Western Riverside Council of Governments - JPA AmendmentAMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF GILROY AS
AN ASSOCIATE MEMBER OF THE
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
TO PERMIT THE PROVISION OF PROPERTY ASSESSED
CLEAN ENERGY (PAGE) PROGRAM SERVICES WITH
SUCH CITY
This Amendment to the Joint Powers Agreement (``JPA Amendment ") is made and
entered into on the 2nd day of March, 2015, by City of Gilroy ( "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 February 18, 2015, Authority had 18 member entities (the
"Regular Members ")..
WHEREAS, Chapter 29 of the Improvement Act of 191.1, 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
WHERE-AS, 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
ON
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 bound_ aries 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.
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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 Califomia 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, offcers,
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
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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 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
Attention: Executive Director
4080 Lemon Street, 3rd Floor. MS1032
Riverside, CA 92501 -3609
City:
City of Gilroy
Attention: City Administrator
7351 Rosanna Street
Gilroy, Ca. 95020
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.
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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. 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.
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WESTER RI GOVERNMENTS
By: Date:
Executive Conimittee Chair
Western Riverside Council of Governments
CITY OF ROY
By:
Thomas J. Haglund
City Administrator
ATTEST:
Freels,
Date: 5
APPROVED AS TO FORM:
rk Linda Callon, City Attorney
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