Coverage shall not extend to any defense or indemnity coverage for the
active negligence of the Indemnitees in any case where an agreement to defend
and indemnify the Indemnitees would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
(e) Other Insurance Provisions -Workers Compensation. The Workers
Compensation insurance shall be endorsed to waive subrogation against the
Indemnitees.
(f) Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A: VII, unless otherwise acceptable to ABAG.
(g) Verification of Coverage. PACE Provider shall furnish the ABAG with original
certificates and amendatory endorsements effecting coverage required by this
clause. All certificates and endorsements are to be received and approved by ABAG
before work commences. ABAG reserves the right to require complete, certified
copies of all required insurance policies, including endorsements effecting the
coverage required by these specifications at any time.
&