Res 14-053RESOLUTION NO. 14 -053
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA,
CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN
THE INCORPORATED AREA OF THE CITY IN THE
SAN DIEGO COUNTY PROPERTY ASSESSED CLEAN ENERGY
PROGRAM TO FINANCE DISTRIBUTED GENERATION RENEWABLE
ENERGY SOURCES AND ENERGY AND WATER EFFICIENCY
IMPROVEMENTS, APPROVING THE REPORT SETTING FORTH THE
PARAMETERS OF THE REFERENCED PROGRAM AND CERTAIN
MATTERS IN CONNECTION THEREWITH
WHEREAS, the California Enterprise Development Authority ( "CEDA ") is a joint
exercise of powers authority, comprised of cities and counties in the State of California,
including the City Poway (the "City "); and
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 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 free and willing consent of the owner of each lot or parcel on
which an assessment is levied at the time the assessment is levied; and
WHEREAS, the Board of Supervisors (the "Board of Supervisors ") of the County
of San Diego, a political subdivision of the State of California (the "County "), has
adopted Figtree PACE pursuant to the Act; and
WHEREAS, the parameters of Figtree PACE are set forth in the Program Report
and such Report has been prepared pursuant to Section 5898.22 of the Act and
approved by the CEDA Board of Directors; and
WHEREAS, the City Council (the "City Council ") of the City of Poway (the "City),
through its authorized representatives, has reviewed the Report;
WHEREAS, the Act authorizes CEDA to enter into contractual assessments with
property owners located within incorporated cities in the County of San Diego upon the
approval of the legislative body of the related City to participate in Figtree PACE; and
WHEREAS, Senate Bill 96 (2013) amended Public Resources Code section
26060 in order to implement a PACE risk mitigation program for PACE loans to be
Resolution No. 14 -053
Page 2
administered by the California Alternative Energy and Advanced Transportation
Financing Authority; and
WHEREAS, in light of this new development and growing public interest, the City
is interested in offering residential PACE options to eligible participants within the City
limits contingent on the Figtree PACE Program meeting certain programmatic
requirements; and
WHEREAS, pursuant to Chapter 29, the City authorizes CEDA to 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, although no liabilities to the City exist, to protect the City in
connection with operation of the Figtree PACE against any alleged liabilities, Figtree
Energy Financing, the program administrator, has agreed to defend and indemnify the
City; and
WHEREAS, the City may repeal this Resolution, withdraw its membership in
CEDA, and terminate its participation in the Figtree PACE Program, upon written notice
to CEDA, should it be determined at any time that it no longer desires to continue in the
Figtree PACE Program; and
WHEREAS, the City will not be responsible for 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 by the City Council of the City of Poway
as follows:
Section 1: Good Standing. The City is either a municipal corporation or other
public body and a member of CEDA in good standing.
Section 2: Resolution of Intention. The City Council ratifies the resolution
adopted by the CEDA Board of Directors on September 12, 2013 declaring the Board's
intention to order the implementation of a contractual assessment program to finance
Improvements pursuant to the Act.
Section 3: Boundaries. The City Council hereby approves the inclusion in
Figtree PACE all of the properties in the incorporated area within the City, as same may
be amended through annexation from time to time, the acquisition, construction and
installation within City limits of the energy and water efficiency measures set forth in the
Report upon the request and agreement of the affected property owner, and the
assumption of jurisdiction thereof by CEDA for the aforesaid purposes. The adoption of
• this Resolution by this City Council constitutes the approval by the City to participate in
Figtree PACE. This City Council further authorizes CEDA to set the terms of, and
implement, Figtree PACE and take each and every action necessary or desirable for
Resolution No. 14 -053
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financing the Improvements, including the levying, collecting and enforcement of the
contractual assessments to finance the Improvements and the issuance of bonds, notes
or other forms of indebtedness secured by such contractual assessments as authorized
by Chapter 29.
Section 4: 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 "), (iii) 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 5: 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 6: 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 7: Indemnification. Although no liabilities exist for the City, the City
Council acknowledges that Figtree has provided the City with an indemnification
agreement, as shown in Exhibit A, in case of allegations of liabilities or allegations of
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 8: Repeal. The City may repeal this Resolution, withdraw from its
membership in CEDA, and terminate its participation in the Figtree PACE Program,
upon written notice to the Council, should it be determined at any time that it no longer
desires to continue as a member of CEDA.
Section 9: 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)).
Resolution No. 14 -053
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Section 10: 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 11: Costs. Services related to the formation and administration of the
assessment district will be provided by CEDA at no cost to the City.
Section 12: Program Requirements. The City's participation in the Figtree
PACE program is subject to the condition that the Figtree PACE Program has, or will
(within 180 days following City's effective date as an Associate Member), meets the
following requirements:
a. The Figtree PACE Program is enrolled in the state PACE Loss
Reserve Program:
b. The Figtree PACE Program will implement policies that requires that it
will provide full and understandable disclosures to program applicants,
including but not limited to the disclosure that participation in the PACE
program may trigger acceleration of existing obligations of an existing
mortgage and that the participant may be required to prepay the
contractual assessments and all associated fees and penalties upon
the refinancing or sale of the property.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway
at a regular meeting this 2nd day of September, 2014.
�R
ATTEST:
Shei a R. Cobian, CMC, City Clerk
Resolution No. 14 -053
Page 5
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )
I, Sheila R. Cobian, CIVIC, City Clerk, of the City of Poway, do hereby certify
under penalty of perjury that the foregoing Resolution No. 14 -053 was duly adopted by
the City Council at a meeting of said City Council held on the 2nd day of September,
2014, and that it was so adopted by the following vote:
AYES: CUNNINGHAM, VAUS, MULLIN, GROSCH, HIGGINSON
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
� _aa
Sheila . Cobian, CIVIC, City Clerk
City of Poway
ATTACHMENTS:
Exhibit A: Indemnification Agreement
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EXHIBIT A
Indemnification Agreement
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF POWAY AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the "Agreement ") is entered into by and between the
City of Poway, a municipal corporation or political subdivision, duly organized and existing
under the laws of the State of California (the "Public Entity ") 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 Public Entity 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 Public Entity; and
WHEREAS, the legislative body of the Public Entity adopted or will adopt a
resolution authorizing the Public Entity to join the Figtree PACE Program; and
WHEREAS, the Public Entity 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
WHEREAS, the Administrator is the administrator of the Figtree PACE Program and
agrees to indemnify the Public Entity in connection with the operations of the Figtree
PACE Program as set forth herein;
Resolution No. 14 -053
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NOW, THEREFORE, in consideration of the above premises and of the Public
Entity'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. Although no
liabilities exist for the Public Entity, in case of alleged liabilities, Figtree agrees to
defend, indemnify and hold harmless the Public Entity, 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 Public Entity. 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) Amend ment/I nterr) retation 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 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
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Resolution No. 14 -053
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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.
99.15 Mira Mesa Blvd., Suite 130
San Diego, California 92131
Attn: Chief Executive Officer
If to the Public Entity: City of Poway
P.O. Box 789
Poway, CA 92074 -0789
Attn: Director of Public Works
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 Public Entity's representative as indicated below in the signature block.
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date
below.
APPROVED AS TO FORM: Public Entit N
� � '
"dAtA By
Morg n L. ley, Cit Attorney
Daniel. Singer, City Manager
Date: 2 — —
Figtr a Company, Inc., a alifornia Corp.
B
Y
Mahesh Shah
Date: 21 lul-14
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