Loading...
HomeMy WebLinkAboutReso 13-2021 (21-30)City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA City Council Resolution: RES 13-2021 File Number: 21-30 Enactment Number: RES 13-2021 RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND THE TOWN OF ATHERTON FOR THE PURCHASE OF $1,427,825 IN PG&E RULE 20A CREDITS FOR THE AMOUNT OF $645,521. WHEREAS, electric utilities collect and annually allocate credits to communities to convert overhead electric facilities to underground electric facilities, which are commonly referred to as Rule 20A credits; and WHEREAS, Pacific Gas and Electric Company ("PG&E") has allocated certain amount of Rule 20A credits to the Town of Atherton ("Town"), and the Town has accumulated $1,427,825 in such credits and does not have an active or planned project to underground overhead utilities; and WHEREAS, PG&E's Rule 20A credit program allows agencies to trade or sell unencumbered Rule 20A credits to other agencies based on a mutually agreeable rate of exchange and an agreement between the agencies for the trade or sale of such credits; and WHEREAS, the City of South San Francisco ("City") has identified qualifying planned utility project(s) for which it would utilize additional available Rule 20A credits; and WHEREAS, in November 2020, the City Council authorized the City Manager to negotiate the purchase of Rule 20A credits with other public agencies to ensure funding for the City's utility projects including utility undergrounding districts; and WHEREAS, the City and Town have negotiated a Memorandum of Understanding (MOU) attached hereto as Exhibit A, for the City to purchase Rule 20A credits from the Town at a rate of $0.45 for each $1.00 credit, subject to approval by PG&E of the transfer of credits; and WHEREAS, on January 20, 2021, the Town Council authorized the Town Manager to executed the MOU with the City for the transfer of accrued Town Rule 20A credits. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco, that the City Council hereby approves a Memorandum of Understanding (MOU) between the City of South San Francisco and the Town of Atherton, attached hereto and incorporated herein as Exhibit A, for the purchase of $1,427,825 in PG&E Rule 20A credits for the amount of $645,521. City of South San Francisco Page 1 File Number: 21-30 Enactment Number. RES 13-2021 BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the MOU in substantially the same form as Exhibit A, and any other related documents on behalf of the City, subject to approval by the City Attorney. At a meeting of the Special City Council on 1/27/2021, a motion was made by James Coleman, seconded by Buenaflor Nicolas, that this Resolution be approved. The motion passed. Yes: 4 Mayor Addiego, Vice Mayor Nagales, Councilmember Nicolas, and Councilmember Coleman Attest by �60 IL �sa Govea Acosta, City Clerk City of South San Francisco Page 2 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (MOU) is entered into the ___ day of _____________, 202_ (Effective Date), by and between the Town of Atherton (ATHERTON) and the City of South San Francisco (SSF). Atherton and SSF are sometimes individually referred to herein as "Party" and collectively as "Parties". RECITALS A.Electric Utilities collect and annually allocate credits to communities to convert overhead electric facilities to underground electric facilities. (These credits are commonly referred to as Rule 20A Credits). The amount of said credits allocated by Pacific Gas and Electric Company (PG&E) to the Town of Atherton is hereafter referred to as the "TOWN Allocation". B.SSF has identified qualifying project(s) for which it would utilize available Rule 20A Credits. C.O n ___________, 202_, the ATHERTON City Council authorized the ATHERTON City Manager to enter into this MOU with SSF for the transfer of accrued ATHERTON Rul e 20A Credits. AGREEMENT NOW, THEREFORE, the Parties hereto agree as follows: 1.ATHERTON agrees to assign, for use by SSF, its rights and interests in the TOWN Allocation to SSF, and SSF agrees to acquire, for consideration, the TOWN Allocation in accordance with the terms of this MOU. This MOU shall be subject to the approval of the Parties and shall become effective on the date when both such approvals have been obtained (Effective Date). 2.SSF shall purchase the accumulated TOWN Allocation at a purchase price of $0.45 per $1.00 of TOWN Allocation Credits. The calculated payment amount shall be known as the “Acquisition Price.” 3.Within thirty (30) business days of the Effective Date, SSF shall make a payment to ATHERTON in the amount of $642,521.25 (Acquisition Price) for the purchase of the currently available TOWN Allocation credits valued at $1,427,825. Payment shall be made in immediately available funds via check or wire transfer to an account designed by ATHERTON. The Acquisitio n Price shall constitute full consideration for the transfer and assignment of the TOWN Allocation transferred pursuant to this MOU. 4.Within ten (10) business days of ATHERTON's receipt of the Acquisition Price funds, ATHERTON shall deliver a written request to PG&E, with a copy to SSF, making a formal Exhibit A request to transfer and assign the TOWN Allocation, for which payment was made at a rate of $0.45 for each $1.00 credit to and for the benefit of SSF. ATHERTON shall cooperate in good faith with SSF to provide any additional documentation or information that is reasonably requested by PG&E to complete the transfer. In the event that PG&E is unable to complete, or does not approve, the transfer, ATHERTON shall return the Acquisition Price funds to SSF within ten (10) business days of PG&E's written notification to ATHERTON that PG&E will not complete the transfer. 5. SSF acknowledges and agrees that it has conducted its own investigation as to the applicability and transferability of the TOWN Allocation for use by SSF and that ATHERTON has not made any representation or warranty to SSF with respect to same. The actual use of the TOWN Allocation by SSF shall be subject to the rules and procedures adopted by PG&E, the California Public Utilities Commission, and such other conditions or requirements as are set forth in the Public Utilities Code. 6. Each Party shall hold harmless, defend, and indemnify the other Party and its governing body, officers, employees, and agents from and against any and all liability, loss. damage, expense and costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with the performance of the terms hereunder, or failure to comply with any of the obligations in this MOU, except such loss or damage caused by the sole negligence or willful misconduct of the other Party. 7. In the event that either Party is in breach of its obligations as set forth in this MOU, then the non-defaulting Party shall have the right to terminate this MOU on ten (10) business days' written notice to the defaulting Party unless the default is cured within the notice period. Upon termination for breach, the non-defaulting party may exercise any right or remedy which it may have under applicable law. 8. All notices to be given pursuant to this MOU shall be delivered in person, by U.S. mail, or by commercial overnight delivery and shall be effective upon receipt. All notices shall be sent and addressed to the representative of the Party that signs this MOU on behalf of the Party, as follows: City of South San Francisco Town of Atherton Attn: City Manager City Manager 400 Grand Ave. 150 Watkins Avenue (Temporary Trailers) South San Francisco, CA 94080 Atherton, CA 94010 9. SSF and ATHERTON are independent contractors with respect to each other. This MOU is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture, or any other similar association. Nothing in this MOU shall be construed to create an employment relationship between SSF and any employee of ATHERTON or between ATHERTON and any employee of SSF. Each party shall be solely responsible for the acts or omissions of its officers, agents, employees, and subcontractors. 10. This MOU shall constitute the entire agreement between the Parties relating to the subject matter of this MOU, and shall supersede any previous agreements, promises, representations, understanding and negotiation, whethe r oral or written, concerning the same subject matter. 11. This MOU shall be governed and construed in accordance with the laws of the State of California, and any action brought relating to this MOU shall be adjudicated in a court of competent jurisdiction in the County of San Mateo. 12. Each party shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 13. A waiver by either party of any breach of any term, covenant, or conditions contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 14. The terms of this MOU shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the MOU or any other rule of construction which mi ght otherwise apply. No addition to, or alteration of, the terms of this MOU shall be valid unless made in writing and signed by the Parties. 15. If any term or portion of this MOU is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this MOU shall continue in full force and effect. 16. In the event of any dispute or legal action arising under this MOU, the prevailing Party shall not be entitled to attorney's fees. 17. This MOU may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. (Signatures on Next Page) IN WITNESS WHEREOF, The Town of Atherton and City of South San Francisco have executed this Memorandum of Understanding effective on the date and year first hereinabove set forth. TOWN OF ATHERTON George Rodericks, City Manager Date ATTEST: Anthony Suber, City Clerk Date APPROVED AS TO FORM: Mona G. Ebrahimi , City Attorney Date CITY OF SOUTH SAN FRANCISCO Mike Futrell, City Manager Date ATTEST: Rosa Govea Acosta, City Clerk Date APPROVED AS TO FORM: Sky Woodruff, City Attorney Date 3672968.2