HomeMy WebLinkAboutC-5528 - Amendment to the Joint Powers Agreement Adding City of Newport Beach as an Associate Member of the Western Riverside Council of Governments to Permit the Provision of the California Hero Program Services with Such CityAMENDMENT TO THE JOINT POWERS AGREEMENT
N ADDING CITY OF NEWPORT BEACH AS
\J1 AS AN ASSOCIATE MEMBER OF THE
IJTh 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 9t" day of July, 2013, by City of Newport Beach
("City") and the Westem 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 Califomia (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 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
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
purpose of facilitating the implementation of such program within the jurisdiction
of City; and
WHEREAS, pursuant to Government Code sections 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; 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 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 Section 3.4 of the Authority JPA, and 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.
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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.
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 Califomia 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
HERO Program Page 3
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
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 Califomia 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.
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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. 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:
City:
Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS1032
Riverside, CA 92501-3609
Attn: Executive Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
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.
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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 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.
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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 COUNCIL OF GOVERNMENTS
By. 1 i rt Date: biS
Execut"ra mmittee Chair
Western Riverside Council of Governments
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 121/
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 7itgd913,
By: By:
Aaron C. Harp
City Attorney
ATTEST:
Date: S' a )3
By:
Leilani I. brown
City Clerk
Dave
0/1/ City Manager
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