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HomeMy WebLinkAbout12/17/2014 - STAFF REPORTS - 2.R. 4 QALMS.. c Y N �a es ♦ �0% C1TY COUNCIL STAFF REPORT DATE: December 17, 2014 CONSENT SUBJECT: HERO Property Assessed Clean Energy Program FROM: David H. Ready, Executive Director BY: Michele C. Mician, Manager, Office of Sustainability SUMMARY The City Council will consider adoption of a resolution to allow property owners in the City to participate in the HERO Property Assessed Clean Energy (PACE) financing program for Distributed Generation Renewable Energy Sources, Energy and Water Efficiency Improvements and Electric Vehicle Charging Infrastructure RECOMMENDATION: 1. Adopt Resolution 201 - 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. BACKGROUND: Assembly Bill (AB) 811 was signed into law on July 21, 2008, and AB 474, effective January 1, 2010, amended Chapter 29 of Part 3 of Division 7 of the Streets & Highways Code of the State of California ("Chapter 29") and authorizes a legislative body to designate an area within which authorized public officials and free and willing property owners may enter into voluntary contractual assessments to finance the installation of distributed generation renewable energy sources, energy efficiency, and/or water conservation improvements that are permanently fixed to real property, as specified. The financing for these improvements has come to be known as PACE, which stands for Property Assessed Clean Energy. In April 2013, the Coachella Valley Association of Governments (CVAG) Executive Committee directed staff to initiate a Regional Property Assessed Clean Energy program for member agencies. At the time the decision to offer a PACE program was made, the Executive Committee directed staff to explore the option of encouraging competition by offering PACE programs provided by both Ygrene Energy Fund and the HERO program. ITEM NO. ate^ City Council Staff Report (December 17, 2014)--Page 2 CONSENT— HERO Program The CVAG Executive Committee established criteria for any PACE program, including that CVAG have its own stand-alone HERO program and that the CVAG Executive Committee would have the lead in making changes to the program. Recently, several CVAG member agencies, have joined the California HERO program. CVAG staff was approached by representatives of Renovate America who indicated a willingness to meet the conditions laid out by the CVAG Executive Committee in 2013. CVAG has worked with Renovate America and the Western Riverside Council of Governments (WRCOG) on an agreement that, in CVAG staff's opinion, substantially meets the conditions described by the Executive Committee to provide the HERO program to CVAG member agencies, with CVAG as the responsible agency for program oversight and direction. At their December 1, 2014, meeting, the CVAG Executive Committee approved an agreement between CVAG, Renovate America and the Western Riverside Council of Governments to provide for a HERO program for residential property owners in the Coachella and Palo Verde Valleys. Under this agreement: 1. Renovate America would provide all administration and financing of the program at no cost to member agencies. At this time, the program is anticipated to be available only for residential property owners. 2. CVAG would provide program oversight including: a. Review and approve projects submitted by property owners participating in the California HERO program within the CVAG region. b. Adopt resolutions and approve documents authorizing the California HERO program; c. Assist member agencies with the process of adoption of resolutions and/or other actions necessary to participate in the California HERO program. d. Coordinate with Renovate America on program marketing and outreach, to ensure that such marketing and outreach is compatible with the existing CV Upgrade program and property owners in the CVAG region are aware of the options for PACE programs, including the Ygrene Energy Fund CV Upgrade program and the HERO program. e. Provide Renovate America with a "local presence" at the CVAG offices. This can be accomplished with Renovate American employees or representatives or by training CVAG staff. 3. WRCOG is the program administrator for the California HERO program. WRCOG will participate in the HERO program for the Coachella Valley as conduit issuer of bonds and will coordinate with CVAG and Renovate America as needed. ANALYSIS: The California HERO Program is being offered to allow property owners in participating cities and counties to finance renewable energy, energy and water efficiency improvements, and electric vehicle charging infrastructure on their property. If a property owner chooses to participate, the installed improvements will be financed by the City Council Staff Report (December 17, 2014)--Page 2 CONSENT—HERO Program The CVAG Executive Committee established criteria for any PACE program, including that CVAG have its own stand-alone HERO program and that the CVAG Executive Committee would have the lead in making changes to the program. Recently, several CVAG member agencies, have joined the California HERO program. CVAG staff was approached by representatives of Renovate America who indicated a willingness to meet the conditions laid out by the CVAG Executive Committee in 2013. CVAG has worked with Renovate America and the Western Riverside Council of Governments (WRCOG) on an agreement that, in CVAG staffs opinion, substantially meets the conditions described by the Executive Committee to provide the HERO program to CVAG member agencies, with CVAG as the responsible agency for program oversight and direction. At their December 1, 2014, meeting, the CVAG Executive Committee approved an agreement between CVAG, Renovate America and the Western Riverside Council of Governments to provide for a HERO program for residential property owners in the Coachella and Palo Verde Valleys. Under this agreement: 1. Renovate America would provide all administration and financing of the program at no cost to member agencies. At this time, the program is anticipated to be available only for residential property owners. 2. CVAG would provide program oversight including: a. Review and approve projects submitted by property owners participating in the California HERO program within the CVAG region. b. Adopt resolutions and approve documents authorizing the California HERO program; c. Assist member agencies with the process of adoption of resolutions and/or other actions necessary to participate in the California HERO program. d. Coordinate with Renovate America on program marketing and outreach, to ensure that such marketing and outreach is compatible with the existing CV Upgrade program and property owners in the CVAG region are aware of the options for PACE programs, including the Ygrene Energy Fund CV Upgrade program and the HERO program. e. Provide Renovate America with a "local presence" at the CVAG offices. This can be accomplished with Renovate American employees or representatives or by training CVAG staff. 3. WRCOG is the program administrator for the California HERO program. WRCOG will participate in the HERO program for the Coachella Valley as conduit issuer of bonds and will coordinate with CVAG and Renovate America as needed. ANALYSIS: The California HERO Program is being offered to allow property owners in participating cities and counties to finance renewable energy, energy and water efficiency improvements, and electric vehicle charging infrastructure on their property. If a property owner chooses to participate, the installed improvements will be financed by the D� City Council Staff Report (December 17,2014)--Page 3 CONSENT— HERO Program issuance of bonds by a joint powers authority, the Western Riverside Council of Governments. The bonds are secured by a voluntary contractual assessment levied on such owner's property, with no recourse to the local government or other participating jurisdictions. Participation in the program is 100% voluntary. Property owners who wish to participate in the program agree to repay the amount borrowed through the voluntary contractual assessment collected together with their property taxes. This financing is available for eligible improvements on both residential and non-residential properties. The benefits to the property owner include: • Eligibility: In today's economic environment, alternatives for property owners to finance renewable energy/energy efficiency/water efficiency improvements or electric vehicle charging infrastructure may not be available. As such many property owners do not have financing options available that would provide funding for improvements that lower their utility bills. • Savings: Energy prices continue to rise and selecting in energy efficient, water efficient and renewable energy improvements reduces utility bills. • 100% voluntary. Property owners can choose to participate in the program at their discretion. Improvements and properties must meet eligibility criteria in order to qualify for financing. • Payment obligation stays with the property. Under Chapter 29, a voluntary contractual assessment stays with the property upon transfer of ownership. Certain residential conforming mortgage providers will, however, require the assessment be paid off at the time the property is refinanced or sold. • Prepayment option. The property owner can choose to pay off the assessments at any time, subject to applicable prepayment penalties. • Customer oriented program. Part of the success of the program is the prompt customer service. Committed funding partners provide funding promptly upon project completion resulting in both property owner and contactor satisfaction. The benefits to the City include: • Increase local jobs. • An increase in property values (energy efficient homes and buildings are worth more money). • An increase in sales, payroll and property tax revenue • As in conventional assessment financing, the City is not obligated to repay the bonds or to pay any delinquent assessments levied on the participating properties. • All California HERO Program and assessment administration, bond issuance and bond administration functions are handled by California HERO. Little, if any, City staff time is needed to participate in the California HERO Program. The standard procedure for all cities and counties to participate in the California HERO program is to adopt the form of a resolution accompanying this staff report. Resolution enables the California HERO Program to be available to owners of property within City of Palm Springs to finance renewable energy, energy efficiency and water efficiency improvements and electric vehicle charging infrastructure. The resolution also identifies that the City is a member of CVAG and CVAG has contracted with WRCOG and City Council Staff Report (December 17. 2014)—Page 3 CONSENT— HERO Program issuance of bonds by a joint powers authority, the Western Riverside Council of Governments. The bonds are secured by a voluntary contractual assessment levied on such owner's with no recourse to the local government or other participating property, jurisdictions. Participation in the program is 100% voluntary. Property owners who wish to participate in the program agree to repay the amount borrowed through the voluntary contractual assessment collected together with their property taxes. This financing is available for eligible improvements on both residential and non-residential properties. The benefits to the property owner include: • Eligibility: In today's economic environment, alternatives for property owners to finance renewable energy/energy efficiency/water efficiency improvements or electric vehicle charging infrastructure may not be available. As such many property owners do not have financing options available that would provide funding for improvements that lower their utility bills. • Savings: Energy prices continue to rise and selecting in energy efficient, water efficient and renewable energy improvements reduces utility bills. • 100% voluntary. Property owners can choose to participate in the program at their discretion. Improvements and properties must meet eligibility criteria in order to qualify for financing. • Payment obligation stays with the property. Under Chapter 29, a voluntary contractual assessment stays with the property upon transfer of ownership. Certain residential conforming mortgage providers will, however, require the assessment be paid off at the time the property is refinanced or sold. • Prepayment option. The property owner can choose to pay off the assessments at any time, subject to applicable prepayment penalties. • Customer oriented program. Part of the success of the program is the prompt customer service. Committed funding partners provide funding promptly upon project completion resulting in both property owner and contactor satisfaction. The benefits to the City include: • Increase local jobs. • An increase in property values (energy efficient homes and buildings are worth more money). • An increase in sales, payroll and property tax revenue • As in conventional assessment financing, the City is not obligated to repay the bonds or to pay any delinquent assessments levied on the participating properties. • All California HERO Program and assessment administration, bond issuance and bond administration functions are handled by California HERO. Little, if any, City staff time is needed to participate in the California HERO Program. The standard procedure for all cities and counties to participate in the California HERO program is to adopt the form of a resolution accompanying this staff report. Resolution enables the California HERO Program to be available to owners of property within City of Palm Springs to finance renewable energy, energy efficiency and water efficiency improvements and electric vehicle charging infrastructure. The resolution also identifies that the City is a member of CVAG and CVAG has contracted with WRCOG and City Council Staff Report (December 17,2014)--Page 4 CONSENT— HERO Program 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. The resolution also approves an amendment to the WRCOG Joint Powers Agreement (see Exhibit "A") to add the City as an Associate Member in order to enable the California HERO Program to be offered to the owners of property located within the City who wish to participate in the California HERO Program. Once interested jurisdictions have approved a resolution, a validation process will need to be completed. FISCAL IMPACT: There is no negative fiscal impact to the City's general fund will be incurred by consenting to the inclusion of properties within the City limits in the California HERO Program. All California HERO Program administrative costs are covered through an initial administrative fee included in the property owner's voluntary contractual assessment and an annual administrative fee which is also collected on the property owner's tax bill. MICHELE MICIAN DAVID H. READY Sustainability Manager City Manager Attachments: 1. Resolution for HERO program City Council Staff Report (December 17,2014)--Page 4 CONSENT-HERO Program 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. The resolution also approves an amendment to the WRCOG Joint Powers Agreement (see Exhibit "A") to add the City as an Associate Member in order to enable the California HERO Program to be offered to the owners of property located within the City who wish to participate in the California HERO Program. Once interested jurisdictions have approved a resolution, a validation process will need to be completed. FISCAL IMPACT: There is no negative fiscal impact to the City's general fund will be incurred by consenting to the inclusion of properties within the City limits in the California HERO Program. All California HERO Program administrative costs are covered through an initial administrative fee included in the property owner's voluntary contractual assessment and an annual administrative fee which is also collected on the property owner's tax bill. MICHELE MICIAN DAVID H. READY Sustainability Manager City Manager Attachments: 1. Resolution for HERO program Ok RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 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 CHARGINGINFRASTRUCTURE 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 (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 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, 05 B - 1 as amended to date, and the Amendment to Joint Powers Agreement Adding the City of 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 THAT: 1. 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. 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. 3. The consent of this 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. 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 CVAG staff and the 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. 06 B - 2 ADOPTED THIS 17TH DAY OF DECEMBER 2014 David H. Ready, City Manager ATTEST: James Thompson, City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote: AYES: NOES: ABSENT: ABSTAIN: James Thompson, City Clerk City of Palm Springs, California 07 B - 3 EXHIBIT "A" AMENDMENT TO THE JOINT POWERS AGREEMENT ADDING CITY OF PALM SPRINGS 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 _day of , 2014, by City of ("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 Bond Act of 1911, being Division 7 of the California Streets and Highways Code ("Chapter 29") to authorize 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 or other real property; and WHEREAS, 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, 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; WHEREAS, City desires to allow owners of property within its jurisdiction to B - 4 08 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 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 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 JPA, attached. 2. Associate Membership. By adoption of this JPA Amendment, City shall become 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, 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. City shall not be considered a member for purposes of Sections 3.4, 8.1, and 9.1 of the Authority JPA. City shall not be bound by any subsequent amendments of the Authority JPA not expressly agreed to by City. B - 5 09 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. 4. Rights of City. This JPA Amendment shall be not interpreted as limiting or restricting the rights of City to establish parameters or limitation on upon the HERO Program as it is conducted within City's jurisdiction. 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, upon approval of same by City Council. 2. Determination of Eligible Improvements. Subject to any parameters or limitations adopted by the City, 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 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 City's jurisdiction, 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., 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 B - 6 10 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. 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. 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. Authority may withdraw from this JPA Amendment upon six (6) months written notice to City; 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, City or any affiliated entity. 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 City's notice of withdrawal. 2. Indemnification and Liability. Authority shall defend, indemnify and hold 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 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 City and its directors, officials, officers, employees and agents for City's sole negligence or B - 7 11 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 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 require 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. City's cooperation shall not be interpreted to require any approvals without appropriate review or that any discretionary authority of 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: Authority: Western Riverside Council of Governments 4080 Lemon Street, 3rd Floor MS1032 Riverside, CA 92501-3609 Aft: Executive Director City: City of Palm Springs 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 B - 8 12 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. WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS By: Date: Executive Committee Chair Western Riverside Council of Governments B - 9 13 CITY OF PALM SPRINGS ADOPTED THIS 17TH DAY OF DECEMBER 2014 David H. Ready, City Manager ATTEST: James Thompson, City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote: AYES: NOES: ABSENT: ABSTAIN: James Thompson, City Clerk City of Palm Springs, California B - 10 14