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HomeMy WebLinkAboutContract 1774C - 17-7-9 RESTATEMENT AND FOURTH AMENDMENT JOINT POWERS AGREEMENT CREATING THE COACHELLA VALLEY CONSERVATION COMMISSION This Agreement is intended to be a restatement and fourth amendment of the Joint Powers Agreement Creating the Coachella Valley Conservation Commission dated December 1, 2005. This Agreement is made and entered into on the e - day of / 2014, for identification purposes only, pursuant to Government Code Sections 6500 et seq., by and between the following public agencies: (a) City of Cathedral City, (b) City of Coachella, (c) City of Desert Hot Springs (d) City of Indian Wells, (e) City of Indio, (f) City of La Quinta, (g) City of Palm Desert, (h) City of Palm Springs, (i) City of Rancho Mirage, (j) County of Riverside, (k) Coachella Valley Water District, (1) Imperial Irrigation District, and (m) Mission Springs Water District. The foregoing public agencies are referred to herein below, individually and collectively, as "Party" or "Parties," "Member" or "Members" and "Member Agency" or "Member Agencies." The following public agencies are ex officio, non-voting "Participants" on CVCC's governing board: (n) (o) (P) (q) 4th Amended Coachella Valley Association of Governments (CVAG); Riverside County Flood Control and Water Conservation District; Riverside County Regional Parks and Open Space District; and Riverside County Waste Management District. Coachella Valley Conservation Commission JPA the City of Desert Hot Springs, including the Desert Hot Springs I-10 Community Annexation Area. In so doing, the Parties also wish to ratify the Third Amendment to this Agreement. NOW, THEREFORE, it is agreed by and between the Parties hereto as follows: Article 1 Definitions Section 1.1 Definitions. Unless otherwise defined herein, or the context requires otherwise, the terms with the initial cap letters that are used in this Agreement shall have the same meaning as set forth in the MSHCP. As used in this Agreement, unless the context requires otherwise, the meaning of the terms set forth below shall be as follows: (a) "Accrue," in the context of the date that an obligation of CVCC accrued, shall not refer to the date of a demand or claim. Rather, where there is one act, omission or event giving rise to the obligation, the date of that one act, omission or event shall be the date the obligation accrued. However, where an obligation arises out of more than one act, omission or event, the accrual date shall refer to the entire period of time running from the first act, omission or event through the date of the last act, omission or event related to the same obligation. (b) "Commission" shall mean the governing legislative body of CVCC. (c) "Commissioner" shall mean the individual designated by a Member Agency to serve as the Member's representative on the Commission. Except where the context dictates otherwise, references to "Commissioner" shall include a reference to the alternate designated by the Represented Member Agency to serve in the absence of a Commissioner. (d) "CVAG" shall mean the Coachella Valley Association of Governments. (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 1 of the California Government Code (Sections 6500, et seq.). (f) "Member" or "Member Agency" shall mean a public agency with voting rights in CVCC listed in subparagraph (a) through (1) in the opening paragraph of this Agreement that becomes a signatory to this Agreement or any new party as permitted pursuant to Section 13.1 (Admission of New Parties). 4th Amended 3 Coachella Valley Conservation Commission JPA Article 3 Powers and Duties of CVAG Section 3.1 CVAG's Participation. CVAG shall be a non-voting ex officio Participant of CVCC and shall have the following powers and duties: (a) To provide, under contract with CVCC, all administrative services required by CVCC during the first five (5) years of the implementation of the MSHCP; and thereafter as the administrative services contract may be renewed from time to time by CVCC; (b) To empower its Executive Director to serve as Secretary of CVCC; (c) To exercise such other powers and duties as the Commission deems necessary to achieve the purposes of this Agreement. Section 3.2 Principal Office. The principal office of CVAG shall be the principal office of CVCC. The Commission is hereby granted full power and authority to change said principal office from said location to another within the Coachella Valley. Article 4 Term of Agreement Section 4.1 Term. This Agreement shall become effective and CVCC shall exist at such time as this Agreement has been executed by at least a majority of the public agencies identified in the first paragraph of this Agreement. This Agreement shall be automatically terminated and considered null and void in the event that, after the Member Agencies which determine not to adopt the MSHCP have withdrawn from CVCC, the MSHCP is not approved by the remaining Parties or the Permit contemplated thereby is not issued by the Wildlife Agencies. Upon issuance of the Permit, the term of this Agreement shall automatically expire at such time as CVCC shall have no further obligations pursuant to the MSHCP or the Permit. 41h Amended 5 Coachella Valley Conservation Commission JPA (b) To make and enter into contracts, leases and other agreements; (c) To incur debt, liabilities or obligations; (d) To acquire, hold and dispose of property by purchase, lease, lease purchase or sale as necessary to the full exercise of its powers; (e) To lease, acquire, construct, manage, maintain and operate any buildings, works or improvements; (f) To sue and be sued in its own name; (g) To contract for the services of engineers, attorneys, planners, educators, scientists, technical specialists, fmancial consultants and, separate and apart therefrom, to employ such other agents, employees, consultants, advisors, independent contractors and other staff as it deems necessary; (h) To issue bonds, notes and other indebtednesses, and to enter into installment sale and installment purchase contracts, all as provided for in Section 11.9 (Issuance of Bonds, Notes and Other Indebtedness); (i) 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 of California or other public or private entities; (j) To receive gifts, contributions and donations of property, funds, services and other forms of financial assistance from persons, firms, corporations and any governmental entity; (k) To adopt rules, regulations, policies, bylaws and procedures governing the operation of CVCC; (1) To perform all acts necessary or proper to carry out fully the purposes of this Agreement; (m) To invest any money in the treasury pursuant to California Government Code Section 6505.5 that is not required for the immediate necessities of CVCC, as CVCC determines is advisable, in the same manner and upon the same conditions as local agencies pursuant to California Government Code Section 53601; (n) To the extent not hereinafter specially provided for, to exercise any powers in the manner and according to the methods provided under the laws applicable to the County of Riverside; and 41h Amended 7 Coachella Valley Conservation Commission JPA been terminated or is otherwise unwilling or unable to act as the designating Member Agency's representative, and a replacement Commissioner has not yet been designated, and there is no designated alternate, such that a Member Agency has no duly acting representative on the Commission, that Member Agency's vacant Commission seat shall not be included when calculating the number of Commissioners necessary to constitute a quorum or the number of votes necessary to approve an action. Except as otherwise provided in this Agreement, every act or decision made by a majority of the Commissioners present at a meeting duly held at which a quorum is present is the act of the Commission. In the absence of a quorum, any meeting of the Commissioners may be adjourned from time to time by a vote of the majority present, but no other business may be transacted except as provided for in this Section. Section 7.6 Chair and Vice -Chair. The Commission shall annually elect from its membership a Chair and Vice -Chair to serve for a one-year term. Section 7.7 Conduct of Meetings. The Chair or, in the absence of the Chair, the Vice - Chair, shall preside at all meetings of the Commissioners. Section 7.8 Resignation of a Commissioner. Any Commissioner may resign effective on giving written notice to the Commission and the other Member Agencies, unless the notice specifies a later time for the effectiveness of such resignation. A successor shall be appointed by the Represented Member Agency as provided for in this Agreement. Section 7.9 Vacancies on the Commission. A vacancy on the Commission shall exist (a) on the death or resignation of any Commissioner, (b) at the end of any Commissioner's term on the governing body of the Represented Member Agency, (c) whenever the number of Commissioners is increased, (d) upon termination by the Represented Member Agency, or (d) on the failure of the Member Agencies to appoint the full number of Commissioners authorized. A vacancy shall be filled only by the Represented Member Agency for whom a Commissioner is not then serving. Absent notice to the contrary from the Represented Member Agency, the alternate for the Represented Member Agency may continue to act in the place of the vacating Commissioner. Section 7.10 Other Officers. The Executive Director of CVAG shall be the secretary of CVCC. Any officer, employee or agent of any Member of CVCC may also be an officer, employee, or agent of any of the Member Agencies. CVCC shall have the power to appoint such additional officers and to employ such employees and assistants as may be appropriate. Each 4t° Amended 11 Coachella Valley Conservation Commission JPA Article 9 Conduct of Meetings Section 9.1 Compliance with Brown Act. All meetings of the Commission and other CVCC committees, including, without limitation, regular, adjourned regular and special meetings, shall be called, noticed, held and conducted in accordance with applicable provisions of the Ralph M. Brown Act, California Government Code Sections 54950, et seq. Article 10 Employees Section 10.1 CVCC Staff. CVCC may contract with CVAG for staff services, retain its own staff, or contract with another entity for services. Unless other employment is approved by the Commission, the CVCC Executive Director may utilize CVAG staff as may be necessary to accomplish the purposes of CVCC. CVAG staff time, as well as office expenses, direct and indirect overhead, shall be charged to CVCC utilizing direct billing and other accounting practices that provide for a clear separation of funds. Section 10.2 Status. Where CVAG's or other Member Agency's staff are utilized to accomplish the purposes of CVCC, all of the privileges and immunities from liability, exemption from laws, ordinances and rules, all pension, relief, disability, worker's compensation and other benefits which apply to the activity of officers, agents or employees of any of the Members when performing their respective functions shall apply to them to the same degree and extent when engaged in the performance of any of the functions and other duties under this Agreement. However, no staff employed directly by CVCC, if any, shall be deemed, by reason of their employment by CVCC, to be employed by any of the Members or, by reason of their employment by CVCC, to be subject to any of the employment requirements of the Member Agencies. Section 10.3 Legal Counsel. CVCC may appoint General Counsel who shall provide legal advice and perform such other duties as may be prescribed by the Commission. Counsel to one or more of the Members shall be eligible to serve as General Counsel to CVCC and such appointment shall not, by itself, be deemed to be inconsistent, incompatible, in conflict with or 4'" Amended 13 Coachella Valley Conservation Commission JPA Section 11.5 Working Capital 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 CVCC, shall be established by the Commission in an amount approved in connection with the annual budget process. Section 11.6 Additional Funding. In the event that the Commission proposes to seek funding for a budget in excess of the funds available from the funding mechanisms set out in the Plan, an advance or grant may be requested from CVAG and/or any Member Agency. Should such request be declined, the Commission, by three-fourths vote of the Member Agencies, meaning an affirmative vote by three-fourths of the total number of Member Agencies, may levy an assessment on Member Agencies. Said vote shall include a determination as to the amount deemed necessary and the manner of apportionment. Thus, notwithstanding the fact that the County shall be represented by five Commissioners, the County shall have only one vote on issues of assessments or apportionment thereof. The determination as to the apportionment of an assessment shall be fair and reasonable given the purpose for which the assessment is required and the degree to which each Member is affected and/or benefited by the contemplated expenditure. A Member Agency unable to immediately fund an assessment shall be permitted to pay an assessment in installments. Subject only to the arbitration rights set out at Section 11.7, the determination of the assessment to be paid by each Member and the due date shall be fmal, binding and enforceable as a term of this Agreement. Nothing in this Agreement shall be construed by the Parties to require the expenditure of any money from the general funds of a Party unless expressly authorized by the appropriate governing body of that Party. Section 11.7 Arbitration. Notwithstanding any other provision herein, the Parties agree as follows: Any determination with respect to an assessment levied pursuant to Section 11.6, 13.4 or 15.3 shall be subject to binding arbitration at the request of any Party to which liability is assigned; provided, however, that the request for arbitration shall be made within ninety days of the date that the Commission votes to impose the assessment. If the Parties cannot agree on the method of arbitration and selection of the arbitrator within ninety days of notice of the request for arbitration, the arbitration shall be administered by JAMS, or its successor, pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator shall exercise his or her 41h Amended 15 Coachella Valley Conservation Commission JPA another Party to this Agreement. All property, equipment, supplies, funds and records of CVCC shall be owned by CVCC, except as otherwise provided in this Agreement. Article 13 Admission and Withdrawal of Parties Section 13.1 Admission of New Parties. To the extent that the Plan Area falls within an agency's jurisdictional boundaries, any public agency identified in the first paragraph of this Agreement, which public agency did not execute the Agreement when it previously went into effect, shall subsequently be admitted as a Member upon request by that public agency's legislative body and without further approval of the then existing Member Agencies. The admission of said new Member shall be evidenced by the execution of a written addendum to this Agreement signed by the new Member. Additional public entities not identified in the first paragraph of this Agreement may become Members of CVCC upon such terms and conditions as provided in the MSHCP. Admission of such additional public entities shall be evidenced by the execution of a written addendum to this Agreement signed by all the Parties including the new Parties Section 13.2 Withdrawal of Membership. (a) Prior to Permit Issuance. A Member may withdraw from CVCC at any time prior to the issuance of a Permit pursuant to the MSHCP, and notwithstanding any other provision herein, that Member shall have no continuing liability for any assessments levied by CVCC after the effective date specified in the notice of withdrawal. (b) After Permit Issuance. After Permit issuance a Member may withdraw by delivering written notice to the Commission's secretary that the Member's legislative body has approved withdrawal and such withdrawal shall be effective 90 days thereafter. Withdrawal after Permit issuance shall not relieve the Member of its proportionate share of any debt or other liability of CVCC that accrued prior to the effective date of the Member's withdrawal, provided notice of the potential liability was given by CVCC to the Member prior to or within the first four years of said Member's withdrawal from the CVCC. Withdrawal shall result in the forfeiture of that Member's rights and claims relating to the distribution of property and funds 4th Amended 17 Coachella Valley Conservation Commission JPA Article 15 Contribution and Indemnity Among Members Section 15.1 No Third Party Beneficiaries. This Article shall reflect the Parties' rights and obligations as by and among themselves. Nothing herein shall create any right in any third party to enforce any right or obligation set out in this Agreement as against any Party hereto. Section 15.2 Hold Harmless and Indemnity. Subject to the provisions of Section 15.3 and provided that a Party has acted in good faith and in accordance with this Agreement, the MSHCP, the Implementing Agreement and the Permit, CVCC shall defend with counsel acceptable to said Party, indemnify and hold such Party free and harmless from any loss, liability or damage incurred or suffered by such Party by reason of litigation arising from or as a result of any of the following: the Party's development mitigation fee ordinance; the Party's participation in CVCC; action taken to approve and/or implement the MSHCP; claims of inverse condemnation or unconstitutional takings against a Party as a result of or related to its participation in the MSHCP; or any other act performed or to be performed by the Party pursuant to this Agreement, the MSHCP, the Implementing Agreement or the Permit; provided, however that such indemnification or agreement to hold harmless pursuant to this section shall be recoverable only out of CVCC assets and not from other Parties. To the extent CVCC's assets are insufficient to satisfy its obligations under this Section, any member Agency forced to expend its own funds to satisfy what would otherwise be CVCC's obligations shall be entitled to reimbursement from CVCC. Section 15.3 Limitations on Liability. CVCC shall be authorized to defend, indemnify and hold harmless any Commissioner, officer, agent or employee for actions taken or not taken within the scope of authority given or granted by CVCC and from and against any claim or suit arising out of any act or omission of CVCC, the Commission or any Commissioner, officer, agent or employee in connection with this Agreement and may purchase insurance as the Commission may deem appropriate for this purpose. The Parties acknowledge that Section 895.2 of the California Government Code provides that a Member is jointly and severally liable for the torts of the joint powers agency, but that Sections 895.4 and 895.6 of that Code allow the members of a joint powers agency to contractually agree to indemnity and contribution provisions that allow such liability to be 4th Amended 19 ' Coachella Valley Conservation Commission JPA CVCC. This Agreement shall be binding upon, and shall inure to, the benefit of the successors of each Party. Section 16.4 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 16.5 Severability. If any one or more of the terms, provisions, sections, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, sections, 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. Section 16.6 Multiple Originals. This Agreement may be executed in counterparts, each of which shall be deemed an original. Section 16.7 Execution. The governing legislative body of each Member has each authorized execution of this Agreement, as evidenced by the authorized signatures below. CITY OF CATHEDRAL CITY Ma or Kathl City of Cat J. De Rosa ral City CITY OF COACHELLA Mayor Eduardo Garcia City of Coachella 4'h Amended DATE//j` 7 DATE 21 Coachella Valley Conservation Commission JPA CVCC. This Agreement shall be binding upon, and shall inure to, the benefit of the successors of each Party. Section 16.4 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 16.5 Severability. If any one or more of the terms, provisions, sections, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, sections, 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. Section 16.6 Multiple Originals. This Agreement may be executed in counterparts, each of which shall be deemed an original. Section 16.7 Execution. The governing legislative body of each Member has each authorized execution of this Agreement, as evidenced by the authorized signatures below. CITY OF CATHEDRAL CITY Mayor Kathleen De Rosa City of Cathedral City CITY OF COACHELLA Mayor Eduardo Garcia City of Coachella 4th Amended DATE DATE 11%2-0/`1 21 Coachella Valley Conservation Commission JPA CITY OF DESERT HOT SPRINGS Mayor Adam Sanchez City of Desert Hot Springs CITY OF INDIAN WELLS Mayor Ted Mertens City of Indian Wells CITY OF INDIO Mayor Mike Wilson City of Indio CITY OF LA QUINTA Mayor Don Adolph City of La Quinta 4'h Amended 22 DATE 1113 fig DATE DATE DATE Coachella Valley Conservation Commission JPA CITY OF DESERT HOT SPRINGS Mayor Adam Sanchez City of Desert Hot Springs CITY OF INDIAN WELLS Mayor T4. Mertens City of Indian Wells CITY OF INDIO Mayor Mike Wilson City of Indio CITY OF LA QUINTA Mayor Don Adolph City of La Quinta 4th Amended DATE DATE 6_/` - DATE DATE 22 Coachella Valley Conservation Commission JPA CITY OF DESERT HOT SPRINGS Mayor Adam Sanchez City of Desert Hot Springs CITY OF INDIAN WELLS Mayor Ted Mertens City of Indian Wells CITY OF INDIO Mayor Mike Wilson City of Indio CITY OF LA QUINTA Mayor Don Adolph City of La Quinta 4th Amended DATE DATE DATE ‘/�94 4 DATE 22 Coachella Valley Conservation Commission JPA CITY OF DESERT HOT SPRINGS Mayor Adam Sanchez City of Desert Hot Springs CITY OF INDIAN WELLS Mayor Ted Mertens City of Indian Wells CITY OF INDIO Mayor Mike Wilson City of Indio CITY OF LA QUINTA Frank J. Speyacek City Manager City of La Quinta, California 4th Amended DATE DATE DATE DATE 22 Coachella Valley Conservation Commission JPA CITY OF LA QUINTA Mayor Don Adolph City of La Quinta CITY OF PALM DESERT Mayor Van G. Tanner City of Palm Desert CITY OF RANCHO MIRAGE Mayor Iris Smotrich City of Rancho Mirage CITY OF PALM SPRINGS Mayor Steve Pougnet City of Palm Springs 4th Amended DATE DATE June 26, 2014 DATE DATE 24 Coachella Valley Conservation Commission JPA CITY OF PALM DESERT Mayor Van Tanner City of Palm Desert CITY OF RANCHO MIRAGE Mayor Iris Smotrich City of Rancho Mirage Ai LST: DATE DATE CITY OF PALM SPRINGS(;/City Clerk /144, fi. t Mayor Stephen P. Pougnet City of Palm Springs COUNTY OF RIVERSIDE Jeff Stone, Chair Board of Supervisors County of Riverside 4'h Amended DATE q '17 Y DATE APPROVED BY CITY COUNCIL a?boo 1,3.0/ 1\6acc‘ 23 Coachella Valley Conservation Commission JPA LI CITY OF PALM DESERT Mayor Van Tanner City of Palm Desert CITY OF RANCHO MIRAGE Mayor Iris motri City of Rancho Mirage CITY OF PALM SPRINGS Mayor Steve Pougnet City of Palm Springs COUNTY OF RIVERSIDE Jeff Stone, Chair Board of Supervisors County of Riverside 4'h Amended DATE DATE ‘-- DATE DATE DATE 23 Coachella Valley Conservation Commission JPA CITY OF RANCHO MIRAGE Mayor Iris Smotrich City of Rancho Mirage CITY OF PALM SPRINGS Mayor Steve Pougnet City of Palm Springs COUNTY OF RIVERSIDE Jeff tone, Board of 'upervisors County of Riverside COACHELLA VALLEY WATER DISTRICT John Powell, Jr. Board President Coachella Valley Water District Coachella, California DATE DATE DATE DATE 4th Amended 23 Coachella Valley Conservation Commission JPA COACHELLA VALLEY WATER DISTRICT John Powell, Jr. Board President Coachella Valley Water District Coachella, California IMPERIAL IRRIGATION DISTRICT James C. Hanks Board President Imperial Irrigation District Imperial, California MISSION SPRINGS WATER DISTRICT Russ Martin Board President Mission Springs Water District Desert Hot Springs, California 4th Amended DATE b c- ^ 7—1 ii DATE DATE 24 Coachella Valley Conservation Commission JPA COACHELLA VALLEY WATER DISTRICT John Powell, Jr. Board President Coachella Valley Water District Coachella, California IMPERIAL IRRIGATION DISTRICT Steve Benson Board Vice President Imperial Irrigation District Imperial, California MISSION SPRINGS WATER DISTRICT Russ Martin Board President Mission Springs Water District Desert Hot Springs, California 4th Amended DATE DATE (74-14( DATE 24 Coachella Valley Conservation Commission JPA COACHELLA VALLEY WATER DISTRICT John Powell, Jr. Board President Coachella Valley Water District Coachella, California IMPERIAL IRRIGATION DISTRICT James C. Hanks Board President Imperial Irrigation District Imperial, California MISSION SPRINGS WATER DISTRICT Russ Martin Board President Mission Springs Water District Desert Hot Springs, California DATE DATE DATE 7- 2 Isf 4th Amended 24 Coachella Valley Conservation Commission IPA