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HomeMy WebLinkAboutReso 2016-072 RESOLUTION NO. 2016-072 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHiiLA VISTA APPROVII�'G AI� AMEI�'DMENT TO A CONTRACT WITH YGREI�'E EI�'ERGY FUI�TD CALIFORI�TIA. LLC (YGREI�'E") REGARDII�'G THE ADMINISTRATION OF THE CHULA VISTA PROPERTY-ASSESSED CLEA\ ENERGY Fli�i.4i\'CING PROGRAA4: .4i\'D Ai�r IIvDEA�'IFICATIOI�' AI�'D It�'SURAI�'CE AGREE�4EI�TT V�'ITH YGRENE WHEREAS in Aueust 6; 20li; the City Council of the Cit�� of Chula Vista (City) approved a Third-Part}� Administration agreement ti�ith Ygrene Enero}� Fund Califomia, LLC (Ygrene) to design, fund, implement and market the Cit�•`s Property Assessed Clean Energy (`PACE") program (the "Contracr'): and VJHEREAS. on December 10, 2013, the City Council adopted Resolution No. 2013-257 establishing the Cit�- of Chula Vista Communit�� Facilities District No. 20li-1 (Clean Enere�� Program) (`Clean Energy CFD") and authorizing the le�ry of special ta�es therein to finance or refinance the acquisition, installation and improvement of energ}� efficienc}�, �vater consen�ation; and renewabie energ}� improvements and electric vehicle chazgine stations permanently affixed to or on real propem� or in buildings: and WI IEREAS, the Cin� and Ygrene now desire to transition from the Cit��'s PACE program to the statewide Califomia Home Finance Authority PACE program (the "Authority PACE Program") and the California Home Finance Authorit��-established Community Facilities District 2014-1 (`CFD 2014-1"), both of which Ygrene administers; and ��'HEREAS, to accomplish the transition, the Citv and Ygrene ha��e prepared an amendment to the Contract. H�hich provides that the Cit��'s PACE proeram H�ill be closed to ne��� participants. the Contract �vill be terminated follo���ing a transition period, and Ygrene ���ill defend and indemnifi� the Ciri� as to the termination of the Convact: and WHEREAS, the City and 1'grene have also prepared an "Indemnification Insurance A2reement," pursuant to which Yerene agrees to defend and indemnify the Cit�� and comply with the Ciry`s insurance requirements with respect to participation in the Authority PACE Proeram and CFD 2014-1. NOV�'. THEREFORE. the Cit�� Council of the Citv of Chula Vista does herebv resol��e that it approves the "Aereement Bet���een the City of Chula Vista and Ygrene Fund Califomia LLC Amendment the�Third-Partv Administration Aereement." in substantiall�� the form presented. ���ith such minor modifications as ma�� be appro��ed or required by the Cit�� Attorne��, a copy of�rhich shall be kept on file ���ith the Cih� Clerk. and authorizes and directs the A4avor to ezecute same. Resolution No. 2016-072 Page No. 2 BE IT FURTHER RESOLVED, that the City Council of the City of Chula Vista hereby approves the °Indemnification and Insurance Agreement between the Ciry of Chula Vista and Ygrene Fund Califomia LLC," in substantially the form presented, with such minor modifications as may be approved or required by the City Attorney, a copy of which shall be kept on file ��ith the City Clerk, and authorizes and directs the Mayor to execute same. Presented by Approved as to form by _ . �C. Gockett Glen R. oogins Director of Economic Development ttomey PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, Califomia, this l Oth day of May 2016 by the following vote: AYES: Councilmembers: Aguilar, Bensoussan, Miesen, and Salas NAYS: Councilmembers: None ABSENT: Councilmembers: McCann Mary S as, Mayor ATTEST: / Donna R. Noms, MC.City Clerk STA"CE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) 1, Donna R. Norris, City Clerk of Chula Vista, Califomia, do hereby certify that the foregoing Resolution No. 2016-072 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on Yhe 1 Oth day of May 2016. Eaecuted this l Oth day of May 2016. Donna R. Non�is. CMC. Citv Clerk � ° ResolfftlMt`vo. ��`(5=072 " Paee\o. 3 Agreement Behceen the Cit}' of Chula Vista and 1'grene Energy Fund California,LLC Amending the Third-Pam�Administration Agreement This Amendment ("Amendment") is made and entered into as of M� �O,ZO�G , (the "Effecti�•e Date") b}� and betw�een the CITY OF CHULA VISTA, a chanered municipal corporation (the "Citr�"), and YGRE1�iE EI�TERG1' FUND CALIFORI�'IA, LLC, a California limited liability corporation with principal offices in Santa Rosa; CA ("Contractor"). The City and Contractor are sometimes referred to in this Amendment as the "Parties." BACKGROtiND \�'I-IEREAS, the Panies entered into tfiat certain Third-Pany Administration Aereement dated as of the 6`� day of Aueust 20li (the "I PA Agreemeut") under which the City contracted with Contractor for the administration and fundine of the Cin•'s Propertt� Assessed Clean Energp ('`PACE") proeram (the "PROGRADI"); and �'�'HEREAS,. numerous Ciq� residents have joined the City`s PACE pro2ram since it �tias established: and �VHEREAS, Contractor recently began administerine a statewide PACE proeram operated by the California Home Finance Authority("CHFA"), a Califomia joint powers authorin; and �'�'HEREAS, Con[ractor requested tha[the City become a member of CHFA, thereb}• allowine it to run its PACE program within the City`s boundaries: and � \�-I-IEREAS. the Citv desires to allow its residents to utilize the PACE and CHF.A state�vide program, and to transition aH�a��from the existine City PACE proeram; and �1'HEREAS, the City is [aking action to join CHFA as an associate member and to authorize CHFA to operate its PACE proeram within the Cirv's boundaries; and WHEREAS, the TPA Agreement pro��ides for an initial five-year term, allows the Parties to terminate for com�enience and, in such case. pro��ides for a tw�o-}�ear "Transition Period," after khich Contracror shall cease providing sen�ices under the TPA Agreement: and �'�'HEREAS; the par[ies desire to amend the TPA Agreement and to exercise the "Termination for Com�enience" pro��ision of the TPA Aareement in order to beein transitioning aH�a��from the City`s PACE program. \O�V, THEREFORE, the Parties agree as follo�cs: 1. The above recitals are incorporated inro and made a part of this Amendment b}� this reference. 1 l2 -2016 - 0'7 Z Resolution No. 2016-072 Paee No. 4 � 2. Paragraph 8.2 of [he TPA Agreement (Termination for Convenience) is amended as follows: "8.2 Termination for Convenience. 8.2.1 "c,.n,....:..a .�.,. i..:.•..i �r,._._. e o e o o r�ithei � party may notify the other of its intent to terminate the AGREEMENT. In such event, the Parties shall begin to transition to closing the PROGRAM. Such transition shall beein on the "Transition Date," as defined below. The AGREEMENT wil] terminate 180 days afrer the Transition Date s°��-,�-��,� ° �° '"° ' ��a �the "Transition Period"), at which date CONTRACTOR shall cea'se providing the SERVICES ("Termination Date"). Ygrene may not enter into additional Financing Agreements for the PROGRAM after the Termination Date. 8.2.2 CONTRACTOR shall continue to offer the SERVICES during the Transition Period, including: (i) providing for on-going management of special taxes related to any projects completed under CONTRACTOR's auspices; (ii) providing all of[he SERVICES, but not accepting any new project applications, in a professional manner in accordance with the AGREEMENT; and (iii) working in good faith wi[h the CITY to provide a smooth transition for either the termination of the program or transfer to a subsequent administratoc If CONTRACTOR fails [o mee[ these obligations at any time, the CiTY may, at its discretion; direct the CONTRACTOR to cease providing SERVICES immediately. Ygrene shall insure that any Financing Agreements entered into following the Transition Date have been funded or cancelled and that relevant special taxes and/or assessments are placed on the tax rolls. 8.23 The Transition Date shall be the date on which the City Council of the Ciry passes resolutions under which City elects to become an associate member of CHFA and to authorize CHFA to operate its PACE program within the City." 3. Section 10.1. is amended to read as follows: "10.1 General Requirement. CONTRACTOR shall defend, indemnify, protect and hold harmless the CITY, its elected and appointed officers, agents and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence; or willful misconduct or CONTRACTOR, i[s officials, officers, emplo��ees, agents, and contractors, arising out of or in connection with the performance of the SERVICES, or this AGREEMENT; or termination of this AGREEMENT. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without 2 ^ Resolution No. 2016-072 � Paae No. � limitations, attorney fees) arisine from the sole neglieence, active neglieence or willful misconduct of the CITY, its officers, or employees." 4. All other terms of the TPA Aereement shall remain in full force and effect. I\' �l'IT1vESS WI-IEREOF. the Panies have entered into this Amendment as of the Effective Date. CITI'OF CHLZA VISTA ATTEST: B��:\� `�'-��� D1 y Casillas Salas, D4a}�or ponna I�'orris, C _� erk Date: � 2016 �. APPROVED AS TO FORA1: � � ' GI n R. Goo ins Cin• ttomev , _ � CONTRACTOR: Yerene Enere}�Fund C ' mia, C B}�: 1'erene Energy und, Inc.. ' D1emb Bv: Stacev awson. esident R Chief Executive Officer Date: �Yi\ �5 , 20]6 3 - x�Cf�6n�6� �o�z ' Paee No. 6 INDEMII'IFICATION Ai�'D INSIIRANCE AGREEME�T BY A1�D BET�1'EEn THE CITI' OF CHLZA VISTA AND YGRENE ENERGI' FIIND CA, LLC This Indemnification and Insurance A¢reement("Aereemenr`) is entered into b��and betw�een the Cit}�of Chula Vista, a municipal corporation (`Cin�")and Yerene Enersy Fund CA, LLC, a Califomia limited liabilin•company(`Administrator`), the administrator of the Califomia Home Finance Authorin�'s PACE Proeram and the Califomia Home Finance Authoriro's Communin�Facilities District\'o. 201�-1 (Clean Enere��). RECITALS WHEREAS. the Califomia Home Finance Authority (`Authorit}�') is a joint exercise of powers authorin� established pursuant to Chapter � of Division 7, Tide 1 of the Califomia Govemment Code (Sec[ion 6�00 et. seq.) and the Joint Exercise of Powers Aereement enrered into on July 1, 1993, as amended from [ime[o time ("Authority JPA"); and Vl'HEREAS,the.Authority is in the process of amending the Authorit}�JPA to formally chanee its name to the Golden State Finance Authoriq; and RrI-IEREAS, the Authoriq�has established a property-assessed clean enerey("PACE") Program ("Authorin�PACE Program")to provide for the financine of renewable enere}� eeneration, enere}�and water efficiency improvements. and electric ��ehide chareine infrastrucmre (the `9mpro��emenu")pursuant to Chapter 29 of Di��ision 7 of the California Sveeu and Hiehways Code ("Chapter 29"), w•ithin counties and cities throuehout the State of Califomia that elect to participate in the Program; and «'HEREAS, in addition,the Authorirv has established the Communiry Facilities Distric[ A'o. 201�-1(Clean Enerey) in accordance with the 1�9ello-Roos Community Facilities Act, set forth in sections �33ll throu2h �33683 of the Califomia Govemment Code (`Act") and particularly in accordance H�ith sections 53313.�(I)and �3328.1(a)(`District"); and R'HEREAS,the Cih�Counci] of the City of Chula Vista has appro��ed the Cirvjoining the Authority, has consented to the inclusion in the Authoriry PACE Proeram of all of the properties in the jurisdictional boundaries of the Ci[y and to the acquisition, construction, and installation of the Improvements, upon the request by and voluntan�aereement of o��Ters of such properties; in compliance with the laws; rules and reeulations applicable to the Proeram, and has consented to the inclusion in Communih�Facilities District\'o. 2014-1(Clean Energ})of all of the properties in the Cin� s jurisdiction and to the construction and installation of the Authorized Impro��ements, upon the request of, and execution of the Unanimous Appro��al.Aareement b��, �-ZoC 6 - 0�2 Resolution No. 2016-072 - - � Page No. 7 ' the owners of such properties when such proper[ies are annexed, in compliance with the laµ�s, rules and regulations applicable to the District and WHEREAS,the Authority and the Administrator have entered into a Third PaRy Administration Agreement, dated March 2015; in which the Administrator agrees to administer the Authority PACE Program and/or Community Facilities District No. 2014-1(Clean Energy) on behalf of the Authority; and WHEREAS, the Administrator agrees to indemnify the City and to provide insurance in connection with the administration of the Authority PACE Program and/or Community Facilities DistrictNo. 2014-I(Clean Energy) in the City of Chula Vista. 1VOW, THERFORE, in consideration of the Recitals above and of the City's agreement to join the Authority and to participate in the Authority's PACE Program and/or Community Facilities District No. 2014-1(Clean Energy),the paRies agree as follows: 1. A2reement to Indemnifv. The Administrator agrees to defend, indemnify, and hold harmless the City, its officers; elected or appointed officials, employees, agents, and volunteers from and against any and all claims; damages, losses, expenses, fines,penalties, judgments;demands, and defense costs(including, without limitation,actual, direct, out-of- pocket costs and expenses, and amounts paid in compromise or settlement and reasonable outside lega] fees arising from litigation of every namre or liability of any kind or nature including civil; criminal, administrative or investigative)arising out of or in connection wi[h the Authority's PACE Program or Community Facilities Dis[rict No. 2014-1 (Clean Energy), except such ]oss or damage which was caused by the sole negligence or willful misconduct of the City. The Administrator will conduct all defenses at its sole cost and expense,and the City shall reasonably approve selection of the Administrator's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies of the Administrator, i[s affiliates or any other parties are applicable thereto. The policy limits of any insurance of the Administrator, its affiliates or other paRies are not a limitation upon the obligation of the Administrator, including without limitation, the amount of indemnification to be provided by the Administratoc The provisions of this section shall survive the termination of this Agreement. 2. Insurance. The Administrator agrees that, at no cost or expense to the City, at all times during the administration of the Authority's PACE Program and Community Facilities District No. 2014-1 (Clean Energy), [o maintain the insurance coverage se[forth in Exhibit"A" to this Agreement. 3. Amendmendlnteroretation of this Aereement. This Agreement, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. Ido prior oral or written understanding shall be of any foroe or effect with respect to those matters covered hereunder.No supplement,modification,or amendment of this Indemnification Insurance Aeeemrnt 2 CiryofChula Vista and 2016 }��rene Ener��Fund C.A,LLC :iy Resolution \o. 2016-072 ' Paee No. 8 Agreement shall be bindine unless esecuted in acitins b�'both parties hereto. This Aereement shall not be interpreted for or aeainst am�pam�b��reason of che fact that such part}�ma}�have drafred this Aereement or an}�of its pro��isions. 4. Section Headines. Section headines in this Aereement are induded for com•enience of reference onl}�and shall not constitute a part of this A2reement for any other purpose. �. q'ai��er. I�'o waiver of any of the provisions of this Aereement shall be binding unless in the form of a writine siened by the pam� aeainst whom enforcement is soucht, and no such H�ai�•er shall operate as a�eaiver of any other provisions hereof(whether or not similar), nor shall such H�aiver constimte a continuine H�ai��er. Except as specificalh�provided herein, no failure to exercise or any delay in ezercisine am�rieht or remedy hereunder shall constimte a �vaiver thereof. � 6. Secerabilit��and Governine La�v. If any provision or portion thereof of this Aereement shall be held b}�a court of competent jurisdiction to be invalid, void, or otherw�ise unenforceable,the remaining pro��isions shall remain enforceable to the fullest e�tent permitted by law. This Aereemen[ shall be eo��erned b�� and construed and enforced in accordance with the la�vs of the State of Califomia applicable to contracts made and to be performed in California. 7. Notices. All notices, demands and other communications required or permitted hereunder shall be made in writing and shall be deemed to ha��e been duly given if deli��ered by hand, aeainst receipt, or mailed cenified or reeistered mail and addressed as follo�vs: [f to the Administrator: Bart Van Voorhis Eaecuti��e Vice President, Corporate Development l'erene Enerev Fund CA. LLC 81> jth Street Santa Rosa CA 95�04 If to the Cirv: Cin•Clerk Cin�of Chula Vista 276 Founh A��e Chula Vista. CA 91910 Indemnifimfion Insurance Acreemen[ J Cin�oCChula\'is�a and 2016 }'cren<Enercy Fund CA,LLC Resolution No. 2016-072 � Page No. 9 �� � � � " 8. Counteroarts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, H�hich together shall constitute the same instrument. 9. Effecti��e Date. This Agreement will be effective as of the date of the signature of City's representative as indicated below in the City's signature block. IId WI I'NESS HEREOF, the parties hereto duly executed this Agreement as of the date below. CITY ADMINISTRATOR CITY OF CHULA VISTA YGRENE EN GY ND CA,LLC By: Ygrene E ergy Fu , I , ' s ember By: � By: Mary illas Salas, Mayor Stac Law n, President/CEO A++�s+: !��- �-" Date:�'�.�1- � _�� Date: ADC� 0 �S, 0�0� � - r APPROVED AS TO FORA4: � itv Atto ev Indemnffication insurance Ageement 4 Cip�ofChula Vista nnd ?016 Ygrece Enerey Fund CA,LLC Resolution No. 2016-072 � Pase No. ]0 EXHIBIT A m�su�ncE Administrator shall procure and maintain for the duration of the contract insurance, ond for three yeors thereofter, aeainst claims for injuries to persons or damaees to propert}�H�hich may arise from or in connection with the performance of the work hereunder and the results of that work by the Administrator, his agents, representatives, emplo}�ees or subcontractors. A. D'Iinimum Scooe of Insurance Coveraee shall be at least as broad as: 1. The coverage pro��ided b}� Insurance Services Office Commercial General Liability co��eraee ("occurrence`) Form I�TUmber CG 0001;and 2. The coveraee pro��ided by Insurance Services Office Form 1Vumber CA 0001 covering Automobile Liability. Coverage shall be included for all owned, non- o�vned and hired automobiles; and 3. �1'orkers'Compensation insurance as required by the Califomia Labor Code and Emplo}�ers Liabilih� insurance; and 4. Professional Liabilin�Errors R Omissions for all professional sen�ices. There shall be no endorsement reducine the scope of coverage required above unless approved b��the Chula Vista Risk A1ana¢er. B. Minimum Limits of Insurance Administrator shall maintain limits no less than: 1. Commercial General Liabilit��: �1,000,000 per occurrence for bodily injun�, personal injury and property damaee. If Commercial Liabilih� Insurance or other form H ith a eeneral ageregate limit is used, either the eeneral aeereeate limit shall appl} separately to this projecdlocation or the general aeereeate limit shall be rnice the required occurrence limit; and 2. Automobile Liabilih�: 51;000,000 combined sinele limit per accident for bodil} injun�and propem�damaee: and 3. 1Vorkers'Compensation and Emplo}�ers Liabilin�: \i'orkers' Compensation limits as required by the Califomia Labor Code and Emplo}'ers Liabilit�� limits of S1,000,000 per accident; and Indemnificaeion lnsurance Acmment � Cin�oCChula\'istz and ?016 Yer<ne En<r¢v Fund CA,LLC Resolution No. 2016-072 � Page No. 11 � � � 4. Professional Liability Errors & Omissions $1,000,000 per occurrence/ageregate limit. If the contractor maintains higher limits than the minimums shown above,the City requires and shall be entiNed to coverage for the higher]imits maintained by the contractor. C. Deductibles and Sel(-Insured Retentions Any deductibles or self-insured retentions must be declared to, and approved by the Chula Vista Risk Managec At the option of City; either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, employees, agents and contractors; or Administrator shall procure a bond guaranteeing payment of losses and related im�estigations, claim administration and defense expenses in an amount speci£ed by the Chula Vista Risk Manager. Claims Made Policies If any of the required policies provide claims-made coverage: l. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work. 2. ]nsurance must be maintained and evidence of insurance must be provided for at least three(3)years ajter comp[etion oJfhe conlract af work. 3. If coverage is canceled or non-rene�ved, and not replaced with another claims-made policy jorm with a Retroactive Date prior to the contract effective date,the Contractor must purchase "extended reporting" coverage for a minimum of three (3) years afrer completion of work. D. Other Insurance Pro��isions The policies are to contain, or be endorsed to contain,the following provisions: 1. Commercial General Liability and Automobile Liability Coverages. a. Chula Vista, its officers, employees, agents, and contractors are to be covered as additiona] insureds as respects: Liability arising out of activities performed by or on behalf of Administrator, products and completed operations of Administrator; premises owned, leased, or used by Administrator; and automobiles owned, ]eased, hired or borrowed by Administrator. The coverage shall contain no special limitations o�the scope of protection afforded to the City, its officers, employees, agents, and contractors. b. Administrator's insurance coverage shall be primary insurance as respects the Cit��, its officers, employees, agents, and contractors. Any insurance Indemnification Insurance Aveement 6 Ciry ot Chula Vista and ?016 Yerene Enerey Fund CA,LLC Resolution No. 2016-072 Paae No. ]2 or sel£-insurance maintained by City, its officers, employees, aeents, or contractors shall be excess of Administrator's insurance and shall not contribute with it. c. Am� failure to compl���vith reporting provisions of the policies b}� Administrator shall not affect coverage pro��ided to the Cit��, its officers, emplo}�ees, aeents; or contractors. d. Coverage shall state that Administrators insurance shall apph�separateh� to each ins�!red ageinsr H�hom claim is made or suit is broueht, except�rith respect to the limits of the insurers liabilit��. e. Coverage shall contain a �vaiver of subroeation in favor of the Cin�, its officers, employees, aeents, and contractors. 2. R'orkers' Compensation and Emplo}�ers' Liability. Coveraee shall contain waiver of subroeation in fa�•or of Chula Vista, its officers. emplo}'ees, aeents, and contractors. y 3. All Co��eraees Each insurance polic}�required by this AGREEA9ENT shall be endorsed to state that coveraee shall not be suspended, voided, cancelled; or reduced in limits except after thirt}�(30)days'prior��Titten notice has been given to the Cin�. except that ten(]0) da}�s' prior�«itten notice shall appl}� in the e��ent of cancellation for nonpayment of premium. E. Acceotabilih� of Insurers. Insurance is to be placed H�ith insurers acceptable to the Chula Vis[a Risk 1�9anaeer. F. Verification of Co��eraQe. Administrator shall fumish the Cit}�«ith certificates of insurance and with original endorsements affecting coveraee required by this AGREEMEI�'T. The certificates and endorsements for each insurance policy are to be siened by a person authorized by that insurer to bind coveraee on its behalf. Indemninationlnsuance.4�eemeo[ � Cin'ofChula\'ista and 2016 Y¢rene Enere�'Furd CA,LLC Resolution No. 2016-072 Page No. L.i Proof of insurance shall be either emailed in pdf format to: Conservation@chulavistaca.gov or mailed to the following postal address or any subsequent address as may be directed in writing by the Chula Vista Risk Manager: Risk Manager City of Chula Vista 276 Fourth A��e. Chula Vista, CA 91910 G. Subcontractors Administrator shall include all subcontractors as insureds under its policies or shal] obtain separate certificates and endorsemenu for each subcontractor. Indemnifiwtion Insurance A�reemenc 8 CirvofChula Visu and ?016 Ygrene Energy Fund CA,LLC