Loading...
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 Page 3 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 Page 4 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 Resolution No. 14 -053 Page 6 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 Page 7 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 2 Resolution No. 14 -053 Page 8 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 3