CC RESOLUTION 4834 RESOLUTION NO. 4834
RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A JOINT POWERS AGREEMENT WITH THE
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
("AUTHORITY") TO PARTICIPATE IN THE CALIFORNIA HERO
PROGRAM; AUTHORIZING THE AUTHORITY TO TAKE ACTION
FOR INCLUDING PROPERTY WITHIN THE CITY'S
JURISDICTION IN THE HERO PROGRAM; AND AUTHORIZING
THE CITY MANAGER, OR DESIGNEE, TO EXECUTE SUCH
DOCUMENTS NEEDED TO IMPLEMENT THIS RESOLUTION.
The City Council does resolve as follows:
SECTION 1: Recitals. The City Council finds as follows:
A. The Western Riverside Council of Governments ("Authority") is a
joint 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");
B. Authority 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") to Chapter 29 of the
Streets and Highways Code ("Chapter 29") within counties and
cities throughout the State of California that elect to participate in
such program;
C. El Segundo (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;
D. Pursuant to Chapter 29, cities may assist property owners in
financing the cost of installing Improvements through a voluntary
contractual assessment program;
E. Installing such Improvements by property owners within the City's
jurisdictional boundaries if it participates in the California HERO
Program would promote the purposes cited above;
F. The City wishes to provide innovative solutions to its property
owners to achieve energy and water efficiency and independence,
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and in doing so cooperate with Authority in order to efficiently and
economically assist property owners the City in financing such
Improvements;
G. The City's property owners may participate in the California HERO
Program, which will be such a voluntary contractual assessment
program, once the City joins the Authority and the Authority
properly establishes the voluntary assessment districts in
accordance with Chapter 29. Consequently, the City finds it is in the
public interest for the City of El Segundo to enter into an
amendment to the Authority JPA, originally made and entered into
April 1, 1991 adding the City of El Segundo 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 attached as
Exhibit "A," and incorporated by reference, to assist property
owners within the incorporated area of the City in financing the cost
of installing Improvements; and
H. The City is not responsible for conducting 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.
SECTION 2: Authorization. The City Council takes the following actions:
A. Following Authority's actions to create a voluntary assessment
district pursuant to Chapter 29, the City Council consents to
including all of the properties within the City of El Segundo's
jurisdictional boundaries and to the Improvements, upon the
request by and voluntary agreement of owners of such properties,
within the California HERO Program in compliance with the laws,
rules and regulations applicable to such program;
B. Upon City becoming part of the HERO program, the City Council
consents to Authority assuming jurisdiction of all administrative
functions under Chapter 29 and of the HERO program. The City will
not have any administrative or legal responsibility for such matters;
C. 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
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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 and be secured by
such contractual assessments;
D. This City Council authorizes the City Manager to execute the JPA
Amendment in a form approved by the City Attorney;
E. The City Manager, or designee, is authorized to implement the
intent of this Resolution and the JPA Amendment;
SECTION 3: This Resolution is exempt from review under the California
Environmental Quality Act (California Public Resources Code §§ 21000, et seq.,
"CEQA") and CEQA regulations (14 California Code of Regulations §§ 15000, et
seq.) because it consists only administrative actions for joining a joint powers
authority. Adopting this Resolution will not have the effect of deleting or
substantially changing any regulatory standards or required findings.
SECTION 4: This Resolution will become effective immediately upon adoption
and will remain effective unless repealed or superseded.
SECTION 5: The City Clerk will certify to the passage and adoption of this
Resolution; will enter the same in the book of original Resolutions of said City;
and will make a minute of the passage and adoption thereof in the record of
proceedings of the City Council of said City, in the minutes of the meeting at
which the same is passed and adopted.
PASSED AND ADOPTED this 6th day of August, 2013.
Bill Fisher,
Mayor
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS
CITY OF EL SEGUNDO )
I, Tracy Weaver, City Clerk of the City of El Segundo, California, certify that the
whole number of members of the City Council of the City is five; that the
foregoing Resolution No. 4834 was duly passed and adopted by said City
Council, approved and signed by the Mayor of said City, and attested to by the
City Clerk of said City, all at a regular meeting of said Council held on the .6th
Augi st 2013 and the same was so passed and adopted by the following roll call
vote:
AYES: Fisher, Jacobson, Fuentes, Atkinson, Fellhauer
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: /(2/1a6/7_,
Tra Wea r,
City Clerk
APPROVED AS ►i F*PM:
Mark D. Hensle , C' y At r
By: f ,4,\.
Karl . Berger,
Assistant City Attorrt=
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EXHIBIT A
AMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF EL SEGUNDO AS
AS AN ASSOCIATE MEMBER OF THE
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
TO PERMIT THE PROVISION OF THE CALIFORNIA HERO
PROGRAM SERVICES WITH SUCH CITY
This Amendment to the Joint Powers Agreement ("JPA Amendment") is made
and entered into on the 7th day of Aug , 2013, by City of EL SEGUNDO ("City")
and the Western Riverside Council of Governments ("Authority") (collectively the
"Parties").
RECITALS
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
As of October 1, 2012, Authority had 18 member entities (the "Regular
Members").
Chapter 29 of the Improvement Bond Act of 1911, being Division 7 of the
California Streets and Highways Code ("Chapter 29") to authorize 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 various 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
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
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
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
Pursuant to Government Code §§ 6500 et seq., 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;
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and
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 UNDERSTANDINGS
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 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, right to amend or vote on amendments to the Authority JPA, and 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. City shall
not be bound by any subsequent amendments of the Authority JPA not expressly
agreed to by City.
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.
4. Rights of City. This JPA Amendment shall be not interpreted as
limiting or restricting the rights of City to establish parameters or limitation on
upon the HERO Program as it is conducted within City's jurisdiction.
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B. Implementation of California HERO Program within City Jurisdiction.
1. Boundaries of the California HERO Program within City
Jurisdiction. City 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, upon approval of same by City
Council.
2. Determination of Eligible Improvements. Subject to any parameters
or limitations provided in the resolution of City approving the conduct of the
HERO Program within City's jurisdiction, 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 contractual financing of Eligible
Improvements available to eligible property owners with the California HERO
Program Boundaries and will be solely responsible for the conduct of such
proceedings.
4. Financing the Installation of Eligible Improvements. Upon approval
of the conduct of the HERO Program within City's jurisdiction, Authority shall be
solely responsible to develop and implement a plan for the financing of the
purchase and installation of the Eligible Improvements under the California
HERO Program.
.�.
Ongoing Administration. Authority shall ve 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 PACE 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 the Bonds or any other bonds issued in
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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.
1. Withdrawal. Authority may withdraw from this JPA Amendment
upon six (6) months written notice to City; 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. City may
withdraw approval for conduct of the HERO Program within the jurisdictional
limits of City upon thirty (30) written notice to WRCOG without liability to the
Authority or any affiliated entity. City withdrawal 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. Indemnification and Liability. Authority shall defend, indemnify and
hold City 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 acts, errors or
omissions of Authority 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; provided that the Authority shall not be required to
defend or indemnify City and its directors, officials, officers, employees and
agents for City's sole negligence or willful misconduct. 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
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HERO Program will include any permitting or inspection requirements as
established by City. City's cooperation shall not be interpreted to require any
approvals without appropriate review or that any discretionary authority of City be
exercised other than as provided by law.
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:
Authority:
Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS1032
Riverside, CA 92501-3609
Att: Executive Director
City:
City Of El Segundo
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
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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 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.
WESTERN RIVERSIDE CgUNCIL OF GOVERNMENTS
By: Date: 8-7-13
Executive t omm tt. hair
Western Ri -rs',e ouncil of Governments
CITY OF se UNDO/
By: ifir MK, Date:
8- � -13
Title: C MAr �A EL
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