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HomeMy WebLinkAbout2015-002 - The Figtree Program to Finance Renewable EnergyROH — 01/20/15 RESOLUTION NO. 2015 -002 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE CITY'S JURISDICTION IN THE FIGTREE PROGRAM TO FINANCE RENEWABLE ENERGY AND ENERGY AND WATER EFFICIENCY IMPROVEMENTS, APPROVING ASSOCIATE MEMBERSHIP IN THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY, AND APPROVING AN INDEMNIFICATION AGREEMENT WITH FIGTREE COMPANY, INC. RELATED TO THE FIGTREE PROPERTY ASSESSED CLEAN ENERGY AND JOB CREATION PROGRAM BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City, upon authorization of the City Council, may pursuant to Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, commencing with Section 6500 (the "JPA Law ") enter into a joint exercise of powers agreement with one or more other public agencies pursuant to which such contracting parties may jointly exercise any power common to them. B. The City and other public agencies wish to jointly participate in economic development financing programs for the benefit of businesses and nonprofit entities within their jurisdictions offered by membership in the California Enterprise Development Authority (the "Authority ") pursuant to an associate membership agreement and Joint Exercise of Powers Agreement Relating to the California Enterprise Development Authority (the "Agreement "). C. Under the JPA Law and the Agreement, the Authority is a public entity separate and apart from the parties to the Agreement and the debts, liabilities and obligations of the Authority will not be the debts, liabilities or obligations of the City or the other members of the Authority. D. The form of Associate Membership Agreement (the "Associate Membership Agreement ") between the City and the Authority is attached herewith as Exhibit A and incorporated herein by this reference. The City is willing to become an Associate Member of the Authority subject to the provisions of the Associate Membership Agreement. Resolution No. 2015 -002 Page 1 of 5 E. 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 Santa Ana (the "City "). F. 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. 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. G. 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. 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. H. There has been presented to this meeting a sample 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 B and incorporated herein by this reference. Such an 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 "). 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. J. 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. K. The City will not be responsible for the conduct of any assessment proceedings, the levy of assessments, any required remedial action in the Resolution No. 2015 -002 Page 2 of 5 case of delinquencies, the issuance, sale or administration of the bonds or other indebtedness issued in connection with Figtree PACE. Section 2. The Associate Membership Agreement presented to this meeting and on file with the City Clerk is hereby approved. The City Manager, the City Clerk, the City Attorney and other officials of the City are each hereby authorized and directed, for and on behalf of the City, to execute and deliver the Associate Membership Agreement in substantially said form, with such changes therein as such officer may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. Section 3. The officers and officials of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary or advisable in order to consummate, carry out, give effect to and comply with the terms and intent of this resolution and the Associate Membership Agreement. All such actions heretofore taken by such officers and officials are hereby confirmed, ratified and approved. Section 4. 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 5. Appointment of CEDA. The City hereby appoints CEDA as a 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 6. 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 Resolution No. 2015 -002 Page 3 of 5 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 7. 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 8. Indemnification. The City Council acknowledges that Figtree has provided the City with an indemnification agreement, attached hereto as Exhibit C and incorporated herein by this reference, 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 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. Resolution No. 2015 -002 Page 4 of 5 ADOPTED this 20" day of January, 2015. APPROVED AS TO FORM: Sonia R. Cs, rvalho, City Attorney 0 City AYES: Councilmembers: Amezcua, Benavides Martinez, Pulido Reyna Sarmiento, Tinaiero (7) NOES: Councilmembers: None (0) ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2015 -002 to be the original resolution adopted by the City Council of the City of Santa Ana on January 20, 2015. Date: Clerk of the Council City of Santa Ana Resolution No. 2015 -002 Page 5 of 5 EXHIBIT A Associate Membership Agreement ASSOCIATE MEMBERSHIP AGREEMENT by and between the CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY and the CITY OF SANTA ANA, CALIFORNIA THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership Agreement "), dated as of by and between CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY (the "Authority ") and the CITY OF SANTA ANA, CALIFORNIA, a charter city and 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 fonned 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 permits 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 Membership 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 herebv agree as follows; Exhibit A 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 S. 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. 2 IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership Agreement to be executed and attested by their proper officers thereunto duty authorized, on the day and year first set forth above. Attest: Michelle Stephens, Asst. Secretary ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: ALHO City Ryan RECOMMENDED FOR APPROVAL: FRED MOUSAVIPOUR Executive Director - P WA CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY By: Gurbax Sahota, Chair Board of Directors CITY OF SANTA ANA. DAVID CAVAZOS City Manager EXHIBIT B Sample CEDA Resolution of Intention RESOLUTION CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY DECLARING INTENTION TO FINANCE INSTALLATION OF DISTRIBUTED GENERATION RENEWABLE ENERGY SOURCES, ENERGY EFFICIENCY AND WATER EFFICIENCY IMPROVEMENTS IN THE COUNTY OF WHEREAS, the California Enterprise Development Authority ( "CEDA ") is a joint powers authority authorized and existing pursuant to 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, by and among the cities of Eureka, Lancaster and Selma; and WHEREAS, CEDA is authorized under the Agreement, Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California and Chapter 29 of Part 3 of Division 7 of the Streets & Highways Code of the State of California ( "Chapter 29 ") 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 County (the "County") to enter into contractual assessments for the financing of the installation of Authorized Improvements in the County; and WHEREAS, CEDA desires to declare its intention to establish a Figtree PACE program ( "Figtree PACE ") in the County, pursuant to which CEDA, subject to certain conditions set forth herein, would enter into contractual assessments to finance the installation of Authorized Improvements in the County. 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 County. (c) The upfront cost of making residential, commercial, industrial, or other real property more energy and water efficient, along with the fact that most Exhibit Q 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 County. 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 County, within which CEDA and property owners within the County 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 County 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 County including unincorporated territory within County Boundaries. A property owner located within a City within the County may enter into contractual assessments with CEDA only after such City has adopted a resolution to authorize participation in the PACE Program. 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 are 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 the 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 the Board of Directors 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 County to all water and electric providers within the boundaries of the County 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. (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 (1) 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. 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. 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_. CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY By: Gurbax Sahota, Chair ATTEST: Larry Cope, Secretary EXHIBIT C Indemnification Agreement INDEMNIFICATION AGREEMENT BY AND BETWEEN THE CITY OF SANTA ANA AND FIGTREE COMPANY, INC. This Indemnification Agreement (the "Agreement ") is entered into by and between the City of Santa Ana, a charter city and municipal corporation 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 Prograrn; 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 asset 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; Exhibit C I . 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, on behalf of itself and the CEDA, 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. Axnendment/Interaretation of this Agreement. This Agreement represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be, of any force or effect'with respect to those matters covered hereunder. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. This Agreement shall not be interpreted for or against any party by reason of the fact that such party may have drafted this Agreement or any of its provisions. 3. Section Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other Purpose. 4. Waiver. No waiver of any of the provisions of this Agreement shall be binding unless in the form of writing signed by the party against whom enforcement is sought, and no such waiver shall operate as a waiver of any other provisions' hereof (whether or not similar), not shall such waiver constitute a continuing waiver. Except as specifically provided herein, no failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof. 5. Severability and Governing Law. If any provision or portion thereof of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California applicable to contracts made and to be performed in California. 6. Notices. All notices, demands and other communications required or penmitted 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 Figtree Company, Inc. 9915 Mira Mesa Blvd., Suite 130 San Diego, California 92131 Attn: Chief Executive Officer If to the Public Entity: Public Works Agency - Executive Director City of Santa Ana 20 Civic Center Plaza (M -21) P.O. Box 1988 Santa Ana, California 92702 Facsimile: 714 -647 -5622 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Facsimile: 714- 647 -6515 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 WHEREOF, the parties bereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: City By:' - Ryan RECOMMENDED FOR APPROVAL: FRED MOUSAVIPOUR. Executive Director - PWA 3 CITY OF SANTA ANA DAVID CAVAZOS City Manager Figtree Company, Inc., a California corp.: Mahesh Shah CEO