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RES-2015-200RESOLUTION NO. 201 5-200 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO CONDUCT ANY LEVY CONTRACTUAL ASSESSMENTS WITHIN THE CITY OF ANAHEIM IN ACCORDANCE WITH THE CALIFORNIA STREET AND HIGHWAYS CODE; AND APPROVING A PARTICIPATION AGREEMENT FOR THE CALIFORNIAFIRST PROGRAM AND AUTHORIZNG THE CITY MANAGER TO EXECUTE THAT AGREEMENT AND TAKE SUCH ACTIONS AS NECESSARY TO IMPLEMENT AND ADMINISTER THE AGREEMENT. WHEREAS, the California Statewide Communities Development Authority ("California Communities") 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, California Communities has established the CaliforniaFIRST program (the "CaliforniaFIRST Program") to allow the financing of certain renewable energy, energy and water efficiency improvements, and seismic strengthening improvements (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 CaliforniaFIRST Program and to allow California Communities to conduct assessment proceedings under Chapter 29 within the incorporated territory of the City and to issue Bonds under the 1915 Act to finance the Improvements; and WHEREAS, California Communities will conduct assessment proceedings under Chapter 29 and issue Bonds under the 1915 Act to finance Improvements; WHEREAS, to protect the City in connection with any liabilities associated with the CaliforniaFIRST Program, Renewable Funding, LLC ("Renewable Funding"), the third party administer of the program, and California Communities 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 A, 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 CaliforniaFIRST 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 CaliforniaFIRST Program within the incorporated territory of the City and, pursuant thereto, the conduct of special assessment proceedings by California Communities pursuant to Chapter 29 and the issuance of Bonds under the 1915 Act. Sec?ion 2. In connection with the CaliforniaFIRST Program, the City hereby consents to the conduct of special assessment proceedings by California Communities 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 will not be responsible for 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 CaliforniaFIRST Program. (3) The issuance of Bonds will occur following receipt of a final judgment in a validation action filed by California Communities pursuant to Code of Civil Procedure Section 860 that the Bonds are legal obligations of California Communities. Section 3. Pursuant to the requirements of Chapter 29, California Communities has prepared and will update from time to time the "Program Report" for the CaliforniaFIRST Program (the "Program Report"), and California Communities 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 CaliforniaFIRST program available to all property owners who wish to finance Improvements; provided, that California Communities shall be responsible for providing such applications and related materials at its own expense. Section 5. The City Council hereby approves the Participation Agreement between the City, California Communities, and Renewable Funding in the form attached hereto. The City Council hereby authorizes the City Manager to execute the Participation Agreement and related documents, and to take such actions as are necessary to implement and administer the Participation Agreement. Section 6. City shall not have any liabilities or obligations or incur any costs or expenses for the CaliforniaFIRST Program, including, but not limited to, the repayment of any bonds issued for the CaliforniaFIRST Program. The City may terminate its consent to the Authority conducting contractual assessments within the City within thirty (30) days prior written notice from the City Manager. Section 7. The City Council hereby consents to the California Communities 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 City Clerk is hereby authorized and directed to transmit a certified copy of this resolution to the Secretary of California Communities. THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 16th day of ,lune 2015, by the following vote: Mayor Tait and Council Members Kring, Murray, Brandman, AYES: and Vanderbilt NOES: None ABSENT: None ABSTAIN: .None CITY OF NAHEIM ' Z 7 MAYOR OF THE CITY OF ANAHEIM ATTE CITY CLERK OF THE CITY OP -ANAHEIM 109975 EXHIBIT A PARTICIPATION AGREEMENT PARTICIPATION AGREEMENT This PARTICIPATION AGREEMENT ("Agreement"), made and entered into as of 2015, by and among the CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT .AUTHORITY, a joint powers agency organized and existing under the laws of the State of California ("CALIFORNIA COMMUNITIES"), and Renewable Funding, LLC, a California limited liability company ("RENEWABLE FUNDING"), third party administrator of the CaliforniaFIRST Program, and the City of Anaheim, a municipal corporation organized and existing under the laws of the State of California (the "PARTICIPATING MEMBER"); WITNESSETH: (a) CALIFORNIA COMMUNITIES 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) CALIFORNIA COMMUNITIES has adopted the CaliforniaFIRST Program (the "Program"), for the financing of certain renewable energy and energy and water efficiency improvements ("Improvements) authorized by Chapter 29 of the Streets & Highways Code ("Chapter 29") within the Participating Member's jurisdiction; and (c) CALIFORNIA COMMUNITIES selected RENEWABLE FUNDING to the third party administer the Program; and (d) The Participating Member has authorized CALIFORNIA COMMUNITIES 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 (e) CALIFORNIA COMMUNITIES intends to issue bonds, notes or other forms of indebtedness (the "Bonds") to finance Improvements within the District; and (f) The .Participating Member desires to authorize CALIFORNIA COMMUNITIES 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 1915 (commencing with Section 8500 et seq.) and (iii) prepare program guidelines for the operations of the Program; and 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 CALIFORNIA COMMUNITIES. PARTICIPATING MEMBER is not and will not be deemed to be an agent of CALIFORNIA COMMUNITIES as a result of this Agreement. PARTICIPATING MEMBER consents to CALIFORNIA COMMUNITIES'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. CALIFORNIA COMMUNITIES and RENEWABLE FUNDING 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 CALIFORNIA COMMUNITIES or RENEWABLE FUNDING'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. PARTICIPATING MEMBER has no liability. Except as expressly set forth in this the Agreement or Resolution [INSERT NUMBER], PARTICIPATING MEMBER 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. 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 rhe 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, CALIFORNIA COMMUNITIES and RENEWABLE FUNDING agrees 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 the other Party or to its Representatives, and specifically includes but is not limited to (1) PARTICIPATING MEMBER's individually 2 identifiable customer information, (2) PARTICIPATING MEMBER's customer data and financial data, and (3) CALIFORNIA COMMUNITIES property owner information disclosing to PATICIPATING MEMBER pursuant to Section 5. (b) CALIFORNIA COMMUNITIES, RENEWABLE FUNDING and PARTICIPATING MEMBER shall each hold the other's Confidential Information in confidence. No Party shall make the other's Confidential Information available in any form to any third party or use the other's Confidential Information for any purpose other than as specified in this Agreement. The Party providing Confidential Information ("Disclosing Party") to the 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 the 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 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 the other Party information that is Confidential Information. This Agreement does not diminish, revoke or supersede any existing confidentiality, non -disclosure or similar agreement between the 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) The Receiving Party will treat all Confidential Information of the Disclosing Party, no matter written, electronic, or oral, as confidential and proprietary, and the Receiving Party shall only use such information in furtherance of this Agreement. As such, the 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. Receiving Party shall not disclose Confidential Information of the 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. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party 3 and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. Neither Party shall use the Confidential Information of the other Party for any commercial purpose. (e) If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the 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. (f) In the event the 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 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 other 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 the Receiving Party may have. (g) Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement. Section 7. Integration. This Agreement contains the entire agreement of PARTICIPATING MEMBER, RENEWABLE FUNDING and CALIFORNIA COMMUNITIES with respect to the matters covered hereby, and no agreement, statement or promise made by PARTICIPATING MEMBER, RENEWABLE FUNDING or CALIFORNIA COMMUNITIES 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. 4 Section 8. This Agreement may be terminated by either CALIFORNIA COMMUNITIES or PARTICIPATING MEMBER with thirty (30) days written notice. In the event of such termination, the CALIFORNIA COMMUNITIES shall not issue any additional contractual assessments. CALIFORNIA COMMUNITIES shall immediately inform PARTICIPATING MEMBER in writing of the termination of RENEWABLE FUNDING as the third party administrator of the Program, including any anticipated or pending termination. At its option, PARTICIPATING MEMBER may suspend its active participation in the Program, including, but not limited to providing Confidential Information, until CALIFORNIA COMMUNITIES selects a new third party administrator for the Program. Section 9. 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] CITY OF ANAHEIM, a municipal corporation City Manager RENEWABLE FUNDING, a California limited liability company By: [INSERT] ATTEST By: Linda N. Andal, City Clerk 5 APPROVED AS TO FORM: MICHAEL R.W. HOUSTON, CITY ATTORNEY By: Daniel A. Ballin, Deputy City Attorney