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HomeMy WebLinkAboutCALIFORNIA ENTERPRISE DEVELOPMENT-2015O )f ASSOCIATE MIEMBERSHIP AGREEMENT by and between the CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY and the CITY OF SANTA ANA, CALIFORNIA A- 2015.016 THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership Agreement "), dated as of A4tkd ,el / by and between CALIFORNIA ENTERPRISE DEVELOPMEN AUTH ITY (the "Authority ") and the CITY OF SANTA ANA, CALIFORNIA, a charter city and nnmicipal 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 "Mernbers "), have entered into a Joust 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 WHERE, AS, 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 pennits any other local agency in the State of California to join the Authority as an associate meinber (an "Associate Member "); and WHEREAS, the City desires to become an Associate Member ofthe 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 hereby agree as follows: Section I. 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. 11 IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership Agreement to be executed and attested by their proper officers thereunto duly authorized, on the day and year first set forth above. CALIFORNIA ENTERPRISE DEVELOPMENT AUTH RITY By: Gurbax Sahota, harr Board of Directors ATTEST: MARIA D. HUIZAR Clerk of the Council ALHO City Ryan RECOMMENDED FOR APPROVAL: FR D MOUSAVIPOUR Executive Director - PWA CITY OF SANTA DAVID CAVAZOS City Manager ROH - 01/20/15 RESOLUTION N0, 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. 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 (1) 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. g�rvalho, City Attorney Rya City A4torney AYES: Councilmembers: Amezcua, Benavides, Martinez, Pulido, Revna Sarmiento, Tinajero (7) NOES: Councilmembers: None (0) ABSTAIN: Councilmembers: None (0) NOT PRESENT: Councilmembers: None (0) 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: 14 Clerk of the Council City of Santa Ana Resolution No. 2015 -002 Page 5 of 5