Resolution 15463CITY OF ALAMEDA RESOLUTION NO. 15463
CONSENTING TO INCLUSION OF PROPERTIES WITHIN THE
CITY'S JURISDICTION IN THE CALIFORNIA HERO PROGRAM TO
FINANCE DISTRIBUTED GENERATION RENEWABLE ENERGY
SOURCES, ENERGY AND WATER EFFICIENCY IMPROVEMENTS
AND ELECTRIC VEHICLE CHARGING INFRASTRUCTURE AND
APPROVING THE AMENDMENT TO A CERTAIN JOINT POWERS
AGREEMENT RELATED THERETO
WHEREAS, the Western Riverside Council of Governments ("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 "Act")
and the Joint Power Agreement entered into on April 1 , 1991, as amended from time to
time (the "Authority JPA"); and
WHEREAS, Authority has established the California HERO Program to provide
for the financing of renewable energy distributed generation sources, energy and water
efficiency improvements and electric vehicle charging infrastructure (the
"Improvements") pursuant to Chapter 29 of the Improvement Bond Act of 1911 , being
Division 7 of the California Streets and Highways Code ("Chapter 29") within counties
and cities throughout the State of California that elect to participate in such program;
and
WHEREAS, City of Alameda (the "City") is committed to development of
renewable energy sources and energy efficiency improvements, reduction of
greenhouse gases, protection of our environment, and reversal of climate change; and
WHEREAS, in Chapter 29, the Legislature has authorized cities and counties to
assist property owners in financing the cost of installing Improvements through a
voluntary contractual assessment program; and
WHEREAS, installation of such Improvements by property owners within the
jurisdictional boundaries of the counties and cities that are participating in the California
HERO Program would promote the purposes cited above; and
WHEREAS, the City wishes to provide innovative solutions to its property owners
to achieve energy and water efficiency and independence, and in doing so cooperate
with Authority in order to efficiently and economically assist property owners the City in
financing such Improvements; and
WHEREAS, Authority has established the California HERO Program, which is
such a voluntary contractual assessment program, as permitted by the Act, the
Authority JPA, originally made and entered into April 1, 1991, as amended to date, and
the Amendment to Joint Powers Agreement Adding the City of Alameda as an
Associate Member of the Western Riverside Council of Governments to Permit the
Provision of Property Assessed Clean Energy (PACE) Program Services within the City
(the "JPA Amendment"), by and between Authority and the City, a copy of which is
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attached as Exhibit "A" hereto, to assist property owners within the jurisdiction of the
City in financing the cost of installing Improvements; and
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings; the levy and collection of assessments or any required remedial action in
the case of delinquencies in the payment of any assessments or the issuance, sale or
administration of any bonds issued in connection with the California HERO Program.
NOW, THEREFORE, BE IT RESOLVED THAT:
1 . This City Council finds and declares that properties in the City's
incorporated area will be benefited by the availability of the California HERO Program to
finance the installation of the Improvements.
2. This City Council consents to inclusion in the California HERO Program of
all of the properties in the jurisdictional boundaries of the City and to the Improvements,
upon the request by and voluntary agreement of owners of such properties, in
compliance with the laws, rules and regulations applicable to such program; and to the
assumption of jurisdiction thereover by Authority for the purposes thereof.
3. The consent of this City Council constitutes assent to the assumption of
jurisdiction by Authority for all purposes of the California HERO Program and authorizes
Authority, upon satisfaction of the conditions imposed in this resolution, to take each
and every step required for or suitable for financing the Improvements, including the
levying, collecting and enforcement of the contractual assessments to finance the
Improvements and the issuance and enforcement of bonds to represent such
contractual assessments.
4. This City Council hereby approves the JPA Amendment and authorizes
the execution thereof by appropriate City officials.
5. City staff is authorized and directed to coordinate with Authority staff to
facilitate operation of the California HERO Program within the City, and report back
periodically to this City Council on the success of such program.
6. This Resolution shall take effect immediately upon its adoption. The City
Clerk is directed to send a certified copy of this resolution to the Secretary of the
Authority Executive Committee.
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EXHIBIT A
AMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF ALAMEDA AS AN ASSOCIATE
MEMBER OF THE WESTERN RIVERSIDE COUNCIL OF
GOVERNMENTS TO PERMIT THE PROVISION OF
PROPERTY ASSESSED CLEAN ENERGY (PACE)
PROGRAM SERVICES WITHIN SUCH CITY
This Amendment to the Joint Powers Agreement ("JPA Amendment") is made
and entered into on the 27th day of November, 2018, by City of Alameda ("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 1, 1991, as amended from time to time (the "Authority
JPA"); and
WHEREAS, as of October 1, 2012, 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 (the "Improvements") that are permanently fixed to
residential, commercial, industrial, agricultural or other real property; and
WHEREAS, Authority has established a PACE program designated as the
"California HERO Program" pursuant to Chapter 29 which authorizes the
implementation of such PACE financing program for cities and counties 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 under Chapter 29, as
it is now enacted or may be amended hereafter, 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 purpose of
facilitating the implementation of such program within the jurisdiction of City; and
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WHEREAS, pursuant to the Joint Exercise of Powers Act, the Parties are
approving this JPA Agreement to allow for the provision of PACE services through the
California HERO Program, including the operation of such 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 territory of City.
MUTUAL UNO ERST AN DINGS
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions hereinafter stated, the Parties hereto agree as follows:
A. JPA Amendment.
1. 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
purposes 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.
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B. Implementation of California HERO Program within City Jurisdiction.
1. Boundaries of the California HERO Program within City Jurisdiction. The
boundaries within which contractual assessments may be entered into under the
California HERO Program (the "Program Boundaries") shall include the entire
incorporated territory of City.
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. Implementation of California HERO Program Within the Program
Boundaries. Authority will undertake such proceedings pursuant to Chapter 29 as shall
be legally necessary to enable Authority to make contractual financing of Eligible
Improvements available to eligible property owners within the Program Boundaries.
4. Financing the Installation of Eligible Improvements. Authority shall
implement its plan for the financing of the purchase and installation of the Eligible
Improvements under the California HERO Program within the Program Boundaries.
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, levying and
collecting assessments due under the California HERO Program, taking any required
remedial action in the case of delinquencies in such assessment payments, adopting
and implementing any rules or regulations for the California HERO Program, and
providing reports as required by Chapter 29.
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.
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1. Withdrawal. 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. Notwithstanding the foregoing, City
may withdraw, either temporarily or permanently, from its participation in the California
HERO Program or either the residential or commercial component of the California
HERO Program upon thirty (30) written notice to WRCOG without liability to the
Authority or any affiliated entity. City withdrawal from such participation shall not affect
the validity of any voluntary assessment contracts (a) entered prior to the date of such
withdrawal or (b) entered into after the date of such withdrawal so long as the
applications for such voluntary assessment contracts were submitted to and approved
by WRCOG prior to the date of City's notice of withdrawal.
2. Mutual Indemnification and Liability. Authority and City shall mutually
defend, indemnify and hold the other party and its directors, officials, officers,
employees and agents 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, errors 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 attorneys 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 officials, officers or
employees be held directly liable for any damages or liability resulting out of this JPA
Amendment.
3. Environmental Review. Authority shall be the lead agency under the
California Environmental Quality Act for any environmental review that may 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 and/or 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:
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Authority:
Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS1 032
Riverside, CA 92501-3609
Att: Executive Director
City:
City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
Att: Assistant 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.
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 anyone not a Party to this JPA Amendment to maintain a suit for
personal injuries or 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.
11. Severability. 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
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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 written.
[SIGNATURES ON FOLLOWING PAGES]
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
By:
Name: ______________________ __
Title:
CITY OF ALAMEDA
By:
Name: David L. Rudat
Title: City Manager
Date: _____________________ _
Date:
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*****
I, the undersigned, hereby certify that the foregoing Resolution was duly and
regularly adopted and passed by the Council of the City of Alameda in a regular
meeting assembled on the 18th day of December, 2018, by the following vote to wit:
AYES: Councilmembers Ezzy Ashcraft, Matarrese, Oddie, Vella and
Mayor Spencer-5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the seal of
said City this 19th day of December, 2018.
Approved as to Form:
~l{Cif.aLI/t~
Michael H. Roush
Interim City Attorney
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