HomeMy WebLinkAbout2017-009 1 RESOLUTION NO. 2017-09
2 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
3 BERNARDINO, CALIFORNIA, APPROVING ASSOCIATE MEMBERSHIP BY THE
CITY IN THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY;
4 AUTHORIZING CITY MANAGER TO EXECUTE AN ASSOCIATE MEMBERSHIP
5 AGREEMENT OF THE CITY IN THE AUTHORITY; AUTHORIZING THE CITY
TO JOIN THE FIGTREE PACE PROGRAM; AUTHORIZING THE CALIFORNIA
6 ENTERPRISE DEVELOPMENT AUTHORITY TO CONDUCT CONTRACTUAL
ASSESSMENT PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS
7 WITHIN THE TERRITORY OF THE CITY; AND AUTHORIZING RELATED
8 ACTIONS.
9 WHERAS,the City of San Bernardino, California, a municipal corporation, is duly
10 organized and existing under the Constitution and laws of the State of California; and
11 WHEREAS,the City upon authorization of the Mayor and City Council, may
pursuant to Chapter 5 of Division 7 of Title 1 of the Government Code of the State of
12 California, commencing with Section 6500 (the "JPA Law") enter into a joint exercise of
13 powers agreement with one or more other public agencies pursuant to which such contracting
parties may jointly exercise any power common to them; and
14
WHEREAS,the City and other public agencies wish to jointly participate in
15 economic development financing programs for to the benefit of businesses and nonprofit
16 entities within their jurisdictions offered by membership in the California Enterprise
Development Authority ("CEDA")pursuant to an Associate Membership Agreement and
17 Joint Exercise of Powers Agreement relating to the California Enterprise Development
18 Authority (the "Agreement"); and
19 WHEREAS, under the JPA law and the Agreement, CEDA is a public entity separate
20 and apart from the parties to the Agreement and the debts, liabilities and obligation of CEDA
will not be the debts, liabilities or obligations of the City or the other members of the
21 Authority; and
22 WHEREAS,the form of Associate Membership Agreement (the "Associate
23 Membership Agreement") between the City and CEDA, a copy of which is attached hereto as
24 Exhibit"A;" and
25 WHEREAS,the City is willing to become an Associate Member of CEDA subject to
the provisions of the Associate Membership Agreement; and
26
WHEREAS, CEDA has adopted the Figtree Property Assessed Clean Energy (PACE)
27 and Job Creation Program (the "Program" or"Figtree PACE") to allow the financing of
28 certain renewable energy, energy efficiency, seismic retrofits, electric vehicle charging
infrastructure and water efficiency improvement (the "Improvements") through the levy of
1
1 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
2 indebtedness (the "Bonds") under the Improvement Bond Act of 1915 (Streets and Highways
3 Code Sections 8500 et seq.) (the "1915 Act") upon the security of the unpaid contractual
assessments; and
4
WHEREAS, Chapter 29 provides that assessments may be levied under its provisions
5 only with the free and willing consent of the owner of each lot or parcel on which an
6 assessment is levied at the time of the assessment is levied; and
7 WHEREAS, the City desires to allow the owners of property ("Participating Parcel")
8 within its jurisdiction ("Participating Property Owners") of participate in Figtree PACE, and
to allow CEDA to conduct assessment proceedings under Chapter 29 and to issue Bonds
9 under the 1915 Act to finance the Improvements; and
10 WHEREAS,there has been presented at this meeting a proposed form of Resolution
11 of Intention(the "ROI")to be adopted by CEDA in connection with such assessment
12 proceedings, a copy of which is attached hereto as Exhibit"B;"; and
13 WHEREAS, said ROI sets forth the territory within which assessments may be levied
for Figtree PACE which territory shall be continuous with the City's official boundaries of
14 record at the time of adoption of the ROI (the "Boundaries"); and
15 WHEREAS, pursuant to Chapter 29, the City authorizes CEDA to conduct
16 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
17 Figtree PACE; and
18 WHEREAS,to protect the City in connection with operation of the Figtree PACE
19 program, Figtree Energy Financing, the program administrator has agreed to defend and
20 indemnify the City; and
21 WHEREAS, 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
22 delinquencies, the issuance, sale or administration of the bonds or indebtedness issued in
23 conjunction with Figtree PACE.
24 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
25 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
26 SECTION 1. The Mayor and City Council hereby specifically find and declare that
the actions authorized hereby constitute public affairs of the City. The Mayor and City
27 Council further find that the statements, findings and determinations of the City set forth in
the preambles above are true and correct.
28
2
I SECTION 2. The Associate Membership Agreement presented at this meeting, a
copy of which is attached hereto as Exhibit"A"and on file with the City Clerk is hereby
2 approved. The Mayor and City Council hereby authorizes the City Manager to execute and
deliver the Associate Membership Agreement in substantially said form, with such changes
3 therein as such officer may require or approve such approval to be conclusively evidenced by
4 the execution and delivery thereof.
5 SECTION 3. The officers and officials of the City are hereby authorized,jointly and
severally, to do any and all things and to execute and deliver any and all documents which
6 they may deem necessary or advisable in order to consummate, carry out, give effect to and
7 comply with the terms and intent of this Resolution and the Associate Membership
Agreement. All such actions heretofore taken by such officers and officials are hereby
8 confirmed, ratified and approved.
9
SECTION 4. Good Standing. The City is a municipal corporation and is in good
10 standing.
11 SECTION 5. Publics Benefit. On the date hereof, the Mayor and City Council
12 hereby find and determine that the Program and issuance of Bonds by CEDA in connection
with Figtree PACE could provide significant public benefits, including without limitation,
13 savings in effective interest rates, bond preparation, bond underwriting and bond issuance
14 costs and reductions in effective user charges levied by water and electricity providers within
15 the boundaries of the City.
16 SECTION 6. Appointment of CEDA. The City hereby appoints CEDA as its
representative to (i) record the assessment against the Participating Parcels, (ii) administer the
17 District in accordance with the Improvement Act of 1915 (Chapter 29 Part 1 of Division 10 of
i8 the California Streets and Highways Code (commencing with Section 8500 et seq.) (the
"Law"), (iii)prepare program guidelines for the operation of the Program and (iv) proceed
19 with any claims, proceedings or legal actions as shall be necessary to collect past due
20 assessments on the properties within the District in accordance with the Law and Section
6509.6 of the California Government Code. The City is not and will not be deemed to be an
21 agent of Figtree or CEDA as a result of this Resolution.
22 SECTION 7. Assessment Proceedings. In connection with Figtree Pace, the City hereby
23 consents to the special assessment proceedings by CEDA pursuant to Chapter 29 on any
24 property within the Boundaries and the issuance of Bonds under the 1915 Act, provided that:
25 (1) Such proceedings are conducted pursuant to one or more Resolutions of Intention in
substantially the form of the ROI;
26
27 (2) The Participating Property Owners, who shall be the legal owners of such property,
28 voluntarily execute a contract pursuant to Chapter 29 and comply with other
3
1 applicable provisions of California Law in order to accomplish the valid levy of
assessments; and
2
3 (3) The City will not be responsible for the conduct of any assessment proceedings, the
levy of assessments, any required remedial action in the case of delinquencies in such
4 assessment payments, or of the issuance, sale or administration of the Bonds in
5 connection with Figtree PACE.
6 SECTION 8. Program Report. The Mayor and City Council hereby acknowledges that
7 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
8 documents, and CEDA will undertake assessment proceedings and the financing of
9 Improvements as set forth in the Program Report.
10 SECTION 9. Foreclosure. The Mayor and City Council hereby acknowledge that the
11 Law permits foreclosure in the event that there is a default in the payment of assessments due
on a property. The Mayor and City Council hereby designates CEDA as its representative to
12 proceed with collection and foreclosure of the liens on the defaulting properties within the
13 District, including accelerated foreclosure pursuant to the Program Report.
14 SECTION 10. Indemnification. The Mayor and City Council acknowledges that Figtree
has provided the City with an indemnification agreement, a copy of which is attached hereto
15 as Exhibit C, for negligence or malfeasance of any type as a result of the acts or omissions of
16 Figtree, its officers, employees, subcontractors and agents. The Mayor and City Council
hereby authorizes the City Manager or his designee to execute and deliver the Indemnification
1 Agreement to Figtree.
18 SECTION 11. City Contact Designation. The appropriate officials and staff of the City
19 are hereby authorized to make applications for Figtree PACE available to all property owners
20 who wish to finance Improvements. The following staff persons, together with any other staff
designated by the City Manager, are hereby designated as the contact persons for CEDA in
21 connection with Figtree PACE: Cruz Esparza IV, Business Development Manager, City
22 Manager's Office, (909)384-5122.
23 SECTION 12. CEQA. The Mayor and City Council hereby find that the adoption of this
Rresolution is not a"project" under the California Environmental Quality Act ("CEQA"),
24 because the Resolution does not involve any commitment to a specific project which may
25 result in a potentially significant physical impact on the environment, as contemplated by
26 Title 14, California Code of Regulations, Section 15378(b) (4).
27 SECTION 13. Effective Date. This Resolution shall take effect immediately upon its
adoption. The City Clerk is hereby authorized to transmit a certified copy of this Resolution
28 to Figtree Energy Financing.
4
1 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING ASSOCIATE MEMBERSHIP BY THE
2 CITY IN THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY; Y,
AUTHORIZING CITY MANAGER TO EXECUTE AN ASSOCIATE MEMBERSHIP
3 AGREEMENT OF THE CITY IN THE AUTHORITY; AUTHORIZING THE CITY
4 TO JOIN THE FIGTREE PACE PROGRAM; AUTHORIZING THE CALIFORNIA
ENTERPRISE DEVELOPMENT AUTHORITY TO CONDUCT CONTRACTUAL
5 ASSESSMENT PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS
WITHIN THE TERRITORY OF THE CITY, ; AND AUTHORIZING RELATED
6 ACTIONS.
7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
8
9 and City Council of the City of San Bernardino at a joint regular meeting thereof, held on the
10 23`d day of January, 2017, by the following vote, to wit:
11 Council Members: AYES NAYS ABSTAIN ABSENT
12 MARQUEZ x
13 BARRIOS x
14 VALDIVIA x
SHORETT x
15 NICKEL x
16 RICHARD x
17 MULVIHILL x
18 :i`�C�2
19 Georgea Hanna, C, City Clerk
20 The foregoing Resolution is hereby approved this day of January, 2017.
21 t
22
23 R. Carey Dav's, Mayor
City of S ernardino
24
25
Approved as to form:
26 Gary D. Saenz, City Attorney
27
28 By:
L) 6
2017-09
Exhibit A
Associate Membership Agreement
ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and the
CITY OF SAN BERNARDINO, CALIFORNIA
THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership
Agreement"), dated as of .ran„arV 91, ?p]7 by and between CALIFORNIA
ENTERPRISE DEVELOPMENT AUTHORITY (the "Authority") and the CITY OF
SAN BERNARDINO, 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
WHEREAS, the Agreement designates the Executive Committee of the Board of
Directors and the President of the California Association for Local Economic Development as
the initial Board of Directors of the Authority; and
WHEREAS, the Authority has been formed for the purpose, among others, to assist for
profit and nonprofit corporations and other entities to obtain financing for projects and purposes
serving the public interest; and
WHEREAS, the Agreement permits any other local agency in the State of California to
join the Authority as an associate member(an"Associate Member"); and
WHEREAS,the City desires to become an Associate Member of the Authority;
WHEREAS, Mayor and City Council of the City have adopted a resolution approving
the Associate Membership Agreement and the execution and delivery thereof;
WHEREAS, the Board of Directors of the Authority has determined that the City should
become an Associate Member of the Authority;
NOW, THEREFORE, in consideration of the above premises and of the mutual
promises herein contained,the Authority and the City do hereby agree as follows:
4833-7301-9141.1
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 herein by reference. From and after the date of execution and
delivery of this Associate Membership Agreement by the City and the Authority, the City shall
be and remain an Associate Member of the Authority.
Section 2. Restrictions and Rights of Associate Members. The City shall not have the
right, as an Associate Member of the Authority, to vote on any action taken by the Board of
Directors or by the Voting Members of the Authority. In addition, no officer, employee or
representative of the City shall have any right to become an officer or director of the Authority
by virtue of the City being an Associate Member of the Authority.
Section 3. Effect of Prior Authority Actions. The City hereby agrees to be subject to and
bound by all actions previously taken by the Members and the Board of Directors of the
Authority to the same extent as the Members of the Authority are subject to and bound by such
actions.
Section 4. No Obligations of Associate Members. The debts, liabilities and obligations
of the Authority shall not be the debts, liabilities and obligations of the City.
Section S. 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.
4833-7301-9141.2
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
DEVELOPMENT AUTHORITY
By:
Gurbax Sahota,Chair
Board of Directors
Attest:
Helen Schaubmayer,Asst. Secretary
CITY OF SAN BERNARDINO, CALIFORNIA
By:
Mark Scott, City Manager
Attest:
Georgeann Hanna, CMC, City Clerk
APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By:
4833-7301-9141.3
Exhibit A 1
CEDA Bylaws
BYLAWS
OF THE
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
(adopted by the CEDA Board of Directors,July 14, 2006)
(amended by the CEDA Board of Directors,June 22, 2007)
ARTICLE I
DEFINITIONS
The definitions of terms used in these Bylaws shall be the same as those contained
in the Joint Powers Agreement creating the California Enterprise Development Authority
(hereinafter called the"Agreement,"unless otherwise expressly provided).
ARTICLE II
OFFICES
The Authority's principal office for the transaction of business is located at 550
Bercut Drive, Suite G, Sacramento, California 95814.
ARTICLE III
LIMITATION ON AUTHORITY
The Authority's exercise of its power under the Agreement and these Bylaws shall be
restricted to the extent required under Section 6509 of the Act. The City of Eureka is hereby
designated pursuant to Section 6509 of the Act. This designation may be changed by a majority
vote of the Board of Directors.
ARTICLE IV
MEETINGS OF THE VOTING MEMBERS
1. Regular Meetings
(a) Time Held
The Voting Members shall hold at least one meeting per year. The regular annual
meeting of the Voting Members (the "Annual Meeting") should, if practicable, be scheduled at
least one year prior to such meeting. Unless otherwise changed by a majority vote of the Voting
Members at a regular meeting, the Annual Meeting shall be held at 9:00 a.m. on the First
Thursday in June of each year. Should such day fall upon a legal holiday, the Annual Meeting
shall be held on the next following business day.
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(b) Business To Be Transacted
At each Annual Meeting, the Voting Members shall review, modify if necessary,
and adopt the annual program plan or work plan of the Authority for the following Fiscal Year.
Such program plan or work plan shall be submitted to the Voting Members by the Executive
Director of the Authority no later than thirty (30) days prior to the Annual Meeting.
At any meetings, the Voting Members may transact any other business within
their powers, and receive reports of the operations and affairs of the Authority.
(c) Notice
Written notice of each regular meeting of the Voting Members shall be delivered
to each Voting Member at least seven (7) days in advance of the meeting. The notice shall
specify:
(i) The place, date and hour of the meeting.
(ii) Those matters which are intended to be presented for action by the
Voting Members.
(iii) The general nature of any proposal for action by the Voting
Members concerning a change in the Voting Members of the
Authority or any other matter substantially affecting the rights and
obligations of the Authority and its Members.
2. Special Meetings
A special meeting of the Voting Members may be called at any time by written
notice of any Voting Member to the Board of Directors and the Voting Members, subject to the
requirements for 24-hour written notice to the Voting Members and to requesting representatives
of the media provided in Section 54956 of the Government Code. The notice of a special
meeting shall specify the time and place of the meeting and the business to be transacted. No
other business shall be considered at the meeting. A Voting Member may waive notice as
provided in Section 54956 of the Government Code. Notice of the calling of any special meeting
shall be posted as provided in said Section.
3. Place Of Meeting
Each regular or special meeting of the Voting Members shall be held at a place
within the State of California designated by the Board of Directors, or if no such designation is
made, as designated by the Executive Director.
4. Adjourned Meetings
The Voting Members may adjourn any regular or special meeting to a time and
place specified in the order of adjournment, whether or not a quorum has been established. If a
quorum is not established, no business other than adjournment may be transacted.
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A copy of the order for adjournment shall be posted as required by Section 54955
of the Government Code. No other notice of an adjourned meeting shall be necessary, unless the
adjournment is for a period of thirty (30) days or more, in which case notice of the adjourned
meeting shall be given in the same manner as notice of the original meeting.
5. Ralph M. Brown Act
Notwithstanding anything herein to the contrary, all meetings of the Voting
Members shall be held in strict compliance with the Ralph M. Brown Act (Government Code
Section 54950 et seq.), as amended and then in effect.
ARTICLE V
MEETINGS OF THE BOARD OF DIRECTORS
1. Regular Meetings
(a) Time Held
The Board of Directors shall hold at least one meeting per year. The regular
annual meeting of the Board of Directors (the "Board of Directors Annual Meeting") should, if
practicable, be scheduled at least one year prior to such meeting. Unless otherwise changed by a
majority vote of the Board of Directors at a regular meeting, the Board of Directors Annual
Meeting shall be held at 2:00 p.m. on the First Thursday in June of each year. Should such day
fall upon a legal holiday, the Board of Directors Annual Meeting shall be held on the next
following business day.
(b) Business To Be Transacted
At each Board of Directors Annual Meeting, the Board of Directors shall review,
modify if necessary, and adopt the annual operating budget of the Authority, approve the audit of
the Authority's finances and review the annual work plan or program plan and, in each
alternating fiscal year, shall elect officers.
At any meetings,the Board of Directors may transact any other business within its
powers, and receive reports of the operations and affairs of the Authority.
(c) Notice
Written notice of each regular meeting of the Board of Directors shall be
delivered to each director at least seven (7) days in advance of the meeting. The notice shall
specify:
(i) The place, date and hour of the meeting.
(ii) Those matters which are intended to be presented for action by the
Board of Directors.
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(iii) The general nature of any proposal for action by the Board of
Directors concerning a change in the Bylaws of the Authority, a
change in the membership of the Authority, or any other matter
substantially affecting the rights and obligations of the Authority
or its Members.
2. Special Meetings
A special meeting of the Board of Directors may be called at any time by the
Chairman of the Board of Directors, or by a majority of the directors on the Board of Directors
subject to the requirements for 24-hour written notice to the directors and/or alternate directors
and to requesting representatives of the media provided in Section 54956 of the Government
Code. The notice of a special meeting shall specify the time and place of the meeting and the
business to be transacted. No other business shall be considered at the meeting. A member of
the Board of Directors may waive notice as provided in Section 54956 of the Government Code.
Notice of the calling of any special meeting shall be posted as provided in said Section.
3. Place Of Meeting
Each regular or special meeting of the Board of Directors shall be held at a place
within the State of California designated by the Board of Directors, or if no such designation is
made, as designated by the Chairman of the Board of Directors.
4. Adjourned Meetings
The Board of Directors may adjourn any regular or special meeting to a time and
place specified in the order of adjournment, whether or not a quorum has been established. If a
quorum is not established, no business other than adjournment may be transacted.
A copy of the order for adjournment shall be posted as required by Section 54955
of the Government Code. No other notice of an adjourned meeting shall be necessary,unless the
adjournment is for a period of thirty (30) days or more, in which case notice of the adjourned
meeting shall be given in the same manner as notice of the original meeting.
5. Ralph M. Brown Act
Notwithstanding anything herein to the contrary, all meetings of the Board of
Directors shall be held in strict compliance with the Ralph M. Brown Act (Government Code
Section 54950 et seq.), as amended and then in effect.
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ARTICLE VI
BOARD OF DIRECTORS AND OFFICERS
1. Board of Directors
The Agreement designates the Executive Committee of the Board of Directors of the
California Association for Local Economic Development and the President of the California
Association for Local Economic Development as the initial Board of Directors of the Authority.
2. Officers
The Agreement designates the President of the California Association for Local
Economic Development as Chairman of the Authority. The Board of Directors of the Authority will
appoint a Vice Chair, Secretary, and Treasurer from among its members. The Board may by
resolution appoint assistant officers to act in place of the officers of the Authority.
3. Duties of the Chairman
The Chairman shall preside at and conduct all meetings of the Board of Directors
and the Voting Members, although the Chairman will have no vote at any meeting of the Voting
Members. The Chairman shall sign all contracts unless a Resolution of the Board provides
otherwise.
4. Duties of the Vice Chairman
In the absence of the Chairman, the Vice Chairman shall perform all duties
assigned to the Chairman by the Agreement and these Bylaws or by the Voting Members or the
Board of Directors.
5. Duties of the Secretary
The Secretary shall countersign all contracts on behalf of the Authority and shall
perform such other duties as may be imposed by the Board.
6. Duties of the Treasurer
The Treasurer shall serve as the treasurer, auditor, and controller of the Authority.
7. Terms of Office
The terms of office of the Chairman and Vice Chairman shall coincide with the
terms of office of the President of the California Association for Local Economic Development
("CALED") and the Chairman of the Board of Directors of CALED, respectively.
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8. Removal and Vacancies
The Board of Directors may remove an officer at anytime. A vacancy in any
office, because of death, resignation, removal, disqualification, or any other cause, shall be filled
by election of the Board of Directors.
9. Resignation of Officers
Other than with respect to the Chairman and the Vice Chairman or in the absence
of a contrary written agreement, any officer may resign at any time by giving written notice to
the Chairman. Any resignation shall take effect at the date of the receipt of that notice or at any
later time specified in that notice; and, unless otherwise specified in that notice, the acceptance
of the resignation shall not be necessary to make it effective.
ARTICLE VII
COMMITTEES
1. Establishment of Committees
The Board of Directors may appoint any additional committees and determine the
committees' structure, charge, size and membership. Committees may be established to consider
any matter within the jurisdiction of the body establishing such committee. Each committee
shall operate according to the policies adopted by the body establishing such committee and shall
submit their reports and recommendations to the body establishing such committee. Committees
shall meet on the call of their respective chairpersons, each of whom shall be a member of the
Board of Directors and a member of such committee.
Each Committee shall meet on the call of its chairperson, at such times and places
as are designated by the chairperson. Written notice of the time and place of a Committee
meeting, and of the business to be transacted, shall be delivered to each member of the
Committee and to requesting representatives of the media at least twenty-four (24) hours in
advance as required by Section 54966 of the Government Code, and subject to the other
provisions of that Section. No other business shall be considered at the meeting. A majority of
the members of a Committee shall constitute a quorum for the transaction of business. All
actions of the Committee shall require the affirmative votes of a majority of the members present
at a meeting duly held at which a quorum is present. All Committee meetings shall be duly
noticed and held in accordance with the requirements of the Ralph M. Brown Act (Government
Code 54950 et seq.), as amended and then in effect.
ARTICLE VIII
MISCELLANEOUS
1. Execution of Contracts
The Board of Directors may authorize any officer, staff member, or agent of the
Authority to execute any contract in the name of and on behalf of the Authority, and such
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authorization may be general or specific in nature. Unless so authorized, no officers, staff
member or agent shall have any power to bind the Authority by contract.
2. Rules of Procedure for Meetings
All meetings of the Voting Members, Board of Directors and Committees or
bodies of the Authority shall be conducted in accordance with the most recent edition of Robert's
Rules Of Order, provided that in the event of a conflict, such rules shall be superseded by the
Agreement, these bylaws, and California law.
ARTICLE IX
FINANCES
1. Fiscal Year
The Fiscal Year of the Authority shall be from July 1 to June 30.
2. Budget
At least thirty (30) days prior to the Board of Directors Annual Meeting in each
Fiscal Year, the Executive Director shall submit to the Board of Directors a proposed general
budget for the next Fiscal Year of the Authority. The proposed general budget shall include
annual membership fee and assessment schedules, if any, and a summary of revenue and
expenditures, actual or projected, for the preceding, current, and next Fiscal Years. The
Executive Director shall manage all expenditures, subject to control of the Board of Directors.
The Board of Directors shall have power to transfer funds within the total detailed budget to
meet unanticipated needs or changed situations.
ARTICLE X
AMENDMENTS
These Bylaws may be amended at any time by a majority vote of the Board of
Directors. Following adoption of amendments, the Executive Director shall prepare and
distribute a revision of the Bylaws to all Voting Members of the Authority and members of the
Board.
ARTICLE XI
EFFECTIVE DATE
These Bylaws shall go into effect immediately upon adoption by majority vote of
the Board of Directors.
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ARTICLE XII
ASSOCIATE MEMBERSHIP
1. Any Local Agency within the State of California may, with the approval
of the Board of Directors, become an Associate Member of the Authority by (i) executing and
delivering to the Authority an Associate Membership Agreement substantially in the form
attached hereto as Exhibit A and hereby made a part hereof and (ii) the filing by such Local
Agency of a certified copy of the resolution of the Legislative Body of such Local Agency
approving the Associate Membership Agreement and the execution and delivery thereof.
2. An Associate Member shall be entitled to participate in all programs and
other undertakings of the Authority, including, without limitation, any undertakings to finance a
Project and any other financing programs provided by law.
3. An Associate Member shall not be entitled to vote on any matter coming
before the Voting Members or the Board, except as otherwise specified in the Agreement.
4. Upon approval by the legislative body of a Local Agency as an Associate
Member, the Chairman, Vice Chairman, the Executive Director or any other officer or staff member
duly authorized by the Board of Directors for such purpose shall execute and deliver the applicable
Associate Membership Agreement to the Associate Member, file such executed counterpart of the
Associate Membership Agreement in the official records of the Authority and add such Local
Agency to Exhibit A of the Agreement as an amendment, effective upon such filing.
[End of Bylaws]
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Exhibit A2
CEDA JPA
I
JOINT EXERCISE OF POWERS AGREEMENT
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
THIS AGREEMENT (the "Joint Exercise of Powers Agreement") is dated as of June 1,
2006, by and among the City of Selma, California ("Selma"), the City of Lancaster, California
("Lancaster"), and the City of Eureka, California ("Eureka") each duly organized and existing
under the laws of the State of California ("State") and such other local agencies within the State
as may hereafter become signatories hereto.
WITNESSETH:
WHEREAS, the Joint Exercise of Powers Act (the "Act"), Article 1 of Chapter 5 of
Division 7 of Title 1 (commencing with Section 6500) of the Government Code of the State,
authorizes public agencies by agreement to jointly exercise any powers common to each of them;
and
WHEREAS, each of the parties hereto are authorized by law to exercise broad
governmental functions and authority to accomplish their respective purposes, including, but not
limited to, the right to issue bonds and expend the proceeds thereof and the right to acquire, sell,
develop,lease or administer property; and
WHEREAS, by this Agreement, the parties hereto desire to create and establish the
"California. Enterprise Development Authority" (the "Authority") for the purposes set forth
herein and to exercise the powers described herein; and
WHEREAS, each of the parties hereto are authorized by law to exercise broad
governmental functions, including, but not limited to, stimulating or expanding local economies,
promoting opportunities for the creation or retention of employment and stimulating economic
activity and increasing the tax base, and each of the parties hereto possess the authority to
accomplish those functions by means of issuing bonds or refunding bonds, entering into loan
agreements, indentures, lease agreements, installment purchase agreements, installment sale
agreements and trust agreements, making grants and loans, providing other financial assistance
or in any other manner deemed appropriate by the governmental entity; and
WHEREAS, each of the parties hereto also desires to assist nonprofit public benefit
corporations located within their respective jurisdictions to undertake and complete projects that
will provide public benefits to the communities; and
WHEREAS, each Member desires to join together with the other Members for the
purpose of assisting the Members and for-profit and nonprofit organizations in obtaining tax-
exempt financing for appropriate projects and purposes;
NOW,THEREFORE, in consideration of the above premises and of the mutual promises
herein contained, Selma, Lancaster and Eureka do hereby agree as follows:
4827-5080-7296.8
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Unless the context otherwise requires, the words and terms
defined in this Article I shall, for the purpose hereof,have the meanings herein specified.
"Act" means Articles 1 through 4 (commencing with Section 6500) of Chapter 5,
Division 7,Title 1 of the California Government Code.
"Agreement"means this Joint Exercise of Powers Agreement.
"Associate Member" shall mean any Local Agency that shall have duly executed this
Agreement and executed and delivered to the Authority an Associate Membership Agreement in
the form and as further provided in the Bylaws of the Authority.
"Authority"means the California Enterprise Development Authority established pursuant
to Section 2.2 of this Agreement.
"Board"means the Board of Directors of the Authority refeaed to in Section 2.3, which
shall be the governing body of the Authority.
"Bonds" means the revenue obligations, inclusive of principal (premium, if any) and
interest authorized to be issued by the Authority, including a single bond, a promissory note or
notes, including bond anticipation notes, lease agreement, installment purchase agreement,
certificates of participation or any other instrument evidencing an indebtedness or obligation.
"CALED"means the California Association for Local Economic Development.
"Chairman"means the Chairman elected pursuant to Section 3.1.
"Director"means each member of the Board.
"Eureka"means the City of Eureka, a charter city and municipal corporation formed and
existing pursuant to the Constitution and laws of the State.
"Executive Director" means the Executive Director of the Authority appointed pursuant
to Section 3.1.
"Facilities"means real and personal property that may be financed or refinanced pursuant
to the Act,including but not limited to, land,buildings,improvements, facilities and equipment.
"Fiscal Year"means the period from July 1st to and including the following June 30th.
"Lancaster" means the City of Lancaster, a municipal corporation formed and existing
pursuant to the Constitution and laws of the State.
"Legislative Body"means the governing body of a Member.
4827-5080-7296.8 2
"Local Agency" means a Member or an agency or subdivision of that Member
sponsoring a Project or any other city, county, city and county or redevelopment agency of the
State.
"Members"means, collectively,Voting Members and Associate Members.
"Project"means the acquisition, construction and installation of Facilities by the issuance
of Bonds.
"Revenues" means all income and receipts of the Authority from a bond purchase
agreement, bonds acquired by the authority, loans, installment sale agreements, and other
revenue producing agreements entered into by the Authority, projects financed by the Authority,
grants and other sources of income, and all interest or other income from any investment of any
money in any fund or account established for the payment of principal or interest or premiums on
Bonds.
"Secretary"means the Secretary of the Authority appointed pursuant to Section 3.1.
"Selma" means the City of Selma, a municipal corporation formed and existing pursuant
to the Constitution and laws of the State.
"State"means the State of California.
"Treasurer"means the Treasurer of the Authority appointed pursuant to Section 3.2.
"Vice-Chairman"means the Vice-Chairman elected pursuant to Section 3.1.
"Voting Members" means Selma, Lancaster and Eureka or each individually or other
Local Agencies that may be added pursuant to the terms of this Agreement.
ARTICLE II
GENERAL PROVISIONS
Section 2.1. Purpose. This Agreement is made pursuant to the Act providing for the
joint exercise of powers common to the Members and for other purposes as permitted under the
Act and as agreed by one or more of the parties hereto. The primary purpose of this Agreement
is to assist the Members and for-profit and nonprofit organizations located within the
jurisdictions of the Members in financing industrial and commercial development projects and
other public purpose projects. Additional purposes of this Agreement are assisting Members
undertake any and all other projects permitted by the Act.
Section 2.2. Creation of Authority. Pursuant to the Act, there is hereby created a
public entity to be known as the "California Enterprise Development Authority." The Authority
shall be a public entity separate and apart from the Members. The Members hereby designate
CALED, a California nonprofit corporation, as the administrator and executor of this Agreement,
and retain for themselves the power to approve amendments to this Agreement as specified in
Section 8.5,hereof.
4827-5080-7296.8 3
Section 2.3. Board of Directors. The Authority shall be administered by a board of
directors. The Members, by execution of this Agreement, designate the Executive Committee of
the Board of Directors of CALED and the President of CALED as the initial Board of Directors
of the Authority. This designation of the Board of Directors shall remain unchanged,unless and
until such composition is changed by a unanimous vote of the Voting Members. The Board shall
be called the "Board of Directors of the California Enterprise Development Authority." All
voting power of the Authority, except as otherwise provided, shall reside in the Board.
Section 2.4. Meetings.
(a) Meetings of Voting Members. The Authority shall provide for the
meeting of its Voting Members; provided, however, that at least one
meeting of Voting Members shall be held each year, which may not be
waived. The date, hour and place of the holding of meetings shall be
fixed by resolution of the Board which shall set one such meeting each
year and any other meetings at the written request of any Voting Member,
and a copy of such resolution shall be filed with each of the Members.
The Legislative Body of each Voting Member shall appoint one of its
members to serve as the Voting Member's representative to the Authority
(the "Representative"). The Representative may select up to two
alternates (the "Alternate"), each of whom are either a member of the
Voting Member's Legislative Body or an employee of the Voting
Member, to represent the Voting Member. The name of each Alternate
must be filed with the Executive Director of the Authority at least 30 days
prior to the opening of any regular meeting of the Voting Members and at
least 24 hours prior to the opening of any special meeting of the Voting
Members to be an effective designation. All voting power of the Voting
Members, except as otherwise provided herein, shall reside in the Voting
Members.
(b) Board of Directors Meetings. The Board shall provide for its regular
meetings; provided, however, that at least one regular meeting shall be
held each year unless otherwise waived by a resolution of the Board. The
date, hour and place of the holding of regular meetings shall be fixed by
resolution of the Board and a copy of such resolution shall be filed with
each Director.
(c) Special Meetings. Special meetings of the Board, the Voting Members or
the Members may be called in accordance with the provisions of Section
54956 of the California Government Code.
(d) Call, Notice and Conduct of Meetings. All meetings of the Board,Voting
Members and Members, including without limitation, regular, adjourned
regular and special meetings, shall be called, noticed, held and conducted
in accordance with the provisions of the Ralph M. Brown Act (Section
54950 et seq. of the California Government Code).
4827-5080-7296.8 4
Section 2.5. Minutes. The Secretary shall cause to be kept minutes of the meetings of
the Board and Voting Members and shall, as soon as possible after each meeting, cause a copy of
the minutes to be forwarded to each Director and to each Voting Member.
Section 2.6. Voting.
(a) At meetings of the Board, each Director shall have one vote;
(b) At meetings of the Voting Members, each Voting Member shall have one
vote; and
(c) Associate Members are not entitled to vote, except as to amendments of
this Agreement, in which instance each Associate Member shall have one
vote.
Section 2.7. Quorum,Required Votes:Approvals.
(a) Board Meetings. Three (3) Directors shall constitute a quorum for the
transaction of business, except that less than a quorum may adjourn from
time to time. The affirmative votes of at least a majority of the Directors
present at any meeting at which a quorum is present shall be required to
take any action by the Board.
(b) Meetings of Voting Members. Two (2) Voting Members shall constitute a
quorum for the transaction of business, except that less than a quorum
may adjourn from time to time. Unless otherwise provided herein, the
affirmative votes of at least a majority of the Voting Members present at
any meeting at which a quorum is present shall be required to take any
action by the Voting Members.
Section 2.8. Bylaws. Rules and Regulations. The Board may adopt, from time to time,
bylaws for the Authority and rules and regulations for the conduct of its meetings as are
necessary for the purposes hereof.
Section 2.9. Withdrawal and Addition of Parties. A Member may withdraw from the
Authority upon written notice to the Board; provided, however, that no such withdrawal shall
result in the dissolution of the Authority so long as any Bonds remain outstanding. Any such
withdrawal shall be effective only upon receipt of a written notice of withdrawal by the Board
which shall acknowledge receipt of such notice of withdrawal in writing and shall file such
notice as an amendment to Exhibit A to this Agreement effective upon such filing. Each
Member certifies that the withdrawal of any Member does not affect this Agreement or each
Member's intent to contract with the Members then remaining.
Qualifying Local Agencies may be added as parties to this Agreement and become
Voting Members upon: (i) adoption of a resolution by the unanimous vote of the Voting
Members at any regular or special meeting and (ii)the filing by such Local Agency of an
executed counterpart of this Agreement, together with a certified copy of the resolution of the
Legislative Body of such Local Agency approving this Agreement and the execution and
4827-5080-7296.8 5
delivery hereof. Upon satisfaction of such conditions, the Board shall file such executed
counterpart of this Agreement and add such Local Agency to Exhibit A hereto as an amendment,
effective upon such filing.
Section 2.10. Associate Members. Any Local Agency within the State of California
may,with the approval of the Board of Directors,become an Associate Member of the Authority
by(i) executing and delivering to the Authority an Associate Membership Agreement in the form
of and as further provided in the Bylaws and (ii)the filing by such Local Agency of a certified
copy of the resolution of the Legislative Body of such Local Agency approving the Associate
Membership Agreement and the execution and delivery thereof. Upon satisfaction of such
conditions, the Board shall file such executed counterpart of the Associate Membership
Agreement and add such Local Agency to Exhibit A hereto as an amendment, effective upon
such filing. An Associate Member shall not be entitled to vote on any matter coming before the
Voting Members or the Board, except as otherwise specified herein. However, an Associate
Member shall be entitled to participate in all programs and other undertakings of the Authority,
including, without limitation, any undertaking to finance or refinance a Project, and any other
financing program.
ARTICLE III
OFFICERS AND EMPLOYEES
Section 3.1. Chairman Vice Chairman Secretary and Executive Director. So long as
the Board shall be comprised of the Executive Committee of the Board of Directors of CALED
and the President of CALED, the President of CALED shall serve as the Chairman of the Board.
The Board shall elect a Vice-Chairman from among its members to serve for such term as shall
be determined by the Board. The Board shall appoint or employ an Executive Director,
Secretary and Treasurer. The Treasurer (who can be the Executive Director or an officer or
employee of the Authority) shall serve as treasurer, auditor, and controller of the Authority
pursuant to and in compliance with Section 6505.6 of the Act. The officers shall perform the
duties normal to said offices. The Chairman shall sign all contracts on behalf of the Authority,
unless a resolution of the Board shall provide otherwise, and shall perform such other duties as
may be imposed by the Board. The Vice Chairman shall sign contracts and perform all of the
Chairman's duties in the absence of the Chairman. The Secretary shall countersign all contracts
signed by the Chairman or Vice Chairman on behalf of the Authority, unless a resolution of the
Board shall provide otherwise, perform such other duties as may be imposed by the Board and
cause a Notice of Joint Powers Agreement to be filed with the Secretary of State of the State
within 30 days of the execution of this Agreement by the last signatory thereto pursuant to the
Act. The Executive Director shall administer the day to day operations of the Authority.
Section 3.2. Treasurer. The Treasurer shall be the depositary, shall have custody of all
of the accounts, funds and money of the Authority from whatever source, shall have the duties
and obligations set forth in Sections 6505 and 6505.5 of the Act and shall assure that there shall
be strict accountability of all funds and reporting of all receipts and disbursements of the
Authority. As provided in Sections 6505 and 6505.6 of the Act, the Treasurer shall make
arrangements with a certified public accountant or firm of certified public accountants for the
annual audit of accounts and records of the Authority in compliance with Section 6505 of the
4827-5080-7296.8 6
Act. Pursuant to Section 6505 of the Act,the Board,by unanimous vote on a resolution therefor,
may replace the annual audit with an audit covering a two year period.
Section 3.3. Officers in Charge of Records, Funds and Accounts. Pursuant to
Section 6505.5 of the Act, the Treasurer shall have charge of, handle and have access to all
accounts, funds and money of the Authority and all records of the Authority relating thereto; and
the Secretary shall have charge of,handle and have access to all other records of the Authority.
Section 3.4. Bonding Persons Having Access to Authority Property. From time to
time, the Board may designate persons, in addition to the Secretary and the Treasurer, having
charge of, handling or having access to any records, funds of accounts, and may require such
persons, including the Secretary and Treasurer, to file official bonds. The Board may designate
the respective amounts of the official bonds of the Secretary and the Treasurer and such other
persons pursuant to Section 6505.1 of the Act.
Section 3.5. Legal Advisor, The Board shall have the power to appoint the legal
advisor of the Authority who shall perform such duties as may be prescribed by the Board.
Section 3.6. Other Employees. The Board shall have the power by resolution to
appoint and employ such other employees, consultants and independent contractors as may be
necessary for the purposes of this Agreement.
All of the privileges and immunities from liability, exemption from laws, ordinances and
rules, all pension, relief, disability, workers' compensation and other benefits which apply to the
activities of officers, agents, or employees of a public agency when performing their respective
functions shall apply to the officers, agents or employees of the Authority to the same degree and
extent while engaged in the performance of any of the functions and other duties of such officers,
agents or employees under this Agreement.
None of the officers, agents, or employees directly employed by the Board shall be
deemed, by reason of their employment by the Board to be employed by any of the Members,
individually or collectively, or by reason of their employment by the Board, to be subject to any
of the requirements of the Members.
Section 3.7. Assistant Officers. The Board may by resolution appoint such assistants
to act in the place of the Secretary or other officers of the Authority (other than any Director),
and may by resolution provide for the appointment of additional officers of the Authority who
may or may not be Directors,as the Board shall from time to time deem appropriate.
ARTICLE IV
POWERS
Section 4.1. General Powers. The Authority shall exercise, in the manner herein
provided, the powers which are common to each of the Members, or as otherwise permitted
under the Act, and necessary to the accomplishment of the purposes of this Agreement, subject
to the restrictions set forth in Section 4.4. As provided in the Act,the Authority shall be a public
4827-5080-7296.8 7
entity separate from the Members, and the debts, liabilities and obligations of the Authority shall
not be the debts,liabilities and obligations of the Members.
Section 4.2. Power to Issue Revenue Bonds. The Authority shall have all of the
powers provided in the Act,including but not limited to the power to issue Bonds.
Section 4.3. Specific Powers. The Authority is hereby authorized, in its own name, to
do all acts necessary for the exercise of the foregoing powers,including but not limited to, any or
all of the following:
(a) To acquire property by purchase, exchange, gift, lease, contract, or
otherwise, except by eminent domain. The power to acquire real property
shall not be exercised for other than Authority use except pursuant to
project agreement or indenture;
(b) To maintain property;
(c) To dispose of property by lease, sale, exchange, donation, release,
relinquishment, or otherwise;
(d) With respect to property, to: (1) charge and collect rent under any lease;
(2) sell at public or private sale, with or without public notice; (3) sell at a
discount or below appraised value or for a nominal consideration, only;
(4) sell on an installment payment or a conditional sales basis; (5) convey,
or provide for the transfer of,property without further act of the authority,
upon exercise of an option; (6)sell at a fixed or formula price, and receive
for any such sale the note or notes of a company and mortgages, deeds of
trust,or other security agreements respecting such property;
(e) To acquire and hold property, including funds, project agreements and
other obligations of any kind, and pledge, encumber or assign the same, or
the revenues therefrom or any portion of such revenues, or other rights,
whether then owned or possessed,or thereafter acquired,for the benefit of
the bondholders, and as security or additional security for any bonds or
the performance of obligations under an indenture;
(f) To acquire insurance against any liability or loss in connection with
property,in such amounts as the Authority deems desirable;
(g) To provide for the advance of bond proceeds and other funds pursuant to
project agreements as necessary to pay or reimburse for project costs;
(h) To exercise all rights and to perform all obligations of the Authority under
the project agreements and indenture, including the right, upon any event
of default by or the failure to comply with any of the obligations thereof
by the lessee,purchaser, or other company thereunder, to dispose of all or
part of the property to the extent authorized by the project agreements or
indenture;
4827-5080-7296.8 8
(i) To borrow money and issue its bonds for the purpose of paying all or any
part of the costs of a project, and for any other authorized purpose, as
provided in this title;
(i) To refund outstanding bonds of the Authority without regard to the
purposes of this title when the board determines that such refunding will
be of benefit to a company or holders of such bonds, subject to the
provisions of the proceedings;
(k) To invest, deposit, and reinvest funds under the control of the Authority
and bond proceeds in the types of securities or obligations authorized,
pending application thereof to the purposes authorized by, subject to the
provisions of,the proceedings;
(1) To expressly waive any immunity of the political subdivisions of the State
provided by the Constitution or laws of the United States of America to
taxation by the United States of interest on bonds issued by an authority,
in obtaining federal benefits;
(m) To fund administration expenses (1)by the establishment and collection of
reasonable fees in amounts as may be determined by the Board, (2)by the
acceptance of funds and other aid from a Member and from other
governmental sources authorized to provide such funds or aid, (3) by the
acceptance of contributions from business, trade, labor, community, and
other associations, and(4)by other authorized means;
(n) To contract and pay compensation for professional, financial, and other
services; and
(o) to exercise any and all additional powers as may be provided in the Act.
Section 4.4. Restrictions on Exercise of Powers. The powers of the Authority shall be
exercised in the manner provided in the Act and shall be subject (in accordance with Section
6509 of the Act) to the restrictions upon the manner of exercising such powers that are imposed
upon any Member in the exercise of similar powers.
ARTICLE V
METHODS OF PROCEDURE; CREDIT TO MEMBERS
Section 5.1. Assumption of Responsibilities by the Authority. As soon as practicable
after the date of execution of this Agreement, the Directors shall hold the organizational meeting
of the Board. At said meeting the Board shall provide for its regular meetings as required by
Section 2.4.
Section 5.2. Credit to Members. All accounts or funds created and established
pursuant to any instrument or agreement to which the Authority is a party, and any interest
4827-5080-7296.8 9
earned or accrued thereon, shall inure to the benefit of the Members in the respective proportions
for which such funds or accounts were created.
ARTICLE VI
CONTRIBUTION;ACCOUNTS AND REPORTS;FUNDS
Section 6.1. Contributions. The Voting Members may in the appropriate circumstance,
when required hereunder: (a)make contributions from their treasuries for the purposes set forth
herein, (b) make payments of public funds to defray the cost of such purposes, (c) make
advances of public funds for such purposes,such advances to be repaid as provided herein, or(d)
use its personnel, equipment or property in lieu of other contributions or advances. The
provisions of Sections 6512 and 6512.1 of the Act are hereby incorporated into this Agreement
by reference.
Section 6.2. Accounts and Reports. To the extent not covered by the duties assigned to
a trustee chosen by the Authority, the Treasurer shall establish and maintain such funds and
accounts as may be required by good accounting practice or by any provision of any trust
indenture or trust agreement entered into with respect to the proceeds of any Bonds issued by the
Authority. The books and records of the Authority in the hands of a trustee or the Treasurer shall
be open to inspection at all reasonable times by representatives of the Members. The Treasurer,
within 180 days after the close of each Fiscal Year, shall give a complete written report of all
financial activities for such Fiscal Year to the Members to the extent such activities are not
covered by the report of such trustee. The trustee appointed under any trust indenture or trust
agreement shall establish suitable funds, furnish financial reports and provide suitable accounting
procedures to carry out the provisions of said trust indenture or trust agreement. Said trustee
may be given such duties in said trust indenture or trust agreement as may be desirable to carry
out this Agreement.
Section 6.3. Funds. Subject to the applicable provisions of any instruments or
agreement which the Authority may enter into, which may provide for a trustee to receive, have
custody of and disburse Authority funds, the Treasurer of the Authority shall receive, have
custody of and disburse Authority funds as nearly as possible in accordance with generally
accepted accounting practices, and shall make the disbursements required by this Agreement or
to carry out any of the provisions or purposes of this Agreement.
Section 6.4. Annual Budget and Administrative Expenses and Surplus Revenues. The
Board shall adopt a budget for administrative expenses, which shall include all expenses not
included in any financing issue of the Authority, annually prior to July 1st of each year. Any
moneys held by the Authority and not required for the payment of administrative expenses of the
Authority or other activities authorized under this Agreement shall be deemed surplus and may
be allocated as directed by the Board for economic development purposes.
4827-5080-7246.8 10
ARTICLE VII
TERM
Section 7.1. Term. This Agreement shall become effective, and the Authority shall
come into existence, on the date hereof, and this Agreement and the Authority shall thereafter
continue in full force and effect so long as any Bonds remain outstanding.
Section 7.2. Disposition of Assets. Upon termination of this Agreement, all property
of the Authority, both real and personal, shall be divided among the Voting Members in such
manner as shall be agreed upon by the Voting Members.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Notices. Notices hereunder shall be in writing and shall be sufficient if
delivered to:
City of Selma
1710 Tucker Street
Selma, California 93662
Attention: City Clerk
City of Lancaster
44933 North Fern Avenue
Lancaster,California 93534
Attention: City Clerk
City of Eureka
531 K Street
Eureka, California 95501
Attention: City Clerk
Section 8.2. Section Headings. All section headings in this Agreement are for
convenience of reference only and are not to be construed as modifying or governing the
language in the section referred to or to define or limit the scope of any provision of this
Agreement.
Section 8.3. Consent. Whenever in this Agreement any consent or approval is
required,the same shall not be unreasonably withheld.
Section 8.4. Law Governing, This Agreement is made in the State under the
constitution and laws of the State, and is to be so construed.
4827-5080-7296.8 11
Section 8.5. Amendments.
(a) This Agreement may be amended at any time, or from time to time, except as
limited by contract with the owners of Bonds issued by the Authority or certificates of
participation in payments to be made by the Authority or a Member or by applicable regulations
or laws of any jurisdiction having authority, by the procedure set forth in paragraph (b), below.
Appendix A to the Agreement may be amended to correctly list current Members without
separate action by the Members or the Board.
(b) Except as otherwise provided herein, this Agreement shall not be amended,
modified, or altered, unless the negative consent of each of the Members is obtained. To obtain
the negative consent of each of the Members, the following negative consent procedure shall be
followed: (i) the Authority shall provide each Member with a notice at least sixty days prior to
the daze such proposed amendment is to become effective explaining the nature of such proposed
amendment and this negative consent procedure; (ii) the Authority shall provide each Member
who did not respond a reminder notice with a notice at least thirty days prior to the date such
proposed amendment is to become effective; and (iii) if no Member objects to the proposed
amendment in writing within sixty days after the initial notice, the proposed amendment shall
become effective with respect to all Members.
Section 8.6. Enforcement by Authority. The Authority is hereby authorized to take any
or all legal or equitable actions, including, but not limited to, injunction and specific
performance,necessary or permitted by law to enforce this Agreement.
Section 8.7. Severability. Should any part, term or provision of this Agreement be
decided by any court of competent jurisdiction to be illegal or in conflict with any law of the
State, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining
portions or provisions shall not be affected thereby.
Section 8.8. Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors of the Members, respectively. No Member may assign any right or
obligation hereunder without the written consent of all of the others.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and attested by their proper officers thereunto duly authorized on the following pages as of the
day and year set below the name of each of the parties.
[SIGNATURE PAGES TO FOLLOW]
4827-5080-7296.8 12
CITY OF SELMA
By
D-B Heusser
City Manager
Attest:
`1_}'I t l n
Melanie A. Carter
City Clerk
APPROVED AS TO FORM
By
Richard H. Hargrove
City Attorney
Dated:ter-'/l In('0
SIGNATURE PAGE OF
CITY OF SELMA
TO JOINT EXERCISE OF POWERS AGREEMENT
4827-5080-7296.8
CITY OF LANCASTER
By
Henry W.Hearns
Mayor
Attest:
"�r&a-n k7
Geri K.Bryan
City Clerk
APPROVED S TO FORM
By
David R.McEwen
City Attorney
Dated:
SIGNATURE PAGE OF
CITY OF LANCASTER
TO JOINT EXERCISE OF POWERS AGREEMENT
4827-5080-7296.8
CITY OF EUREKA
By
Peter La Vall
Mayor
Attest:
mod.
Kathleen Franco Sinimons
City Clerk
APPROVED AS TO FORM
By
avid Tranberg
City Attorney
Dated: Z O
SIGNATURE PAGE OF
CITY OF EUREKA
TO JOINT EXERCISE OF POWERS AGREEMENT
4827-5080-7296.8
EXHIBIT
MEMBERS OF THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
(as of 3/4/2048)
Voting Members
City of Selma
City of Lancaster
City of Eureka
Associate Members
City of Upland
County of Stanislaus
County of Sacramento
City of Pittsburg
County of Sonoma
County of Yolo
County of Riverside
City of Fairfield
City of Duarte
City of Montebello
County of San Bernardino
City of King City
City of Long Beach
County of Madera
City of Greenfield
City of Milpitas
4827-5080-7296.8
Exhibit B
Form of CEDA Resolution
RESOLUTION OF THE CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY DECLARING INTENTION TO FINANCE INSTALLATION OF
DISTRIBUTED GENERATION RENEWABLE ENERGY SOURCES,ENERGY
EFFICIENCY, SEISMIC RETROFITS, ELECTRIC VEHICLE CHARING
INFRASTRUCTURE, AND WATER EFFICIENCY IMPROVEMENTS IN THE
CITY OF SAN BERNARDINO, CA.
WHEREAS,the California Enterprise Development Authority ("CEDA") is a joint
powers authority authorized and existing pursuant to 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, by and 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, seismic retrofits, electric vehicle charging infrastructure, and water
efficiency improvements that are permanently fixed to real property ("Authorized
Improvements"); and
WHEREAS, CEDA has obtained authorization from the City of San Bernardino (the
"City")to enter into contractual assessments for the financing of the installation of Authorized
Improvements in the City; 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
herein, 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.
(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 County
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. A property owner
located within the City may enter into contractual assessments with CEDA only after such City
has adopted a resolution to authorize participation in the PACE Program.
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 are 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 the Board of Directors at
the time of the issuance and sale of the indebtedness. The provisions of Part 11.1 of the
Improvement Bond Act of 1915 shall apply to the calling of the bonds. It is the intention of the
Board of Directors 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.
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.
(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.
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 City,
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 City on
real property are payable, and subject to the same penalties and remedies and lien priorities in the
event of delinquency and default.
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. This resolution shall take effect immediately upon its
adoption.
PASSED AND ADOPTED this day of , 201_.
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
By:
Gurbax Sahota, Chair
ATTEST:
Helen Schaubmayer, Assistant Secretary
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF SAN BERNARDINO AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the "Agreement") is entered into by and between the City of
San Bernardino, a municipal corporation, duly organized and existing under the laws of the
State of California(the "City") 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 City in addition to other cities and counties in the State of California; and
WHEREAS,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
WHEREAS,the Authority has conducted or will conduct proceedings required by
Chapter 29 with respect to the territory within the boundaries of the City; and
WHEREAS,the legislative body of the City adopted or will adopt a resolution
authorizing the City to join the Figtree PACE Program; and
WHEREAS,the City will not be responsible for 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; and
WHEREAS,the Administrator is the administrator of the Figtree PACE Program and
agrees to indemnify the City in connection with the operations of the Figtree PACE Program as
set forth herein;
1
NOW,THERFORE, in consideration of the above premises and of the City'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 marketing thereof.
Figtree agrees to defend, indemnify and hold harmless the City, 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 negligence or malfeasance of 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 City. 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.
2. Amendment/Interpretation of this Agreement. This 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 similar),
nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no
failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a
waiver thereof.
5. Severability 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 in writing and shall be deemed to have been duly given if delivered by
hand, against receipt, or mailed certified or registered mail and addressed as follows:
2
If to the Administrator Figtree Company, Inc.
9915 Mira Mesa Blvd., Suite 130
San Diego, California 92131
Attn: Chief Executive Officer
If to the City: Office of the City Manager
300 N. "D" Street, 6th Floor
San Bernardino, CA 92418
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
City's representative as indicated below in the signature block.
[Signature Page Follows]
3
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF SAN BERNARDINO AND
FIGTREE COMPANY, INC.
IN WITNESS HEREOF,the parties hereto duly executed this Agreement as of the date below.
City of San Bernardino
By
Name: Mark Scott
Title: City Manager
Date:
APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By
Figtree Company, Inc., a California corp.
By
Name: Mahesh Shah
Title: CEO
Date:
4
2017 -09
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF SAN BERNARDINO AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the "Agreement ") is entered into by and between the City of
San Bernardino, a municipal corporation, duly organized and existing under the laws of the
State of California (the "City ") 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 ").
WHEREAS, the Authority is a joint exercise of powers authority whose members
include the City in addition to other cities and counties in the State of California; and
WHEREAS, 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
WHEREAS, the Authority has conducted or will conduct proceedings required by
Chapter 29 with respect to the territory within the boundaries of the City; and
WHEREAS, the legislative body of the City adopted or will adopt a resolution
authorizing the City to join the Figtree PACE Program; and
WHEREAS, the City will not be responsible for 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; and
WHEREAS, the Administrator is the administrator of the Figtree PACE Program and
agrees to indemnify the City in connection with the operations of the Figtree PACE Program as
set forth herein;
2017 -09
NOW, THERFORE, in consideration of the above premises and of the City'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 marketing thereof.
Figtree agrees to defend, indemnify and hold harmless the City, 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 negligence or malfeasance of 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 City. 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.
2. Amend ment/Internretation of this Agreement. This 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 similar),
nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no
failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a
waiver thereof.
5. Severability 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 in writing and shall be deemed to have been duly given if delivered by
hand, against receipt, or mailed certified or registered mail and addressed as follows:
If to the Administrator
2017 -09
Figtree Company, Inc.
9915 Mira Mesa Blvd., Suite 130
San Diego, California 92131
Attn: Chief Executive Officer
If to the City: Office of the City Manager
300 N. "D" Street, 6t" Floor
San Bernardino, CA 92418
7. Counter art . 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
City's representative as indicated below in the signature block.
[Signature Page Follows]
3
% ,
2017 -09
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF SAN BERNARDINO AND
FIGTREE COMPANY, INC.
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date below.
City of San Bernardino
By
Name: Mark Scott
Title: City Manager
Date: /- 30 --/-7
APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
/Or)a
By
(f
Figtree Company, Inc., a California corp.
By
Name: Mahesh Shah
Title: CEO
Date:
2017 -09
ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and the
CITY OF SAN BERNARDINO, CALIFORNIA
THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership
Agreement "), dated as of rnnunrV 93, 9n17 by and between CALIFORNIA
ENTERPRISE DEVELOPMENT AUTHORITY (the "Authority ") and the CITY OF
SAN BERNARDINO, 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
WHEREAS, the Agreement designates the Executive Committee of the Board of
Directors and the President of the California Association for Local Economic Development as
the initial Board of Directors of the Authority; and
WHEREAS, the Authority has been formed for the purpose, among others, to assist for
profit and nonprofit corporations and other entities to obtain financing for projects and purposes
serving the public interest; and
WHEREAS, the Agreement permits any other local agency in the State of California to
join the Authority as an associate member (an "Associate Member "); and
WHEREAS, the City desires to become an Associate Member of the Authority;
WHEREAS, Mayor and City Council of the City have adopted a resolution approving
the Associate Membership Agreement and the execution and delivery thereof,
WHEREAS, the Board of Directors of the Authority has determined that the City should
become an Associate Member of the Authority;
NOW, THEREFORE, in consideration of the above premises and of the mutual
promises herein contained, the Authority and the City do hereby agree as follows:
4833 - 7301 - 9141.1
2017 -09
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 herein by reference. From and after the date of execution and
delivery of this Associate Membership Agreement by the City and the Authority, the City shall
be and remain an Associate Member of the Authority.
Section 2. Restrictions and Rights of Associate Members. The City shall not have the
right, as an Associate Member of the Authority, to vote on any action taken by the Board of
Directors or by the Voting Members of the Authority. In addition, no officer, employee or
representative of the City shall have any right to become an officer or director of the Authority
by virtue of the City being an Associate Member of the Authority.
Section 3. Effect of Prior Authority Actions. The City hereby agrees to be subject to and
bound by all actions previously taken by the Members and the Board of Directors of the
Authority to the same extent as the Members of the Authority are subject to and bound by such
actions.
Section 4. No Obligations of Associate Members. The debts, liabilities and obligations
of the Authority shall not be the debts, liabilities and obligations of the City.
Section 5. Execution of the Agreement. Execution of this Associate Membership
Agreement and the Agreement shall satisfy the requirements of the Agreement and Article XII of
the Bylaws of the Authority for participation by the City in all programs and other undertakings
of the Authority.
4833 - 7301 - 9141.2
2017 -09
IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership
Agreement to be executed and attested by their proper officers thereunto duly authorized, on the
day and year first set forth above.
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
Bv:
Gurbax Sahota, Chair
Board of Directors
Attest:
Helen Schaubmayer, Asst. Secretary
CITY OF SAN BERNARDINO, CALIFORNIA
By:
Mark Scott, City Manager
Attest:
'Georgeann Hdma, CMC, y`Clerk
APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By. V
4833 - 7301 - 9141.3
2017-09
ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and the
CITY OF SAN BERNARDINO, CALIFORNIA
THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership
Agreement"), dated as of T a n„a r) 91, 9Q1 7 by and between CALIFORNIA
f'H
ENTERPRISE DEVELOPMENT AUORITY (the "Authority") and the CITY OF
SAN BERNARDINO, 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
WHEREAS, the Agreement designates the Executive Committee of the Board of
Directors and the President of the California Association for Local Economic Development as
the initial Board of Directors of the Authority; and
WHEREAS, the Authority has been formed for the purpose, among others, to assist for
profit and nonprofit corporations and other entities to obtain financing for projects and purposes
serving the public interest; and
WHEREAS, the Agreement permits any other local agency in the State of California to
join the Authority as an associate member (an "Associate Member"); and
WHEREAS, the City desires to become an Associate Member of the Authority;
WHEREAS, Mayor and City Council of the City have adopted a resolution approving
the Associate Membership Agreement and the execution and delivery thereof,
WHEREAS, the Board of Directors of the Authority has determined that the City should
become an Associate Member of the Authority;
NOW, THEREFORE, in consideration of the above premises and of the mutual
promises herein contained, the Authority and the City do hereby agree as follows:
4833-7301-9141.1
2017-09
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 herein by reference. From and after the date of execution and
delivery of this Associate Membership Agreement by the City and the Authority, the City shall
be and remain an Associate Member of the Authority.
Section 2. Restrictions and Rights of Associate Members. The City shall not have the
right, as an Associate Member of the Authority, to vote on any action taken by the Board of
Directors or by the Voting Members of the Authority. In addition, no officer, employee or
representative of the City shall have any right to become an officer or director of the Authority
by virtue of the City being an Associate Member of the Authority.
Section 3. Effect of Prior Authority Actions. The City hereby agrees to be subject to and
bound by all actions previously taken by the Members and the Board of Directors of the
Authority to the same. extent as the Members of the Authority, are subject to and bound by such
actions.
Section 4. No Obligations of Associate Members. The debts, liabilities and obligations
of the Authority shall not be the debts, liabilities and obligations of the City.
Section 5. Execution of the Agreement. Execution of this Associate Membership
Agreement and the Agreement shall satisfy the requirements of the Agreement and Article XII of
the Bylaws of the Authority for participation by the City in all programs and other undertakings
of the Authority.
4833-7301-9141.2
2017-09
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.
At eqt-
Attest:
- �' J--/b-1'em 11-f/—
Georgeann ffiihna, CMC, C&y Clerk
APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By:
(0
4833-7301-9141.3
CALIFORNIA ENTERPRISE
DEVELO M NT O ITY
By:
Gurbax Sahot air
Board of Directors
CITY OF SAN BERNARDINO, CALIFORNIA
Mark Scott, City Manager