HomeMy WebLinkAboutCC AG PKT 2004-11-08 #M City of Seal Beach
Agenda Report
Date: November 1, 2004
To: Honorable Mayor and City Council
From: John B. Bahorski
City Manager I/
Subject: Discussion and Comment on a Possible Joint Authority (JPA) between the
Cities of Seal Bach, Long Beach, the Rivers, Mountains Conservancy •
(RMC), County of Orange and other State Agencies
SUMMARY OF REQUEST:
Staff is requesting City Council provide input and direction on whether to pursue a
possible JPA to acquire, plan, rehabilitate, manage and maintain the Los Cerritos
wetlands that includes the Hellman wetlands. Although this is conceptual in nature, staff
would like Council direction on this idea so that valuable staff time is not wasted.
BACKGROUND:
It has been a goal of the previous and current Council that the Hellman wetlands be
restored since it is a valuable asset to the community. Although the Council understands
the importance of this asset, a number of stumbling blocks have slowed the progress of
returning the Hellman wetlands to their original condition. Those stumbling blocks
include:
1. Finding a public entity to take title to the property,
2. Locating and securing funding for the restoration of the wetlands,
3. Having the appropriate level of staff dedicated to this undertaking, and
4. Limiting the liability exposure of an agency due to the by- products of oil
production.
There are numerous other issues, however, these appear to be the major impediments to
restoring not only the Hellman wetlands, but also those wetlands within Long Beach.
Staff has, on a very limited basis, been monitoring the progress of bringing the wetlands
i Agenda Item. i 1
into public ownership, and has concluded that the JPA is the last option available if
restoration of the wetlands is to succeed. The Coastal Conservancy has been working
very diligently on the acquisition, but having an agency willing to hold title to the
property is a problem.
The Rivers, Mountains Conservancy (RMC), through the leadership of their Executive
Director, has pursued the concept of forming a JPA to acquire, restore and manage the
Los Cerritos wetlands that includes the Hellman wetlands. Attachment A is a draft
outline of a possible JPA for the Los Cerritos wetlands. This draft document has been
circulated to both Seal Beach and Long Beach for comments and conceptual
consideration. As previously mentioned, staff would like City Council to comment on
this draft outline and provide staff direction. Staff believes that there are benefits to
pursuing the formation of a JPA that includes the Hellman wetlands. Those benefits are:
• Provide focused and dedicated staff to this issue. Currently City staff has
numerous other projects and cannot put the needed resources into this type of
project. Staff believes that restoration of the wetlands is a labor - intensive task
that requires the focus of a dedicated agency.
• The JPA can limit the City liability exposure when acquiring and restoring the
wetlands. If council provides direction to pursue this idea, the City Attorney can
then provide input to ensure any final JPA document has the necessary protections
for the City.
• A joint powers authority would clearly be able to pursue and secure grants for
planning and restoration that are beyond the current capacity of City staff.
• A JPA would allow the City to continue to be involved with the acquisition,
planning and restoration of the wetlands without the substantial commitment of
resources that would be necessary if the City chose to undertake this project
alone.
Under the key points contained in Attachment A, the liabilities and debts of the JPA
would be solely those of the JPA and not the member agencies. Further, the individual
public agencies will be listed as additional insured on any insurance policies purchased
by the JPA as well as contractors of the JPA. The proposed JPA concept will give Seal
Beach a voice in how the Hellman wetlands are restored because the composition of the
JPA board includes one member from each of the member public agencies.
Clearly, there are numerous issues that need to be discussed and resolved before any draft
or final JPA is developed. Staff believes, however, that City Council needs to determine
a level of interest so that staff does not waste valuable resources on an idea that has no
Council support. Further, members of each agency will need to approve a final JPA
agreement before the work of the JPA can begin. Staff would like the City Council to
review Attachment A, provide comments to staff and provide direction on how to
proceed.
RECOMMENDATION:
Staff is recommending that the City Council review the attached outlines prepared by the
RMC and provide staff comments and direction.
Attachments:
A. Los Cerritos Wetlands JPA Outline — Draft
B. October 18, 2004 RMC Staff Report on the JPA Concept
C. Joint Power Authorities: Opportunities and Challenges
•
•
Los Cerritos Wetlands JPA Outline — DRAFT
Rev 10/04
Key Points
1. Purpose of JPA would be to acquire, plan and restore Los Cerritos Wetlands, and secure
long -term management for the restored wetlands.
2. JPA would be operated to minimize administrative structure through contracting with
both public and private entities.
3. RMC /SCC would serve as administrator until such time that an ED can be hired, except
for fiscal responsibilities.
4. JPA would follow either the City of Long Beach or the County of Orange's rules on
contracting, acquisition, etc. The term "local government" will be used as a placeholder
until it is decided which municipality would be in the lead.
5. Local government.would serve as fiscal agent.
6. Acquisition would only be possible if funding, or other commitment of resources, is
available for property management.
7. JPA would contract with local government for property management. Thus, if JPA has no
money for contract, the local govemment would have no obligation for management.
8. 15 year term on agreement. Upon dissolution, property would be divided based on
relative contribution. Thus, if State funds acquisition, property would revert to State, or
its designee. Protects Cities or County from getting left with the property unwillingly.
Specifics
1. Participants (Public Agencies with a provision that the JPA is established upon execution of
the agreement by at least one state agency and one local agency and that any of the specified
parties may join upon execution of the agreement) Need to decide if this provision will be
left open or if there will /should be a time limit.
a. California State Coastal Conservancy (SCC)
b. Lower Los Angeles and San Gabriel Rivers and Mountains Conservancy (RMC)
c. County of Orange (County)
d. City of Long Beach (Long Beach)
e. City of Seal Beach (Seal Beach)
2. Purpose
• To acquire, plan, design, improve, manage, operate, and maintain the Los Cerritos
Wetlands Ecosystem (LCWE).
• Identify and secure long -term management of the restored wetlands.
3. Boundaries /Jurisdiction
The boundaries would encompass the Bixby Property, Bryant Property, Hellman Ranch,
Orange County Flood Control District Detention Basin, State Lands Commission
Property, 5 -acre Edison parcel. Planning activities could take place anywhere within the
JPA boundaries. Restoration and management activities would be limited to properties on
which the JPA has secured control either through ownership or landowner agreement.
NEED TO AGREE ON EXACT MAP BOUNDARY. The boundaries could be
amended by the JPA subject to the concurrence of the Public Agency(ies) within whose
jurisdiction the proposed boundary change lies.
4. Powers
a. Powers of the JPA will subject to the local government's restrictions on exercising
such power.
b. Acquire and dispose of property, but not by eminent domain. Property can only be
acquired if there is at least a 5 -year management plan for the property and resources
have been secured to implement the plan.
c. Enter into contracts and agreements to carry out its purposes
d. Plan, improve, manage, operate and maintain the LCWE
e. Accept grants, donations, and other funding from public and private sources.
However, the JPA would have no authority to raise revenues and /or incur debt
through taxation, assessment and/or levy of any kind.
5. Operations and Maintenance
a. JPA is responsible for operations and maintenance of any LCWE property acquired.
b. JPA would contract for this function.
6. Term
a. Initial term of 15 years, with option to extend it upon concurrence of all parties.
b. Withdrawal —
i. 180 days notice required to withdraw from JPA.
ii. Withdrawing agency will not be refunded or repaid from the JPA's assets for
any past contributions.
7. Board
a. Composition
i. Each of the governing bodies of the five member Public Agencies will appoint
one person to represent their agency.
ii. Members will serve at the pleasure of their governing bodies
b. Quorum — majority
c. Decisions — majority of the membership (i.e., at least 3 votes will be required for any
decision).
8. Funding/Fiscal
a. Public Agencies may, but shall not be required to, contribute money, office space,
furnishings, equipment, supplies or services as may be necessary, but each shall agree
to a minimum commitment of staff as specified in the agreement (KEY AREA FOR
DISCUSSION):
i. Coastal Conservancy —
ii. Rivers and Mountains Conservancy —
iii. City of Long Beach —
iv. County of Orange —
v. City of Seal Beach --
b. Authority may receive gifts, donations, bequests, etc.
c. Budget will be prepared annually at start of fiscal year.
d. Fiscal year will be the local government's.
e. JPA funds shall be kept in a separate account created by the Treasurer.
f. The Treasurer will submit quarterly financial reports of all receipts and
disbursements.
9. Officers and Employees
a. Staff— Public Agencies will staff the JPA a specified in the agreement, unless and
until JPA hires staff
b. Executive Director — The Board may appoint an Executive Director. The Executive
Officer of the RMC /SCC will serve as the interim Executive Director.
c. Treasurer — The local government Treasurer will serve as Treasurer of the JPA. The
local government Treasury will be the depositary for all JPA funds.
d. Auditor — The local government Treasurer will also serve as the auditor and may
choose to have audits performed by an independent CPA.
e. Experts and other employees — the JPA may employ other officers, employees,
consultants, advisors, and independent contractors as necessary.
10. Disposition of Assets on Dissolution
a. At termination of agreement all property, both real and personal, shall be returned to
the respective Public Agencies, or their designees, as nearly as possible in proportion
to the contributions, if any, made by each.
11. Liability
a. Debts, liabilities, and obligations of JPA will solely those of the JPA and not the
member Public Agencies.
b. The individual Public Agencies will be listed as additional insureds on any insurance
policies purchased by the JPA, as well as policies of JPA contractors.
12. Amendment
a. Requires approval of governing bodies of each member Public Agency.
DATE: October 18, 2004
TO: RMC Governing Board
FROM: Belinda V. Faustinos, Executive Officer
SUBJECT: Item 9A: Discussion and possible action on formation of a joint powers
agreement between the Rivers and Mountains Conservancy, the City of
Long Beach, the City of Seal Beach, the County of Orange and the
California Coastal Conservancy for wetland restoration projects.
PROGRAM: Rivers and Tributaries
PROJECT TYPE: Multiple
JURISDICTION: Multiple
LEGISLATIVE AUTHORITY: The following Public Resources Code Sections apply:
§ 32614 - Provides in part that the conservancy may:
(b) Enter into contracts with any public agency, private entity, or person necessary for the
proper discharge of the conservancy's duties, and enter into a joint powers agreement
with a public agency, in furtherance of the purposes set forth in Section 32602.
(e) Enter into any other agreement with any public agency, private entity, or person
necessary for the proper discharge of the conservancy's duties for the purposes set forth
in Section 32602.
(g) Undertake, within the territory, site improvement projects, regulate public access, and
revegetate and otherwise rehabilitate degraded areas, in consultation with any other
public agency with appropriate jurisdiction and expertise, in accordance with the
purposes set forth in Section 32602. The conservancy may also, within the territory,
upgrade deteriorating facilities and construct new facilities as needed for outdoor
recreation, nature appreciation and interpretation, and natural resources projection. The
conservancy may undertake those projects by itself or in conjunction with another local
agency; however, the conservancy shall provide overall coordination of those projects by
setting priorities for the projects and by ensuring a uniform approach to projects. The
conservancy may undertake those projects with prior notification to the legislative body
of the local agency that has jurisdiction in the area in which the conservancy proposes to
undertake that activity.
The following Government Code Sections apply:
§ 6500 - Provides in part that: "a "public agency" includes, but is not limited to, the federal
government or any federal department or agency, this state, another state or any state
department or agency, a county, county board of education, county superintendent of schools,
city, public corporation, public district, regional transportation commission of this state or
another state, or any joint powers authority formed pursuant to this article by any of these
agencies.
§ 6502 - Provides that "If authorized by their legislative or other governing bodies, two or more
public agencies by agreement may jointly exercise any power common to the contracting
parties, even though one or more of the contracting agencies may be located outside this state.
BACKGROUND: This item was discussed by the RMC on October 20, 2003. For those
members not familiar with the Los Cerritos Wetland area there is an attached map which
displays the various properties which have been studied for their potential as part of a large
wetlands restoration project commonly known as the Los Cerritos Wetlands. The wetlands area
includes properties in both the Cities of Long Beach and Seal Beach, totaling over 700 acres.
While there are a number of challenging issues associated with some of the properties, both
Cities are dedicated to restoring the wetland, along with major stakeholders such as the Coastal
Conservancy, the Wildlife Conservation Board, the Department of Fish and Game, and US Fish
and Wildlife and a local non profit land trust. This project has a long history and unfortunately
due to various issues none of the properties involved has been put into public ownership to
date.
As a result of the direction to staff at the last RMC meeting regarding the formation of a joint
powers authority agreement (JPA) for this project several meetings have taken place with
various partners over the last year. Coastal Conservancy staff has developed the attached
framework document for further discussion with possible members to the joint powers authority.
One of the major driving forces for establishing this JPA as soon as possible is that there is $7
million in grant funding that may be jeopardized if it is not spent on a Los Cerritos wetlands
project by June 30, 2005.
It should be noted that the action requested by staff is to give further specific direction to staff
regarding this effort and approve the framework document for further discussion with the
possible member agencies. Each member agency will have to take specific action to consider
approval of the agreement. It is expected that this activity will take place over the next several
months.
FISCAL INFORMATION: As the framework document enumerates it is possible that each
member agency will be asked to contribute in some manner to the JPA. Significant staff time
will be necessary at least over the next several months. Due to the priorities of the agency and
limited staff it is recommended that at minimum the staffing for this JPA be shared with the State
Coastal Conservancy. However, it is ultimately recommended that due to the anticipated
workload for this agency an independent Executive Director, support staff and expenses must
be included in the projected budget. It is anticipated that capital costs for this project will be
available from non RMC sources, such as the Coastal Conservancy, Wildlife Conservation
Board and the Ports.
RECOMMENDATION: That the RMC authorize the Executive Officer to pursue the formation of
a joint powers agreement with the public agencies listed in the attached framework document
for wetland restoration projects.
October 18, 2004 - Item 9A
RESOLUTION NO.: 2004 -52
RESOLUTION OF THE SAN GABRIEL AND LOWER LOS
ANGELES RIVERS AND MOUNTAINS CONSERVANCY ( "RMC ")
AUTHORIZING THE EXEUCTIVE OFFICER TO PURSUE
FURTHER ACTION ON THE FORMATION OF A JOINT POWERS
AGREEMENT BETWEEN THE RMC, THE CITY OF LOND BEACH,
THE CITY OF SEAL BEACH, THE COUNTY OF ORANGE, AND
THE CALIFORNIA COASTAL CONSERVANCY FOR WETLAND
RESTORATION PROJECTS
WHEREAS, the RMC is a state agency created to acquire and manage public lands within the
Lower Los Angeles River and San Gabriel River watersheds, and to provide open space, low impact
recreational and educational uses, water conservation, watershed improvement and wildlife and
habitat restoration and protection; and
WHEREAS, the RMC, the City of Long Beach, the City of Seal Beach, the County of Orange, and
the California Coastal Conservancy (hereinafter referred to as "Parties ") are authorized by statute to
enter into joint powers agreements with other public agencies (Government Code § 6500 et seq.;
Public Resources Code § 32614 (b)); and
WHEREAS, it is the goal of both the RMC and the PARTIES is to provide for a comprehensive
program to acquire, restore and manages properties in the Los Cerritos Wetlands; and
WHEREAS, in order to accomplish these objectives the PARTIES have had discussion regarding
the benefits of entering into a joint powers agreement for the purpose of creating a new "joint
powers" public agency; NOW
Therefore be it resolved that the RMC hereby:
1. FINDS that this action is consistent with the San Gabriel and Lower Los Angeles Rivers and
Mountains Conservancy Act and is necessary to carry out the purposes and objectives of
Sections 32600 et seq of the Public Resources Code.
2. FINDS that the actions contemplated by this resolution are exempt form the environmental
impact report requirements of the California Environmental Quality Act (e.g., Public
Resources Code, § 21000 et seq.)
3. ADOPTS the staff recommendation dated October 18, 2004.
4. AUTHORIZES the Executive Officer to continue discussions consistent with the framework
document attached to the October 18, 2004 staff report.
End of Resolution —
RESOLUTION NO.: 2004 -52
Passed and Adopted by the Board of the
SAN GABRIEL AND LOWER LOS ANGELES RIVERS AND MOUNTAINS
CONSERVANCY on October 18, 2004.
Frank Colonna, Chairperson
ATTEST:
Terry T. Fujimoto
Deputy Attorney General
•
•
1 , •
1
Joint Powers •
Authorities:
•
Opportunities & Challenges
•
4
HDDSDD
Joan L. Cassman BRIDGEii
Hanson, Bridaett, Marcus, Vlahos & Rudy, LLP (R B fl C V v
333 Market Street, Suite 2300 V C fl N fl$
San Francisco, CA 94105 fl fl D P llP
Jean B. Savaree
AARONSON, DICKERSON. COHN. & LANZONE
939 Laurel Street, Suite D
P.O. Box 1065
San Carlos CA 94070
•
25
_ I
TABLE OF CONTENTS
S
t l Page
INTRODUCTION 1
CREATION OF A JOINT POWERS AUTHORITY 1
Joint Powers Agreements 1
Initial Formation Requirements /Considerations 7
CRITICAL ISSUES IN RELATIONSHIP BETWEEN JOINT POWERS j'
AUTHORITY AND ITS MEMBER AGENCIES 8
Debt Financing Authority 8 '
1
Debts, Obligations and Liabilities ofJoint Powers Authorities 10 ,j
I(1
Delegation of Land Use Authority 12
I
ADVISING THE JOINT POWERS AUTHORITY 14
Brown Act Considerations 15 I I
I
Joint Powers Authority Board Members Fiduciary Duty to the Authority 16 ,`
Section 1090 Considerations 18
SAMPLE JOINT POWERS AGREEMENTS '
, , I
1. Joint Powers Agreement — The State Water Contractors Operating Authority it
2. Joint Powers Agreement Creating the Salton Sea Management Authority.
iI
3. Joint Exercise of Powers Agreement Between the City of Oxnard and the United ¢I11
Water Conservation District Creating the RiverPark Reclamation and Recharge
Authority
ill
144
i
1047140.1
27 I(1
This page was intentionally left blank. ,'J
^i.
0
1
1
1
I
28
I
JOINT POWERS AUTHORITIES:
OPPORTUNITIES AND CHALLENGES
INTRODUCTION •
I In this age of regionalism, limited resources available to local governments to carry out their
missions, and ever increasing unfunded mandates from the state and federal governments, joint
powers authorities have become a cost effective means by which local governments can carry out
I necessary business. A joint powers authority is established when two or more public agencies by
agreement jointly exercise any power common to the contracting agencies. Section 6500 et seq.
of the California Government Code constitutes the enabling legislation for joint powers
authorities.' In recent years, there has been a proliferation of joint powers authorities covering a
•
wide range of functions, including fire protection, water, library, criminal justice, recreation,
transportation, open space, congestion management, animal control, and others.
I The member agencies of a joint powers authority may be of like kind, or may be a combination
of different types of agencies, including counties, cities, special districts and state agencies. It is
I not necessary that each member agency have the authority to exercise the common powers in the
geographical area in which the authority will jointly exercise such powers. Indeed, a member
agency may even be located out of state. (Section 6502).
1 .
CREATION OF A JOINT POWERS AUTHORITY
1 '' 9 A joint powers authority is established by contract. The contract may or may not create a
separate entity, but many do and some of the more significant issues arise in the context of a
newly created entity. Thus, this paper focuses on joint powers authorities that constitute separate
entities. •
I Like all of our clients, a joint powers authority is a political animal. However, the politics
associated with a joint powers authority can be quite different because such an authority creates a
"blended family" in the governmental context — a new entity that brings together a mix of
I individual agencies with different agendas, goals, concems and cultures. Thus, in developing the
agreement, care must be taken to focus on the requirements and needs of the new entity to ensure .
its success. To the extent possible, this process calls for setting aside political differences,
I jealousies and competition, avoiding the tendency of participating agencies to protect their turf
and curbing any desire to dictate the outcome. In drafting the joint powers agreement, the
overall goal is to ensure that the newly created entity is given the level of authority required to
1 accomplish its purposes and a strong set of operating rules to enhance stability and survivability
during times of turmoil which can easily occur when member agencies are at,odds.
Joint Powers Agreements
The enabling legislation at Section 6500 et seq. specifies certain fundamental elements for ajoint •
1 powers agreement. These include the following:
1 Unless otherwise specified, all code section references shall be to the California Government Code.
1047140.1
.
29
•
• Purpose. The agreement must state the purpose of the authority or the power
to be exercised, and must provide the method by which this purpose or power
will be accomplished. (Section 6503). 4 •
• Financial Accountability. The agreement must provide strict accountability of el
all funds, receipts, and disbursements. To further this end, an annual audit of
the accounts and records of the entity must be performed by an independent
certified public accountant or a public officer designated as the NI
treasurer /auditor, unless the financial statements are already audited by the
State Controller to satisfy federal audit requirements. The cost of performing
this audit must be borne by the entity. The annual special audit may be
replaced by a two -year audit. These reports shall be filed within 12 months
after the end of the fiscal year or years under audit. (Section 6505).
Practice Tip Unless the income to the new joint powers authority is •
anticipated to be too small to justify the cost of an audit,
• it is prudent to call for an audit by an external CPA firm.
• Treasurer. The agreement must designate a treasurer for the entity, who may
be the treasurer of one of the contracting parties, the county treasurer of a II
county in which one of the parties is located, or a certified public accountant.
(Section 6505.5). Alternatively, the entity may appoint one of its officers or -
employees as treasurer or to a joint treasurer /auditor position. (Section
6505.6). The treasurer is the depository and has custody of all of the money •
. of the entity. The treasurer is also responsible for receipt and disbursement of /) I
said money, payment of all warrants and obligations of the entity, and
• financial reporting on at least a quarterly basis to the entity and the member
agencies.
Practice Tip This requirement is often overlooked or given short
shrift. In cases where the entity created is not large
enough to justify its own finance department-with a chief
• financial officer who can serve as the treasurer, the . ii
member agencies should think through how to fill the
• role of treasurer and describe it in the Agreement.
• Administration. The agreement shall specify the entity that will administer IP
and carry out the agreement. This may be (1) one or more of the member
agencies to the agreement, (2) a commission or board constituted pursuant to
the agreement; (3) an unrelated person, firm or corporation designated in the
agreement; or (4) a combination thereof. (Section 6506). Most of this paper
assumes that option (2) is pursued and discusses issues associated with the
• creation of a separate entity.
Practice Tip The manner in which the agreement and new entity will
be administered is critical to its success. Will it have the
resources to employ its own staff or will it need to rely
1
2 - 10471401
30 "
0 � 1
•
1
upon resources of member agencies? If the latter,
thought should be given to how this will be determined
(( i0 and achieved. Often the job of staffing the entity rotates
1 • between or is shared by the staffs of the member
agencies.
• Manner of Exercising Power. The agreement must designate the manner in
which the entity's powers will be exercised. This is accomplished by
identifying one of the member agencies by name whose procedures and
policies will serve as the basis for restricting and determining how the entity
I will exercise its powers.
I In making this designation, the parties should carefully consider their choices
against the backdrop of the entity's objectives. If a joint powers authority
consists of a mix of agencies with varying levels of power (i.e., cities or
I counties with special districts), the choice of a member agency for
determining the manner of exercising powers cannot serve to enhance the
substance of the powers to be jointly exercised beyond those that are shared
I by all member agencies. A safe approach is to select a member agency whose
overall powers represent the lowest common denominator but whose •
procedures and policies are comprehensive and up -to -date (i.e., identify a
1 general law city rather than a charter city ora special district rather than a
city). (Section 6509).
I Sometimes there will be advantages in relying on the procedural law.of a
l r``, charter city or a non -city entity, in which case the benefits may overcome the
risk of relying on unusual or unfamiliar procedures. For example, a charter
1 city might have more flexible purchasing authority. Since joint powers .
authorities typically don't meet very often, it can be helpful to have a more
- flexible manner for issuing checks and awarding contracts than can be used if
a general law city is designated.
Practice Tip It is a good idea to identify an alternate "parent"
1 agency to fill this role of providing the procedures to
follow should the agency named in the agreement
withdraw. This will eliminate the need to amend the
agreement at that time.
• Distribution of Assets. The agreement must provide for the disposition,
division or distribution of any acquired property of the JPA upon its
termination. (Section 6511). The agreement must provide that any surplus
I money retained after the completion of the entity's purpose shall be returned
to member agencies in proportion to the contributions made. (Section 6512).
This can.present interesting issues if the initial members of the entity will be
I paying substantial sums to construct a facility. If this is the case, the -
agreement should address what happens if an initial member withdraws prior
to dissolution of the entity. (See subsequent bullet on "Withdrawal").
3 _ 1047140.1
1 31
F
• Contract Participation Goals. If a joint powers authority includes a state -
agency or department, the joint powers authority must comply with certain
statutory requirements in the area of contract participation goals for business
enterprises owned by minorities, women and disabled veterans. (Section
6522).
In addition to the statutory requirements outlined above, joint powers agreements should address
. the following subjects.
• Governance of Entity. The agreement should set forth the governance
structure of the joint powers authority by establishing a governing board of
directors, designating the number and composition of the board members and
alternates, if appropriate, and how they are selected. If the agreement
designates a specified period for terms of directors, the agreement should also
specify the power or discretion of the appointing agencies to remove directors; .
otherwise, removal midterm may be a problem. Further, unless the agreement
requires the appointee to be a member of the goveming board of the member
agency making the appointment, loss of the member entity office does not
constitute removal from the authority unless the agreement so provides. In
cases where voting power may not be equally spread among member
agencies, the agreement must spell out voting rights and quorum rules. -
Practice Tips .,
. -'
1. The decisions as to who will sit on the governing board, act as J 0
alternates and assist in liaison roles are very significant. The
participation of elected officials or very high level management in -,
those positions is likely to lead to more commitment from the
member agencies, a broader level of knowledge and comfort with
the entity's decisions and, ultimately, more stability for the entity.
2. Be careful when crafting unusual rules regarding voting power,
quorums and the like, as these can create interpretative puzzles
under the Brown Act and other laws . of general application to local
governments. i
• Authority and Functions of the Entity. As specified in the enabling
legislation, joint powers authorities can make and enter into contracts, employ
agents and employees, acquire, construct, manage, maintain or operate any .,
building works or improvements, hold or dispose of property, incur debts,
liabilities or obligations, and sue and be sued. (Section 6508). The authority
that the new entity will require to succeed in carrying out its mission should
be outlined in the agreement.
Practice Tip Careful analysis and delineation of the entity's authority
are critical to ensure that the authority conveyed covers
all of the requisite powers to facilitate achievement of
4 1047140.1
32
1 .
the entity's stated purpose(s) and is intended to be
-. conveyed. Unless necessary to reach agreement among
0 the parties to the joint powers agreement, it is generally
I • better to provide broad and flexible powers in the
agreement and to rely on political controls to keep the
entity focused on its mission. Narrow powers or the
1 exclusion of important powers can prove very
problematic if they drive a need to amend the joint
powers agreement in the middle of the implementation of
1 an important program.
• Liability of Member Agencies. The agreement should clarify whether the
1 debts, liabilities, and obligations of the agency shall be the debts, liabilities •
-- and obligations of the parties to the agreement. (See subsequent discussion of
"Debts, Obligations and Liabilities of Joint Powers Authority" and related
1 Practice Tips.)
• Authority to Issue Revenue Bonds. This significant authority to issue revenue •
bonds, if specified in a joint powers agreement, permits the entity to issue
revenue bonds even if one or more of the member agencies does not have this
power individually. Thus, if the need for this authority is desired or
anticipated, the agreement should provide for the entity's authority to issue
revenue bonds, incorporating by reference the applicable requirements
' outlined in the statutory language in Section 6546, et seq., the Mello -Roos
1 (4 Local -Bond Pooling Act of 1985. The agreement should also state that the
revenue bonds and contracts or any obligations entered into to carry out the
I purpose of the bonds shall not constitute a debt, liability or obligation of any
of the member agencies who are parties to the agreement creating such entity.
(Sections 6546 and 6551). (See subsequent discussion under "Debt
I : Financing Authority. ")
Practice Tip If there is no need for the entity to have authority to
I . • issue revenue bonds, the automatic inclusion of this
power may present an obstacle to obtaining approval of
. the agreement from all intended member agencies.
1 • Other Debt Financing Authority. If desired or anticipated by the member
agencies, the agreement should address other debt financing authority of the
I; entity. A joint powers authority may issue bonds in order to purchase
obligations.of local agencies or make loans to local agencies, but the .
agreement must specify how_these obligations are repaid. An entity may also
. issue bonds in order to purchase or acquire, by sale, assignment, pledge, or .
1,.. other transfer, any or all right, title, and interest of any local agency in and to
the enforcement and collection of delinquent and uncollected property taxes,
I i assessments and other receivables placed for collection on property tax rolls.
i (Section 6516.6(a), (b)). •
/,
h
5 1047140.1
I
j 33
• Investment of Money. The agreement should acknowledge the entity's
entitlement to invest any money in the treasury that is not required for the 1
immediate necessities of the entity. (Section 6509.5).
•
• Privileees and Immunities. The agreement should provide, as contained in the
enabling legislation, that all privileges and immunities from liability,
exemptions from laws, ordinances and rules, and benefits that apply to
officers, agents or employees of a public agency shall apply to the same extent
when performing duties for. the entity. (Section 6513).
• Withdrawal of a Member Agency. Multi - member joint powers authorities .
must map out what happens when a member agency withdraws from the -
authority. These provisions should guard against (a) encouraging withdrawal
Pi
by making it easy and painless and (b) jeopardizing the survivability of the
entity upon withdrawal of an agency. These objectives are best accomplished
by eliminating — to the extent fairness and-politics allow — any financial return
or reimbursement to withdrawing agencies. On the other hand, if the PI
"marriage" is too permanent, it may not be possible to induce the parties to
agree in the first instance. One approach is to make withdrawal nominally .
easy, but to require the withdrawing party to make acceptable arrangements to
address its share of any outstanding obligations at the time of withdrawal. It
may also facilitate approval of the joint powers agreement by the intended I.
• member agencies if the agreement provides that each member agency will be
given notice prior to the entity incurring an obligation over a specified amount
and the ability to withdraw before the obligation is incurred. '. 10
Practice Tip This section must be drafted with great care, especially
in cases where a member agency contributes an asset of In
significant value, such as when facilities are to be built
on property owned by one of the member agencies. In
. • ApprovaUAmendment of Agreement. As is true of all contracts, the parties ,
must approve and execute the joint powers agreement and each copy of the
. agreement needs to be identical. (Section 6502, 6503). Obtaining approval of . IMI
identical versions of the agreement can sometimes be difficult to accomplish
since each member agency and its legal counsel may have its own ideas in
concerning the contents of the agreement. It is sometimes a good idea to have . OM
each legal counsel and legislative body approve the draft agreement in
concept before obtaining final approval. It is very frustrating to resubmit what
II
. was intended to be a final version of the agreement to a legislative body
•
because one of the member agencies insisted on a change, no matter how
insignificant. . IP
Logically, it would seem that if the principal contract requires approval by all
member agencies (and, likely, action by the legislative body of each), then I 1-
amendments to the agreement require such approval as well. The statute provides no basis to delegate the power to amend a joint powers agreement to
41- - • 6 1047140.1 1 34
less than all of the parties to the agreement or to representatives of the parties •
other than their legislative bodies. Moreover, the legal limitations on the
�i,ie) power of legislative bodies to delegate would also appear to require this.
I Yet this requirement may be very nearly impracticable when a joint powers
agreement has numerous parties. Many such agreements purport to authorize
amendment by some super- majority, but less than all, of the member agencies.
Others purport to authorize the governing board of the joint powers authority
to do so. One creative solution to this tension between the unanimous action
of legislative bodies that the statute and the common law of contracts seem to
require and the need to facilitate amendments is reflected in language that
provides that an amendment takes effect when approved by 2/3 of the
legislative bodies of the member agencies and any member agency which fails
to approve an amendment within thirty days of that time is deemed to have
withdrawn. While this seems an elegant solution, as discussed above, there
are very real problems associated with forced withdrawal, as well. •
This may be a problem best solved by legislation. The Depaitiuent may •
determine to seek an amendment to the statute to allow very large joint . i
powers authorities, perhaps restricted to those with more than a specified •
number of members, to include language authorizing amendments of the
. agreement by something less than unanimous action of the legislative bodies
of the member agencies.
•
Practice Tips •
1. The cumbersome amendment process underscores the value of
•
developing a comprehensive, carefully crafted joint powers
agreement at the outset. •
•
2. It is also necessary to send a notice of any amendment of a joint
powers agreement to the Secretary of State within 30 days of the
effective date of the amendment. This notice is extremely
important if the joint powers authority intends to issue bonds.
. Failing to file the amendment within the 30 -day period is not fatal,
however, as the bonds can be issued once the amendment is filed.
(Section 6503.5).
.Initial Formation Requirements /Considerations
• Notice to Secretary of State. Most often the contracting parties to a joint
powers authority intend to create a new government entity separate from any
of its member agencies. If the joint powers agreement creates such a separate
entity to administer the agreement, the new entity must file a notice containing
the name of each public agency that is a party to the agreement, the effective
date of the agreement, a statement of the agreement's purpose or the power to
,^ r be exercised, and a description of the amendment or amendments made to the
7 1047140.1
35
0
agreement, if any, with the. Secretary of State within 30 days after the
effective date of the agreement or any amendment thereof. If a JPA fails to
file the required notice that agency may not issue any bonds or incur debt.
(Section 6503.5). As noted above in the practice tips following the discussion
on amendments, a similar notice must be filed each time the joint powers ,
agreement is amended.
• Public Agency Roster. Although the notices described above are filed with IP
the Secretary of State, they ate not to be confused with the Secretary of State's
Roster of Public Agency Filing even though much the same information is
sought in each case. If the joint powers agreement creates a separate entity, it IP
is prudent also to file for the Roster of Public Agencies to ensure the full
benefits of the shorter statute of limitations for the filing of claims under the
IP
Government Tort Claims Act. (Section 53051).
• No Incompatibility of Office Concems. If the new governing board of the
IP
entity is comprised of members of the legislative boards of the member
agencies, such appointments do not present issues of incompatibility of office.
The California Attorney General issued an opinion in 1995 that there was no
issue of incompatible offices when members of a city council served 10
simultaneously as members of a joint powers authority in which the city
participated to operate an airport. (78 Ops.Cal.Atty.Gen. 60 (March 7, 1995)).
IP
This opinion contains a good discussion of the concept of incompatible offices
and the rationale for determining that the common law rule of incompatible
offices is inapplicable to joint powers agencies. 1: 1
• Bylaws/Rules. The board's formulation of bylaws or rules is extremely •
efficacious at the outset as the new entity struggles for identity and stability. IP
These rules should set forth procedures and expectations governing meetings,
board officers, committees and similar subjects.
pp
• Conflict of Interest Code. The new entity should approve a conflict of interest
code at the earliest possible time and file it with the county if all member
' agencies are located in the same county, or with the Fair Political Practices
Commission if one or more member agencies cross county lines. Effective i ,
January 1, 2003, the Political Reform Act now requires that board members of
a new entity file disclosure statements even in advance of the entity's adoption IP
of a conflict of interest code. (Section 87302.6; 2 Cal.Code of Regs. § 18754).
Il
CRITICAL ISSUES IN REL BETWEEN
JOINT POWERS AUTHORITY AND ITS MEMBER AGENCIES
Debt Financing Authority
The enabling legislation confers the power of, and details the requirements for, a joint powers J
authority to issue revenue bonds exercising the authority described in Article 2 (Section 6540 et
seq.). The allowable purposes for the issuance of revenue bonds include paying the cost and
8 1047140.1
36 -
1 •
expenses of acquiring or constructing a project, or conducting a program for such purposes as: an
exhibition, a coliseum, stadium, or sports pavilion, a public building, a regional or local public •
i `- park, an electrical energy facility, a hazardous waste or toxic substances treatment or disposal
facility, local streets, roads, and bridges, facilities for the production, storage, or treatment of
water or waste water, mass transit facilities, public works facilities, public health facilities,
criminal justice facilities, public Libraries, etc. (Section 6546). Thus, if the JPA or its members
have the power to acquire, construct, maintain, or operate one or more of the specified projects,
revenue bonds may be issued. These bonds may be issued to provide all or part of the needed
funding for the acquisition, construction and financing of the project, including incidental
expenses such as legal fees and bond interest. However, the bond proceeds may only be used for
the project that supported the bond issuance. (Section 6548).
The ability of a joint powers authority to employ debt financing is a significant and attractive
tool for three reasons. First, the power of a joint powers authority to issue revenue bonds is
additional to the powers common to the parties to the joint powers agreement. (Section 6547).
1 A joint powers authority may issue revenue bonds even if one or more of its member agencies
does not possess that power individually. As the California Supreme Court articulated in Rider
v. City of San Diego, (1998)18 Cal. 4th 1035, 1051, this power "does not derive from any power
1 of the contracting parties to issue bonds," but rather from state law.
Second, the Rider Court further reasoned that a joint powers authority is "not subject to any of
the restrictions that would apply to the contracting parties" when issuing bonds pursuant to the
legislation. Thus, in a challenge to the issuance of bonds to construct improvements to a
convention center owned by the joint powers authority and operated by a member city, the Rider
Court held that voter approval requirements "that would apply if the city issued the bonds do not,
by their terms, apply to the debts of a joint powers agency." The Court reasoned that because the
power to issue bonds is an additional power conferred by,legislation, the joint powers authority
was not subject to the state constitutional provision requiring cities to obtain a two- thirds vote
before incurring indebtedness in excess of annual income and revenue.
Third, the enabling legislation expressly provides that the revenue bonds issued by the entity, as
well as contracts or obligations entered into to carry out the purposes for which the bonds are
issued, does not constitute a debt, liability or obligation of any of the member agencies to the
joint powers agreement. (Section 6551). Thus, the member agencies to a joint powers authority
have statutory protection from liability of the entity arising out of a revenue bond issuance. -
1 Prior to a bond issuance, however, each member agency to the joint powers authority which
contracts to make payments to be applied to the payment of the bonds or instruments of
indebtedness must enact an authorization ordinance, pursuant to Section 6547. This ordinance
must describe "in general terms the project, or projects, to be funded by the revenue bonds, the
maximum amount of the bonds proposed to be issued, and the anticipated sources of revenue to
redeem the bonds." A separate authorization is required for each proposed bond issue. Specific
I 'rules attach to different types of projects. If a member agency does not have the statutory power
to enact an ordinance (as is true of school districts and some other special districts), Section
. 6547.2 empowers the governing body of the agency to enact the ordinance by a majority vote of
its members. Notice of enactment of the ordinance must be published within 15 days of adoption
to facilitate a referendum process.
1
9 1047140.1
•
37
Debts, Obligations and Liabilities of Joint Powers Authorities
In contrast to the manner in which the enabling legislation expressly insulates member agencies I
from obligations of a joint powers authority related to the issuance of revenue bonds, the
• legislation specifies that member agencies are jointly and individually liable for all other
obligations and liabilities unless the joint powers agreement provides differently. Section 6508.1
. states:
[T]he debts, liabilities, and obligations of the agency shall be
debts, liabilities, and obligations of the parties to the agreement,
unless the agreement specifies otherwise. A party to the agreement II
may separately contract for, or assume responsibility for, specific
debts, liabilities, or obligations of the agency. (Emphasis added).
Section 6508.1, enacted in 1968, arguably conflicts with Sections 895.2 and 895.4 in the
Government Tort Claims Act, which sections were enacted in 1963. The relevant portions of
• Section 895.2 states that: IP
Whenever any public entities enter into an agreement, they are
jointly and severally liable upon any liability which is imposed by
any law other than this chapter upon any one of the entities or upon
any entity created by the agreement for injury caused by a
•
negligent or wrongful act or omission occurring in the
' performance of such agreement. (Emphasis added). -
The Law Revision Commission Comments observe that this section makes member agencies to a
joint powers authority jointly and severally liable to the injured party for any torts that may occur
in the performance of the agreement for which any one of the entities, or an entity created by the
PI
agreement, is otherwise made liable by law. (4 CaI.L.Rev.Committee.Reports 801 (1963)).
Section 895.4 then clarifies that as part of a joint powers agreement; member agencies "may
1.
provide for contribution or indemnification by any or all of the public entities that are parties to
the agreement upon any liability arising out of the performance of the agreement." The Law
Revision Commission Comments point out that Section 895.4 allows public entities in a joint
IP
powers authority to allocate financial responsibility among themselves "in whatever manner
seems most desirable to them." (4 Cal.L.Rev.Cotnm. Reports 801 (1963)). They further state
that Section 895.4 "does not affect the right of the injured person to recover the full amount of
his damages from any one of the public entities under Section 895.2." (Emphasis added). (Id.)
When Section 895 et seq. was enacted, it seems clear that the Legislature intended for member
I agencies to be liable for torts of a joint powers authority. According to accepted principles of
statutory construction, a later statute should "trump" an earlier one on the same subject. This
would lead to the conclusion that, despite Section 895 et seq., member agencies can shield
themselves from tort liability by the language of a joint powers agreement so specifying because
Section 6508.1 was enacted subsequent to Section 895 et seq. However, recent case law offers •
the first glimpse of how the courts may address this statutory inconsistency, drawing the
II
i
10 1047140.1
1
38
distinction that clear language in a joint powers agreement can protect member agencies from
contractual liability, but not from tort liability.
[ 76 In Tucker Land Co. v. State of California, (2001)114 Cal. App. 4th 1191, review denied March
13, 2002, the Second District Court of Appeal affirmed that the constituents of Mountains
Recreation and Conservation Authority ( "MRCA "), a Los Angeles -area open space joint powers
agency, were not jointly and individually liable for the contractual obligations of that joint
powers authority pursuant to the language and intent of the joint powers agreement.
Tucker Land Co. ( "Tucker ") entered into a contract in 1992 to sell to the MRCA land that was
then the subject of pending litigation. Tucker tendered the note and deed of trust to MRCA after
. prevailing in the litigation over the parcel of land. However, the MRCA in the interim had
purchased the property from the bankruptcy trustee for a much lower price and subsequently
filed a rescission action against Tucker claiming failure to resolve the litigation in a timely
manner. Tucker cross - complained for anticipatory breach and the court held in favor of Tucker,
which was affirmed on appeal. Since MRCA refused to pay, Tucker sought a writ of mandate
ordering payment of the judgment. In addition to the writ of mandate, Tucker also an
action seeking a declaration that the constituent members of the MRCA are jointly and
individually liable for the obligations of the MRCA. Tucker did not prevail in the lower court
proceedings. In appeal, Tucker contended that the Legislature intended that governmental
entities forming a JPA be separately liable for the obligations of the JPA, or alternately liable
under the "alter ego" theory. (Id. at 1196). The court affirmed the lower court's decision in
favor of the member agencies.
Section 15 of the MRCA Agreement stated that "no debt, liability, contract, obligation,
� employee, or agent of the Authority or the Governing Board shall be or constitute thereby a debt,
liability, contract, obligation, employee, or agent of the parties or any of them" and "[n]o action
or omission of the parties or any of them shall be attributable to the Conservancy or the Districts,
i.e., the member agencies, except as expressly provided in Section 13 of this Agreement [relating
to tort liability]." (Id. at 1194). Thus, the agreement expressly protected constituent members -
from liability that may otherwise flow from MRCA's liability pursuant to Section 5608.1.
Tucker argued legislative intent to hold member agencies responsible for the liability of a joint
powers authority based upon Sections 895 and 895.2 in the Government Tort Claims Act, and
Section 970.8, which requires local public entities to have sufficient funds with which to pay
judgments. The court reasoned that Sections 895.2 and 895.4 make clear that the Legislature
. intended that member entities of a joint powers authority be liable for the torts of the authority,
but was not convinced that these sections necessarily reflect legislative intent that member
entities are also liable for contractual obligations of the joint powers authority. As the court
noted, the "primary issue presented in this appeal is whether the constituent members of a Joint
Powers Agency ... are liable for the contractual obligations of the JPA, where the joint powers
agreement specifies that they are not and does not provide for liability other than that of the
JPA." (Id. at 1193). The court based its holding on a plain meaning interpretation of Section
6805.1, reasoning that because "the agreement specified otherwise," the member agencies were
not liable for the contractual obligations of the joint powers authority. 11 .7140
39 •
^;
The Tucker case is the only judicial statement thus far as to the liability relationship between
joint powers authorities and their member agencies. This decision offers comfort that member
agencies can protect against the contractual debts, liabilities and obligations of a joint powers •'
authority through clear language in the agreement to that effect. The question remains whether
the same holds true for to related liabilities and obligations.
Practice Tips . .
1. Include broad language in the joint powers agreement to Section
6508.1 to cover insulation of member agencies from the debts,
liabilities and obligations whether they sound in tort, contract or .
otherwise. -
r.
• 2. Consider the inclusion of an indemnification running from the joint
powers authority to the member agencies, but draft the provision
carefully and narrowly to ensure that the joint powers authority's .
obligation is limited to claims and suits arising from its
•
. performance of activities and its exercise of powers only. The
indemnity obligation should not extend to cover the actions of
member agencies. -
•
3. Consider naming the member agencies as additional insureds for
the commercial general and automobile liability policies of the
joint powers authority.
.
•
Delegation of Land Use Authority •
When drafting a joint powers agreement, particular care must be taken regarding the language.
delegating land use authority to the joint powers authority. If member agencies wish, they may
delegate such authority to the joint powers authority, but in doing so, they must understand that
they have ceded control to the newly created separate entity. This delegation extends to "any
power coon to the member agencies" z including the power of eminent domain. Burbank,
Glendale, Pasadena Airport Authority v. Robert R. Hensler, (2000) 83 Cal.App.4 556,99
Cal.Rptr.2d 729. -
. In Hensler, the City Councils of Burbank, Glendale and Pasadena formed an airport authority to
acquire and operate the Burbank Airport (Airport Authority). Mr, Hensler owned a construction
- company located adjacent to the airport's western boundary. The airport authority began
condemnation proceedings and Mr. Hensler objected, arguing that the airport authority had no
power to exercise eminent domain. The Court of Appeals ruled that a joint powers authority
may, given the correct language in the joint powers agreement, exercise eminent domain
authority delegated to it by the member agencies.
2 Section 6502
o
• to 1047140A
40
Section 37350.5 grants broad eminent domain power to a city to acquire by eminent domain any .
I property necessary to carry out its powers or functions.' Section 6502 authorizes cities, acting
f r ' \ together, to exercise eminent domain powers jointly. It,provides "if authorized by their
I legislative or other governing bodies, two or more public agencies by agreement may jointly
exercise any power common to the contracting parties." It is not necessary that any power .
common to the contracting parties be by each contracting party with respect to the
geographical area in which such power is to be jointly exercised. Because Section 6500 defines
• cities as public agencies and Section 6508 authorizes separate public entities to acquire property
and to sue and be sued in their own names, the court reasoned that cities could create a joint
I powers agency and delegate eminent domain authority to it, provided the appropriate delegation
language is included in the joint powers agreement.
1 In Hensler, the joint powers agreement indicated that the individual member cities were entering
into the Airport Authority joint powers agreement for the purpose of "acquiring, operating,
repairing, maintaining, improving, and administering the Burbank Airport." The joint powers .
1 agreement recited that it was made pursuant to the provisions of Article I, Chapter 5, Division 7,
Title 1 of the Government Code (Government Code Section 6500 et seq.) and declared that the
parties had created a public entity, the airport authority, that was separate and apart from the
1 parties. The agreement further stated that "each of the [p]arties has the powers necessary to
accomplish the purposes of this Agreement. The foregoing purposes shall be accomplished and
the common powers exercised in the manner hereinafter set forth." .
The Powers and Duties section of the Airport Authority joint powers agreement provided: •
_ "[T]he Authority is authorized to do all. acts necessary or convenient to the exercise of the
1 aforementioned powers, including, but not limited to, the following ... to acquire real or personal
t `� property including, without limitation, by purchase, lease, gift, bequest, devise, or the exercise of
the power of eminent domain pursuant to California Govemment Code Sections 6502, 37350.5
• 1 and 50470 (other than by the purchase of fee title to condemned real property zoned for
. residential uses ...)" (Emphasis added.)
The Airport Authority joint powers agreement further stated, "It is intended that the Authority
will proceed to do all acts necessary or desirable to accomplish the purposes of this Agreement.
Such acts may, but need not necessarily include, all or part of the following ... (g) Conducting
any necessary or desirable studies to determine whether any development, repair, improvement,
renovation or reconfiguration of the Airport Facility should be undertaken and causing any such
development, repair, improvement, renovation or reconfiguration and any acquisition of property
by purchase, lease, gift, bequest, devise or exercise of the power of eminent domain pursuant to
• - California Government Code Section 6502, 37350.5 and 50470..." (Emphasis added.)
Because Hensler involved acquisition for an airport, the court analyzed Government Code Section
50470 which specifically grants a city the power to acquire property by condemnation for use as an
airport and Code of Civil Procedure Section 1240.125 which specifically authorizes a local public entity
to "acquire property by eminent domain outside its territorial limits for ... airports ... if it is authorised to
acquire property by eminent domain for the purposes for which the property is to be acquired." (83
((�� Cal.App.4 at 562) -
-
13 1047140.1
^ 41
Practice Tip It is important in drafting the joint powers authority
agreement to think carefully about the extent of
authority each of the members intends to delegate. The . 1'
joint powers authority may not, in all instances, exercise `{
its land use powers in a manner that pleases each
member agency: Because land use decisions can be
controversial, it is important that the member agencies :'
. be advised, at the time of adopting the joint powers . •
agreement, that these provisions may affect local zoning
regulations and limit options of member agencies to
complain if the land use decisions of the joint powers
authority are objectionable to individual member
agencies. -
ADVISING THE JOINT POWERS AUTHORITY ,
• Once created, the joint powers authority is a separate legal entity. Counsel for the joint powers
authority will be required to advise its board and staff on. all legal issues which arise during the
authority's life. This position presents unique challenges for counsel because of the potential for
miscommunication and conflicts between the member agencies, between each member agency •
and its representative.to the board and between counsel for the joint powers authority and
counsel for the member agencies. . .
Two of the most challenging issues faced by attorneys for the joint powers authority are those
presented by the Brown Act, Section 54950, et seq., and potential conflicts o f interest.
Especially problematic are potential Section 1090 violations. Effective communication on these
issues, both with the member agencies' representatives and the member agencies' legal counsels,
is important to avoid situations in which someone is left out of the information loop,
inadequately prepared to act on issues before the agency or receives conflicting legal advice from
the joint powers authority's counsel and member agency's counsel.
Practice Tip In addition to the questions and concerns regarding .
miscommunication and conflicts between member
agencies, their representative to the joint powers
. authority board and member agencies' counsel, the joint
powers authority's attorney must take care to avoid
creating his/her own problematic issues regarding .
Section 1090 and incompatible offices. To avoid the
problem of an incompatible office, it is important to
include in the joint powers agreement, authorization for
counsel to one or more of the member agencies to serve
as counsel to the joint powers authority. This will not, of
course, obviate the need to comply with joint •
representation conflicts provisions of the Rules of
Professional Conduct, or the conflict of interest statutes.
. (See discussion of Section 1090 Considerations)
14 1047140.1
42
Brown Act Considerations
/17 As a separate legal entity, the joint powers authority will be required to comply with the Brown
. - Act, Section 54950, et seq. As such, it is required to conduct its business in public unless a
situation arises which would justify meeting in closed session. If closed sessions are
contemplated, great care should be taken to ensure that the matter to be discussed qualifies for
I closed session. .
During the life of a joint powers authority, there may be times when individual member agencies
I will be at odds with one another. While the joint powers agreement must contain provisions for
dispute resolution, withdrawal of individual members and/or termination of the joint powers
authority, the joint powers authority's attorney may be called on to advise when and how the
board can discuss these options, who can be present for those discussions and whether they may
I occur in closed session.
I If the dispute between member agencies poses a threat of litigation, a closed session may be
called. When this occurs, there may be a need to exclude representatives from the member
agency involved in the dispute with the joint powers authority. While there is no specific
I reported case on point which allows for exclusion of a member representative of the joint powers
authority board, there is authority to exclude a council member from a closed session when that
council member has taken a position which is adverse to her city and to deny access to closed
I session notes by a council member who is excluded from the closed session due to a financial
conflict of interest. These cases may be relied upon as authority to exclude a joint powers
authority representative from a closed session, DeGrassi v. City of Glendora, (1999) 207 F.3d
I 636 and to deny excluded members access to closed session material and records. Hamilton v. ,
\ `' Los Gatos, ( 1989) 213 Cal.App.3d 1050. \ _ .
1 In DeGrassi, a member of the Glendora City Council sought indemnity for attorneys' fees and
damages from city officials and private parties for alleged civil rights violations. The 9 Circuit
Court of Appeals held that exclusion from a closed session called to discuss her request for a
1 defense was appropriate although it did infringe upon Ms. DeGrassi's First Amendment speech
rights. In authorizing exclusion of an elected representative, the court balanced the need for a
public entity to engage in frank and open communication with its legal counsel versus a public
I official's right to free speech pursuant to the First Amendment. The court held that Ms.
DeGrassi was properly excluded from the closed session because of her status as a potential
I litigant, not because of her viewpoint. In so holding, the court cited to Pickering v. Board of
Education, (1968) 391 U.S. 563, 570, 88 Sup. Ct. 1731, 20 L.Ed.2d 811, finding a sufficiently
great interest in confidentiality overrides a public employee's First Amendment Rights. The
court determined that the exclusion of a public official from a closed session presented only a
"minor intrusion" on the right to speak because the public official still retains a right to speak out
in public or directly with other members of the council.
1 DeGrassi also asserted that as a public official, she possessed First Amendment rights that were
independent of those as a citizen. The court acknowledged that restrictions on council
member's attendance at meetings or limitations on the opportunity to address matters of public
I concern might infringe upon a public official's First Amendment right to "uninhibited, robust
and wide open debate on public issues" but DeGrassi's issues were "essentially self interested
15 1047140.1
1 43
1
4 uhf v ,"4 -AO k4`. n v ;ax k .1.� , !'''A k . r `, , - a y . . - - - .. • _
with no public import," and therefore not a matter of public concem. See Roe v. City and County
of San Francisco (9 Cir. 1997) 109 F.3d 578, 584 -85, and Connick v. Meyer (1983) 461 U.S.
138, 103 Sup. Ct. 1684, 75 L.Ed.2d 708. Because DeGrassi's,speech did not relate to issues of
policy or to any matter of political, social or other concern to the community; exclusion from the
closed session was appropriate.
While DeGrassi involved First Amendment questions, the issue of access per the Brown Act was
discussed in Hamilton. Robert Hamilton excused himself from a closed session at which the
Town Council discussed pending and anticipated litigation regarding a downtown parking
assessment district. Councilmember Hamilton owned property within the district and so recused
himself from the closed session. After the closed session, he requested copies of the closed
session tape. The Town refused and he filed a writ. ,The trial court held that Hamilton had, due
to his conflict and recusal, no greater right to closed session material than any member of the
public. The Court of Appeal agreed. In denying access to the material, the court reasoned:
"To permit a financially interested council member to be privy,
unnecessarily, to confidential information which might affect his
business interests gives the appearance of impropriety. In our
society, information is power. The council member might use the •
confidential information to his advantage personally, or he might
disclose the information improperly to others interested in the
decision. Furthermore, the disqualified member's mere presence,
or knowledge thereafter, might also subtly influence the decisions !�
of other council members who must maintain an ongoing
relationship with him." (213 Cal.App.3d. at 1058.)
Practice Tip While these cases involve a city council member
excluded from a closed session and denied access to
related materials, they stand for the proposition that a
member of a governing board who has taken a legal
position which is adverse to the authority on behalf of
his/her member agency, may be excluded from a closed
session and denied access to material when discussion
of the dispute with the member agency is undertaken.
Exclusion of representatives from these member PI
agencies is essential to allow for an open and frank
discussion of the issues and potential exposure of the
•
joint powers authority to litigation.
Joint Powers Authority Board Members Fiduciary Duty to the Authority
Pi
During the life of a joint powers authority, its board will be called on to discuss and adopt
programs that may not be advantageous to all member agencies, but which are necessary for the
operation of the joint powers authority. The joint powers authority's attorney may be called on
to remind the member agency representatives, especially during these times, that they have a
fiduciary duty to the joint powers authority. In this circumstance, if a representative heeds this
16 1047140.1
44
•
advice and votes his/her conscience, will that vote be valid and binding when it does not comport
with the direction given to the representative by his/her member agency? The answer is "yes."
. "o Board members of a joint powers author ty may cast votes which are inconsistent with positions
• taken by the agencies they represent on the joint powers authority board. This precise situation
arose and was addressed by the California Attomey General in Opinion No. 00 -708, issued ,
December 8, 2002. In that instance, the County of Ventura and the cities of Ojai, Oxnard, Port
• Hueneme and San Buenaventura formed a joint powers authority known as the South Coast Area
Transit (SCAT). One of the city representatives on the SCAT board voted to approve •
expenditure of funds despite the fact that this expenditure was inconsistent with the position
taken by that member's city council. In concluding that the vote was valid, the Attomey General
indicated that Section 6500 -6599 authorizes establishment of a joint powers agreement to create
a separate entity responsible for the administration of the joint powers agreement. nt. The
Whi the li
powers authority board sits as a separate and distinct public agency governing
SCAT board member's own city council had taken.a different position on the proposed
expenditure, that decision did not, in any way, -limit the ability /discretion of the joint powers
• authority board member to cast his vote because the Joint Exercise of Powers Act does not
contain provisions which require appointed members to vote as directed by their city councils..
In reaching this conclusion, the Attorney General cited Harbach v. El Pueblo de Los Angeles,
etc. Corn. (1971) 14 Cal.App.3d 828, 834 in which the court held that a joint powers agency
board member was entitled to exercise discretion in voting in a manner similar to that of his or •
her city council. .
The opinion noted that generally, a director of a joint powers authority will vote in accordance
with the position taken by his or her appointing agency, but in the instance where a board
'' member fails to do so, it is left up to the appointing power to "ensure compliance with its o
wishes." While a contrary vote may result in removal of the joint powers authority board
member by the original appointing authority, it will not affect the validity of the vote itself.
Practice ii2 This Attorney General opinion has implications which
should be considered in drafting the joint powers
agreement. In the SCAT agreement, appointments to.
the joint powers authority board of directors were "at
the pleasure" of the member's city council. The
member agencies' city councils were therefore left with
complete control over timing of the appointment and
I - removal of each of their representatives to the joint _
powers authority board of directors. While this type of
appointment /removal provision is common in joint
powers agreements, a provision that allows for removal "
at only specific times or for specific reasons may
provide more stability for the authority board and
ability of individual board members to appropriately
exercise their fiduciary duties when voting on joint
1 . powers authority programs.
17 1047140.1
45
I •
.
Section 1090 Considerations ,
Some of the most intellectually challenging issues faced by joint powers authority attorneys arise 4
when conflict of interest concerns are expressed. Caution must be exercised to adequately assess
all potential statutory and common law conflicts when these questions are posed to counsel.
While this paper does not contain an exhaustive discussion of conflict of interest issues, a general
discussion of Section 1090 is included because a joint powers authority presents fertile ground
for these conflicts for board members and counsel. _
Section 1090 is the common law conflict of interest standard which prohibits self dealing by
public officials. Section 1090 prohibits public officials or employees from having financial
interests in contracts made by them or any governing board on which they sit. See Berca
v. Woodland (1899) 125 Cal.App. 19, 57 P. 777. Section 1090 covers board members, officers, -
employees and consultants of a public entity and applies to conduct of a public official in the
making of a contract, including preliminary discussions, negotiations, compromises, reasoning,
planning, drawing of plans and specifications and solicitation for bids. Millbrae Association for
Residential Survival v. City of Millbrae (1968) 262 Cal.App.2d 222, 69 Cal.Rptr. 251.
Section 1090 applies to a joint powers authority in two situations. First, if a joint powers
authority board member is financially interested in a proposed contract, the joint powers
authority may not enter into the contract regardless of whether or not the member representative
participates in or abstains from the actual decision. Thompson v. Call (1985) 38 Cal.3d 666, 649,
214 Cal.Rptr. 139, cert. denied (1986) 474 U.S. 1057, 106 S.Ct. 796. Second, if a joint powers
authority employee has a financial interest in a proposed contract with the joint powers authority,
the authority may not enter into the contract if that employee's responsibilities are germane to t, .
the formation of the contract. Frasier- YamorAgency, Inc. v. County of Del Norte (1977) 68
Ca1.App.3d.201, 137 Cal.Rptr. 82, Cal. Opinions of the Attorney General 126, 129 (1999). If the
joint powers authority enters into a contract in which a member representative or employee with
relevant responsibilities has a fmancial interest, the contract is void. Per Section 1092, the joint
powers authority employee and board representative may be prosecuted both civilly and
criminally for violation of Section 1090. 1
Section 1090 applies whether the financial interest of the member representative or employee is
direct or indirect. People v. Deysher (1934) 2 Ca1.2d 141, 146, 40 P.2d 259. But remote I
interests in a contract do not create a conflict if the member representative or employee discloses
his or her financial interests, abstains from influencing or attempting to influence members of the
authority body in the making of the contract and the authority board authorizes the contract in
good faith by a sufficient vote gathered without counting the vote of the party with the remote
interest. Section 1091. Further, the act provides that there are certain non- interests as �
enumerated in Government Code Section 1091.1.
When Section 1090 has been violated, serious penalties may be imposed. The maximum fine for I �
a willful violation is a felony conviction and a fine of $1,000 or imprisonment in state prison.
Additionally, the official is forever disqualified from holding any office in the state. See Section
. 1097. A violation of Section 1090 is subject to a three -year statute of limitations, which is tolled
until the violation is discovered. California Penal Code Section 801, 803(c).
. �
18 1047140.1
46
The analysis required by counsel when a potential Section 1090 issue arises is critical and often
brought to the attomey's attention at the last minute. When representing a joint powers
10 authority, Section 1090 questions present complicated fact pattems to be puzzled through, since
the joint powers authority board members and employees may also sit on the legislative body of
or be employed by one of the member entities. The California Attorney General has issued two
opinions in the last three years regarding potential Section 1090 violations by members of
governing boards of joint powers authorities. These opinions are instructive for authority
counsel in providing Section 1090 advice.
In an opinion issued on March 3, 2002, the Attorney General opined that a city council could
.._ lawfully enter into a development agreement with a joint powers authority where one of the
city's planning commissioners advised the city council with respect to the terms of the
development agreement and that commissioner's spouse served as the city's representative on .
the joint powers authority. (85 Ops.Cal.Atty.Gen. 34 (March 6, 2002)).
The city council in that instance intended to enter into a development agreement with a joint
powers authority pursuant to Section 65864- 65869.5 to expand its airport. -The Attorney General
opined that the city council could execute the agreement under these circumstances without
■ concern for Section 1090 even though development agreements would fall within the terms of
Section 1090 and the planning commissioner's advice would fall within the definition of
"making of the contract." No Section 1090 problem existed because there was no. "requisite
1 financial interest" on the part of the city's planning commissioner who received no compensation
for serving on the planning commission. The Attomey General additionally noted that the
commissioner spouse was compensated as the city's representative on the goveming board of
«
G` ` the joint powers authority, but there was "simply no financial interest" in the underlying
�
development agreement by either spouse. The only compensation received by the spouse was
for representing the city's interests on the joint powers board. Because both spouses had been
appointed by the city to "further the best interests of the city," there was no "private gain" to be
realized by either that would cause the planning commissioner to have "divided loyalties" in
rendering advice to the city council.
On May 3, 2002, the Califomia Attorney General issued a second opinion regarding joint powers
authorities and 1090 issues (85 Ops.Cal.Atty.Gen. 87 (May 3, 2002)). The cities of Burbank,
Glendale and La Canada- Flintridge entered into a joint powers agreement creating the Verdugo
Workforce Investment Board (hereinafter WIB). The purpose of the WEB was to administer a
federal program providing job training services in the member cities. The joint powers
agreement provided that Glendale's employees would manage the service provided by the WIB.
The city manager for Glendale was authorized to execute all WIB contracts with private vendors.
A newly elected member of the Glendale city council had, prior to his election, contracted with
' and provided services to the WIB. The question asked of the Attorney General was whether or
not the WIB could continue to contract with this newly elected city council member, given his
' official relationship with the Burbank City Manager. The Attorney General concluded that it
could. In so finding, the Attorney General opined that the purpose of 1090 was to "remove or
limit the possibility of any personal influence, either directly or indirectly, which might bear
upon an official's decision, as well as to void contracts which are actually obtained through fraud
or dishonest conduct." In this instance, the new contract would not be "made" by the city
council member in his official capacity but rather only in his private capacity because the city
I
19 1047140.1 -
1 47
{
council did not review, consider, approve, administer or monitor the performance of any WIB •
contract. The city council would not be involved in attempting to influence the WEB in any way
concerning the development, negotiation, execution or performance of the contract. In light of 4)
' this, the -Attorney General found that the proposed contract would not be "made" by the city
council for the purposes of Government Code Section 1090. The result, of course, would not be
the same if this councilmember were selected by the Burbank City Council to represent that city
on the WEB.
The Attorney General rejected the argument that the joint powers authority contracts were made
by the city council because the Glendale city manager executed them. The joint powers
agreement gave the city manager the power and ability to execute the WIB's contracts. The
WIB Board approved those contracts and therefore the city manager's execution of the contracts
was a ministerial act on behalf of the WEB, not the city council. The Attorney General found 1
support for this determination in reviewing two prior opinions. In 57 Ops.Cal.Atty.Gen. 458
(September 17, 1974), the Attorney General had earlier concluded that a county purchasing agent
with independent authority to enter into contracts could execute a contract with a county
Supervisor for goods or services without violating 1090 since the board of supervisors would not
be participating in the making of the contract. In 21 Ops.Cal.Atty.Gen. 90 (March 4, 1953), the
'Attorney General concluded that a city treasurer could deposit funds in a bank in which the city
council member was a stockholder and director. The Attorney General indicated that the
significant fact in each of these situations was the independent status of the party contracting on
behalf of the governmental agency.
As these opinions demonstrate, a careful review of the specific facts presented to the joint
powers authority attorney is absolutely essential when Section 1090 issues arise.]
As indicated earlier, potential problems regarding Section 1090 are not limited to joint powers
authority board members. Caution should also be exercised in this area by joint powers authority
employees, including counsel.
In September 2002, the Fifth District Court of Appeal issued the opinion in People v. Gnass
(2002) 101 Cal.App.4 1271 regarding a Section 1090 violation by an attorney for a joint powers
authority. This case should be reviewed carefully by attorneys representing joint powers
authorities, especially if counsel also represents one of the member agencies.
Gnass involved a grand jury indictment of a city attomey for alleged violations of Section 1090
arising from his-participation as counsel for a joint powers authority. Gnass was a contract city
attorney. In 1990, his city entered into a joint powers agreement with its own redevelopment
agency to create a Public Financing Authority with power to issue bonds to fund capital
_, improvement projects within the city. Several years later, the city was approached with an offer
to participate in the formation of a new joint powers authority to issue Mello -Roos pooled bonds II
under the Government Code provisions cited above. The city's Public Financing Authority
eventually participated in six new joint powers authorities formed to issue Mello -Roos pooled
bonds. City Attorney Gnass served as counsel for the city's Public Financing Authority and as
' disclosure counsel for each of the Mello-Roos joint powers authorities. These were so- called
"roving" Mello -Roos bond pools which funded programs unrelated to the agencies which had
formed the JPA and, in some cases involved questionable real estate ventures hundreds of miles Q
PI
20 1047140.1
48 P.
1
from the member agencies. The member agencies formed the joint powers authorities solely for
the administrative fees paid to them in conjunction with the issuance of debt. In his role as
Mello -Roos disclosure counsel, Gnass received S185,000 and his law firm received an additional
$58,750. The city's Public Financing Authority received between $500- 800,000 for its
• participation in the Mello -Roos joint powers authorities.
A ten -count indictment was issued alleging that Gnass violated Section 1090 because he had a
financial interest in a contract made in his official capacity. The district attorney argued that
Gnass used his position as city attomey to convince the city's Public Financing Authority to
enter into the agreements for the Mello -Roos joint powers authorities, and then to hire him to act
as disclosure counsel on the bond issues.
I While the appellate court ultimately upheld the dismissal of the indictments because improper
instructions were given, the case contains a detailed discussion of the analysis to be employed
when determining whether or not a public official has violated Section 1090. This analysis is
instructive for counsel who may be called on to advise joint powers authority board members or
staff whether a Section 1090 problem exists.
The first question asked by the court was whether or not the city attorney was acting in his
official capacity when he advised the city's Public Financing Authority with regard to the Mello -
Roos joint powers agreements. The court concluded that he was acting in his official capacity
1 when rendering this advice.
The second question asked by the court was whether or not Gnass had "made" the joint powers
I 7y,
�� agreements. The court noted that preliminary discussions, negotiations, compromises, reasoning,
1 �
planning, drawing of plans and specifications and solicitation of bids are all part of the making of
a contract for purposes of Section 1090. Having made this determination, the court concluded
1 that Gnass was in a position to exert "considerable influence" over the decisions of the city's
Public Financing Authority to join the Mello -Roos joint powers authorities and that he probably
did exert his influence. The court further concluded that this would have been consistent with
1 his role as the city's Public Financing Authority attorney and did not in and of itself necessarily
"import an improper motive on his part."
1 The third question asked by the court was whether or not Gnass was financially interested in the
joint powers agreements. In analyzing the evidence in this regard, the court noted that the
certainty of a financial gain is not necessary to create a conflict of interest. The purpose of
1 Section 1090 is to remove or limit the possibility of any personal influence, either directly or
indirectly, which might bear on the official's decision. Forbidden interests extend to
I "expectations of benefit by express or implied agreement and may be inferred from the
circumstances." (Id. at. 326) Applying this reasoning, the court found that it was reasonable to
conclude that Gnass had a financial interest in the joint powers agreements. The court found that
even if there was no understanding, that he would eventually be hired as disclosure counsel for
the Mello -Roos joint powers authorities, or could be if he wanted the job, he might have been
"tempted to foster that possibility by ingratiating himself with whomever would be making the
decision."
•
•
21 1047140.1
49
.
Having concluded that the city attorney had a financial interest in being appointed as disclosure
counsel for the Mello -Roos joint powers authority, the court then asked whether. or not that
• interest became a "non- interest" pursuant to Section 1091.5 by virtue of Gnass' disclosure of this 4'
situation to the city's Public Financing Authority. The trial court had concluded that in his dual
role as attorney for the city's Public Financing Authority and as disclosure counsel for the Mello-
, Roos joint powers authorities, Gnass did not have a prohibited conflict long as he disclosed to
the city's Public Financing Authority that he was also working as disclosure counsel to the
Mello -Roos joint powers authority. The Court of Appeal disagreed with this interpretation of
Section 1091.5(a)(9), both as a matter of logic and statutory construction. The Court of Appeal
concluded that Gnass' conflict of interest, if any, existed before the Mello -Roos joint powers
authority was created because if created, he might be hired as disclosure counsel. The court
_ found that it was the employment contract as city attorney that created the requisite financial
interest, not the conflict. Section 1091.5(a)(9) allows for a financial interest to be deemed a —
"non- interest" if the contracts under consideration are between two public agencies. Since the -
conflicts in question did not arise in connection with a contract or proposed contract between the .
. city's Public Financing Authority and a Mello -Roos joint powers authorities, Section
1091.5(a)(9) did not apply.
•
While the court held that the evidence was sufficient to establish probable cause to believe the
city attorney had been acting in his official capacity when he advised the city's Public Financing •
. Authority regarding the Mello -Roos joint powers agreements under which he was hired as•
disclosure counsel, that the evidence demonstrated that he had a financial interest in the Mello-
Roos joint powers . authorities, that he became the disclosure counsel and was paid in that
capacity, the appellate court upheld the trial court's granting of a motion to set aside the
indictments due to a failure to properly instruct the jury on the issue of whether or not he acted
"knowingly and wi11fu11y. "6 •
This case is an important one for joint powers authority attomeys due to its discussion of Section
1090 violations which may arise if an attomey serves in a dual capacity when advising joint
'powers authorities.
• ° Section 1091.5(a)(9) provides: (a) An officer or employee shall not be deemed to be interested in a
contract if his or her interest is any of the following: [`n ... [¶] (9) That of a person receiving salary, per
diem, or reimbursement for expenses from a government entity, unless the contract directly involves the -
deparLiuent of the government entity that employs the officer or employee, provided that the interest is ;
disclosed to the body or board at the time of consideration of the contract, and provided further that the
interest is noted in its official record." • =
s As an example, an employee of public agency A is a board member of public agency B. A conflict
might arise if agency B considered a contact with agency A. See Gnass at page 1303. i
I — .y
6 To impose criminal liability for violation of Section 1090, it must .be proved that a public official or
employee acting in his official capacity knowingly and willingly made, or caused to be made, a contract
in which he or she had a financial interest. "Willfully" has been defined as purposefully making a .
contract in which an official is financially interested. "Knowingly" means that there is a reasonable -
likelihood that the contract may result in a personal financial benefit. See Gnass 101 Cal.App.4th at
• 1305. - _
- t 'i
104 7140.1 ' ' I
22
5 0 L _.
Practice Tip While the facts in Gnass were egregious, they do raise the issue of
whether a city attorney should represent a joint powers authority in
•
f 'j which her or his city is a member. Many city attorneys do act in this •
dual capacity and there is no direct authority on the point. If the city
attorney of a potential member agency is reviewing a joint powers
agreement and there is a possibility or even likelihood that the city
attorney will become legal counsel for the joint powers authority, •
thought should be given to retaining independent'counsel to review
and advise the city council on the joint powers agreement. Once the
joint powers authority is established, the attorney should employ
independent counsel to draft agreements between his or her member
entity client and the joint powers authority in order to insure that no
Section 1090 violations occur. •
•
•
It
- d
23 1047140.1
51
IP
t P
0
... .
_ .
. 111
- 7
. . .
. ,
. .
1
. :
1
1
. .
. .
. .
. .,
L- 1. -
This page was intentionally left blank
fi u
. .
. .
. ....
, ....
. .
. . ..
. .
. .
. .
, -
. .
. .
2 ..-...
•
. , , -
. .
. ..j.-...
, . .
52
1
JOINT POWERS AGREEMENT
1 THE STATE WATER CONTRACTORS OPERATING AUTHORITY
This Agreement is made and entered into by and between the California public
1 agencies that have contracts with the State of California, Department of Water Resources,
1 for water supplies made available by the State Water Project which are parties signatory
to this Agreement. These public agencies are sometimes referred to herein as "Parties"
1 and/or "Members." •
1 RECITALS
WHEREAS, California Government Code Sections 6500, et seq., provide that
two or more public agencies may by agreement jointly exercise any power common to
1 the contracting parties; and -
I (4 WHEREAS, the Parties to this Agreement each have and possess the power to
acquire, construct, operate and maintain works and facilities for the development,
1 transmission and use of water resources and water rights including, without limitation,
works and facilities to divert, store, pump, treat, transport and deliver water and to
operate power facilities incidental to such pumping and deliver of water and to contract
with t he United S tates, t he S tate o f C alifornia, municipalities, d istricts and p ublic and
private corporations in the construction and operation of works and the provision of
services for the purpose of conserving, providing and transporting water for beneficial
uses; and
- WHEREAS, the Parties to this Agreement desire to join together for the purpose
of contracting with the State of California, Department of Water Resources, for the
•
1
' 3 53
provision of services to and the operation and maintenance of various portions of the
State Water Project by this Authority:
• NOW, THEREFORE, it is agreed by and between the Parties hereto as follows:
Article 1
Definitions _,
Section 1.1 Defin itions: As used in this Agreement, unless the context requires
otherwise, the meaning of the terms set forth below shall be as follows:
(a) "Authority" shall mean the State Water Contractors Operating Authority
created by this Agreement.
(b) • "Board of Directors" or "Board" shall mean the governing body of the
' Authority as established by Article 6 (Board of Directors) of this Agreement.
(c) "Contractor" o r " State Water C ontractor" s hall m ean a ny p ublic a gency
contractin with the State of Califomia for a Water Supply Contract, or any public
agency assipee of rights under such a contract. "'
(d) .. • "Department" or "DWI" shall mean the Department of Water Resources
' of the State of California. •
- (e) "Law" or "the Law" shall mean the Joint Exercise of Powers Act, being
Articles 1 and 2 of Chapter 5 of Division 7 of Title I of the California Government Code
(Sections 6500, et seq.).
(f) "Maximum Annual Entitlement" shall mean the maximum annual
entitlement specified in the Contractor's Water Supply Contract. 1
(g) E
"Member" shall mean any Contractor that becomes a sigrratory . to this ® " i
Agreement. ��
2
54
1
(h) "Project Agreement" is an agreement of the type specified in Section 4.3
t 0
1 (Specific Projects).
(i) "Specific Project" has the meaning set forth in Section 4.3 (Specific
1 Projects).
l O "State" shall mean the State of California.
I (k) "State Water Contractors" shall mean the nonprofit mutual benefit
` corporation of State Water Contractors. •
(1) "State Water Project," "Project" or "SWP" shall mean those project
I facilities defined in the respective Water Supply Contracts of Contractors.
(m) "Treasurer /Controller" shall mean that person, designated by the Board of .
I • Directors, who is to perform the duties of the Treasurer and Auditor - Controller of the
Authority as required by law and directed by the Board of Directors.
(n) "Water Supply Contract" or "Contract" shall mean the respective Contract
for a water supply between each Contractor and the State, made pursuant to the
California Water Resources Development Bond Act, as amended (Water Code Sections
12930, et seq.), and any amendments to such Contracts. - -
Article 2
• 31
Creation of the State Water Contractors Operating Authority I
Section 2.1 Creation: There is hereby created pursuant t6 the Law, a .public
entity to be known as the "State Water Contractors Operating Authority," which shall be
an agency or entity which is separate from the Parties to this Agreement.
ttr
3
55
Article 3
Term of Agreement _
Section 3.1 Term: This Agreement shall become effective on the date on which
the General Manager of the State Water Contractors certifies that it has been executed by
ten or more Contractors that have a combined total of seventy -five percent (75 %) of the
Maximum Annual Table A Amount of all Contractors.
Article 4
Purposes and Powers
Section 4.1 Purpose: The purpose of this Agreement is to provide for the joint
exercise, through the Authority, of powers common to each of the Parties, as described in
the Recitals above, to provide services to and to operate and maintain, through contracts
with the State, portions of the State Water Project and to acquire, construct, own, operate,
maintain and replace other facilities appurtenant thereto, to acquire water and water rights
and to do all acts related or incidental thereto, either by the Authority alone or in
cooperation with the State, the United States or other entities, in order to provide for the
development and delivery of water from the State Water Project to Contractors.
Section 4.2 Powers: The Authority shall have the power to exercise any power
common to all of the Parties as authorized by the Law and is hereby authorized to do all
acts necessary for the exercise of these common powers, including, but not limited to,
any of the following:
(a) To -make and enter into contracts; .
(b) To incur debts, liabilities or obligations;
4
56
1
1 (c) •To acquire, by eminent domain or otherwise, and to hold and dispose of
property necessary to the full exercise of its powers;
• (d) To contract for the services of engineers, attomeys, technical specialists,
I financial consultants, and separate and apart therefrom, to employ such other persons as it
1 deems necessary;
(e) To issue bonds, notes and other indebtednesses, and to enter into leases,
installment sale and installment purchase contracts, all as provided for in Section 11.8
1 • (Issuance of Bonds, Notes and Other Indebtedness).
1 (f) To apply for, accept and receive state, federal or local licenses, permits,
grants, loans or other aid from any agency of the United States of America, the State or
1 other public or private entities necessary-for the Authority's full exercise of its powers; .
I 03 (g) To perform all acts necessary or proper to carry out fully the purposes of
this Agreement; and . .
1 (h) To the extent not hereinafter specifically provided for, to exercise any
1 powers in the manner and according to the methods provided under the laws applicable to
the Coachella Valley Water District:
I Section 4.3 Specific Projects: Except for investigations, studies and matters of
general a dministration, t he A uthority s hall function t trough agreements with t he S tate
A.
Department of Water Resources, Members and others providing for the Authority to
undertake Specific Projects, including but not limited to, the operation and maintenance
1 • of portions of the State Water Project and acts related or incidental thereto to implement
I Specific P rojects. A S pecific P roject m ay i nvolve a 11 o r 1 ess than the M embers o f t he
Authority, provided that no Member shall be required to be involved in a Specific
I .5
57
Project, as a Member of the Authority, involving less than all of the Members of the
Authority without its approval. The details of each Specific Project involving less than all —
the Members shall be set forth in a Project Agreement executed by the participating _
Members. The Board of Directors of the Authority shall have the authority to disapprove
Specific Project Agreements upon determination that the Project Agreement has specific,
substantial adverse financial impacts upon Members not executing the Specific Project _
Agreement. If a Specific Project is to be undertaken for less than all of the Members of —
the A uthority, t he M embers i ntending t o p articipate i n t hat S pecific P roject s hall e ach
appoint a representative to a project committee to develop the Project Agreement for that —
project. The Project Agreement shall set forth the duties, obligations and voting rights of • -
the Members participating in the project.
• Article 5
Members ..
Section 5.1 Membership: Each Contractor that possesses the powers described in
the Recitals and in Section 4.2 (Powers) of this Agreement that executes this Agreement — .�
and any addenda, amendments or supplements thereto, and which has not, pursuant to the ,,
provisions hereof, withdrawn from this Agreement shall be a Member of the Authority.
Any Contractor that executes this Agreement that:does not possess such powers or who
ceases to have such powers or who is subsequently determined not to have such powers
shall be ineligible for Membership in the Authority. •
Section 5.2 Classification of Members: The Authority shall have eight classes of
. Members, as follows, with no Contractor holding a membership in more than one class:
A Al
. \- .
E .
p
58
•
1
•
1 (a) Class 1
1 Those Feather River and North Bay Aqueduct Contractors, entitled to delivery of
SWP water north of the Delta, or along the North Bay Aqueduct which are signatories to
•
this Agreement.
1 • (b) Class 2 •
Those South Bay Aqueduct Contractors entitled to deliver of SWP water along
the South Bay Aqueduct.which are signatories to this Agreement.
1.
(c) Class 3
• • Those San Joaquin Valley Contractors entitled to delivery of SWP water within
the San Joaquin Valley, except the Kern County Water Agency, which are signatories to
1 this Agreement. • -
1 « (d) Class 4
The Kern County Water Agency, if it is a signatory to this Agreement.
(e) Class 5
•
Those Coastal Aqueduct Contractors entitled to deliver of SWP water along the
Coastal Aqueduct downstream of the Devil's Den Pumping Plantwhich are signatories to
. this Agreement.
- (0 Class 6
The Metropolitan Water District of Southern California, if it is a signatory to this
Agreement.
1
•
•
•
1
1 59
•
•
(g) Class 7 - -
�'
Those Southern California West Branch Contractors entitled to delivery of SWP
water along the West Branch of the California Aqueduct, except The Metropolitan Water
District of Southern California, which are signatories to this Agreement.
(h) Class 8
•
Those Southern California East Branch Contractors entitled to delivery of SWP
water along the East Branch of the California Aqueduct, except The Metropolitan Water
District of Southern California, which are signatories to this Agreement.
Section 5.3 Admission to Membership: Any Contractor that has not executed
i
I
this Agreement on or before its effective date shall be admitted to membership upon the
approval of the Board of Directors, the payment of any applicable fees and charges and
upon becoming a signatory to this Agreement.
Section 5.4 Meetings of Members: Meetings of Members shall be held at such
locations in the State of California as may be designated from time to time by the Board
of Directors: Each Member shall appoint a representative and an alternate to represent
and vote for the Member at all meetings of Members and meetings of classes of
'Members. Each representative (or alternate) shall have the voting rights provided for in •
Section 5.12 (Voting)
Section 5.5 Regular Annual Meeting: The Members shall meet annually during
the first quarter of each year, at a time and place set by the Board, or at such other times
as may be determined by the Board, for the purpose of transacting such proper business
as may come before the meeting, including the meeting of classes required pursuant to
Section 5.7 (Meetings of Classes) for the purpose of holding the election of Directors. If
l
I.
•
f
60 8
•
(fi the election of Directors does not occur at any such meeting of the Members, the Board
shall cause the election of Directors to be held at a special meeting of the classes called
and held as soon as it is reasonably possible after the adjournment of the regular meeting
of the Members. If the date fixed for the regular, meeting of Members falls on a legal
holiday specified in Section 6700 of the Government Code, such meeting shall be held at
the same hour and place on the next succeeding full business day. •
Section 5.6 Special Meetings of Members: Special meetings of the Members
1 shall be called by the Board of Directors and held at such times and places within the
State of Califomia as may be ordered by action of the Directors. Five percent or more of
the Members may also all special meetings for any purpose.
1 Section 5.7 Meetings of Classes: Meetings of a class of Members maybe called
•
0 by any Member of that class and held at such times and places within the State of
I
California as selected by such Member for any purpose, including the purpose of voting
1 • on the removal of a Director selected by that class pursuant to Section 6.7(h) (Removal of
1 Directors without Cause) of this Agreement. The remaining provisions of this Agreement
shall -apply to the extent practicable, to such special meetings of classes of Members.
Section 5.8 Notice of Meetings: Except in the case of emergencies, written notice
of every'nieeting of Members and of every meeting of classes of Members shall be either
personally delivered or mailed by First Class United States mail; postage prepaid, td each
Member, at least seven (7) days before the date of the meeting. The notice shall state the
1 place, date and time of the meeting. In the case of annual meetings, the notice shall state
those matters which the Board of Directors; at the time that notice was given, intends to
present for action by the Members. In the case of special meetings, the notice shall
•
�_r 61
•
•
include the subject or subjects of the meeting. The notice of any meeting at which •
Directors are to be elected shall include the names of all those who are nominees at the
time the notice is given to the Members.
Section 5.9 Quorum: A quorum of any meeting of Members or of any meeting of
a class of Members shall consist of a majority of the Members or the Members of that
class on the date the meeting is held. Except as otherwise provided in this Agreement,
every act or decision made by a majority of the Members present at a meeting duly held
at which a quorum is present is the act of the Members. The Members present at a duly
called or held meeting at which a quorum is present may continue to transact business
until adjournment notwithstanding the withdrawal of enough Members to leave less than
a quorum, if any action taken, other than adjournment, is approved by at least a majority
of the Members required to constitute a quorum. In the absence of a quorum, any meeting
•
of•the Members may be adjourned from time to time by a vote of the majority present,
• but not other business may be transacted except as provided for in this section.
Section 5.10 C onduct o f M eetings: The President of the Authority or, in the
President's absence, the Vice President, shall be the Chair of and shall preside over
meetings of the Members. The Secretary of the Authority shall act as the secretary of all •
- meetings of Members, provided that in the Secretary's absence, the Chair shall appoint
. another person to act as secretary for the meeting. •
Section 5.11 Rules of Order: A majority of the Members may adopt rules
•
goveming meetings if not inconsistent or in conflict with this Agreement. In the absence
of rules adopted by the Members, Roberts' Rules of Order, as they may be amended from
•
10
62
1
1 time to time, shall govern the meetings of Members in so far as they are not inconsistent
1 or in conflict with this Agreement or any Authority bylaws.
Section 5:12 Voting: Except as otherwise provided by this Agreement, each
Member shall have one vote.
�. Section 5.13 Review of Actions by the Board of Directors: On demand of any
Member, any action of the Board shall be subject to a referendum by the Members. Such
action shall be nullified if either:
1 (a) a majority of the Members vote against it, or
(b) Members who cumulatively have a majority of the Maximum Annual
Table A Amounts of all of the Members vote against it.
1 Each such demand for referendum shall be received by the General Manager within
fourteen (14) calendar days of the date of the Board's action. Each such demand may be
made by telephone, facsimile, e-mail, hand delivery or mail. Any Member making such
demand shall communicate that fact to all of the Members within the fourteen -day period.
1 If such a demand is made, the contested action shall be suspended until the vote of the
Members has occurred. The votes of the Members shall be communicated to the General
•
Manager in writing within thirty (30) days of the date of the referral to them by the
General Manager. The General Manager shall promptly communicate the results of the
voting to the Members.
1 Article 6
Board of Directors
Section 6.1 Board of Directors: The Authority shall have a minimum of three (3)
and no more than nine (9) Directors selected pursuant to Section 6.3 (Selection of
•
I 1
63
Directors). Collectively, the Directors shall be known as the "Board of Directors" or the
"Board."
Section 6.2 Qualifications: T he D irectors o f t he A uthority s hall b e o fficers o r
employees of the Members or other designated representatives of the Members.
Section 6.3 Selection of Directors: Each class of membership as defined in
Section 5.2 (Classification of Members) of this Agreement, is entitled to select one (1)
Director, except Class 8, which is entitled t o select two (2) Directors, if two or more
Southern California East Branch Contractors are Members of the Authority. Each class
•
may select one or more alternates for its Director to act in the absence of the Director.
The Directors shall be selected as follows:
(a) The Directors selected by Classes 4 and 6 shall be appointed by the Kern
County Water Agency and The Metropolitan Water District of Southern California,
respectively. The names of such Directors shall be announced by the - representatives of
these Members at the annual meeting of the Members. -
(b) - The Directors selected by Classes 1, 2, 3, 5, 7 and 8 shall be elected at the
annual meeting. A majority vote of Members of the class shall be required for election of
a Director of that class. Each Member of each class shall be entitled to one (1) vote for • m g
each Director to be elected by that class. -
(c) If no eligible Contractor in the class is a Member of the Authority, no
Director shall be selected for that class and the total number of Directors of the Board
shall be reduced accordingly.
Section 6.4 Terms of Office: The terms of office for Directors shall be three
years, with the terms of the Directors first elected beginning on the January 1 following
•
4<
12
64
the effective date of this Agreement. Each Director shall hold office until such Director's
successor is elected or appointed and qualifies for such office. If a Director is removed at
a special meeting of the appropriate class as provided for in Section 6.7(h) (Removal of
Directors without Cause) of this Agreement, such Director shall hold office until his or
her successor is elected or appointed and qualifies as a Director.
Section 6.5 Nomination and Election of Directors: Any person qualified to be a
Director selected by a class may be nominated by any Member of that class by any
method selected by Members of that class. The candidate in each class receiving the
highest number of votes is elected. The Directors shall eligible for re- election, provided
they continue to meet the qualifications required by this Agreement.
Section 6.6 Compensation: The Directors shall serve without compensation from
the Authority.
i t
Section 6.7 Board Meetings:
(a) Place of Meetings. All regular meetings of the Board shall be held in the
State of California at the principal office of the Authority or such other places in the State
as determined by the Board.
(b) Time of Regular Meetings. Regular meetings of the Board shall be held
•
without call or notice at a.m. on the ( ) day of each month, or at
such other time, with notice, as may be directed by the Board.
(c) Special Meetings. Special meetings of the Board may be called by the
President, the Vice President or the Secretary or any two (2) Directors. Except in the case
of emergencies, special meetings shall be held on a minimum-of four (4) days' notice by
First Class Mail, postage prepaid, or on forty -eight (48) hours' notice delivered
13 65 •
personally or by telephone or facsimile. Notices of special meetings need not be given to
any Director who signs a waiver of notice or a written consent to the holding of the
meeting or any approval of the minutes thereof, whether before or after the meeting, or
attends the meeting without protesting, prior thereto or at its commencement, the lack of
such notice to such Director. All such waivers, consents and approvals shall be filed with
the Authority records or made a part of the minutes of the meeting.
•
(d) Quorum. A• majority of the Directors then in office, or their respective
alternates in the absence of a Director, constitutes a quorum of the Board for the
transaction of business, except as hereinafter provided. -
(e) • Acts or Decisions of the Board. Except as otherwise provided in this
Agreement, every act or decision made by a majority of the Directors or their alternates
in the absence of a Director present at a meeting duly held at which a quorum is present is
the act of the Board, provided, however, that any meeting at which a quorum was initially
present may continue to transact business notwithstanding the withdrawal of Directors if
any action taken is approved by at least a majority of the required quorum for such
meeting. A written summary of all Board actions shall be mailed by First Class Mail to
all Members within three (3) working days after such action was taken.
(f) Conduct of Meetings. The President or, in the President's absence the
Vice President, shall preside at all meetings of the Board of Directors, the Secretary of
the Authority or, in the Secretary's absence, any person appointed by the presiding
officer shall act as Secretary of the Board.
(g) Adjournment. A majority of the Directors or their alternates present,
whether or not a quorum is present, may adjourn any meeting to another time and place.
14
66
If the meeting is adjourned more than twenty -four (24) hours, notice of the adjournment
to another time or place must be given prior to the time of the adjourned meeting to the
Directors who were not present at the time of the adjournment.
(h) Removal of Directors without Cause. At a special meeting of the
appropriate class Members, a Director or alternate may be removed without cause if such
II
removal is approved by two- thirds (2/3) of the Members of the class. .
P • (i) Resignation of a Director. Any Director may resign effective on giving
written notice to the Board of Directors, unless the notice specifies a later time for the
X11 effectiveness of such resignation. A successor shall be elected as provided for in this
Agreement.
N (j) Vacancies on the Board. A vacancy on the Board of Directors shall exist
on the death, resignation or removal of any Director, whenever the number of Directors is
III i s
increased, or on the failure of the Members at any election to elect or appoint the full
number of Directors authorized. Vacancies on the Board of Directors may not be filled by
the Directors. A vacancy shall be filled only by the Members of the appropriate class of
II
Members. •
Article 7 '
Conduct of Meetings
Section' 7.1 Compliance with Brown Act: All meetings of the Members, of
ill classes of Members, of the Board of Directors, and the directors of any Specific Project,
� including, w ithout 1 imitation, r egular, a djoumed r egular and special m eetings; s hall b e
called, noticed, held and conducted in accordance with applicable provisions of the Ralph
M. Brown Act, California Government Code Sections 54950, et seq.
4 .
. 1 5 67 •
Section 7.2 T eleconferencin,g: The Members, the Board of Directors, and the
Members of a class with regard to meetings of that class, and the directors of any Specific •
Project, may use teleconferencing in connection with any meeting in conformance with,
and to the extent authorized by, the Ralph M. Brown Act.
Article 8
Officers
Section 8.1 Numbers and Titles: The officers of the Authority shall be a
President, a Vice President, a Secretary, a General Manager, a Treasurer /Controller, and
such other officers with such titles and duties as shall be determined by the Board. Any
number of offices may be held by the same person, provided that the President shall not
also serve as the Treasurer. The Board may authorize the Treasurer of one of the
Members to serve as the Treasurer; provided that the funds of the Authority are kept in
accounts separate from those of that Member. The Vice President or, in the Vice
President's absence, the Secretary shall exercise all powers of the President in the
President's absence or inability to act. The President and the Vice President shall be
members of the Board of Directors.
Section 8.2 Appointment and Resignation: The officers shall be chosen
annually by, and serve at the pleasure of, the Board. Any officer may resign at any time
on written notice to the Board.
Section 8.3 C hief E xecutive 0 fficer: The General Manager appointed by the
Board of Directors shall serve as the Chief Executive Officer of the Authority.
16
68
I
I Article 9
1 :, 0 EmPlovees
Section 9.1 Ge neral Manag and Staff: The Board of Directors shall employ a
I General Manager. To fill positions approved by the Board, the General Manager shall
employ such additional full -time and/or part-time employees and assistants and
independent contractors as may be necessary from time to time to accomplish the
II purposes of the Authority.
Article 10
II Committees
S ection 10.1 Committees: The Board may, by the action of a majority of a
5 number of the Directors then in office create from time to time various committees to
carry on the business of the Authority.
Article 11
Financial Provisions
Section 11.1 FiscalYear: The fiscal year of the Authority shall be from July 1 of
each year to the succeeding June 30.
Section 11 2 DePOSitary: The Treasurer /Controller shall be the depositary and
have custody of all money of the Authority from whatever source and shall perform the
duties specified in Government Code Section 6506.5. All funds of the Authority shall be
strictly and separately accounted for, and regular reports shall be rendered to the Board
and the Members of all receipts and disbursements at least quarterly during the fiscal
year. The books and records of the Authority shall be open to inspection by a Member or
Director at all reasonable times upon reasonable notice. The Treasurer /Controller shall •
17 69
either make or contract with a certified public accountant to make an annual audit of the Ari 1
accounts and records of the Authority, which shall be conducted, at a minimum, in J
accordance with the requirements of the State Controller under Section 26909 of. the
California Government Code, and shall conform to generally accepted auditing standards. il
Section n3 Pro Bonds: The Board shall from time to time designate the
officers and persons, in addition to the Treasurer /Controller, who shall have charge of,
• handle, or have access to any property of the Authority. Each such officer and person, II
including the Treasurer /Controller, shall file a bond in an amount designated by the PI
Board. When fixing the amount of such bonds, the Board shall be deemed to be acting for
and on behalf of the Members who appointed them in compliance with Government Code
Section 6505.1.
Section 11.4 Budget:- As soon as practicable after the effective date of this
W,f . P
Agreement, and thereafter at least thirty (30) days prior to the commencement of each
fiscal year, the G eneral M anager shall present a proposed budget to the Board for the I
forthcoming - fiscal year. Prior to the commencement of the fiscal year, the Board shall
present a budget to the Members for the Members' adoption.
Section 11.5 Contri butions'to Wor king Ca ital Account: A Working Capital -
• Account, which is to be used for the purpose of funding general overhead and
administrative expenses for the ongoing operations of the Authority, shall be established
by the Board and approved in connection with the annual budget process. Contributions
to the Working Capital Account shall be allocated among the Members in proportion to •
their respective Maximum Annual Table A Amounts. Contributions shall be established
by the Board for each fiscal year no later than ninety (90) days prior to the beginning of
• 18
70 .
1
the fiscal year. Any Member that does not make its contribution to the Working Capital
CD
1 Account within sixty (60) days after the beginning of the fiscal year shall be deemed to
have withdrawn as a Member and ceased to be a Party to this Agreement.
Section 11.6 Other Contributions: Contributions or advances of other funds and
of personnel, equipment or property may be made to the Authority by any Member for
any purposes of this Agreement, and credited to the Member's obligations, with the
- consent of the Board. Any such advances may be made subject to repayment, and in such
1 case shall be repaid in the manner agreed upon by the Member making the advance and
the Authority.
Section 11.7 Return of Contributions and Revenue: In accordance with
Government Code Section 6512.1, repayment or return to the Members of all or any part
l
of any contributions made by Members and any revenues received by the Authority may
be directed by the Board at such time and upon such terms as the Board may decide. The
Board shall hold title to all funds, and property acquired by the Authority during the term
of this Agreement.
Section 11.8 Issuance of Bonds. Notes and Other Indebtedness: The Authority
may issue bonds, notes or other forms of indebtedness if such issuance is approved at a
meeting of the Members by two - thirds of all of the members and by Members who
cumulatively have seventy -five percent (75 %) of the Maximum Annual Entitlements of
all of the Members. Bonds, notes or other forms of indebtedness to be issued for Specific
Projects,must also be approved by the Members who are parties to the Project Agreement
by the vote required for such indebtedness set forth in the Project Agreement. The
Secretary shall notify all of the Members by registered mail, return receipt requested, of
19 71
the approval for incurring of such indebtedness within ten (10) days after its approval.
Any Member may within thirty (30) days of the receipt of such notice withdraw from this
Agreement by giving written notice to the General Manager, provided that such
•
withdrawal does not in any way impair any contracts, or other indebtedness of the
Authority then in effect. This right to withdraw is in addition to the Member's right to
withdraw set forth in Section 13.1 (Withdrawal of Membership). No such bonds, notes or
indebtedness s hall b e i ssued b efore the expiration o f the t ime given i n t his S ection t o
Members to withdraw from this Agreement.
Article 12
Relationship of the Authority and Its Members
Section 12.1 Separate Entity: The Authority shall be a public entity separate
from the Parties to this Agreement. Unless, and to the extent otherwise agreed herein, the
debts, liabilities and obligations of the Authority shall not be the debts, liabilities or
obligations of the Parties. All property, equipment, supplies, funds and records of the .
Authority shall be owned by the Authority, except as otherwise provided in this
Agreement.
Article 13
Withdrawal of Membership
Section 13.1 Withdrawal of Membership: Any Member may withdraw from
this Agreement by giving sixty (60) days written notice of its election to do so, :which
notice shall be given to the General Manager and to each of the Directors; provided, that
such withdrawal does not in any way impair any contracts, resolutions, indentures or
other obligations of the Authority, including obligations for Specific Projects, then in •
•
20
72
effect. No refund or repayment of any portion of the Authority's assets shall be made to
161 •
the Member ceasing to be a Party to this Agreement.
Section 13.2 Disposition of Property Upon Termination: Upon termination of
RI this Agreement, any surplus money on hand shall be returned to the Members in
® proportion to their contributions made. The Board of Directors shall first offer any
'� property, works, rights and interest of the Authority for sale to the Members on terms and
I conditions determined by the B oard. If no such sale to Members is consummated, the
Pi Board shall offer the property, works, rights and interest of the Authority for sale to any
governmental agency, private party or persons for good and adequate consideration. The
net proceeds from any sale shall be distributed among the Members in proportion to their
contributions made. If no such sale is consummated, then all property, works, rights and
interests of the Authority shall be given to the State Water Contractors.
Article 14
• Fvti
Provision for Bylaws
Section 14.1: As soon as practicable after the first meeting of the Board of
Directors, the Board 'shall cause to be developed Authority bylaws to govern the day -to-
day operation of the Authority.
Article 15 _
Miscellaneous Provisions
in
Section 15.1 Notices: Notices. to Members hereunder shall be sufficient if
4 delivered to the principal office of the respective Member.
Section 15.2 Amendments: This Agreement may be amended or terminated at
4
t.
. any time at any duly constituted meeting of Members by a two- thirds (2/3) vote of the
N 21
73
Members representing seventy -five percent (75 %) of the Maximum Annual Table A
Amounts of all of the Members.
Section 15.3 Prohibition Against Assignment: No Member may assign any
right, claim or interest it may have under this Agreement, and no creditor, assignee, or
third -party b eneficiary o f any M ember s hall h ave any right, claim o r t itle t o any p art,
share interest, fund, or asset of the Authority. This Agreement shall be binding upon, and
shall inure to, the benefit of the successors of any Party.
Section 15 4 Agreement Complete: The foregoing constitutes the full and
complete Agreement of the Parties. There are no oral understandings or agreements not
�,.
set forth in writing herein.
Section 15.5 Severability: Should any part, term or provision of this Agreement
be decided by a court of competent jurisdiction to be illegal or in conflict with any
applicable Federal law or any law of the State of California,' or otherwise be rendered
unenforceable or ineffectual, the validity of the remaining parts, terms or provisions
hereof shall not be affected thereby.
Section 15.6 Withdrawal by Operation of Law: Should the participation of any
Party to this Agreement be decided by the courts to be illegal or in excess of that Party's
authority or in conflict with any law, the validity of the Agreement as to the remaining
Parties s hall n of b e a ffected t hereby, and e ach Party h ereby agrees that i t w ould h ave
entered into this Agreement upon the same terms as provided herein if that withdrawing
party had not been a participant in this Agreement.
Section 15 7 Multiple Originals_ This Agreement may be executed in
counterparts, each of which shall be deemed an original.
2
74
Section 15.8 Limitations on Liability: The Authority shall be authorized to
defend, indemnify and hold harmless any Director, officer, agent or employee for actions
taken or not taken within the scope of the authority given or granted by the Authority and
from and against any claim or suit arising out of any act or omission of the Authority, the
Board or any Director, officer, agent and employee in connection with this Agreement
and may purchase insurance as the Board may deem appropriate for this purpose. In
contemplation of Section 895.2 of the Government Code, and pursuant to the authority
contained in Sections 895.4 and 895.6 of that Code, each of the Members assumes that
portion of the liability imposed upon the Authority or any of its Members, officers, agents
or employees by law for injury caused by any negligent or wrongful act or omission
L
occurring during the performance of any Project Agreement entered into by that Member
pursuant to Section 4.3 that is not covered by insurance, that is in proportion to its
. respective Maximum Annual Table A Amount to the total Maximum Annual Table A
Amounts of all of the Members that are parties to such Project Agreement. As to any
other injury - caused by any negligent or wrongful act or omission occurring during the
performance of this Agreement, each Member assumes that portion of the liability
imposed upon the Authority or any of its Members, officers, agents or employees by law
that is not covered by insurance, that is in proportion to its representative Maximum
Annual Entitlement to the total Maximum Annual Entitlements of all of the Members. To
achieve such purposes, each Member shall to the extent provided herein indemnify and
hold harmless the other Members for any loss, costs or expenses that may be imposed on
such other Members solely by virtue of Section 895.2. The provisions of Section 2778 of
23 75
the Civil Code are made a part of this Ageement as though fully set forth in this
Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by
authorized officials thereof on the dates indicated below, which Agreement may be
executed in counterparts. -
Date: MEMBER
By:
Authorized Representative
■
•
24
76
Summary of Proposed Joint Powers Agreement for
the State Water Contractors Operating Authority
The proposed joint powers agreement (WA), which creates a new separate
governmental entity, is based upon requirements of the Joint Powers Law (Government
Code Sections 6500, et seq.). In many respects it is modeled upon the State Water
— Contractors (SWC) bylaws. This is a summary of the agreement. .
1, pu oses and Pow of the WA
The purposes of the WA Agreement are to establish a framework for possible
future provision of various services to the State. These services would be provided
pursuant to agreements the entire WA, or groups of its members, would enter into with
the State. They could include operation and maintenance of portions of the SWP and the
acquisition and operation of related facilities such as water and water rights. These latter
activities could be either by the Authority alone or in cooperation with the State, the
United States or other entities. The Authority will have all of the powers necessary to
accomplish these purposes, including the power to enter into contracts, incur debts and
liabilities, to hire staff and consultants, to issue bonds, notes and other indebtedness. I
I
2. Specific Projects
_ . The Authority can undertake specific projects that may involve all or less than all
the Members of the Authority, provided that no Member shall be required to be involved
in a specific project without its approval. The details of each specific project involving
less than all Members must be set forth in a Project Agreement executed by the
participating Members and approved by the Board of Directors as to nonfinancial impact •
,- upon nonparticipating Members.
25 77
•
•
3. Membership in the JPA
The JPA creates an Authority consisting of those SWC's that elect to become
• parties to the JPA. In order to become effective, the JPA must be executed by ten or more
SWC's having a combined total of 75% of the Maximum Annual Table A Amounts of all
SWCs. Members may withdraw from the Authority by giving 30 days written notice,
•
•
provided that such withdrawal does not in any way impair any contracts or other
indebtedness of the Authority then in effect.
The Members of the Authority are divided into eight classes in the same manner
as now provided for in the SWC bylaws. The full membership shall meet at least once
annually and more often as needed. A quorum for meetings of the Members consists of a, •
majority of the Members. The voting, in the membership meetings will be one vote for
each Member. - •
4. Governance of the Authority •
Board of Directors: The Authority is to be governed by a Board of not less than
three nor more than nine directors. Each class of Members shall elect one director and
alternate(s), except Class 8 (Southern California East Branch Contractors) shall elect two
directors and alternates. This is the same procedure that is provided for in the SWC
• bylaws. If no contractors-from a class elect to join the Authority, there will be no director •
from that class on the Board of Directors. The term of office for directors is three years.
Nominations for directors are to be made by the Members in each class for the director
for that class. Vacancies on the Board are to be filled by the Members of the appropriate
class. - e
4
• 26
78 i
lif.
•
Board Meetings: Since the JPA is a public agency, membership and Board
meetings will be subject to applicable requirements of the Brown Act. A quorum for
Board meetings shall consist of a majority of the directors. All acts of the Board must be
made by a majority of the directors present at a meeting where there is a quorum.
Review of Actions of the Board: On the demand of any Member, any action of the.
Board shall be subject to a referendum by the Members. The Board's action will be
nullified i f e ither a m ajority o f t he M embers o r M embers who have a majority o f t he
Maximum Annual Table A Amounts of all of the Members vote against it This is similar
to the provisions in the SWC's bylaws.
Officers: The officers of the Authority will be a president, a vice- president, a
secretary, a general manager and a treasurer /controller. Any of the offices may be held by
the same person, provided that the president may not also serve as the treasurer. The
Authority shall have a general manager appointed by the Board who shall serve as the
chief executive officer of the Authority. The Board may employ such other persons as
required to carry out the functions of the Authority.
. 5. Financial Provisions
Funds and Budget: All funds of the Authority will be deposited with the
treasurer /controller, who shall be bonded. The general manager will submit a proposed
budget each year to the Board, and the Board will present it to the Members for final
approval.
Working Capital Account: The JPA authorizes the Board to establish a working
capital account with the contributions to that account to be allocated among the Members
in proportion to their respective Maximum Annual Table A Amounts. Any Member that
27 79
does not make its contribution to the working capital account within sixty days after the
11)
beginning of the fiscal year shall be deemed to have withdrawn from the Authority.
Bonds and Indebtedness: The Authority may issue bonds, notes and other forms
of indebtedness, if such issuance is approved at a meeting of the Members by two- thirds
of all the Members and by the Members who cumulatively have 75% of the Maximum
Annual Table A Amounts of all Members. Any bonds or indebtedness to be issued for a
specific project must be approved by the Members who are parties to the Project
Agreement by whatever vote is required as set forth in that Project Agreement.
Refunds: No refund or repayment of any portion of the Authority's assets will be
made when a Member ceases to be a party to the Agreement.
6. Liabilities of Members
The Iiabilities of the Authority are not intended to become the liability of any of --��
the Members, but if pursuant to applicable Government Code sections, any liabilities of
the Authority are placed upon the Members, they shall be allocated in proportion to each
Member's respective Maximum Annual Table A Amount.
7. Amendments and Termination
Amendments can be made to the Agreement by a vote of two- thirds of the
Members representing 75% of the Maximum Annual Table A Amounts of all Members.
The Agreement can be terminated in the same manner.
28
80
JOINT POWERS AGREEMENT
�/ CREATING THE
SALTON SEA MANAGEMENT AUTHORITY
THIS JOINT POWERS AGREEMENT ( "Agreement ") is made and entered into by and
between the following public agencies:
a. County of Imperial
b. County of Riverside
c. Imperial Irrigation District
d. Coachella Valley Water District.
(The above are individually and collectively referred to herein as the "PART" or •
"PARTIES," "MEMBER" or "MEMBERS," "MEMBER AGENCY" or "MEMBER
AGENCIES."
RECITALS
A. Each of the PARTIES herein is a public agency and each is authorized and empower
_ to contract with all the other parties for the joint exercise of powers under Articles I
and II. Chapter 5, Division 7, Title (commencing with Section 6500) of the California
-
Government Code (the "ACT ").
KW 3 B. Each of the PARTIES to this Agreement has the authority and power to manage and
operate water bodies for the public benefit and to create a separate public agency to
_ carry out such power.
C. The PARTIES recognize the immediate necessity for coordinated planning, and in the
future for construction, operation, and maintenance of works and facilities for water
quality improvement and elevation stablilization of the Salton Sea:
COVENANTS
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES OF THE PARTIES HERETO, AND THE PROVISIONS, CONDITIONS
AND TERMS PROVIDED FOR HEREIN, THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
CREATION AND PURPOSES
1.1 Creation of Public
There is hereby created a public agency known as the "Salton sea Management
Authority" (hereinafter referred to as the "Authority "). The Authority is formed by
this Agreement pursuant to the provisions of Articles I and II, Chapters 5, Division 7,
Title 1 (commencing with Sections 6500) of the government code of the State of
California. it is the intent of the PARTIES that the Authority shall be a public agency
separate from the PARTIES..
81
•
1.2 Purpose
The purpose of the Agreement is to create a public agency to exercise the common
power of managing and operating Salton sea in Imperial and Riverside Counties,
California for the improvement of water quality and stablilization of water elevation
and to enhance recreational and economic development potential.
The purpose of this Agreement shall be accomplished and said power exercised in a
manner hereinafter set forth, subject, however, to such restrictions as are applicable to
the PARTIES to this Agreement in the manner of exercising such powers, as required
by Government Code Section 6509.
•
ARTICLE II
POWERS OF THE AUTHORITY
2.1 The Authority shall have the power common to the PARTIES to do any and all _
of the following: -
T
(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;
(d) To acquire, hold or dispose of property by eminent domain, lease, lease purchase
or sale. -
(e) To acquire, construct, manage, maintain and operate any buildings, works or
improvements;
(1) To sue and be sued in its own name, provided that the Authority shall not
commence or intervene in any lawsuit without the approval of all of its members;
(g) To raise revenue; to levy and collect rates, fees and charges, and to issue 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 Government and other agencies;
(i) 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; such committees may include, without
limitation, maintenance, operations, finance, land use, recreation, public safety, water
quality and capital improvement committees;
(j) To exercise jointly the common power of the parties to manage and operate water
bodies; J
•
82
ARTICLE III
i EFFECTIVE DATE
3.1 This Agreement shall become effective and the Authority shall be created as of the
date on which the second of at least two of the governing bodies of the PARTIES to
this Agreement have approved and executed this Agreement.
3.2 In the event any additional public agency becomes a member of the Authority after its
formation, all of the existing members and the prospective member shall execute a
memorandum specifying the obligations of the prospective member for contributions
towards past or present Authority expenditures.
A RTICLE IV
GOVERNING BODY
` 4.1 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 Directors" of
the Authority. All of the power and authority of the Authority shall be exercised by
_ the Board of Directors, subject, however, to the reserved right of MEMBER
AGENCIES with regard to approval of proposed budgets and assumption of financial
obligations.
4.2 Each PARTY hereto shall designate and appoint one member of its governing body or
v a senior administrative official to act as its representative on the Board of Directors.
Each member of the Board of Directors shall have one vote.
, 4.3In order to assist in coordinating the duties and the activities of the Authority with
other govemmental entities, the following shall be ex- officio members of the
Authority:
1.1MPERIAL VALLEY ASSOCIATION OF GOVERNMENTS (WAG)
2. COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS (CVAG)
3. SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS
(SCAG)
4.4 Each members of the Board of Directors shall hold office form the first meeting of .
each odd - numbered year for a period of two years or until his/her successor is
selected. Directors may be replaced for successive terms. Each member of the Board
of Directors shall, however, serve at the pleasure of the appointing MEMBER
AGENCY and may be removed at any time, with or without cause, in the sole
discretion of the appointing MEMBER AGENCY.
4.5 The vote, assent or approval of MEMBER AGENCIES in any matter requiring such
vote, assent or approval hereunder shall be evidenced by a certified copy of a
resolution, minute order or similar writing of the governing body of such MEMBER
7 AGENCY, filed with the Authority.
83
— .-
ARTICLE V
;
CONDUCT OF MEETINGS
5.1 Regular meeting of the Board of Directors of the Authority shall be held monthly. At
its first meeting, the Board shall provide for the time and place of holding its regular
meeting, which place shall be within Imperial or Riverside Counties. From time -to-
time, special meetings may be called at the request of the President of the Board or of
a majority of the Board of Directors. Notice of all meetings shall be famished in
writing to each member of the Board of Directors and to each PARTY to this
Agreement at least 48 hours prior to the time appointed for the meeting.
5.2 The meetings of the Board of Directors shall be open to the public and shall be held zit
and conducted in accordance with the provisions of the Ralph M. Brown Act as set
forth in the California Government Code Sections 5t4950, et seq.
5.3 The Secretary of the Authority shall cause to be kept the minutes of all Board
meetings and shall cause a copy of these minutes, along with copies of all ordinances
and resolutions enacted to be forwarded to each of the PARTIES hereto.
5.4 A majority of the Board of Directors shall constitute a quorum for the transaction of
business. •
5.5 Except as otherwise provide herein, all actions of the Board shall be passed upon the
affirmative vote of a majority of a quorum of the Board of Directors.
5.6 The Board of Directors may adopt, from time -to -time, such rules and regulations for
the conduct of its affairs as may be required.
5.7 If authorized by law, Board members may be compensated for attendance at all
regular and special meetings of the Board or of any committee of the Authority.
ARTICLE VI
OFFICERS
6.1 The Board of Directors shall select from its membership its own officers, including a
President, Vice - President, and Secretary. The Treasurer of (one of the
MEMBER AGENCIES) shall be the Treasurer of the Authority, to be the _
depository and have custody of all money of the Authority from whatever source,
provided that the Board of Directors may at any time select another treasurer. Said
Board shall also select a Controller, who shall be of the same public agency as
Treasurer, and who shall draw all warrants to pay demands against the Authority
approved by the Board.
62 The public officer, officers or persons who have charge of, handle or have access to
any property of the Authority shall file an official bond in an amount to be fixed by
84
the Board of Directors. the Board of Directors,
i/ �� officer may be removed, either with or without cause, by
6.3 Any at any regular or sp ecial meeting thereof.
6.4 The Board of Directors shall have the power to appoint such additional officers as
may be appropriate.
6.5 Each and all of the said officers shall serve at the pleasure of the Board and d shall
perform such duties and shall have such powers as the Board may, from time-to-time
determine. olic of the
6.6 The term of each office shall be a maximum of two years. It shall be a policy
- Board to encourage the rotation of the offices among the Board members.
6.7 All of the privileges and immunities from liability, exemption from laws, ordinances
all and rules, all pension, relief, disability, workers compensation, ee of ana of the members
which apply other benefits
1 to the activity of officers, agents, or employees
them to the same degree and
when performing their respective functions shall
the functions and other duties
extent while engaged in the performance of any of or employees appointed other ti s he
under this Agreement. None of the officers, agents, the Board of
— Board of Directors shall be pan of the members their y employment
eason o t h e n employment by
Director, to be employed by Y subject to any of the requirements of such members.
1 ' the Board of Directors to be subj
BUSINESS OFFICE AND STAFF
W 7.1 Subject to the provisions of Paragraph 7.2 below, the Authority's business office shall er
initially be located at the offices of the its peb onne Agencies) ilable as necessary
c
(city) California. (Agency)
shall make ava
to perform the secretarial, clerical and administrative duties of the Authority. The
beh af of reimburse (Agency) for any personnel time expended on
rate of salary, plus benefits, along
behallf of the he A Authority at Agency's)
' a with any materials used, upon presentation of periodic billings.
7.2 The Board of Directors may, from time -to -time, change the location of the Authority's
business office and/or utilize the secretarial, clerical and administrative services or
_ Y)
p t its ( A
a - other MEMBER AGENCIES o rite reimbursement foaddition
the same or employ n (Agency)
with the app
personnel to provide such services. q s business
- 7.3 Notwithstanding the provisions of Paragraphs 7.1 and 7.2, the Authority'
office shall be relocated to within the e a of the boundaries
ffective date of this Agreement
management Authority within
three y
unless the PARTIES ag the first meeting of the Board
O 8.1 As soon as possible after the formation of the Authority,
the
85
i
s �.
of Directors and annually in the month of October, a general administrative budget fi
shall be adopted by the Board of Directors. The budget shall be prepared in sufficient 3 _.
detail to constitute an operating outline for contributions to be made by the PARTIES
' and expenditures to be made during the ensuing year for operation, administration,
projects, programs, planing, study, debt service (if any) and reserves. The budget shall
be adopted by the Board of Directors, subject to ratification by the MEMBER t:4 .:
AGENCIES pursuant to Paragraph 4.3 above. Until such time as the ratification
process has been completed, the budged shall constitute a proposed budget.
8.2 If a participating MEMBER AGENCY fails or refuses to approve any general budget
of the Authority, said budget shall be returned to the Authority for restudy and/or .
revision. In the event a budget acceptable to all of the MEMBERS financially liable
. thereunder is not approve prior to the start of a fiscal year, the Authority shall
continue to operate at the level of expenditure authorized by the last approved budget
and the PARTIES thereto shall be obligated to promptly contributed their pro -rata {r;;
portion thereof to the Authority.
8.3 Each annual budget shall provide for pro -rata contributions by each participating
MEMBER AGENCY to be established by the Board of Directors of the Authority;
provided, however, that the minimum annual contribution by each MEMBER
AGENCY shall be $50,000 in the first year and adjusted thereafter as needs and rr
inflationary pressure may require.
8.4 The contribution from each MEMBER of the AUTHORITY specified in any budget
shall be due, payable and delivered to the Authority within 30 days after receipt of a
billing from the Authority or as soon thereafter as a warrant can issue in the normal
course of a MEMBER's business. To the extent permitted by State law, unpaid, past
due contributions shall bear interest at the legal rate of interest from the date due to
the date paid.
8.5 Each MEMBER AGENCY of the Authority expressly possesses and reserves to itself
final and absolute discretion to approve or disapprove, prior to commitment, any and
. all expenditures or other financial obligations of the Authority, other than approved
budgeted items, insofar as such expenditures or obligations are, or shall be chargeable
against such MEMBER AGENCY. All General Administrative Budgets and Specific
Project budgets (Article IX, below) shall be subject to prior approval by each
MEMBER Agency to the extent that such budgets impose any financial liability on
such MEMBER AGENCY.
ARTICLE IX
SPECIFIC PROJECTS .
9.1 For matters not deemed to be of general benefit to all PARTIES (Article VIII above),
- the Authority shall function through the identification and implementation of "specific
. projects." A specific project may involve less than all of the MEMBERS of the 1
- Authority, provided that no MEMBER shall be involved without its approval. A
86
•
separate project budget and written project agreement of the PARTIES who consent
_fi ) to participation in a specific project shall be established for each specific project,
which budget and agreement shall determine the respective obligations, functions and
rights of the MEMBERS involved, and of the Authority. The members of the Board
of Directors representing the MEMBER AGENCIES who will be involved in
financing and implementing the specific project shall be and constitute a "Project
Committee" of the Authority for purposes of administration and implementation of the
specific project.
' ARTICLE X
ACCOUNTING
10.1 The fiscal years of the Authority shall be from January 1 to December 31, following. •
102FuIl books and accounts shall be maintain for and by the Authority in accordance
with practices established by or consistent with those utilized by the Controller of the
State of California for like public agencies. In particular, the Treasure of the
• Authority shall comply strictly with the requirements of the statutes governing joint
powers agencies, Chapter 5, Division 7, Title 1 of the Government Code,
commencing with Section 6500, including verifying and reporting, in writing, on the
first day of January, April, July, and October of each year to the Authority and to the
contracting parties to the agreement the amount of money the Treasurer holds for the
— CV Authority, the amount of receipt since the Treasurer's last report, and the amount
\\Y paid out since the Treasurer's last report.
10.3 The records and accounts of the Authority shall be audited annually by an
independent certified public accountant and copies of each such audit report shall be
filed with the Auditor - Controller of the County of Imperial, County of Riverside,
state Controller and each MEMBER of the authority no later than 15 days after
receipt of the audit by the Board of Directors.
10.4Each MEMBER AGENCY shall have the right to audit the records and accounts of
the Authority, the cost and expense of which shall be home by the MEMBER
Agency seeking such audit.
ARTICLE XI
REVENUE BONDS - -
11.1 The authority shall have the power and authority to issue Revenue Bonds in
accordance with State Law.
_ i ARTICLE XII •
• PROPERTY RIGHTS
■ 12.1 To the extent that any funds received by the Authority from any MEMBER are used
87
1.
for the acquisition or construction of assets, the same shall be allocated annually on
the books of the Authority to the credit of the said contributing MEMBER. �t
is
ARTICLE XIH -
ADMISSION AND WITHDRAWAL OR DISSOLUTION
13.1It is recognized that public entities, other than the original parties, may wish to
participate in the Salton sea Authority. Additional public entities may be come • w?
parties to this Agreement such terms and conditions as provided by the Board of
Directors and the consent of two- thirds (2/3) of the existing parties to the Agreement,
evidenced by the execution of a written addendum to this Agreement, and signed by -;
all of the parties including the additional party. .
13.2 Withdrawal from the Authority -
It is fully anticipated that each party hereto shall participate in the Authority until
purposes set forth in this Agreement are accomplished, the withdrawal of any party, [
either voluntary or involuntary shall be conditioned as follows: --
a. In the case of a voluntary withdrawal following a properly noticed public E,_
hearing, written notice shall be given to the Authority, one year and ninety days
prior to the effective date of withdrawal;,
b. Withdrawal shall not relieve the party of its proportionate share of any debts or iii
other liabilities incurred by the Authority prior to the effective date of the parties'
' notice of withdrawal;
c. Withdrawal shall result in the forfeiture of that party's rights and claims relating
to distribution of property any funds upon termination of the Authority as set forth -
in section 13.3 and 13.4 below. _
13.3 Upon dissolution of the Authority, there shall be a partial or complete distribution of
assets and discharge of liabilities as follows:
a. Upon withdrawal of any MEMBER of the Authority prior to dissolution, the
withdrawing MEMBER shall forfeit its proportionate share of the assets of the
Authority and shall contribute its proportionate or otherwise defined share towards
the discharge of any enforceable liabilities incurred by the Authority as the same
appear on the books of the Authority.
• b. Upon dissolution of the Authority, each MEMBER shall receive its _
proportionate or otherwise defined share of the assets of the Authority within a
reasonable amount of time after dissolution, and each MEMBER shall contribute
its proportionate or otherwise defined share toward the discharge of any
enforceable liabilities incurred by the Authority as the same appear on the books of
the Authority. t
88 -
., ..
a ;
13.4The distribution of assets may be made in kind or assets may be sold and the
e ) %; ?) proceeds thereof distributed to the MEMBERS at the time of dissolution after the
discharge of all enforceable liabilities. •
ARTICLE XIV
14.1 Hold Harmless and Indemnity
Each party hereto agrees to indemnify an hold the other parties harmless from all
liability for damage, actual or alleged, to persons or property arising u its of or
resulting from negligent acts or omissions of the indemnifyin party o
employees. Where the Board of Directors itself or its agents or employees are held
liable for injuries to persons or property, each party's liability for contribution or
— indemnity for such injuries shall be abased proportionately upon the contributions
(less voluntary contributions) of each member. In the event of liability imposed upon
any of the parties to the Agreement, or upon the Board of Directors created by this
Agreement, for injury which is caused by the negligent or wrongful act or omission
of any of the parties in the performance of this Aa eement, the contribution of the
party or parties not directly responsible for the negligent or wroi gfulliacact or fission
shall be limited to One Hundred Dollars (S 100.00). The party P
responsible for the negligent or wrongful acts or omissions shall indemnify, defend,
and hold all other parties harmless form any liability for personal injury of property
damage arising out of the performance of this Agreement.
•
ARTICLE XI
TERM: RESCISSION OR TERMINATION -
15.1 This Agreement shall remain in effect and the Authority shall continue to manage
_ and operate Salton sea for a period of 40 years form the Effective Date of this
Agreement or until this Agreement is extended or terminated as provided for herein.
15.2This Agreement may be extended or terminated by written consent of a majority of
the MEMBER AGENCIES evidenced by certified copies of resolutions of their
governing bodies; provided, however, that no such termination shall be effective
until all revenue bonds and other forms of indebtedness issued pursuant hereto, and
the interest thereon, shall have been paid or adequate provision for such payment
shall have been made in accordance with the resolution of the authority authorizing
the issuance thereof.
•
A RTICLE XVI
ARBITRATION
41- 16.1 Any controversy or claim between any two or more parties to this Agreement, or
between any such party of parties and the Authority with respect to disputes,
8 9
•
•
•
demands, differences, controversies, or misunderstandings arising in relation to
interpretation of this contract, or any breach thereof, shall be submitted to and
determined by arbitration. The party desiring to initiate arbitration shall give notice
•
of its intention to arbitrate to every other party to this Agreement and the Authority.
Such notice shall designate as "respondents" such other parties as the initiating party
intends to have bound by any award made therein. Any party not so designated but
which desires to join in the arbitration may, within 10 (10) days of the service upon it
of such notice, file a response indicating its intention to join in and to be bound by
the results of the arbitration, and further. designation any other parties it wishes to .
name as a respondent. Within twenty (20) days of the service of the initial demand
for arbitration, the initiating party and the respondent shall each designate a person to
act as an arbitrator.. The two designated arbitrators shall mutually designate a third
person to serve as arbitrator. The three arbitrators shall proceed to arbitrate the matter
accordance with the provisions of Title 9 of Part 3 of the Code of Civil Procedure,
section 1280 et.seq. The parties to this Agreement agree that the decision of the
arbitrators will be binding.
ARTICLE XVII
• NOTICES
•
17.1 Notices under this Agreement shall be sufficient if addressed to the principal office
of each of the PARTIES hereto and shall be deemed given upon deposit in the U.S.
Mail, First - Class, Postage Prepaid.',
17.2A11 notices, statements, demands, requests, consents, approvals, authorizations,
agreements, appointments or designations hereunder shall be given in writing and •
addressed to the principal office of each member of the Authority.
• 0
ARTICLE XVIII
MISCELLANEOUS •
18.1 The section headings herein are for convenience only and are not be construed as
modifying or governing language in the section.
18.2 This Agreement is made in the State of California and under the Constitution and
• laws of this State and is to be so construed.
- 18.3 This Agreement may be amended form time -to -time in writing by unanimous action
of the PARTIES; provided, however, that any such amendment shall take into •
consideration the holders of any revenue bonds or other forms of indebtedness which
are outstanding in accordance with any resolution of the authority authorizing the
issuance thereof. p
18.4This Agreement shall be binding upon and shall inure to the benefit of the successors
. of the PARTIES.
90 PI
' 18.5If any one or more of the terms, provisions, promises, covenants or conditions of this
an
Agreement shall to extent be adjudged invalid, unenforceable, void or voidable,
A any adjudged
for any reason whosoever by a court of competent jurisdiction, each and all of the
remaining terms; provisions, promises, covenants, and conditions of this Agreement
shall not be affected thereby and shall be valid and enforceable to the fullest extent
permitted by law.
18.6The PARTIES shall not assign any rights or obligations under this Agreement
without the written consent of all other PARTIES.
IN WITNESS WHEREOF, the PARTIES have executed this Agreement on the day
and year hereinafter indicated.
The document is signed and dated by the following persons:
Riverside County, Patricia Larson, Chair, Board Supervisors, August 4, 1993
Imperial County, Wayne J. Van De Graaff, Chair, Board of Supervisors, September 7,
1993
Imperial Irrigation District, Lloyd Allen, President, Board of Directors, August 16, 1993
Coachella Valley Water District, Tellis Codekas, President, Board of Directors, August
12, 1993
[The JPA the agreement became effective as of the date on which all of the parties to
this agreement approved and executed this agreement.]
•
91
0
Gt
•
This page was intentionally left blank.
92
Joint Exercise of Powers Agreement Between the City of Oxnard and the United
(7 Water Conservation District Creating the RiverPark Reclamation and Recharge
Authority
•
This Joint Exercise of Powers Agreement (the "Agreement "), dated for
reference September 17, 2002, is entered by and among the City of Oxnard, a general law
city, ( "Oxnard ") and the United Water Conservation District, a special district
( "UWCD ") with respect to the development of land in and adjacent to Oxnard identified
as "RiverPark" and more precisely defined in that certain development agreement
between Oxnard and RiverPark A, LLC and RiverPark B, LLC, approved by the Oxnard
City Council on September 17, 2002. Oxnard and UWCD shall be collectively known as
the "Parties" and individually as "Party". This Agreement is made pursuant to the Joint
Exercise of Powers Law (Articles 1 through 4 [commencing with Section 6500] of
Chapter 5, Division 7, Title 1 of the California Government Code, as now or hereafter
amended, hereinafter the "Act ").
PREAMBLE
WHEREAS, each of the Parties has determined that there is a need to
develop a process to secure grant funding and other public and private funding to
implement the Oxnard Plain Groundwater Recharge Program ( "Recharge Program ")
previously adopted by the Board of Directors of UWCD, and as thereafter amended, a
copy of which is on file with the Executive Director of UWCD and the RiverPark
Reclamation Plan ( "Reclamation Plan ") submitted to Oxnard for approval by RiverPark
B, LLC on June 4, 2002, and as thereafter amended, a copy of which is on file with the
City Clerk of Oxnard; and
WHEREAS, each of the Parties has determined that the creation and use
by the Parties of a single entity to secure grant funding and other public and private
funding to implement the Recharge Program and Reclamation Plan is in the public
interest; and
•
WHEREAS, Oxnard and UWCD are each authorized by law to secure
public funding to implement programs that are of benefit to the public, including, but not
limited to, the Recharge Program and Reclamation Plan; and
WHEREAS, Oxnard and UWCD are each authorized by law to purchase,
acquire, own, lease, and use real and personal property necessary or convenient for the
conduct of its governmental business; and
WHEREAS, the Parties have determined that the creation of a single .
- entity for such purposes will be a great benefit to Oxnard, UWCD and those individuals,
businesses and agricultural users that receive water either directly or indirectly from one
or both of those entities.
63594v5 1
September 4„ 2002 revision
93
•
•
•
NOW, THEREFORE and in consideration of the foregoing and of the
• • mutual covenants and promises herein set forth, the Parties agree as follows:
ARTICLE I
PURPOSE AND ADMINISTRATION
A. Puipose. The purpose of this Agreement is to create a public entity to
secure grant funding and other public and private funding to reclaim mining pits for water
recharge purposes, to implement the Recharge Program and Reclamation Plan, and to
undertake other groundwater recharge, groundwater quality, and water supply programs
as the Board of Directors ( "Board ") may find to be within the public interest.
B. Creation of Authority. Pursuant to the Act, there is hereby created
a public entity to be known as the "Oxnard Plain/RiverPark Reclamation and
Groundwater Recharge Joint Powers Authority" (the "Authority"). The Authority shall
be a public entity separate and apart from the Parties.
C. Board of Directors.
(1) Created. The Authority shall be administered by a Board.
The Board shall be called the "Board of Directors of the Oxnard Plain /. RiverPark
Reclamation and Groundwater Recharge Joint Powers Authority." All voting power of mni
the Authority shall reside in the Board. 4�
• (2) Directors. Each of the Parties shall appoint two Directors
and their alternates to the Board of the Authority.
(3) Terms: Vacancies. (a) Each Director and alternate shall
serve a three -year term commencing on the later of his or her appointment or the
effective date of this Agreement and ending on June 30th of the third year following his
or her appointment and each Director and the alternates shall serve at the pleasure of the
party making the appointment.
•
(b)' Directors and alternates shall continue to serve until their successors are
• appointed. •
(c) Vacancies shall be filled in the same manner as the original appointments.
(d) Nothing in this Agreement shall bar the reappointment of a Director or an •
alternate.
(4) Compensation: Expenses. Directors and alternates may be
entitled to compensation from the Authority for service on the Board as may be provided
by Board resolution. Each Director and alternate may be reimbursed for his or her
63594v5 2 -' 1
September 4,. 2002 revision
94
•
necessary expenses including travel incurred in connection with his or her services as
- eb Director, pursuant to resolution of the Board.
u, D. Meetings of the Board.
(1) Regular Meetings. Regular meetings of the Board shall be
held at such times and places as the Board may fix by resolution from time to time, and if
any day so fixed shall fall upon a legal holiday, then, upon the next succeeding business
day at the same hour. No notice of any regular meeting of the Board need be given to the
Directors.
(2) Special Meetings. Special meetings of the Board may be
called in accordance with the provisions of Section 54956 of the Califomia Government
Code.
(3) Call. Notice and Conduct of Meetings. All meetings of the
Board, including without limitation, regular, adjourned regular and special meetings,
shall be called, noticed, held and conducted in accordance with the provisions of Sections
• 54950 et seq. of the Califomia Government Code. •
E. Minutes. The Secretary shall cause minutes to be kept of the meetings
of the Board, and shall, as soon as possible after each meeting, cause a copy of the
minutes to be forwarded to each Director and to each of the Parties.
F. Voting. Each Director and each alternate shall have one vote. A vote
may only be exercised by the Director or altemate in attendance at the meeting and no .
alternate may vote if the Director for whom that altemate was appointed is in attendance
at the time the vote is cast. In no event shall either Party have more than two votes.
•
G. Quorum; Required Votes; Approvals. Three of four Directors or
alternates shall constitute a quorum of the Board, provided that an alternate may not be
counted toward a quorum if the Director for whom he or she serves is also to be counted .
.. I toward a quorum. A minimum of three votes shall be necessary for the Board to take any
action, provided that less than a quorum may adjoum meetings of the Board.
H. By -laws. The Board may adopt by -laws and rules and regulations
for the conduct of its meetings or as are necessary for the purposes hereof. .
r i I. Fiscal Year. The fiscal year of the Authority shall be from July 1
of one year to June 30 of the following year, or any other twelve -month period hereafter
designated by the Board by resolution. -
•
J. Personnel. The Board shall be responsible for the regulation of all
personnel activities, including but not limited to the selection, recruitment, discipline, and
discharge of any Authority staff The Board may designate a person or persons to
.
_ 63594v5 3
•
September 4„ 2002 revision
95
perform any or all of the duties of this paragraph J. and to take such action as is necessary
and appropriate with regard to those duties.
ARTICLE II
OFFICERS AND EMPLOYEES
A. Chair. The Authority shall have a Chair who shall be a Director and
who shall be selected as Chair by the Board and who shall perform the duties customary
to said office. The Chair may sign contracts on behalf of the Authority, and shall perform
such other duties as may be imposed by the Board.
B. Vice - Chair. The Authority shall have a Vice Chair who shall be a
Director and who shall be selected by the Board. In the absence of the Chair, the Vice -
Chair shall perform the duties of the Chair and shall perform all duties customary to such
office.
C. Secretary. The Authority shall have a Secretary who need not be a
Director and who shall be selected by the Board and shall perform all duties customary to
such office.
D. Treasurer and Auditor. Pursuant to Sections 6505.5 and 6505.6 of the
Act, the Finance Director of Oxnard is designated as the Treasurer /Auditor of the
Authority. The Treasurer /Auditor shall be the depository, shall have custody of all of the
accounts, funds and money of the Authority from whatever source, shall have the duties
and obligations set forth in Sections 6505 and 6505.5 of the Act and shall assure strict
accountability of all funds and reporting of all receipts and disbursements of the
Authority. As provided in Section 6505 and Section 6505.6 of the Act, the
Treasurer /Auditor shall make arrangements with a certified public accountant or firm of
certified public accountants for an annual independent audit of accounts and records of
the Authority.
E. Executive Director. The Board may appoint an Executive Director and
may delegate authority to the Executive Director to execute contracts approved by the
Board and to perform any duties necessary and appropriate for the day -to -day
management and operation of the Authority.
F. Officers in Chane of Records, Funds and Accounts. Pursuant to
Section 6505.1 of the Act, the Treasurer /Auditor shall have charge of, handle and have ,
access to all accounts, funds and money of the Authority and all records of the Authority
relating thereto. The Secretary shall have charge of, handle and have access to all other
records of the Authority.
G. General Counsel. The Board may appoint a General Counsel of the
Authority who shall provide legal advice and perform such other duties as may be
prescribed by the Board. - --
63594v5 4
S5ptember 4„ 2002 revision
•
96
H. Other Employees. The Board shall have the power to appoint and
employ such other employees, consultants and independent contractors as may be
necessary to accomplish the purposes of this Agreement.
I. Assistant Officers. The Board may appoint such assistants to act in the
place of the Secretary or other officers of the Authority, other than any Director, as the
Board shall from time to time deem appropriate.
J. Removal and Reappointment. Unless otherwise expressly stated, all
officers of the Authority shall serve at the pleasure of the Board. However, nothing in
this paragraph J. shall authorize the Board to appoint or dismiss a Director or the
Treasurer /Auditor.
ARTICLE III '
POWERS
A. General Powers. The Authority shall exercise in the manner herein
provided the powers common to the Parties necessary or appropriate to the
accomplishment of the purposes of this Agreement.
B. Specific Powers. The Authority is authorized, in its own name, to
- 'e' do all acts necessary for the exercise of the foregoing powers, including but not limited
to, any or all of the following:
(1) to develop, plan and implement the Recharge Program and
Reclamation Plan, to reclaim mining pits within the Oxnard Plain
, - for groundwater recharge purposes, and to undertake such other
related programs as the Board may authorize;
d,. (2) to make and enter into contracts;
(3) to employ agents or employees;.
(4) to acquire, construct, own, manage, maintain, dispose of, or
any property or improvements necessary to implement and/or
maintain the Recharge Program and Reclamation Plan;
(5) the right of eminent domain to take any property
reasonably necessary to implement the Recharge Program and
Reclamation Plan or to otherwise fulfill the purposes of the
Authority;
(6) to sue and be sued in its own name;
63594v5 5 September 4„ 2002 revision
it !zr
SI
0
(7) to incur debts, liabilities or obligations, provided that no
such debt, liability or obligation shall constitute a debt, Liability or
obligation of any or all of the Parties to this Agreement;
(8) to apply for, accept, receive and disburse grants, loans and •
other aid from any agency of the United States of America, the r?
State of Califomia, or of the County of Ventura or any private
source;
(9) to invest any money in the treasury pursuant to Section
6505.5 of the Act that is not required for the immediate necessities
of the Authority, as the Authority determines is advisable, in the
same manner and upon the same conditions as local agencies,
pursuant to Section 53601 of the California Government Code;
�a.
(10) to contract with Oxnard, UWCD, the County of Ventura, or
any other appropriate entity, to administer funds, including grant
funds, received by the Authority;
(11) to disburse funds to Oxnard, UWCD, RiverPark or any
third party, provided that such disbursement is reasonably ;r{
necessary to develop, plan, implement and/or maintain the
Recharge Program and Reclamation Plan or otherwise to attain the
purposes of this Agreement; ft
(12) to implement the Recharge Program and Reclamation Plan
consistent with the grant covenants and any applicable rules and
regulations relating to such Recharge Program.and Reclamation
Plan; and
(13) to carry out and enforce all the provisions of this
Agreement.
C. No Effect on Powers of Other Agencies. Notwithstanding
anything contained in this Agreement to the contrary, no provision of this Agreement
shall be construed as denying to Oxnard, the UWCD or the Fox Canyon Ground Water
Management Agency any rights or powers they already have or which they may hereafter
be granted.
D. Oblieations of Authority. The debts, liabilities and obligations of „
the Authority shall not be the debts, liabilities and obligations of any or all of the Parties
to this Agreement.
63594v5 6 -
September 4.. 2002 revision
98
ARTICLE IV
l` CONTRIBUTION: ACCOUNTS AND REPORTS: FUNDS
A. Contributions. Each of the Parties may in the appropriate
• circumstance when required hereunder: (1) make contributions from their treasuries for
the purposes set forth herein, (2) make payments of public funds or private funds to
defray the cost of such purposes, (3) make advances of public funds for such purposes,
such advances to be repaid as provided herein, or (4) use its personnel, equipment or
° property in lieu of other contributions or advances. The provisions of Section 6513 of the
• California Government Code are hereby incorporated into this Agreement.
B. Accounts and Reports. The Treasurer /Auditor shall establish and
•
maintain such funds and accounts as may be required by any applicable laws or .
regulations, good accounting practice, or by any provision of any trust agreement entered
into with respect to the proceeds of any bonds issued by the Authority. The books and
records of the Authority in the hands of the Treasurer /Auditor shall be open to inspection
at all reasonable times by representatives of the Parties. The Treasurer /Auditor, within
120 days after the close of each fiscal year, shall give a complete written report of all
financial activities for such' fiscal year to the Parties. The trustee appointed under any
trust agreement shall establish suitable funds, furnish financial reports and provide
suitable accounting procedures to carry out the provisions of said trust agreement. Said
trustee may be given such duties in said trust agreement as may be desirable to carry out
0 this Agreement.
•
•
C. Funds. Subject to the applicable provisions of any instrument or
agreement into which the Authority may enter, which may provide for a trustee to
receive, have custody of and disburse Authority funds, the Treasurer /Auditor of the
Authority shall receive, havethe custody of and disburse Authority funds in accordance
• with generally accepted accounting practices, shall approve demands against the
Authority pursuant to Government Code Section 6505.5(e), and shall make the
•
disbursements required by this Agreement or necessary to carryout any of the provisions
or purposes of this Agreement.
D. Annual Budget and Administrative Expenses. The Board shall
adopt a budget for administrative expenses, which shall include all expenses not included
in any financing issue of the Authority, prior to the commencement of each fiscal year.
At such time that the Authority receives public grant funding, Oxnard and UWCD each
shall be entitled to be reimbursed for its reasonable administrative expenses relating to
the Authority, in particular and without limitation Oxnard shall be reimbursed for the
. reasonable cost of services provided by the Treasurer /Auditor.
63594v5 7
N. September 4,. 200 revision
. 99
I -
•
ARTICLE V
9
TERM; DISPOSITION OF ASSETS
A. ' Term. This Agreement shall continue in full force and effect until
terminated by a unanimous vote of the Board or until such time as the Parties to this H.
Agreement are reduced to one.
B. Disposition of Assets. Upon the winding up and dissolution of the t>
Authority, after paying or adequately providing for the debts and obligations of the
Authority, the remaining assets of the Authority shall be distributed to the Parties. If, for
any reason, the Parties are unable or unwilling to accept the assets of the Authority, said
assets will be distributed to the United States government or to the State of California or
any local government for public purposes.
C. Terminations. Any Party may withdraw from its status as a Party
to this Agreement on sixty (60) days notice, provided that that Party's withdrawal shall
not become effective until that Party has either discharged, or arranged for, to the
satisfaction of the remaining members of the Board, the discharge of any pending
obligation the Party has assumed hereunder.
D. Continuation. The inclusion of additional parties to this
Agreement or the withdrawal of some, but not all, of the Parties to this Agreement shall
not be deemed dissolution of the Authority or a termination of this Agreement. The ',j
Authority shall continue to exist and this Agreement shall continue in full force and effect
so long as there shall be at least two Parties to this Agreement.
ARTICLE VI
DISPUTE RESOLUTION
If at any time the Parties are unable to agree on any matter, they shall meet and
confer in an attempt to resolve their differences. If the Parties are unable to do so they
shall jointly appoint a third person to mediate a resolution of their differences. In the
event the Parties are unable to agree on a mediator, then each Party shall name three
retired judges or other attorneys experienced in mediation, each Party may eliminate as
many as two of the names provided by the other and, if the Parties cannot agree upon a
mediator from the names remaining, the mediator shall be selected by lot from between
- them.
ARTICLE VII
GENERAL PROVISIONS
A. Notices. Any notices required by or given pursuant to this
Agreement shall be in writing and shall be delivered to the each of the Parties at the td),
63594v5 8
September 4., 2002 revision
100
address of their principal business offices listed below or at such other address as any
J Party may specify in writing to the Authority:
— City of Oxnard
300 West Third Street
Oxnard, CA 93030 .
Attn: City Manager
Facsimile: (805) 385 -7806
eu City of Oxnard
300 West Third Street
Oxnard, CA 93030
Attn.: City Attorney
Facsimile: (805) 385 -7423
in
United Water Conservation District
106 North Eighth Street
Santa Paula, California 93060 •
Attn.: General Manager
. Facsimile: (805) 525 -2661
Phil Drescher, General Counsel
United Water Conservation District
P.O. Box 9100
Oxnard, CA 93031 -9100
Facsimile: (805) 988 -8387
B. Governing Law. This Agreement shall be deemed to have been
made and shall be construed and interpreted in accordance with the laws of the State of
California.
C. Headings. The article and paragraph headings contained in this
Agreement are for the convenience of reference only and are not intended to define, limit
or describe the scope of any provision of this Agreement.
D. Consent. Whenever any consent or approval is required by this
Agreement, such consent or approval shall not be unreasonably withheld.
E. Amendments. This Agreement may be amended at any time, or
from time to time, or by applicable regulations or laws of any jurisdiction having
authority, by one or more supplemental agreements executed by all of the Parties to this
Agreement either as required to carry out any of the provisions of this Agreement or for .
p any other purpose. - 63594v5 9 - -
. September 4., 2002 revision -
. 101
F. Enforcement by Authority. The Authority is hereby authorized to � ti
take or seek any or all legal or equitable actions or remedies, including but not limited to
injunction and specific performance, necessary or permitted by law to enforce this
Agreement.
G. Severability. Should any part, term or provision of this Agreement
be decided by any court of competent jurisdiction to be illegal or in conflict with any
applicable law, or otherwise be rendered unenforceable or ineffectual, the validity of the
remaining parts, terms, or provisions of this Agreement shall not be affected thereby and t .;
to that end the parts, terms and provisions of this Agreement are severable.
H. Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the Parties. The Parties may not assign any right or -
obligation hereunder without the written consent of the other Parties to this Agreement.
sz
I. New Parties. Upon unanimous approval by the Board and by their
governing bodies, additional public agencies may become parties to this Agreement.
J. Execution in Counterparts. This Agreement may be executed on
behalf of the respective Parties in one or more counterparts, all of which collectively shall
constitute one document and agreement.
K. Effective Date. This Agreement shall take effect upon its
execution on behalf of the later of the Parties to do so.
s .
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
- to be executed and attested by their proper officers thereunto duly authorized, on the day __
and year set opposite the name of each of the Parties.
63594v5 10 ` - "1
September 4.. 2002 revision
102
CITY OF OXNARD -
at
r By:
Dr. Manuel M. Lopez
Mayor '
+r
Dated: , 2002
° - - ATTEST: •
Daniel Martinez
City Clerk .
APPROVED AS TO FORM: .
Gary Gillis
City Attorney
UNITED WATER CONSERVATION DISTRICT
By:
President
I
1
Dated: , 2 002
i
, ATTEST:
Secretary -
• \\ � \ \s - 63594v5 11
Seotember 4., 2002 revision
{{ 103
ki