Resolution No. 6430RESOLUTION NO. 6430
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CYPRESS,
AUTHORIZING THE CITY OF CYPRESS 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 CYPRESS, AND AUTHORIZING RELATED ACTIONS
THE CITY COUNCIL OF THE CITY OF CYPRESS HEREBY FINDS, RESOLVES,
DETERMINES, AND ORDERS AS FOLLOWS:
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 Cypress (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 1; 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
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.
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NOW, THEREFORE, BE IT RESOLVED THAT the City Council of the City of
Cypress does hereby find 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. Public Benefits. On the date hereof, the 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.
Section 3. 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 4. Assessment Proceedings. In connection with Figtree PACE, the City
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;
(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 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.
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. The City Council acknowledges that Figtree has provided
the City with an indemnification agreement, as shown in Exhibit 2, 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.
Section 8. City Contact Designation. 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:
Steven Clarke, Redevelopment Project Manager, (714) 229 -6728,
sclarke @ci.cypress.ca. us.
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Section 9. City Execution of Documents. 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 CEDA in
accordance with the Program Report to implement Figtree PACE for Participating
Property Owners.
Section 10. 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).
Section 11. 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 12. Costs. Services related to the formation and administration of the
assessment district will be provided by CEDA at no cost to the City.
PASSED AND ADOPTED by the City Counci •f the City of Cypress at a regular
meeting held on the 27th day of May, 2014.
ATTEST:
CITY CLERK OF THE CITY OF CYPRESS
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
/A_
MAYOR • THE CITY • F CYPRESS
I, DENISE BASHAM, City Clerk of the City of Cypress, DO HEREBY CERTIFY
that the foregoing Resolution was duly adopted at a regular meeting of the said City
Council held on the 27th day of May, 2014, by the following roll call vote:
AYES: 5 COUNCIL MEMBERS: Bailey, Narain, Yarc, Johnson and Mills
NOES: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS: None
i? "'ILL L Ci s G'1,'1
CITY CLERK OF THE CITY OF CYPRESS
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EXHIBIT 1
CEDA Resolution of Intention
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 CYPRESS.
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 Cypress (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
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
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enter into contractual assessments to finance the installation of Authorized 520
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 5. 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
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
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
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.
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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 , 2014.
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
By:
Gurbax Sahota, Chair
ATTEST:
Larry Cope, Secretary
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EXHIBIT 2
Indemnification Agreement
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF CYPRESS AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the "Agreement ") is entered into by and between the City
of Cypress, 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;
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. 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. 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. 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
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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 Headinas. 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 Governina 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 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:
Figtree Company, Inc.
9915 Mira Mesa Blvd., Suite 130
San Diego, California 92131
Attn: Chief Executive Officer
City of Cypress
5275 Orange Avenue
Cypress, CA 90630
Attn: City Clerk
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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:
William Wynder, City Attorney
City of Cypress
By:
Name: Leroy Mills
Title: Mayor
Date:
Figtree Company, Inc., a California corp.
By:
Name: Mahesh Shah
Title: CEO
Date: