HomeMy WebLinkAboutReso - CC - 151-2020DocuSign Envelope ID: E697604C-9B2F-4FCA-82FB-9EOOD1C78A23
RESOLUTION NO. 151-2020
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING
THE CITY MANAGER TO EXECUTE A MEMORANDUM OF UNDERSTNADING WITH
SHASTA COUNTY TO PURCHASE RULE 20A CREDITS FOR UTILITY UNDERGROUNDING
WORK ON EL CAMINO REAL
WHEREAS, for several years, the City and Caltrans have been working collaboratively on
a project to renew and rehabilitate El Camino Real in order to address safety and infrastructure
rehabilitation needs, while considering traffic, pedestrian, utilities, drainage, and historic
Eucalyptus Grove preservation concerns; and
WHEREAS, undergrounding overhead utilities in conjunction with the Caltrans work will
be a critical component of the overall project; and
WHEREAS, on June 17, 2019, the City Council established the El Camino Real
Underground Utility District 2019-1 to initiate proceedings for implementing an undergrounding
project on El Camino Real; and
WHEREAS, the establishment of an underground district qualifies the City to utilize PG&E
Rule 20A credits to fund a portion of the undergrounding project, which is estimated to cost $25
million to $30 million; and
WHEREAS, the City will soon have approximately $10.5M in work credits through the
PG&E Rule 20A program once the purchase of the City of Saratoga's credits has been completed;
and
WHEREAS, one way to secure the remaining funds for the project is through the purchase
of Rule 20A credits from another community; and
WHEREAS, City staff has reached agreement with Shasta County staff to purchase the
County's $7,500,000 in credits at a discounted price of $2,225,000, or $.30/credit, which is a
savings of over $1,500,000 from the price the City was contemplating offering other jurisdictions
earlier this year and matches the price the City paid for the City of Saratoga's credits; and
WHEREAS, in order to initiate this transfer, the Burlingame City Council and Shasta
County Board of Supervisors must adopt a Memorandum of Understanding, which the Shasta
County Board of Supervisors will consider at its meeting on December 8; and
WHEREAS, should the El Camino Real Renewal Project not come to fruition, staff
believes that there are other streets in the city that could qualify for the use of Rule 20A funds.
NOW, THEREFORE, the City Council of the City of Burlingame Resolves as Follows:
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1. The City will purchase Shasta County's Rule 20A credits at a discounted price of
$2,225,000, or $.30/credit.
2. The City Manager is authorized to execute the Memorandum of Understanding with
Shasta County.
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by:
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Emily Beach, Mayor
I, Meaghan Hassel -Shearer, City Clerk of the City of Burlingame, certify that the foregoing
Resolution was introduced at a regular meeting of the City Council on the 16th day of November,
2020, and was adopted thereafter by the following vote:
AYES: Councilmembers: BEACH, BROWNRIGG, COLSON, O'BRIEN KEIGHRAN, ORTIZ
NOES: Councilmembers: NONE
ABSENT: Councilmembers: NONE
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Meaghan Hassel -Shearer, City Clerk
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MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding (MOU) is entered into the 8th day of
December, 2020 (Effective Date), by and between the County of Shasta (SHASTA) and the
City of Burlingame (BURLINGAME). BURLINGAME and SHASTA are sometimes
individually referred to herein as "Party," and collectively as "Parties."
RECITALS
A. Electric Utilities collect and allocate credits to communities to convert overhead electric
facilities to underground electric facilities. These credits are commonly referred to as
Rule 20A Credits. The amount of said funds allocated by Pacific Gas and Electric
Company (PG&E) to SHASTA is hereafter referred to as the "COUNTY Allocation."
B. BURLINGAME has identified a need for additional Rule 20A Credits for the El Camino
Real Underground Utility District (2019-1) and potential future Rule 20A projects.
C. SHASTA currently has no active undergrounding projects that could make use of the
COUNTY Allocation.
D. On November 3, 2020, the SHASTA County Board of Supervisors authorized the
negotiations with BURLINGAME for the transfer of accrued COUNTY Rule 20A Credit
Allocation to BURLINGAME.
E. On November 16, 2020, the BURLINGAME City Council authorized the BURLINGAME
City Manager to enter into this MOU with SHASTA to receive the transfer of Rule 20A
Credits.
AGREEMENT
NOW, THEREFORE, the Parties hereto agree as follows:
1. Assignment of Rights. SHASTA agrees to assign, for use by BURLINGAME, its rights
and interests in the COUNTY Allocation to BURLINGAME, and BURLINGAME agrees
to acquire, for consideration, the COUNTY Allocation in accordance with the terms of
this MOU. This MOU shall be subject to the approval of the Parties, and shall become
effective on the date when both such approvals have been obtained (Effective Date).
Notwithstanding the foregoing, if this MOU has not become effective as of January 31,
2021, then either Party may terminate this MOU with five (5) business days' written
notice to the other Party without incurring any liability, costs, or further obligations to
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the other party or any thirdparty.
2. Term. BURLINGAME shall purchase the COUNTY Allocation once on the Effective
Date of the agreement, at a purchase price of $0.30 per $1.00 of COUNTY Allocation
Credits.
3. Payment of Acquisition Price. Within thirty (30) business days of the Effective Date,
BURLINGAME shall make the payment to SHASTA in the amount of Two Million Two
Hundred Fifty Thousand Dollars ($2,250,000.00) for the purchase of Seven Million Five
Hundred Thousand Dollars ($7,500,000.00) in currently available COUNTY Allocation
credits. The calculated payment amount of Two Million Two Hundred Fifty Thousand
Dollars ($2,250,000.00) shall be known as the "Acquisition Price." Payment shall be made
in immediately available funds via check or wire transfer to an account designated by
SHASTA. The Acquisition Price shall constitute full consideration for the transfer and
assignment of the COUNTY Allocation.
4. Transfer and Assignment of County Allocation. Within five (5) business days of
SHASTA's receipt of the Acquisition Price from BURLINGAME, SHASTA shall deliver a
written request to PG&E, with a copy to BURLINGAME, making a formal request to
transfer and assign the COUNTY Allocation, for which payment was made at a rate of
$0.30 for each $1.00 credit, to and for the benefit of BURLINGAME. SHASTA shall
cooperate in good faith with BURLINGAME to provide any additional documentation
or information that is reasonably requested by PG&E to complete the transfer. In the
event that PG&E is unable to complete the transfer, SHASTA shall return Acquisition
Price to BURLINGAME within ten (10) business days of PG&E's notification to SHASTA
that it is unable to complete the transfer.
5. Representations. BURLINGAME acknowledges and agrees that it has conducted its own
investigation as to the applicability and transferability of COUTY Allocation for use in
BURLINGAME projects. SHASTA has not made any representation or warranty to
BURLINGAME with respect to same. The actual use of COUNTY Allocation by
BURLINGAME shall be subject to the rules and procedures adopted by PG&E, the
California Public Utilities Commission, and such other conditions or requirements as are set
forth in the Public Utilities Code.
6. Indemnification. BURLINGAME shall indemnify, defend (with counsel reasonably
acceptable to SHASTA), and hold harmless SHASTA, its elected officials, officers,
eWaBlofvees, agents, contractors, and attorneys, from and against any and all demands,
e
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claims, actions, causes of action, damages, losses, liabilities, or expenses of any nature
whatsoever, including those for reasonable attorney's fees, arising from the use of COUNTY
Allocation in connection with the construction of any BURLINGAME project.
BURLINGAME'S indemnification of SHASTA from such claims and demands arising from
the use of COUNTY Allocation shall apply regardless of the merit or outcome of any such
claim or suit, and regardless of whether the nature of such claim or suit is administrative,
judicial, or legislative.
7. Acknowledgement. BURLINGAME acknowledges that it has read Section 6, pertaining to
BURLINGAME'S indemnification of SHASTA, and fully understands its terms.
BURLINGAME acknowledges, knows, and understands that it is signing the MOU freely
and voluntarily.
8. Termination for Breach. In the event that either Party is in breach of its obligations as set
forth in this MOU, then the non -defaulting Party shall have the right to terminate this
MOU on ten (10) business days' written notice to the defaulting Party unless the default
is cured within the notice period. Upon termination for breach, the non -defaulting Party
may exercise any right or remedy which it may have under applicable law. If
BURLINGAME has paid the Acquisition Price to SHASTA and the COUNTY's
Allocation has not been transferred to BURLINGAME at the time that this MOU is
terminated pursuant to this Section 8, SHASTA will, within ten (10) business days of
the termination, return that Acquisition Price to BURLINGAME.
9. Notices. All notices to be given pursuant to this MOU shall be delivered in person, by
registered or certified U.S. mail (return receipt requested), or by commercial overnight
delivery and shall be effective upon receipt. Notice may further be given by electronic
means, provided, however, that such notice shall not be deemed effective unless it is
acknowledged in writing by the recipient of such notice. All notices shall be sent and
addressed to the representative of the Party that signs this MOU on behalf of the Party.
10. Headings. Headings used in this MOU are for reference purposes only and shall not be
considered in construing this MOU.
IL Authority to Enter MOU. Each person executing this MOU on behalf of the Parties
represents and warrants that he or she is duly authorized to execute and deliver this MOU
on behalf of SHASTA or BURLINGAME, and that this MOU is binding on SHASTA and
BURLINGAME in accordance with its terms and conditions.
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12. Binding Effect. This MOU shall inure to the benefit of and be binding upon the Parties
hereto and their representative heirs, successors, and assigns.
13. No Assignment. No Party shall assign or transfer, by operation of law or otherwise, any or
all of its rights or obligations under this MOU without the prior written consent of the
other Party and formal written modification.
14. No Third -Party Beneficiaries. Nothing contained in this MOU shall be construed to create
any rights in third parties, and the Parties do not intend to create any such rights.
15. Modification. This MOU may be modified or amended only by a writing duly authorized
and executed by SHASTA and BURLINGAME.
16. Governing Law and Venue. This MOU shall be governed and construed in accordance
with the laws of the State of California, and any action brought relating to this MOU shall
be adjudicated in a court of competent jurisdiction in the County of Shasta or County of
San Mateo unless transferred by court order pursuant to Code of Civil Procedure
section 394.
17. Compliance with Applicable Law. Each Party shall, at its own cost and expense,
comply with all statutes, ordinances, regulations, and requirements of all governmental
entities, including federal, state, county, or municipal, whether now in force or
hereinafter enacted.
18. Waiver. A waiver by either Party of any breach of any term, covenant, or conditions
contained herein shall not be deemed to be a waiver of any subsequent breach of the same or
any other term, covenant, or condition contained herein, whether of the same or a different
character, unless specifically stated in writing.
19. No Party Deemed to be Draftsperson. The terms of this MOU shall be construed in
accordance with the meaning of the language used, and shall not be construed for or
against either Party by reason of the authorship of the MOU or any other rule of
construction which might otherwise apply.
20. Severability. If any term or portion of this MOU is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
of this MOU shall continue in full force andeffect.
21. Attorney's Fees. In the event of any dispute or legal action arising under this MOU, the
prevailing Party shall not be entitled to attorney's fees.
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22. Counterparts. This MOU may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and the same
instrument.
23. Entire MOU. This MOU contains the entire agreement between BURLINGAME and
SHASTA relating to the services, rights, obligations, and covenants contained herein
and assumed by the Parties respectively. Any prior or other agreements or representations
between BURLINGAME and SHASTA regarding those matters are null and void unless
expressly set forth in this MOU. No oral understanding or agreement not incorporated in
the MOU is binding on any of the Parties.
IN WITNESS WHEREOF, SHASTA and BURLINGAME have executed this Memorandum of
Understanding effective on the date and year first herein above set forth.
COUNTY OF SHASTA
Date Mary Rickert, Chair
Board of Supervisors
County of Shasta
State of California
ATTEST:
MATTHEW P. PONTES
Clerk of the Board of Supervisors
an
Deputy
Approved as to form:
RUBIN E. CRUSE, JR.
County Counsel
By:
RISK MANAGEMENT APPROVAL
By:
James Johnson, Risk Management Analyst III
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Date
CITY OF BURLINGAME
Lisa K. Goldman
City Manager
Meaghan Hassel -Shearer, City Clerk
Scott Spansail, Interim City Attorney
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