HomeMy WebLinkAboutWestern Riverside - COGPACE Program - Amdt. to JPA - 20132D
tDltolTÒt 3
=(dc
^ótiJ -zo
Dio
ccouËuOOø
=9¿O()
o
AMENDMENT TO THE JOINT PO\ryERS AGREEMENT
ADDING CITY OF FRESNO AS AN ASSOCIATE MEMBER
OF THE WESTERN RIVERSIDE COUNCIL OF
GOVERNMENTS TO PERMIT THE PROVISION OF
PROPERTY ASSESSED CLEAN ENERGY (PACE)
PROGRAM SERVICES \ilITH SUCH CITY
This A Powers Agreement ("JPA Amendment") is made and entered into
on this 3, by City of Fresno ("City") and the Western Riverside Council of
Governments ("Authority") (collectively the "parties").
RECITALS
WHEREAS, Authority is a joint exercise of powers authority established pursuant to Chapter 5
of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and
following) (the "Joint Exercise of Powers Act") and the Joint Power Agreement entered into on
April l,l99l, as amended from time to time (the ,,Authority JpA,'); and
WHEREAS, as of October 1, 2\l2,Authority had 18 member entities (the "Regular Members").
WHEREAS, Chapter 29 of the Improvement Act of 1911, being Division 7 of the California
Streets and Highways Code ("Chapter 29") authorizes cities, counties, and cities and counties to
establish voluntary contractual assessment programs, commonly referred to as a Property
Assessed Clean Energy ("PACE") program, to fund certain renewable energy sources, energy
and water efficiency improvements, and electric vehicle charging infrastructure (ttr"
"Improvements") that are permanently fixed to residential, commercial, industrial, agricultural or
other real property; and
WHEREAS, Authority intends to establish a PACE program to be known as the "California
HERO Program" pursuant to Chapter 29 as now enacted or as such legislation may be amended
hereafter, which will authorize the implementation of a PACE financing program for cities and
county throughout the state; and
WHEREAS, City desires to allow owners of property within its jurisdiction to participate in the
California HERO Program and to allow Authority to conduct proceedings under Chapter 29 to
finance Improvements to be installed on such properties; and
WHEREAS, this JPA Amendment will permit City to become an Associate Member of
Authority and to participate in California HERO Program for the pu{pose of facilitating the
implementation of such program within the jurisdiction of City; and
WHEREAS, pursuant to the Joint Exercise of Powers Act, the Parties are approving this JPA
Agreement to allow for the provision of PACE services, including the operation of a PACE
financing program, within the incorporated territory of City; and
WHEREAS, the JPA Amendment sets forth the rights, obligations and duties of City and
Authority with respect to the implementation of the California HERO Program within the
incorporated tenitory of City.
A-1
MUTUAL UNDERSTANDINGS
NOW, THEREFORE, in consideration of the above recitals, which are contractual in nature, the
mutual promises herein contained, and for other good and valuable consideration hereby
acknowledge, the Parties agree as follows:
A. JPA Amendment.
l. The Authority JPA. City agrees to the terms and conditions of the Authority JPA,
attached.
2. Associate Membership. By adoption of this JPA Amendment, City shall become
an Associate Member of Authority on the terms and conditions set forth herein and the Authority
JPA and consistent with the requirements of the Joint Exercise of Powers Act. The rights and
obligations of City as an Associate Member are limited solely to those terms and conditions
expressly set forth in this JPA Amendment for the pu{poses of implementing the California
HERO Program within the incorporated territory of City. Except as expressly provided for by
the this JPA Amendment, City shall not have any rights otherwise granted to Authority's Regular
Members by the Authority JPA, including but not limited to the right to vote on matters before
the Executive Committee or the General Assembly, the right to amend or vote on amendments to
the Authority JPA, and the right to sit on committees or boards established under the Authority
JPA or by action of the Executive Committee or the General Assembly, including, without
limitation, the General Assembly and the Executive Committee. City shall not be considered a
member for purposes of Section 9.1 of the Authority JPA.
3. Rights of Authority. This JPA Amendment shall not be interpreted as limiting or
restricting the rights of Authority under the Authority JPA. Nothing in this JPA Amendment is
intended to alter or modify Authority Transportation Uniform Mitigation Fee (TUMF) Program,
the PACE Program administered by Authority within the jurisdictions of its Regular Members,
or any other programs administered now or in the future by Authority, all as currently structured
or subsequently amended.
B. Implementation of California HERO Program within City Jurisdiction.
1. Boundaries of the California HERO Program within City Jurisdiction. Cþ shall
determine and notify Authority of the boundaries of the incorporated territory within City's
jurisdiction within which contractual assessments may be entered into under the California
HERO Program (the "Program Boundaries"), which boundaries may include the entire
incorporated territory of City or a lesser portion thereof.
2. Determination of Eligible Improvements. Authority shall determine the types of
distributed generation renewable energy sources, energy efficiency or water conservation
improvements, electric vehicle charging infrastructure or such other improvements as may be
authorized pursuant to Chapter 29 (the "Eligible Improvements") that will be eligible to be
financed under the California HERO Program.
3. Establishment of California HERO Program. Authority will undertake such
proceedings pursuant to Chapter 29 as shall be legally necessary to enable Authority to make
A-2
contractual financing of Eligible Improvements available to eligible property owners within the
Program Boundaries.
4. Financing the Installation of Elig_ible Improvements. Authority shall develop and
implement a plan for the financing of the purchase and installation of the Eligible Improvements
under the California HERO Program.
5. Ongoing Administration. Authority shall be responsible for the ongoing
administration of the California HERO Program, including but not limited to producing
education plans to raise public awareness of the California HERO Program, soliciting, reviewing
and approving applications from residential and commercial property owners participating in the
California HERO Program, establishing contracts for residential, commercial and other property
owners participating in such program, establishing and collecting assessments due under the
California HERO Program, adopting and implementing any rules or regulations for the
california HERO Program, and providing reports as required by chapter2g.
City will not be responsible for the conduct of any proceedings required to be taken under
Chapter 29;the levy or collection of assessments or any required remedial action in the case of
delinquencies in such assessment payments; or the issuance, sale or administration of any bonds
issued in connection with the California HERO Program.
6. Phased Implementation. The Parties recognize and agree that implementation of
the California HERO Program as a whole can and may be phased as additional other cities and
counties execute similar agreements. City entering into this JPA Amendment will obtain the
benefits of and incur the obligations imposed by this JPA Amendment in its jurisdictional area,
irrespective of whether cities or counties enter into similar agreements.
C. Miscellaneous Provisions.
L Withdrawal. City or Authority may withdraw from this JPA Amendment upon
six (6) months written notice to the other party; provided, however, there is no outstanding
indebtedness of Authority within City. The provisions of Section 6.2 of the Authority JPA shall
not apply to City under this JPA Amendment.
2. Mutual Indemnification and Liability. Authority and City shall mutually defend,
indemnify and hold the other party and its directors, officials, offrcers, employees, agents, and
volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses,
liabilities, losses, damages or injuries of any kind, in law or equity, to property or persons,
including wrongful death, to the extent arising out of the willful misconduct or negligent acts,
effors or omissions of the indemnifying party or its directors, officials, officers, employees and
agents in connection with the California HERO Program administered under this JPA
Amendment, including without limitation the payment of expert witness fees and attorney's fees
and other related costs and expenses, but excluding payment of consequential damages. Without
limiting the foregoing, Section 5.2 of the Authority JPA shall not apply to this JPA Amendment.
In no event shall any of Authority's Regular Members or their offrcials, officers or employees be
held directly liable for any damages or liability resulting out of this JPA Amendment.
A-3
3. Environmental Review. Authority shall be the lead agency under the California
Environmental Quality Act for any environmental review that may be required in implementing
or administering the California HERO Program under this JPA Amendment.
4. Cooperative Effort. City shall cooperate with Authority by providing information
and other assistance in order for Authority to meet its obligations hereunder. City recognizes
that one of its responsibilities related to the California HERO Program will include any
permitting or inspection requirements as established by City.
5. Notice. Any and all communications andlor notices in connection with this JPA
Amendment shall be either hand-delivered or sent by United States first class mail, postage
prepaid, and addressed as follows:
Authority:
'Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS1032
Riverside, CA 92501-3609
Attn: Executive Director
City:
City of Fresno
2600 Fresno St.
Fresno, CA 9372I
Attn: City Manager
6. Entire Agreement. This JPA Amendment, together with the Authority JPA,
constitutes the entire agreement among the Parties pertaining to the subject matter hereof. This
JPA Amendment supersedes any and all other agreements, either oral or in writing, among the
Parties with respect to the subject matter hereof and contains all of the covenants and agreements
among them with respect to said matters, and each Party acknowledges that no representation,
inducement, promise of agreement, oral or otherwise, has been made by the other Party or
anyone acting on behalf of the other Party that is not embodied herein.
7. Successors and Assigns. This JPA Amendment and each of its covenants and
conditions shall be binding on and shall inure to the benefit of the Parties and their respective
successors and assigns. A Party may only assign or transfer its rights and obligations under this
JPA Amendment with prior written approval of the other Party, which approval shall not be
unreasonably withheld.
8. Attorney's Fees. If any action at law or equity, including any action for
declaratory relief is brought to enforce or interpret the provisions of this Agreement, each Party
to the litigation shall bear its own attorney's fees and costs.
9. Governing Law. This JPA Amendment shall be governed by and construed in
accordance with the laws of the State of California, as applicable.
A-4
10. No Third Party Beneficiaries. This JPA Amendment shall not create any right or
interest in the public, or any member thereof, as a third party beneficiary hereof, nor shall it
authorize unyon" not a Party to this JPA Amendment to mãintain a suit foì personal injuries or I
property damages under the provisions of this JPA Amendment. The duties, obligations, and
responsibilities of the Parties to this JPA Amendment with respect to third party beneficiaries
shall remain as imposed under existing state and federal law.
I 1. Severabilitv. In the event one or more of the provisions contained in this JPA
Amendment is held invalid, illegal or unenforceable by any court of competent jurisdiction, such
portion shall be deemed severed from this JPA Amendment and the remaining parts of this JPA
Amendment shall remain in full force and effect as though such invalid, illegal, or unenforceable
portion had never been a part of this JPA Amendment.
12. Headings. The paragraph headings used in this JPA Amendment are for the
convenience of the Parties and are not intended to be used as an aid to interpretation.
13. Amendment. This JPA Amendment may be modified or amended by the Parties
at any time. Such modifications or amendments must be mutually agreed upon and executed in
writing by both Parties. Verbal modifications or amendments to this JPA Amendment shall be of
no effect.
14. Effective Date. This JPA Amendment shall become effective upon the execution
thereof by the Parties hereto.
IN WITNESS WHEREOF, the Parties hereto have caused this JPA Amendment to be executed
and attested by their officers thereunto duly authorized as of the date first above witten.
A-5
SIGNATURES
WESTERN RIVERSIDE COTJNCIL OF GOVER¡{MENTS
By:
Council of Governments
By:
Title
Date
CITY OF FRESNO
ATTEST:
YVOI\E SPENCE, CMC
City Cterk
APPROVED AS TO FORM:
nare: iol*z lql?
ølze|Z
DOUG
Deputy City Attorney
A-6