RES-2013-158RESOLUTION NO. 2013- 15 8
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ANAHEIM CONSENTING TO THE 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 AN
AMENDMENT TO A CERTAIN JOINT POWERS
AGREEMENT RELATED THERETO TO PERMIT HERO
PROGRAM SERVICES WITHIN THE CITY OF ANAHEIM
WHEREAS, the Western Riverside Council of Governments
( "Authority ") is a joint exercise of powers authority established pursuant to Chapter 5 of
Division 7, Titk, 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 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 Anaheim (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 owner::; 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the Act, the Authority JPA, originally made and entered into April 1, 1991, as amended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 Anaheim 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, BE IT RESOLVED by the City Council of the
City of Anaheim as follows:
i . 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 Improvements.
?. 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 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
and in accordance with applicable law, 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 (attached
hereto as Exhibit A) and authorizes the execution thereof by the City Manager.
5. The City shall incur no liabilities, costs or obligations for the
California HERO Program or under the Authority JPA, except as expressly set forth in
the JPA Amendment.
6. City staff is authorized and directed to coordinate with Authority
staff to facilitate operation of the California HERO Program within the City as set forth
in the JPA Amendment. City staff will also report back periodically to this City Council
on the success of such program.
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17 . 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.
THE FOREGOING RESOLUTION is approved and adopted by the City
Council of the "ity of Anaheim this 8th day of October
2013, by the following vote:
AYES: Mayor Tait, Council Members Eastman, Murray, Brandman and Kring
NOES: None
ABSENT: None
ABSTAIN:None
CITY NAHE
MAYOR OF THE CITY OF ANAHEIM
ATTEST:
CITY CLERK OF THE CITY OF ANAHEIM
95999
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EXHIBIT A
WRCOG JPA AMENDMENT
AMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF ANAHEIM AS
AS AN ASSOCIATE MEMBER OF THE
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
TO PERMIT THE CALIFORNIA HERO PROGRAM SERVICES WITHIN SUCH CITY
This Amendment to the Joint Powers Agreement ( "JPA Amendment ") is made and
entered into on the _day of , 2013, by City of Anaheim, a municipal corporation
( "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 "); and
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 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 make the California HERO Program available to owners of
property within its jurisdiction 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 the 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 A uthority JPA. City agrees to the terms and conditions of the Authority JPA,
attached. No amendment of the Authority JPA shall be applicable to the City or this JPA
Amendment without the City's prior written approval.
2. Associate Membership The Parties enter into this JPA Amendment solely for the
purposes of implementing the California HERO Program within the incorporated territory of
City. From the Effective Date, City shall become an Associate Member of Authority on the
terms and conditions set forth herein and consistent with the requirements of the Joint Exercise
of Powers Act. The rights, obligations, and liabilities of City as an Associate Member are
limited solely to those terms and conditions expressly set forth in this JPA Amendment. Except
as expressly provided for by 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. Except
as expressly provided for by the this JPA Amendment, City shall not have any liabilities or
obligations or incur any costs and expenses otherwise applicable to Authority's Regular
Members by the Authority JPA, including, but not limited to, the repayment of any bonds issued
for the California HERO Program.
3. RiRiahts of Authority Expect as expressly stated herein, nothing in the JPA
Amendment shall be interpreted as limited or restricting the rights of the Authority under the
Authority JPA. Nothing in this JPA Amendment is intended to alter or modify Authority
Transportation [Jniibrm 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. In accordance with Section 5.1 of the Authority JPA, The debts, liabilities and
obligations of the Authority shall not be the debts, liabilities and obligations of the City.
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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.
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. 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 Eli ibg le 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. Ong 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 and Section 7.1 of the
Authority JPA shall. not apply to City under this JPA Amendment.
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 non - financial 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. Except as expressly set forth in
Section 2 and this Section 4, the City shall have no other obligations or incur any costs for the
California Hero Program.
5. Noti ce. 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. MS 1032
Riverside, CA 92501 -3609
Att: Executive Director
City:
ANAHEIM Secretary /City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
With copies to:
Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
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 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. H eadings. 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.
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14. Effe Date. This JPA Amendment shall become effective upon the execution
thereof by the Parti^s hereto.
[SIGNATURES ON FOLLOWING PAGES]
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.
CITY OF ANAHEIM,
DATE: a municipal corporation
DATE:
DATE:
Acting Public Utilities General Manager
ATTEST
Linda N. Andal, City Clerk
0
WESTERN RIVERSIDE COUNCIL
GOVERNMENTS
By:
Title:
Print Name:
APPROVED AS TO FORM:
MICHAEL R.W. HOUSTON, CITY ATTORNEY
go
Daniel A. Ballin, Deputy City Attorney
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