HomeMy WebLinkAbout05.D- City Manager A
Consent Calendar
City of San Bernardino
Request for Council Action
Date: January 23, 2017
To: Honorable Mayor and City Council Members
From: Mark Scott, City Managerw�
By: Cruz Esparza IV, Economic Development Manager
Subject: Property Assessed Clean Energy (PACE) Program Providers
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Recommendation
Adopt a Resolution of the Mayor and City Council of the City of San Bernardino, 0 I-
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California, approving associate membership in the California Enterprise Development LU
Authority (CEDA), authorizing and directing the execution of an Associate Membership 4
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Agreement, authorizing the City to join the Figtree Property Assessed Clean Energy
(PACE) Program, and authorizing CEDA to conduct contractual assessment M N
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proceedings and to levy contractual assessments within the City.
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Background
On December 19, 2016, the Mayor and City Council discussed PACE Programs and
expressed support for additional PACE Programs that would supplement the City's LU
current Home Energy Renovation Opportunity (HERO) program, which is administered a.
by Renovate America and provides financing for energy efficiency, water conservation,
and renewable energy projects in the City. HERO Improvements are funded by bonds E
secured by voluntary property tax assessments. In the City of San Bernardino, HERO
financing has been used to complete more than 1,500 energy efficient solar and water
products, totaling over$26.7 million in improvements.
Discussion
Since the HERO program was implemented in 2013, additional PACE programs have
been established in California. Currently, ten PACE program providers, in addition to
HERO, are operating within four Joint Powers of Authority (JPA) located throughout
California. Four JPA's and ten program providers have requested that they be allowed
to provide PACE financing services in the City. City staff has been working with
representatives of four of the JPA's to determine the process to make the PACE
Programs available in San Bernardino. One of the JPA's, CEDA, and its program
provider, Figtree PACE, are presented below for consideration this evening.
California Enterprise Development Authority (CEDA) is a JPA established by the
California Association of Local Economic Developers (CALED) and operates a PACE
program, which is administered by Figtree Energy Financing, using the AB 811 and AB
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474 models. Figtree PACE is available to commercial, industrial and multifamily
property owners. The City of San Bernardino is not a member of CEDA. Associate
membership is available to the City at no cost. If the Mayor and City Council would like
to offer the Figtree PACE program available through CEDA, the City would be required
to adopt a resolution authorizing membership and approving participation in the PACE
program.
Analysis
HERO and other PACE programs serve as a mechanism to implement California's
energy, environmental and greenhouse gas (GHG) policy goals by providing financing
options for property owners to complete solar, energy efficiency and renewable energy
projects. Several models and PACE programs exist. Each program offers advantages
and disadvantages in the form of costs, program funding limits, access to financing or
capital providers, minimum and maximum project amounts, projects priorities, mortgage
lender consent requirements and varying degrees of transparency regarding fees
charged by program administrators and their partners. Programs also differ in terms of
customer service, ease of use, marketing and property owner participation. Authorizing
additional PACE programs, in addition to the HERO program implemented in 2013, a
would increase the choices available to property owners in San Bernardino, and may w
encourage further investment in the community. Similar to the HERO Program, a
participation is voluntary and only those property owners who enter into financing a
agreements would be assessed on their property tax bills in order to repay the debt. N
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City staff is continuing to work with the other three JPA's to review guidelines and _
prepare necessary resolutions and membership agreements and will present the C
documents for council consideration at a future meeting.
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Fiscal Impact oa.
There is no ongoing financial impact to the City associated with participation.
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Conclusion
Staff recommends that the Mayor and City Council find that this project is not subject to a
the California Environmental Quality Act and adopt the attached Resolution authorizing
the City's participation in the Figtree PACE program, which will enable property owners
to finance permanently fixed renewable energy, energy efficiency, water efficiency, and
seismic strengthening improvements as well as electric vehicle charging infrastructure.
Attachments
Attachment 1 Resolution
Exhibit A CEDA Associate Membership Agreement
Exhibit Al CEDA By-laws
Exhibit A2 CEDA Joint Exercise of Powers Agreement
Exhibit B CEDA's Resolution
Exhibit C Figtree Indemnification Agreement
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Ward:
Synopsis of Previous Council Actions:
In February 2013, the Mayor and City Council approved executing an MOU with SANBAG
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1 RESOLUTION NO.
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.
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9 WHERAS,the City of San Bernardino, California, a municipal corporation, is duly
organized and existing under the Constitution and laws of the State of California; and °
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WHEREAS, the City upon authorization of the Mayor and City Council, may v
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11 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 CM
powers agreement with one or more other public agencies pursuant to which such contracting
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F parties may jointly exercise any power common to them; and o
14 WHEREAS,the City and other public agencies wish to jointly participate in
15 economic development financing programs for the benefit of businesses and nonprofit entities
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16 Within their jurisdictions offered by membership in the California Enterprise Development
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Authority("CEDA")pursuant to an Associate Membership Agreement and Joint Exercise of
17 Powers Agreement relating to the California Enterprise Development Authority(the v
18 "Agreement"); and <
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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 Q
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
Exhibit"A;" and
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25 WHEREAS, the City is willing to become an Associate Member of CEDA subject to
the provisions of the Associate Membership Agreement; and
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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
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5.D.b
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 evidence 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
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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 E
9 under the 1915 Act to finance the Improvements; and o
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WHEREAS,there has been presented at this meeting a proposed form of Resolution v
11 of Intention (the "ROI")to be adopted by CEDA in connection with such assessment a
proceedings, a copy of which is attached hereto as Exhibit `B"; and
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WHEREAS, said ROI sets forth the territory within which assessments may be levied
13 for Figtree PACE which territory shall be continuous with the City's official boundaries of o
14 record at the time of adoption of the ROI (the "Boundaries"); and '
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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
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Figtree PACE; and W
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WHEREAS,to protect the City in connection with operation of the Figtree PACE n.
19 program, Figtree Energy Financing, the program administrator has agreed to defend and
20 indemnify the City; and
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21 WHEREAS,the City will not be responsible for the conduct of any assessment a
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
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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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.
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1 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 authorize 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. E
9 SECTION 4. Good Standing. The City is a municipal corporation and is in good o
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11 SECTION 5. Public Benefit. On the date hereof, the Mayor and City Council hereby
12 find and determine that the Program and issuance of Bonds by CEDA in connection with N
Figtree PACE could provide significant public benefits, including without limitation, savings v
13 in effective interest rates, bond preparation, bond underwriting and bond issuance costs and c
&' 14 reductions in effective user charges levied by water and electricity providers within the
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boundaries of the City.
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SECTION 6. Appointment of CEDA. The City hereby appoints CEDA as its
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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
18 the California Streets and Highways Code (commencing with Section 8500 et seq.) (the a
"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 Q
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;
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27 (2) The Participating Property Owners, who shall be the legal owners of such property,
p� voluntarily execute a contract pursuant to Chapter 29 and comply with other
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1 applicable provisions of California Law in order to accomplish the valid levy of
assessments; and
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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 acknowledge 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. a,
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10 SECTION 9. Foreclosure. The Mayor and City Council hereby acknowledge that the a.
11 Law permits foreclosure in the event that there is a default in the payment of assessments due a
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 N
13 District, including accelerated foreclosure pursuant to the Program Report.
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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 Q
17 Agreement to Figtree. v
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SECTION 11. City Contact Designation. The appropriate officials and staff of the City a
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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 a
22 Manager's Office, (909)384-5122.
23 SECTION 12. CEQA. The Mayor and City Council hereby find that the adoption of this
Resolution 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.
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NOW
1 SECTION 14. Costs. Services related to the formation and administration of the
assessment district will be provided by CEDA at no cost to the City.
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5.D.b
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;
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
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and City Council of the City of San Bernardino at a
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meeting thereof, held on the day of , 2017, by the following vote, a.°
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Council Members: AYES NAYS ABSTAIN ABSENT co
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16 SHORETT
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20 Georgeann Hanna, CMC, City Clerk
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The foregoing Resolution is hereby approved this day of 52017.
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24 R. Carey Davis, Mayor
City of San Bernardino
25 Approved as to form:
26 Gary D. Saenz, City Attorney
27 By:
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ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and the
CITY OF SAN BERNARDINO, CALIFORNIA E
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THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership a.
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Agreement"), dated as of by and between CALIFORNIA 0
ENTERPRISE DEVELOPMENT AUTHORITY (the "Authority") and the CITY OF a
SAN BERNARDINO, CALIFORNIA, a municipal corporation, duly organized and existing
under the laws of the State of California(the "City"); 00
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WITNESSETH: E
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WHEREAS, the Cities of Selma, Lancaster and Eureka (individually, a "Member" and Q
collectively, the "Members"), have entered into a Joint Powers Agreement, dated as of June 1, LX
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
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WHEREAS, the Authority has been formed for the purpose, among others, to assist for a
profit and nonprofit corporations and other entities to obtain financing for projects and purposes Q
serving the public interest; and x
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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
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WHEREAS,the City desires to become an Associate Member of the Authority; Q
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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
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5.D.c
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 o
by virtue of the City being an Associate Member of the Authority. a`
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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 C4
actions. :
Section 4. No Obligations of Associate Members. The debts, liabilities and obligations E
of the Authority shall not be the debts, liabilities and obligations of the City. L
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Section 5. Execution of the Agreement. Execution of this Associate Membership Q
Agreement and the Agreement shall satisfy the requirements of the Agreement and Article XII of w
the Bylaws of the Authority for participation by the City in all programs and other undertakings
of the Authority. E
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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 o
Board of Directors a
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Helen Schaubmayer,Asst. Secretary L
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CITY OF SAN BERNARDINO, CALIFORNIA C.
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By.
Mark Scott, City Manager
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Attest: Q
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Georgeann Hanna, CMC, City Clerk
APPROVED AS TO FORM: v
Gary D. Saenz, City Attorney a
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By:
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4833-7301-9141.3
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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 E
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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 w
(hereinafter called the "Agreement,"unless otherwise expressly provided). Q
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ARTICLE II N
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OFFICES
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The Authority's principal office for the transaction of business is located at 550 m
Bercut Drive, Suite G, Sacramento, California 95814. a
ARTICLE III r
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LIMITATION ON AUTHORITY w
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The Authority's exercise of its power under the Agreement and these Bylaws shall be U
restricted to the extent required under Section 6509 of the Act. The City of Eureka is hereby Q
designated pursuant to Section 6509 of the Act. This designation may be changed by a majority cwi
vote of the Board of Directors. Q
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ARTICLE IV
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MEETINGS OF THE VOTING MEMBERS
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I. 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 o
specify: a`
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(i) The place, date and hour of the meeting. a
(ii) Those matters which are intended to be presented for action by the N
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Voting Members.
(iii) The general nature of any proposal for action by the Voting
Members concerning a change in the Voting Members of the m
Authority or any other matter substantially affecting the rights and a
obligations of the Authority and its Members.
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2. Special Meetings
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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 a
of the media provided in Section 54956 of the Government Code. The notice of a special v
meeting shall specify the time and place of the meeting and the business to be transacted. No a
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 a
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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5.D.d
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
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MEETINGS OF THE BOARD OF DIRECTORS a�
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1. Regular Meetings
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(a) Time Held a
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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 m
Meeting shall be held at 2:00 p.m. on the First Thursday in June of each year. Should such day a
fall upon a legal holiday, the Board of Directors Annual Meeting shall be held on the next
following business day. Q
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(b) Business To Be Transacted L".
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At each Board of Directors Annual Meeting, the Board of Directors shall review, r
modify if necessary, and adopt the annual operating budget of the Authority, approve the audit of Q
the Authority's finances and review the annual work plan or program plan and, in each v
alternating fiscal year, shall elect officers. a
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.
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(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 o
the Board of Directors may waive notice as provided in Section 54956 of the Government Code. `a
Notice of the calling of any special meeting shall be posted as provided in said Section. v
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3. Place Of Meeting
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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 3
made, as designated by the Chairman of the Board of Directors.
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4. Adjourned Meetings a
The Board of Directors may adjourn any regular or special meeting to a time and Q
place specified in the order of adjournment, whether or not a quorum has been established. If a w
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 r
of the Government Code. No other notice of an adjourned meeting shall be necessary, unless the Q
adjournment is for a period of thirty (30) days or more, in which case notice of the adjourned Q
meeting shall be given in the same manner as notice of the original meeting. a
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5. Ralph M. Brown Act E
Notwithstanding anything herein to the contrary, all meetings of the Board of r
Directors shall be held in strict compliance with the Ralph M. Brown Act (Government Code a
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 E
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. w
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3. Duties of the Chairman a
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The Chairman shall preside at and conduct all meetings of the Board of Directors 00
and the Voting Members, although the Chairman will have no vote at any meeting of the Voting N
Members. The Chairman shall sign all contracts unless a Resolution of the Board provides
otherwise.
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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 w
Board of Directors.
5. Duties of the Secretary Q
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The Secretary shall countersign all contracts on behalf of the Authority and shall Q
perform such other duties as may be imposed by the Board.
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6. Duties of the Treasurer E
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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. E
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ARTICLE VII
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COMMITTEES a
1. Establishment of Committees N
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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 m
shall operate according to the policies adopted by the body establishing such committee and shall a
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 Q
Board of Directors and a member of such committee. x
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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 .2
meeting, and of the business to be transacted, shall be delivered to each member of the Q
Committee and to requesting representatives of the media at least twenty-four (24) hours in Q
advance as required by Section 54966 of the Government Code, and subject to the other o.
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 E
actions of the Committee shall require the affirmative votes of a majority of the members present 0
at a meeting duly held at which a quorum is present. All Committee meetings shall be duly a
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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5.D.d
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 CU
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1. Fiscal Year
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The Fiscal Year of the Authority shall be from July 1 to June 30.
2. Budget N
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At least thirty (30) days prior to the Board of Directors Annual Meeting in each y
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 m
annual membership fee and assessment schedules, if any, and a summary of revenue and a
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. Q
The Board of Directors shall have power to transfer funds within the total detailed budget to x
meet unanticipated needs or changed situations. w
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ARTICLE X
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AMENDMENTS
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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. 1°
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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. o
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3. An Associate Member shall not be entitled to vote on any matter coming LU
before the Voting Members or the Board, except as otherwise specified in the Agreement. a
4. Upon approval by the legislative body of a Local Agency as an Associate CN
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 2
Associate Membership Agreement in the official records of the Authority and add such Local m
Agency to Exhibit A of the Agreement as an amendment, effective upon such filing. a
[End of Bylaws] a
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5.D.d
EXHIBIT A
ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and the
CITY/COUNTY OF , CALIFORNIA
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THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate
Membership Agreement"), dated as of 2006, by and between CALIFORNIA 0-
ENTERPRISE
ENTERPRISE DEVELOPMENT AUTHORITY (the "Authority") and the CITY/COUNTY OF a.
CALIFORNIA, a municipal corporation/political subdivision, duly organized and existing
under the laws of the State of California(the "City/County"); °
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WITNESSETH:
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WHEREAS, the Cities of Selma, Lancaster and Eureka (individually, a "Member" and m
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
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WHEREAS, the Agreement designates the Executive Committee of the Board of
Directors and the President of the California Association for Local Economic Development as w
the initial Board of Directors of the Authority; and
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WHEREAS, the Authority has been formed for the purpose, among others, to assist for Q
profit and nonprofit corporations and other entities to obtain financing for projects and purposes ui
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serving the public interest; and o¢.
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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/County desires to become an Associate Member of the ¢
Authority;
WHEREAS, City Council of the City/Board of Supervisors of the County has
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/County should become an Associate Member of the Authority;
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NOW, THEREFORE, in consideration of the above premises and of the mutual
promises herein contained, the Authority and the City/County do hereby agree as follows:
Section 1. Associate Member Status. The City/County 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/County
and the Authority, the City/County shall be and remain an Associate Member of the Authority.
Section 2. Restrictions and Rights of Associate Members. The City/County 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/County shall have any right to become an officer or director of the 2
Authority. o
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Section 3. Effect of Prior Authority Actions. The City/County hereby agrees to W
be subject to and bound by the A. Agreement and B. Bylaws of the Authority. a
Section 4. No Obligations of Associate Members. The debts, liabilities and N
obligations of the Authority shall not be the debts, liabilities and obligations of the City/County.
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Section 5. Execution of the Agreement. Execution of this Associate Membership 2
Agreement and the Agreement shall satisfy the requirements of the Agreement and Article XII of m
the Bylaws of the Authority for participation by the City/County in all programs and other a.
undertakings of the Authority.
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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 of the
Board of Directors
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Attest: a.
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Michelle Stephens, Assistant Secretary
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CITY/COUNTY OF , CALIFORNIA
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By: m
Name: a.
Title:
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Name:
City Clerk/Clerk of the Board of Supervisors w
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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:
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WHEREAS, the Joint Exercise of Powers Act (the "Act"), Article 1 of Chapter 5 of 0-
Division
Division 7 of Title 1 (commencing with Section 6500) of the Government Code of the State, a
authorizes public agencies by agreement to jointly exercise any powers common to each of them; a
and 0-
WHEREAS,
WHEREAS, each of the parties hereto are authorized by law to exercise broad co
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
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WHEREAS, by this Agreement, the parties hereto desire to create and establish the Q
"California. Enterprise Development Authority" (the "Authority") for the purposes set forth aa..
herein and to exercise the powers described herein; and
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WHEREAS, each of the parties hereto are authorized by law to exercise broad w
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 Z
accomplish those functions by means of issuing bonds or refunding bonds, entering into loan W
agreements, indentures, lease agreements, installment purchase agreements, installment sale Q
agreements and trust agreements, making grants and loans, providing other financial assistance a
or in any other manner deemed appropriate by the governmental entity; and C
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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 Q
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:
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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.
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"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.
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"Associate Member" shall mean any Local Agency that shall have duly executed this o
Agreement and executed and delivered to the Authority an Associate Membership Agreement in a`
the form and as further provided in the Bylaws of the Authority. v
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"Authority"means the California Enterprise Development Authority established pursuant a
to Section 2.2 of this Agreement. co
`Board" means the Board of Directors of the Authority referred to in Section 2.3, which
{ shall be the governing body of the Authority.
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"Bonds" means the revenue obligations, inclusive of principal (premium, if any) and a
interest authorized to be issued by the Authority, including a single bond, a promissory note ora.
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notes, including bond anticipation notes, lease agreement, installment purchase agreement,
certificates of participation or any other instrument evidencing an indebtedness or obligation. a
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"CALED"means the California Association for Local Economic Development. w
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"Chairman"means the Chairman elected pursuant to Section 3.1.
"Director"means each member of the Board. v
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"Eureka" means the City of Eureka, a charter city and municipal corporation formed and
existing pursuant to the Constitution and laws of the State. _
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"Executive Director" means the Executive Director of the Authority appointed pursuant a
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.
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` "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
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5.D.e
"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"ineans 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, L
grants and other sources of income, and all interest or other income from any investment of any o
money in any fund or account established for the payment of principal or interest or premiums on a.
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Bonds.
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"Secretary"means the Secretary of the Authority appointed pursuant to Section 3.1.
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"Selma" means the City of Selma, a municipal corporation formed and existing pursuant
to the Constitution and laws of the State.
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"State"means the State of California.
"Treasurer"means the Treasurer of the Authority appointed pursuant to Section 3.2. n¢.
"Vice-Chairman"means the Vice-Chairman elected pursuant to Section 3.1. a
"Voting Members" means Selma, Lancaster and Eureka or each individually or other w
Local Agencies that may be added pursuant to the terms of this Agreement. _
ARTICLE II a
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GENERAL PROVISIONS a
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 E
Act and as agreed by one or more of the parties hereto. The primary purpose of this Agreement o
is to assist the Members and for-profit and nonprofit organizations located within the Q
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.
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S.D.e
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 2
meeting of Voting Members shall be held each year, which may not be o
waived. The date, hour and place of the holding of meetings shall be a
fixed by resolution of the Board which shall set one such meeting each Q
year and any other meetings at the written request of any Voting Member, a
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 CO
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 d
Voting Member's Legislative Body or an employee of the Voting
Member, to represent the Voting Member. The name of each Alternate a
must be filed with the Executive Director of the Authority at least 30 days g;
prior to the opening of any regular meeting of the Voting Members and at N
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 w
Members, except as otherwise provided herein, shall reside in the Voting
Members.
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{b) Board of Directors Meetings. The Board shall provide for its regular w
meetings; provided, however, that at least one regular meeting shall be Q
held each year unless otherwise waived by a resolution of the Board. The a
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.
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(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).
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5.D.e
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 Ca
this Agreement, in which instance each Associate Member shall have one o
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Section 2.7. Quorum,• Required Votes; Approvals. ¢
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(a) Board Meetings. Three (3) Directors shall constitute a quorum for the
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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 c
present at any meeting at which a quorum is present shall be required to E
take any action by the Board. L
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(b) Meetings of Voting Members. Two (2) Voting Members shall constitute a a
quorum for the transaction of business, except that less than a quorum
may adjourn from time to time. Unless otherwise provided herein, the a
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 w
action by the Voting Members.
Section 2.8. Bylaws Rules and Regulations. The Board may adopt, from time to time, Q
bylaws for the Authority and rules and regulations for the conduct of its meetings as are v
necessary for the purposes hereof. a
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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
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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 E
Agreement and add such Local Agency to Exhibit A hereto as an amendment, effective upon L
j such filing. An Associate Member shall not be entitled to vote on any matter coming before the
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l Voting Members or the Board, except as otherwise specified herein. However, an Associate a.
I Member shall be entitled to participate in all programs and other undertakings of the Authority, a
including, without limitation, any undertaking to finance or refinance a Project, and any other a
financing program. N
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ARTICLE III
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OFFICERS AND EMPLOYEES
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Section 3.1. Chairman Vice ChairmanSecretary and Executive Director. So long as Q
the Board shall be comprised of the Executive Committee of the Board of Directors of CALED aa..
and the President of CALED, the President of CALED shall serve as the Chairman of the Board. N
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, w
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 a
duties normal to said offices. The Chairman shall sign all contracts on behalf of the Authority, w
unless a resolution of the Board shall provide otherwise, and shall perform such other duties as a
may be imposed by the Board. The Vice Chairman shall sign contracts and perform all of the a
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 s
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 a
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
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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 o
persons pursuant to Section 6505.1 of the Act. w
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Section 3.5. Legal Advisor, The Board shall have the power to appoint the legal a.
advisor of the Authority who shall perform such duties as may be prescribed by the Board. N
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Section 3.6. Other Employees. The Board shall have the power by resolution to
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appoint and employ such other employees, consultants and independent contractors as may be
necessary for the purposes of this Agreement.
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from liability, exemption from laws, ordinances an
All of the privileges and immunities d Q
rules, all pension, relief, disability, workers' compensation and other benefits which apply to the aa..
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, w
agents or employees under this Agreement.
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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, Q
individually or collectively, or by reason of their employment by the Board, to be subject to any Q
of the requirements of the Members. °-
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Section 3.7. Assistant Officers. The Board may by resolution appoint such assistants E
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 Q
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
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5.D.e
f 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 42. 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 c
project agreement or indenture; a
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(b) To maintain property; Q
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(c) To dispose of property Y bY lease sale exchange, donation, release, M
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relinquishment, or otherwise; --
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(d) With respect to property, to: (1) charge and collect rent under any lease; d
(2) sell at public or private sale, with or without public notice; (3) sell at a d
discount or below appraised value or for a nominal consideration, only; a
(4) sell on an installment payment or a conditional sales basis; (5) convey, a
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 Q
for any such sale the note or notes of a company and mortgages, deeds of
trust, or other security agreements respecting such property; w
(e) To acquire and hold property, including funds, project agreements and a
other obligations of any kind, and pledge, encumber or assign the same, or a
the revenues therefrom or any portion of such revenues, or other rights, U
whether then owned or possessed, or thereafter acquired, for the benefit of a.
the bondholders, and as security or additional security for any bonds or
the performance of obligations under an indenture; E
(f) To acquire insurance against any liability or loss in connection with r
property,in such amounts as the Authority deems desirable; a
(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
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(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 L
provisions of,the proceedings; 0-
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(1) To expressly waive any immunity of the political subdivisions of the State 0
provided by the Constitution or laws of the United States of America to aa..
taxation by the United States of interest on bonds issued by an authority, M
in obtaining federal benefits; v
(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 E
acceptance of funds and other aid from a Member and from other
governmental sources authorized to provide such funds or aid, (3) by the a
acceptance of contributions from business, trade, labor, community, and a
other associations, and (4)by other authorized means; N
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(n) To contract and pay compensation for professional, financial, and other x
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services; and
(o) to exercise any and all additional powers as may be provided in the Act.
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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 a
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. E
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ARTICLE V
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METHODS OF PROCEDURE; CREDIT TO MEMBERS
Section 5.1. Assam tion of Responsibilities by the Authorit . 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
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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 L
provisions of Sections 6512 and 6512.1 of the Act are hereby incorporated into this Agreement o
by reference. a
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Section 6.2. Accounts and Reports. To the extent not covered by the duties assigned to
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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 00
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, E
within 180 days after the close of each Fiscal Year, shall give a complete written report of all L
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 a.
agreement shall establish suitable funds, fiunish financial reports and provide suitable accounting N
procedures to carry out the provisions of said trust indenture or trust agreement. Said trustee Q
may be given such duties in said trust indenture or trust agreement as may be desirable to carry w
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 ui
custody of and disburse Authority funds, the Treasurer of the Authority shall receive, have Q
custody of and disburse Authority fiends as nearly as possible in accordance with generally a.
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. E
Section 6.4. Annual Budget and Administrative Expenses and Surplus Revenues. The Q
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.
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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.
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ARTICLE VIII 0-
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MISCELLANEOUS PROVISIONS
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Section 8.1. Notices. Notices hereunder shall be in writing and shall be sufficient if
delivered to: 00
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City of Selma
1710 Tucker Street d
Selma, California 93662
Attention: City Clerk a
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City of Lancaster
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44933 North Fern Avenue a
Lancaster, California 93534 w
Attention: City Clerk
City of Eureka
531 K Street a
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Eureka, California 95501 v
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Attention: City Clerk a
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Section 8.2. Section Headings. All section headings in this Agreement are for E
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 Q
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 Governinj. This Agreement is made in the State under the
constitution and laws of the State, and is to be so construed.
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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 c
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the date such proposed amendment is to become effective explaining the nature of such proposed a
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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 a
proposed amendment is to become effective; and (iii) if no Member objects to the proposed M
amendment in writing within sixty days after the initial notice, the proposed amendment shall Co
become effective with respect to all Members. ,
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Section 8.6. Enforcement by Authority. The Authority is hereby authorized to take any E
or all legal or equitable actions, including, but not limited to, injunction and specific
performance,necessary or permitted by law to enforce this Agreement. a
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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 Q
State, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining x
portions or provisions shall not be affected thereby. w
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 a
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obligation hereunder without the written consent of all of the others. Q
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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.
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[SIGNATURE PAGES TO FOLLOW]
4827-5080-7246.8 12
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CITY OF SELMA
By
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D-B Heusser
City Manager
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Melanie A. Carter U
City Clerk a.
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APPROVED AS TO FORM
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Richard H. Hargrove Ll a.
City Attorney Q
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SIGNATURE PAGE OF
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TO JOINT EXERCISE OF POWERS AGREEMENT
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S.D.e
CITY OF LANCASTER
By t
Henry W. Hearns
Mayor
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Attest:
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Geri K. Bryan
City Cleric a
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APPROVED S TO FORM
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David R. McEwen Q
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SIGNATURE PAGE OF
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CITY OF LANCASTER a
TO JOINT EXERCISE OF POWERS AGREEMENT
4827-5080-7296.8
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5.D.e
CITY OF EUREKA
By ox,
Peter La Vall
Mayor
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Attest:
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Kathleen Franco Sinimons a
City Clerk a
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David Tranberg
City Attorney a
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SIGNATURE PAGE OF
CITY OF EUREKA Q
TO JOINT EXERCISE OF POWERS AGREEMENT
4827-5080-7296.8
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S.D.e
EXHIBIT A
MEMBERS OF THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
(as of 3/4/2008)
Voting Members
City of Selma
City of Lancaster
City of Eureka
Associate Members 2-
CD CD
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City of Upland a`
County of Stanislaus
County of Sacramento a
City of Pittsburg
County of Sonoma co
County of Yolo
County of Riverside
City of Fairfield E
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City of Duarte
City of Montebello Q
County of San Bernardino aa..
City of King City
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City of Long Beach Q
County of Madera w
City of Greenfield
City of Milpitas
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4827-5480-7296.8
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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 c
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WHEREAS, CEDA is authorized under the Agreement and Chapter 5 of Division 7 of UJ
Title 1 of the Government Code of the State of California and in accordance with Chapter 29 of <
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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 energy00
sources, energy efficiency, seismic retrofits, electric vehicle charging infrastructure, and water
efficiency improvements that are permanently fixed to real property ("Authorized o
Improvements"); and
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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 E
Improvements in the City; and ii
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WHEREAS, CEDA desires to declare its intention to establish a Figtree PACE program v
("Figtree PACE") in the City, pursuant to which CEDA, subject to certain conditions set forth m
herein, would enter into contractual assessments to finance the installation of Authorized w
Improvements in the City.
NOW, THEREFORE,BE IT RESOLVED BY THE BOARD OF DIRECTORS OF Q
THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY,AS FOLLOWS: w
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Section 1. Findings. The Board of Directors hereby finds and determines the following: a"
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(a) The above recitals are true and correct and are incorporated herein by this =
reference.
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(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
Packet Pg. 67
S.D.f
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 o
to finance the installation of Authorized Improvements pursuant to Chapter 29 and(b) it is in the a
public interest for CEDA to finance the installation of Authorized Improvements in the County a
pursuant to Chapter 29. a.
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Section 3. Identification of Authorized Improvements. CEDA hereby declares its CO
intention to make contractual assessment financing available to property owners to finance
installation of Authorized Improvements, including but not limited to those improvements o
detailed in the Report described in Section 8 hereof(the "Report"), as that Report may be 2
amended from time to time.
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Section 4. Identification of Boundaries. Contractual assessments may be entered into 0
.,.. by property owners located within the entire geographic territory of the City. A property owner U-
located within the City may enter into contractual assessments with CEDA only after such City w
has adopted a resolution to authorize participation in the PACE Program. v
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Section 5. Proposed Financing Arrangements. Under Chapter 29, CEDA may issue w
bonds, notes or other forms of indebtedness (the "Bonds")pursuant to Chapter 29 that are
payable by contractual assessments. Division 10 (commencing with Section 85 00) of the Streets
&Highways Code of the State (the"Improvement Bond Act of 1915") shall apply to any Q
indebtedness issued pursuant to Chapter 29, insofar as the Improvement Bond Act of 1915 is not v
in conflict with Chapter 29. The creditworthiness of a property owner to participate in the a
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 E
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 a
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
Packet Pg. 68
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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.
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In connection with the issuance of bonds payable from contractual assessments, CEDA a.
expects to obligate itself, through a covenant with the owners of the bonds,to exercise its LU
foreclosure rights with respect to delinquent contractual assessment installments under specified nQ.
circumstances.
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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, o
CA 95811, on , at Afor the purposes of allowing interested :3
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. o
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At the time of the hearing,the Report described in Section 8 hereof shall be summarized, o
and the Board shall afford all persons who are present an opportunity to comment upon, object U
to, or present evidence with regard to the proposed Figtree PACE Program,the extent of the area m
proposed to be included within the boundaries of the assessment district,the terms and w
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 U
confirming the Report(the "Resolution Confirming Report")or may direct the Report's Q
modification in any respect, or may abandon the proceedings. ui
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The Board hereby orders the publication of a notice of public hearing once a week for a.
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 E
publication dates are sufficient. The period of notice will commence upon the first day of U
publication and terminate at the end of the fourteenth day. The first publication shall occur not q
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
Packet Pg. 69
5.D.f
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 CU
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assessments on behalf of CEDA. Cn
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(3) A maximum aggregate dollar amount of contractual assessments. a.
(4) A method for setting requests from property owners for financing through W
contractual assessments in priority order in the event that requests appear a
likely to exceed the authorization amount.
(d) A plan for raising a capital amount required to pay for work performed in CO
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 o
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 0
financing, administration and collection of the contractual assessment program w
among the consenting property owners and CEDA. o
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A report on the results of the discussions with the County Auditor-Controller described in m
Section 10 hereof, concerning the additional fees, if any,that will be charged to CEDA for w
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 W
interest and any penalties thereon, will constitute a lien against the lots and parcels of land on a
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. r
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.
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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.
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PASSED AND ADOPTED this day of , 201_. a`
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CALIFORNIA ENTERPRISE Q
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DEVELOPMENT AUTHORITY
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Gurbax Sahota, Chair
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ATTEST: E
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Helen Schaubmayer, Assistant Secretary
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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 2-
administrator of the Figtree Property Assessed Clean Energy and Job Creation Program(the o
"Administrator"), which is a program of the California Enterprise Development Authority, a a.
California joint exercise of powers authority(the "Authority"). Q
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RECITALS N
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WHEREAS,the Authority is a joint exercise of powers authority whose members d
include the City in addition to other cities and counties in the State of California; and 0)
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 c
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, c
under the Improvement Bond Act of 1915 upon the security of the unpaid assessments; and ci
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WHEREAS,the Authority has conducted or will conduct proceedings required by w
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Chapter 29 with respect to the territory within the boundaries of the City; and
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WHEREAS,the legislative body of the City adopted or will adopt a resolution Q
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authorizing the City to join the Figtree PACE Program; and
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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 E
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 Q
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;
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5.D.g
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 o
acts or omissions of Figtree, except for such loss or damage which was caused by the sole a
negligence or willful misconduct of the City. This indemnity shall apply to all claims and v
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.
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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. m
No supplement, modification or amendment of this Agreement shall be binding unless executed P
in writing by both of the parties hereto. This Agreement shall not be interpreted for or against Q
any party by reason of the fact that such party may have drafted this Agreement or any of its o
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provisions.
3. Section Headings. Section headings in this Agreement are included for E
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose.
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4. Waiver. No waiver of any of the provisions of this Agreement shall be binding w
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), U
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nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no Q
failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a w
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waiver thereof. Q
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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 r
by law. This Agreement shall be governed by and construed and enforced in accordance with Q
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:
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Packet Pg.73
5.D.g
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 c
instrument. a
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8. Effective Date. This Agreement will be effective as of the date of the signature of a
City's representative as indicated below in the signature block.
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Packet Pg. 74
5.D.g
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
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By w
Name: Mark Scott a
Title: City Manager o.
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Date: 00
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APPROVED AS TO FORM:
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Gary D. Saenz, City Attorney
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Figtree Company, Inc., a California corp. _
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By
Name: Mahesh Shah U
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Title: CEO Q
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Date: Q
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Packet Pg.75