HomeMy WebLinkAboutCity Council - 2016-03 RESOLUTION NO 2016-03
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON
BEACH APPROVING ASSOCIATE MEMBERSHIP BY THE CITY IN THE
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY,
AUTHORIZING AND DIRECTING THE EXECUTION OF AN ASSOCIATE
MEMBERSHIP AGREEMENT RELATING TO ASSOCIATE MEMBERSHIP
OF THE CITY IN THE AUTHORITY, AUTHORIZING THE CITY TO JOIN
THE FIGTREE PACE PROGRAM, AND AUTHORIZING RELATED ACTIONS
WHEREAS, the City of Huntington Beach, California(the "City"), is a municipal
corporation, duly organized and existing under the Constitution and the laws of the State of
California, and
The City may pursuant to Chapter 5 of Division 7 of Title 1 of the Goveinment 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, and
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 "CEDA")
pursuant to an associate membership agreement and Joint Exeicise of Powers Agreement
Relating to the California Enterprise Development Authority (the "Agreement"), and
The CEDA is a joint exercise of powers authority, comprised of cities and counties in the
State of California which will include the City of Huntington Beach (the "City"), and
Under the JPA Law and the Agreement, CEDA is a public entity separate and apart from
the pasties to the Agreement and the debts, liabilities and obligations of CEDA will not be the
debts, liabilities of obligations of the City of the other members of CEDA, and
The foim of Associate Membership Agreement (the "Associate Membership
Agreement") between the City and CEDA is attached, and
The City is willing to become an Associate Mennbet of the Authority subject to the
piovisions of the Associate Membership Agreement, and
CEDA has adopted the Fighee Pioperty Assessed Clean Energy (PACE) and Job
Cieation Piogiam (the "Program" or "Figtiee 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 impiovennent bonds of other evidences of
indebtedness (the "Bonds") Linder the Improvement Bond Act of 1915 (Streets & Highways
Code Sections 8500 et seq ) (the "1915 Act") upon the security of the unpaid contractual
assessments, and
15-5020/129387 1
Resolution No . 2016-03
Chapter 29 piovides that assessments may be levied under its provisions only with the
ftee and willing consent of the owner of each lot of parcel on which an assessment is levied at
the time the assessment is levied, and
The City desires to piovide the owners of property ("Participating Parcel") within its
jurisdiction ("Participating Property Owners") the ability to voluntaiily participate in Figtree
PACE, and
CEDA has indicated they will conduct any necessaiy assessment proceedings under
Chaptei 29, and
The City autlioiizes CEDA to include pioperty owneis in its juiisdiction, which shall be
the City's official boundaries of iecord at time of adoption of this Resolution, that wish to
voluntaiily participate in the Program to finance the Impiovements in connection with Figtree
PACE, and
To piotect the City in connection with operation of the Figtiee PACE piogram, Figtree
Eneigy Financing (the progiam administiator) has agreed to entei into an Indemnification
Agreement to defend and indemnify the City releasing the City from legal liability related to this
resolution; and
NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby
tesolve as follows:
Section 1. The City Council hereby finds and declaies that the actions authorized by this
resolution will benefit the health, safety and welfare of the City The City Council further finds
that the statements, findings and determinations of the City set forth in the preambles above aie
true and correct
Section 2 The Mayor of the City, the City Manager, the City Clerk 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 and Indemnification Agreement in substantially
the form attached to this resolution, 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 City Manager or designee is heieby authorized and directed to do any and
all things and to execute and delivei 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 Indemnification and Associate Membership Agreement
Section 4 City Council hereby finds and deteimines that the Program will provide
significant public benefits, including without limitation, savings in water and electricity utility
charges
15-5020/129387 2
Resolution No . 2016-03
Section 5 Assessment Proceedinus hi connection with Figtree PACE, the City
hereby consents to the special assessment proceedings that were conducted by CEDA pursuant to
Chapter 29 on any property within the Boundaries, provided that
(1) Such proceedings wei e conducted pui suant to one or more Resolutions of
Intention,
(2) The Participating Propeity 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 Califoinia law in order to accomplish the valid levy
of assessments, and
(3) CEDA will enter into an agreement to indemnify and hold harmless the City for
any liability resulting from this resolution including 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 6 Indemnification The City Council acknowledges that Figtree has
provided the City with an indemnification agreement, as shown in Exhibit B, for any type of
liability as a result of the acts or omissions of Figtree, its officers, employees, subcontractors and
agents or any liability related to this program The City Council hereby authorizes the City
Manager or designee to execute and deliver the Indemnification Agreement to Figtree.
Section 7 City Contact Designation The City Manager is hereby authorized and
directed to make applications for Figtree PACE available to all property owners who wish to
finance Improvements. The City Manager or designee is designated as the contact person for
CEDA in connection with Figtree PACE
Section 8 CE A 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 9. 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
15-5020/129387 3
Resolution No . 2016-03
Section 10 Costs Services related to the formation and administration of the
assessment district will be provided by CEDA at no cost to the City
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regul ai meeting thereof held on the 19 t h day of January 2016
yo
REVIE ND APPROVED APPROVED AS ORM
sty Manager' City Attoiney tW 1_13-14.
I IATED A D A OVED.
Assistant`Gu anager
15-5020/129387 4
Exhibit A
ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and the
CITY OF HUNTINGTON BEACH, CALIFORNIA
THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership
Agreement"), dated as of �AA)w4g� /9 , 2016 by and between CALIFORNIA
ENTERPRISE DEVELOPMENT AUTHORITY (the "Authority") and the CITY OF
HUNTINGTON BEACH, CALIFORNIA, a 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
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
The Authority has been formed for the purpose, among others, to assist for profit and
nonprofit corporations and other entities to obtain fmancing for projects and purposes serving the
public interest, and
The Agreement permits any other local agency in the State of California to join the
Authority as an associate member(an"Associate Member"), and
The City desires to become an Associate Member of the Authority, and
The City Council of the City has adopted a resolution approving the Associate
Membership Agreement and the execution and delivery thereof, and
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.
15-5020/129219 1
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 herem 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.
15-5020/129219 2
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
DEVELOP'/-�'NT H
By: �x
Gurbax Saho Chair
Board of Directors
AM
1 &fi S8wwar Asst Secret y
CITY OF HVNTINGTON BEACH,
CALIFORNIA
By A- � W AdA
Mayo
Attest
City CiA
In d Approv
B ( �1
ssistant City ,er
Approved as to Fo
By
City Attorney ij f
Reviewed and AD Droved:
BY
_ JlAg�-�
i Yanager
15-5020/129219 3
Exhibit B
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF HIJNTINGTON BEACH AND
FIGTREE COMPANY, INC.
This Indemnification Agreement(the "Agreement") is entered into by and between the City of
Huntington Beach, a municipal corporation or political subdivision, 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
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
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
The legislative body of the Public Entity adopted or will adopt a resolution authorizing the
Public Entity to join the Figtree PACE Program, and
The Public Entity will not liable in any way for damages in law or equity related to 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 or otherwise any claims
regarding creation,implementation or involvement m the Figtree PACE Program, and
Figtree Company, Inc. agrees to indemnify the Public Entity for any and all operations of
the Figtree PACE Program as set forth herein
15-5020/129160 2 1
NOW,THERFORE, in consideration of the above promises and of the Public Entity's
agreement to join the Figtree PACE Program,the parties agree as follows:
1 . 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 marketmg thereof.
Figtree 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 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
a Workers' Compensation Insurance - Pursuant to California Labor Code Section
1861, Figtree acknowledges awareness of Section 3700 et seq of this Code, which
requires every employer to be insured against liability for workers' compensation;
Figtree covenants that it will comply with such provisions prior to commencmg
performance of the work hereunder
Figtree shall obtain and furnish to Public Entity workers' compensation and
employer's liability insurance in an amount of not less than the State statutory limits
Figtree shall require all subcontractors to provide such workers' compensation and
employer's liability insurance for all of the subcontractors' employees Figtree shall
furnish to Public Entity a certificate of waiver of subrogation under the terms of the
workers' compensation and employer's liability insurance and Figtree shall similarly
require all subcontractors to waive subrogation
b. General Liability Insurance — In addition to the workers' compensation and
employer's liability insurance and Figtree's covenant to defend, hold harmless and
indemnify Public Entity, Figtree shall obtain and furnish to Public Entity, a policy of
general public liability insurance, including motor vehicle coverage covering the
Project/Service This policy shall indemnify Figtree, its officers, employees and
agents while acting with the scope of their duties, agamst any and all claims ansmg
out or in connection with the Project/Service, and shall provide coverage in not less
than the following amount combined single limit bodily injury and property
damage, including products/completed operations liability and blanket contractual
liability, of One Million Dollars ($1,000,000) per occurrence If coverage is
provided under a form which includes a designated general aggregate limit, the
aggregate limit must be no less than One Million Dollars ($1,000,000) for this
Project/Service This policy shall name Public Entity, its officers, elected or
4825-8409-6773 1 2
appointed officials, employees, agents, and volunteers as Additional Insureds, and
shall specifically provide that any other insurance coverage which may be applicable
to the Project/Service shall be deemed excess coverage and that Figtree's insurance
shall be primary.
Under no circumstances shall said above-mentioned insurance contain a self-insured
retention. Any deductible in excess of$5,000 must be approved by Public Entity
c . Automobile Liability Insurance—Figtree shall obtain and furnish to Public Entity
an automotive liability insurance policy covering the work performed by it
hereunder This policy shall provide coverage for Figtree's automotive liability in
an amount not less than One Million Dollars ($1,000,000) per occurrence and a
separate "Additional Insured Endorsement" page listing both the policy number and
naming the "City of Huntington Beach, its officers, elected or appointed officials,
employees, agents and volunteers" as additional insured on the endorsement The
above mentioned insurance shall not contain a self-insured retention, "deductible" or
any other sunilar form of limitation on the required coverage in excess of $1,000
without the express written consent of Public Entity
d. Certificate of Insurance — Prior to commencing performance of the work
hereunder, Figtree shall furnish to Public Entity a certificate of insurance subject to
approval of the City Attorney evidencing the foregoing insurance coverage as
required by this Agreement;the certificate shall
i Provide the name and policy number of each carrier and policy,
ii State that the policy is currently in force, and
ill Promise that such policy shall not be suspended, voided, or canceled by
either party, reduced in coverage or in limits except after thirty (30) days'
prior written notice, however, ten (10) days' prior written notice in the event
of cancellation for nonpayment of premium
Figtree shall maintain the foregoing insurance coverage in force until the work
under this Agreement is fully completed and accepted by the Public Entity
The requirement for carrying the foregoing insurance coverage shall not derogate
from Figtree's defense, hold harmless and indemnification obligations as set forth
in this Agreement Public Entity or its representative shall at all times have the
right to demand the original or a copy of the policy of insurance Figtree shall
pay, in prompt and timely manner, the premiums on the insurance hereinabove
required
4925-8409-6773 1
2. Amend ment/Interpretation of this Agreement. Thus 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 somtlar),
nor shall such waiver constitute a continuing waiver. Except as specifically provided hereon, no
failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a
waiver thereof
5. SeverabiIity 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 permitted
hereunder shall be made on writing and shall be deemed to have been duly given of delivered by
hand, against receipt, or mailed certified or registered mail and addressed as follows
If to the Administrator Figtree Company, Inc
9915 Mora Mesa Blvd, Suite 130
San Diego, California 92131
Atta. Chief Executive Officer
If to the Public Entity. City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn• Antonia Graham
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
4825-8409-6773 1 4
IN WITNESS HEREOF,the parties hereto duly executed this Agreement as of the date below.
FIGTREE COMPANY, INC., CITY OF HUNTINGTON BEACH,
A C orma corporation a municipal corporation of the State of California
By
F C1 her
print name
ITS (circle one) Chairman/President/Vice
President CEO APPROVED AS RAC:
AND
ty o
BY l'Vi'i�~ PZ�
JA u s rney
ST p tlT
print name
ITS (circle one) Secretary/Chief Financial
Officer/Asst. Secretary- Treasurer
DIr�r—Ter, Ot= FINA►JC,F,
4825-8409-6773 1 5
Res. No. 2016-03
STATE OF CALIFORNIA
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, JOAN L FLYNN the duly elected, qualified City Clerk of the City of
Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby
certify that the whole number of members of the City Council of the City of
Huntington Beach is seven, that the foregoing resolution was passed and adopted
by the affirmative vote of at least a majority of all the members of said City Council
at a Regular meeting thereof held on January 19, 2016 by the following vote
AYES: Posey, O'Connell, Katapodis, Hardy, Delgleize
NOES: Sullivan, Peterson
ABSENT: None
ABSTAIN: None
City CI k and ex-offici Clerk of the
City Council of the City of
Huntington Beach, California