HomeMy WebLinkAbout04 - Property Assessed Clean Energy Financing Programs (PACE)CITY OF
F NEWPORT REACH
" City Council Staff Report
November 25, 2014
Agenda Item No. 4
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Kimberly Brandt, Community Development Director — (949) 644 -3226,
kbrandt@newportbeachca.gov
PREPARED BY: Seimone Jurjis, Chief Building Official
PHONE: (949) 644 -3282
TITLE: Adopt Resolutions and Agreements for Inclusion of Properties within the City's
Jurisdiction in the Figtree and CaliforniaFirst Property Assessed Clean Energy
(PACE) Financing Programs
ABSTRACT:
California Assembly Bill (AB) 811 (July 21, 2008) and AB 474 (January 1, 2010) authorize Property
Assessed Clean Energy (PACE) financing whereby legislative bodies may designate areas within their
jurisdiction which willing property owners may enter into voluntary contractual assessments for the purpose
of financing the installation of distributed generation renewable energy sources such as solar panels,
energy efficiency improvement, and /or water conservation improvements that are permanently affixed to
real property. The City of Newport Beach currently participates in the PACE HERO program. The City has
been invited to participate in two additional PACE financing programs: Figtree Pace Program and
CaliforniaFirst. By joining these two PACE programs, the City can offer PACE financing to property owners
without impacting the City's budget, and foster a competitive market place. The City will not incur any cost
or involvement and there are no administrative responsibilities, marketing obligations, or financial exposure
to the City.
RECOMMENDATION:
a) Adopt Resolution No. 2014 -94, A Resolution of the City Council of the City of Newport Beach
Authorizing the City of Newport Beach to Join the Figtree PACE Program, and Authorizing the California
Enterprise Development Authority to Conduct Contractual Assessment Proceedings and Levy Contractual
Assessments within the Territory of the City of Newport Beach;
b) Approve an Associate Membership Agreement by and Between the California Enterprise Development
Authority and the City of Newport Beach;
c) Adopt Resolution No. 2014 -95, A Resolution of the City Council of the City of Newport Beach
Authorizing the City to Join the CaliforniaFIRST Program, and Authorizing the California Statewide
Communities Development Authority to Accept Applications from Property Owners, Conduct Contractual
Assessment Proceedings and Levy Contractual Assessments within the Territory of the City of Newport
Beach; and q -t
d) Approve the Amended and Restated Joint Exercise of Powers Agreement Relating to the California
Statewide Communities Development Authority.
FUNDING REQUIREMENTS:
There is no fiscal impact to the City for this action.
DISCUSSION:
There are multiple Property Assessed Clean Energy (PACE) programs in California. The City adopted
the HERO program on July 9, 2013 as its first PACE program. As a PACE program, HERO allows
property owners in participating cities and counties to finance renewable energy and water efficiency
types of projects on their property. If a property owner chooses to participate, the installed improvements
will be financed by the issuance of bonds by the respective joint powers authority. The bonds are secured
by a voluntary contractual assessment levied on the owner's property, with no recourse to the City of
Newport Beach. Participation by property owners in a PACE program is 100% voluntary. Property
owners who wish to participate in the program agree to repay the amount borrowed through the voluntary
contractual assessment collected together with their property taxes. To date HERO has received 62
applications from residents in the City of Newport Beach with 17 applications approved for financing
$500,000 in energy conservation projects.
Representatives from two additional PACE programs, Figtree PACE Program ( Figtree) and CaliforniaFirst,
have invited the City of Newport Beach to join both their respective programs. If the City Council adopts
both recommended resolutions then the City will have three different PACE programs providing an
alternative funding source to residential and commercial property owners. Allowing three different PACE
programs to operate in the City fosters a competitive market place for the community.
FIGTREE PACE PROGRAM
Founded in 2011, the FIGTREE PACE Program is sponsored by California Enterprise Development
Authority (CEDA), a joint powers authority comprised of 115 different City and County agencies. While the
HERO Program primarily finances improvements to residential properties, the FIGTREE PACE Program
concentrates on commercial, industrial, retail, and multi - family properties. To date, FIGTREE has provided
$1.5 million in PACE financing to California businesses.
To participate in the Figtree Pace Program the City must become an Associate Member of the California
Enterprise Development Authority (CEDA). The California Enterprise Development Authority is a joint
powers authority with the goal to issue industrial bonds for small to medium -sized California
manufacturers.
CALIFORNIAFIRST PROGRAM
The CaliforniaFIRST Program has been established by California Communities to allow property owners in
participating cities and counties to finance renewable energy, energy efficiency and water efficiency
improvements. The improvements are financed by the issuance of bonds by California Communities which
levies "contractual assessments" on the owner's property to repay the portion of the bonds issued to
finance the improvements. California Communities has selected Renewable Funding LLC to provide
administration and financing for the program.
California Communities is a joint powers authority sponsored by the League of California Cities and the
California State Association of Counties. The member agencies of California Communities include 57
counties and more than 400 other local agencies throughout California, including the City of Newport
Beach. To participate in the CaliforniaFirst program the City must approve an amended joint powers
agreement to become a member of the California Statewide Communities Development Authority.
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SUMMARY
Both programs use private sector capital to provide property owners with funding for energy conservation
improvements. By joining these PACE Programs, the City can offer PACE financing to property owners
without impacting the City's budget. The City will not incur any cost or involvement and there are no
administrative responsibilities, marketing obligations, or financial exposure to the City. Joining an existing
program simply allows the program to do business in City of Newport Beach with voluntary property
owners.
ENVIRONMENTAL REVIEW:
This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060
(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in
physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at
which the City Council considers the item).
ATTACHMENTS:
Description
Attachment A - Resolution for Figtree
Attachment B - Associate Membership Agreement to Join the California Enterprise Development Authority (CEDA)
Attachment C - CaliforniaFirst Resolution
Attachment D - Amended and Restated Joint Powers Agreement Related to California Statewide Communities
Development Authority
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Attachment A
RESOLUTION NO. 2014 -
RESOLUTION AUTHORIZING THE CITY OF NEWPORT BEACH 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 NEWPORT BEACH
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 of Newport Beach (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 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 "ROI "), 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 coterminous with the City's official
boundaries of record at the time of adoption of the ROI (the "Boundaries "); and
rs.1
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
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 by the City Council of the City of Newport
Beach as follows:
SECTION 1:
A. The City is a municipal corporation in good standing.
B. 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.
C. The City Council 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
"Laud'), (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.
D. In connection with Figtree PACE, the City Council 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;
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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 of Newport Beach 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.
E. 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.
F. 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.
G. 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.
H. 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. The following staff persons, together with any other staff
designated by the City Manager from time to time, are hereby designated as the contact
persons for CEDA in connection with Figtree PACE: Seimone Jurjis, Chief Building
Official, (949) 644 -3282, sjurjis@newportbeachca.gov.
I. 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)).
J. Services related to the formation and administration of the assessment
district will be provided by CEDA at no cost to the City.
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IN
SECTION 2:
This Resolution shall take effect immediately upon its adoption by the City Council, and
the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 18th day of November, 2014
ATTEST:
Leilani I. Brown,
City Clerk
A
Rush N. Hill II,
Mayor
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EXHIBIT A
CEDA Resolution of Intention
m
RESOLUTION NO.
RESOLUTION OF THE CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY DECLARING INTENTION TO FINANCE INSTALLATION
OF DISTRIBUTED GENERATION RENEWABLE ENERGY SOURCES,
ENERGY EFFICIENCY AND WATER EFFICIENCY IMPROVEMENTS IN
THE CITY OF NEWPORT BEACH
WHEREAS, the California Enterprise Development Authority ( "CEDA ") is a joint powers
authority organized and existing pursuant to the 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, 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 and water efficiency
improvements that are permanently fixed to real property ( "Authorized Improvements ");
and
WHEREAS, CEDA has obtained authorization from the City of Newport Beach (the
"City ") located in the County of Orange (the "County') to conduct assessment
proceedings and to enter into contractual assessments to finance the installation of
Authorized Improvements within the jurisdictional boundaries of the City pursuant to
Chapter 29; 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 below, 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.
(b) Energy and water conservation efforts, including the promotion of
Authorized Improvements to residential, commercial, industrial, or other
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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 City 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.
Section S. 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 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 is 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
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law) as shall be determined by 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 CEDA 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 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
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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 within the City.
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.
e) 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 County,
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
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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 County 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_
ATTEST:
Larry Cope, Secretary
10
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
By:
Gurbax Sahota, Chair
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1 W1411l 7118
Indemnification Agreement
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INDEMNIFICATION AND INSURANCE AGREEMENT
BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the "Agreement ") is entered into by and between the
City of Newport Beach, a municipal corporation, duly organized and existing under the
laws of the State of California and Charter of City (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
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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;
NOW, THERFORE, 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
Administrator has provided the CEDA with an indemnification for negligence or
malfeasance of any type as a result of the acts or omissions of the Administrator, 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. Administrator 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 Administrator, 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 Administrator.
2. INSURANCE
Administrator agrees that at all times during the operation of the Figtree PACE Program,
it shall maintain insurance coverage for the program as follows: (i) Commercial General
Liability insurance with minimum limits of One Million Dollars and 00/100 ($1,000,000)
per accident for bodily injury and property damage; (ii) Workers' Compensation and
Employer's Liability insurance, and all other insurance required by law for the work to be
performed pursuant to the Program; (iii) Professional Errors and Omissions insurance in
an amount not less than One Million Dollars and 001100 ($1,000,000) for any single
event, and (iv) Automobile Liability insurance covering Administrator's use of
automobiles, with minimum limits of One Million Dollars ($1,000,000) per accident for
bodily injury and property damage.
3. 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.
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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 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
If to the Public Entity:
8. COUNTERPARTS
Attn: Chief Executive Officer
Figtree Company, Inc.
9915 Mira Mesa Blvd., Suite 130
San Diego, California 92131
Attn: City Manager
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92658
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.
14
4 -17
9. 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
written below.
APPROVED AS TO FORM: CITY
The City of Newport Beach
THE CITY qT NEY'S OFFICE a California Municipal Corporation
Date: I I y Date:
By: Vo�
Aaron . Harp (rAAM 1oI-trjIN
City Attorney
ATTEST:
1 By-All r$
Bv:
Leilani I. Brown
City Clerk
15
By:
Rush N. Hill, II
Mayor
Figtree Company, Inc., a California corp.
Date:
By
Mahesh Shah
Chief Executive Officer
=0
ATTACHMENT B
ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE (DEVELOPMENT AUTHORITY
and the
CITY OF CITY OF NEWPORT BEACH, CALIFORNIA
THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership
Agreement'), dated as of November 25, 2014 by and between CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY (the "Authority ") and the CITY OF NEWPORT BEACH,
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 pen-nits 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
Nlerabership 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;
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:
4833- 7301 - 9141.1
:541
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.
4833 -7301- 9141.1
PI
HNS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
dates written below.
APPROVED AS TO FORM:
CITY ATT R EY'S OFFICE
Date: I I'1 IM
Ll-
AaVonC. Harp cAm tth -H14
City Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Rush N
Mayor
Hill, II
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
Date:
By: By:
Leilani I. Brown Gurbax Sahota, Chair
City Clerk Board of Directors
4833- 7301 - 9141.1
]END OF SIGNATURES]
ki
4 -21
Attachment C
RESOLUTION NO. 2014 -
RESOLUTION AUTHORIZING THE CITY OF NEWPORT BEACH
TO JOIN THE CALIFORNIAFIRST PROGRAM; AUTHORIZING THE
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT
AUTHORITY TO ACCEPT APPLICATIONS FROM PROPERTY
OWNERS, CONDUCT CONTRACTUAL ASSESSMENT
PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS
WITHIN THE TERRITORY OF THE CITY OF NEWPORT BEACH
WHEREAS, the California Statewide Communities Development Authority
( "California Communities') is a joint exercise of powers authority the members of which
include numerous cities and counties in the State of California, including the City of
Newport Beach (the "City "); and
WHEREAS, California Communities has established the CaliforniaFIRST
program (the "CaliforniaFIRST Program ") 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 (the
'Bonds') under the Improvement Bond Act of 1915 (Streets and Highways Code
Sections 8500 and following) (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 City desires to allow the owners of property ( "Participating
Property Owners ") within the incorporated territory of the City to participate in the
CaliforniaFIRST Program and to allow California Communities to conduct assessment
proceedings under Chapter 29 within the incorporated territory of the City and to issue
Bonds under the 1915 Act to finance the Improvements; and
WHEREAS, California Communities will conduct assessment proceedings under
Chapter 29 and issue Bonds under the 1915 Act to finance Improvements;
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings; 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 the Bonds or any other bonds issued in connection with the
CaliforniaFIRST Program;
MIN
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport
Beach as follows:
SECTION 1:
A. This City Council hereby finds and declares that properties in the City's
incorporated area will benefit from the availability of the CaliforniaFIRST Program within
the incorporated territory of the City and, pursuant thereto, the conduct of special
assessment proceedings by California Communities pursuant to Chapter 29 and the
issuance of Bonds under the 1915 Act.
B. In connection with the CaliforniaFIRST Program, the City hereby consents to the
conduct of special assessment proceedings by California Communities pursuant to
Chapter 29 on any property within its jurisdiction and the issuance of Bonds under the
1915 Act; provided, that
C. The Participating Property Owners, who shall be the legal owners of such
property, 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
D. The City its officers, elected or appointed officials, employees, agents and
volunteers, will not be responsible for the conduct of any assessment proceedings; 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
the Bonds or any other bonds issued in connection with the CaliforniaFIRST Program.
E. The issuance of Bonds will occur following receipt of a final judgment in a
validation action filed by California Communities pursuant to Code of Civil Procedure
Section 860 that the Bonds are legal obligations of California Communities.
F. Pursuant to the requirements of Chapter 29, California Communities has
prepared and will update from time to time the "Program Report" for the CaliforniaFIRST
Program (the "Program Report"), and California Communities will undertake
assessment proceedings and the financing of Improvements as set forth in the Program
Report.
G. The appropriate officials and staff of the City are hereby authorized and directed
to make applications for the CaliforniaFIRST program available to all property owners
who wish to finance Improvements; provided, that California Communities shall be
responsible for providing such applications and related materials at its own expense.
The following staff persons, together with any other staff persons chosen by the City
Manager from time to time, are hereby designated as the contact persons for California
Communities in connection with the CaliforniaFIRST Program: Seimone Jurjis, Chief
Building Official, siurlis newportbeachca.00v, (949) 644 -3282.
2
:ZIe3
H. The appropriate officials and staff of the City are hereby authorized and directed
to execute and deliver such closing certificates, requisitions, agreements and related
documents as are reasonably required by California Communities in accordance with
the Program Report to implement the CaliforniaFIRST Program for Participating
Property Owners.
I. The City Council hereby finds that adoption of this Resolution is not a "project'
under the California Environmental Quality Act, 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 2:
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 the
Secretary of California Communities.
ADOPTED this 25" day of November, 2014
ATTEST:
By:
Leilani I. Brown,
City Clerk
c
0
Rush N. Hill II,
Mayor
:SOON
INDEMNIFICATION AND INSURANCE AGREEMENT
BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
RENEWABLE FUNDING, LLC
This Indemnification and Insurance Agreement (the "Agreement ") is entered into by and
between the City of Newport Beach, a municipal corporation ( "City ") and Renewable
Funding, LLC, a California limited liability company (the "Administrator'), the
administrator of the CaliforniaFIRST Program, which is a program of the California
Statewide Communities Development Authority, 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 City in addition to other cities and counties in the State of
California;and
WHEREAS, the Authority established the CaliforniaFIRST Program ( "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 City; and
WHEREAS, the City Council of the City adopted a resolution authorizing the City
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 City 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 PACE Program and
agrees to indemnify the City and provide insurance and add the City as an additional
insured on its insurance policy or policies in connection with the operations of the PACE
Program as set forth herein; and
1
MIR
NOW, THERFORE, in consideration of the above premises and of the City's
agreement to join the PACE Program, the parties agree as follows:
1. INDEMNIFICATION
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 no 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 PACE
Program except such loss or damage which was caused by the sole 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.
2. INSURANCE
The Administrator agrees that, at no cost or expense to the City, at all times during the
operation of the 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
2
rZ10
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 Renewable Funding, LLC
50012 th Street, #300
Oakland, CA 94607
If to the City:
8. COUNTERPARTS
Attn: City Manager
City of Newport Beach
100 Civic Center Drive
P.O. Box: 1768
Newport Beach, CA 92658
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.
[SIGNATURES ON NEXT PAGE]
3
rMA
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date
above.
APPROVED AS TO FORM:
THE CITY �ITT � R�NEY'S OFFICE
Date:
By: 2 V, A,1,
Aaron C. Harp CAM to 11 -ell l
City Attorney
ATTEST:
Bv:
Leilani I. Brown
City Clerk
F.
CITY
The City of Newport Beach
a California Municipal Corporation
Date:
By—
Rush N
Mayor
Hill, II
Renewable Funding, LLC
Date:
Name:
Title:
sm
EXHIBIT A
INSURANCE
A. Minimum Scope of Insurance
Coverage shall be at least as broad as
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.
A -1
:Z�]
C. Deductibles and Self- Insured Retentions
Any deductibles or self- insured retentions must be declared to, and approved by 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 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:
Commercial General Liability and Automobile Liability Coverages
a. The City of Newport Beach, 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 nc
special limitations on the scope of protection afforded to City, its officers,
employees, agents and contractors.
b. Administrator's insurance coverage shall be primary insurance as respects 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 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.
Workers' Compensation and Employers' Liability
Coverage shall contain waiver of subrogation in favor of the City of Newport Beach, its
officers, employees, agents and contractors.
RV
:Seri]
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 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 City's Risk Manager
F. Verification of Coverage
Administrator shall furnish 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: Seimone Jurjis,
siurlis(cDnewportbeachca.gov or mailed to the following postal address or any
subsequent address as may be directed in writing by the Risk Manager:
City of Newport Beach
100 Civic Center Drive
P.O. Box: 1768
Newport Beach, CA 92658
G. Subcontractors
Administrator shall include all subcontractors as insureds under its policies or shall
obtain separate certificates and endorsements for each subcontractor.
A -3
:SCSI
ATTACHMENT D
AMENDED AND RESTATED
JOINT EXERCISE OF POWERS AGREEMENT
RELATING TO THE CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY
THIS AGREEMENT, dated as of June 1, 1988, by and among the parties
executing this Agreement (all such parties, except those which have withdrawn in accordance with
Section 13 hereof, being herein referred to as the "Program Participants "):
WITNESSETH
WHEREAS, pursuant to Title 1, Division 7, Chapter 5 of the Government Code of
the State of California (the "Joint Exercise of Powers Act'), two or more public agencies may by
agreement jointly exercise any power common to the contracting parties; and
WHEREAS, each of the Program Participants is a "public agency" as that term is
defined in Section 6500 of the Government Code of the State of California, and
WHEREAS, each of the Program Participants is empowered to promote
economic development, including, without limitation, the promotion of opportunities for the
creation or retention of employment, the stimulation of economic activity, and the increase of the
tax base, within its boundaries; and
WHEREAS, a public entity established pursuant to the Joint Exercise of
Powers Act is empowered to issue industrial development bonds pursuant to the California
Industrial Development Financing Act (Title 10 (commencing with Section 91500 of the
Government Code of the State of California)) (the "Act') and to otherwise undertake financing
programs under the Joint Exercise of Powers Act or other applicable provisions of law to promote
economic development through the issuance of bonds, notes, or other evidences of
indebtedness, or certificates of participation in leases or other agreements (all such instruments
being herein collectively referred to as "Bonds "); and
WHEREAS, in order to promote economic development within the State of
California, the County Supervisors Association of California ( "CSAC'), together with the California
Manufacturers Association, has established the Bonds for Industry program (the "Program ").
WHEREAS, in furtherance of the Program, certain California counties
(collectively, the "Initial Participants ") have entered into that certain Joint Exercise of Powers
Agreement dated as of November 18, 1987 (the "Initial Agreement'), pursuant to which the
California Counties Industrial Development Authority has been established as a separate entity
under the Joint Exercise of Powers Act for the purposes and with the powers specified in the
Initial Agreement; and
WHEREAS, the League of California Cities ( "LCC ") has determined to join as a
sponsor of the Program and to actively participate in the administration of the Authority; and
WHEREAS, the Initial Participants have determined to specifically authorize the
Authority to issue Bonds pursuant to Article 2 of the Joint Exercise of Powers Act ( "Article 2 ") and
Article 4 of the Joint Exercise of Powers Act ( "Article 4 "), as well as may be authorized by the Act
or other applicable law; and
WHEREAS, the Initial Participants desire to rename the California Counties
x50001
Industrial Development Authority to better reflect the additional sponsorship of the Program; and
WHEREAS, each of the Initial Participants has determined that it is in
the public interest of the citizens within its boundaries, and to the benefit of such Initial
Participant and the area and persons served by such Initial Participant, to amend and restate
in its entirety the Initial Agreement in order to implement the provisions set forth
above; and
WHEREAS, it is the desire of the Program Participants to use a public entity
established pursuant to the Joint Exercise of Powers Act to undertake projects within the
irrespective jurisdictions that may be financed with Bonds issued pursuant to the Act, Article 2,
Article 4, or other applicable provisions of law; and
WHEREAS, the projects undertaken will result in significant public benefits,
including those public benefits set forth in Section 91502.1 of the Act, an increased level of
economic activity, or an increased tax base, and will therefore serve and be of benefit to the
inhabitants of the jurisdictions of the Program Participants;
NOW, THEREFORE, the Program Participants, for and in consideration of the
mutual promises and agreements herein contained, do agree to restate and amend the Initial
Agreement in its entirety to provide as follows:
Section 1. Purpose.
This Agreement is made pursuant to the provisions of the Joint Exercise of
Powers Act, relating to the joint exercise of powers common to public agencies, in this case
being the Program Participants. The Program Participants each possess the powers referred to
in the recitals hereof. The purpose of this Agreement is to establish an agency for, and with the
purpose of, issuing Bonds to finance projects within the territorial limits of the Program
Participants pursuant to the Act, Article 2, Article 4, or other appliable provisions of law;
provided, however that nothing in this Agreement shall be construed as a limitation on the
rights of the Program Participants to pursue economic development outside of this Agreement,
including the rights to issue Bonds through industrial development authorities under the Act or
as otherwise permitted by law.
Within the various jurisdictions of the Program Participants such purpose
will be accomplished and said powers exercised in the manner hereinafter set forth.
Section 2. Term.
This Agreement shall become effective as of the date hereof and shall
continue In full force and effect for a period of forty (40) years from the date hereof, or until
such time as it is terminated in writing by all the Program Participants; provided, however,
that this Agreement shall not terminate or be terminated until the date on which all Bonds or
other indebtedness issued or caused to be issued by the Authority shall have been retired,
or full provision shall have been made for their retirement, including interest until their
retirement date.
Section 3. Authority.
A . CREATION AND POWERS OF AUTHORITY.
(1) Pursuant to the Joint Exercise of Powers Act, there is hereby created a
public entity to be known as the "California Statewide Communities Development Authority" (the
:Sete]
"Authority "), and said Authority shall be a public entity separate and apart from the Program
Participants. Its debts, liabilities and obligations do not constitute debts, liabilities or obligations of
any party to this Agreement.
COMMISSION.
The Authority shall be administered by a Commission (the "Commission ")
which shall consist of seven members, each serving in his or her individual capacity as a
member of the Commission. The Commission shall be the administering agency of this
Agreement, and, as such, shall be vested with the powers set forth herein, and shall execute
and administer this Agreement in accordance with the purposes and functions provided
herein.
Four members of the Commissions shall be appointed by the governing body of
CSAC and three members of the Commission shall be appointed by the governing body of LCC.
Initial members of the Commission shall serve a term ending June 1, 1991. Successors to such
members shall be selected in the manner in which the respective initial member was
selected and shall serve a term of three years. Any appointment to fill an unexpired term,
however, shall be for such unexpired term. The term of office specified above shall be applicable
unless the term of office of the respective member is terminated as hereinafter provided, and
provided that the term of any member shall not expire until a success or thereto has been
appointed as provided herein.
Each of CSAC and LCC may appoint an alternate member of the Commission for
each member of the Commission which it appoints. Such alternate member may act as a
member of the Commission in place of and during the absence or disability of such regularly
appointed member. All references in this Agreement to any member of the Commission shall be
deemed to refer to and include the applicable alternate member when so acting in place of a
regularly appointed member.
Each member or alternate member of the Commission may be removed and
replaced at any time by the governing body by which such member was appointed. Any
individual, including any member of the governing body or staff of CSAC or LCC, shall be eligible
to serve as a member or alternate member of the Commission.
Members and alternate members of the Commission shall not receive any
compensation for serving as such but shall be entitled to reimbursement for any expenses
actually incurred in connection with serving as a member or alternate member, if the
Commission shall determine that such expenses shall be reimbursed and there are
unencumbered funds available for such purpose.
C . OFFICERS; DUTIES; OFFICIAL BONDS.
The Commission shall elect a Chair, a Vice - Chair, and a Secretary of the
Authority from among its members to serve for such term as shall be determined by the
Commission. The Commission shall appoint one or more of its officers or employees to serve
as treasurer, auditor, and controller of the Authority (the "Treasurer ") pursuant to Section
650.6 of the Joint Exercise of Powers Act to serve for such term as shall be determined by the
Commission.
Subject to the applicable provisions of any resolution, indenture or other
instrument or proceeding authorizing or securing Bonds (each such resolution, indenture,
instrument and proceeding being herein referred to as an "Indenture ") providing for a trustee or
other fiscal agent, the Treasurer is designated as the depositary of the Authority to have custody
of all money of the Authority, from whatever source derived.
:SeF!
The Treasurer of the Authority shall have the powers, duties and responsibilities
specified in Section 6505.5 of the Joint Exercise of Powers Act,
The Treasurer of the Authority is designated as the public officer or person who
has charge of, handles, or has access to any property of the Authority, and such officer shall file
an official bond with the Secretary of the Authority in the amount specified by resolution of the
Commission but in no event less than $1,000. If and to the extent permitted by law, any such
officer may satisfy this requirement by filing an official bond in at least said amount obtained in
connection with another public office.
The Commission shall have the power to appoint such other officers and
employees as it may deem necessary and to retain independent counsel, consultants and
accountants.
The Commission shall have the power, by resolution, to the extent permitted by
the Joint Exercise of Powers Act or any other applicable law, to delegate any of its functions to
one or more of the members of the Commission or officers or agents of the Authority and to
cause any of said members, officers or agents to take any actions and execute . any
documents or instruments for and in the name and on behalf of the Commission or the Authority.
D . MEETINGS OF THE COMMISSION.
(1) Regular Meetings.
The Commission shall provide for its regular meetings; provided, however, it shall
hold at least one regular meeting each year. The date, hour and place of the holding of the
regular meetings shall be fixed by resolution of the Commission and a copy of such resolution
shall be filed with each party hereto.
(2) Special Meetings.
Special meetings of the Commission may be called in accordance with the
provisions of Section 54956 of the Government Code of the State of California.
(3) Ralph M. Brown Act.
All meetings of the Commission, including, without limitation, regular, adjourned
regular, special, and adjourned special meetings shall be called, noticed, held and conducted in
accordance with the provisions of the Ralph M. Brown Act (commencing with Section 54950 of
the Government Code of the State of California).
(4) Minutes.
The Secretary of the Authority shall cause to be kept minutes of the regular,
adjourned regular, special, and adjourned special meetings of the Commission and shall, as soon
as possible after each meeting, cause a copy of the minutes to be forwarded to each member of
the Commission.
(5) Quorum.
A majority of the members of the Commission which includes at least one
member appointed by the governing body of each of CSAC and LCC shall constitute aquorum for
the transaction of business. No action may be taken by the Commission except upon the
affirmative vote of a majority of the members of the Commission which includes at least one
:SCi.7
member appointed by the governing body of each of CSAC and LCC, except that less than a
quorum may adjourn a meeting to another time and place.
RULES AND REGULATIONS.
The Authority may adopt, from time to time, by resolution of the Commission
such rules and regulations for the conduct of its meetings and affairs as may required.
Section 4. Powers.
The Authority shall have any and all powers relating to economic development
authorized by law to each of the parties here to and separately to the public entity
herein created, including, without limitation, the promotion of opportunities for the creation and
retention of employment, the stimulation of economic activity, and the increase of the tax base,
within the jurisdictions of such parties. Such powers shall include the common powers specified in
this Agreement and may be exercised in the manner and according to the method provided in this
Agreement. All such powers common to the parties are specified as powers of the Authority. The
Authority is here by authorized to do all acts necessary for the exercise of such powers, including,
but not limited to, any or all of the following: to make and enter into contracts; to employ agents
and employees; to acquire, construct, provide for maintenance and operation of, or maintain and
operate, any buildings, works or improvements; to acquire, hold or dispose of property wherever
located; to incur debts, liabilities or obligations; to receive gifts, contributions and donations of
property, funds, services and other forms of assistance from persons, firms, corporations and any
governmental entity; to sue and be sued in its own name; and generally to do any and all things
necessary or convenient to the promotion of economic development, including without limitation
the promotion of opportunities for the creation or retention of employment, the stimulation of
economic activity, and the increase of the tax base, all as herein contemplated. Without
limiting the generality of the foregoing, the Authority may issue or cause to be issued
bonded and other indebtedness, and pledge any property or revenues as security to the
extent permitted under the Joint Exercise of Powers Act, including Article 2 and Article 4, the
Act or any other applicable provision of law.
The manner in which the Authority shall exercise its powers and perform its
duties is and shall be subject to the restrictions upon the manner in which a California county
could exercise such powers and perform such duties until a California general law city shall
become a Program Participant, at which time it shall be subject to the restrictions upon the
manner in which a California general law city could exercise such powers and perform such
duties. The manner in which the Authority shall exercise its powers and perform its duties
shall not be subject to any restrictions applicable to the manner in which any other public
agency could exercise such powers or perform such duties, whether such agency is a party
to this Agreement or not.
Section 5. Fiscal Year.
For the purposes of this Agreement, the term "Fiscal Year" shall mean the fiscal
year as established from time to time by the Authority, being, at the date of this Agreement, the
period from July 1 to and including the following June 30, except for the first Fiscal Year which
shall be the period from the date of this Agreement to June 30, 1988.
Section 6. Disposition of Assets.
At the end of the term here of or upon the earlier termination of this Agreement
as set forth in Section 2 hereof, after payment of a!1 expenses and liabilities of the Authority, all
property of the Authority both real and personal shall automatically vest in the Program
Participants and shall thereafter remain the sole property of the Program
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Participants; provided, however, that any surplus money on hand shall be returned in proportion
to the contributions made by the Program Participants.
Section 7. Bonds.
The Authority shall issue Bonds for the purpose of exercising its powers and
raising the funds necessary to carry out its purposes under this Agreement. Said Bonds may, at
the discretion of Authority, be issued in series.
The services of bond counsel, financing consultants and other consultants and
advisors working on the projects and/or their financing shall be used by the Authority. The
fees and expenses of such counsel, consultants, advisors, and the expenses of CSAC, LCC, and
the Commission shall be paid from the proceeds of the Bonds or any other unencumbered funds
of the Authority available for such purpose.
Section 9. Local Approval.
A copy of the application for financing of a project shall be filed by the Authority
with the Program Participant in whose jurisdiction the project is to be located. The Authority shall
not issue Bonds with respect to any project unless the governing body of the Program
Participant in whose jurisdiction the project is to be located, or its duly authorized designee, shall
approve, conditionally or unconditionally, the project, including the issuance of Bonds there for.
Action to approve or disapprove a project shall be taken within 45 days of the filing with the
Program Participant. Certification of approval or disapproval shall be made by the clerk of the
governing body of the Program Participant, or by such other officer as may be designated by the
applicable Program Participant, to the Authority.
Section 8. Bonds Only Limited and Special Obligations of
Authority.
The Bonds, together with the interest and premium, if any, thereon, shall not be
deemed to constitute a debt of any Program Participant, CSAC, or LCC or pledge of the faith
and credit of the Program Participants, CSAC, LCC, or the Authority. The Bonds shall be only
special obligations of the Authority, and the Authority shall under no circumstances be obligated
to pay the Bonds or the respective project costs except from revenues and other funds pledged
therefor. Neither the Program Participants, CSAC, LCC, nor the Authority shall be obligated to
pay the principal of, 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 Program Participants nor the faith and credit of CSAC, LCC, or the
Authority shall be pledged to the payment of the principal of, premium, if any, or interest on the
Bonds nor shall the Program Participants, CSAC, LCC, or the Authority in any manner be
obligated to make any appropriation for such payment.
No covenant or agreement contained in any Bond or Indenture shall be deemed
to be a covenant or agreement of any member of the Commission, or any officer, agent or
employee of the Authority in his individual capacity and neither the Commission of the Authority
nor any officer thereof executing the Bonds shall be liable personally on any Bond or be subject
to any personal liability or accountability by reason of the issuance of any Bonds.
Section 10. Accounts and Reports.
All funds of the Authority shall be strictly accounted for. The Authority shall
establish and maintain such funds and accounts as may be required by good accounting practice
and by any provision of any Indenture (to the extent such duties are not assigned to a trustee of
Bonds). The books and records of the Authority shall be open to inspection at all reasonable times
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by each Program Participant.
The Treasurer of the Authority shall cause an independent audit to be made of
the books of accounts and financial records of the Agency by a certified public
accountant or public accountant in compliance with the provisions of Section 6505 of the Joint
Exercise of Powers Act. In each case 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
such an audit of accounts and records is made by a certified public accountant or public
accountant, a report thereof shall be filed as public records with each Program Participant and
also with the county auditor of each county in which a Program Participant is located. Such report
shall be filed within 12 months of the end of the Fiscal Year or Years under examination.
Any costs of the audit, including contracts with, or employment of, certified
public accountants or public accountants in making an audit pursuant to this Section, shall be
borne by the Authority and shall be a charge against any unencumbered funds of the Authority
available for that purpose.
In any Fiscal Year the Commission may, by resolution adopted by unanimous
vote, replace the annual special audit with an audit covering a two -year period.
The Treasurer of the Authority, within 120 days after the close of each
Fiscal Year, shall give a complete written report of all financial activities for such Fiscal
Year to each of the Program Participants to the extent such activities are not covered by
the reports of the trustees for the Bonds. The trustee appointed under each Indenture
shall establish suitable funds, furnish financial reports and provide suitable accounting
procedures to carry out the provisions of said Indenture. Said trustee may be given such
duties in said Indenture as may be desirable to carry out this Agreement.
Section 11. Funds.
Subject to the applicable provisions of each Indenture, which may provide for a trustee to receive,
have custody of and disburse Authority funds, the Treasurer of the Authority shall receive, have
the custody of and disburse Authority funds pursuant to the accounting procedures developed
under Section 10 hereof, and shall make the disbursements required by this Agreement or
otherwise necessary to carry out any of the provisions or purposes of this Agreement.
Section 12. Notices.
Notices and other communications here under to the Program Participants shall
be sufficient if delivered to the clerk of the governing body of each Program Participant.
Section 13. Withdrawal and Addition of Parties.
A Program Participant may withdraw from this Agreement upon written notice to
the Commission; provided, however, that no such withdrawal shall result in the
dissolution of the Authority so long as any Bonds remain outstanding under an Indenture. Any
such withdrawal shall be effective only upon receipt of the notice of withdrawal by the
Commission which shall acknowledge receipt of such notice of withdrawal in writing and shall file
such notice as an amendment to this Agreement effective upon such filing.
Qualifying public agencies may be added as parties to this Agreement and
become Program Participants upon: (i) the filing by such public agency of an executed
counterpart of this Agreement, together with a certified copy of the resolution of the governing
body of such public agency approving this Agreement and the execution and delivery hereof; and
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(ii) adoption of a resolution of the Commission approving the addition of such public agency as a
Program Participant. Upon satisfaction of such conditions, the Commission shall file such
executed counterpart of this Agreement as an amendment hereto, effective upon such filing.
Section 14. Indemnification.
To the full extent permitted by law, the Commission may authorize
indemnification by the Authority of any person who is or was a member or alternate member of
the Commission, or an officer, 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 member or alternate member of the Commission, or an officer, employee or
other agent of the Authority, 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 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 the
conduct of such person 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.
Section 15. Contributions and Advances.
Contributions or advances of public funds and of the use of personnel, equipment
or property may be made to the Authority by the parties here to for any of the purposes of this
Agreement. Payment of public funds may be made to defray the cost of any such contribution.
Any such advance may be made subject to repayment, and in such case shall be repaid, in the
manner agreed upon by the Authority and the party making such advance at the time of such
advance.
Section 16. Immunities.
All of the privileges and immunities from liabilities, exemptions from laws,
ordinances and rules, all pension, relief, disability, workers' compensation, and other benefits
which apply to the activity of officers, agents or employees of Program Participants when
performing their respective functions within the territorial limits of their respective public agencies,
shall apply to them to the same degree and extent while engaged as members of the
Commission 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 extra territorially under the
provisions of this Agreement.
Section 17. Amendments.
Except as provided in Section 13 above, this Agreement shall not be amended,
modified, or altered except by a written instrument duly executed by each of the Program
Participants.
Section 18. Effectiveness.
This Agreement shall become effective and be in full force and effect and a legal,
valid and binding obligation of each of the Program Participants at 9:00a.m., California time, on the
date that the Commission shall have received from each of the Initial Participants an executed
counterpart of this Agreement, together with a certified copy of a resolution of the governing body
of each such Initial Participant approving this Agreement and the execution and delivery hereof.
Section 19. Partial Invalidity.
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If anyone or more of the terms, provisions, promises, covenants or conditions of
this Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any
reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms,
provisions, promises, covenants and conditions of this Agreement shall not be affected thereby,
and shall be valid and enforceable to the fullest extent permitted by law.
Section 20. Successors.
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 party may
assign any right or obligation hereunder without the consent of the other parties.
Section 21. Miscellaneous.
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.
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.
Wherever in this Agreement any consent or approval is required, the same shall
not be unreasonably withheld.
This Agreement is made in the State of California, under the Constitution and
laws of such state and is to be so construed.
This Agreement is the complete and exclusive statement of the agreement
among the parties hereto, which supercedes and merges all prior proposals, understandings, and
other agreements, including, without limitation, the Initial Agreement, whether oral, written, or
implied in conduct, between and among the parties relating to the subject matter of this
Agreement.
IN WITNESS WHEREOF, the parties here to have caused this Agreement to be
executed and attested by their proper officers there unto duly authorized, and their official seals
to be here to affixed, as of the day and year first above written.
Program Participant: City of Newport
Beach
[SEAL]
By:
Name: Rush N. Hill, II
Title: Mayor
ATTEST:
By:
Name: Leilani I. Brown
Title: City Clerk
APPR®Vi�M AS TO FORM?
City Attomey cAm xNIt ;[m
aM