HomeMy WebLinkAboutReso - CC - 033-2015RESOLUTION NO. 33-2015
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME APPROVING
ASSOCIATE MEMBERSHIP BY THE CITY IN THE CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY; AUTHORIZING AND DIRECTING THE EXECUTION OF AN
ASSOCIATE MEMBERSHIP AGREEMENT RELATING TO ASSOCIATE MEMBERSIP OF THE
CITY IN THE AUTHORITY; AUTHORIZING THE CITY TO JOIN THE FIGTREE PROGRAM;
AUTHORIZING THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY TO CONDUCT
CONTRACTUAL ASSESSMENT PROCEEDINGS AND LEVEY CONTRACTUAL
ASSESSMENTS WITHING THE TERRITORY OF THE CITY OF BURLINGAME; AND
AUTHORIZING RELATED ACTIONS
WHEREAS, the City of Burlingame, California (the "City"), is a municipal corporation, duly
organized and existing under the Constitution and the laws of the State of California; and
WHEREAS, the City, upon authorization of the City Council, may, pursuant to Chapter 5 of
Division 7 of Title 1 of the Government Code of the State of California, commencing with Section
6500 (the "JPA Law"), enter into a joint exercise of powers agreement with one & more other
public agencies pursuant to which such contracting parties may jointly exercise any power
common to them; and 7 -
WHEREAS, the City and other public agencies wish to jointly participate in economic
development financing programs for the benefit of businesses and nonprofit entities.: within their
jurisdictions offered by membership in the California Enterprise Development Authority (the
"Authority") pursuant to an associate membership agreement and Joint Exercise, of Powers
Agreement Relating to the California Enterprise Development Authority (the "Agreement"); and
WHEREAS, under the JPA Law and the Agreement, the Authority is a public entity
separate and apart from the parties to the Agreement and the debts, liabilities andobligationsof
the Authority will not be the debts, liabilities or obligations of the City or the other members of the
Authority; and
WHEREAS, the form of Associate Membership Agreement (the "Associate Membership
Agreement") between the City and the Authority is attached (Exhibit A); and
WHEREAS, the City is willing to become an Associate Member of the Authority subject to
the provisions of the Associate Membership Agreement.
WHEREAS, the California Enterprise Development Authority ("CEDA") is a joint exercise of
powers w mority, comprised of cities and counties in the State of California, including the City of
Burlingame; and
WHEREAS, CEDA has adopted the Figtree Property Assessed Clean Energy (PACE) and
Job Creation Program (the "Program" or "Figtree PACE"), to allow the financing of certain
renewable energy, energy efficiency, seismic retrofits, electric vehicle charging infrastructure, and
water efficiency improvements (the "Improvements") through the levy of contractual assessments
pursuant to Chapter 29 of Division 7 of the Streets & Highways Code ("Chapter 29"), and the
issuance of improvement bonds or other evidences of indebtedness (the "Bonds") under the
Improvement Bond Act of 1915 (Streets and Highways Code Sections 8500 et seq.) ("Act") upon
the security of the unpaid contractual assessments; and
WHEREAS, Chapter 29 provides that assessments may be levied under its provisions only
with the free and willing consent of the owner of each lot or parcel on which an assessment is
levied at the time the assessment is levied; and
WHEREAS, the City desires to participate in Figtree PACE, and to allow CEDA to conduct
assessment proceedings under Chapter 29 and to issue Bonds under the 1915 Act to Finance the
Improvements; and
WHEREAS, CEDA will conduct assessment proceedings under Chapter 29 to establish an
assessment district (the "District") and issue Bonds under the 1915 Act to Finance Improvements;
and
WHEREAS, there has been presented to this meeting a proposed form of Resolution of
Intention to be adopted by CEDA in connection with such assessment proceedings (the "ROI"), a
copy of which is attached hereto as Exhibit B; and
WHEREAS, said ROI sets forth the territory within which assessments may be levied for
Figtree PACE which territory shall be coterminous with the City's official boundaries of record at the
time of adoption of the ROI (the "Boundaries"); and
WHEREAS, pursuant to Chapter 29, the City authorizes CEDA to conduct 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 Figtree PACE' and
WHEREAS, to protect the City in connection with operation of the Figtree PACE, Figtree
Energy Financing., the program administrator, has agreed to defend and indemnify the City; and
WHEREAS, the City will not be responsible for the levy of assessments, any required
remedial action in the case of delinquencies, the issuance, sale or administration of the bonds or
other indebtedness issued in connection with Figtree PACE.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME RESOLVES AS
FOLLOWS:
1. The City Council hereby specifically finds and declares that the actions authorized
hereby constitute publica`°airs of the City. The City Council further finds that the
statements, findings and determinations of the City set forth in the preambles above are
true and correct.
2. The Associate Membership Agreement presented to this meeting and on file with the
City Clerk is hereby approved. The Mayor of the City, the City Manager, the City Clerk
and other officials of the City are each hereby authorized and directed, for and on behalf
of the City, to execute and deliver the Associate Membership Agreement in substantially
said form, with such changes therein as such officer may require or approve, such
approval to be conclusively evidenced by the execution and delivery thereof.
3. The officers and officials of the City are hereby authorized and directed, jointly and
severally, to do any and all things and to execute and deliver any and all documents
which they may deem necessary or advisable in order to consummate, carry out, give
effect to and comply with the terms and intent of this resolution and the Associate
Membership Agreement. All such actions heretofore taken by such officers and officials
are hereby confirmed, ratified and approved.
4. Good Standing. The City is either a municipal corporation or other public body and a
member of CEDA in good standing.
5. Public Benefits. On the date hereof, the City Council hereby finds and determines that
the Program and issuance of Bonds by CEDA in connection with Figtree PACE will
provide significant public benefits, including without limitation, savings in effective
interest rates, bond preparation, bond underwriting and bond issuance costs and
reductions in effective user charges levied by water and electricity providers within the
boundaries of the City.
6. Appointment of CEDA. The City hereby appoints CEDA as its representative to (i)
record the assessment against the Participating Parcels, (ii) administer the District in
accordance with the Improvement Act of 1915 (Chapter 29 Part 1 of Division 10 of the
California Streets and Highways Code (commencing with Section 8500 et seq.) (the
"Law"), (iii) prepare program guidelines for the operations of the Program and (iv)
proceed with any claims, proceedings or legal actions as shall be necessary to collect
past due 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 agent of Figtree or CEDA as a result of this Resolution.
7.> Assessment Proceedings. In connection with Figtree PACE, the City hereby consents
to the special assessment proceedings by CEDA pursuant to Chapter 29 on any
property within the Boundaries and the issuance of Bonds under the 1915 Act, provided
that:
(1) Such proceedings are conducted pursuant to one or more Resolutions of Intention
in substantially the form of the ROI;
(2) The Participating Property Owners, who shall be the legal owners of such property,
voluntarily execute a contract pursuant to Chapter 29 and comply with other
applicable provisions of California law in order to accomplish the valid levy of
assessments; and
(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 assessment payments, or the issuance, sale or administration of the Bonds in
connection with Figtree PACE.
8. Program Report. The City Council hereby acknowledges that 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 documents,
and CEDA will undertake assessment proceedings and the financing of Improvements
as set forth in the Program Report.
9. Foreclosure. The City Council hereby acknowledges that the Law permits foreclosure
in the event that there is a default in the payment of assessments due on a property.
The City Council hereby designates CEDA as its representative to proceed with
collection and foreclosure of the liens on the defaulting properties within the District,
including accelerated foreclosure pursuant to the Program Report.
10. Indemnification. The City Council acknowledges that Figtree has provided the City
with an indemnification agreement, as shown in Exhibit B, for negligence or
malfeasance of any type as a result of the acts or omissions of Figtree, its officers,
employees, subcontractors and agents. The City Council hereby authorizes the
appropriate officials and staff of the City to execute and deliver the Indemnification
Agreement to Figtree.
11. City Contact Designation. The appropriate officials and staff of the City are hereby
authorized and directed to make applications for Figtree PACE available to all property
owners who wish to finance Improvements. Staff designated by the City Manager are
hereby designated as the contact persons for CEDA in connection with Figtree PACE:
12. CEQA. The City Council hereby finds that adoption of this Resolution is not a "project"
under the California Environmental Quality Act ("CEQA"), because the Resolution does
not involve any commitment to a specific project which may result in a potentially
significant physical impact on the environment, as contemplated by Title 14, California
Code of Regulations, Section 15378(b)(4)).
13. Effective Date. This Resolution shall take effect immediately upon its adoption. The
City Clerk is hereby authorized and directed to transmit a certified copy of this resolution
to Figtree Energy Financing.
14. Costs. Services related to the formation and administration of the assessment district
will be provided by CEDA at no cost to the City.
Terry Nagel, payor
I, Mary Ellen Kearney, City Clerk of the City of Burlingame, do hereby certify that the foregoing
Resolution was introduced at a regular meeting of the City Council held on the 6t" day of April, 2015,
and was adopted thereafter by the following vote:
AYES: Councilmembers:BROWNRIGG, KEIGHRAN, NAGEL, ORTIZ, ROOT
NOES: Councilmembers: NONE
ABSENT: Councilmembers: NONE
ary ElleA Kearney, City Clerk
EXHIBIT A
Associate Membership Agreement
ASSOCIATE MEMBERSHIP AGREEMENT
by and between the
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
and the
CITY OF BURLINGAME CALIFORNIA
THIS ASSOCIATE MEMBERSHIP AGREEMENT (this "Associate Membership Agreement"), dated
---as- or miarcn su-; zu-lo Dy ana oetween UALIt-UKINIH tIV 1 tKYKIJt UtVtLUVMtN 1
AUTHORITY (the "Authority") and the CITY OF BURLINGAME CALIFORNIA; a municipal
corporation, duly organized and existing under the laws of the State of California (the "City");
WITNESSETH:
WHEREAS, the Cities of Selma, Lancaster and Eureka (individually, a "Member" and
collectively, the "Members"), have entered into a Joint Powers Agreement, dated as of June 1,
2006 (the "Agreement"), establishing the Authority and prescribing its purposes and powers; and .
WHEREAS, the Agreement designates the Executive Committee of the Board of Directors
and the President of the California Association for Local Economic Development -as the initial
Board of Directors of the Authority; and
WHEREAS, the Authority has been formed for the purpose, among others, to assist for
profit and nonprofit corporations and other entities to obtain financing for projects and purposes
serving the public interest; and
WHEREAS, the Agreement permits any other local agency in the State of California to join
the Authority as an associate member (an "Associate Member"); and
WHEREAS, the City desires to become an Associate Member of the Authority;
WHEREAS, City Council of the City 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 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:
Section 1. Associate Member Status. The City is hereby made an Associate Member of
the Authority for all purposes of the Agreement and the Bylaws of the Authority, the
provisions of which are hereby incorporated herein by reference. From and after the date
of execution and delivery of this Associate Membership Agreement by the City and the
Authority, the City shall be and remain an Associate Member of the Authority.
Section 2. Restrictions and Rights of Associate Members. The City shall not have the
right, as an Associate Member of the Authority, to vote on any action taken by the Board of
Directors or by the Voting Members of the Authority. In addition, no officer, employee or
representative of the City shall have any right to become an officer or director of the
Authority by virtue of the City being an Associate Member of the Authority.
Section 3. Effect of Prior Authority Actions. The City hereby agrees to be subject to and
bound by all actions previously taken by the Members and the Board of Directors of the
Authority to the same extent as the Members of the Authority are subject to and bound by
such actions.
Section 4. No Obligations of Associate Members. The debts, liabilities and obligations of
the Authority shall not be the debts, liabilities and obligations of the City.
Section 5. Execution of the Agreement. Execution of this Associate Membership
Agreement and the Agreement shall satisfy the requirements of the Agreement and
Article XII of the Bylaws of the Authority for participation by the City in all programs and
other undertakings of the Authority.
IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership Agreement
to be executed and attested by their proper officers thereunto duly authorized, on the day and year
first set forth above.
CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY
By:
Gurbax Sahota, Chair
Board of Directors
Attest:
Michelle Stephens, Asst. Secretary
CITY OF BURLINGAME CALIFORNIA
By: ��� ° �I "" A
Terry Nagel, Mayor
City Council
Z:
Mary Ellen earney
City Clerk
EXHIBIT B
CEDA Resolution of Intent
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 BURLINGAME
WHEREAS, the California Enterprise Development Authority ("CEDK) is a joint powers
authority authorized and existing pursuant to Joint Powers Act (Government Code Section 6500 et
seq.) and that certain Joint Exercise of Powers Agreement (the "Agreement') dated as of June 1,
2006, by and among the cities of Eureka, Lancaster and Selma; and
WHEREAS, CEDA is authorized under the Agreement and Chapter 5 of Division 7 of Title 1
of the Government Code of the State of California and in accordance with Chapter 29 of Part 3 of
Division 7 of the Streets & Highways Code of the State of California ("Chapter 29") to authorize
assessments to finance the installation of distributed generation renewable energy sources, energy
efficiency, seismic retrofits, electric vehicle charging infrastructure, and water efficiency
improvements that are permanently fixed to real property ("Authorized Improvements"); and
WHEREAS, CEDA has obtained authorization from the City of Burlingame (the "City") to
enter into contractual assessments for the financing of the installation of Authorized Improvements
in the City; and
WHEREAS, CEDA desires to declare its intention to establish a Figtree PACE program
("Figtree PACE") in the City, pursuant to which CEDA, subject to certain conditions set forth herein,
would enter into contractual assessments to finance the installation of Authorized Improvements in
the City.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY, AS FOLLOWS:
Section 1. Findings. The Board of Directors hereby finds and determines the following:
(a) The above recitals are true and correct and are incorporated herein by this
reference.
(b) Energy and water conservation efforts, including the promotion of Authorized
Improvements to residential, commercial, industrial, or other real property, are
necessary to address the issue of global climate change and the reduction of
greenhouse gas emissions in the City.
(c) The upfront cost of making residential, commercial, industrial, or other real property
more energy and water efficient, along with the fact that most commercial loans for
that purpose are due on the sale of the property, prevents many property owners
from installing Authorized Improvements.
(d) A public purpose will be served by establishing a contractual assessment program,
to be known as Figtree PACE, pursuant to which CEDA will finance the installation
of Authorized Improvements to residential, commercial, industrial, or other real
property in the City.
Section 2. Determination of Public Interest. The Board of Directors hereby determines
that (a) it would be convenient, advantageous, and in the public interest to designate an area,
which shall encompass the entire geographic territory within the boundaries of the City, within
which CEDA and property owners within the City may enter into contractual assessments to
finance the installation of Authorized Improvements pursuant to Chapter 29 and (b) it is in the
public interest for CEDA to finance the installation of Authorized Improvements in the City pursuant
to Chapter 29.
Section 3. Identification of Authorized Improvements. CEDA hereby declares its
intention to make contractual assessment financing available to property owners to finance
installation of Authorized Improvements, including but not limited to those improvements detailed in
the Report described in Section 8 hereof (the 'Report"), as that Report may be amended from time
to time.
Section 4. Identification of Boundaries. Contractual assessments may be entered into
by property owners located within the entire geographic territory of the City.
Section 5. Proposed Financing Arrangements. Under Chapter 29, CEDA may issue
bonds, notes or other forms of indebtedness (the `Bonds") pursuant to Chapter 29 that are payable
by contractual assessments. Division 10 (commencing with Section 8500) of the Streets &
Highways Code of the State (the "Improvement Bond Act of 1915') shall apply to any indebtedness
issued pursuant to Chapter 29, insofar as the Improvement Bond Act of 1915 is not in conflict with
Chapter 29. The creditworthiness of a property owner to participate in the financing of Authorized
Improvements will be based on the criteria developed by Figtree Energy Financing (the "Program
Administrator") upon consultation with Figtree PACE Program underwriters or other financial
representatives, CEDA general counsel and bond counsel, and as shall be approved by the Board
of Directors of CEDA. In connection with indebtedness issued under the Improvement Bond Act of
1915 that are payable from contractual assessments, serial and/or term improvement bonds or
other indebtedness shall be issued in such series and shall mature in such principal amounts and
at such times (not to exceed 20 years from the second day of September next following -their date)
and at such rate or rates of interest (not to exceed the maximum rate permitted by applicable law)
as shall be determined by the Board of Directors at the time of the issuance and sale of the
indebtedness. The provisions of Part 11.1 of the Improvement Bond Act of 1915 shall apply to the
calling of the bonds. It is the intention of the Board of Directors to create a special reserve fund for
the bonds under Part 16 of the Improvement Bond Act of 1915. Neither CEDA, nor any of its
members participating in the Figtree PACE Program, shall advance available surplus funds from its
treasury to cure any deficiency in the redemption fund to be created with respect to the
indebtedness; provided, however, that this determination shall not prevent CEDA or any of its
members from, in their sole discretion, so advancing funds. The Bonds may be refunded under
Division 11.5 of the California Streets and Highways Code or other applicable laws permitting
refunding, upon the conditions specified by and upon determination of CEDA.
CEDA hereby authorizes the Program Administrator, upon consultation with CEDA general
counsel, bond counsel and the Figtree PACE underwriter, to commence preparation of documents
and take necessary steps to prepare for the issuance of bonds, notes or other forms of
indebtedness as authorized by Chapter 29.
In connection with the issuance of bonds payable from contractual assessments, CEDA
expects to obligate itself, through a covenant with the owners of the bonds, to exercise its
foreclosure rights with respect to delinquent contractual assessment installments under specified
circumstances.
Section 6. Public Hearing. Pursuant to the Act, CEDA hereby orders that a public
hearing be held before CEDA Board (the "Board"), at 550 Bercut Drive, Suite G, Sacramento, CA
95811, on at A_, for the purposes of allowing interested persons
to object to, or inquire about, the proposed Figtree PACE Program. The public hearing may be
continued from time to time as determined by the Board for a time not exceeding a total of 180
days.
At the time of the hearing, the Report described in Section 8 hereof shall be summarized,
and the Board shall afford all persons who are present an opportunity to comment upon, object to,
or present evidence with regard to the proposed Figtree PACE Program, the extent of the area
proposed to be included within the boundaries of the assessment district, the terms and conditions
of the draft assessment contract described in Section 8 hereof (the "Contract"), or the proposed
financing provisions. Following the public hearing, CEDA may adopt a resolution confirming the
Report (the "Resolution Confirming Report") or may direct the Report's modification in any respect,
or may abandon the proceedings.
The Board hereby orders the publication of a notice of public hearing once a week for two
successive weeks. Two publications in a newspaper published once a week or more often, with at
least five days intervening between the respective publication dates not counting such publication
dates are sufficient. The period of notice will commence upon the first day of publication and
terminate at the end of the fourteenth day. The first publication shall occur not later than 20 days
before the date of the public hearing.
Section 7. Notice to Water and Electric Providers. Pursuant to Section 5898.24 of the
Streets & Highways Code, written notice of the proposed contractual assessment program within
the City to all water and electric providers within the boundaries of the City has been provided.
Section 8. Report. The Board hereby directs the Program Administrator to prepare the
Report and file said Report with the Board at or before the time of the public hearing described in
Section 6 hereof containing all of the following:
(a) A map showing the boundaries of the territory within which contractual assessments
are proposed to be offered, as set forth in Section 4 hereof.
(b) A draft contractual assessment contract (the "Contract") specifying the terms and
conditions of the agreement between CEDA and a property owner.
(c) A statement of CEDA's policies concerning contractual assessments including all of
the following:
(1) Identification of types of Authorized Improvements that may be financed
through the use of contractual assessments.
(2) Identification of the CEDA official authorized to enter into contractual
assessments on behalf of CEDA.
(3) A maximum aggregate dollar amount of contractual assessments.
(4) A method for setting requests from property owners for financing through
contractual assessments in priority order in the event that requests appear
likely to exceed the authorization amount.
(d) A plan for raising a capital amount required to pay for work performed in connection
with contractual assessments. The plan may include the sale of a bond or bonds or
other financing relationship pursuant to Section 5898.28 of Chapter 29. The plan (i)
shall include a statement of, or method for determining, the interest rate and time
period during which contracting property owners would pay any assessment, (ii)
shall provide for any reserve fund or funds, and (iii) shall provide for the
apportionment of all or any portion of the costs incidental to financing, administration
and collection of the contractual assessment program among the consenting
property owners and CEDA.
A report on the results of the discussions with the City Auditor -Controller described in
Section 10 hereof, concerning the additional fees, if any, that will be charged to CEDA for inclusion
of the proposed contractual assessments on the general property tax roll of the City, and a plan for
financing the payment of those fees.
Section 9. Nature of Assessments. Assessments levied pursuant to Chapter 29, and the
interest and any penalties thereon, will constitute a lien against the lots and parcels of land on
which they are made, until they are paid. Unless otherwise directed by CEDA, the assessments
shall be collected in the same manner and at the same time as the general taxes of the City on real
property are payable, and subject to the same penalties and remedies and lien priorities in the
event of delinquency and default.
Section 10. Consultations with City Auditor -Controller. CEDA hereby directs the
Program Administrator to enter into discussions with the City 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 City on real property.
Section 11. Preparation of Current Roll of Assessment. Pursuant to Section
5898.24(c), CEDA hereby designates the Program Administrator as the responsible party for
annually preparing the current roll of assessment obligations by assessor's parcel number on
property subject to a voluntary contractual assessment.
Section 12. Procedures for Responding to Inquiries. The Program Administrator shall
establish procedures to promptly respond to inquiries concerning current and future estimated
liability for a voluntary contractual assessment.
Section 13. Effective Date. This resolution shall take effect immediately upon its
adoption.
PASSED AND ADOPTED this day of , 201_
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
0
ATTEST:
Michelle Stephens, Secretary
Gurbax Sahota, Chair
EXHIBIT C
Indemnification Agreement
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF BURLINGAME AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the "Agreement") is entered into by and between the City of
Burlingame, a municipal corporation or political subdivision, duly organized and existing under the
laws of the State of California (the "Public Entity") and Figtree Company, Inc., a California
corporation, the administrator of the Figtree Property Assessed Clean Energy and Job Creation
Program (the "Administrator"), which is a program of the California Enterprise Development
Authority, a California joint exercise of powers authority (the "Authority").
RECITALS ---
WHEREAS, the Authority is a joint exercise of powers authority whose members include
the Public Entity in addition to other cities and counties in the State of California; and
WHEREAS, the Authority established the Figtree Property Assessed Clean Energy and Job
Creation Program (the "Figtree PACE Program") to allow the financing of certain renewable
energy, energy efficiency and water efficiency improvements that are permanently affixed to real
property through the levy of assessments voluntarily agreed to by the participating property
owners pursuant to Chapter 29 of Division 7 of the Streets and Highways Code ("Chapter 29")
and the issuance of improvement bonds, or other forms of indebtedness, under the Improvement
Bond Act of 1915 upon the security of the unpaid assessments; and
WHEREAS, the Authority has conducted or will conduct proceedings required by Chapter
29 with respect to the territory within the boundaries of the Public Entity; and
WHEREAS, the legislative body of the Public Entity adopted or will adopt a resolution
authorizing the Public Entity to join the Figtree PACE Program; and
WHEREAS, the Public Entity will not be responsible for the formation, operation and
administration of the Figtree PACE Program as well as the sale and issuance of any bonds or
other forms of indebtedness in connection therewith, including the conducting of assessment
proceedings, the levy and collection of assessments and any remedial action in the case of such
assessment payments, and the offer, sale and administration of any bonds issued by the Authority
on behalf of the Figtree PACE Program; and
WHEREAS, the Administrator is the administrator of the Figtree PACE Program and agrees
to indemnify the Public Entity in connection with the operations of the Figtree PACE Program as
set forth herein;
NOW, THERFORE, in consideration of the above premises and of the Public Entity's
agreement to join the Figtree PACE Program, the parties agree as follows:
1 . Indemnification. Figtree has provided the CEDA with an indemnification for
negligence or malfeasance of any type as a result of the acts or omissions of Figtree, its officers,
employees, subcontractors and agents, arising from or related to the Figtree PACE Program, the
assessments, the assessment districts, the improvements or the financing and marketing thereof.
Figtree agrees to defend, indemnify and hold harmless the Public Entity, its officers, elected or
appointed officials, employees, agents and volunteers from and against any and all actions, suits,
proceedings, claims, demands, losses, costs and expenses, including legal costs and attorneys'
fees, for injury or damage due to negligence or malfeasance of any type claims as a result of the
acts or omissions of Figtree, except for such loss or damage which was caused by the sole
negligence or willful misconduct of the Public Entity. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do not act as
limitation upon the amount of indemnification to be provided by Figtree.
2. Arnendment/Internretation of this Agreement This Agreement represents the
entire understanding of the parties as to those matters contained herein. No prior oral or written
understanding shall be of any force or effect with respect S -those -matters covered hereunder. No
supplement, modification or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. This Agreement shall not be interpreted for or against any
party by reason of the fact that such party may have drafted this Acireement or anv of itc
3. Section Headings. Section headings in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose.
4. Waiver. No waiver of any of the provisions of this Agreement shall be binding
unless in the form of writing signed by the party against whom enforcement is sought, and no
such waiver shall operate as a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver. Except as specifically provided herein, no failure
to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver
thereof.
5. Severability and Governing Law. If any provision or portion thereof of this
Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise
unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by
law. This Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of California applicable to contracts made and to be performed in California.
6. Notices. All notices, demands and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given if delivered by
hand, against receipt, or mailed certified or registered mail and addressed as follows:
If to the Administrator Figtree Company, Inc.
9915 Mira Mesa Blvd., Suite 130
San Diego, California 92131
Attn: Chief Executive Officer
If to the Public Entity: City of Burlingame
501 Primrose Road
Burlingame, CA 94010
7. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, which together shall constitute the same instrument.
8. Effective Date. This Agreement will be effective as of the date of the signature of
Public Entity's representative as indicated below in the sigriature block.
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date below.
City of Burlingame
By
Terry Nagel, May4r
City Council
Date:
Figtree Company, Inc., a California corp.
Name: Mahesh Shah
Title: CEO
Date: