HomeMy WebLinkAboutReso - CC - 032-2015RESOLUTION NO. 32-2015
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE
INCLUSION OF PROPERTIES WITHIN THE CITY 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 intends to establish 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 Burlingame is committed to development of renewable energy sources
and energy efficiency improvements, reduction of greenhouse gases, protection of the
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, 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 authority to establish the California HERO Program, which will be
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originally made and entered into April 1, 1991, as amended to date, and the Amendment to Joint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 Burlingame 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" hereto, to assist property owners within the
incorporated area 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, THE CITY COUNCIL OF THE CITY OF BURLINGAME RESOLVES AS
FOLLOWS:
1. The City of Burlingame 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 Improvements.
2. This City Council consents to inclusion in the California HERO Program of all of the
properties in the incorporated area within 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 subject to applicable
laws and regulations of the City; 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 and be secured by 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.
Terry Nagel, Mayor
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 6"' 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 (��
IV/Mn/aary Ellen Kearney, City Clerk
EXHIBIT A
AMENDMENT TO THE JOINT POWERS AGREEMENT
AMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF BURLINGAME AS
AS AN ASSOCIATE MEMBER OF THE
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
TO PERMIT THE PROVISION OF PROPERTY ASSESSED CLEAN
ENERGY (PACE) PROGRAM SERVICES WITH SUCH CITY
This Amendment to the Joint Powers Agreement ("JPA Amendment') is made and entered into on
the 6th day of April, 2015, by City of Burlingame ("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 Califomia 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 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 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 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 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.
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.
2. Determination of Eligible Improvements. Authc-ity 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 within the
Program Boundaries.
4. Financing the Installation of Eligible 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 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.
1. 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. 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. 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 omissiomof 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 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 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 Burlingame
510 Primrose Road
Burlingame, CA 94010-3997
Att: 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. 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 written.
[SIGNATURES ON FOLLOWING PAGES]
WESTERN SIDE CO OF GOVERNMENTS
By: Date: I IBJ
Executi e Committee Chair
Western Riverside Council of Governments
CITY OF BURLINGAME o
By: / Date: M4
Terry Nagel, May r
City Council