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HomeMy WebLinkAbout1998-248 RESOLUTION NO. 98-248 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 3 BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE ON BEHALF OF THE CITY 4 A JOINT EXERCISE OF POWERS AGREEMENT CREATING AN AGENCY TO BE KNOWN 5 AS THE SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY. 6 7 8 9 SECTION 1. The Mayor is hereby authorized to execute on behalf of the City a Joint 10 Exercise of Powers Agreement Creating an Agency to be Known as the San Bernardino Regional II Water Resources Authority, a copy of which is attached hereto as Exhibit "A" and incorporated 12 herein by this reference. 13 SECTION 2. The authorization granted hereunder shall expire and be void and of no 14 further effect if said Agreement is not executed by the parties within sixty (60) days following the BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 15 effective date of this resolution. 16 /II 17 /II 18 /II 19 /II 20 /II 21 1/1 22 /II 23 /II 24 /II 25 /II 26 /II 27 1/1 28 /II 1 .' . . t 9~-248 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE ON BEHALF OF THE CITY 2 A JOINT EXERCISE OF POWERS AGREEMENT CREATING AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a regular meetin 5 thereof, held on the 17th day of Auqust , 1998, by the following vote, to wit 6 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 7 ESTRADA x 8 LIEN x 9 ARIAS x 10 SCHNETZ x II DEVLIN x 12 ANDERSON x 13 MILLER x -- 14 15 ~L~ 16 17 18 19 20 The foregoing Resolution is hereby approved this jl() August , 1998. /L~ 21 Approved as to form and legal content: 22 JAMES F. PENMAN, 23 City Attorney 24 25 By: L C l.f~ 26 27 28 98-248 JOINT EXERCISE OF POWERS AGREEMENT CREATING AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY This Agreement, dated for convenience as of August 26, 1998, is made by and among the City of San Bernardino (the "City"), the Inland Valley Development Agency (the "IVDA") and the San Bernardino Valley Municipal Water District (the "District") (hereinafter each referred to as a "Party" and sometimes collectively referred to as the "Parties"). WITNESSETH WHEREAS, Article I of Chapter 5 of Division 7 of Title I of the Government Code of the State of California pertaining to the joint exercise of powers authorizes the Parties by agreement to jointly exercise certain powers common to the Parties; and WHEREAS, the Parties hereto recognize the importance of determining the value of the potential redevelopment of certain blighted areas located within the City which are situated within the redevelopment project areas of either the IVDA or the Redevelopment Agency of the City of San Bernardino (the "Agency") by possibly redeveloping such areas with a water resources and water storage project, including such water courses as may be necessary and desirable to transport water from a project to downstream users (a "Water Resources Project") that may result in possible benefit to the entire East Valley region, all as may be determined by land use analyses, engineering feasibility and environmental studies required to be undertaken by the Authority pursuant to the California Environmental Quality Act of 1970, as Amended ("CEQA"); and WHEREAS, the District and the City have previously undertaken joint efforts to alleviate the high ground water problems within the District boundaries located within the City and have participated in the implementation of hydrological solutions to mitigate the potential effects of liquefaction upon developed properties during the occurrence of seismic events and which mitigation efforts will be offurther benefit to the Authority; and WHEREAS, the District has proposed to both the City and the IVDA to acquire currently developed property within the City and to provide tinancing for the acquisition of properties and the relocation of occupants and business owners and tenants through this Authority in furtherance of a Water Resources Project, including the acquisition of rights-of-way and the construction of down stream channels and delivery systems to facilitate surplus water sales upon economically advantageous terms; and WHEREAS, the District anticipates that a Water Resources Project that may be engineered and constructed to facilitate water storage and the deli very of water to potential users will encourage the redevelopment of other properties located within the territorial jurisdictions of the City, the District and the IVDA and to the mutual benefit of the Parties; and WHEREAS, each of said Parties agrees that a regional approach is desirable to (i) explore the possibilities and feasabilities of a Water Resources Project, and, (ii) direct the policies and 98"-248 activities of a Water Resources Project that may include traditional redevelopment activities being undertaken adjacent to and in proximity to such a project and (iii) acquire, own, maintain and operate a Water Resources Project for municipal water uses as may be legally pennitted upon such property, or such other uses as may be legally permittedand as may be determined by the Authority all in accordance with CEQA procedures to be hereafter complied with by the Authority; and WHEREAS, each of the Parties hereto has the power to acquire, operate, repair, maintain and administer a possible Water Resources Project as a municipal reservoir, and the Agency and the IVDA have specific redevelopment powers pursuant to the Community Redevelopment Law (Health & Safety Code Section 33000, et seq., the "CRL") within established redevelopment project areas that are located in the municipal boundaries of the City; and WHEREAS, it has been agreed by each of the Parties that the interests thereof as well as of the public in general, may be served if the Parties jointly undertake the study and determination of practical and financial feasibility for those portions of the City that may be best suited to be redeveloped for municipal water reservoir and distribution purposes in accordance with the redevelopment powers granted to the Agency and the IVDA, and coordinated pursuant to the applicable federal and State of California laws, under the operational control of a joint powers authority created by the Parties as further set forth in this Agreement; and WHEREAS, it is the intent and desire of the Parties to enter into an agreement to establish a public entity, separate and apart from the Parties hereto, as hereinafter described and set forth, which entity shall then set about the task of exploring, determining, and, if approved by the authority, accomplishing the above described general purpose in a manner most capable of promoting the greatest public good and welfare; and WHEREAS, the IVDA and the Agency were previously formed to have and exclusively exercise powers of redevelopment agencies within designated redevelopment project areas in furtherance of the redevelopment thereof, and the lVDA or the Agency, as applicable, shall act as the redevelopment agency with respect to those redevelopment powers granted in accordance with the CRL, and the Mayor and Common Council of the City shall act as the legislative body with respect to all approvals and actions required in connection with the adoption of all land use alternatives, planning and development decisions with regard to the land within the redevelopment project areas of the IVDA and the Agency, as applicable, and the development of all properties within the municipal boundaries of the City for a possible Water Resources Project shall continue to be under the control and jurisdiction of the Mayor and Common Council of the City as the legislative body of the City or the Planning Commission of the City, as applicable, for all land use decisions and obtaining such reviews and approvals as required by CEQA. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREINAFTER CONTAINED, THE PARTIES AND EACH OF THEM, DO AGREE HEREBY AS FOLLOWS: Section I. Pur:pose. Termination of Agreement. (a) This Agreement is entered into pursuant to the provisions of Article I, Chapter 5, 2 _ 9B-2j1B Division 7, Title I (commencing with Section 6500) of the Government Code of the State of California (herein sometimes referred to as the "Act"), relating to the joint exercise of powers common to public agencies (in this case the Parties to this Agreement, each of which is authorized to contract with the other pursuant hereto) and is made for the purpose of enabling the Parties to exercise their powers jointly in determining whether to adopt and implement any "Water Resources Project" and to exercise said powers jointly in any "Water Resources Project", described as the acquisition, operation, repair, maintenance and administration of a water resources and water storage project, including the acquisition of rights-of-way and the construction of down stream channels and delivery systems to facilitate surplus water sales upon economically advantageous terms, all pursuant to applicable federal and State of California laws. Each of the Parties has the powers necessary to accomplish the purposes of this Agreement. The foregoing purposes may be accomplished and the common powers exercised in the manner hereafter set forth. (b) The Parties recognize that the approval and implementation of any Water Resources Project will require the Parties to exercise certain powers that are unique to each of the Parties as a municipal corporation, a water district and a joint powers authority exercising redevelopment powers. Nothing contained herein shall in any manner be deemed to be a delegation of any of the inherent powers of any of the Parties unless the applicable Party shall have specifically consented to such delegation by the official action of its goveming body. The District shall have the duty and obligation to own and operate any water reservoir portion of any Water Resources Project as a municipal water reservoir unless the district shall delegate the duty to operate such a reservoir for water storage or recreational purposes to another governmental agency that has duly accepted such delegation by the official action of its governing body. Nothing contained herein shall at any time be deemed to be a delegation of the taxing authority, financing authority and the ability to incur indebtedness, eminent domain powers and the exercise of other redevelopment powers of any Party. (c) Nothing contained herein shall require any Party by action of their governing body to approve any proposed financing plan of the Authority, any land use entitlements sought to be obtained by the Authority, or any operational aspect of a Water Resources Project unless the powers of the particular party are requested to be exercised in furtherance thereof. Each Party shall continue to exercise their full and absolute discretion as to those actions that are required to be exercised solely by the Parties and not by the Authority. (d) At such time as the Commission shall have accepted a final draft of a feasibility, financing and operations plan (the "Feasibility and Financing Plan")for a proposed method of financing and implementation of a Water Resources Project, and prior to the final adoption of a Feasibility and Financing Plan by the Commission, the Commission shall provide copies of the final draft of a Feasibility and Financing Plan to each Party to this Agreement together with the following required Notice of Intent to Adopt a Feasibility and Financing Plan (the "Notice of Intent"). The Notice ofIntent shall be delivered to each Party to this Agreement at least sixty (60) calendar days prior to the intended date of any consideration by the Commission of the adoption of the final form of a Feasibility and Financing Plan and the Notice of Intent shall state therein the earliest date on which the Commission may consider the adoption and approval of a final Feasibility and Financing Plan. During such sixty-day period, each and every Party to this agreement by the official action of their respective legislative bodies may exercise a Termination Right and thus terminate both this Agreement and the continued participation of the terminating Party and the other Parties to this , ~ 98-2'48 Agreement in the project and purposes as set forth herein, The contractual obligations and liabilities incurred by the Commission prior to the expiration date of the Termination Right shall never be the obligations and liabilities of any Party to thjs Agreement. The Commission shall utilize prudent business practices to ensure the availability of funds for the payment of any obligations and liabilities incurred by the Commission prior to the expiration date of the Termination Right. (e) Upon any such exercise of the Termination Right by anyone or more Parties, nothing contained herein shall preclude any Party or any combination of Parties from entering into one or more substantially similar agreements either with each other or with other governmental agencies to undertake the purposes of thjs Agreement in such other manner as may be determined by the Party or Parties and the other governmental agencies then entering into any such substantially similar agreement, except that any project, undertaken in whole or in part under thjs agreement, withjn the city limits of the City of San Bernardino shall not proceed without said City approval and any such agreement or agreements shall be approved first by the City of San Bernardino, and if such approval is not granted, any such agreements shall be null and void. Section 2. Authority . A. Creation of the Authority. Pursuant to the Act, there is hereby created a public entity separate and apart from the Parties hereto, to be known as the "San Bernardino Regional Water Resources Authority" (hereinafter referred to as the Authority"). The debts, liabilities and obligations of the Authority do not constitute debts, liabilities or obligations of the Parties. B. Commission of the Authority. (I) The Authority shall be governed by a Commission composed of six (6) individual members, each serving in their individual capacity as a Member of the Commission. The Commission shall be called the "San Bernardino Regional Water Resources Authority Commission" (hereinafter sometimes referred to as the "Commission"). (2) The Commission shall consist of (i) the Mayor of the City, (ii) two (2) elected council members from the City, (iii) the County of San Bernardino Supervisor representing the Fifth Supervisorial District who shall represent the lVDA, or if such County of San Bernardino Supervisor from the Fifth Supervisorial District has not been appointed to serve on the IVDA, then such other County of San Bernardino Supervisor as may be appointed by the Board of Supervisors, and (iv) the two (2) elected Board members from the District representing all or the most substantial portions of the City. The elected officials thus serving on the Commission shall be called "Members." Each Party by action of their respective legislative body may similarly designate one (I) additional elected official of the legislative body of each Party to serve as an alternate representative not to exceed the number of Members allocated to each Party as a primary representative for the purpose of attending Commission meetings and to fully participate in such meetings and to cast votes in place of a primary representative for such Party. With respect to the IVDA and the District, the respective legislative bodies may appoint alternate representatives for the primary representative or primary representatives, as applicable. and determine such rules, policies and procedures as may then be 4 98-~48 ... applicable as to the attendance and participation by such alternate representatives in the place of the primary representative or primary representatives. With respect to the City, the Mayor shall determine such rules, policies and procedures as may then be applicable as to the attendance and participation by the alternate representatives in the place of the primary representatives of the City. The term "Member" or "Members" shall specifically include both primary representatives and alternate representatives appointed in the manner provided in this Section.; provided that alternative representatives shall not participate in meetings as a Member or cast votes on any Authority matter except if a primary representative of a Party is not present or is not otherwise considered as present for purposes of constituting a quorum. (3) Members shall hold membership on the Commission during the term for which they maintain the elected position on their respective legislative body and until their successors have been appointed or elected and qualified; provided, however, that each Member shall automatically forfeit his or her membership on the Commission if he or she ceases to be an elected official of the respective Party or the legislative body of a party appoints another individual to serve as a primary or alternate representative to the Commission. (4) In case ofa vacancy in membership on the Commission, the same shall be filled by the Party which has experienced the vacancy in the manner as may be permitted by law. The appointing Party shall, upon making an appointment either for a primary representative or an alternate representative, forthwith notify the Secretary of the Commission of such appointment or appointments. C. Meetings of the Commission. (I) Regular Meetings and Special Meetings. The Commission shall provide for its regular meetings. The dates upon which and the hour and place at which regular meetings shall be held shall be fixed by resolution and a copy of such resolution shall be filed with each of the Parties; provided, however, the Commission shall hold at least one (I) regular meeting in each Fiscal Year. Special meetings and adjourned meetings may be held as required or permitted by law. Meetings shall be held at such times and places as any of the Parties hereto may reasonably request depending upon the nature of the business to be conducted. (2) Ralph M . Brown Act. All meetings of the Commission, including, without limitation, regular, special and adjourned meetings, shall be called, noticed, held and conducted in accordance with the provisions of the Ralph M. Brown Act (commencing with Section 54950 of the California Government Code). (3) Minutes. The Secretary of the Commission shall cause minutes of all regular, special and adjourned meetings to be prepared and maintained, and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each member of the Commission and to each of the Parties. 5 . 98-24,8 (4) Quorum. A quorum shall be deemed to be constituted at a Commission meeting for conducting business of the Commission when four (4) Members are present who under California law are legally able to participate in such meeting. No individual other than a duly appointed member who has been appointed as either a primary representative or an alternate representative may sit on the Commission and be considered for purposes of determining a quorum, for participating in such meetings and for the casting of votes. A Member must be present at a meeting to have the power under this Agreement to cast a vote and to be considered as present for purposes of determining whether the requirement for a quorum has been met. (5) Voting. Except as otherwise provided by law, any action taken by the Commission shall require the affirmative vote of four (4) Members present and voting. No Member, whether a duly appointed primary representative or alternate representative, shall vote unless present upon the casting of votes on any matter. In the event such Member is not present at the time that votes are cast on a matter, such Member shall be considered as not having voted on such matter. (6) Veto Power. (i) All actions of the Commission shall be subject to the veto power as herein granted to each Party, and such veto power may be exercised on behalf of a Party in the manner as hereinafter set forth. No action of the Commission shall be deemed to be a final action until five (5) business days have lapsed after the conclusion of the particular meeting of the Commission at which time an action was taken whether by motion, resolution or ordinance of the Commission on behalf of the Authority. An action taken at a meeting which is adjourned to another date and time shall be considered as a final action for all purposes if the particular action of the Commission has not been timely and properly vetoed by the appropriate Member or Members on behalf of a Party no later than the end of the fifth business day following the adjournment of the particular meeting of the Commission. All such exercise of the veto power must occur by the end of the fifth business day following the meeting of the Commission when the official action of the Commission occurred which is then the subject of the veto. (ii) The veto power may only be exercised if either (i) the Mayor from the City or such other Member from the City specifically authorized by the Mayor to exercise the veto power on behalf of the Mayor in the event the Mayor is absent from a particular meeting of the Commission, or (ii) both Members from the District, or (iii) the individual Member representing the IVDA, transmits notice of said veto by fax or mail to the secretary, the City, the lVDA and the District no later than the end of the fifth business day following the adjournment or other conclusion of the particular Commission meeting when the official action of the Commission occurred which is the subject of the veto. Those Members eligible to exercise the veto power must be either the Mayor in the case of the City, or the Member authorized by the Mayor from the City in the absence of the Mayor, or the primary representatives or the alternate representatives or any combination of primary representatives and alternate representatives of the same Party, as applicable, other than the City. All Members of the District seeking to exercise the veto power must be present at the particular 6 98-248 meeting of the Commission whether as primary representatives or alternate representatives to enable the individuals to jointly exercise the veto power by the District. The Mayor of the City, or the Member authorized by the Mayor from the City in the absence of the Mayor, and the single Member from the IVDA or the alternative representative of the IVDA must similarly be present at the Commission meeting to validly veto any action previously taken at the meeting, no later than the end of the fifth business day following the adjournment or conclusion of such meeting when the official action of the Commission occurred which is the subject of the veto. (iii) An adjourned regular meeting shall not extend the time during which the veto may be exercised for actions taken at the previous regular meeting from which the adjournment occurred. (iv) The person or persons exercising the veto shall transmit notice by fax or mail to the secretary, the City, the IVDA and the District, that a particular action of the Commission is thereby vetoed by either (i) the Mayor on behalf of the City, or the authorized Member from the City in the absence of the Mayor, or (ii) both Members on behalf of the District, or (iii) the individual Member on behalf of the IVDA. The secretary of the Commission shall duly record in the official minutes of the Commission meeting the veto as noticed on behalf of a Party and the individual or individuals, as applicable, exercising said veto power and shall publicly announce said veto no later than the next meeting of the Commission. The action as thus vetoed shall thereafter be null and void for all purposes and appropriately set forth in the official minutes for the particular meeting of the Commission. D. Officers. (1) President, Vice-President and Secretary. (i) The Mayor of the City of San Bernardino shall at all times be the President of the Commission for the conduct of all meetings of the Commission. In the event that the Mayor is absent, the City of San Bernardino Member designated by the Mayor to preside in the Mayor's absence shall act as the President for the conduct of such meeting of the Commission and shall be authorized to exercise the veto for the City of San Bernardino. (ii) At the first meeting of the Commission after the effective date of this Agreement, the Commission shall elect from the Members a Vice-President and Secretary, and, thereafter at the first meeting held in July of each succeeding calendar year commencing in July, 1999, and annually thereafter, the Commission shall elect or re-elect its Vice-President and Secretary. In the event that the Vice-President or Secretary so elected resigns from such office or ceases to be a Member of the Commission, the resulting vacancy shall be filled at the next regular meeting of the Commission held after such vacancy occurs. In the absence or inability of the President and the President's duly appointed alternative representative to act, the Vice-President shall act as President. The President, or in the absence of the President and the President's duly appointed alternate representative, the Vice-President shall preside at and conduct all meetings of the Commission. The Secretary shall be responsible for the minutes and other records of the Authority and Commission and shall perform such other duties specified by the Commission. The Commission may select an Assistant Secretary to assist the Secretary in the performance of his or her duties, to certify copies of official documents of the Authority and to perform such other duties specified by the Commission. 7 . 98-248 (2) Treasurer. The Authority shall appoint a Treasurer who shall be: (i) the treasurer or chief financial officer of one of the Parties; (ii) a certified public accountant; or (iii) such other officer or employee of the Authority as the Commission shall deem qualified to act as Treasurer of the Authority. The Treasurer shall perform such duties as are set forth in this Agreement and any other duties specified by the Commission; provided, however, that the person so appointed as Treasurer shall not concurrently be appointed and acting as Auditor. (3) Auditor. The Authority shall appoint an Auditor who shall be: (I) the treasurer or chief financial officer of one of the Parties; (2) a certified public accountant; or (3) such other consultant, officer or employee of the Authority as the Commission shall deem qualified to act as Auditor of the Authority. The Auditor shall perform such duties as are set forth in this Agreement and any other duties specified by the Commission; provided, however, that the person so appointed as Auditor shall not concurrently be appointed and acting as Treasurer. (4) Staff. The Commission may employ, by contract or otherwise, an Executive Director and such staff as may be necessary. Except as listed below in this paragraph, the Executive Director shall appoint and remove all management level officers, subject to the approval of the Commission. Professional and expert services, including, without limitation, legal counsel, financing consultants, accountants, engineers, architects and other Consultants and advisors, may be contracted for by the Authority. (5) Rules and By-Laws. The Commission may adopt, from time to time, such rules and regulations and by-laws for the election of officers, appointment of other officials and staff and the conduct of its meetings and affairs as it may deem necessary provided that all such rules and regulations are consistent with the provisions of this Agreement. Section 3. Powers and Duties of the Authority. (a) The Authority shall have the powers common to the Parties to be exercised to acquire, operate, repair, maintain, improve and administer a Water Resources Project, and in addition thereto, has all other powers enumerated in the Joint Exercise of Powers Act, Chapter 5, Division 7, Title 2 of the Government Code of the State of California (commencing with Section 6500) as the same now exists or may hereinafter be amended (herein sometimes referred to as the "Act"). The Authority is authorized to do all acts necessary or convenient to the exercise of the aforementioned powers, including, but not limited to, the following: to make and enter into contracts; to employ agents and employees; to acquire, construct, manage, maintain or operate any buildings, works or improvements; to acquire, hold or dispose of property; to incur debts, liabilities or obligations (both long-term and short-term) pursuant to the exercise of these powers, which are not debts, liabilities or obligations of the Parties; and to sue and be sued in its own name. Said powers shall be exercised 8 <987248 in the manner provided in the Act and, except as expressly set forth herein, subject only to any and all such restrictions upon the manner of exercising such powers as are imposed upon the City of San Bernardino in the exercise of similar powers. The Authority may also issue revenue bonds pursuant to Article 2, Chapter 5, Division 7, Title I of the Government Code of the State of California, commencing with Section 6540 as the same now exists or may hereafter be amended (hereinafter referred to as the "Bond Act"), and any applicable laws of the State of California, whether heretofore or hereafter enacted or amended, and, without limiting the generality of the foregoing, the Authority is also authorized to incur other forms of indebtedness pursuant to section 6547.1 of the Government Code, which is part of the Bond Act, and any other applicable laws of the State of California; provided, however, that such revenue bonds or other forms of indebtedness shall not constitute debts, liabilities or obligations of the Parties. (b) The Authority shall have the power if authorized by separate agreement with the District to establish, maintain and enforce water quality standards and facility maintenance standards, as the same may be amended from time-to-time, for the economical and efficient operation and maintenance of a Water Resources Project. The Authority may enter into such operating agreements, license agreements and lease agreements with the District or the City for the purposes of implementing any recreational aspects of a Water Resources Project. Nothing contained herein shall be deemed to delegate any of the powers and authority of the District with respect to the acquisition, sale or use of water rights, the sale of wholesale water and the operation and maintenance of all infrastructure and facilities related to the in-flow, storage and out-flow of water to and from a Water Resources Project. The Authority may enter into such agreements with the District, if approved by both the Authority and the District, for the exercise of such additional powers with respect to a Water Resources Project as may be legally delegated by the District to the Authority. (c) The Authority shall not exercise any redevelopment powers that are available to the IVDA and the Agency within their respective redevelopment project area boundaries, including, but not limited to, condemnation powers for the acquisition of real property for redevelopment purposes, the receipt of tax increment revenues, the financing of redevelopment projects and activities and any other powers granted to redevelopment agencies pursuant to the Community Redevelopment Law as found in Health & Safety Code Section 33000 et seq< (d) The Authority shall not exercise any land use powers or zoning authority with respect to any properties that may become a part of a Water Resources Project or for any other properties which may be adjacent thereto or in the proximity thereof. All land use entitlements, zoning powers and general plan land use designations shall remain in the sole power and control of the City< The Authority shall submit any applications and such other documentation, including environmental assessments and reports pursuant to CEQA, as the City may require of any other property owner seeking to obtain land use entitlements and all necessary permits for the acquisition and construction of any other project within the City. The Authority shall be responsible for acting as the applicant to the City in connection with any land use entitlement process and the submittal of any necessary environmental documentation pursuant to CEQA as to a Water Resources Project. (e) Without limiting the generality of the foregoing, it is intended that the Authority may proceed to do all acts necessary or desirable to accomplish the purposes of this Agreement. Such acts may, but need not necessarily (except to the extent required or prohibited by state or federal 9 98-248 law), include all or part of the following which may be exercised in whole or in part at the sole discretion of the Commission: (I) Negotiating a price and method of acquiring any properties and/or rights-of-way whether within or outside a Water Resources Project as may be required for water reservoir purposes and in furtherance of the operation of a Water Resources Project, and authorizing the execution, and executing any and all documents necessary or desirable to accept the operational control of and transfer of a Water Resources Project; (2) Consistent with the requirements of state and federal laws, conducting any environmental impact studies and proceedings as are required by CEQA, the State of California and/or the federal government, making any such improvements or taking such actions as such studies . and proceedings may indicate in the determination of the Commission will mitigate any adverse effects reflected in such studies; (3) Granting of franchises, permits and licenses to, and entering into leases and contracts with, any person, firm or corporation, or agency of the State of California and/or the federal government, for the use of a Water Resources Project or any part thereof, for the promotion and accommodation of water resources, or any use incidental thereto, together with a right or rights to use any such Water Resources Project in common with others as necessary to the right or rights granted; and likewise to enter into leases with any person, firm or corporation for purposes other than the promotion and accommodation of water resources covering any portion of a Water Resources Project whenever the Commission shall determine that the use of such portions of a Water Resources Project are not necessary for the promotion and accommodation of water resources management or sale of surplus water or for uses incidental thereto; (4) Applying for and receiving any available State of California and/or federal grants, and in connection therewith, authorizing the execution of applications therefor, and grant agreements in connection therewith; (5) Issuing revenue bonds or other obligations and incurring other forms of indebtedness as provided in this Agreement, which are not debts, liabilities or obligations of the Parties although the Authority has no power of taxation; (6) Conducting the necessary studies to determine what manner the Authority may best manage the liquefaction concerns present within the San Bernardino water management basin, and implementing such recommendations in any manner authorized by law; (7) Conducting air and water quality studies, and making such improvements or taking such actions as such studies may indicate in the determination of the Commission will mitigate the adverse effects of air and water quality issues upon the residents within the City and within the affected areas of the District; (8) Continuing to operate, repair, maintain, improve and administer a Water Resources Project if acquisition and construction occurs as may be delegated by the District to the Authority; 10 '9~-248 (9) Acquiring, constructing, managing, maintaining, operating or disposing of or donating land, building sites, buildings, works or improvements, whether to or from public or private persons or entities and whether on a Water Resources Project or outside a Water Resources Project if for water resource management purposes or in furtherance of the redevelopment of adjacent properties and in furtherance of the operation ofa Water Resources Project if and to the extent such powers are delegated by the District to the Authority; (10) Suing or being sued in its own name; (11) Entering into and performing under lawful agreements with any of the Parties, the State of California, the United States of America, or any departments or agencies of any of the foregoing, or any other municipal or public corporation of any kind or nature whatever; (12) Making payment from surplus revenues to any of the Parties, or to public agencies whose boundaries (including in the case of the Agency and the IVDA, redevelopment project area boundaries) encompass any area which overlaps any area included in a Water Resources Project. The term "surplus revenues" as above referred to shall have whatever meaning is provided therefor in any resolution or trust indenture adopted by the Commission on behalf of the Authority, and the payments authorized by the preceding sentence shall be made only to the extent that such payments are not prohibited by any such resolution or trust indenture then in effect; (13) Carrying out and enforcing all the provisions of this Agreement; and, (14) Carrying out and enforcing all rules and regulations and water sales rates and charges as deemed appropriate by the Commission. The listing of the above acts is not intended to indicate any priority of one act over another. Nor is such listing intended to be inclusive, and the Commission may authorize other acts to be done in the accomplishment of the purposes of this Agreement. One or several acts may take place concurrently or in sequence as the Commission shall direct. (f) Title to a Water Resources Project may legally be held by the Authority in the event the Authority, the City, the IVDA and the District each separately determines that such method of title ownership would facilitate acquisition, construction and management of a Water Resources Project. Otherwise, title to a water reservoir portion of a Water Resources Project, and all appurtenant facilities, equipment and structures, will be held in the name of the District. The Parties hereby agree that a Water Resources Project and any real property on which it is located will be within the boundaries of the Authority. (g) As of the time of the execution of this Agreement it is not known whether the acquisition, operation, repair, maintenance and administration of a Water Resources Project by the Authority is feasible.. Financial negotiations, feasibility, economic and legal studies and other related studies may all be necessary by or on behalf of the Authority so that it can determine whether to proceed with any project or not proceed. Nothing in this Agreement shall be construed to commit either the Authority or any of the Parties at this time to any particular course of action for the acquisition or non-acquisition of or the undertaking of any Water Resources Project and assumption II '98-248 of operational responsibility thereof, other than the investigation by the Authority as to the practical, engineering and financial feasibility of any such Project and the manner in which to proceed with any land acquisition. Section 4. Fiscal Year. For the purposes of this Agreement, the term "Fiscal Year" shall mean the period from July I of each year to and including the following June 30. Section 5. Assistance to the Authority. The parties may, except as prohibited by law and this Agreement, in appropriate circumstances: (i) make contributions from their treasuries for the purposes set forth herein, (ii) make payments of public funds to defray the cost of such purposes, (iii) make advances of public funds for such purposes, such advances or payments to be repaid, as provided herein, or (iv) use their personnel, equipment or property in lieu of or in conjunction with other contributions or advances. Such sums shall be paid to and disbursed by the Authority, and the method and manner of such payment, disbursement and repayment shall be as set forth in separate agreements by and between the Authority and a Party and approved by official action of the Commission on behalf of the Authority and by the respective legislative body on behalf of such Party. The provisions of Government Code Section 6513 are hereby incorporated into this Agreement. Section 6. Revenue Bonds. In order to pay for acquiring, repairing, improving and financing a Water Resources Project, including all facilities and improvements and any and all expenses incidental thereto or connected therewith, the Authority may authorize the issuance of revenue bonds pursuant to the provisions of the Bond Act, any applicable laws of the State of California, and, without limiting the generality of the foregoing, the Authority is also authorized to incur other forms of indebtedness pursuant to Section 6547.1 of the Government Code, which Section is part of the Bond Act. Such revenue bonds or other forms of indebtedness shall not constitute debts, liabilities or obligations of the Parties. All fees and expenses of professional and expert services, including, without limitation, legal counsel, financing consultants, accountants, engineers, architects and other consultants and advisors connected with the acquisition, operation, repair, maintenance, improvement and administration of a Water Resources Project, which have been paid or incurred prior to the issuance of the revenue bonds or other forms of indebtedness (but after the effective date of this Agreement) shall be paid, or repaid to the Parties, as the case may be, without any preference being granted to any Party or Parties, at the earliest feasible time, to the extent such payment or repayment is both lawful and deemed to be financially prudent in the sole discretion of the Commission, from the proceeds of the revenue bonds, or other forms of indebtedness, or any other legally available source. Section 7. Official Bonds. The Treasurer and the Auditor as the public officers designated in this Agreement who have charge of, handle or have access to any monies of the Authority are hereby also designated as 12 '9~.248 responsible for all other property of the Authority. The Treasurer and Auditor shall each file an official bond with the Authority in the amount of not less than Two Hundred Fifty Thousand Dollars ($250,000). Each member of the Commission shall file with the Authority an official bond in the amount of not less than Ten Thousand Dollars ($10,000). The Commission may in its discretion increase the official bond requirements set forth in this section. All bond premiums shall be paid by the Authority. Section 8. Accounts and Reports. There shall be strict accountability of all funds and reporting of all receipts and disbursements. To the extent not covered by the duties assigned to any trustee appointed pursuant to a resolution or trust indenture adopted by the Commission pursuant to applicable law for the . issuance of revenue bonds or other forms of indebtedness, the Commission shall establish and maintain such procedures, funds and accounts as may be required by sound accounting practices or by the provisions of any resolution of the Authority authorizing the issuance of revenue bonds or other forms of indebtedness; provided that such procedure shall conform as nearly as possible to typical and customary procedures for the County of San Bernardino. The books and records of the Authority in the hands of the trustee or the Authority shall be available for inspection at all reasonable times by authorized representatives of the Parties. The Auditor, with the approval of the Authority, shall contract with an independent certified public accountant or firm of certified public accountants to make an annual audit of the accounts and records of the Authority, and a complete written report of such audit shall be filed as public records annually, within six (6) months after the conclusion of the Fiscal Year under examination, with each of the Parties and with the Auditor- Controller of San Bernardino County. Such annual audit and written report shall comply with the requirements of Section 6505 of the Government Code of the State of California. The costs of the annual audit, including contracts with, or employment of, such independent certified public accountant or firm of certified public accountants, in making an audit pursuant to this Agreement shall be a charge against any unencumbered funds of the Authority available for such purpose. Section 9. Funds. The Treasurer of the Authority shall have custody of Authority money and disburse Authority funds pursuant to the accounting procedures developed in accordance with the provisions of Section 8; provided that the provisions of any resolution of the Authority authorizing the issuance of revenue bonds or other forms of indebtedness shall control regarding the custody and disbursement of the proceeds of any revenue bonds or other forms of indebtedness issued pursuant thereto or any revenues pledged to the payment of such bonds or other forms of indebtedness. Additionally, and to the extent not covered by the duties assigned to any trustee, the Treasurer of the Authority shall assume the duties described in California Government Code Section 6505.5, as follows: (a) Receive and receipt for all money of the Authority and place it in the treasury of the Treasurer of the Authority; (b) Be responsible upon his official bond for safekeeping and disbursement of all 13 98-248 - Authority money so held; (c) Pay, when due, from money of the Authority so held, all sums payable on outstanding bonds, or other forms of indebtedness, of the Authority; (d) Pay any other sums due from the Authority, from Authority money, or any portion thereof, only upon warrants of the Auditor of the Authority; (e) Verify and report in writing to the Authority and to each of the Parties on a monthly basis the amount of money then held for the Authority, the amount of receipts since the prior monthly reports and the amount paid out since the prior monthly report. Subject to applicable provisions of any trust indenture or fmancing agreement, which may provide for a trustee to receive, have custody of and disburse the Authority funds, the Treasurer of the Authority shall have the custody of and disburse Authority funds pursuant to the accounting procedures developed in accordance with the provisions of Section 8 hereof. The Auditor of the Authority shall draw warrants to pay demands against the Authority when the demands have been approved by the Executive Director of the Authority or any other person authorized to so approve in accordance with the accounting provisions developed in accordance with the provisions of Section 8 hereof. The Authority may invest any money in the treasury that is not required for 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 Government Code. Section 10. Non-Assignability ofParticipatin~ Interests. The rights, titles and interests of any Party herein shall not be assignable or transferable unless such assignment or transfer is required by law and is not within the control of the Party making the assignment or transfer. Section II. Budgets: Party Loans. All Parties may by the official action of their respective legislative bodies loan to the Authority any and all of the necessary annual budgeted expenditures of the Authority. The principal amount of such Party loans shall bear interest at a rate agreed upon by and among the Parties and the Authority for each Fiscal Year which rate of interest shall be applied to all principal amounts loaned in such Fiscal Year until repaid in full and shall be repaid proportionately to each Party from legally available surplus revenues as shall be determined from time-to-time by the Commission. It is anticipated that such funding by the parties may continue for an extended period of time which cannot now be determined both prior to and subsequent to the time when the Authority accepts the operational responsibility of a Water Resources Project. Prior to the time or times when the Parties adopt their annual budgets, such funding, if any funding is approved by a legislative body, will be required to be made by the Parties only from any legally available funds that may be allocated for such purpose. The Executive Director shall prepare the Authority budget for whatever period oftime 14 98-'-?48 is involved and submit it to the Commission for consideration and approval, and thereafter such Authority approved budget shall be submitted to the Parties for such action as they deem appropriate under the circumstances. Nothing contained in this Agreement shall ever be deemed to obligate or require any of the Parties to loan moneys, advance funds or provide staffing and in lieu services for any of the operations and activities of the Authority or with regard to any aspect of the Water Resources Project. Section 12. Term. Amendments. Termination. (a) This Agreement shall be effective when executed by all of the Parties designated on the signature pages hereof; may be amended by unanimous consent of the Parties to include other municipal corporations or for any other lawful purpose; and, except as provided in Section 1 (d), shall continue for so long as necessary to carry out the purposes of any agreement or contract with respect to a Water Resources Project or until terminated by unanimous consent, whichever is later; provided, however, that: (i) This Agreement may be terminated prior to the expiration of the Termination llight and in accordance with the procedures set forth in Section I (d) hereof without any further obligation or liability of the Authority or any Party to this Agreement; and (ii) This Agreement cannot be terminated until all revenue bonds or 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; and (iii) This Agreement cannot be amended in any manner to the detriment of the holders of any such revenue bonds or other forms of indebtedness which are outstanding in accordance with any resolution of the Authority authorizing the issuance thereof; and (iv) No termination or amendment shall adversely affect the operation, repatr, maintenance, improvement or administration of a Water Resources Project; and (v) No termination or amendment shall be made which is contrary to the language, spirit or intent of any contract and/or grant agreement entered into by the Authority with the United States of America, or any agreement entered into by the Authority with the State or California, or any department, administration or agency of either. (b) If this Agreement is terminated, as provided in this Section 12, any property acquired as a result of the joint exercise of powers or the net sale proceeds (as used herein, "net sale proceeds" shall be those moneys or assets that remain after all indebtedness, loans and bonds, together with interest thereon, payable by the Authority, have been paid in full or provision for the payment thereof has been made and all moneys, to the extent applicable, have been disposed in such manner as may be required pursuant to federal and state laws, rules and regulations then in effect) available upon a sale of any or all assets of the Authority shall be distributed or transferred in such manner as may be determined by the Commission. After completion of the purposes of this Agreement, and upon termination thereof, title to and possession of all real property interests in a 15 . 98-248 Water Resources Project and improvements thereon then OWlled by the Authority shall be disposed in such manner as may be determined by the then Members of the Conunission or as may be required by law or agreement to which the Authority is a party. Any surplus moneys on deposit with the Treasurer if not required to support a Water Resources Project shall be transferred to the District unless otherwise directed by the then members of the Commission or unless otherwise required by law or agreement to which the Authority is a party. Section 13. Notices. Notice hereunder to be given to the Authority or to any Party shall be sufficient if delivered to: the Secretary of the Authority for any notices to be given to the Authority; or to the City Clerk of the City, or Clerk of the IVDA, or the Clerk of the District, as appropriate, for each of the Parties, Section 14. Miscellaneous. The Section headings herein are for convenience only and are not to be construed as modifying or governing the language in the Section referred to. Whenever in this Agreement any consent or approval is required, the same shall not be unreasonably withheld, however, any discretionary consent or approval is not subject to this limitation. This Agreement is made in the State of California under the Constitution and laws of such State and is to be so construed. Section 15 Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the Parties hereto. Section 16. Severability . Should any part, term or provision of this Agreement be decided by the courts to be illegal or in conflict with any law of the United States of America or the State of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining portions or provisions shall not be affected thereby. Section 17. Debts and Liabilities. The debts and liabilities of the Authority shall be those of the Authority and not of the Parties. The Authority shall save, keep, defend, indemnify and hold harmless all Parties, their officers and agents against and from all claims and liability for damage to property or personal injury received by reason of or in the course of development, construction, improvements or operations, whether water related or otherwise authorized and approved by the Authority pursuant to its powers as stated in this Agreement, which may be occasioned by an act or omission on the part of the Authority, its agents or employees. 16 .98-248 .' JOINT EXERCISE OF POWERS AGREEMENT CREATING AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed and attested by their proper officers thereunto duly authorized, their official seals to be hereto affixed, as of the date first above written. INLAND V ALLEY DEVELOPMENT AGENCY Dated: August 27, 1998 (SEAL) ATTEST: Approved as to Form: G~ 17 r " 98.,.248 JOINT EXERCISE OF POWERS AGREEMENT CREATING AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY SAN BERNARDINO V ALLEY MUNIClP AL WATER DISTRICT zj<D(5- /GL By: Title: Pres i dent Dated: August 25, 1998 \ By: Title: Vi ce-Pres i dent Dated: August 25, 1998 Approved as to Form: @:~e.dY~ ttomey to the District 18 _.98-:248 - . - - JOINT EXERCISE OF POWERS AGREEMENT CREATING AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY CITY OF SAN BERNARDINO By: Mayor City of San Bernardino Dated: August 27. 1998 (SEAL) ATTEST: ~1~ Approved as to Form: .~ 19