RES-2013-159RESOLUTION NO. 2013-159
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ANAHEIM AUTHORIZING THE CITY OF ANAHEIM 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 ANAHEIM; AUTHORIZING RELATED ACTIONS;
AND APPROVING A PARTICIPATION AGREEMENT WITH THE
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY AND
FIGTREE ENERGY FINANCING IN FURTHERANCE OF THE
FIGTREE PACE PROGRAM
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 Anaheim (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 make the FIGTREE PACE available to the
owners of property within its jurisdiction ( "Participating Property Owners "), 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 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
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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, based upon such authorization as provided in the Participation
Agreement, a copy of which is attached hereto as Exhibit B, 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
Anaheim, as follows:
1. The City Council hereby finds and determines that the 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.
2. 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:
(a) Such proceedings are conducted pursuant to one or more Resolutions of
Intention in substantially the form of the ROI;
(b) 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;
(c) 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.
3. The City Council hereby approves the Participation Agreement between
the City and CEDA in the form attached hereto. The City Council hereby authorizes the City
Manager to execute the Participation Agreement.
4. Except as expressly provided for in this Resolution or the Participation
Agreement, City shall not have any liabilities or obligations or incur any costs or expenses for
the FIGTREE PACE program, including, but not limited to, the repayment of any bonds issued
for the FIGTREE PACE program.
5. 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.
6. 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.
7. The City shall cooperate with the CEDA to provide information and other
documentation as needed in order for the CEDA to implement the Program; provided however, such
cooperation shall not be deemed to be approval without appropriate review of such information or
documents
8. The City Council hereby consents to the CEDA serving as lead agency under
the California Environmental Quality Act ( "CEQA "), for any environmental review that may be
required in connection with the Program.
9. The City consents to the assumption of jurisdiction by CEDA for all purposes
of the FIGTREE PACE and authorizes CEDA, upon satisfaction of the conditions imposed in this
resolution and in accordance with applicable law, to take each and every step required for or suitable
for financing the Improvements, including the levying, collecting and enforcement of the contractual
assessments to finance the Improvements and the issuance and enforcement of bonds to represent and
be secured by such contractual assessments.
10. 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 Resource Company.
THE FOREGOING RESOLUTION is approved and adopted by the City Council of
the City of Anaheim this 8th day of October , 2013, by the following roll call vote:
AYES: Mayor Tait, Council Members Eastman, Murray, Brandman and Kring
NOES: None
ABSENT: None
ABSTAIN:None
Tom Tait
ATTEST Mayor, City of Anaheim
City Clerk of the City of Anahe
I'll
EXHIBIT A
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 ANAHEIM
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 Anaehim (the "City ")
located in Orange County (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.
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(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 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
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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.
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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.
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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.
adoption.
PASSED AND ADOPTED this
This resolution shall take effect immediately upon its
day of , 201 .
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
LIM
Gurbax Sahota, Chair
ATTEST:
Larry Cope, Secretary
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EXHIBIT B
Participation Agreement
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PARTICIPATION AGREEMENT
by and among the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and
FIGTREE ENERGY FINANCING
and the
CITY OF ANAHEIM
Dated as of , 2013
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PARTICIPATION AGREEMENT
This PARTICIPATION AGREEMENT, made and entered into as of , 2013,
by and among the CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY, a joint
powers agency organized and existing under the laws of the State of California ( "CEDA "), third
party administrator FIGTREE Energy Financing ( "FIGTREE "), and the City of Anaheim, a
municipal corporation organized and existing under the laws of the State of California (the
"Participating Member ");
WITNESSETH:
In consideration of the mutual covenants herein contained, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree, as follows:
Recitals
(a) CEDA is a joint powers agency organized and existing pursuant to the Joint
Powers Act, comprising Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1
(commencing with Section 6500) of the Government Code of the State of
California; and
(b) CEDA has adopted the FIGTREE Property Assessed Clean Energy (PACE) and
Job Creation Program (the "Program" or " FIGTREE PACE "), for the financing of
renewable generation and energy efficient and water savings equipment on
improved commercial, industrial and residential property within the Participating
Member's jurisdiction; and
(c) CEDA has retained third party administrator, FIGTREE, to carry out the
implementation of the Program; and
(d) The Participating Member is a municipal corporation a member of CEDA in
good standing; and
(e) The Participating Member has authorized CEDA to form an assessment district
(the "District ") for the PACE financing of renewable generation and energy
efficient and water savings improvements on certain properties owned by property
owners who voluntarily agree to participate in the Program ( "Program
Participant "); and
(f) CEDA intends to issue bonds, notes or other forms of indebtedness (the "Bonds ")
to finance improvements within the District and in consideration therefore,
assessments shall be recorded against each parcel prior to the issuance of the
Bonds. Installments of principal and interest sufficient to meet annual debt
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service on the Bonds, and related administration costs and expenses, are to be
included on the regular county tax bills sent to each Program Participant.
(g) The Participating Member desires to authorize CEDA to (i) record the assessment
against the participating property owner's 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 ") and (iii) prepare program guidelines for the operations of the
Program; and
NOW THEREFORE:
Section 1. Recitals The Recitals contained herein are true and correct and are hereby
incorporated herein by reference.
Section 2. Appointment of CEDA The City is not and will not be deemed to be an agent
of FIGTREE or CEDA as a result of this Agreement. The City consents to CEDA's assumption
of rights, responsibilities, obligations and liabilities related to the Agreement within its
jurisdiction upon satisfaction of the conditions imposed pursuant to this Agreement and the
resolution authorizing this Agreement, to take each and every step required for or suitable for
financing the Improvements, including the levying, collecting and enforcement of the contractual
assessments.
Section 3. Indemnification. FIGTREE has provided 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 negligent performance
by FIGTREE of the work required under the agreement between FIGTREE and CEDA.
FIGTREE, on behiilf of itself and CEDA, agrees to defend, indemnify, and hold harmless the
Participating Member, its officers, agents, employees and attorneys from and against any and all
liabilities, claims, or demands arising or alleged to arise as a result of CEDA or FIGTREE'S
performance or failure to perform under this Agreement or the Program, except that arising from
the sole negligence or willful misconduct of Participating Member.
Section 4. Except as expressly set forth in this the Participation Agreement or Resolution
[INSERT NUMBER], City shall not have any liabilities or obligations or incur any costs or
expenses for the FIGTREE PACE program, including, but not limited to, the repayment of any
bonds issued for the FIGTREE PACE program.
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IN WITNESS WHEREOF, the parties hereto have executed this Participation Agreement
by their officers duly authorized as of the day and year first written above.
CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY
Gurbax Sahota, Chair
FIGTREE ENERGY FINANCING
Mahesh Shah, CEO
CITY OF ANAHEIM
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Marcie L. Edwards, City Manager
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