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RES-2016-230RESOLUTION NO. 201 6-230 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE TERRITORY OF THE CITY OF ANAHEIM IN THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY (CSCDA) OPEN PROPERTY - ASSESSED CLEAN ENERGY (PACE) PROGRAM; AUTHORIZING THE CSCDA TO CONDUCT CONTRACTUAL ASSESSMENT PROCEEDINGS AND TO LEVY CONTRACTUAL ASSESSMENTS WITHIN THE CITY OF ANAHEIM IN ACCORDANCE WITH THE CALIFORNIA STREETS AND HIGHWAYS CODE; AND APPROVING PARTICIPATION AGREEMENTS FOR THE CSCDA OPEN PACE PROGRAM AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENTS AND ANY AMENDMENTS OR RELATED DOCUMENTS AND TAKE SUCH ACTIONS AS NECESSARY TO IMPLEMENT AND ADMINISTER THE AGREEMENTS. WHEREAS, the California Statewide Communities Development Authority ("Authority") is a joint exercise of powers authority the members of which include numerous cities and counties in the State of California, including the City of Anaheim (the "City"); and WHEREAS, the Authority is implementing a property -assessed clean energy program, which it has designated the CSCDA Open PACE program (the "Program") to allow the financing or refinancing of certain renewable energy, energy and water efficiency improvements, and seismic strengthening improvements, electric vehicle charging infrastructure and such other improvements, infrastructure or other work as may be authorized by law from time to time (the "Improvements") authorized by Chapter 29 of Division 7 of the Streets & Highways Code ("Chapter 29"), through the levy of contractual assessments and the issuance of improvement bonds (the "Bonds") under the Improvement Bond Act of 1915 (Streets and Highways Code Sections 8500 and following) (the "1915 Act") upon the security of the unpaid contractual assessments; and WHEREAS, Chapter 29 provides that assessments may be levied under its provisions only with the free and willing consent of the owner of each lot or parcel on which an assessment is levied at the time the assessment is levied; and WHEREAS, the City desires to allow the owners of property ("Participating Property Owners") within the incorporated territory of the City to participate in the Program and to allow the Authority to conduct assessment proceedings under Chapter 29 within the incorporated territory of the City and to issue Bonds under the 1915 Act to finance or refinance the Improvements; and WHEREAS, the Authority will conduct assessment proceedings for the Program under Chapter 29 and issue Bonds under the 1915 Act to finance Improvements; and WHEREAS, the Authority will engage other entities to administer the Program within the City of Anaheim ("Administrator" or "Administrators"), including CounterPointe Energy Solutions (CA) LLC, PACE Funding LLC, CleanFund Commercial PACE Capital and Spruce Finance; and WHEREAS, to protect the City in connection with any liabilities associated with the Program, the Authority, CounterPointe Energy Solutions (CA) LLC, PACE Funding LLC, CleanFund Commercial PACE Capital and Spruce Finance have agreed to defend and indemnify the City; and WHEREAS, based upon such authorization as provided in the form Participation Agreement, a copy of which is attached hereto as Exhibit A, ("Participation Agreement"), the City shall have no responsibility for the Program whatsoever, including but not limited to, 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 the Program. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Anaheim as follows: Section 1. This City Council hereby finds and declares that properties in the City's incorporated area will benefit from the availability of the Program within the incorporated territory of the City and, pursuant thereto, the conduct of special assessment proceedings by the Authority pursuant to Chapter 29 and the issuance of Bonds under the 1915 Act. Section 2. In connection with the Program, the City hereby consents to the conduct of special assessment proceedings by the Authority pursuant to Chapter 29 on any property within its jurisdiction and the issuance of Bonds under the 1915 Act; provided, that (1) The Participating Property Owners, who shall be the legal owners of such property, execute a contract pursuant to Chapter 29 and comply with other applicable provisions of California law in order to accomplish the valid levy of assessments; and (2) The City shall have no be responsibility for the Program whatsoever, including, but not limited to, the conduct of any assessment proceedings; the levy or collection of assessments or any required remedial action in the case of delinquencies in such assessment payments; or the issuance, sale or administration of the Bonds or any other bonds issued in connection with the Program. (3) The issuance of Bonds will occur following receipt of a final judgment in a validation action filed by the Authority pursuant to Code of Civil Procedure Section 860 that the Bonds are legal obligations of the Authority. Section 3. Pursuant to the requirements of Chapter 29, the Authority has prepared and will update from time to time the "Program Report" for the Program (the "Program Report"), and the Authority will undertake assessment proceedings and the financing of Improvements as set forth in the Program Report. Section 4. The appropriate officials and staff of the City are hereby authorized and directed to make applications for the Program available to all property owners who wish to finance Improvements; provided, that the Authority shall be responsible for providing such applications and related materials at its own expense. 2 Section 5. The City Council hereby approves the Participation Agreement substantially in the form attached hereto. CounterPointe Energy Solutions (CA) LLC, PACE Funding LLC, CleanFund Commercial PACE Capital and Spruce Finance shall each execute a Participation Agreement with the City and Authority in order to act as an authorized Administrator. Other than these entities, no entity shall be authorized to become an Administrator without the written approval of the City Manager and that entity's execution of a Participation Agreement. The City Council hereby authorizes the City Manager to execute (a) Participation Agreements with the Authority and any proposed third party administrators, (b) any amendments thereto, and (c) other related documents. Amendments to the Participation Agreements are authorized so long as those amendments substantially conform to the terms and conditions set forth in Exhibit A. The City Manager is also authorized to take such actions as are necessary to implement and administer the Participation Agreements. Section 6. City shall not have any liabilities or obligations or incur any costs or expenses for the Program, including, but not limited to, the repayment of any bonds issued for the Program. With thirty (30) days prior written notice from the City Manager, the City may terminate the authorizations granted to the Authority herein, including but not limited, conducting of additional contractual assessment proceedings and levying contractual assessments; provided that no such termination shall prevent the Authority from continuing to levy contractual assessments on properties previously committed to pay contractual assessments under the Program. The foregoing termination shall terminate any express or implied rights an Administrator may have, whether these rights have been assigned by the Authority or granted through the Participation Agreements or any amendments thereto. Section 7. The City Council hereby consents to the Authority serving as lead agency under the California Environmental Quality Act for any environmental review that may be required in connection with the Program. Section 8. This Resolution shall take effect immediately upon its adoption. THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 20th day of December 2016, by the following vote: AYES: Mayor Tait and Council Members Vanderbilt, Murray, NOES: Barnes, Moreno, Kring, and Faessel None ABSENT: None ABSTAIN: None CITY OF ANAHEIM Ti CITY CLERK OF THE CITY OF ANAHEIM 119422 4 MAYOR OF THE CITY OF ANAHEIM EXHIBIT A FORM PARTICIPATION AGREEMENT PARTICIPATION AGREEMENT This PARTICIPATION AGREEMENT ("Agreement"), made and entered into as of , 2016, by and among the CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, a joint powers agency organized and existing under the laws of the State of California (the "AUTHORITY"), [INSERT ADMINISTRATOR], [INSERT TYPE OF ENTITY], ("ADMINISTRATOR") and the City of Anaheim, a municipal corporation organized and existing under the laws of the State of California (the "PARTICIPATING MEMBER"); WITNESSETH: (a) The AUTHORITY 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) The AUTHORITY has adopted the Open CSCDA PACE Program (the "Program"), for the financing of certain renewable energy, energy and water efficiency improvements, and seismic strengthening improvements, electric vehicle charging infrastructure and such other improvements, infrastructure or other work as may be authorized by law from time to time (the "Improvements") authorized by Chapter 29 of Division 7 of the Streets & Highways Code ("Chapter 29") within the PARTICIPATING MEMBER'S jurisdiction; and (c) The PARTICIPATING MEMBER has authorized the AUTHORITY to form an assessment district (the "District") for Program financing of Improvements on certain properties owned by property owners who voluntarily agree to participate in the Program ("Program Participant"); and (d) The AUTHORITY intends to issue bonds, notes or other forms of indebtedness (the "Bonds") to finance Improvements within the District; and (e) The PARTICIPATING MEMBER desires to authorize the AUTHORITY to (i) record the assessment against the participating property owner's parcels, (ii) administer the District in accordance with Chapter 29 and the Improvement Act of 191.5 (commencing with Section 8500 et seq.) and (iii) prepare program guidelines for the operations of the Program; and (f) The PARTICIPATING MEMBER will permit the ADMINISTRATOR to perform certain management, administrative, operational and implementation functions for the AUTHORITY with respect to the Program. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS: Section 1. Recitals. The Recitals contained herein are true and correct and are hereby incorporated herein by reference. Section 2. Appointment of the AUTHORITY. PARTICIPATING MEMBER is not and will not be deemed to be an agent of the AUTHORITY or the ADMINISTRATOR as a result of this Agreement. PARTICIPATING MEMBER consents to the AUTHORITY'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. PARTICIPATING MEMBER consents to the ADMINISTRATOR acting as the third party administrator for the Program in the jurisdiction of the PARTICIPATING MEMBER. In addition, AUTHORITY may add any entity to act as an additional or substitute third -party program administrators (each such substitute or additional administrator, an "Additional Administrator") in the jurisdiction of the PARTICIPATING MEMBER; provided that, the City Manager of the PARTICIPATING MEMBER provides his prior written consent to any such addition or substitution and that entity executes a participation agreement with PARTICIPATING MEMBER and the AUTHORITY. Section 3. Indemnification. The AUTHORITY and the ADMINISTRATOR jointly and severally agree 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 the AUTHORITY's or the ADMINISTRATOR'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. AUTHORITY further 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 the AUTHORITY's or any Additional Administrator's performance or failure to perform under its program administration agreement or with respect to its operation or administration of the Program, irrespective of whether such Additional Administrator has entered into a participation agreement with the City, except that arising from the sole negligence or willful misconduct of PARTICIPATING MEMBER. This Section shall survive termination of this Agreement. Section 4. PARTICIPATING MEMBER has no liability. Except as expressly set forth in this the Agreement or Resolution 2016-177, PARTICIPATING MEMBER shall not have any liabilities or obligations or incur any costs or expenses for the Program, including, but not 2 limited to, the repayment of any bonds issued for the Program. PARTICIPATING MEMBER will not have any responsibilities or obligations with respect to the Program, including, but not limited to, 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 the Program. Section 5. Information to be Provided. Within thirty (30) days of each request from PARTICIPATING MEMBER, the AUTHORITY and ADMINISTRATOR agree to provide PARTICIPATING MEMBER with a list of property owners within the City of Anaheim participating in the Program as well as their address, detailed description of Improvement(s) installed, and date(s) of Improvement(s) completion. Section 6. Confidentiality. (a) "Confidential Information" means, with respect to a Party hereto, all information or material which either (1) is marked or identified as "Confidential," "Restricted," or "Proprietary Information" or other similar marking or identification, or (2) the other Party knew, as recipient, or under the circumstances, should have known, was considered confidential or proprietary by the Disclosing Party (as defined below). Confidential Information shall consist of all information, whether in written, oral, electronic, or other form, furnished in connection with this Agreement by one Party or its Representatives ("Representative" is defined as any elected and appointed officials, affiliate, director, officer, employee, agent, advisor or consultant of a Party or any of its subsidiaries or affiliates) to one or more of the other Parties or to their Representatives, and specifically includes but is not limited to (1) PARTICIPATING MEMBER's individually identifiable customer information, (2) PARTICIPATING MEMBER's customer data and financial data, (3) the AUTHORITY's property owner information disclosing to PATICIPATING MEMBER pursuant to Section 5, and (4) the ADMINISTRATOR's customer data and financial data.. (b) The AUTHORITY, the ADMINISTRATOR and PARTICIPATING MEMBER shall each hold each other's Confidential Information in confidence. No Party shall make the others' Confidential Information available in any form to any third party or use any other's Confidential Information for any purpose other than as specified in this Agreement. The Party providing Confidential Information ("Disclosing Party") to any other Party ("Receiving Party") shall remain the sole owner of such information. Except as provided elsewhere within this Agreement, nothing contained in this Agreement shall be construed as granting or conferring any right or license in any Confidential Information or in any patents, copyrights, software or other technology, either expressly or by implication to any other Party, or to its Representatives or to others. The term Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Agreement by the Receiving Party or its Representative(s); (3) information lawfully furnished or disclosed to the Receiving Party by a non-party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party without 3 use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein. (c) By virtue of this Agreement, each Party hereto may disclose to any other Party information that is Confidential Information. This Agreement does not diminish, revoke or supersede any existing confidentiality, non -disclosure or similar agreement between or among any Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 6 which shall supersede any such previous agreement with respect to such Confidential Information and any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement shall be treated as though it was exchanged under this Agreement as of the date of such exchange. (d) Each Receiving Party will treat all Confidential Information of the Disclosing Party, no matter written, electronic, or oral, as confidential and proprietary, and such Receiving Party shall only use such information in furtherance of this Agreement. As such, such Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party, and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized by the Disclosing Party. No Receiving Party shall disclose Confidential Information of a Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. Each Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of any Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. Each Receiving Party shall be responsible for any breach of this Agreement by its Representatives. No Party shall use the Confidential Information of any other Party for any commercial purpose. (e) If a Receiving Party becomes legally compelled (by the California Public Records Act or other applicable laws, or by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of a Disclosing Party, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy, or waive compliance with the provisions of this Agreement. So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party's sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose, and will exercise commercially reasonable efforts, at Disclosing Party's expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed. M (f) In the event a Receiving Party discloses, disseminates or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination or release will be deemed a material breach of this Agreement and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify the Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the Disclosing Party, the amount of which would be extremely difficult to estimate. Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Paragraph are in addition to any other legal rights or remedies a Disclosing Party may have. (g) Notwithstanding any other provision of this Agreement, the provisions of this Section 6 shall not apply to the disclosure of information that must be shared in order to record, levy or collect contractual assessments under the Program or to sell or securitize Bonds. (h) The Authority shall ensure all Additional Administrators are bound by the provisions of this Confidentiality Section. 0) Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement. Section 7. Integration. This Agreement is subject to the terms of Resolution 2016-177. This Agreement contains the entire agreement of PARTICIPATING MEMBER, the ADMINISTRATOR, and the AUTHORITY with respect to the matters covered hereby, and no agreement, statement or promise made by PARTICIPATING MEMBER, the ADMINISTRATOR, and the AUTHORITY which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose. Section 8. Termination. This Agreement may be terminated by either the AUTHORITY or PARTICIPATING MEMBER with thirty (30) days written notice. In the event of such termination, the AUTHORITY, the ADMINISTRATOR, or any Additional Administrator shall no longer have the rights and authorizations granted in this Agreement and Resolution 2016-177, including but not limited to, conducting of additional contractual assessment proceedings and levying new contractual assessments, except to the extent the AUTHORITY may have such rights and authorizations under a separate participation agreement. Section 9. No Endorsements. The AUTHORITY and ADMINISTRATOR shall not represent to any person or entity that PARTICIPATING MEMBER endorses or is a Program affiliate of the AUTHORITY or ADMINISTRATOR. In connection therewith and without limiting the foregoing prohibition, the AUTHORITY and ADMINISTRATOR shall not use any 5 logo or other representation of the PARTICIPATING MEMBER. The Authority shall ensure all Additional Administrators are bound by the provisions of this Section. Section 10. Effective Date. This Agreement shall be effective on the date on which this Agreement is executed by the PARTICIPATING MEMBER ("Effective Date"). 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 STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY By: [INSERT] [INSERT ADMINISTRATOR] By: CITY OF ANAHEIM, a municipal corporation By: City Manager ATTEST By: Linda N. Andal, City Clerk APPROVED AS TO FORM: ANAHEIM CITY ATTORNEY 0 Daniel A. Ballin, Deputy City Attorney 119446 0 CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LINDA ANDAL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Resolution No. 2016-230 adopted at a regular meeting provided by law, of the Anaheim City Council held on the 20th day of December, 2016, by the following vote of the members thereof: AYES: Mayor Tait and Council Members Vanderbilt, Murray, Barnes, Moreno, Kring, and Faessel NOES: None ABSTAIN: None ABSENT: None IN WITNESS WHEREOF, I have hereunto set my hand this 3rd day of January, 2017. n CITY CLERK O THE CITY OF ANAHEIM -+o0- (SEAL)