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CC Resolution 2015-005 CA HERO ProgramRESOLUTION NO. 2015 - 005 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, 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 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, the 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, the City of La Quinta ("City") has determined that it is in the best interests of La Quinta and is beneficial to its residents to execute and deliver an implementation agreement (the "Implementation Agreement") authorizing CVAG to implement, manage and administer one or more clean energy programs (each, a "Clean Energy Program"): WHEREAS, 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 Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 2 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 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, the 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 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 is a member of the Coachella Valley Association of Governments ("CVAG") and CVAG has contracted with the Authority and Renovate America, Inc. to provide the California HERO program to its member agencies, whereby portions of the administration of the California HERO Program in Eastern Riverside County shall ,be delegated to CVAG; 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 La Quinta, California, as follows: SECTION 1. The 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. SECTION 2. The 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 Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 3 properties, in compliance with the laws, rules and regulations applicable to such program. SECTION 3. The consent of the City Council constitutes assent to the assumption of jurisdiction by Authority 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. SECTION 4. The City Council hereby approves the JPA Amendment and authorizes the execution thereof by the City Manager. SECTION 5. City staff is authorized and directed to coordinate with CVAG staff and the Authority staff to facilitate operation of the California HERO Program within the City, and report back periodically to the City Council on the success of such program. SECTION 6. This Resolution shall take effect from and after its adoption. PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta City Council held on this 20th day of January, 2015, by the following vote: AYES: Council Members Franklin, Osborne, Pena, Radi, Mayor Evans ABSENT: None ABSTAIN: None C LINDA EVANS, Mayor City of La Quinta, California Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 4 ATTEST: s4m,�- lhv� SUSAN MAYSELS, Cit Clerk City of La Quinta, California (CITY SEAL) WILLIAM H. IRHK , City Attorney City of La Quinta, California Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 5 *:/CI11.11IWA AMENDMENT TO THE JOINT POWERS AGREEMENT ADDING CITY OF LA QUINTA 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 20th day of January, 2015, by the City of La Quinta ("City") and the Western Riverside Council of Governments ("Authority") (collectively the "Parties"). i:17a111rA�*4 WHEREAS, the 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, the 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") 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 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 buildings, structures or other real property; and WHEREAS, the Authority has established 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 authorizes the implementation of a PACE financing program for cities and counties throughout the state; and WHEREAS, the City is a member of the Coachella Valley Association of Governments ("CVAG") and CVAG has contracted with the Authority and Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 6 Renovate America, Inc. to provide the California HERO program to its member agencies, whereby portions of the administration of the California HERO Program in Eastern Riverside County shall be delegated to CVAG; WHEREAS, the City desires to allow owners of property within its jurisdiction to participate in the California HERO Program and to allow the Authority to conduct proceedings under Chapter 29 to finance Improvements to be installed on such properties; and WHEREAS, this JPA Amendment will permit the 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 the 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. Except as provided herein, City agrees to the terms and conditions of the Authority's Amendment to JPA. 2. Associate Membership. By adoption of this JPA Amendment, the 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 the 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, the City shall not have any rights otherwise granted to the Authority's Regular Members by the Authority JPA, including but not limited to the Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 7 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. The City shall not be considered a member for purposes of Sections 3.4, 8.1, and 9.1 of the Authority JPA. The City shall not be bound by any subsequent amendments of the Authority JPA not expressly agreed to by the 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 the 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 the City to establish parameters or limitation on the HERO Program as it is conducted within the City's jurisdiction. B. Implementation of California HERO Program within City Jurisdiction. 1. Boundaries of the California HERO Program within City Jurisdiction. The City shall determine and notify the Authority of the boundaries of the incorporated territory within the 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 the City or a lesser portion thereof, upon approval of same by the City Council. 2. Determination of Eligible Improvements. Subject to any parameters or limitations adopted by the City, the 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. The Authority will undertake such proceedings pursuant to Chapter 29 as shall be legally necessary to enable the Authority to make contractual financing of Eligible Improvements available to Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 8 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 the City's jurisdiction, the 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. Subject to that portion of the administration delegated to CVAG pursuant to the agreement among the Authority, CVAG and Renovate America, Inc., the 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, establishing contracts for residential, commercial and other property owners participating in the California HERO Program who have met the Program Criteria and who have not been deemed by CVAG to be ineligible, 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. The 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 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. The 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. The Authority may withdraw from this JPA Amendment upon six (6) months written notice to the City; provided, however, there is no outstanding indebtedness of the Authority within City. The provisions of Section 6.2 of the Authority JPA shall not apply to the City under this JPA Amendment. The City may withdraw approval for conduct of the HERO Program within the jurisdictional limits of the City upon thirty (30) written notice to WRCOG without Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 9 liability to the Authority, City or any affiliated entity. The City's membership in WRCOG shall automatically terminate upon the thirty first (31) day following tender of said notice and/or upon termination of the Administration Agreement among the Authority, CVAG and Renovate America, Inc.; however, that withdrawal from WRCOG and the HERO Program 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 the City's notice of withdrawal. 2. Indemnification and Liability. Authority shall defend, indemnify and hold the 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 the 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 attorney's 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 the 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 the 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. The Authority shall be the lead agency under the California Environmental Quality Act for any environmental review that may require in implementing or administering the California HERO Program under this JPA Amendment. 4. Cooperative Effort. The City shall cooperate with the Authority by providing information and other assistance in order for the Authority to meet its obligations hereunder. The City recognizes that one of its responsibilities related to the California HERO Program will include any permitting or inspection requirements as established by the City. The City's cooperation shall not be interpreted to require any approvals without appropriate review or that any discretionary authority of the 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: Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 10 Authority: Western Riverside Council of Governments 4080 Lemon Street, 3rd Floor MS 1032 Riverside, CA 92501-3609 Attn: Executive Director City: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 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. 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 Resolution No. 2015-005 Request for Inclusion into Regional HERO Program Adopted: January 20, 2015 Page 11 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 COUNCIL OF GOVERNMENTS AN Executive Committee Chair Western Riverside Council of Governments CITY OF LA QUINTA 0 Title: Date: Date: