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ORD 42419 - Interlocal Agmt with City of Papillion for administration of Papillion's PACE program IL �. ORDINANCE NO. Iq AN ORDINANCE to approve an Interlocal Agreement between the City of Omaha and the City of Papillion, Nebraska, for more than one year, for the City of Omaha, on behalf of the Eastern Nebraska Clean Energy Assessment District, to administer portions and undertake certain duties of the City of Papillion Clean Energy Assessment District and Papillion's PACE program; and to provide for the effective date hereof. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA: Section 1. That, in accordance with the provisions of the Interlocal Agreement attached hereto and made a part hereof by reference, and the Interlocal Cooperation Act, the City of Omaha, on behalf of the Eastern Nebraska Clean Energy Assessment District, and the City of Papillion desire to approve the administration of portions and undertake certain duties of the City of Papillion Clean Energy Assessment District and Papillion's PACE program. Section 2. The Interlocal Agreement between the City of Omaha and the City of Papillion, Nebraska, for a term of more than one year, is hereby approved. Section 3. That this Ordinance, not being of legislative character, shall be in full force and effect upon its passage. ORDINANCE NO. 1 21±1 Page 2 INTRODUCED BY COUNCILMEMBER atii;42441 c?2,,vt4-7. 4" APPROVED BY: j-lam-17 1- ZUZ PASSED JAN 2 6 20211 O MAYOR OF THE CITY OF OMAHA DATE ATTEST: 1- OZ.� CITY CLERK OF E CITY OF OMAHA DATE APPROVED AS TO FORM: /2 /L vt v ASSI ANT CI 1' ORNEY DA E fi INTERLOCAL COOPERATION AGREEMENT THIS INTERLOCAL COOPERATION AGREEMENT ("Agreement") is made and entered into on the last date below written, by and between the City of Omaha, a municipal corporation and a city of the metropolitan class("Omaha"), and the City of Papillion, a municipal corporation and a city of the first class("Papillion"). WITNESSETH: WHEREAS, the Nebraska Legislature passed the Property Assessed Clean Energy Act during the 2017 legislative session to encourage energy efficiency and use of renewable energy for the preservation of the health and economic well-being of Nebraska citizens, along with amendments in 2019 LB 23 (collectively referred to as the "PACE Act" and found at Neb. Rev. Stat. §§ 13-3201 et seq.); and WHEREAS,pursuant to the PACE Act,the City Council of Omaha passed Ordinance No. 41152 on May 16, 2017, to implement the provisions of the PACE Act to create the Eastern Nebraska Clean Energy Assessment District("ENCEAD"); and WHEREAS, Papillion seeks to take advantage of the PACE Act to fund eligible projects as authorized under the PACE Act; and WHEREAS, the establishment of a PACE program requires a city to create a clean energy assessment district, and to create and implement administrative procedures to operate the program in compliance with the PACE Act; and WHEREAS, Papillion has by City Council ordinance created the City of Papillion Clean Energy Assessment District("District"); and 1 WHEREAS, Papillion wishes to retain the services of Omaha to administer portions of Papillion's PACE program, and Omaha wishes to provide such services, as set forth in this Agreement; and WHEREAS, the Parties are authorized by the statutes of the State of Nebraska, including the Interlocal Cooperation Act,Neb. Rev. Stat. § 13-801 et. seq. as amended, and the PACE Act, to enter into cooperative agreements for the mutual benefit of the Parties and to provide services in a manner that will accord best with geographic, economic, population, and other factors influencing the needs and development of local communities; and WHEREAS, Papillion and Omaha now desire to enter into this Agreement, the purposes of which are to authorize Omaha to work with Papillion to administer Papillion's District and PACE program finance eligible projects under PACE, as provided in this Agreement. ft NOW, THEREFORE, in consideration of the foregoing and the mutual promises and agreements hereinafter, it is agreed by and among the Parties as follows: I. Purpose,Rights and Duties of the Parties The purpose of this Agreement is to provide for Omaha to administer Papillion's District and PACE program. The Parties agree that their respective duties to implement the Papillion District and PACE program shall be as follows: A. The Parties shall use a written Program Guide, setting out procedures for processing PACE applications in the District. The Program Guide shall either be Omaha's program guide, or a program guide developed specifically for Papillion. 2 B. Papillion shall receive initial PACE applications. Papillion shall require that all applications and proposals under PACE be compliant with the PACE Act,all relevant or applicable building codes, the Program Guide and District fee schedule. Papillion shall require all applications to include the information required by Papillion Municipal Code section 92-24-E, which is incorporated herein by this reference. Papillion shall forward the application to Omaha, and assist Omaha in the review of all applications submitted as needed. C. Omaha shall administer the application review and approval process for PACE applications in the District,to include the review of applications, approval of documentation and all other such administrative services necessary to facilitate clean energy or renewable energy projects under the PACE Act. Omaha shall provide a recommendation to Papillion regarding the application. D. If Papillion wishes to approve the PACE project, Papillion shall enter into an assessment contract with the owner(s)of an approved PACE project and any third party lender,as provided by the PACE Act and Papillion Municipal Code 92-24. E. Omaha shall provide oversight and administrative services for approved energy projects receiving financing under the PACE Act, the Program Guide documents and Papillion fee schedule. F. Papillion shall provide notice to the Sarpy County Treasurer, as necessary or appropriate, of any assessments required for projects approved by Papillion. Papillion shall cause any associated financing contract to be recorded in the Sarpy County Register of Deeds,as required by the PACE Act and Omaha and Papillion ordinances, with a copy being sent to the Sarpy County Assessor's office. 3 G. Papillion shall provide certification to Omaha upon completion of the PACE project that the energy efficiency improvement or renewable energy system was properly installed and is operating as intended. II. Duration and Termination This Agreement shall become effective and binding upon its execution by all Parties, and the duration of this Agreement shall be an initial term of ten years from the date of execution. This Agreement may be renewed for five years for three consecutive periods thereafter, if the Parties so agree in writing. The Parties shall confer four months prior to the end of the initial term and respective renewals thereafter to discuss any amendments necessary to the terms and conditions herein. III. Payments and Fees The Parties shall not be liable or responsible for any payments or costs associated with the provision of services under this Agreement. Papillion shall charge and collect from PACE applicants and property owners the following fees, half of which shall be forwarded to Omaha as compensation for its services under this Agreement: A. Application Fee. Papillion shall charge a PACE applicant a$1,000 application fee at the time of application. This fee is not refundable. B. Administration Fee. An administrative fee of 1% of the total project cost or the loan amount, whichever is less, not to exceed$40,000, is due upon approval of the PACE 4 project. The administrative fee shall be subject to a 50%reduction for a project that is also responsible for tax increment financing (TIF)fees. The TIF reduction to the administration fee is calculated before the cap is considered. For example: an administrative fee of$54,000 is reduced to $27,000 before considering the administrative cap of$40,000. C. Annual fee. An annual administrative fee of$500 will also be collected. D. Amendment. Upon written consent of Omaha's Planning Director, Papillion may amend the above fee schedule as needed to compensate the parties for their respective costs in administering the PACE program under this Agreement. IV. Miscellaneous Provisions A. Incorporation of Recitals. The recitals set forth above are, by this reference, incorporated into and deemed part of this Agreement. B. Termination of Agreement.This Agreement shall not be terminated except 1) by written agreement between the Parties or 2)by either Party,upon provision of written notice to the other Party at least 60 days in advance of the intended termination date. In the event of such early termination during the initial term or a renewal term, notwithstanding such termination, the Parties shall complete their respective duties with respect to pending PACE projects. 5 tt� C. Agreement Binding. The provisions of this Agreement, and all exhibits and documents attached or referenced herein, shall be binding upon, and shall inure to the benefit of,the Parties,their respective representatives, successors,and assigns. D. Non-Discrimination. In the performance of this Agreement, the Parties, their agents, contractors, subcontractors, and consultants shall not discriminate, or permit discrimination,against any person on account of disability,race, color, sex, age,political or religious opinions or affiliations,or national origin in violation of any applicable laws, rules,or regulations of any governmental entity or agency with jurisdiction over any such matter. E. Governing Law.The Parties to this Agreement shall conform to all existing and applicable ordinances, resolutions, state and federal laws, and all existing and applicable rules and regulations.Any dispute arising from this contractual relationship shall be governed solely and exclusively by Nebraska law except to the extent such provisions may be superseded by applicable federal law, in which case the latter shall apply. F. No Continuing Waivers. A waiver by any Party of any default, breach, or failure of another shall not be construed as a continuing waiver of the same or of any subsequent or different default,breach,or failure. G. Indemnity.Each Party shall defend,indemnify,and hold the other Party and its respective employees, agents, and assigns harmless from and against any and all claims, suits, demands, penalties, court costs, attorneys' fees, other litigation costs, demands, penalties, judgments, actions, losses, damages, or injuries of any nature whatsoever, whether compensatory or punitive, or expenses arising therefrom, either at law or in 6 equity, resulting or arising from or out of or otherwise occurring in relation to any negligence,intentional acts, lack of performance,or subdivision layout and design by the Indemnifying Party's employees, agents, contractors, subcontractors, or other representatives in relation to this Agreement,except to the extent such injury is caused by the gross negligence or intentional acts of the Indemnified Party. Other litigation costs, as referenced herein, shall include reasonable attorneys' fees, consultants' fees, and expert witness fees. H. Assignment. Neither this Agreement nor any obligations hereunder shall be assigned without the express written consent of the other Party. I. Entire Agreement. This Agreement and all exhibits and documents attached hereto or referenced herein, which are hereby incorporated and specifically made a part of this Agreement by this reference, express the entire understanding and all agreements of the Parties. Specifically, this Agreement supersedes any prior written or oral agreement or understanding between or among any of the Parties,whether individually or collectively, concerning the subject matter hereof. J. Modification by Agreement. This Agreement may be modified or amended only by a written agreement executed by all Parties. K. Notices, Consents, and Approval. Unless expressly stated otherwise herein,all payments, notices, statements, demands, requests, consents, approvals, authorizations, or other submissions required to be made by the Parties shall be in writing,whether or not so stated, and shall be deemed sufficient and served upon the other if sent by United States regular mail,postage prepaid and addressed as follows: 7 kk (1) For Papillion: City of Papillion Attn: City Administrator 122 East Third Street Papillion,NE 68046 (2) For Omaha: City of Omaha Attn: Planning Director 1819 Farnam Street, Suite 1100 Omaha,NE 68083 Such addresses may be changed from time to time by written notice to all other Parties. L. Headings.The section headings appearing in this Agreement are inserted only as a matter of convenience, and in no way define or limit the scope of any section. M. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one executed instrument. N. Severability. In the event that any provision of this Agreement proves to be invalid,void, or illegal by a court of competent jurisdiction,such decision shall in no way affect,impair, or invalidate any other provisions of this Agreement, and such other provisions shall remain in full force and effect as if the invalid,void, or illegal provision was never part of this Agreement. O. Interlocal Cooperation Act Provisions. This Agreement does not create any separate legal or administrative entity. To the extent this Agreement requires administration other than as set forth herein, it shall be administered by the undersigned representatives of the Parties, acting as a joint board. 8 This Agreement does not authorize the levying or collecting of any tax. Each Party shall be responsible for establishing and maintaining its own budget, for financing its own duties, and for acquiring, holding and disposing of its own property, except as specifically provided by this Agreement. No real or personal property shall be acquired jointly by the Parties to perform the conditions of this Agreement unless such acquisition is specifically agreed to in writing by all Parties, which writing shall specify the method for disposing of such F joint property upon partial or complete termination. To the extent that a Party acquires, holds, or disposes of any real or personal property for use in the joint or cooperative undertaking contemplated by this Agreement, it shall do so in the same manner that it deals with other property of such Party. P. New Employee Verification. Each Party is required and hereby agrees to use a federal immigration verification system to determine the work eligibility status of new employees physically performing service within the State of Nebraska. A federal immigration verification system means the electronic verification of the work authorization program authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1324a, known as the E-Verify Program, or an equivalent federal program designated by the United States Department of Homeland Security or other federal agency authorized to verify the work eligibility status of a newly hired employee. For any contract between a Party and a Contractor in furtherance of this Agreement, if the Contractor is an individual or sole proprietorship, the following applies: 1. The 9 Contractor must complete the United States Citizenship Attestation Form, available on the Department of Administrative Services website at www.das.state.ne.us 2. If the Contractor indicates on such attestation form that he or she is a qualified alien, the Contractor agrees to provide the US Citizenship and Immigration Services documentation required to verify the Contractor's lawful presence in the United States using the Systematic Alien Verification for Entitlements(SAVE)Program. 3. The Contractor understands and agrees that lawful presence in the United States is required and the Contractor may be disqualified or the contract terminated if such lawful presence cannot be verified as required by Neb. Rev. Stat. §4-108. (Signatures on following pages.) 10 CITY OF PAPILLION, A Municipal Corporation Date: l/-17-jojo By: David P. ack, Mayor Attest: AL(Lt2) Nicole L. Brown, City Clerk SEAL Q ,PILLIpJy`% <c �RATE�'' • f � a? // ,+ 9 \./ `• �� � ••MAY Q y � c 11 CITY OF OMAHA, A Municipal Corporation Date: s �:�, � Z�s '76571 Jean Stothert, Mayor Attest: Elizabeth Butler, City erk SEAL APPROVED AS TO FORM: C-1 S. I City Attorney 12