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HomeMy WebLinkAboutFinal Approval of a Guaranteed Energy Savings Contract Relating to Century CenterORDINANCE No. 10357 -15 Passed by the Common Council of the City of South Bend, Indiana Attest: JOHN VOORDE April 13, 20 15 Presented by me to the Mayor of the City of South Bend, Indiana April 14, 20 15 City Clerk President of Common Council JOHN VOORDE Approved and signed by me )Qkl /cJ � 1 H 20 _ City Clerk Ma Substitute Bill No. 17 -15 ORDINANCE NO. (0351-( S AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, CONFIRMING COMPLIANCE WITH IC 36- 1 -12 -1 ET. SEQ, AND RENDERING FINAL APPROVAL OF A GUARANTEED ENERGY SAVINGS CONTRACT RELATING TO CENTURY CENTER, APPROPRIATING MONIES FROM CENTURY CENTER CAPITAL IMPROVEMENT FUND ( #671), ESTABLISHING A NEW FUND (NO. 672) TO BE KNOWN AS THE CENTURY CENTER ENERGY CONSERVATION DEBT SERVICE FUND, AND TAKING ALL OTHER ACTION IN CONNECTION THEREWITH :�IJG311133 IJa 911Iy as]_RZ10 W.AI III leg I B1►Y_I The City of South Bend, Indiana (the "City ") is a political subdivision of the State of Indiana, and is authorized and empowered to adopt this Ordinance and to carry out its provisions. Pursuant to Ind. Code 36 -1 -12.5 the City received a proposal from Ameresco, Inc. (the "Qualified Provider ") to undertake certain energy conservation measures at the City's Century Center convention facility, including, but not limited to, (a) updated lighting, (b) replacement and/or renovation of the heat and air conditioning equipment, (c) replacement of the roof for the facility, (d) improved lighting and HVAC control systems, and (e) any projects related to any of the foregoing projects (clauses (a) through and including (e) collectively, the "Conservation Measure Projects "), which Conservation Measure Projects shall be undertaken by the Qualified Provider in accordance with the terms of an Energy Services Agreement by and between the City and the Qualified Provider (the "Qualified Provider Agreement "). Such Qualified Provider Agreement constitutes a "Guaranteed Savings Contract" as defined by IC 36 -1- 12.5 -2. On August 11, 2014 this Council approved a Project Development Agreement which was Exhibit A to Resolution No. 4382 -14. With that approval, the Qualified Provider completed the first step of a Guaranteed Savings Contract, "to evaluate and recommend to the governing body conservation measures" (IC 36 -1- 12.5 -5 -2), and it identified the above - listed Conservation Measure Projects with detailed cost estimates for all work to be performed and including the amounts by which energy and operating costs will be reduced, pursuant to IC 36 -1- 12.5 -6. This Qualified Provider Agreement will implement the Qualified Provider's recommended Conservation Measure Projects, the second step of a Guaranteed Savings Contract under Indiana Code 36 -1- 12.5 -2. The City's Department of Law has negotiated with the Qualified Provider and agreed upon this final version of the Qualified Provider Agreement which includes a "Savings Guarantee" with "Measurement and Verification Plan," all as prescribed by Council Resolution #4382 -14 which have been incorporated as Attachments C and G respectively into the Qualified Provider Agreement, Exhibit 1 hereto. This version was ratified by the City's Board of Public Works (the "Board of Public Works ") in Resolution No. 08 -2015 at a public meeting held February 24, 2015. The final Qualified Provider Agreement is attached hereto as Exhibit 1, and the Board of Works Resolution approving it is attached hereto as Exhibit 2. The City's Department of Law believes Exhibit 1 hereto to be consistent with and in conformity with the legal requirements of IC 36 -1 -12.5. The City also intends, to the extent permitted by law and to the extent determined necessary by the City signatories, to enter into a separate, specifically designated Guaranteed Savings Contract in accordance with Indiana Code 36 -1 -12.5, as amended, by and between the City and the Qualified Provider, for the Conservation Measure Projects (the "GS Contract ".) In accordance with Indiana Code 36 -1- 12.5 -7, as amended, the City also intends to execute and deliver an Installment Payment Contract, Series 2015, which may bear tax- exempt or taxable interest rates based on negotiations with Banc of America Leasing & Capital, LLC or its affiliated entity (collectively, the "Lender "), and to the extent it bears taxable interest rates, will be issued as a direct pay qualified energy conservation bond under Sections 54A, 54D and 6431 of the Internal Revenue Code of 1986, as amended and in effect on the date of execution and delivery thereof (the "IP Contract "), in the aggregate principal amount not to exceed $4,250,000, the proceeds of which will be used to pay for a portion of the costs of (a) the installation of the Conservation Measure Projects, (b) the interest, if any, paid on the IP Contract as determined by the Board of Public Works at the time of execution and delivery of the IP Contract, and (c) executing and delivering the IP Contract and the costs associated therewith (clauses (a) through and including (c), collectively, the "2015 GSC Expenditures "). In connection with the IP Contract, the City intends to enter into a direct purchase agreement with the Lender (the "Direct Purchase Agreement "), setting forth the commitment of the parties to enter into the IP Contract and the conditions and requirements in connection therewith. The City will deposit the proceeds of the IP Contract into one or more escrow accounts established under an escrow agreement (the "Escrow and Account Control Agreement "), by and among the City, the Qualified Provider, the Lender and Bank of America, N.A., as escrow agent (the "Escrow Agent "), and will be disbursed to pay a portion of the 2015 GSC Expenditures in the manner set forth in the Escrow and Account Agreement. The remaining portion of the cost of the 2015 GSC Expenditures shall be paid through an additional appropriation from the City's Fund No. 671- Century Center Capital Improvement Fund (the "Century Center Capital Improvement Fund ") in the amount of $242,000 and from a payment of $558,000 from the St. Joseph County Hotel -Motel Tax Board of Managers from funds held in the St. Joseph County Hotel -Motel Tax Fund as maintained by St. Joseph County, Indiana. The City also desires to establish a new fund of the City for the payment of amounts owing under the IP Contract to be designated Fund No. 672 - Century Center Energy Conservation Debt Service Fund (the "Century Center Energy Conservation Debt Service Fund "), and to establish an Installment Payment Account (the "IP Account") and a Reserve Account (the "Reserve Account ") 2 within such Century Center Energy Conservation Debt Service Fund, such Reserve Account to be funded by $50,000.00 from and out of the $242,000 appropriated from the Century Center Capital Improvement Fund, to be utilized as a reserve for the purposes set forth in Section 6 of this Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AS FOLLOWS: SECTION 1. Incorporation of Recitals. The recitals contained in this Ordinance are true and correct and are incorporated in this Ordinance by reference. SECTION 2. Findings /Public Benefits of Conservation Measure Proiects. The Conservation Measure Projects will provide energy and operational savings to the City that will be of benefit to the general health and welfare of the citizens of the City. Furthermore, the Qualified Provider's written "Savings Guarantee" which is Attachment C to Exhibit 1 hereto assures that the energy conservation measures to be taken by the Qualified Provider will result in energy consumption savings and other reduced operating costs and that the Qualified Provider will reimburse the City for the difference between the guaranteed savings that are not stipulated savings and the actual savings achieved by the energy conservation measures, pursuant to IC 36-1-12.5 - 5(a)(3) and (d)(3). SECTION 3. Payment of IP Contract. A portion of the Conservation Measure Projects will be funded from the IP Contract, which will provide for semi - annual payments from money on deposit in the Century Center Energy Conservation Debt Service Fund. SECTION 4. Approval of Agreements. The Qualified Provider Agreement, GS Contract, IP Contract, Direct Purchase Agreement and Escrow and Account Control Agreement, each substantially in the form and substance submitted to this meeting, copies of which are on file with the City Clerk (the "Clerk "), be, and hereby are, approved. The Mayor of the City (the "Executive "), the Clerk, and the Controller of the City (the "Controller "), and each of them, and the members of the Board of Public Works are hereby authorized and directed to execute and deliver such documents without further approval of the Common Council (the "Council ") in substantially the forms herein approved, with such additions, deletions and modifications thereto as may be approved by such officer of the City or member of the Board of Public Works, the execution thereof being conclusive evidence of such approval and the approval of the Council; and the Clerk, or other authorized representative of the City, is hereby authorized and directed to affix the seal of the City to any such document, as applicable, and to attest the same. Two copies of the Qualified Provider Agreement, GS Contract, IP Contract and Escrow and Account Control Agreement, hereby incorporated into this Ordinance, were duly filed in the Office of the Clerk and are available for public inspection in accordance with Indiana Code 36- 1 -5 -4. SECTION 5. Additional Appropriations. In order to provide a portion of the financing for the Conservation Measure Projects that will not be paid for from the proceeds of the IP Contract, the Council hereby makes an additional appropriation in the amount of Two Hundred Forty Two Thousand Dollars ($242,000) from the Century Center Capital Improvement Fund (No. 671), from which the sum of Fifty Thousand Dollars ($50,000) shall be transferred in order to fund the Reserve Account as provided in Section 6 below. Said appropriations shall be in addition to all other appropriations provided in the existing budget and tax levy of the City. SECTION 6. Century Center Energy Conservation Debt Service Fund. The Council hereby establishes the Century Center Energy Conservation Debt Service Fund (No. 672) as a new Fund of the City, to be utilized for the payment of amounts due under the IP Contract. The Council hereby establishes within the Century Center Energy Conservation Debt Service Fund the IP Account and the Reserve Account. The City shall periodically set aside within the IP Account the amount of funds necessary to make the semi -annual payments due under the IP Contract. In addition, on the day of closing on the IP Contract, the City shall transfer the sum of Fifty Thousand Dollars ($50,000) from the Century Center Capital Improvement Fund (No. 671), pursuant to the appropriation referenced above, for deposit into the Century Center Energy Conservation Debt Service Fund (No. 672). All money in the Reserve Account shall be used and withdrawn by the City solely for the purpose of making deposits into the IP Account in the event of any deficiency at any time in such account, or for the purpose of paying the amounts owed under the IP Contract. The Council acknowledges that the IP Contract requires the payments thereunder to be payable, subject to annual appropriation, from money in the City's general fund (the "General Fund "); provided, however, that to the extent and for so long as the City makes the payments due under the IP Contract from the Century Center Energy Conservation Debt Service Fund, the City's obligations to make such payments from the General Fund shall be deemed to be satisfied pursuant to the terms of the IP Contract. SECTION 7. Other Action. The Executive, the Clerk, the Controller and all members of the Board of Public Works are hereby authorized and directed to execute and deliver, in the name and on behalf of the City, any and all additional documents and instruments necessary or proper and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by this Ordinance (including the recitals hereto and the documents mentioned herein). SECTION 8. Action Approved and Confirmed. All acts of the officers of the City and members of the Board of Public Works which are in conformity with the purpose and intent of this Ordinance and in the furtherance of the execution, delivery and performance of the documents and agreements authorized hereby are in all respects ratified, approved and confirmed. SECTION 9. Severability. If any provision of this Ordinance shall be held or deemed to be illegal, inoperative or unenforceable, the same shall not affect any other provision or cause any other provision to be invalid, inoperative or unenforceable to any extent whatsoever. SECTION 10. No Conflict. Any ordinances, resolutions or orders or parts thereof in conflict with this Ordinance are to the extent of such conflict hereby repealed. SECTION 11. Effective Date. This Ordinance shall be in full force and effect from and after its passage, approval by the Mayor, and compliance with Indiana law. El COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA I ; By: = Member of the Common Council Attest: City Clerk Presented by me to the Mayor of the City of South Bend, Indiana on the L day ^ of k WIIILA , 2015, at 1 k , 3'T- o'clock A,. m. Deputy Oty Clerk Approved and signed by me on the _J5 day of n 2015, at V o'clock -3.0.m. SBDS02 PFACCENDA 4577390 i st READING 5 V, T 4) S PUBLIC HEARING -�31�) �� 3 rd READING �{ -� 3-t y NOT APPROVED REFERRED PASSED \�1-I j' 0- Mayor, City of86uth nd, Indiana Filed In Clerk's; Office /?G; - 9 2015 JOHN !%OORDE CITYCLERK SOUTH BEND, IN 1200 COUNTY -CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601 -1830 CRISTAL C. BRISCO CORPORATION COUNSEL CITY OF SOUTH BEND PETE BU "YTIGIEG, MAYOR DEPARTMENT OF LAW April 9, 2015 Mr. Tim Scott President, South Bend Common Council 4H Floor, County -City Building South Bend, IN 46601 PHONE 574/235 -9241 FAX 574/235 -7670 TTY 574/235 -5567 ALADEAN M. DEROSE CITY ATTORNEY Re: Substitute Ordinance Approving Guaranteed Energy Conservation Contract and Related Financing -- Bill No. 17 -15 Dear President Scott: Attached is a substitute form of Bill No. 17 -15 which is an ordinance to approve a Qualified Provider Agreement and Energy Conservation Contract with related financing terms for improvements to Century Center. Most substantive changes to the Bill as originally filed are contained in the Statement of Purpose and Intent (Ordinance - pages 1 -2), and these changes clarify the nature of the Century Center guaranteed energy savings contractual process up to this date within the framework of Ind. Code 36 -1 -12.5. A slight, non- substantive change to Section 2 was made in the placement of Indiana Code sections. All other changes are primarily of a clerical nature. For your convenience, I am also attaching a copy of Substitute Bill No. 17 -15 in which the changes to the original Ordinance are specifically identified. Please note that Section 2 appears to be more changed than it actually was. All that occurred was a different placement of the Code sections. The City Administration will present this Substitute Bill No. 17 -15 on Monday, April 13, 2015 as indicated in the original cover letter. Filed its "'-9 9 2015 JOHM Y� 3it�� CITY CLERK, S #END, IN Sincerely, a I-- Aladean M. DeRose City Attorney and Legal Counsel to Century Center Board of Managers ELLIOT A. ANDERSON BENJAMIN J. DOUGHERTY TASHA REED OUTLAW MICHAEL J. SCHMIDT PAUL E. SINGLETON STEPHANIE STEELE