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HomeMy WebLinkAbout2019-287Resolution No. 2019-287 RESOLUTION NO. 2019-287 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING THE JOINT EXERCISE OF POWERS AGREEMENT WATERMAN HYDROELECTRIC PROJECT AUTHORITY WHEREAS, electrical power costs continue to escalate due to several factors including renewable energy requirements and proposed hydropower projects that were not economically feasible just a few years ago have now become viable; and WHEREAS, the San Bernardino Valley Municipal Water District owns and operates the Waterman Turnout, a State Water Project water conveyance facility located in the City of San Bernardino at the head of the Waterman Basins; and WHEREAS, the San Bernardino Valley Municipal Water District conducted a study concluding that the Waterman Turnout is one of the most cost-effective sites for development of a hydroelectric plant; and WHEREAS, on January 30, 2019, the Water Board of the City of San Bernardino, California and the San Bernardino Valley Municipal Water District Board of Directors held a joint meeting and approved a partnership agreement for the Construction and the Operation and Maintenance of the Waterman Turnout Hydroelectric Generating Station; and WHEREAS, on August 27, 2019, the Water Board of the City of San Bernardino, California, approved the Joint Exercise of Powers Agreement creating the Waterman Hydroelectric Project Authority and forwarded said agreement to the Mayor and City Council for approval. BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. Adoption of Recitals. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2. Agreement Approval. The Mayor and City Council hereby approve the Joint Exercise of Powers Agreement Waterman Hydroelectric Project Authority (Exhibit "1") and authorize the City Manager to execute said agreement. SECTION 3. CEQA Exemption. That the City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Resolution No. 2019-287 SECTION 4. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable. SECTION 5. Effective Date. This Resolution shall become effective immediately upon adoption by the Mayor and City Council. APPROVED and ADOPTED by the Cityi ° unci n ed by the Mayor and attested by the City Clerk this 4th day of September 2019. t John Valdivia, Mayor City of San Bernardino Attest: Georgeann l l anna. MMC, City Clerk Approved as to form: Gary D. Saenz, City Attorney Resolution No. 2019-287 CERTIFICATION STATE OF CALIFORNIA) COUNTY OF SAN BERNARDINO) ss CITY OF SAN BERNARDINO) I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2019-287 adopted at a regular meeting held on the 4a` day of September 2019 by the following vote: Council Members: AYES NAYS SANCHEZ IBARRA FIGUEROA SHORETT NICKEL RICHARD C MULVIHILL X ABSTAIN ABSENT 0 WITNESS my hand and official seal of the City of San Bernardino this a day of September 2019. k Georgeann�4--Iarulu, MMC, City Clerk �` JOINT EXERCISE OF POWERS AGREEMENT WATERMAN HYDROELECTRIC PROJECT AUTHORITY This Joint Exercise of Powers Agreement (Agreement) creating the Waterman Hydroelectric Project Authority (Authority) is entered into and effective this 1st day of October, 2019 by and between the City of San Bernardino (City) and the San Bernardino Valley Municipal Water District (Valley District). The City and Valley District are each sometimes referred to herein as a "Party" and are collectively referred to herein as the "Parties." Recitals A. Each of the Parties is a public agency and each Party is authorized under its governing law to enter into a joint exercise of powers agreement pursuant to Government Code sections 6500 et seq. B. Each of the Parties has authority to construct, operate, use and maintain a hydroelectric facility and to create a separate public agency to carry out such authority. C. The Parties wish to jointly construct, operate, use and maintain the Waterman Hydroelectric Facility (the Facility) for the benefit of the public and further wish to create a new public agency, the Authority, to accomplish those purposes. A map showing the location of the Facility is attached hereto as Exhibit A and incorporated herein by reference. D. Each of the Parties are located wholly within the County of San Bernardino and the Parties are only served with electrical power by Southern California Edison. E. On January 30, 2019, the Parties entered into the Agreement for the Construction and the Operation and Maintenance of the Waterman Turnout Hydroelectric Generating Station Between San Bernardino Valley Municipal Water District and the City of San Bernardino Municipal Water Department (the Partnership Agreement). F. The Parties wish to memorialize their respective understandings and agreements and create the Authority by means of this Agreement. Agreements 1. Certification of Recitals. The Parties agree and certify that all of the foregoing recitals are true and correct. 2. Term; Termination; and Disposition of Property. This Agreement shall remain in effect and the Authority shall continue to fulfill its purpose and exercise its powers until terminated by agreement of the Parties or until termination of the Partnership Agreement, whichever occurs first. This Agreement may be terminated prior to the then -current termination date by written consent of the Parties evidenced by certified copies of resolutions of their governing bodies. Upon termination or expiration of this Agreement, Joint Exercise of Powers Agreement Waterman Hydroelectric Project Authority Page 1 of 8 any property acquired as a result of the joint exercise of powers shall be disposed of as follows: a. Valley District shall promptly cause an appraisal to be made of the assets of the Authority (including the Facility), which appraisal shall be completed within one year of the date upon which this Agreement is terminated. Such appraisal shall be prepared by an appraiser reasonably satisfactory to the City and shall appraise the then -current fair market value of the assets of the Authority (including the Facility). b, Valley District shall, within ninety days of receiving the appraisal, pay half the amount of the appraisal to the City. Valley District may, in its sole discretion, choose to spread the payments to the City over no more than five annual payments, including interest. C. Upon the completion of all such payment(s), fee title to the assets of the Authority (including the Facility) shall vest in Valley District. Notwithstanding termination of the Agreement, the Authority shall remain in existence for the limited purpose of holding such title through the completion of all such payment(s). 3. Creation of the Authority, Purpose. a. Creation of Authority. The Parties hereby create the Authority, which is formed pursuant to Government Code sections 6500 et seq. It is the intent of the Parties that the Authority be a public agency separate from and independent of the Parties. b. Purpose. The purpose of the Agreement is to create a new public agency, separate from and independent of the Parties, to exercise the common powers of the Parties to fund, construct, operate, use, and maintain the Facility as generally contemplated in the Partnership Agreement and, in particular, to apply for the specialized Renewable Energy Self -Generation Bill Credit Transfer as described in paragraph 4 of the Partnership Agreement. While the Parties do not believe any inconsistencies exist between the Agreement and the Partnership Agreement, to the extent any inconsistencies are later discovered, the Partnership Agreement shall govern 4. Powers of the Authority. The Authority shall have the power, in its own name, to do any and all of the following: a. To make and enter into contracts, leases and other agreements; b. To employ agents, employees, consultants, advisors, independent contractors and other staff; C. To incur debt, liabilities or obligations; Joint Exercise of Powers Agreement Waterman Hydroelectric Project Authority Page 2 of 8 d. To acquire, hold or dispose of property both inside and outside the boundaries of the Parties to this Agreement; e. To acquire, construct, manage, maintain and operate any buildings, works or improvements necessary to accomplish the purpose of this Agreement; f. To sue and be sued in its own name; g. To raise revenue by the issuance of bonds, notes, warrants and other evidences of indebtedness to finance costs and expenses incidental to the purpose of the Authority; h. To contract with the federal or state government and other public agencies; i. To apply for appropriate grants or loans under any federal, state or local programs for assistance in developing hydroelectric power and in constructing or operating the Facility; To designate committees of the Board of Directors of the Authority to serve at the pleasure of the Board of Directors, and to prescribe the manner in which proceedings of such committees shall be conducted; k To exercise jointly the common powers of the Parties to study, plan, construct, operate, use and maintain the Facility; 1. To invest surplus funds pursuant to Government Code Section 6509.5 (or other applicable state law), in compliance with Government Code Section 53601; M. To sell or otherwise dispose of any asset resulting from the operation of any project, facilities or system by the Authority; n. To adopt rules, policies, by-laws, regulations and procedures governing the operation of the Authority consistent with the terms of this Agreement; and o. To take such other actions as may be incidental to, necessary for, or convenient for the full exercise of the powers granted by this Agreement. 5. Limitations on Exercising Power. In accordance with Government Code section 6509, the Authority shall be subject to the same restrictions upon the manner of exercising the above powers as Valley District. 6. Governing Board a. This Agreement and the Authority created hereby shall be administered by the governing body of the Authority, which shall be known as the `Board of Joint Exercise of Powers Agreement Waterman Hydroelectric Project Authority Page 3 of 8 7. Directors" of the Authority. All of the power and authority of the Authority shall be exercised by the Board of Directors. b. Within thirty days of the effective date of this Agreement, each Party shall designate and appoint, by resolution of its governing body, two individuals, each one of whom shall be a member of such Party's governing body, to act as that Party's representatives on the Board of Directors of the Authority. C. Each member of the Board of Directors shall serve at the pleasure of the governing body of the appointing Party and may be removed at any time, with or without cause, in the sole discretion of the appointing Party's governing body. d. For purposes of this Agreement, pursuant to section 603 of the Charter of the City of San Bernardino, the City's "governing body" shall be its Water Board, and all authority of City hereunder shall be exercised on its behalf by its Water Board. Conduct of Meetings a. The Board of Directors of the Authority shall establish a principal business office for the Authority and a regular meeting schedule for the Board of Directors, which shall meet no less frequently than annually. At its first meeting, the Board of Directors shall determine by resolution the time and place of holding its regular meeting, which place shall be within the territorial jurisdiction of the Parties. Notice of regular meetings shall be furnished in writing, by mail, to each member of the Board of Directors, and to the governing board of each Party to this Agreement, and to any person who has filed with the Authority a written request for notice. Special meetings may be called at the request of the president of the Board or at the request of a majority of the Board of Directors. b. Notice of regular and special meetings of the Board and Committees shall be provided in accordance with applicable law, including but not limited to the provisions of the Ralph M. Brown Act. C. All meetings of the Board of Directors and Committees shall be open to the public and shall be held and conducted in accordance with applicable law, including but not limited to the provisions of the Ralph M. Brown Act. d. The quorum necessary for the transaction of Authority business shall consist of three Directors, with at least one representative from each Party. All actions of the Board shall be approved by a unanimous vote of the Directors present. Each Director of the Board shall be entitled to one vote. e. The Board of Directors may adopt, from time to time, such rules and regulations for the conduct of its affairs as may be required. Joint Exercise of Powers Agreement Waterman Hydroelectric Project :Authority Page 4 of 8 f. Board Members' compensation shall be the sole responsibility of the Party appointing the member. 8. Liabilities. The debts, liabilities and obligations of the Authority shall be the debts, liabilities and obligations of the Authority alone, and not of the Parties or any Party to this Agreement. This section shall not apply to retirement liabilities to the extent the Authority is required to comply with Government Code section 6508.1. 9. General Provisions a. Authority. Each signatory of this Agreement represents that s/he is authorized to execute this Agreement on behalf of the Party for which s/he signs. Each Party represents that it has legal authority to enter into this Agreement and to perform all obligations under this Agreement. b. Amendment. This Agreement may be amended or modified only by a written instrument executed by each of the Parties to this Agreement. C. Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, except for its conflicts of law rules. Any suit, action, or proceeding brought under the scope of this Agreement shall be brought and maintained to the extent allowed by law in the County of San Bernardino, California. d. Headings. The paragraph headings used in this Agreement are intended for convenience only and shall not be used in interpreting this Agreement or in determining any of the rights or obligations of the Parties to this Agreement. e. Construction and Interpretation. This Agreement has been arrived at through negotiations and each Party has had a full and fair opportunity to revise the terms of this Agreement. As a result, the normal rule of construction that any ambiguities are to be resolved against the drafting Party shall not apply in the construction or interpretation of this Agreement. f Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement and, save as expressly provided in this Agreement, supersedes any prior oral or written agreement, understanding, or representation relating to the subject matter of this Agreement. g. Partial Invalidity. If, after the date of execution of this Agreement, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable. However, in lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. Joint Exercise of Powers Agreement Waterman Hydroelectric Project Authority Page 5 of 8 h. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the successors and assigns of the respective Parties to this Agreement. No Parry may assign its interests in or obligations under this Agreement without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed. i. Waivers. Waiver of any breach or default hereunder shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same or of another provision of this Agreement and forbearance to enforce one or more of the rights or remedies provided in this Agreement shall not be deemed to be a waiver of that right or remedy. j. Attorneys' Fees and Costs. The prevailing Party in any litigation or other action to enforce or interpret this Agreement shall be entitled to reasonable attorneys' fees, expert witnesses' fees, costs of suit, and other and necessary disbursements in addition to any other relief deemed appropriate by a court of competent jurisdiction. k. Necessary Actions. Each Party agrees to execute and deliver additional documents and instruments and to take any additional actions as may be reasonably required to carry out the purposes of this Agreement. 1. Compliance with Law. In performing their respective obligations under this Agreement, the Parties shall comply with and conform to all applicable laws, rules, regulations and ordinances. In. Third Party Beneficiaries. This Agreement shall not create any right or interest in any non -Party or in any member of the public as a third -party beneficiary. n. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. o. Notices. All notices, requests, demands or other communications required or permitted under this Agreement shall be in writing unless provided otherwise in this Agreement and shall be deemed to have been duly given and received on: (i) the date of service if served personally or served by electronic mail on the Party to whom notice is to be given at the address(es) provided below, (ii) on the first day after mailing, if mailed by Federal Express, U.S. Express Mail, or other similar overnight courier service, postage prepaid, and addressed as provided below, or (iii) on the third day after mailing if mailed to the Party to whom notice is to be given by first class mail, registered or certified, postage prepaid, addressed as follows: Joint Exercise of Powers Agreement Waterman Hvdroelectric Project Authority Page 6 of 8 To the City: City of San Bernardino Municipal Water Department P.O. Box 710 San Bernardino, California 92402 Attn: General Manager With a copy to: City of San Bernardino Vanir I -ower. 290 North D Street San Bernardino, CA 92401 Attn: City Attorney To Valley District: San Bernardino Valley Municipal Water District 380 East Vanderbilt Way San Bernardino, CA 92408 Attn: General Manager [signature page follows] Joint Exercise of Powers Agreement Waterman Hydroelectric Project Authority Page 7 of 8 SIGNATURE PAGE TO JOINT EXERCISE OF POWERS AGREEMENT WATERMAN HYDROELECTRIC PROJECT AUTHORITY IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date last executed as set forth below. ATTEST: By ,� _. oiZ rd Secretary APPROVED AS TO FORM: District Couns ATTEST: I By APPROVED AS TO FORM: City Attorney SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT 7 � General Manager Dated / Z 0 f CITY OF SAN BERNARDINO By J�21-2 City Manager Dated —1-1671-2 Page 8 of 8 Joint Exercise of Powers Agreement Waterman Hydroelectric Project Authority I F- F- 10 - H10 �It w J � f Cpl _(i 49TH STREET w EXHIBIT A DIA. SBVMWD FOOTHILL PIPELINE 0 zIz QIwl PROPSED METER UPG PROPOSED LINE VALVE MODIFICATIOP z ' I I % i PROPOSED EDISON FACILITIES I ( (PART OF PROJECT� I` r 48TH STREET i L 40TH STREET DATE: JAN. 14, 2019 DRAWN: ME 1 ► i r ► s � PROPOSED HYDROELECTRIC GENERATION PLANT BYPASS -ti ► � r PROPOSED HYDROELECTRIC ► GENERATION PLAN -F— sA ►~ TAILRACE i 1 I PORTION OF WATERMAN TURNOUT HYDROELECTRIC GENERATION PROJECTINCLUDEDIN AGREEMENT r PROPOSED I-iYDROELECTRIC GENERATION ' PLANT 1 WARDINO 380 EAST VANDERBILT WAY, SAN BERNA IN0, CA 92408 PHONE: (909) 387-9253 FAX: (909) 387-9247