HomeMy WebLinkAboutStaff Report 5.A 10/02/2017Agenda Item #5.A
DATE: October 02, 2017
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Scott Duiven, Senior Planner,
SUBJECT: Property Assessed Clean Energy (PACE) Financing Marketplace — Consideration
of Additional Programs in Petaluma
RECOMMENDATION
It is recommended that the City Council adopt the attached Resolutions:
1. Resolution 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 an Amendment to a Certain Joint Powers Agreement
Related Thereto.
2. Resolution Consenting to the Inclusion of Properties within the City'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
Authorized Improvements and Approving an Amendment to a Certain Joint Powers
Agreement Related Thereto.
3. Resolution Consenting to the Inclusion of Properties within the City's Jurisdiction in the
Golden State Finance Authority AB 811 PACE Program to Finance Renewable Energy
Generation, Energy and Water Efficiency Improvements, Electric Vehicle Charging
Infrastructure, and Other Authorized Improvements and Approving an Amendment to a
Certain Joint Powers Agreement Related Thereto.
4. Resolution Approving Associate Membership by the City in the California Enterprise
Development Authority; Authorizing and Directing the Execution of an Associate
Membership Agreement Relating to Associate Membership of the City in the Authority;
Authorizing the City to Join the Figtree Pace Program; Authorizing the California
Enterprise Development Authority to Conduct Contractual Assessment Proceedings and
Levy Contractual Assessments within the Territory of the City of Petaluma; and
Authorizing Related Actions.
1
BACKGROUND
In 2005 the City of Petaluma joined the other 9 local governments within Sonoma County and
set a mutual greenhouse gas target to reduce emissions to 25 percent below 1990 levels by 2015,
one of the most aggressive targets in the country.
In 2009, the City of Petaluma entered into a cooperative agreement with the County of Sonoma
allowing property owners within Petaluma to participate in the Sonoma County Energy
Independence Program (SCEIP). SCEIP Financing is a form of the Property Assessed Clean
Energy (PACE) financing created in 2008 by California State Assembly Bill 811 (AB811).
SCEIP is financed through the issuance of bonds by the Sonoma County Public Finance
Authority to the County Treasury and the Sonoma County Water Agency. Use of PACE
financing by property owners is voluntary. AB811 allows for the acquisition and construction or
installation of distributed generation renewable energy sources and energy efficiency
improvements, which include water efficiency improvements, on or in properties through
contractual assessments paid back through property taxes pursuant to Chapter 29 of Division 7 of
the Streets & Highways Code. SCEIP financing is currently available to qualifying property
owners at a 7% fixed interest rate for terms of 10 or 20 years. There are over 90 eligible
improvements available through the SCEIP Financing product. To date, 319 improvement
projects have been completed in Petaluma, totaling nearly $5.6 million (see Attachment 5).
In November 2014, the County's Energy Independence Office developed the Sonoma County
PACE Marketplace to promote PACE financing in the region by expanding the options available
to property owners. The PACE Marketplace provides a central resource for property owners to
explore PACE financing options from California FIRST, California HERO, Figtree Financing,
and Ygrene Energy Fund in addition to the original option of SCEIP. The collaboration of
Marketplace PACE members leverages outreach efforts, expands opportunities for customer
engagement, increases local contractor engagement, increases access to project impact data, and
maximizes program efficiency and effectiveness. Marketplace Members have entered into an
Agreement for Collaborative Services with the County to achieve the speed and scale needed to
reach community -wide goals for energy independence. The Marketplace specifically:
a. Expands local funding capacity — The bonding capacity of the SCEIP financing product
from the County Treasury is limited to $60 million with $33.5 million extended. Over its
history the program has provided $76.9 million for projects (see Attachment 6). Now that
the program has been in operation for a number of years, the fund has a revolving aspect
as property owners make payments every year on their property taxes. Annual payments
have reached equilibrium with new projects and as such current projections do not
indicate that the fund will be exhausted in the near term. Estimates of the funding needed
to affect the current community climate action goals of retrofitting 80% of the existing
buildings with a 30% efficiency improvement exceed $2 billion dollars. The addition of
Marketplace Members augments the County investment safeguarding property owner
access to PACE financing for the long term when the County program is fully extended.
At that point the PACE Financing Marketplace will shift its focus toward action as a
neutral third party providing retrofit education and supporting the other PACE provider
products.
2
b. Provides consumer choice — The Financing Marketplace provides financing options in a
`lending- tree -like' model for the consumer. The different Marketplace members offer a
variety of financing terms, interest rates, eligible improvements and contractor services.
c. Increases momentum and grows the contractor community Engaging additional
financing partners throughout the region can expand and leverage outreach efforts,
increase the number of completed projects, and provide new tools and resources to local
contractors. Uniform addition of the available PACE providers by all local jurisdictions
could simplify local contractor service delivery throughout the region.
d. Maintains local coordination of regional PACE efforts — through Agreements for
Collaborative Services between each provider and the County of Sonoma, the Energy
Independence Office serves as a neutral third party operating for the public benefit. The
Energy Independence Office offers ALL financing products in the Marketplace
(including SCEIP), along with the other information, tools, services, and resources
available with a focus on the customer experience and consumer protections.
e. Consolidates and reports data on community retrofits and renewable energy project
results. The PACE Financing Marketplace partnership has the collateral benefit of
providing additional technology and tools that are utilized and assimilated with the
Energy Independence Office database structure to better record, monitor and assess
program, activity and impacts; and
f. Accelerates progress toward meeting the climate action goals of each jurisdiction and .
community -wide greenhouse gas reduction targets.
The following table shows the status of each PACE program for all Sonoma County
jurisdictions:
PACE Finance Marketplace Update by Jurisdiction
Jurisdiction
Ca1FIRST
HERO
Figtree
Ygrene
SCEIP
Unincorporated
Yes
Yes
Yes
Yes
Yes
Cloverdale
Yes
Yes
Yes
No
Yes
Cotati
Yes
Yes
No
No
Yes
Healdsburg
Yes
Yes
No
No
Yes
Petaluma
Yes
No
No
No
Yes
Rohnert Park
Yes
Yes
No
No
Yes
Santa Rosa
No
Yes
No
No
Yes
Sebastopol
Yes
Yes
No
Yes
Yes
Sonoma
Yes
Yes
No
No
Yes
Windsor
Yes
Yes
Yes
No
Yes
In May of 2015, the City Council added the CaliforniaFIRST PACE program as an additional
option for Petaluma property owners. As a member of the California Statewide Communities
Development Authority, Petaluma needed only to adopt a resolution making the
3
CaliforniaFIRST program available to its property owners without joining an additional Joint
Powers Agreement (JPA). Typically, JPA's are formed in regions where the local governments
have a common interest. Both the California HERO JPA and the Figtree JPA have been formed
by agencies out of the area, and if the City were-to join those JPAs, membership would be
limited and secondary to the founders of the JPA. Furthermore, liability was a concert with both
JPA's. The California HERO JPA required mutual indemnification, and the Figtree JPA was
silent on the issue of liability.
In either event, by joining these JPAs, the City expressed concern about taking on potential
liability, without benefit, since neither the California HERO JPA nor the Figtree JPA offered
either additional or more advantageous benefits than the existing SCEIP program and the
CaliforniaFIRST program, in which the City was already a member of the relevant JPA.
Consequently, the City Council did not pursue adding California HERO and Figtree PACE at
that time. In addition the Council directed staff to revisit the PACE Financing Marketplace
programs in the future if conditions changed. The Ygrene program was not available at the time
the City Council considered additional PACE programs, but also requires joining an additional
JPA.
DISCUSSION
In the early days of PACE financing there was concern from lenders, including Fannie Mae and
Freddie Mac. In July 2010, the Federal Housing Finance Agency (FHFA) announced its
opposition to PACE financing programs. FHFA's rationale for opposing PACE programs was
based on the senior lien status afforded by California law to PACE transactions. In the event of a
default, borrowers could be required to repay PACE lenders prior to repaying their original
mortgage lenders. FHFA feared that this priority in repayment could make mortgages on
properties participating in PACE more risky for mortgage lenders. Since 2010, the State of
California and the federal government in conjunction with PACE providers have taken several
actions to ensure PACE does not pose a risk to the mortgage industry. Since the City Council last
discussed the topic of PACE financing programs, several efforts toward providing greater
oversight and development of standards to protect consumers and lenders have occurred.
• The Federal Housing Administration (FHA) and the Veterans Administration (VA)
announced July 19, 2016 that they will approve the purchase and refinance of mortgages
on homes with PACE assessments. In accordance with existing guidance, the FHA and
VA said that lenders will be responsible for escrowing PACE payments as they would
property taxes. Additionally, purchasers of homes with existing PACE assessment may
elect to take over any unpaid balance since they are benefrtting from the utility savings of
the installed product. According to HUD, this new guidance protects the FHA and VA
from risk in a variety of ways. Lenders must escrow payments for PACE assessment so
FHA should never be at risk of losing collateral in a tax sale. Additionally, FHA is also
protected as its appraisal policy requires that appraisals take into account the PACE
assessment and the added value of the improvements.
• PACE Nation, a national non - profit, PACE industry trade organization, revised their
Consumer Protection Policy (CPP) document and the PACE Nation Board adopted
version 2.0 on February 13, 2017. The CPP document incorporates many policy elements
that were listed in the Department of Energy's Revised PACE Guidelines adopted in
November 2016.
• The California Alternative Energy and Advanced Transportation Financing Authority
(CAEATFA) established the PACE Loss Reserve Program. The PACE Loss Reserve
Program's goal is to increase availability of residential PACE financing by making first
mortgage lenders whole for direct losses as a result of a PACE lien in a foreclosure or
forced sale.
• The California State Assembly and Senate approved AB 2693 to require more disclosures
to homeowners around PACE. The legislation codifies what leading PACE providers
had already elected to do and raises the bar for new entrants.
• Assembly Bill 1284 and Senate Bill 242 were approved by both chambers and sent to
Governor Brown's desk for signature. Both bills require PACE program administrators
that administer a residential PACE program on behalf of a public agency, to provide
specific underwriting requirements and implement consumer protection measures and
best practices.
• Assembly Bill 271, proposed February 1, 2017, would require, as to PACE assessments
arising from contracts entered into on or after January 1, 2018, except for PACE
assessments subject to specified law which requires deposit in a tax losses reserve
fund, that penalties be deposited in a restricted county fund when collected by the tax
collector, or that those penalties be remitted to the tax collector for deposit in that fund
when collected by any party other than the tax collector. The bill would require that
monies in the fund be transferred to the delinquent tax sale trust fund for the deficit
amount, to be distributed pursuant to specified law if any-property subject to a PACE
assessment is sold at a tax defaulted land sale for less than a specified minimum price.
The following PACE providers are being brought forward for consideration by the City Council.
Allowing these programs to operate within Petaluma would expand the number of PACE
programs available to Petaluma property owners to five (5), consistent with the full PACE
Financing Market Place options. Allowing these options could potentially increase retrofit and
generation projects within the City of Petaluma and provide further reductions in GHGs
consistent with the City's climate goals. In addition to the consumer and lender protection
measures described above, all three of the PACE programs currently under consideration have
provided additional insurance and indemnification agreements to further protect the City.
California HERO: Participation in the California HERO PACE program I requires that the City
of Petaluma adopt a resolution which enables the California HERO Program to be available to
owners of property within Petaluma to finance renewable energy, energy efficiency and water
efficiency improvements and electric vehicle charging infiastructure (Attachment 1). The
resolution approves an Amendment to the Western Riverside Council of Governments Joint
Powers Agreement to add the City as an Associate Member in order that the California HERO
Program may be offered to the owners of property located within the City who wish to
participate in the California HERO Program. In addition, Renovate America, Inc., the
administrator of the HERO Program, is providing an Indemnification and Insurance Agreement
to further protect the City's interests.
9
Ygrene PACE: Participation in the Ygrene Works for California PACE financing programs
requires that the City of Petaluma become an Associate Member of the Golden State Finance
Authority. (GSFA) (formerly known as California Home finance Authority (CHF)). GSFA has
established two Property Assessed Clean Energy ( "PACE ") financing programs for residential,
commercial, industrial and agricultural property owners who wish to improve their properties
through installation of measures that will generate renewable energy or reduce their energy and
water use. GSFA contracts with Ygrene Energy Fund CA LLC ( Ygrene) to serve as its program
administrator and to operate the Ygrene Works for California PACE financing programs.
GSFA's two PACE programs were established under the legislative authority of two separate
California PACE laws and requires that two resolutions be adopted. The first similar to the other
PACE programs which rely on Assembly Bill 811 as described earlier in this report (Attachment
2) and the second established under Senate Bill 555 (Attachment 3).
Senate Bill 555 amended the Mello -Roos Community Facilities Act, set forth in sections 53311
through 53368.3 of the California Government Code (the "Act "), to add sections 53313.5(1) and
53328.1(a) to allow for the creation of Community Facilities Districts ( "CFDs ") for the purpose
of financing or refinancing 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. In 2016, the Act was amended
to allow the financing or refinancing of seismic improvements. Individual properties can be
annexed into a CFD and be subject to the special tax that is imposed to repay project financing
only if. (i) the Council adopts a resolution consenting to the inclusion of parcels in the territory
of the City within the CFD; and (ii) the owner of the individual property provides its written
approval to annex its property into the CFD.
The Ygrene Energy Fund is also providing an Indemnification and Insurance Agreement to
further protect the City's interests.
Figtree PACE: The Figtree PACE Program is offered through the California Enterprise
Development Authority (CEDA), created by the California Association for Local Economic
Development (CALED). Participation in the California Figtree PACE program requires that the
City of Petaluma adopt a resolution which enables the Figtree PACE Program to be available to
owners of property within Petaluma to finance renewable energy, energy efficiency and water
efficiency improvements and electric vehicle charging infrastructure (Attachment 4). The
resolution approves an Amendment to the California Enterprise Development Authority (CEDA)
to add the City as an Associate Member in order that the Figtree PACE Program may be offered
to the owners of property located within the City who wish to participate in the Figtree PACE
Program. In addition, Figtree Company, Inc., the administrator of the Figtree PACE Program, is
providing an Indemnification and Insurance Agreement to further protect the City's interests.
Facture: The California Municipal Finance Authority (CMFA) PACE Program recently
contacted the City requesting the addition of its PACE program. The CMFA is currently not a
member of the County's PACE Marketplace, and as such. staff is not recommending bringing it
forward at this time. Additional PACE Providers may join the Marketplace in the future and at
that time, the Council may consider allowing property owner participation in those programs.
0
Similar resolution action by the Council would be required to allow Petaluma property owners to
make use of any new PACE products added to the Marketplace.
FINANCIAL IMPACTS
There is no fiscal impact to the City's General Fund incurred by consenting to the inclusion of
properties within the City limits to the California HERO, Ygrene, or Figtree PACE programs.
All program administrative costs are included in the property owner's voluntary contractual
assessment which is collected on the property owner's tax bill. The only staffing impacts related
to this item include the time required to prepare the staff report.
ATTACHMENTS
1. Resolution HERO
2. Resolution Ygrene (SB 555)
3. Resolution Ygrene (AB 811)
4. Resolution Figtree
5. Data on Implementation to Date
6. County -wide SCEIP Results
7
ATTACHMENT 1
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA,
CALIFORNIA, CONSENTING TO INCLUSION OF PROPERTIES WITHIN THE
CITY'S JURISDICTION1N 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 has established 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 Petaluma (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 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 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 established the California HERO Program, which is 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 Petaluma 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
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 California HERO 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 California HERO Program to finance the
installation of the Improvements.
2. This City Council consents to inclusion in the California HERO 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 thereover
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 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 such contractual assessments.
4. This City Council hereby approves the JPA Amendment and authorizes the
execution thereof by appropriate City officials.
5. City staff is authorized and directed to coordinate with Authority staff to facilitate
operation of the California HERO Program within the City, and report back periodically to this
City Council on the success of such program.
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.
I
EXHIBIT A
AMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF PETALUMA AS
AS AN ASSOCIATE MEMBER OF THE
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
TO PERMIT THE PROVISION OF PROPERTY ASSESSED
CLEAN ENERGY (PACE) PROGRAM SERVICES WITHIN
SUCH CITY
This Amendment to the Joint Powers Agreement ( "JPA Amendment ") is made and entered into
on the day of , 2017, by City of Petaluma ( "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 ").
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 has established a PACE program designated as the "California HERO
Program" pursuant to Chapter 29 which authorizes the implementation of such PACE financing
program for cities and counties 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 under Chapter 29, as it is now enacted or may
be amended hereafter, 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 through the California HERO Program,
10
including the operation of such 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:
A. JPA Amendment.
1. The Authority JPA. City agrees to the terns 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 proposes 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.
1. Boundaries of the California HERO Program within City Jurisdiction. The
boundaries within which contractual assessments may be entered into under the California
HERO Program (the "Program Boundaries ") shall include the entire incorporated territory of
City.
2. Determination of Eligible Improvements. Authority shall determine the types of
distributed generation renewable energy sources, energy efficiency or water conservation
11
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. Implementation of California HERO Program Within. the Program Boundaries.
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 implement
its plan for the financing of the purchase and installation of the Eligible Improvements under the
California HERO Program within the Program Boundaries.
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, levying and collecting assessments due under the
California HERO Program, taking any required remedial action in the case of delinquencies in
such assessment payments, 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 thin 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.
C. Miscellaneous Provisions.
1. Withdrawal. 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. Notwithstanding the foregoing, City may withdraw, either
temporarily or permanently, from its participation in the California HERO Program or either the
residential or commercial component of the California HERO Program upon thirty (30) written
notice to WRCOG without liability to the Authority or any affiliated entity. City withdrawal
from such participation 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
12
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 attorney's 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 but 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.
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. MS 1032
Riverside, CA 92501 -3609
Att: Executive Director.
City:
City of Petaluma
11 English Street
Petaluma, CA 94952
Att: City Manager
13
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.
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.
14
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.
By:
Name:
Title:
By:
Name:
Title:
[SIGNATURES ON FOLLOWING PAGES]
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
Date:
CITY OF PETALUMA
Date:
15
EXHIBIT B
INDEMNIFICATION AND INSURANCE AGREEMENT
BY AND BETWEEN
THE CITY OF PETALUMA
AND
RENOVATE AMERICA, INC.
This Indemnification and Insurance Agreement (the "Agreement ") is entered into by and
between the City of Petaluma, a municipal corporation ( "Agency ") and Renovate America, Inc.,
a Delaware Corporation, authorized to conduct business in California (the "Administrator "), the
administrator of the Residential HERO Program, which is a program of the Western Riverside
Council of Governments, a California joint exercise of powers authority (the "Authority ").
RECITALS
WHEREAS, the Authority is a joint exercise of powers authority whose members of which
include the Agency in addition to other cities and counties in the State of California; and
WHEREAS, the Authority established the HERO Program ( "PACE Program ") with a residential
component (the "Residential PACE Program ") and a commercial component (the "Commercial
PACE Program ") to allow the financing of certain renewable energy, energy efficiency and
water efficiency improvements that are permanently affixed to real property through the levy of
assessments voluntarily agreed to by the participating property owners pursuant to Chapter 29 of
Division 7 of the Streets and Highways Code ( "Chapter 29 ") and the issuance of improvement
bonds under the Improvement Bond Act of 1915 upon the security of the unpaid assessments;
and
WHEREAS, the Authority has conducted or will conduct proceedings required by Chapter 29
with respect to the territory within the boundaries of the Agency; and
WHEREAS, the Agency adopted a resolution authorizing the Agency to join the PACE
Program, authorizing the Authority to accept applications from eligible property owners, conduct
assessment proceedings and levy assessments within the territory of the Agency and authorizing
related actions; and
WHEREAS, the Authority is solely responsible for the formation, operation and administration
of the PACE Program as well as the sale and issuance of any bonds in connection therewith,
including the conduct of assessment proceedings, the levy and collection of assessments and any
remedial action in the case of such assessment payments, and the offer, sale and administration
of any bonds issued by the Authority on behalf of the PACE Program; and
WHEREAS, the Administrator is the administrator of the Residential PACE Program and agrees
to indemnify the Agency and provide insurance and add the Agency as an additional insured on
16
its insurance policy or policies in connection with the operations of the Residential PACE
Program as set forth herein; and
NOW, THERFORE, in consideration of the above premises and of the Agency's agreement to
join the PACE Program, the parties agree as follows:
1. Agreement to Indemnify. The Administrator agrees to defend, indemnify and hold harmless
the Agency, its officers, elected or appointed officials, employees, agents and volunteers from
and against any and all claims, damages, losses, expenses, fines, penalties, judgments, demands
and defense costs (including, without limitation, actual, direct, out -of- pocket costs and expenses
and amounts paid in compromise or settlement and reasonable outside legal fees arising from
litigation of every nature or liability of any kind or nature including civil, criminal,
administrative or investigative) arising out of or in connection with the Residential PACE
Program except such loss or damage which was . caused by the sole negligence or willful
misconduct on the part of the Agency, its officers, elected or appointed 'officials, employees, or
agents. The Administrator will conduct all defenses at its sole cost and expense and the Agency
shall reasonably approve selection of the Administrator's counsel. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies of the Administrator, its
affiliates or any other parties are applicable thereto. The policy limits of any insurance of the
Administrator, its affiliates or other parties are not a limitation upon the obligation of the
Administrator including without limitation the amount of indemnification to be provided by the
Administrator.
2. Insurance. The Administrator agrees that, at no cost or expense to the Agency, at all times
during the operation of the Residential PACE Program, to maintain the insurance
coverage set forth in Exhibit A to this Agreement.
3. Amendment /Interpretation of this Agreement. This Agreement, including all Exhibits
attached hereto, represents the entire understanding of the parties as to those matters contained
herein. No prior oral or written understanding shall be of any force or effect with respect to those
matters covered hereunder. No supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by both of the parties hereto. This Agreement shall not be
interpreted for or against any party by reason of the fact that such party may have drafted this
Agreement or any of its provisions.
4. Section Headings. Section headings in this Agreement are included for convenience of
reference only and shall not constitute a part of this Agreement for any other purpose.
5. Waiver. No waiver of any of the provisions of this Agreement shall be binding unless in the
form of a writing signed by the party against whom enforcement is sought, and no such waiver
shall operate as a waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver. Except as specifically provided herein, no failure to
exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver
thereof.
17
6. Severability and Governing Law. If any provision or portion thereof of this Agreement shall
be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the
remaining provisions shall remain enforceable to the fullest extent permitted by law. This
Agreement shall be governed by and construed and enforced in accordance with the laws of the
State of California applicable to contracts made and to be performed in California.
7. Notices. All notices, demands and other communications required or permitted hereunder shall
be made in writing and shall be deemed to have been duly given if delivered by hand, against
receipt, or mailed certified or registered mail and addressed as follows:
If to the Administrator: Renovate America, Inc.
15073 Avenue of Science, Suite 200
San Diego, California 92128
If to the Agency:
City of Petaluma
11 English Street
Petaluma, CA 94952
The Agency and the Administrator may, by notice given pursuant to this section 7, designate
other addresses to which subsequent notices, demands or other communications shall be directed.
8. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, which together shall constitute the same instrument.
9. Effective Date. This Agreement will be effective as of the date of the signature of Agency's
representative as indicated below in the Agency's signature block.
18
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date
above.
APPROVED AS TO FORM: City of Petaluma, a municipal corporation
Name
Title
By_
Name
Title
Renovate America, Inc., a Delaware
Corporation authorized to conduct
business in California
By
Name:
Title:
Date:
19
ATTACHMENT 2
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA
CONSENTING TO INCLUSION OF PROPERTIES WITHIN THE CITY'S
JURISDICTION IN THE GOLDEN STATE FINANCE AUTHORITY'S SB 555 PACE
PROGRAM TO FINANCE RENEWABLE ENERGY IMPROVEMENTS, ENERGY
EFFICIENCY AND WATER CONSERVATION IMPROVEMENTS, ELECTRIC
VEHICLE CHARGING INFRASTRUCTURE, AND OTHER AUTHORIZED
IMPROVEMENTS AND APPROVING THE AMENDMENT TO A CERTAIN JOINT
POWERS AGREEMENT RELATED THERETO
Recitals
WHEREAS, the Golden State Finance Authority, a joint powers authority (the
"Authority ") has established the Community Facilities District, CFD No. 2014 -1 (Clean Energy)
in accordance with the Mello -Roos Community Facilities District Act, set forth in section 53311
through 53368.3 of the California Government Code (the "Act ") and particularly in accordance
with sections 53313.5(1) and 53328.1(a) (the "District "); and
WHEREAS, the Authority amended the Authority JPA to formally change its name from
California Home Finance Authority to Golden State Finance Authority; 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, and such other
improvements as may be authorized by law from time to time, permanently affixed to private or
publicly -owned real property (the "Authorized Improvements "); and
WHEREAS, the City of Petaluma (the "City ") is committed to development of
renewable energy generation and energy efficiency improvements, reduction of greenhouse
gases, and protection of the environment;
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 (the "Unanimous Approval Agreement "), which, as provided in
section 53329.6 of the Act, shall constitute the election required by the California Constitution;
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 Authority in
20
order to efficiently and economically assist property owners within the City in financing such
Authorized Improvements;
WHEREAS, the Authority has established the District, as permitted by the Act and the
Authority JPA, originally made and entered into July 1, 1993, as amended to date; the City is an
Associate Member of the JPA and desires to participate in the programs of the JPA and to assist
property owners within the territory 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. That the City Council finds and declares that properties in the territory of the City 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 territory of the City 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 thereover by Authority for the
purposes thereof.
3. The consent of the 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 immediately upon its adoption. The Clerk is directed
to send a certified copy of this resolution to the Secretary of the Authority.
21
Exhibit A
GOLDEN STATE FINANCE AUTHORITY
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
(Original .date July 1, 1993 and as last amended and restated January 21, 2015)
THIS AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
( "Agreement ") is entered into by and among the counties listed on Attachment 1 hereof and
incorporated herein by reference. All such counties are referred to herein as "Members" with the
respective powers, privileges and restrictions provided herein.
RECITALS
A. WHEREAS, the California Rural Home Mortgage Finance Authority ( "CRHMFA ") was
created by a Joint Exercise of Powers Agreement dated July 1, 1993 pursuant to the Joint
Exercise of Powers Act (commencing with Article 1 of Chapter 5 of Division 7 of Title 1 of the
Government Code of the State of California (the "Act "). By Resolution 2003 -02, adopted on
January 15, 2003, the name of the authority was changed to CRHMFA Homebuyers Fund. On
December 10, 2014, the name of the authority was changed to California Home Finance
Authority. The most recent amendment to the Joint Exercise of Powers Agreement was on
December 10, 2014.
B. WHEREAS, the Members of California Home Finance Authority desire to update,
reaffirm, clarify and revise certain provisions of the joint powers agreement, including the
renaming of the joint powers authority, as set forth herein.
C. WHEREAS, the Members are each empowered by law to finance the construction,
acquisition, improvement and rehabilitation of real property.
D. WHEREAS, by this Agreement, the Members desire to create and establish a joint
powers authority to exercise their respective powers for the purpose of financing the
construction, acquisition, improvement and rehabilitation of real property within the jurisdiction
of the Authority as authorized by the Act.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Members
individually and collectively agree as follows:
1. . Definitions
22
Unless the context otherwise requires, the following terms shall for purposes of this
Agreement have the meanings specified below:
"Act" means the Joint Exercise of Powers Act, commencing with Article 1 of Chapter 5
of Division 7 of Title 1 of the Government Code of the State of California, including the
Marks -Roos Local Bond Pooling Act of 1985, as amended.
"Agreement" means this Joint Exercise of Powers Agreement, as the same now exists or
as it may from time to time be amended as provided herein.
"Associate Member" means a county, city or other public agency which is not a voting
member of the Rural County Representatives of California, a California nonprofit corporation
( "RCRC" ), with legal power and authority similar to that of the Members, admitted pursuant to
paragraph 4.d. below to associate membership herein by vote of the Board.
"Audit Committee" means a committee made up of the Executive Committee.
"Authority" means Golden State Finance Authority (GSFA) formerly known as
California Home Finance Authority ( "CHF "), or CRHMFA Homebuyers Fund or California
Rural Home Mortgage Finance Authority.
"Board" means the governing board of the Authority as described in Section 7 below.
"Bonds" means bonds, notes, warrants, leases, certificates of participation, installment
purchase agreements, loan agreements and other securities or obligations issued by the
Authority, or financing agreements entered into by the Authority pursuant to the Act and any
other obligation within the meaning of the term 'Bonds" under the Act.
"Delegate" means the Supervisor designated by the governing board of each Member to
serve on the Board of the Authority.
"Executive Committee" means the Executive Committee of the Board established
pursuant to Section 10 hereof.
"Member" means any county which is a member of RCRC, has executed this
Agreement and has become a member of the Authority.
"Obligations" means bonds, notes, warrants, leases, certificates of participation,
installment purchase agreements, loan agreements and other securities or obligations issued by
23
the Authority, or financing agreements entered into by the Authority pursuant to the Act and any
other financial or legal obligation of the Authority under the Act.
"Program" or "Project" means any work, improvement, program, project or service
undertaken by the Authority.
"Rural County Representatives of California" or "RCRC" means the nonprofit entity
incorporated under that name in the State of California.
"Supervisor" means an elected County Supervisor from an RCRC member county.
2. Purpose
The purpose of the Authority is to provide financing for the acquisition, construction,
improvement and rehabilitation of real property in accordance with applicable provisions of law
for the benefit of residents and communities. In pursuit of this purpose, this Agreement provides
for the joint exercise of powers common to any of its Members and Associate Members as
provided herein, or otherwise authorized by the Act and other applicable laws, including
assisting in financing as authorized herein, jointly exercised in the manner set forth herein.
3. Principal Place of Business
The principal office of the Authority shall be 1215 K Street, Suite 1650, Sacramento,
California 95814.
4. Creation of Authority; Addition of Members or Associate Members
a. The Authority is hereby created pursuant to the Act. As provided in the Act, the
Authority shall be a public entity separate and distinct from the Members or Associate Members.
b. The Authority will cause a notice of this Agreement or any amendment hereto to
be prepared and filed with the office of the Secretary of State of California in a timely fashion in
the manner set forth in Section 6503.3 of the Act.
C. A county that is a member of RCRC may petition to become a member of the
Authority by submitting to the Board a resolution or evidence of other formal action taken by its
governing body adopting this Agreement. The Board shall review the petition for membership
24
and shall vote to approve or disapprove the petition. If the petition is approved by a majority of
the Board, such county shall immediately become a Member of the Authority.
d. An Associate Member may be added to the Authority upon the affirmative
approval of its respective governing board and pursuant to action by the Authority Board upon
such terms and conditions, and with such rights, privileges and responsibilities, as may be
established from time to time by the Board. Such terms and conditions, and rights, privileges
and responsibilities may vary among the Associate Members. Associate Members shall be
entitled to participate in one or more programs of the Authority as determined by the Board, but
shall not be voting members of the Board. The Executive Director of the Authority shall enforce
the terms and conditions for prospective Associate Members to the Authority as provided by
resolution of the Board and as amended from time to time by the Board. Changes in the terms
and conditions for Associate Membership by the Board will not constitute an amendment of this
Agreement.
5. Term and Termination of Powers
This Agreement shall become effective from the date hereof until the earlier of the time
when all Bonds and any interest thereon shall have been paid in full, or provision for such
payment shall have been made, or when the Authority shall no longer own or hold any interest in
a public capital improvement or program. The Authority shall continue to exercise the powers
herein conferred upon it until termination of this Agreement, except that if any Bonds are issued
and delivered, in no event shall the exercise of the powers herein granted be terminated until all
Bonds so issued and delivered and the interest thereon shall have been paid or provision for such
payment shall have been made and any other debt incurred with respect to any other financing
program established or administered by the Authority has been repaid in full and is no longer
outstanding.
6. Powers; Restriction upon Exercise
a. To effectuate its purpose, the Authority shall have the power to exercise any and
all powers of the Members or of a joint powers authority under the Act and other applicable
provisions of law, subject, however, to the conditions and restrictions herein contained. Each
Member or Associate Member may also separately exercise any and all such powers. The
powers of the Authority are limited to those of a general law county.
b. The Authority may adopt, from time to time, such resolutions, guidelines, rules
and regulations for the conduct of its meetings and the activities of the Authority as it deems
necessary or desirable to accomplish its purpose.
25
C. The Authority shall have the power to finance the construction, acquisition,
improvement and rehabilitation of real property, including the power to purchase, with the
amounts received or to be received by it pursuant to a bond purchase agreement, bonds issued by
any of its Members or Associate Members and other local agencies at public or negotiated sale,
for the purpose set forth herein and in accordance with the Act. All or any part of such bonds so
purchased may be held by the Authority or resold to public or private purchasers at public or
negotiated sale. The Authority shall set any other terms and conditions of any purchase or sale
contemplated herein as it deems necessary or convenient and in furtherance of the Act. The
Authority may issue or cause to be issued Bonds or other indebtedness, and pledge any of its
property or revenues as security to the extent permitted by resolution of the Board under any
applicable provision of law. The Authority may issue Bonds in accordance with the Act in order
to raise funds necessary to effectuate its purpose hereunder and may enter into agreements to
secure such Bonds. The Authority may issue other forms of indebtedness authorized by the Act,
and to secure such debt, to further such purpose. The Authority may utilize other forms of
capital, including, but not limited to, the Authority's internal resources, capital markets and other
forms of private capital investment authorized by the Act.
d. The Authority is hereby authorized to do all acts necessary for the exercise of its
powers, including, but not limited to:
(1) executing contracts,
(2) employing agents, consultants and employees,
(3) acquiring, constructing or providing for maintenance and operation of any
building, work or improvement,
(4) acquiring, holding or disposing of real or personal property wherever
located, including property subject to mortgage,
(5) incurring debts, liabilities or obligations,
(6) receiving gifts, contributions and donations of property, funds, services
and any other forms of assistance from persons, films, corporations or
governmental entities,
(7) suing and being sued in its own name, and litigating or settling any suits or
claims,
(8) doing any and all things necessary or convenient to the exercise of its
specific powers and to accomplishing its purpose
(9) establishing and /or administering districts to finance and refinance the
acquisition, installation and improvement of energy efficiency, water
conservation and renewable energy improvements to or on real property
and in buildings. The Authority may enter into one or more agreements,
26
including without limitation, participation agreements and implementation
agreements to implement such programs.
e. Subject to the applicable provisions of any indenture or resolution providing for
the investment of monies held thereunder, the Authority shall have the power to invest any of its
funds as the Board deems advisable, in the same manner and upon the same conditions as local
agencies pursuant to Section 53601 of the Government Code of the State of California.
£ All property, equipment, supplies, funds and records of the Authority shall be
owned by the Authority, except as may be provided otherwise herein or by resolution of the
Board.
g. Pursuant to the provisions of Section 6508.1 of the Act, the debts, liabilities and
obligations of the Authority shall not be debts, liabilities and obligations of the Members or
Associate Members. Any Bonds, together with any interest and premium thereon, shall not
constitute debts, liabilities or obligations of any Member. The Members or Associate Members
hereby agree that any such Bonds issued by the Authority shall not constitute general obligations
of the Authority but shall be payable solely from the moneys pledged to the repayment of
principal or interest on such Bonds under the terms of the resolution, indenture, trust, agreement
or other instrument pursuant to which such Bonds are issued. Neither the Members or Associate
Members nor the Authority shall be obligated to pay the principal of or 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 or
Associate Members or the Authority shall be pledged to the payment of the principal of or
premium, if any, or interest on the Bonds, nor shall the Members or Associate Members of the
Authority be obligated in any manner to make any appropriation for such payment. No covenant
or agreement contained in any Bond shall be deemed to be a covenant or agreement of any
Delegate, or any officer, agent or employee of the Authority in an individual capacity, and
neither the Board nor any officer thereof executing the Bonds or any document related thereto
shall be liable personally on any Bond or be subject to any personal liability or accountability by
reason of the issuance of any Bonds.
7. Governing Board
a. The Board shall consist of the number of Delegates equal to one representative
from each Member.
b. The governing body of each Member shall appoint one of its Supervisors to serve
as a Delegate on the Board. A Member's appointment of its Delegate shall be delivered in
27
writing (which may be by electronic mail) to the Authority and shall be effective until he or she
is replaced by such governing body or no longer a Supervisor; any vacancy shall be filled by the
governing body of the Member in the same manner provided in this paragraph b..
C. The governing body of each Member of the Board shall appoint a Supervisor as
an alternate to serve on the Board in the absence of the Delegate; the alternate may exercise all
the rights and privileges of the Delegate, including the right to be counted in constituting a
quorum, to participate in the proceedings of the Board, and to vote upon any and all matters. No
alternate may have more than one vote at any meeting of the Board, and any Member's
designation of an alternate shall be delivered in writing (which may be by electronic mail) to the
Authority and shall be effective until such alternate is replaced by his or her governing body or is
no longer a Supervisor, unless otherwise specified in such appointment. Any vacancy shall be
filled by the governing body of the Member in the same manner provided in this paragraph c..
d. Any person who is not a member of the governing body of a Member and who
attends a meeting on behalf of such Member may not vote or be counted toward a quorum but
may, at the discretion of the Chair, participate in open meetings he or she attends.
e. Each Associate Member may designate a non- voting representative to the Board
who may not be counted toward a quorum but who may attend open meetings, propose agenda
items and otherwise participate in Board Meetings.
f. Delegates shall not receive compensation for serving as Delegates, but may claim
and receive reimbursement for .expenses actually incurred in connection with such service
pursuant to rules approved by the Board and subject to the availability of funds.
g. The Board shall have the power, by resolution, to the extent permitted by the Act
or any other applicable law, to exercise any powers of the Authority and to delegate any of its
functions to the Executive Committee or one or more Delegates, officers or agents of the
Authority, and to cause any authorized Delegate, officer or agent to take any actions and execute
any documents for and in the name and on behalf of the Board or the Authority.
h. The Board may establish other committees as it deems necessary for any lawful
purpose; such committees are advisory only and may not, act or purport to act on behalf of the
Board or the Authority.
i. The Board shall develop, or cause to be developed, and review, modify as
necessary, and adopt each Program.
8. Meetings of the Board
a. The Board shall meet at least once annually, but may meet more frequently upon
call of any officer or as provided by resolution of the Board.
b. Meetings of the Board shall be called, noticed, held and conducted pursuant to the
provisions of the Ralph M. Brown Act, Chapter 9 (commencing with Section 54950) of Part I of
Division 2 of Title 5 of the Government Code of the State of California.
C. The Secretary of the Authority shall cause minutes of all meetings of the Board to
be taken and distributed to each Member as soon as possible after each meeting.
d. The lesser of twelve (12) Delegates or a majority of the number of current
Delegates shall constitute a quorum for transacting business at any meeting of the Board, except
that less than a quorum may act to adjourn a meeting. Each Delegate shall have one vote.
e. Meetings may be held at any location designated in notice properly given for a
meeting and may be conducted by telephonic or similar means in any manner otherwise allowed
by law.
9. Officers; Duties; Official Bonds
a. The Board shall elect a chair and vice chair from among the Delegates at the
Board's annual meeting who shall serve a term of one (1) year or until their respective successor
is elected. The chair shall conduct the meetings of the Board and perform such other duties as
may be specified by resolution of the Board. The vice chair shall perform such duties in the
absence or in the event of the unavailability of the chair.
b. The Board shall contract annually with RCRC to administer the Agreement and to
provide administrative services to the Authority, and the President and Chief Executive Officer
of RCRC shall serve ex officio as Executive Director, Secretary, Treasurer, and Auditor of the
Authority. As chief executive of the Authority, the Executive Director is authorized to execute
contracts and other obligations of the Authority, unless prior Board approval is required by a
third party, by law or by Board specification, and to perform other duties specified by the Board.
The Executive Director may appoint such other officers as may be required for the orderly
conduct of the Authority's business and affairs who shall serve at the pleasure of the Executive
Director. Subject to the applicable provisions of any indenture or resolution providing for a
trustee or other fiscal agent, the Executive Director, as Treasurer, is designated as the custodian
of the Authority's funds,. from whatever, source, and, as such, shall have the powers, duties and
29
responsibilities specified in Section 6505.5 of the Act. The Executive Director, as Auditor, shall
have the powers, duties and responsibilities specified in Section 6505.5 of the Act.
C. The Legislative Advocate for the Authority shall be the Rural County
Representatives of California.
d. The Treasurer and Auditor are public officers who have charge of, handle, or have
access to all property of the Authority, and a bond for such officer in the amount of at least one
hundred thousand dollars ($100,000.00) shall be obtained at the expense of the Authority and
filed with the Executive Director. Such bond may secure the faithful performance of such
officer's duties with respect to another public office if such bond in at least the same amount
specifically mentions the office of the Authority as required herein. The Treasurer and Auditor
shall cause periodic independent audits to be made of the Authority's books by a certified public
accountant, or public accountant, in compliance with Section 6505 of the Act.
e. The business of the Authority shall be conducted under the supervision of the
Executive Director by RCRC personnel.
10. Executive Committee of the Authority
a. Composition
The Authority shall appoint no fewer than nine (9) and no more than eleven (11)
members of its Board to serve on an Executive Committee. The Chair and Vice Chair of the
Authority shall serve on the Executive Committee.
b. Powers and Limitations
The Executive Committee shall act in an advisory capacity and make
recommendations to the Authority Board. Duties will include, but not be limited to, review of
the quarterly and annual budgets, service as the Audit Committee for the Authority, periodically
review this Agreement; and complete any other tasks as may be assigned by the Board. The
Executive Committee shall be subject to all limitations imposed by this Agreement, other
applicable law, and resolutions of the Board.
C. Quor um
A majority of the Executive Committee shall constitute a quorum for transacting
business of the Executive Committee.
30
11. Disposition of Assets
Upon termination of this Agreement, all remaining assets and liabilities of the Authority
shall be distributed to the respective Members in such manner as shall be determined by the
Board and in accordance with the law.
12. Agreement Not Exclusive; Operation in Jurisdiction of Member
This Agreement shall not be exclusive, and each Member expressly reserves its rights to
carry out other public capital improvements and programs as provided for by law and to issue
other obligations for those purposes. This Agreement shall not be deemed to amend or alter the
terms of other agreements among the Members or Associate Members.
13. Conflict of Interest Code
The Authority shall by resolution adopt a Conflict of Interest Code as required by law.
14. Contributions and Advances
Contributions or advances of public funds and of personnel, equipment or property may.
be made to the Authority by any Member, Associate Member or any other public agency to
further the purpose of this Agreement. Payment of public funds may be made to defray the cost
of any contribution. Any advance may be made subject to repayment, and in that case shall be
repaid in the manner agreed upon by the advancing Member, Associate Member or other public
agency and the Authority at the time of malting the advance.
15. Fiscal Year; Accounts; Reports; Annual Budget; Administrative Expenses
a. The fiscal year of the Authority shall be the period from January 1 of each year to
and including the following December 31, except for any partial fiscal year resulting from a
change in accounting based on a different fiscal year previously.
b. Prior to the beginning of each fiscal year, the Board shall adopt a budget for the
succeeding fiscal year.
C. The Authority shall establish and maintain such funds and accounts as may be
required by generally accepted accounting principles. The books and records of the Authority
31
are public records and shall be open to inspection at all reasonable times by each Member and its
representatives.
d. The Auditor shall either make, or contract with a certified public accountant or
public accountant to make, an annual audit of the accounts and records of the Authority. 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 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 auditor of Sacramento County as the county
in which the Authority's office is located) within 12 months after the end of the fiscal year.
e. In any year in which the annual budget of the Authority does not exceed five
thousand dollars ($5,000.00), the Board may, upon unanimous approval of the Board, replace the
annual audit with an ensuing one -year period, but in no event for a period longer than two fiscal
years.
16. Duties of Members or Associate Members; Breach
If any Member or Associate Member shall default in performing any covenant contained
herein, such default shall not excuse that Member or Associate Member from fulfilling its other
obligations hereunder, and such defaulting Member or Associate Member. shall remain liable for
the performance of all covenants hereof. Each Member or Associate Member hereby declares
that this Agreement is entered into for the benefit of the Authority created hereby, and each
Member or Associate Member hereby grants to the Authority the right to enforce, by whatever
lawful means the Authority deems appropriate, all of the obligations of each of the parties
hereunder. Each and all of the remedies given to the Authority hereunder or by any law now or
hereafter enacted are cumulative, and the exercise of one right or remedy shall not impair the
right of the Authority to any or all other remedies.
17. Indemnification
To the full extent permitted by law, the Board may authorize indemnification by the
Authority of any person who is or was a Board Delegate, alternate, officer, consultant, employee
or 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 Delegate, alternate, officer,
consultant, employee or other agent of the Authority. Such indemnification may be made against
expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding, if such person acted in good faith and in a manner such person
32
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 his or her conduct 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.
18. Immunities
All of the privileges and immunities from liabilities, exemptions from law, ordinances
and rules, all pension, relief, disability, workers' compensation and other benefits which apply to
the activity of officers, agents or employees of any of the Members or Associate Members when
performing their respective functions, shall apply to them to the same degree and extent while
engaged as Delegates or otherwise as an officer, agent or other representative of the Authority or
while engaged in the performance of any of their functions or duties under the provisions of this
Agreement.
19. Amendment
This Agreement may be amended by the adoption of the amendment by the governing
bodies of a majority of the Members. The amendment shall become effective on the first day of
the month following the last required member agency approval. An amendment may be initiated
by the Board, upon approval by a majority of the Board. Any proposed amendment, including
the text of the proposed change, shall be given by the Board to each Member's Delegate for
presentation and action by each Member's board within 60 days, which time may be extended by
the Board.
The list of Members, Attachment 1, may be updated to reflect new and /or withdrawn
Members without requiring formal amendment of the Agreement by the Authority Board of
Directors.
20. Withdrawal of Member or Associate Member
If a Member withdraws as member of RCRC, its membership in the Authority shall
automatically terminate. A Member or Associate 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 as long as any Bonds or other obligations of the Authority remain
outstanding. Any such withdrawal shall become effective thirty (30) days after a resolution
adopted by the Member's governing body which authorizes withdrawal is received by the
Authority. Notwithstanding the foregoing, any termination of membership or withdrawal from
the Authority shall not operate to relieve any terminated or withdrawing Member or Associate
33
Member from Obligations incurred by such terminated or withdrawing Member or Associate
Member prior to the time of its termination or withdrawal.
21. Miscellaneous
a. Counterparts. 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.
b. Construction. 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.
C. Approvals. Wherever in this Agreement any consent or approval is required, the
same shall not be unreasonably withheld.
d. Jurisdiction; Venue. This Agreement is made in the State of California, under
the Constitution and laws of such State and is to be so construed; any action to enforce or
interpret its terms shall be brought in Sacramento County, California.
e. Integration. This Agreement is the complete and exclusive statement of the
agreement among the parties hereto, and it supersedes and merges all prior proposals,
understandings, and other agreements, whether oral, written, or implied in conduct, between and
among the parties relating to the subject matter of thisAgreement.
£ Successors; Assignment. 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 assign any right or obligation hereunder without the consent of the
Board.
g. Severability. Should any part, term or provision of this Agreement be decided by
the courts to be illegal or in conflict with any law of the State of California, or otherwise be
rendered unenforceable or ineffectual, the validity of the remaining parts, terms or provisions
hereof shall not be affected thereby.
The parties hereto have caused this Agreement to be executed and attested by their properly
authorized officers.
ADOPTED BY THE MEMBERS:
Originally dated July 1, 1993
34
Amended and restated December 10, 1998
Amended and restated February 18, 1999
Amended and restated September 18, 2002
Amended and restated January 28, 2004
Amended and restated December 10, 2014
Amended and restated January 21, 2015
[SIGNATURES ON FOLLOWING PAGES
III
COUNTY OR CITY:
By:_
Name:
Title:
Attest:
Clerk of the City Council
Dated:
[PLEASE SEND TO:
Golden State Finance Authority
1215 K Street, Suite 1650
Sacramento, CA 95814]
RE.,
ATTACHMENT 1
GOLDEN STATE FINANCE AUTHORITY MEMBERS
As of December 10, 2014
Alpine County
Amador County
Butte County
Calaveras County
Colusa County
Del Norte County
E1 Dorado County
Glenn County
Humboldt County
Imperial County
Inyo County
Lake County
Lassen County
Madera County
Mariposa County
Mendocino County
Merced County
Modoc County
Mono County
Napa County
Nevada County
Placer County
Plumas County
San Benito County
Shasta County
Sierra County
Siskiyou County
Sutter County
Tehama County
Trinity County
Tuolumne County
Yolo County
Yuba County
37
EXHIBIT B
INDEMNIFICATION AND INSURANCE AGREEMENT
BY AND BETWEEN
THE CITY OF PETALUMA
AND
YGRENE ENERGY FUND CA, LLC
This Indemnification and Insurance Agreement ( "Agreement ") is entered into by and between
the City of Petaluma, a municipal corporation ( "City ") and Ygrene Energy Fund CA, LLC, a
California limited liability company ( "Administrator "), the administrator of the California Home
Finance Authority, now known as Golden State Finance Authority, PACE Program and the
California Home Finance Authority's Community Facilities District No. 2014 -1 (Clean Energy).
RECITALS
WHEREAS, the California Home Finance Authority, which is now known as Golden
State Finance Authority, ( "Authority ") is a joint exercise of powers authority established
pursuant to Chapter 5 of Division 7, Title 1 of the California Government Code (Section 6500 et.
seq.) and the Joint Exercise of Powers Agreement entered into on July 1, 1993, as amended from
time to time ( "Authority JPA "); and
WHEREAS, the Authority has amended the Authority JPA to formally change its name
to the Golden State Finance Authority; and
WHEREAS, the Authority has established a property- assessed clean energy ( "PACE ")
Program ( "Authority PACE Program ") to provide for the financing of renewable energy
generation, energy and water efficiency improvements, and electric vehicle charging
infrastructure (the "Improvements ") pursuant to Chapter 29 of Division 7 of the California
Streets and Highways Code ( "Chapter 29 "), within counties and cities throughout the State of
California that elect to participate in the Program; and
WHEREAS, in addition, the 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(1) and 53328.1(a) ( "District "); and
WHEREAS, the City Council has consented to the inclusion in the Authority PACE
Program of all of the properties in the jurisdictional boundaries of the City and to the acquisition,
construction, and installation of the Improvements, upon the request by and voluntary agreement
38
of owners of such properties, in compliance with the laws, rules and regulations applicable to the
Program, and has consented to the inclusion in Community Facilities District No. 2014-1 (Clean
Energy) of all of the properties in the City's jurisdiction and to the construction and installation
of 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 the District; and
WHEREAS, the Authority and the Administrator have entered into a Third Party
Administration Agreement, dated March 2015, in which the Administrator agrees to administer
the Authority PACE Program and /or Community Facilities District No. 2014- l(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
District No. 2014-1 (Clean Energy) in the City.
NOW, 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 parties agree as follows:
1. Agreement to Indemnify. The Administrator agrees to defend, indemnify, and
hold harmless the City, its officers, elected or appointed officials, employees, agents, and
volunteers from and against any and all claims, damages, losses, expenses, fines, penalties,
judgments, demands, and defense costs (including, without limitation, actual, direct, out -of-
pocket costs and expenses, and amounts paid in compromise or settlement and reasonable
outside legal fees arising from litigation of every nature or liability of any kind or nature
including civil, criminal, administrative or investigative) arising out of or in connection with the
Authority's PACE Program or Community Facilities District No. 2014 -1 (Clean Energy), except
such loss or damage which was caused by the gross negligence or willful misconduct of the City.
The Administrator will conduct all defenses at its sole cost and expense, and the City shall
reasonably approve selection of the Administrator's counsel. This indemnity shall apply -to all
claims and liability regardless of whether any insurance policies of the Administrator, its
affiliates or any other parties are applicable thereto. The policy limits of any insurance of the
Administrator, its affiliates or other parties are not a limitation upon the obligation of the
Administrator, including without limitation, the amount of indemnification to be provided by the
Administrator. The provisions of this section shall survive the termination of this Agreement.
2. Insurance. The Administrator agrees that, at no cost or expense to the City, at all
times during the administration of the Authority's PACE Program and Community Facilities
39
District No. 2014 -1 (Clean Energy), to maintain the insurance coverage set forth in Exhibit "A"
to this Agreement. I
3. Amendment /Interpretation of this Agreement. This Agreement, including all
Exhibits attached hereto, represents the entire understanding of the parties as to those matters
contained herein. No prior oral or written understanding shall be of any force or effect with
respect to those matters covered hereunder. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by both parties hereto. This Agreement
shall not be interpreted for or against any party by reason of the fact that such party may have
drafted this Agreement or any of its provisions.
4. Section Headings. Section headings in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose.
5. Waiver. No waiver of any of the provisions of this Agreement shall be binding
unless in the form of a writing signed by the party against whom enforcement is sought, and no
such waiver shall operate as a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver. Except as specifically provided herein, no
failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a
waiver thereof.
6. Severability and Governing Law. If any provision or portion thereof of this
Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise
unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted
by law. This Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of California applicable to contracts made and to be performed in
California.
7. Notices. All notices, demands and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given if delivered by
hand, against receipt, or mailed certified or registered mail and addressed as follows:
If to the Administrator: Ygrene Energy Fund CA, LLC
Attn: Sven Kaludzinski
Senior Corporate Counsel
2100 S. McDowell Blvd
Petaluma, CA 94954
IN
If to the City:
City of Petaluma
Attn: City Manager
11 English Street
Petaluma, CA 94952
8. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, which together shall constitute the same instrument.
9. Effective Date. This Agreement will be effective as of the date of the signature of
City's representative as indicated below in the City's signature block.
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date
below.
CITY
CITY OF PETALUMA
[title]
Date:
APPROVED AS TO FORM:
City Counsel
ADMINISTRATOR
YGRENE ENERGY FUND CA, LLC
IN
Rocco J. Fabiano, President/CEO
Date:
41
INSURANCE
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
EXHIBIT A
1. The coverage provided by Insurance Services Office Commercial General
Liability coverage ( "occurrence ") Form Number CG 0001; and
2. The coverage provided by Insurance Services Office Form Number CA 0001
covering Automobile Liability. Coverage shall be included for all owned, non -
owned and hired automobiles; and
3. Workers' Compensation insurance as required by the California Labor Code and
Employers Liability insurance; and
4. Professional Liability Errors & Omissions for all professional services.
There shall be no endorsement reducing the scope of coverage required above unless approved
by the City's Risk Manager.
B. Minimum Limits of Insurance
Administrator shall maintain limits no less than:
1. Commercial General Liability: $1,000,000 per occurrence for bodily injury,
personal injury and property damage. If Commercial Liability Insurance or other
form with a general aggregate limit is used, either the general aggregate limit shall
apply separately to this project /location or the general aggregate limit shall be
twice the required occurrence limit; and
2. Automobile Liability: $1,000,000 combined single limit per accident for bodily
injury and property damage; and
3. Workers' Compensation and Employers Liability: Workers' Compensation limits
as required by the California Labor Code and Employers Liability limits of
$1,000,000 per accident; and
4. Professional Liability Errors & Omissions $1,000,000 per occurrence/ aggregate
limit.
C. Deductibles and Self - Insured Retentions
Any deductibles or self - insured retentions must be declared to, and approved by the City's Risk
Manager. At the option of City, either: the insurer shall reduce or eliminate such deductibles or
42
self - insured retentions as respects City, its officers, employees, agents and contractors; or
Administrator shall procure a bond guaranteeing payment of losses and related investigations,
claim administration and defense expenses in an amount specified by the City's Risk Manager.
D. Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
1. Commercial General Liability and Automobile Liability Coverages.
a. Petaluma, its officers, employees, agents, and contractors are to be
covered as additional insureds as respects: Liability arising out of
activities performed by or on behalf of Administrator; products and
completed operations of Administrator; premises owned, leased, or used
by Administrator; and automobiles owned, leased, hired or borrowed by
Administrator. The coverage shall contain no special limitations on the
scope of protection afforded to the City, its officers, employees, agents,
and contractors.
b. Administrator's insurance coverage shall be primary insurance as respects
the City, its officers, employees, agents, and contractors. Any insurance
or self - insurance maintained by City, its officers, employees, agents, or
contractors shall be excess of Administrator's insurance and shall not
contribute with it.
C. Any failure to comply with reporting provisions of the policies by
Administrator shall not affect coverage provided to the City, its officers,
employees, agents, or contractors.
d. Coverage shall state that Administrator's insurance shall apply separately
to each insured against whom claim is made or suit is brought, except with
respect to the limits of the insurer's liability.
e. Coverage shall contain a waiver of subrogation in favor of the City, its
officers, employees, agents, and contractors.
2. Workers' Compensation and Employers' Liability.
Coverage shall contain waiver of subrogation in favor of City,. its officers,
employees, agents, and contractors.
3. All Coverages
Each insurance policy required by this AGREEMENT shall be endorsed to state
that coverage. shall not be suspended, voided, cancelled, or reduced in limits
except after thirty (30) days' prior written notice has been given to the City,
43
except that ten (10) days' prior written notice shall apply in the event of
cancellation for nonpayment of premium.
E. Acceptability of Insurers.
Insurance is to be placed with insurers acceptable to the City's Risk Manager.
F. Verification of Coverage.
Administrator shall furnish the City with certificates of insurance and with original endorsements
affecting coverage required by this AGREEMENT. The certificates and endorsements for each
insurance policy are to be signed by a person authorized by that insurer to bind coverage on its
behalf.
Proof of insurance shall be either emailed in pdf format to:
or mailed to the following postal address or any subsequent address as may be directed in writing
by the City's Risk Manager:
Risk Manager
City of Petaluma
11 English Street
Petaluma, CA 94952
G. Subcontractors
Administrator shall include all subcontractors as insureds under its policies or shall obtain
separate certificates and endorsements for each subcontractor.
..
ATTACHMENT 3
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA,
CALIFORNIA, CONSENTING TO INCLUSION OF PROPERTIES WITHIN THE
CITY'S JURISDICTION IN THE GOLDEN STATE FINANCE AUTHORITY'S AB 811
PACE PROGRAM TO FINANCE RENEWABLE ENERGY GENERATION, ENERGY
AND WATER EFFICIENCY IMPROVEMENTS, ELECTRIC VEHICLE CHARGING
INFRASTRUCTURE, AND OTHER AUTHORIZED IMPROVEMENTS AND
APPROVING THE AMENDMENT TO A CERTAIN JOINT POWERS AGREEMENT
RELATED THERETO
WHEREAS, the Golden State Finance Authority ( "Authority ") is a joint exercise of
powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government
Code of the State of California (Section 6500 and following) (the "Act ") and the Joint Power
Agreement entered into on July 1, 1993, as amended from time to time (the "Authority JPA ");
and
WHEREAS, the Authority has amended the Authority JPA to formally change its name
from California Home Finance Authority to Golden State Finance Authority; and
WHEREAS, Authority has established a property- assessed clean energy ( "PACE ")
Program (the "Authority PACE Program ") to provide for the financing of renewable energy
generation, energy and water efficiency improvements, electric vehicle charging infrastructure,
and such other improvements as may be authorized by law from time to time (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, the City of Petaluma (the "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 Authority 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 Authority in order to
efficiently and economically assist property owners within the territory of the City in financing
such Improvements; and
45
WHEREAS, Authority has established the Authority PACE Program, which is such a
voluntary contractual assessment program, as permitted by the Act and the Authority JPA
originally made and entered into July 1, 1993, as amended to date; the City is an Associate
Member of the JPA and desires to participate in the Authority PACE Program and to assist
property owners within the territory 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 Authority PACE Program.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. This City Council finds and declares that properties in the City's territory will be
benefited by the availability of the Authority PACE Program to finance the installation of the
Improvements.
2. This City Council-Consents to inclusion in the Authority PACE Program of all of
the properties in the territory 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 this City Council constitutes assent to the assumption of
jurisdiction by Authority for all purposes of the Authority PACE 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; provided, however, that the City
shall assist in the levying, collecting and enforcement of the contractual assessments and the
issuance and enforcement of bonds to finance the Improvements.
4. City staff is authorized and directed to coordinate with Authority staff to facilitate
operation of the Authority PACE Program within the City, and report back periodically to this
City Council on the program.
5. This Resolution shall take effect immediately upon its adoption. The Clerk is
directed to send a certified copy of this resolution to the Secretary of the Authority.
Exhibit A
GOLDEN STATE FINANCE AUTHORITY
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
(Original date July 1, 1993 and as last amended and restated January 21, 2015)
THIS AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
( "Agreement ") is entered into by and among the counties listed on Attachment 1 hereof and
incorporated herein by reference. All such counties are referred to herein as "Members" with the
respective powers, privileges and restrictions provided herein.
RECITALS
A. WHEREAS, the California Rural Home Mortgage Finance Authority ( "CRHMFA ") was
created by a Joint Exercise of Powers Agreement dated July 1, 1993 pursuant to the Joint
Exercise of Powers Act (commencing with Article 1 of Chapter 5 of Division 7 of Title 1 of the
Government Code of the State of California (the "Act "). By Resolution 2003 -02, adopted on
January 15, 2003, the name of the authority was changed to CRHMFA Homebuyers Fund. On
December 10, 2014, the name of the authority was changed to California Home Finance
Authority. The most recent amendment to the Joint Exercise of Powers Agreement was on
December 10, 2014.
B. WHEREAS, the Members of California Home Finance Authority desire to update,
reaffirm, clarify and revise certain provisions of the joint powers agreement, including the
renaming of the joint powers authority, as set forth herein.
C. WHEREAS, the Members are each empowered by law to finance the construction,
acquisition, improvement and rehabilitation of real property.
D. WHEREAS, by this Agreement, the Members desire to create and establish a joint
powers authority to exercise their respective powers for the purpose of financing the
construction, acquisition, improvement and rehabilitation of real property within the jurisdiction
of the Authority as authorized by the Act.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Members
individually and collectively agree as follows:
1. Definitions
47
Unless the context otherwise requires, the following terms shall for purposes of this
Agreement have the meanings specified below:
"Act" means the Joint Exercise of Powers Act, commencing with Article 1 of Chapter 5
of Division 7 of Title 1 of the Government Code of the State of California, including the
Marks -Roos Local Bond Pooling Act of 1985, as amended.
"Agreement" means this Joint Exercise of Powers Agreement, as the same now exists or
as it may from time to time be amended as provided herein.
"Associate Member" means a county, city or other public agency which is not a voting
member of the Rural County Representatives of California, a California nonprofit corporation
( "RCRC" ), with legal power and authority similar to that of the Members, admitted pursuant to
paragraph 4.d. below to associate membership herein by vote of the Board.
"Audit Committee" means a committee made up of the Executive Committee.
"Authority" means Golden State Finance Authority (GSFA) formerly known as
California Home Finance Authority ( "CHF "), or CRHMFA Homebuyers Fund or California
Rural Home Mortgage Finance Authority.
"Board" means the governing board of the Authority as described in Section 7 below.
"Bonds" means bonds, notes, warrants, leases, certificates of participation, installment
purchase agreements, loan agreements and other securities or obligations issued by the
Authority, or financing agreements entered into by the Authority pursuant to the Act and any
other obligation within the meaning of the term 'Bonds" under the Act.
"Delegate" means the Supervisor designated by the governing board of each Member to
serve on the Board of the Authority.
"Executive Committee" means the Executive Committee of the Board established
pursuant to Section 10 hereof.
"Member" means any county which is a member of RCRC, has executed this
Agreement and has become a member of the Authority.
"Obligations" means bonds, notes, warrants, leases, certificates of participation,
installment purchase agreements, loan agreements and other securities or obligations issued by
the Authority, or financing agreements entered into by the Authority pursuant to the Act and any
other financial or legal obligation of the Authority under the Act.
"Program" or "Project" means any work, improvement, program, project or service
undertaken by the Authority.
"Rural County Representatives of California" or "RCRC" means the nonprofit entity
incorporated under that name in the State of California.
"Supervisor" means an elected County Supervisor from an RCRC member county.
2. Purpose
The purpose of the Authority is to provide financing for the acquisition, construction,
improvement and rehabilitation of real property in accordance with applicable provisions of law
for the benefit of residents and communities. In pursuit of this purpose, this Agreement provides
for the joint exercise of powers common to any of its Members and Associate Members as
provided herein, or otherwise authorized by the Act and other applicable laws, including
assisting in financing as authorized herein, jointly exercised in the manner set forth herein.
3. Principal Place of Business
The principal office of the Authority shall be 1215 K Street, Suite 1650, Sacramento,
California 95814.
4. Creation of Authority; Addition of Members or Associate Members
a. The Authority is hereby created pursuant to the Act. As provided in the Act, the
Authority shall be a public entity separate and distinct from the Members or Associate Members.
b. The Authority will cause a notice of this Agreement or any amendment hereto to
be prepared and filed with the office of the Secretary of State of California in a timely fashion'in
the manner set forth in Section 6503.3 of the Act.
C. A county that is a member of RCRC may petition to become a member of the
Authority by submitting to the Board a resolution or evidence of other formal action taken by its
governing body adopting this Agreement. The Board shall review the petition for membership
and shall vote to approve or disapprove the petition. If the petition is approved by a majority of
the Board, such county shall immediately become a Member of the Authority.
..
d. An Associate Member may be added to the Authority upon the affirmative
approval of its respective governing board and pursuant to action by the Authority Board upon
such terms and conditions, and with such rights, privileges and responsibilities, as may be
established from time to time by the Board. Such terms and conditions, and rights, privileges
and responsibilities may vary among the Associate Members. Associate Members shall be
entitled to participate in one or more programs of the Authority as determined by the Board, but
shall not be voting members of the Board. The Executive Director of the Authority shall enforce
the terms and conditions for prospective Associate Members to the Authority as provided by
resolution of the Board and as amended from time to time by the Board. Changes in the terms
and conditions for Associate Membership by the Board will not constitute an amendment of this
Agreement.
5. Term and Termination of Powers
This Agreement shall become effective from the date hereof until the earlier of the time
when all Bonds and any interest thereon shall have been paid in full, or provision for such
payment shall have been made, or when the Authority shall no longer own or hold any interest in
a public capital improvement or program. The Authority shall continue to exercise the powers
herein conferred upon it until termination of this Agreement, except that if any Bonds are issued
and delivered, in no event shall the exercise of the powers herein granted be terminated until all
Bonds so issued and delivered and the interest thereon shall have been paid or provision for such
payment shall have been made and any other debt incurred with respect to any other financing
program established or administered by the Authority has been repaid in full and is no longer
outstanding.
6. Powers; Restriction upon Exercise
a. To effectuate its purpose, the Authority shall have the -power to exercise any and
all powers of the Members or of a joint powers authority under the Act and other applicable
provisions of law, subject, however, to the conditions and restrictions herein contained. Each
Member or Associate Member may also separately exercise any and all such powers. The
powers of the Authority are limited to those of a general law county.
b. The Authority may adopt, from time to time, such resolutions, guidelines, rules
and regulations for the conduct of its meetings and the activities of the Authority as it deems
necessary or desirable to accomplish its purpose.
50
C. The Authority shall have the power to finance the construction, acquisition,
improvement and rehabilitation of real property, including the power to purchase, with the
amounts received or to be received by it pursuant to a bond purchase agreement, bonds issued by
any of its Members or Associate Members and other local agencies at public or negotiated sale,
for the purpose set forth herein and in accordance with the Act. All or any part of such bonds so
purchased may be held by the Authority or resold to public or private purchasers at public or
negotiated sale. The Authority shall set any other terms and conditions of any purchase or sale
contemplated herein as it deems necessary or convenient and in furtherance of the Act. The
Authority may issue or cause to be issued Bonds or other indebtedness, and pledge any of its
property or revenues as security to the extent permitted by resolution of the Board under any
applicable provision of law. The Authority may issue Bonds in accordance with the Act in order
to raise funds necessary to effectuate its purpose hereunder and may enter into agreements to
secure such Bonds. The Authority may issue other forms of indebtedness authorized by the Act,
and to secure such debt, to further such purpose. The Authority may utilize other forms of
capital, including, but not limited to, the Authority's internal resources, capital markets and other
forms of private capital investment authorized by the Act.
d. The Authority is hereby authorized to do all acts necessary for the exercise of its
powers, including, but not limited to:
(1) executing contracts,
(2) employing agents, consultants and employees,
(3) acquiring, constructing or providing for maintenance and operation of any
building, work or improvement,
(4) acquiring, holding or disposing of real or personal property wherever
located, including property subject to mortgage,
(5) incurring debts, liabilities or obligations,
(6) receiving gifts, contributions and donations of property, funds, , services
and any other forms of assistance from persons, firms, corporations or
governmental entities,
(7) suing and being sued in its own name, and litigating or settling any suits or
claims,
(8) doing any and all things necessary or convenient to the exercise of its
specific powers and to accomplishing its purpose
(9) establishing and /or administering districts to finance and refinance the
acquisition, installation and improvement of energy efficiency, water
conservation and renewable energy improvements to or on real property
and in buildings. The Authority may enter into one or more agreements,
51
including without limitation, participation agreements and implementation
agreements to implement such programs.
e. Subject to the applicable provisions of any indenture or resolution providing for
the investment of monies held thereunder, the Authority shall have the power to invest any of its
funds as the Board deems advisable, in the same manner and upon the same conditions as local
agencies pursuant to Section 53601 of the Government Code of the State of California.
f. All property, equipment, supplies, funds and records of the Authority shall be
owned by the Authority, except as may be provided otherwise herein or by resolution of the
Board.
g. Pursuant to the provisions of Section 6508.1 of the Act, the debts, liabilities and
obligations of the Authority shall not be debts, liabilities and obligations of the Members or
Associate Members. Any Bonds, together with any interest and premium thereon, shall not
constitute debts, liabilities or obligations of any Member. The Members or Associate Members
hereby agree that any such Bonds issued by the Authority shall not constitute general obligations
of the Authority but shall be payable solely from the moneys pledged to the repayment of
principal or interest on such Bonds under the terms of the resolution, indenture, trust, agreement
or other instrument pursuant to which such Bonds are issued. Neither the Members or Associate
Members nor the Authority shall be obligated to pay the principal of or 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 or
Associate Members or the Authority shall be pledged to the payment of the principal of or
premium, if any, or interest on the Bonds, nor shall the Members or Associate Members of the
Authority be obligated in any manner to make any appropriation for such payment. No covenant
or agreement contained in any Bond shall be deemed to be a covenant or agreement of any
Delegate, or any officer, agent or employee of the Authority in an individual capacity, and
neither the Board nor any officer thereof executing the Bonds or any document related thereto
shall be liable personally on any Bond or be subject to any personal liability or accountability by
reason of the issuance of any Bonds.
7. Governing Board
a. The Board shall consist of the number of Delegates equal to one representative
fiom each Member.
b. The governing body of each Member shall appoint one of its Supervisors to serve
as a Delegate on the Board. A Member's appointment of its Delegate shall be delivered in
52
writing (which may be by electronic mail) to the Authority and shall be effective until he or she
is replaced by such governing body or no longer a Supervisor; any vacancy shall be filled by the
governing body of the Member in the same manner provided in this paragraph b..
C. The governing body of each Member of the Board shall appoint a Supervisor as
an alternate to serve on the Board in the absence of the Delegate; the alternate may exercise all
the rights and privileges of the Delegate, including the right to be counted in constituting a
quorum, to participate in the proceedings of the Board, and to vote upon any and all matters. No
alternate may have more than one vote at any meeting of the Board, and any Member's
designation of an alternate shall be delivered in writing (which may be by electronic mail) to the
Authority and shall be effective until such alternate is replaced by his or her governing body or is
no longer a Supervisor, unless otherwise specified in such appointment. Any vacancy shall be
filled by the governing body of the Member in the same manner provided in this paragraph c..
d. Any person who is not a member of the governing body of a Member and who
attends a meeting on behalf of such Member may not vote or be counted toward a quorum but
may, at the discretion of the Chair, participate in open meetings he or she attends.
e. Each Associate Member may designate a non - voting representative to the Board
who may not be counted, toward a quorum but who may attend open meetings, propose agenda
items and otherwise participate in Board Meetings.
f. Delegates shall not receive compensation for serving as Delegates, but may claim
and receive reimbursement for expenses actually incurred in connection with such service
pursuant to rules approved by the Board and subject to the availability of funds.
g. The Board shall have the power, by resolution, to the extent permitted by the Act
or any other applicable law, to exercise any powers of the Authority and to delegate any of its
functions to the Executive Committee or one or more Delegates, officers or agents of the
Authority, and to cause any authorized Delegate, officer or agent to take any actions and execute
any documents for and in the name and on behalf of the Board or the Authority.
h. The Board may establish other committees as it deems necessary for any lawful
purpose; such committees are advisory only and may not act or purport to act on behalf of the
Board or the Authority.
ii. The Board shall develop, or cause to be developed, and review, modify as
necessary, and adopt each Program.
53
8. Meetings of the Board
a. The Board shall meet at least once annually, but may meet more frequently upon
call of any officer or as provided by resolution of the Board.
K Meetings of the Board shall be called, noticed, held and conducted pursuant to the
provisions of the Ralph M. Brown Act, Chapter 9 (commencing with Section 54950) of Part I of
Division 2 of Title 5 of the Government Code of the State of California.
C. The Secretary of the Authority shall cause minutes of all meetings of the Board to
be taken and distributed to each Member as soon as possible after each meeting.
d. The lesser of twelve (12) Delegates or a majority of the number of current
Delegates shall constitute a quorum for transacting business at any meeting of the Board, except
that less than a quorum may act to adjourn a meeting.. Each Delegate shall have one vote.
C. Meetings may be held at any location designated in notice properly given for a
meeting and may be conducted by telephonic or similar means in any manner otherwise allowed
by law.
9. Officers; Duties; Official Bonds
a. The Board shall elect a chair and vice chair from among the Delegates at the
Board's annual meeting who shall serve a term of one (1) year or until their respective successor
is elected. The chair shall conduct the meetings of the Board and perform such other duties as
may be specified by resolution of the Board. The vice chair shall perform such duties in the
absence or in the event of the unavailability of the chair.
b. The Board shall contract annually with RCRC to administer the Agreement and to
provide administrative services to the Authority, and the President and Chief Executive Officer
of RCRC shall serve ex officio as Executive Director, Secretary, Treasurer, and Auditor of the
Authority. As chief executive of the Authority, the Executive Director is authorized to execute
contracts and other obligations of the Authority, unless prior Board approval is required by a
third party, by law or by Board specification, and to perform other duties specified by the Board.
The Executive Director may appoint such other officers as may be required for the orderly
conduct of the Authority's business and affairs who shall serve at the pleasure of the Executive
Director. Subject to the applicable provisions of any indenture or resolution providing for a
trustee or other fiscal agent, the Executive Director, as Treasurer, is designated as the custodian
of the Authority's funds, from whatever source, and, as such, shall have the powers, duties and
54
responsibilities specified in Section 6505.5 of the Act. The Executive Director, as Auditor, shall
have the powers, duties and responsibilities specified in Section 6505.5 of the Act.
C. The Legislative Advocate for the Authority shall be the Rural County
Representatives of California.
d. The Treasurer and Auditor are public officers who have charge of, handle, or have
access to all property of the Authority, and a bond for such officer in the amount of at least one
hundred thousand dollars ($100,000.00) shall be obtained at the expense of the Authority and
filed with the Executive Director. Such bond may secure the faithful performance of such
officer's duties with respect to another public office if such bond in at least the same amount
specifically mentions the office of the Authority as required herein. The Treasurer and Auditor
shall cause periodic independent audits to be made of the Authority's books by a certified public
accountant, or public accountant, in compliance with Section 6505 of the Act.
e. The business of the Authority shall be conducted under the supervision of the
Executive Director by RCRC personnel.
10. Executive Committee of the Authority
a. Composition
The Authority shall appoint no fewer than nine (9) and no more than eleven (11)
members of its Board to serve on an Executive Committee. The Chair and,Vice Chair of the
Authority shall serve on the Executive Committee.
b. Powers and Limitations
The Executive Committee shall act in an advisory capacity and make
recommendations to the Authority Board. Duties will include, but not be limited to, review of
the quarterly and annual budgets, service as the Audit Committee for the Authority, periodically
review this Agreement; and complete any other tasks as may be assigned by the Board. The
Executive Committee shall be subject to all limitations imposed by this Agreement, other
applicable law, and resolutions of the Board.
C. Quo rum
A majority of the Executive Committee shall constitute a quorum for transacting
business of the Executive Committee.
55
11. Disposition of Assets
Upon termination of this Agreement, all remaining assets and liabilities of the Authority
shall be distributed to the respective Members in such manner as shall be determined by the
Board and in accordance with the law.
12. Agreement Not Exclusive; Operation in Jurisdiction of Member
This Agreement shall not be exclusive, and each Member expressly reserves its rights to
carry out other public capital improvements and programs as provided for by law and to issue
other obligations for those purposes. This Agreement shall not be deemed to amend or alter the
terms of other agreements among the Members or Associate Members.
13. Conflict of Interest Code
The Authority shall by resolution adopt a Conflict of Interest Code as required by law.
14. Contributions and Advances
Contributions or advances of public funds and of personnel, equipment or property may
be made to the Authority by any Member, Associate Member or any other public agency to
further the purpose of this Agreement. Payment of public funds may be made to defray the cost
of any contribution. Any advance may be made subject to repayment, and in that case shall be
repaid in the manner agreed upon by the advancing Member, Associate Member or other public
agency and the Authority at the time of malting the advance.
15. Fiscal Year; Accounts; Reports; Annual Budget; Administrative Expenses
a. The .fiscal year of the Authority shall be the period from January 1 of each year to
and including the following December 31, except for any partial fiscal year resulting from a
change in accounting based on a different fiscal year previously.
b. Prior to the beginning of each fiscal year, the Board shall adopt a budget for the
succeeding fiscal year.
C. The Authority shall establish and maintain such funds and accounts as may be
required by generally accepted accounting principles. The books and records of the Authority
56
are public records and shall, be open to inspection at all reasonable times by each Member and its
representatives.
d. The Auditor shall either make, or contract with a certified public accountant or
public accountant to make, an annual audit of the accounts and records of the Authority. 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 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 auditor of Sacramento County as the county
in which the Authority's office is located) within 12 months after the end of the fiscal year.
e. In any year in which the annual budget of the Authority does not exceed five
thousand dollars ($5,000.00), the Board may, upon unanimous approval of the Board, replace.the
annual audit with an ensuing one -year period, but in no event for a period longer than two fiscal
years.
16. Duties of Members or Associate Members; Breach
If any Member or Associate Member shall default in performing any covenant contained
herein, such default shall not excuse that Member or Associate Member from fulfilling its other
obligations hereunder, and such defaulting Member or Associate Member shall remain liable for
the performance of all covenants hereof. Each Member or Associate Member hereby declares
that this Agreement is entered into for the benefit of the Authority created hereby, and each
Member or Associate Member hereby grants to the Authority the right to enforce, by whatever
lawful means the Authority deems appropriate, all of the obligations of each of the parties
hereunder. Each and all of the remedies given to the Authority hereunder or by any law now or
hereafter enacted are cumulative, and the exercise of one right or remedy shall not impair the
right of the Authority to any or all other remedies.
17. Indemnification
To the full extent permitted by law, the Board may authorize indemnification by the
Authority of any person who is or was a Board Delegate, alternate, officer, consultant, employee
or 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 Delegate, alternate, officer,
consultant, employee or other agent of the Authority. Such indemnification may be made against
expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding, if such person acted in good faith and in a manner such person
57
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 his or her conduct 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.
18. Immunities
All of the privileges and immunities from liabilities, exemptions from law, ordinances
and rules, all pension, relief, disability, workers' compensation and other benefits which apply to
the activity of officers, agents or employees of any of the Members or Associate Members when
performing their respective functions, shall apply to them to the same degree and extent while
engaged as Delegates or otherwise as an officer, agent or other representative of the Authority or
while engaged in the performance of any of their functions or duties under the provisions of this
Agreement.
19. Amendment
This Agreement may be amended by the adoption of the amendment by the governing
bodies of a majority of the Members. The amendment shall become effective on the first day of
the month following the last required member agency approval. An amendment may be initiated
by the Board, upon approval by a majority of the Board. Any proposed amendment, including
the text of the proposed change, shall be given by the Board to each Member's Delegate for
presentation and action by each Member's board within 60 days, which time may be extended by
the Board.
The list of Members, Attachment 1, may be updated to reflect new and /or withdrawn
Members without requiring formal amendment of the Agreement by the Authority Board of
Directors.
20. Withdrawal of Member or Associate Member
If a Member withdraws as member of RCRC, its membership in the Authority shall
automatically terminate. A Member or Associate 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 as long as any Bonds or other obligations of the Authority remain
outstanding. Any such withdrawal shall become effective thirty (30) days after a resolution
adopted by the Member's governing body which authorizes withdrawal is received by the
Authority. Notwithstanding the foregoing, any termination of membership or withdrawal from
the Authority shall not operate to relieve any terminated or withdrawing Member or Associate
58
Member from Obligations incurred by such terminated ,or withdrawing Member or Associate
Member prior to the time of its termination or withdrawal.
21. Miscellaneous
a. Counterparts. 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.
b. Construction. 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.
C. Approvals. Wherever in this Agreement any consent or approval is required, the
same shall not be unreasonably withheld.
d. Jurisdiction; Venue. This Agreement is made in the State of California, under
the Constitution and laws of such State and is to be so construed; any action to enforce or
interpret its terms shall be brought in Sacramento County, California.
C. Integration. This Agreement is the complete and exclusive statement of the
agreement among the parties hereto, and it supersedes and merges all prior proposals,
understandings, and other agreements, whether oral, written, or implied in conduct, between and
among the parties relating to the subject matter of this Agreement.
f. Successors; Assignment. 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 assign any right or obligation hereunder without the consent of the
Board.
g. Severability. Should any part, term or provision of this Agreement be decided by
the courts to be illegal or in conflict with any law of the State of California, or otherwise be
rendered unenforceable or ineffectual, the validity of the remaining parts, terns or provisions
hereof shall not be affected thereby.
The parties hereto have caused this Agreement to be executed and attested by their properly
authorized officers.
AS ADOPTED BY THE MEMBERS:
Originally dated July 1, 1993
59
Amended and restated December 10, 1998
Amended and restated February 18, 1999
Amended and restated September 18, 2002
Amended and restated January 28, 2004
Amended and restated December 10, 2014
Amended and restated January 21, 2015
[SIGNATURES ON FOLLOWING PAGES
•1
COUNTY OR CITY:
By:_
Name:
Title:
Attest:
Clerk of the City Council
Dated:
[PLEASE SEND TO:
Golden State Finance Authority
1215 K Street, Suite 1650
Sacramento, CA 95814]
61
ATTACHMENT 1
GOLDEN STATE FINANCE AUTHORITY MEMBERS
As of December 10, 2014
Alpine County
Amador County
Butte County
Calaveras County
Colusa County
Del Norte County
El Dorado County
Glenn County
Humboldt County
Imperial County
Inyo County
Lake County
Lassen County
Madera County
Mariposa County
Mendocino County
Merced County
Modoc County
Mono County
Napa County
Nevada County
Placer County
Plumas County
San Benito County
Shasta County
Siena County
Siskiyou County
Sutter County
Tehama County
Trinity County
Tuolumne County
Yolo County
Yuba County
EXHIBIT B
INDEMNIFICATION AND INSURANCE AGREEMENT
BY AND BETWEEN
THE CITY OF PETALUMA
AND
YGRENE ENERGY FUND CA, LLC
This Indemnification and Insurance Agreement ( "Agreement ") is entered into by and between
the City of Petaluma, a municipal corporation ( "City ") and Ygrene Energy Fund CA, LLC, a
California limited liability company ( "Administrator "), the administrator of the California Home
Finance Authority, now known as Golden State Finance Authority, PACE Program and the
California Home Finance Authority's Community Facilities District No. 2014 -1 (Clean Energy).
RECITALS
WHEREAS, the California Home Finance Authority, which is now known as Golden
State Finance Authority, ( "Authority ") is a joint exercise of powers authority established
pursuant to Chapter 5 of Division 7, Title 1 of the California Government Code (Section 6500 et.
seq.) and the Joint Exercise of Powers Agreement entered into on July 1, 1993, as amended from
time to time ( "Authority JPA "); and ,
WHEREAS, the Authority has amended the Authority JPA to formally change its name
to the Golden State Finance Authority; and
WHEREAS, the Authority has established a property- assessed clean energy ( "PACE ")
Program ( "Authority PACE Program ") to provide for the financing of renewable energy
generation, energy and water efficiency improvements, and electric vehicle charging
infrastructure (the "Improvements ") pursuant to Chapter 29 of Division 7 of the California
Streets and Highways Code ( "Chapter 29 "), within counties and cities throughout the State of
California that elect to participate in the Program; and
WHEREAS, in addition, the 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(1) and 53328.1(a) ( "District "); and
WHEREAS, the City Council has consented to the inclusion in the Authority PACE
Program of all of the properties in the jurisdictional boundaries of the City and to the acquisition,
construction, and installation of the Improvements, upon the request by and voluntary agreement
of owners of such properties, in compliance with the laws, rules and regulations applicable to the
63
Program, and has consented to the inclusion in Community Facilities District No. 2014-1 (Clean
Energy) of all of the properties in the City's jurisdiction and to the construction and installation
of 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 the District; and
WHEREAS, the Authority and the Administrator have entered into a Third Party
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
District No. 2014- 1(Clean Energy) in the City.
NOW, THEREFORE, 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 parties agree as follows:
1. Agreement to Indemnify. The Administrator agrees to defend, indemnify, and hold harmless
the City, its officers, elected or appointed officials, employees, agents, and volunteers from
and against any and all claims, damages, losses, expenses, fines, penalties, judgments,
demands, and defense costs (including, without limitation, actual, direct, out -of- pocket costs
and expenses, and amounts paid in compromise or settlement and reasonable outside legal
fees arising from litigation of every nature or liability of any kind or nature including civil,
criminal, administrative or investigative) arising out of or in connection with the Authority's
PACE Program or Community Facilities District No. 2014 -1 (Clean Energy), except such
loss or damage which was caused by the gross negligence or willful misconduct of the City.
The Administrator will conduct all defenses at its sole cost and expense, and the City shall
reasonably approve selection of the Administrator's counsel. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies of the Administrator, its
affiliates or any other parties are applicable thereto. The policy limits of any insurance of the
Administrator, its affiliates or other parties are not a limitation upon the obligation of the
Administrator, including without limitation, the amount of indemnification to be provided by
the Administrator. The provisions of this section shall survive the termination of this
Agreement.
2. Insurance. The Administrator agrees 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), to maintain the insurance coverage set forth in Exhibit "A"
to this Agreement.
.E
3. Amendment /Interpretation of this Agreement. This Agreement, including all
Exhibits attached hereto, represents the entire understanding of the parties as to those matters
contained herein. No prior oral or written understanding shall be of any force or effect with
respect to those matters covered hereunder. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by both parties hereto. This Agreement
shall not be interpreted for or against any party by reason of the fact that such party may have
drafted this Agreement or any of its provisions.
4. Section Headings. Section headings in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose.
5. Waiver. No waiver of any of the provisions of this Agreement shall be binding
unless in the form of a writing signed by the party against whom enforcement is sought, and no
such waiver shall operate as a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver. Except as specifically provided herein, no
failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a
waiver thereof.
6. Severability and Governing. If any provision or portion thereof of this
Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise
unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted
by law. This Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of California applicable to contracts made and to be performed in
California.
7. Notices. All notices, demands and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given if delivered by
hand, against receipt, or mailed certified or registered mail and addressed as follows:
If to the Administrator: Ygrene Energy Fund CA, LLC
Attn: Sven Kaludzinski
Senior Corporate Counsel
2100 S. McDowell Blvd
Petaluma, CA 94954
65
If to the City:
City of Petaluma
Attn: City Manager
11 English Street
Petaluma, CA 94952
81 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, which together shall constitute the same instrument.
9. Effective Date. This Agreement will be effective as of the date of the signature of
City's representative as indicated below in the City's signature block.
below.
IC
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date
CITY ADMINISTRATOR
CITY OF PETALUMA YGRENE ENERGY FUND CA, LLC
By:
[title] Rocco J. Fabian, President /CEO
Date:
Date:
APPROVED AS TO FORM:
City Counsel
..
INSURANCE
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
EXHIBIT A
1. The coverage provided by Insurance Services Office Commercial General
Liability coverage ( "occurrence ") Form Number CG 0001; and
2. The coverage provided by Insurance Services Office Form Number CA 0001
covering Automobile Liability. Coverage shall be included for all owned, non -
owned and hired automobiles; and
3. Workers' Compensation insurance as required by the California Labor Code and
Employers Liability insurance; and
4. Professional Liability Errors & Omissions for all professional services.
There shall be no endorsement reducing the scope of coverage required above unless approved
by the City's Risk Manager.
B. Minimum Limits of Insurance
Administrator shall maintain limits no less than:
1. Commercial General Liability: $1,000,000 per occurrence for bodily injury,
personal injury and property damage. If Commercial Liability Insurance or other
form with a general aggregate limit is used, either the general aggregate limit shall
apply separately to this project /location or the general aggregate limit shall be
twice the required occurrence limit; and
2. Automobile Liability: $1,000,000 combined single limit per accident for bodily
injury and property damage; and
3. Workers' Compensation and Employers Liability: Workers' Compensation limits
as required by the California Labor Code and Employers Liability limits of
$1,000,000 per accident; and
4. Professional Liability Errors & Omissions $1,000,000 per occurrence/ aggregate
limit.
C. Deductibles and Self- Insured Retentions
Any deductibles or self - insured retentions must be declared to, and approved by the City's Risk
Manager. At the option of City, either: the insurer shall reduce or eliminate such deductibles or
self - insured retentions as respects City, its officers, employees, agents and contractors; or
67
Administrator shall procure a bond guaranteeing payment of losses and related investigations,
claim administration and defense expenses in an amount specified by the City's Risk Manager.
D. Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
1. Commercial General Liability and Automobile Liability Coverages.
a. Petaluma, its officers, employees, agents, and contractors are to be
covered as additional insureds as respects: Liability arising out of
activities performed by or on behalf of Administrator; products and
completed operations of Administrator; premises owned, leased, or used
by Administrator; and automobiles owned, leased, hired or borrowed by
Administrator. The coverage shall contain no special limitations on the
scope of protection afforded to the City, its officers, employees, agents,
and contractors.
b. Administrator's insurance coverage shall be primary insurance as respects
the City, its officers, employees, agents, and contractors. Any insurance
or self- insurance maintained by City, its officers, employees, agents, or
contractors shall be excess of Administrator's insurance and shall not
contribute with it.
C. Any failure to comply with reporting provisions of the policies by
Administrator shall not affect coverage provided to the City, its officers,
employees, agents, or contractors.
d. Coverage shall state that Administrator's insurance shall apply separately
to each insured against whom claim is made or suit is brought, except with
respect to the limits of the insurer's liability.
e. Coverage shall contain a waiver of subrogation in favor of the City, its
officers, employees, agents, and contractors.
2. Workers' Compensation and Employers' Liability.
Coverage shall contain waiver of subrogation in favor of City, its officers,
employees, agents, and contractors.
3. All Coverages
Each insurance policy required by this AGREEMENT shall be endorsed to state
that coverage shall not be suspended, voided, cancelled, or reduced in limits
except after thirty (30) days' prior written notice has been given to the City,
except that ten (10) days' prior written notice shall apply in the event of
cancellation for nonpayment of premium.
.:
E. Acceptability of Insurers.
Insurance is to be placed with insurers acceptable to the City's Risk Manager.
F. Verification of Coverage.
Administrator shall furnish the City with certificates of insurance and with original endorsements
affecting coverage required by this AGREEMENT. The certificates and endorsements for each
insurance policy are to be signed by a person authorized by that insurer to bind coverage on its
behalf.
Proof of insurance shall be either emailed in pdf format to:
or mailed to the following postal address or any subsequent address as may be directed in writing
by the City's Risk Manager:
Risk Manager
City of Petaluma
11 English Street
Petaluma, CA 94952
G. Subcontractors
Administrator shall include all subcontractors as insureds under its policies or shall obtain
separate certificates and endorsements for each subcontractor.
.•
Attachment 4
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PETALUMA, CALIFORNIA, APPROVING ASSOCIATE MEMBERSHIP
BY THE CITY IN THE CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY; AUTHORIZING AND DIRECTING THE EXECUTION OF
AN ASSOCIATE MEMBERSHIP AGREEMENT RELATING TO
ASSOCIATE MEMBERSHIP OF THE CITY IN THE AUTHORITY;
AUTHORIZING THE CITY TO JOIN THE FIGTREE PACE PROGRAM;
AUTHORIZING THE CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY TO CONDUCT CONTRACTUAL ASSESSMENT
PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS WITHIN
THE TERRITORY OF THE CITY OF PETALUMA; AND
AUTHORIZING RELATED ACTIONS
WHEREAS, the City of Petaluma, 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
other 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 (the
"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 obligations of CEDA
will not be the debts, liabilities or obligations of the City or the other members of the Authority;
and
WHEREAS, the form of Associate, Membership Agreement (the "Associate Membership
Agreement ") between the City and CEDA is attached; and
01
WHEREAS, the City is willing to become an Associate Member of CEDA subject to the
provisions of the Associate Membership Agreement.
WHEREAS, CEDA has adopted the Figtree Property Assessed Clean Energy (PACE) and
Job Creation Program (the "Program" or " Figtree PACE "), to allow the financing of certain
renewable energy, energy efficiency, seismic retrofits, electric vehicle charging infrastructure,
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 or other evidences of indebtedness (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 fre e 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 ( "Participating Parcel ")
within its jurisdiction ( "Participating Property Owners ") to participate in Figtree 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 to establish an
assessment district (the "District ") and issue Bonds under the 1915 Act to finance Improvements;
and
WHEREAS, there has been presented to this meeting a proposed form of Resolution of
Intention to be adopted by CEDA in connection with such assessment proceedings (the "ROY), a
copy of which is attached hereto as Exhibit A; and
WHEREAS, said ROI sets forth the territory within which assessments may be levied for
Figtree PACE which territory shall be coteiminous with the City's official boundaries of record
at the time of adoption of the ROI (the "Boundaries "); and
WHEREAS, pursuant to Chapter 29, the City authorizes CEDA to 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 Figtree PACE; and
WHEREAS, to protect the City in connection with operation of the Figtree PACE
program, Figtree Energy Financing, the program administrator, has agreed to defend and
indemnify the City; and
71
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,
the issuance, sale or administration of the bonds or other indebtedness issued in connection with
Figtree PACE.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Petaluma, hereby finds, determines and, declares as follows:
Section 1. The City Council hereby specifically finds and declares that the actions
authorized hereby constitute public affairs of the City. The City Council further finds that the
statements, findings and determinations of the City set forth in the preambles above are true and
correct.
Section 2. The Associate Membership Agreement presented to this meeting and on file
with the City Clerk is hereby approved. The Mayor of the City, the City Manager, the City Clerk
and other officials of the City are each hereby authorized and directed, for and on behalf of the
City, to execute and deliver the Associate Membership Agreement in substantially said form,
with such changes therein as such officer may require or approve, such approval to be
conclusively evidenced by the execution and delivery thereof.
Section 3. The officers and officials of the City are hereby authorized and directed,
jointly and severally, to do any and all things and to execute and deliver any and all documents
which they may deem necessary or advisable in order to consummate, carry out, give effect to
and comply with the terms and intent of this resolution and the Associate Membership
Agreement. All such actions heretofore taken by such officers and officials are hereby
confirmed, ratified and approved.
Section 4. Good Standing. The City is a municipal corporation and in good standing.
Section 5. Public Benefits. On the date hereof, the City Council hereby finds and
determines that the Program and issuance of Bonds by CEDA in connection with Figtree PACE
will provide significant public benefits, including without limitation, savings in effective interest
rates, 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 6. Appointment of CEDA. The City hereby appoints CEDA as its
representative to (i) record the assessment against the Participating Parcels, (ii) administer the
District in accordance with the Improvement Act of 1915 (Chapter 29 Part 1 of Division 10 of
the California Streets and Highways Code (commencing with Section 8500 et seq.) (the "Law "),
72
prepare program guidelines for the operations of the Program and (iv) proceed with any
claims, proceedings or legal actions as shall be necessary to collect past due assessments on the
properties within the District in accordance with the Law and Section 6509.6 of the California
Government Code. The City is not and will not be deemed to be an agent of Figtree or CEDA as
a result of this Resolution.
Section 7. Assessment Proceedings. In connection with Figtree PACE, the City hereby
consents to the special assessment proceedings by CEDA pursuant to Chapter 29 on any property
within the Boundaries and the issuance of Bonds under the 1915 Act, 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, any required remedial action in the case of delinquencies in such
assessment payments, or the issuance, sale or administration of the Bonds in
connection with Figtree PACE.
Section 8. Program Report. The City Council hereby acknowledges that pursuant to the
requirements of Chapter 29, CEDA has prepared and will update from time to time the "Program
Report" for Figtree PACE (the "Program Report") and associated documents, and CEDA will
undertake assessment proceedings and the financing of Improvements as set forth in the Program
Report.
Section 9. Foreclosure. The City Council hereby acknowledges that the Law permits
foreclosure in the event that there is a default in the payment of assessments due on a property.
The City Council hereby designates CEDA as its representative to proceed with collection and
foreclosure of the liens on the defaulting properties within the District, including accelerated
foreclosure pursuant to the Program Report.
Section 10. Indemnification. The City Council acknowledges that Figtree has provided
the City with an indemnification agreement, as shown in Exhibit B, for negligence or
malfeasance of any type. as a result of the acts or omissions of Figtree, its officers, employees,
subcontractors and agents. The City Council hereby authorizes the appropriate officials and staff
of the City to execute and deliver the Indemnification Agreement to Figtree.
Section 11. City Contact Designation. The appropriate officials and staff of the City are
hereby authorized and directed to make applications for Figtree PACE available to all property
owners who wish to finance Improvements. Staff as designated by the City Manager from time
73
to time, are hereby designated as the contact persons for CEDA in connection with Figtree
PACE.
Section 12. CEQA. 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 13. Effective Date. 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 Figtree Energy Financing.
Section 14. Costs. Services related to the formation and administration of the assessment
district will be provided by CEDA at no cost to the City.
74
rr_�
RESOLUTION OF THE CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY DECLARING INTENTION TO FINANCE INSTALLATION OF
DISTRIBUTED GENERATION RENEWABLE ENERGY SOURCES, ENERGY
EFFICIENCY, SEISMIC RETROFITS, ELECTRIC VEHICLE CHARING
INFRASTRUCTURE, AND WATER EFFICIENCY IMPROVEMENTS IN THE
CITY OF PETALUMA
WHEREAS, the California Enterprise Development Authority ( "CEDA ") is a joint
powers authority authorized and existing pursuant to Joint Powers Act (Government Code
Section 6500 et seq.) and that certain Joint Exercise of Powers Agreement (the "Agreement ")
dated as of June 1, 2006, by and among the cities of Eureka, Lancaster and Selma; and
WHEREAS, CEDA is authorized under the Agreement and Chapter 5 of Division 7 of
Title 1 of the Government Code of the State of California and 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, seismic retrofits, electric vehicle charging infrastructure, and water
efficiency improvements that are permanently fixed to real property ( "Authorized
Improvements "); and
WHEREAS, CEDA has obtained authorization from the City of Petaluma (the "City ") to
enter into contractual assessments for the financing of the installation of Authorized
Improvements in the City; and
WHEREAS, CEDA desires to declare its intention to establish a Figtree PACE program
( "Figtree PACE ") in the City, pursuant to which CEDA, subject to certain conditions set forth
herein, would enter into contractual assessments to finance the installation of Authorized
Improvements in the City.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY, AS FOLLOWS:
Section 1. Findings. The Board of Directors hereby finds and determines the following:
(a) The above recitals are true and correct and are incorporated herein by this
reference.
75
(b) Energy and water conservation efforts, including the promotion of 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) 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.
(d) A public purpose will be served by establishing a contractual assessment program,
to be known as Figtree 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. The Board of Directors 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 County
pursuant to Chapter 29.
Section 3. Identification of Authorized Improvements. CEDA hereby declares its
intention 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 hereof (the "Report"), 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 including
unincorporated territory within City Boundaries. A property owner located within a City within
the City may enter into contractual assessments with CEDA only after such City has adopted a
resolution to authorize participation in the PACE Program.
Section 5. Proposed Financing Arrangements. Under Chapter 29, CEDA may issue
bonds, notes or other forms of indebtedness (the "Bonds ") 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
indebtedness 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 Figtree Energy
ffet
Financing (the "Program Administrator ") upon consultation with Figtree PACE Program
underwriters or other financial representatives, CEDA general counsel and bond counsel, and as
shall be approved by the Board of Directors of CEDA. In connection with indebtedness 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 the Board of Directors 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 the
Board of Directors to create a special reserve fund for the bonds under Part 16 of the
Improvement Bond Act of 1915. Neither CEDA, nor any of its members participating in the
Figtree PACE Program, shall advance available surplus funds 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 or any of its members from, in their
sole discretion, so advancing funds. The Bonds may be refunded under Division 11.5 of the
California Streets and Highways Code or other applicable laws permitting refunding, upon the
conditions specified by and upon determination of CEDA.
CEDA hereby authorizes the Program Administrator, upon consultation with CEDA
general counsel, bond counsel and the Figtree PACE underwriter, to commence preparation of
documents and take necessary steps to prepare for the issuance of bonds, notes or other forms of
indebtedness as authorized by Chapter 29.
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 CEDA Board (the "Board "), at 550 Bercut Drive, Suite G, Sacramento,
CA 95811, on , at A , for the purposes of allowing interested
persons to object to, or inquire about, the proposed Figtree PACE Program. 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 hereof shall be summarized,
and the Board shall afford all persons who are present an opportunity to comment upon, object
to, or present evidence with regard to the proposed Figtree PACE Program, the extent of the area
proposed to be included within the boundaries of the assessment district, the terms and
77
conditions of the draft assessment contract described in Section 8 hereof (the "Contract "), 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 publication of 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 Board hereby directs the Program Administrator to prepare the
Report and file said Report with the Board at or before the time of the public hearing described
in Section 6 hereof 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 hereof.
(b) A draft contractual assessment contract (the "Contract ") specifying the terms and
conditions of the agreement between CEDA and a property owner.
(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 the CEDA official authorized to enter into contractual
assessments on behalf of CEDA.
(3) A maximum aggregate dollar amount of contractual assessments.
(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 fund 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.
A report on the results of the discussions with the County Auditor- Controller described in
Section 10 hereof, concerning the additional fees, if any, that will be charged to CEDA for
inclusion of the proposed contractual assessments on the general property tax roll of the City,
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 City 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 discussions 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 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. Effective Date. This resolution shall take effect immediately upon its
adoption.
PASSED AND ADOPTED this day of , 201_.
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
By:
Gurbax Sahota, Chair
79
EXHIBIT B
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF PETALUMA
AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the "Agreement ") is entered into by and between the City of
Corning, a municipal corporation or political subdivision, duly organized and existing under the
laws of the State of California (the "City ") and Figtree Company, Inc., a California corporation,
the administrator of the Figtree Property Assessed Clean Energy and Job Creation Program (the
"Administrator "), which is a program of the California Enterprise Development Authority, a
California joint exercise of powers authority (the "Authority ").
RECITALS
WHEREAS, the Authority is a joint exercise of powers authority whose members
include the City in addition to other cities and counties in the State of California; and
WHEREAS, the Authority established the Figtree Property Assessed Clean Energy and
Job Creation Program (the "Figtree PACE Program ") to allow the financing of certain
renewable energy, energy efficiency and water efficiency improvements that are permanently
affixed to real property through the levy of assessments voluntarily agreed to by the
participating property owners pursuant to Chapter 29 of Division 7 of the Streets and Highways
Code ( "Chapter 29 ") and the issuance of improvement bonds, or other forms of indebtedness,
under the Improvement Bond Act of 1915 upon the security of the unpaid assessments; and
WHEREAS, the Authority has conducted or will conduct proceedings required by
Chapter 29 with respect to the territory within the boundaries of the City; and
WHEREAS, the legislative body of the City adopted or will adopt a resolution
authorizing the City to join the Figtree PACE Program; and
WHEREAS, the City will not be- responsible for the formation, operation and
administration of the Figtree PACE Program as well as the sale and issuance of any bonds or
other forms of indebtedness in connection therewith, including the conducting of assessment
proceedings, the levy and collection of assessments and any remedial action in the case of such
assessment payments, and the offer, sale and administration of any bonds issued by the
Authority on behalf of the Figtree PACE Program; and
81
WHEREAS, the Administrator is the administrator of the Figtree PACE Program and
agrees to indemnify the City in connection with the operations of the Figtree PACE Program as
set forth herein;
NOW, THERFORE, in consideration of the above premises and of the City's agreement
to join the Figtree PACE Program, the parties agree as follows:
1 . Indemnification. Figtree has provided the CEDA with an indemnification for
negligence or malfeasance of any type as a result of the acts or omissions of Figtree, its officers,
employees, subcontractors and agents, arising from or related to the Figtree PACE Program, the
assessments, the assessment districts, the improvements or the financing and marketing thereof.
Figtree 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 actions, suits,
proceedings, claims, demands, losses, costs and expenses, including legal costs and attorneys'
fees, for injury or damage due to negligence or malfeasance of any type claims as a result of the
acts or omissions of Figtree, except for such loss or damage which was caused by the sole
negligence or willful misconduct of the City. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do not act
as limitation upon the amount of indemnification to be provided by Figtree.
2. Amendment/Interpretation of this Agreement. This Agreement represents the
entire understanding of the parties as to those matters contained herein. No prior oral or written
understanding shall be of any force or effect with respect to those matters covered hereunder.
No supplement, modification or amendment of this Agreement shall be binding unless executed
in writing by both of the parties hereto. This Agreement shall not be interpreted for or against
any party by reason of the fact that such party may have drafted this Agreement or any of its
provisions.
3. Section Headings. Section headings in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose.
4. Waiver. No waiver of any of the provisions of this Agreement shall be binding
unless in the form of writing signed by the party against whom enforcement is sought, and no
such waiver shall operate as a waiver of any other provisions hereof (whether or not similar),
nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no
failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a
waiver thereof.
5. Severability and Governing Law. If any provision or portion thereof of this
Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise
unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted
by law. This Agreement shall be governed by and construed and enforced in accordance with
82
the laws of the State of California applicable to contracts made and to be performed in
California.
6. Notices. All notices, demands and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given if delivered by
hand, against receipt, or mailed certified or registered mail and addressed as follows:
If to the Administrator Figtree Company, Inc.
9330 Scranton Road, Suite 600
San Diego, California 92121
Attn: Chief Executive Officer
If to the City: City of Petaluma
11 English Street
Petaluma, CA 94952
Attn: City Manager
7. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, which together shall constitute the same
instrument.
8. Effective Date. This Agreement will be effective as of the date of the signature of
City's representative as indicated below in the signature block.
83
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date below.
APPROVED AS TO FORM:
City Attorney
City of Petaluma
By
Name:
Title:
Date:
Figtree Company, Inc., a California corp.
By
Name: Peter Grabell
Title: Senior Vice President
Date:
EXHIBIT C
ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and the
CITY OF PETALUMA, CALIFORNIA
THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership Agreement "),
dated as of by and between CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY (the "Authority ") and the CITY OF PETALUMA,
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;
85
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:
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 hereby agrees to be subject to and
bound by all actions previously taken by the Members and the Board of Directors of the
Authority to the same extent as the Members of the Authority are subject to and bound by such
actions.
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 5. 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.
:•
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 Sahota, Chair
Board of Directors
Attest:
Helen Schaubmayer, Asst. Secretary
CITY OF PETALUMA, CALIFORNIA
Bv:
Mayor City Council
Attest:
City Clerk
Petaluma SCEIP Activity - Measure Breakdown
Type
# of Projects
Fund Amount
Solar PV
104
$ 4,200,445.16
Windows
53
$ 452,047.73
Cool Roof
15
$ 230,349.10
Furnace
19
$ 149,830.45
Glass Door
20
$ 73,373.00
HVAC
2
$ 72,328.00
Attic Insulation
18
$ 60,219.00
Duct Seal
11
$ 41,586.00
Wall Insulation
6
$ 33,857.00
Heat Pump
2
$ 28,469.00
Other
6
$ 28,453.00
Instant Hot Water
6
$ 23,910.40
Solar Hot Water
2
$ 20,230.00
Insulation, Reflective /Radiant Barriers
5
$ 19,677.00
Lighting
2
$ 18,635.00
Solar Tube /Skylight
5
$ 15,001.00
Floor Insulation
8
$ 13,959.00
Whole Bldg Sealing
8
$ 13,853.00
Ventilation
9
$ 11,970.00
Solid Doors
2
$ 11,000.00
Hot Water Recirculation
1
$ 9,115.00
Solar Theramal Pool
2
$ 7,287.00
Closed Crawl Space
3
$ 6,050.00
Heat Pump Water Heater
1
$ 4,960.00
AC
1
$ 3,800.00
Pool Pumps
1
$ 3,500.00
Natural Gas Domestic Hot Water
2
$ 2,850.00
Toilets
2
$ 2,608.00
Whole House Fan
1
$ 750.00
Hot Water Pipe Insulation
1
$ 441.00
Weather Stripping
1
$ 240.00
Total Projects
319
$ 5,560,793.84
ATTACHMENT 5
ATTACHMENT 6
Overall Sonoma County SCEIP Activity
WIN
M