HomeMy WebLinkAbout07.B- City Attorney RESOLUTION (ID# 2357) DOC ID: 2357 H
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Agreement/Contract Amendment
From: James F. Penman M/CC Meeting Date: 04/15/2013
Prepared by: Henry Empeno Jr., (909) 384-
5355
Dept: City Attorney Ward(s): 2
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the
Mayor to Execute on Behalf of the City an Amended and Restated Joint Exercise of Powers
Agreement Creating an Agency to be Known as the San Bernardino Regional Water Resources
Authority(#2357)
Current Business Registration Certificate: Not Applicable
Financial Impact:
This action safeguards $5 Million in grant funding for new park development that otherwise
would have been reprogrammed by the State to an agency outside of the City of San Bernardino.
Balance as of: <<Insert Date>>
Balance after approval of this item: <<Insert Amount>>
L) Please note this balance does not indicate available funding. It does not include non-encumbered
reoccurring expenses or expenses incurred,but not yet processed.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
August 17, 1998, the Mayor and Council adopted Resolution No. 98-248 (attached), authorizing
the Mayor to execute a Joint Powers Agreement creating the San Bernardino Regional Water
Resources Authority (JPA).
March 18, 2013,the Mayor and Council considered the Amended and Restated JPA Agreement
in Agenda Item No. 9B and approved a substitute motion to authorize the City Manager to send
the attached letter to the State requesting the transfer of the $5 Million grant for the design,
construction, administration and maintenance of the "E" Street Park from the City to the JPA.
Background:
At the April 1, 2013 Council meeting, San Bernardino Valley Municipal Water District
("District") Board Chairman Patrick Milligan requested that the Amended JPA Agreement be
reconsidered and approved by the Mayor and Council.
Based upon concerns expressed by Council members that the previously proposed Amended JPA
Agreement would change the City's level of participation on the JPA's governing board, the City
Attorney's Office, working with District Board Chairman Patrick Milligan, agreed to submit the
compromise suggested by Council Member Wendy McCammack to the Mayor and Council and
to the District Board for consideration. The attached revised Amended JPA Agreement retains
Updated:4/10/2013 by Henry Empeno Jr.H Packet Pg.92'
2357
all of the same revisions previously proposed by the District except for the following, which are
highlighted in yellow in the attached agreement:
1. Section 2(B)(2)now states that the Commission, which is the governing board of the JPA,
shall consist of the Mayor, two Council members, and two Board members of the District.
2. New Section 2(B)(3) changes the composition of the Commission to three members only on
any matter involving the proposed "E" Street Park,with the District casting two votes and the
City casting one vote.
3. Section 2(C)(1)has been revised to delete the requirement that all of the Commission
meetings be held at the District's offices.
4. Reinserted Section 2(C)(6) Veto Power, which allows all actions of the Commission, except
for actions involving the proposed "E" Street Park, to be subject to the veto of either the City or
the District.
Attached is the proposed Resolution authorizing the Mayor to execute the Amended JPA
Agreement,with the Agreement and a map of the proposed "E" Street Park site; a redline
version of the Amended JPA Agreement showing changes to the original 1998 JPA Agreement
proposed by the District and the City Attorney's Office; and a final version of the Amended JPA
Agreement with the changes proposed by the City Attorney's Office highlighted in yellow.
City Attorney Review:
Supporting Documents:
SB Regional Water Res. Auth. JPA Agmt 8.26.98 (PDF)
E St Park CM ltr to State 3.18.13 (PDF)
reso 2357 (PDF)
agrmt JPA 2357 (PDF)
JPA Agmt Exh A 3.18.13 (PDF)
JPA Amended Agmt Redline 4.9.13 (PDF)
JPA Amended Agmt yellow highlighted 4.9.13 (PDF)
Updated:4/10/2013 by Henry Empeno Jr. H PackefPg.93''
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AD 1 RESOLUTION NO. 98248
F THE CITY OF SAN
2 RESOL TION OF THE MAYOR AND COMMON COUNCIL O
3 BERNARDINO A THORIZING THE MAYOR TO EXECUTE ON BEHALF OF THE CITY
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4 A JOINT EXERCISE F POWERS AGREEMENT CREATING AN AGENCY TO BE KNOWN
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5 AS THE SAN BERNA INO REGIONAL WATER RESOURCES AUTHORITY.
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6 BE IT RESOLVED B THE MAYOR AND COMMON COUNCIL OF THE CITY OF
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SAN BERNARDINO AS FOLL WS:
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9 SECTION 1. The Mayor is ereby authorized to execute on behalf of the City a Joint
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10 Exercise of Powers Agreement Creating n Agency to be Known as the San Bernardino Regional ca
11 Water Resources Authority, a copy of whi is attached hereto as Exhibit "A" and incorporated
12 herein by this reference. E
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13 SECTION 2. T hereunder shall expire and be void and of no
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14 further effect if said Ag ay (60) days following the
15 effective date of this r N
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98-248 '
1 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
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and a
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Common Council of the City of San Bernardino at a regular meeting
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thereof, held on the 17th day of August 1998, by the following vote, to wit N
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COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
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ESTRADA x M
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ARIAS x
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SCHNETZ x
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MILLER x _ N
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ITY CLERK 00
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17 The foregoing Resolution is hereby approved thisy of August , 1998. a
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19 JUDI ALLES, Mayor Q
City f S Bernardino
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21 Approved as to form and
legal content:
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JAMES F. PENMAN, ,
23 City Attorney
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25 By:
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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").
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WITNESSETH ;
WHEREAS, Article 1 of Chapter 5 of Division 7 of Title 1 of the Government Code of the
State of California pertaining to the joint exercise of powers authorizes the Parties by agreement to g
jointly exercise certain powers common to the Parties; and
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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 a
storage project, including such water courses as may be necessary and desirable to transport water
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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 co
feasibility and environmental studies required to be undertaken by the Authority pursuant to the o
California Environmental Quality Act of 1970, as Amended("CEQA"); and 00
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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 a
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 a
efforts will be of further benefit to the Authority; and
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WHEREAS, the District has proposed to both the City and the IVDA to acquire currently
developed property within the City and to provide financing for the acquisition of properties and the 1°
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 o
stream channels and delivery systems to facilitate surplus water sales upon economically
advantageous terms; and m
WHEREAS,the District anticipates that a Water Resources Project that may be engineered
and constructed to facilitate water storage and the delivery of water to potential users will encourage s
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 C
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
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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 permitted 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 a
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WHEREAS,each of the Parties hereto has the power to acquire,operate,repair,maintain and 4
administer a possible Water Resources Project as a municipal reservoir, and the Agency and the o
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 c
the public in general,may be served if the Parties jointly undertake the study and determination of 0
practical and financial feasibility for those portions of the City that may be best suited to be W
redeveloped for municipal water reservoir and distribution purposes in accordance with the 0)
redevelopment powers granted to the Agency and the IVDA, and coordinated pursuant to the 4)
applicable federal and State of California laws, under the operational control of a joint powers 0)
authority created by the Parties as further set forth in this Agreement; and E
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WHEREAS, it is the intent and desire of the Parties to enter into an agreement to establish M
a public entity, separate and apart from the Parties hereto, as hereinafter described and set forth,
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which entity shall then set about the task of exploring,determining,and,if approved by the authority, 17i
accomplishing the above described general purpose in a manner most capable of promoting the ri
greatest public good and welfare; and
WHEREAS, the IVDA and the Agency were previously formed to have and exclusively a
exercise powers of redevelopment agencies within designated redevelopment project areas in
furtherance of the redevelopment thereof, and the IVDA or the Agency, as applicable, shall act as
the redevelopment agency with respect to those redevelopment powers granted in accordance with a
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 cr_
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 o
to be under the control and jurisdiction of the Mayor and Common Council of the City as the •2
legislative body of the City or the Planning Commission of the City, as applicable, for all land use W
decisions and obtaining such reviews and approvals as required by CEQA. N
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NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES,
COVENANTS AND CONDITIONS HEREINAFTER CONTAINED,THE PARTIES AND EACH
OF THEM, DO AGREE HEREBY AS FOLLOWS: a ED
Section 1. Purpose Termination of Agreement.
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(a) This Agreement is entered into purs uant to e p rovisions of Article 1, Chapter 5,
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Division 7, Title 1 (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 Q
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 0)
project,including the acquisition of rights-of-way and the construction of down stream channels and c
delivery systems to facilitate surplus water sates 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.
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(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 m
municipal corporation, a water district and a joint powers authority exercising redevelopment N
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 c
to such delegation by the official action of its governing body. The District shall have the duty and a
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 N
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 aO
be deemed to be a delegation of the taxing authority, financing authority and the ability to incur
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indebtedness,eminent domain powers and the exercise of other redevelopment powers of any Party.
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(c) Nothing contained herein shall require any Party by action of their governing body a
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 a
to exercise their full and absolute discretion as to those actions that are required to be exercised Ui
solely by the Parties and not by the Authority. L
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(d) At such time as the Commission shall have accepted a final draft of a feasibility, 3:
financing and operations plan (the "Feasibility and Financing Plan")for a proposed method of o
financing and implementation of a Water Resources Project, and prior to the final adoption of a .0
Feasibility and Financing Plan by the Commission,the Commission shall provide copies of the final M
draft of a Feasibility and Financing Plan to each Party to this Agreement together with the following M
required Notice of Intent to Adopt a Feasibility and Financing Plan (the "Notice of Intent"). The
Notice of Intent 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 a
of a Feasibility and Financing Plan and the Notice of Intent shall state therein the earliest date on a
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
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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 this 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. a.
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(e) Upon any such exercise of the Termination Right by any one or more Parties,nothing 2-
contained herein shall preclude any Party or any combination of Parties from entering into one or y
more substantially similar agreements either with each other or with other governmental agencies
to undertake the purposes of this 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 M
agreement,except that any project, undertaken in whole or in part under this agreement,within the �
city limits of the City of San Bernardino shall not proceed without said City approval and any such o
agreement or agreements shall be approved first by the City of San Bernardino,and if such approval a
is not granted,any such agreements shall be null and void.
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Section 2. ut on .
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A. Creation of the Authority.
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Pursuant to the Act,there is hereby created a public entity separate and apart from the Parties N
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 CO
debts, liabilities or obligations of the Parties. N
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B. Commission of the Authority.
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(1) 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
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Commission shall be called the"San Bernardino Regional Water Resources Authority Commission"
(hereinafter sometimes referred to as the "Commission"). CD
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(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 3:
Supervisorial District who shall represent the IVDA,or if such County of San Bernardino Supervisor c
from the Fifth Supervisorial District has not been appointed to serve on the IVDA, then such other 0)
County of San Bernardino Supervisor as may be appointed by the Board of Supervisors,and(iv)the 0:
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(1)additional elected E
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 a
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
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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 a
alternate representatives appointed in the manner provided in this Section.;provided that alternative N
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 o
for purposes of constituting a quorum. W
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(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 o
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
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or alternate representative to the Commission. U)
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(4) In case of a 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
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appointing Party shall, upon making an appointment either for a primary representative or an r-
alternate representative, forthwith notify the Secretary of the Commission of such appointment or N
0 appointments. 00
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C. Meetings of the Commission. CO
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(1) Regular Meetings and Special Meetings. a
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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 a
least one(1)regular meeting in each Fiscal Year. Special meetings and adjourned meetings may be Ui
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. o
All meetings of the Commission,including,without limitation,regular,special and adjourned e
meetings, shall be called, noticed, held and conducted in accordance with the provisions of the CO
Ralph M. Brown Act(commencing with Section 54950 of the California Government Code).
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(3) Minutes.
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The Secretary of the Commission shall cause minutes of all regular, special and adjourned
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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.
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98-248 .
(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 a
appointed as either a primary representative or an alternate representative may sit on the Commission
quorum,for participating in such meetings and for
and be considered for purposes of determining a
the casting of votes. A Member must be present at a meeting to have the power under this c
Agreement to cast a vote and to be considered as present for purposes of determining whether the
requirement for a quorum has been met. a�
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(5) Voting.
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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 m
primary representative or alternate representative,shall vote unless present upon the casting of votes N
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.
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(6) Veto Power. r.
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(i) All actions of the Commission shall be subject to the veto power as herein granted N.
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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)
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business days have lapsed after the conclusion of the particular meeting of the Commission at which
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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 a
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 Q
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 o
other Member from the City specifically authorized by the Mayor to exercise the veto power on 0
behalf of the Mayor in the event the Mayor is absent from a particular meeting of the Commission, m
or (ii) both Members from the District, or (iii) the individual Member representing the IVDA, W
transmits notice of said veto by fax or mail to the secretary, the City, the IVDA and the District no
later than the end of the fifth business day following the adjournment or other conclusion of the E
particular Commission meeting when the official action of the Commission occurred which is the U
subject of the veto. Those Members eligible to exercise the veto power must be either the Mayor a
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
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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 a
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. L
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(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 3:
secretary,the City,the IVDA and the District,that a particular action of the Commission is thereby o
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 U)
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 d
meeting of the Commission. The action as thus vetoed shall thereafter be null and void for all Q
purposes and appropriately set forth in the official minutes for the particular meeting of the ti
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Commission.
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D. Officers. ca
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(I) President,Vice-President and Secretary. E
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(i) The Mayor of the City of San Bernardino shall at all times be the President of the Q
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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 3
absence shall act as the President for the conduct of such meeting of the Commission and shall be a
authorized to exercise the veto for the City of San Bernardino.
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(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 =
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thereafter,the Commission shall elect or re-elect its Vice-President and Secretary. In the event that .2
the Vice-President or Secretary so elected resigns from such office or ceases to be a Member of the m
Commission,the resulting vacancy shall be filled at the next regular meeting of the Commission held N
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 a
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.
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(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 CL
Treasurer shall perform such duties as are set forth in this Agreement and any other duties specified N
by the Commission; provided, however, that the person so appointed as Treasurer shall not L
concurrently be appointed and acting as Auditor. N
(3) Auditor. ;
The Authority shall appoint an Auditor who shall be: (1) the treasurer or chief financial
officer of one of the Parties; (2) a certified public accountant,or(3) such other consultant,officer o
or employee of the Authority as the Commission shall deem qualified to act as Auditor of the C
Authority, The Auditor shall perform such duties as are set forth in this Agreement and any other m
duties specified by the Commission; provided, however, that the person so appointed as Auditor M
shall not concurrently be appointed and acting as Treasurer.
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(4) Staff. Q
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The Commission may employ,by contract or otherwise,an Executive Director and such staff N
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,
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engineers, architects and other Consultants and advisors,may be contracted for by the Authority. E
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(5) Rules and By-Laws. Q
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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 a
affairs as it may deem necessary provided that all such rules and regulations are consistent with the
provisions of this Agreement. d
Section 3. Powers and Duties of the Authority.
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(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 CO
2 of the Government Code of the State of California(conunencing 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 a
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
Packet 04.103
98-248
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 1 of the Government Code of the State of California,
commencing with Section 6540 as the same now exists or may hereafter be amended(hereinafter a
referred to as the Bond Act"),and any applicable laws of the State of California,whether heretofore N
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 o
Code, which is part of the Bond Act, and any other applicable laws of the State of California; a
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 o
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
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maintenance of a Water Resources Project. The Authority may enter into such operating agreements, (i
license agreements and lease agreements with the District or the City for the purposes of a
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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, a
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 N
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 CO
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 a
IVDA and the Agency within their respective redevelopment project area boundaries,including,but Q
not limited to,condemnation powers for the acquisition of real property for redevelopment purposes, n
the receipt of tax increment revenues,the financing of redevelopment projects and activities and any w
other powers granted to redevelopment agencies pursuant to the Community Redevelopment Law Q
as found in Health & Safety Code Section 33000 et seq.
L
(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 o
and general plan land use designations shall remain in the sole power an d control of the City. The 0,
Authority shall submit any applications and such other documentation, including environmental m
assessments and reports pursuant to CEQA, as the City may require of any other property owner N
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 E
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
Packet Pg. 164
9$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:
(1) Negotiating a price and method of acquiring any properties and/or rights-of-way Q
whether within or outside a Water Resources Project as may be required for water reservoir purposes a
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 L
transfer of a Water Resources Project;
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(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 cc
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 c
effects reflected in such studies;
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(3) Granting of franchises,permits and licenses to,and entering into leases and contracts m
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 Q
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 N
the promotion and accommodation of water resources covering any portion of a Water Resources
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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
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sale of surplus water or for uses incidental thereto; E
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(4) Applying for and receiving any available State of California and/or federal grants,and a
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in connection therewith, authorizing the execution of applications therefor, and grant agreements in
connection therewith;
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(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; CU
(6) Conducting the necessary studies to determine what manner the Authority may best o
manage the liquefaction concerns present within the San Bernardino water management basin, and
implementing such recommendations in any manner authorized by law;
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(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 E
adverse effects of air and water quality issues upon the residents within the City and within the
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affected areas of the District; Q
(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
Packet Pg.105
'48-248
(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 of a Water Resources Project if and to the extent such powers are a
delegated by the District to the Authority; N
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(10) Suing or being sued in its own name; o
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(11) Entering into and performing under lawful agreements with any of the Parties, the
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State of California, the United States of America, or any departments or agencies of y
foregoing,or any other municipal or public corporation of any kind or nature whatever;
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(12) Making payment from surplus revenues to any of the Parties,or to public agencies CD
whose boundaries(including in the case of the Agency and the IVDA, redevelopment project area W
boundaries) encompass any area which overlaps any area included in a Water Resources Project. ca
The term"surplus revenues" as above referred to shall have whatever meaning is provided therefor d
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 E
are not prohibited by any such resolution or trust indenture then in effect;
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(13) Carrying out and enforcing all the provisions of this Agreement; and,
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(14) Carrying out and enforcing all rules and regulations and water sales rates and charges N
as deemed appropriate by the Commission. 00
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The listing of the above acts is not intended to indicate any priority of one act over another. Q
Nor is such listing intended to be inclusive,and the Commission may authorize other acts to be done n
in the accomplishment of the purposes of this Agreement. One or several acts may take place t
concurrently or in sequence as the Commission shall direct. a
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(f) Title to a Water Resources Project may legally be held by the Authority in the event W
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 Fu
appurtenant facilities,equipment and structures, will be held in the name of the District. The Parties g
hereby agree that a Water Resources Project and any real property on which it is located will be
within the boundaries of the Authority. m
(g) As of the time of the execution of this Agreement it is not known whether the E
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 a
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
11
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•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 '�ear. a
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For the purposes of this Agreement,the term"Fiscal Year" shall mean the period from July L
1 of each year to and including the following June 30. y
Section 5. Assistance to the Authority.
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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 c
payments of public funds to defray the cost of such purposes, (iii) make advances of public funds 0
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. N
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 Parry and approved by official action of the Commission on behalf of the a
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. N
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Section 6. Revenue Bonds.
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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 Q
therewith,the Authority may authorize the issuance of revenue bonds pursuant to the provisions of a
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 w
Section 6547.1 of the Government Code,which Section is part of the Bond Act. Such revenue bonds a
or other forms of indebtedness shall not constitute debts, liabilities or obligations of the Parties.
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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 c
a Water Resources Project, which have been paid or incurred prior to the issuance of the revenue B
bonds or other forms of indebtedness (but after the effective date of this Agreement) shall be paid, W
or repaid to the Parties, as the case may be, without any preference being granted to any Party or CO
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 E
revenue bonds, or other forms of indebtedness, or any other legally available source.
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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
Packet Pg. 107
98-248
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 a
the Authority.
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Section 8. Accounts and Reports. o
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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 c
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 CO
typical and customary procedures for the County of San Bernardino. The books and records of the d
Authority in the hands of the trustee or the Authority shall be available for inspection at all r-
reasonable times by authorized representatives of the Parties. The Auditor,with the approval of the Q
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 N
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- o
Controller of San Bernardino County. Such annual audit and written report shall comply with the N
requirements of Section 6505 of the Government Code of the State of California. The costs of the CO
annual audit, including contracts with, or employment of, such independent certified public a
accountant or firm of certified public accountants, in making an audit pursuant to this Agreement a
shall be a charge against any unencumbered funds of the Authority available for such purpose.
Section 9. Funds. a
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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 Z"
bonds or other forms of indebtedness shall control regarding the custody and disbursement of the o
proceeds of any revenue bonds or other forms of indebtedness issued pursuant thereto or any .2
revenues pledged to the payment of such bonds or other forms of indebtedness.
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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, 0
as follows:
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(a) Receive and receipt for all money of the Authority and place it in the treasury of the
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Treasurer of the Authority;
(b) Be responsible upon his official bond for safekeeping and disbursement of all
13
Packet Pg. 108
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;
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(d) Pay any other sums due from the Authority, from Authority money,or any portion N
thereof,only upon warrants of the Auditor of the Authority;
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(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 financing agreement, which may o
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 m
procedures developed in accordance with the provisions of Section 8 hereof. N
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The Auditor of the Authority shall draw warrants to pay demands against the Authority when d
the demands have been approved by the Executive Director of the Authority or any other person a
authorized to so approve in accordance with the accounting provisions developed in accordance with
the provisions of Section 8 hereof M
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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 N
the same conditions as local agencies pursuant to Section 53601 of the Government Code. CO
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Section 10. Non-Assignability of Participating Interests. ¢
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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 a
making the assignment or transfer. d
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Section 11. Budgets. 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 M
Authority for each Fiscal Year which rate of interest shall be applied to all principal amounts loaned M
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 a)
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 r
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 of time
I
14
Packet Pg. 109
08-248 .a
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 a
Resources Project. N
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Section 12. Term Amend ents Termination, o
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(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 o
respect to a Water Resources Project or until terminated by unanimous consent, whichever is later;
provided,however,that: m
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(i) This Agreement may be terminated prior to the expiration of the Termination Right
and in accordance with the procedures set forth in Section 1(d)hereof without any further obligation a
or liability of the Authority or any Party to this Agreement; and a
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(ii) This Agreement cannot be terminated until all revenue bonds or other forms of N
indebtedness issued pursuant hereto, and the interest thereon, shall have been paid or adequate
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provision for such payment shall have been made in accordance with the resolution of the Authority
authorizing the issuance thereof; and CO
(iii) This Agreement cannot be amended in any manner to the detriment of the holders of a
any such revenue bonds or other forms of indebtedness which are outstanding in accordance with Q
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any resolution of the Authority authorizing the issuance thereof; and
(iv) No termination or amendment shall adversely affect the operation, repair, a
maintenance, improvement or administration of a Water Resources Project; and
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(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 o
department, administration or agency of either.
(b) If this Agreement is terminated,as provided in this Section 12,any property acquired N
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, E
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 a
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
Packet Pg.1 10
98-248
Water Resources Project and improvements thereon then owned by the Authority shall be disposed
in such manner as may be determined by the then Members of the Commission 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 a
law or agreement to which the Authority is a party. N
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Section 13. tires. N
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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.
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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 d
discretionary consent or approval is not subject to this limitation. This Agreement is made in the a
State of California under the Constitution and laws of such State and is to be so construed.
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Section 15 Successors.
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This Agreement shall be binding upon and shall inure to the benefit of the successors of the N
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Parties hereto. E
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Section 16. Severability. a
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. L
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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 E
as stated in this Agreement, which may be occasioned by an act or omission on the part of the
Authority, its agents or employees_ a
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16
Packet Pg. 111
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 a
attested by their proper officers thereunto duly authorized,their official seals to be hereto affixed,
as of the date first above written.
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INLAND VALLEY DEVELOPMENT AGENCY
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By: `�' o
Tit C -Chairman W
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Dated: August 27, 1998 d
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(SEAL)
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ATTEST:
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Inland Valley Development Agency
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Approved as to Form: a
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98-248 -
JOINT EXERCISE OF POWERS AGREEMENT CREATING AN AGENCY TO BE KNOWN AS
THE SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY
SAN BERNARDINO VALLEY MUNICIPAL WATER Q
DISTRICT n
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By:
Title: president ;3
Dated: August 25, 1998
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By:
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Title: Vice-President Q
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Dated: August 25, 1998
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Approved as to Form: a,
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Packet Pg. 113
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 a
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By: o
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T• le: Mayor
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City of San Bernardino
Dated: August 27 1998
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ATTEST:
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Approved as to Form:
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Packet Pg. 114
OFFICE OF THE CITY MANAGER
300 North"D"Street-San Bernardino•CA 92418-0001
909.384.5122•Fax: 909.384.5138
San Bernar ino www.sbcity.org
SM
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March 18,2013
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Cristelle Taillon, Project Officer o
Office of Grants and Local Services
P.O. Box 942896 L
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Sacramento, CA 94296-0001
Ms. Taillon, o
Pursuant to the guidance you provided to staff of the City of San Bernardino ("City") and W
the San Bernardino Valley Municipal Water District ("Valley District") at the meeting on N
February 14, 2013, and in your subsequent letter dated February 21, 2013, it is understood that
Office of Grants and Local Services requires the submission of a letter from the City's
Authorized Representative authorizing the transfer of the grant from the City to the San E
Bernardino Regional Water Resources Authority ("Authority"), a joint powers authority a
consisting of the City and Valley District. M
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This letter will serve as the City's fonnal request for the transfer from the City to the M
Authority of the $5 million grant authorized by the State of California under the Proposition 84 0
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Statewide Park Program, which grant contract includes the obligations related to the design, M
construction, administration and maintenance of the "E" Street Park located in San Bernardino,
California. co
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Thank you for your assistance on this project which is of great importance for the
constituents of the City and Valley District. If you have questions or need assistance, please v
contact me at (909) 384-5122 or Valley District's Project Manager, Wen Huang, at (909) 387- L
9223. a
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Sincerely,
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A en J. Parker `t
City Manager
cc: Kevin Hawkins, Director, City of San Bernardino Parks
Jim Morris, Chief of Staff, City of San Bernardino Mayor's Office
Doug Headrick, General Manager, SBVMWD
Wen Huang,Principal Engineer, SBVMWD
CITY OF SAN BERNARDINO
ADOPTED SHARED VALUES: Integrity•Accountability•Respect for Human Dignity•Honesty
Packet Pg. 115
1
RESOLUTION NO.
2
3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE ON BEHALF
4 OF THE CITY AN AMENDED AND RESTATED JOINT EXERCISE OF POWERS
AGREEMENT CREATING AN AGENCY" TO BE KNOWN AS THE SAN
5 BERNARDINO REGIONAL WATER RESOURCES AUTHORITY.
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6 a.
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7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
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8 CITY OF SAN BERNARDINO AS FOLLOWS:
9 SECTION 1. The Mayor is hereby authorized to execute on behalf of the City an
10 Amended and Restated Joint Exercise of Powers Agreement Creating an Agency to be Known
c
11 as the San Bernardino Regional Water Resources Authority, a copy of which is attached a�
12 hereto as Exhibit"1" and incorporated herein by this reference. m
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
15
the effective date of this Resolution. a
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1 c ti_
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE ON BEHALF OF
2 THE CITY AN AMENDED AND RESTATED JOINT EXERCISE OF POWERS
AGREEMENT CREATING AN AGENCY TO BE KNOWN AS THE SAN
3 BERNARDINO REGIONAL WATER RESOURCES AUTHORITY.
4 1 HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor
5 and Common Council of the City of San Bernardino at a meeting
a
6 a
thereof, held on the day of , 2013,by the following vote,to wit:
7 L
Council Members: AYES NAYS ABSTAIN ABSENT o
8
MARQUEZ
10 JENKINS
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11 VALDIVIA
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12 SHORETT ��„
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15 JOHNSON a
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Georgeann Hanna, City Clerk
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20 The foregoing resolution is hereby approved this day of o
2013.
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22 Patrick J. Morris, Mayor =
23 City of San Bernardino w
Approved as to form: Q
24 James F. Penman, City Attorney
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By:
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Packet Pg. 117
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
CREATING AN AGENCY TO BE KNOWN AS THE
SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY
This Amended and Restated Joint Exercise of Powers Agreement ("Agreement"), dated
for convenience as of —, 20 (amending and restating that certain Joint
Exercise of Powers Agreement dated August 26, 1998 ("Original Agreement")), is made by and
between the City of San Bernardino (the "City") and the San Bernardino Valley Municipal Water
District (the "District") (hereinafter each referred to as a "Party" and sometimes collectively a
referred to as the"Parties").
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WITNESSETH L
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WHEREAS, the Joint Exercise of Powers Act, Article 1 of Chapter 5 of Division 7 of
Title l (commencing with Section 6500) of the Government Code of the State of California, as
the same now exists or as later amended (hereinafter sometimes referred to as the "Act") M
authorizes the Parties by agreement to jointly exercise certain powers common to the Parties; and
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WHEREAS, the Parties hereto recognize the importance of determining the value of the
potential development within the City of San Bernardino of (i) a water resources and water m
storage project, including such water courses as may be necessary and desirable to transport U)
water from a project to downstream users, and (ii) a municipal park adjacent to the water a
resources and water storage project for recreational and aesthetic purposes, (collectively, the
"Water Resources Project"), that may result in possible benefit to the entire region, all as may be E
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determined by land use analyses, engineering feasibility and environmental studies required to be
undertaken by the Authority (as defined in Section 2(A) below) pursuant to the California M
Environmental Quality Act of 1970, as Amended ("CEQA"); and
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WHEREAS, the District and the City have previously undertaken joint efforts to alleviate N
the high ground water problems within the District boundaries located within the City and have CL
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 of further benefit to the Authority; and f°
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WHEREAS, under the Safe Drinking Water, Water Quality and Supply, Flood Control, _
River and Coastal Protection Bond Act of 2006 (also known as the Proposition 84 Statewide a
Park Program), the Authority has submitted an application to the State of California ("State") a
requesting a grant of Five Million Dollars ($5,000,000.00) ("Grant") to be used in connection
with the construction of a municipal park at the northwest corner of Ninth Street and "E" Street
in the City of San Bernardino and the District has proposed to the City to acquire property within
the City in furtherance of the Water Resources Project, including the acquisition of rights-of-way
and the construction of downstream channels and delivery systems to facilitate surplus water
sales upon economically advantageous terms; and
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Packet Pg. 118
WHEREAS, the Authority has been advised that as a condition to its receipt of the Grant,
the State requires the City to enter into a joint exercise of powers agreement with the District to
ensure that the purposes of the Grant will be realized, which is a purpose of this Agreement; and
WHEREAS, if the Authority is successful in receiving the Grant, it is agreed that in
exchange for the payment to the District (from the Grant funds) of a purchase price equal to the
current vacant land value (as determined by an independent third party Certified General
Appraiser), the District will approve the transfer to the Authority of the real properties identified
in the attached Exhibit "A" ("Property") in fee simple, subject to a use restriction for municipal
park and recreation purposes ("Purposes"), with a right of reverter in the event the Property is at Q
any time used other than for the Purposes identified herein; and °;
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WHEREAS, the District anticipates that the Water Resources Project may be engineered n
and constructed to facilitate water storage and the delivery of water to potential users will
encourage the development of other properties located within the territorial jurisdictions of the W
City and the District ,to the mutual benefit of the Parties; and a;
WHEREAS, each of the Parties agrees that a regional approach is desirable to (i) direct
the policies and activities of the Water Resources Project, and (ii) acquire, own, maintain and o
operate the Water Resources Project, for municipal water, park and recreational uses as may be
legally permitted upon the Property, or such other uses as may be legally permitted and as may m
be determined by the Authority all in accordance with CEQA procedures to be hereafter CO
complied with by the Authority; and
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WHEREAS, each of the Parties hereto has the power to acquire, operate, repair, maintain
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and administer the Water Resources Project as a municipal reservoir and municipal park; and
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WHEREAS, it has been agreed by each of the Parties that their respective interests, as
well as those of the public in general, may be served if the Parties jointly undertake the Water M
Resources Project, and coordinate their efforts pursuant to the applicable federal and State of a
California laws, under the operational control of a joint powers authority created by the Parties as a
further set forth in this Agreement; and
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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 d
set forth, which entity shall then set about the task of exploring, determining, and, if approved by
the Authority, accomplishing the above described Water Resources Project in a manner most
capable of promoting the greatest public good and welfare; and
WHEREAS, in connection with the Water Resources Project, 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 and the District shall be the designated local agency with
respect to obtaining such reviews and approvals as are required under CEQA.
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Packet Pg.,119.
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 1. Purpose, Termination of Agreement.
(a) This Agreement is entered into pursuant to the provisions of 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 a
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adopt and implement the Water Resources Project and to exercise said powers jointly in the
Water Resources Project, described as the acquisition, operation, repair, maintenance and
administration of a municipal park and recreation area and water resources and water storage
project, including the acquisition of rights-of-way and the construction of downstream channels ,°�
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and delivery systems to facilitate surplus water sales upon economically advantageous terms, all W
pursuant to applicable federal and State of California laws. Each of the Parties has the powers 2
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.
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(b) The Parties recognize that the approval and implementation of the Water
Resources Project will require the Parties to exercise certain powers that are unique to each of m
the Parties as a municipal corporation, a water district and a joint powers authority. Nothing co
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 a
delegation by the official action of its governing body. Except as otherwise specifically provided a
herein, the Authority shall have the duty and obligation to own, and the District shall have the
duty and obligation (either by providing funds to the Authority to satisfy the duty and obligation N
or by performing on its own) to maintain and operate, (i) any water reservoir portion of the
Water Resources Project as a municipal water reservoir, and (ii) the Property as a municipal M
park, unless the District, at the direction of the Authority, shall delegate the duty to maintain and Q
operate the reservoir and the Property to another governmental agency that has duly accepted a.
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, and eminent domain powers of any Party.
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(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 w
to be obtained by the Authority, or any operational aspect of the Water Resources Project unless a
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 (as defined in Section 2(B)(1) below) shall have
accepted a final draft of a feasibility and operations plan (the "Feasibility and Operations Plan")
for a proposed method of implementation of the Water Resources Project, and the Commission
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Packet Pg. 120
shall provide copies of the final draft of a Feasibility and Operations Plan to each Party to this
Agreement
(e) Upon the dissolution of the Authority prior to the date stipulated in Section
12(a)(1) below, 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 this 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.
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Section 2. Authoritv. °-
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A. Creation of the Authority.
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Pursuant to the Act, there is hereby created a public entity separate and apart from the W
Parties hereto,to be known as the"San Bernardino Regional Water Resources Authority"(herein
referred to as the "Authority"). The debts, liabilities and obligations of the Authority do not
constitute debts, liabilities or obligations of the Parties. �o
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B. Commission of the Authority.
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(1) The Authority shall be governed by a Commission composed of five (5) N
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"). a
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(2) The Commission shall consist of (i) the Mayor of the City, (ii) two (2) N
elected council members from the City(as appointed by the City's legislative body), and(iii)two
(2) elected Board members from the District (as appointed by the District's legislative body). M
The elected officials thus serving on the Commission shall be called "Members." Each Party by a
action of their respective legislative body may similarly designate one (1) additional elected �-
official of the legislative body of each Party to serve as an alternate representative not to exceed E
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 District, its legislative body
may appoint alternate representatives for the primary representatives and determine such rules,
policies and procedures as may then be applicable as to the attendance and participation by such w
alternate representatives in the place of the primary representatives. With respect to the City, the a
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.
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Packet Pg:121.
(3) Notwithstanding any other provision in this Agreement, on any matter
involving the proposed municipal park located at the northwest corner of Ninth Street and `B"
Street (the "Park"), and only on any matter involving the Park, the City shall only cast one vote
(of its three votes on the Commission) by the Mayor or the Mayor's designee (designee chosen
from the two other Commission members appointed by the City) and the District shall cast two
votes (of its two votes on the Commission).
(4) 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 a
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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. v
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(5) In case of a vacancy in membership on the Commission, the same shall be a
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 cc
alternate representative, forthwith notify the Secretary of the Commission of such appointment
or appointments.
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C. Meetings of the Commission.
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(1) Regular Meetings and Special Meetings.
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The Commission shall provide for its regular meetings. The dates upon which and E
the hour at which regular meetings shall be held shall be fixed by resolution and a copy of such a
resolution shall be filed with each of the Parties; provided, however, the Commission shall hold
at least one (1) regular meeting in each Fiscal Year. Special meetings and adjourned meetings N
may be held as required or permitted by law (including, without limitation, meetings held via
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teleconference). All meetings of the Commission shall be held at such times and places as any of N
the Parties hereto may reasonably request depending upon the nature of the business to be a
conducted. a.
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(2) Ralph M. Brown Act. CO
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All meetings of the Commission, including, without limitation, regular, special E
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 a
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 reasonably 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.
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Packet-Pg.122
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(4) Quorum.
A quorum shall be deemed to be constituted at a Commission meeting for
conducting business of the Commission when not less than three (3) 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 (including via teleconference) to have the power under this a
Agreement to cast a vote and to be considered as present for purposes of determining whether the a.
requirement for a quorum has been met.
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(5) Voting.
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Except as otherwise provided by law, any action taken by the Commission shall
require the affirmative vote of a majority of a quorum, present and voting. No Member, whether
a duly appointed primary representative or alternate representative, shall vote unless present
(including via teleconference) upon the casting of votes on any matter. In the event such Member o
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.
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(6) Veto Power.
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(i) All actions of the Commission (except actions involving the Park) E
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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 M
Commission shall be deemed to be a final action until five(5)business days have lapsed after the N
conclusion of the particular meeting of the Commission at which time an action was taken M
whether by motion, resolution or ordinance of the Commission on behalf of the Authority. An N
action taken at a meeting which is adjourned to another date and time shall be considered as a 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 1°
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 E
which is then the subject of the veto.
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(ii) The veto power may only be exercised if either(1)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 (2) both Members from the District transmit notice of said veto by fax or
mail to the secretary, the City , 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
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Packet'Pg. 124
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 District. All members of the District seeking to exercise the veto
power must be present at the particular 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 off the Mayor, 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. a
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(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. N
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(iv) The person or persons exercising the veto shall transmit notice by
fax or mail to the secretary, the City, and the District, that a particular action of the Commission
is thereby vetoed by either (1) the Mayor on behalf of the City, or the authorized Member from
the City in the absence of the Mayor, or (2) both Members on behalf of the District. The o
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, m
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
C and appropriately set forth in the official minutes for the particular meeting of the Commission. a
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D. Officers.
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(1) President,Vice-President and Secretary.
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(i) The Mayor of the City of San Bernardino shall at all times be the N
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
1 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.
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(ii) At the first meeting of the Commission after the effective date of E
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, and annually a
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 by providing written
notice of resignation to the Secretary of the Commission 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.
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The Secretary shall be responsible for the minutes and other records of the Authority and the
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.
(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 a
or employee of the Authority as the Commission shall deem qualified to act as Treasurer of the a.
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. N
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(3) Auditor.
The Authority shall appoint an Auditor who shall be: (1) the treasurer or chief
financial officer of one of the Parties; (2) a certified public accountant; or (3) such other o
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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 m
Agreement and any other duties specified by the Commission; provided, however, that the U)
person so appointed as Auditor shall not concurrently be appointed and acting as Treasurer.
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(4) Staff. a
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The Commission may employ, by contract or otherwise, an Executive Director M
and such staff as may be necessary. Except as listed below in this paragraph, the Executive Elk
Director shall appoint and remove all management level officers, subject to the approval of the M
Commission. Professional and expert services, including, without limitation, legal counsel, Q
financing consultants, accountants, engineers, architects and other consultants and advisors, may a
be contracted for by the Authority.
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(5) Rules and By-Laws. M
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The Commission may adopt, from time to time, such rules and regulations and s
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 the Water Resources Project, and in
addition thereto, has all other powers enumerated in the Act. The Authority is authorized to do
all acts necessary or convenient to the exercise of the aforementioned powers, including, but not
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Packet Pg:126
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
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
in the exercise of similar powers. The Authority may also issue revenue bonds pursuant to
Article 2, Chapter 5, Division 7, Title 1 of the Government Code of the State of California,
commencing with Section 6540 as the same now exists or may hereafter be amended(hereinafter a
referred to as the `Bond Act"), and any applicable laws of the State of California, whether 0-
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 5547.1
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. ;
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(b) The Authority shall have the power, if authorized by separate agreement with the
District, to establish, maintain and enforce water quality standards and park and facility o
maintenance standards, as the same may be amended from time-to-time, for the economical and
efficient operation and maintenance of the Water Resources Project. The Authority may enter CO
into such operating agreements, license agreements and lease agreements with the District and/or CO
the City for the purposes of implementing any recreational aspects of the Water Resources
Project. Nothing contained herein shall be deemed to delegate any of the powers and authority of E
the District with respect to the acquisition, sale or use of water rights, the sale of wholesale water a
and the operation and maintenance of all infrastructure and facilities related to the in-flow,
storage and out-flow of water to and from the Water Resources Project. The Authority may enter M
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 the Water Resources Project as may be legally M
delegated by the District to the Authority. N
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(c) Unless otherwise agreed between the Parties, the Authority shall not exercise any r
land use powers or zoning authority with respect to any properties that may become a part of the E,
Water Resources Project or for any other properties which may be adjacent thereto or in the
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proximity thereof. All land use entitlements, zoning powers and general plan land use d
designations shall remain in the sole power and control of the City. The Authority shall submit E
any applications and such other documentation, including environmental assessments and reports a
pursuant to CEQA, as the City may require of any other property owner seeking to obtain land Q
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 the Water Resources Project.
(d) 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
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Packet Pg. 127
federal law), include all or part of the following which may be exercised in whole or in part at
the sole discretion of the Commission:
(1) Negotiating a price and method of acquiring any properties and/or rights-
of-way whether within or outside the Property in connection with the Water Resources Project as
may be required for water reservoir purposes and in furtherance of the Purposes identified herein
and the ongoing operation of the 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 the Property and/or the Water Resources Project;
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(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; M
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(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 the Water Resources Project or any part thereof, for the o
Purposes identified herein, or any permitted use incidental thereto, together with a right or rights
to use the Water Resources Project in common with others as necessary to the right or rights CO
granted; and likewise to enter into leases with any person, firm or corporation for purposes other N
than the promotion and accommodation of water resources covering any portion of the Water
Resources Project whenever the Commission shall determine that the use of such portions of the a
Water Resources Project are not necessary for the promotion and accommodation of water E
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resources management or sale of surplus water or for uses incidental thereto;
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(4) Applying for and receiving any available State of California and/or federal N
grants, and in connection therewith, authorizing the execution of applications therefor, and grant M
agreements in connection therewith; N
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(5) Issuing revenue bonds or other obligations and incurring other forms of E
indebtedness as provided in this Agreement, which are not debts, liabilities or obligations of the M
Parties although the Authority has no power of taxation;
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(6) Conducting the necessary studies to determine what manner the Authority E
may best manage the liquefaction concerns present within the San Bernardino water management o
basin, and implementing such recommendations in any manner authorized by law; a
(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;
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(8) Continuing to operate, repair, maintain, improve and administer the Water
Resources Project if acquisition and construction occurs as may be delegated by the District to
the Authority;
(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 in connection with the Water Resources Project or
outside the Water Resources Project if for water resource management purposes or in furtherance
of the operation of the Water Resources Project if and to the extent such powers are delegated by
the City and/or the District to the Authority; a
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(10) Suing or being sued in its own name;
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(11) Entering into and performing under lawful agreements with any of the N
Parties, the State of California, the United States of America, or any departments or agencies of W
any of the foregoing, or any other municipal or public corporation of any kind or nature
whatever; t°
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(12) Making payment from surplus revenues to any of the Parties, or to public o
agencies whose boundaries encompass any area which overlaps any area included in the Water
Resources Project. The term "surplus revenues" as above referred to shall have whatever m
meaning is provided therefor in any resolution or trust indenture adopted by the Commission on co
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 agreement to which the Authority d
is a party or any such resolution or trust indenture then in effect; E
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(13) Carrying out and enforcing all the provisions of this Agreement; and, M
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(14) Carrying out and enforcing all rules and regulations and water sales rates M
and charges as deemed appropriate by the Commission. N
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The listing of the above acts is not intended to indicate any priority of one act
over anther. 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 `6
r
acts may take place concurrently or in sequence as the Commission shall direct. d
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(e) Unless subject to an exercised right of reverter as identified herein above, title to w
the Water Resources Project and the Property acquired in connection therewith may legally be a
held by the Authority in the event the Authority, the City, and the District each separately
determines that such method of title ownership would facilitate acquisition, construction and
management of the Water Resources Project. Otherwise, title to the water reservoir portion of the
Water Resources Project, and all appurtenant facilities, equipment and structures, will be held in
the name of the District. The Parties hereby agree that the Water Resources Project and any real
property on which it is located will be within the boundaries of the Authority.
11
Packet Pg. 129
(f) As of the time of the execution of this Agreement it is not known whether the
acquisition, operation, repair, maintenance and administration of the 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 or not to proceed with the Water Resources Project. 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 the Property or the
undertaking of the Water Resources Project and assumption of operational responsibility thereof,
other than the investigation by the Authority as to the practical, engineering and financial
feasibility of the Water Resources Project and the manner in which to proceed with any land a
acquisition.
d
Section 4. Fiscal Year.
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For the purposes of this Agreement, the term "Fiscal Year" shall mean the period from M
July I of each year to and including the following June 30.
Section 5. Assistance to the Authority.
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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) CO
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, (iv) use a
their personnel, equipment or property in lieu of or in conjunction with other contributions or d
advances, or(v)make contributions of public property and rights-of-way owned by them, in each
a
case, in connection with the Water Resources Project. Such sums shall be paid to and disbursed
by the Authority, and the method and manner of such payment, disbursement and repayment M
shall be as set forth in separate agreements by and between the Authority and a Party and N
approved by official action of the Commission on behalf of the Authority and by the respective M
legislative body on behalf of such Party. The provisions of Government Code Section 6513 are a
hereby incorporated into this Agreement. a
It is expressly agreed that the City will use reasonable efforts to assist with the ongoing
administration, management and maintenance of the municipal park developed on the Property.
At such time as the City is reasonably able to allocate the funds necessary to do so, the City will a0,
fully assume the responsibility for the ongoing administration, management and maintenance of
the municipal park developed on the Property, or, if feasible, the City will create a maintenance 2
district for such purposes. a
Section 6. Revenue Bonds.
In order to pay for acquiring, repairing, improving and financing the Water Resources
Project, including all facilities and improvements and any and all expenses incidental thereto or
connected therewith, in addition to utilizing the funds received in connection with the Grant, 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
12
Packet Pg.'130'
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 the 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) may 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 Grant, the revenue bonds, or other forms of indebtedness,
or any other legally available source.
L
Section 7. Official Bonds.
The Treasurer and the Auditor as the public officers designated in this Agreement who 0
have charge of, handle or have access to any monies of the Authority are hereby also designated
as responsible for all other property of the Authority. The Treasurer and Auditor shall each file m
an official bond with the Authority in the amount of not less than Two Hundred Fifty Thousand Cn
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 E
discretion increase the official bond requirements set forth in this section. All bond premiums a
shall be paid by the Authority.
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Section 8. Accounts and Reports.
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There shall be strict accountability of all funds and reporting of all receipts and N
disbursements. To the extent not covered by the duties assigned to any trustee appointed n'
pursuant to a resolution or trust indenture adopted by the Commission pursuant to applicable law E
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 r
practices or by the provisions of any resolution of the Authority authorizing the issuance of W
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 r
books and records of the Authority in the hands of the trustee or the Authority shall be available a
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
13
Packet Pg. 131
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 fiends of the
Authority available for such purpose.
Section 9. Funds.
The Treasurer of the Authority shall have custody of the Authority money and disburse
the 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 Q
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 a
other forms of indebtedness. L
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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:
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(a) Receive and receipt for all money of the Authority and place it in the treasury of o
the Treasurer of the Authority;
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(b) Be responsible, upon his or her official bond, for safekeeping and disbursement of N
all of the Authority money so held;
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(c) Pay, when due, from money of the Authority so held, all sums payable on a
outstanding bonds, or other forms of indebtedness, of the Authority;
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(d) Pay any other sums due from the Authority, from the Authority money, or any
portion thereof, only upon warrants of the Auditor of the Authority; and M
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(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.
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Subject to applicable provisions of any trust indenture or financing agreement, which
may provide for a trustee to receive, have custody of and disburse the Authority funds, the L
Treasurer of the Authority shall have the custody of and disburse the Authority funds pursuant to 0
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.
14
Packet Pg. 132 '
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 of Participating Interest nterests.
The rights, titles and interests of any Party herein shall not be assignable or transferable
unless approved in writing by each of the Parties or unless such assignment or transfer is
required by law and is not within the control of the Party making the assignment or transfer.
a.
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Section 11. Budgets; Party Loans.
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All Parties may by the official action of their respective legislative bodies Ioan 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 o
for an extended period of time which cannot now be determined both prior to and subsequent to
the time when the Authority accepts the Grant. Prior to the time or times when the Parties adopt m
their annual budgets, such funding, if any funding is approved by a legislative body, will be U)
required to be made by the Parties only from any legally available funds that may be allocated
for such purpose. The Executive Director, or another individual designated by the Commission, E
shall prepare the Authority budget for whatever period of time is involved and submit it to the a
Commission for consideration and approval, and thereafter such Authority-approved budget shall ti
be submitted to the Parties for such action as they deem appropriate under the circumstances. N
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 in lieu services for any of the M
operations and activities of the Authority or with regard to any aspect of the Water Resources Q
Project. a.
Section 12. Term; Amendments; Termination.
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(a) This Agreement shall be effective when executed by all of the Parties designated d
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 shall continue for so long as w
necessary to carry out the purposes of any agreement or contract with respect to the Water a
Resources Project or until terminated by unanimous consent, whichever is later; provided,
however,that:
(i) As the Authority's receipt of the Grant is conditioned upon this
Agreement remaining effective until June 30, 2041, if the Authority receives the Grant from the
State, this Agreement may not be terminated prior to June 30, 2041 without the consent of the
State; and
15
Packet Pg.133
(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, repair, Q
maintenance, improvement or administration of the Property or the Water Resources Project; and
a�
(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
of California, or any department, administration or agency of either.
R
(b) If this Agreement is terminated, as provided in this Section 12, any property M
acquired as a result of the joint exercise of powers or the net sale proceeds (as used herein, "net o
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 CO
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 (D
regulations then in effect) available upon a sale of any or all assets of the Authority shall be d
distributed or transferred in such manner as may be determined by the Commission. After a
completion of the purposes of this Agreement, and upon termination thereof, title to and
possession of all real property interests in the Water Resources Project and/or the Property and N
improvements thereon then owned by the Authority shall be disposed in such manner as may be
determined by the then Members of the Commission or as may be required by law or agreement M
to which the Authority is a party. Any surplus moneys on deposit with the Treasurer if not a
required to support the Property and/or the Water Resources Project shall be transferred to the a.
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.
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Section 13. Notices.
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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 Q
City Clerk of the City, 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
16
Packet Pg.,134
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.
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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 a
otherwise be rendered unenforceable or ineffectual, the validity of the remaining portions or M
provisions shall not be affected thereby.
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Section 17. Debts and Liabilities. 2
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The debts and liabilities of the Authority shall be those of the Authority and not of the �o
Parties. The Authority shall save, keep, defend, indemnify and hold harmless all Parties, their o
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 m
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.
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Section 18. No Partnership.
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This Agreement is not intended and shall not be construed to create the relationship of
agent, employee, partnership,joint venture or association between the Parties, and neither Party M
shall have the right or authority to assume, create or enlarge any obligation or commitment on Q
behalf of the other Party and shall not represent itself as having the authority to bind the other a.
Party in any manner.
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Section 19. Counterparts.
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This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of such counterparts together shall constitute one and the same r
instrument. a
17
Packet Pg.,135
AMENDED AND RESTATED 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.
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SAN BERNARDINO VALLEY MUNICIPAL
WATER DISTRICT 2
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By:
Title: President m
Dated: ' 20 Cn
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By:
Dated: 20— M
Approved as to Form:
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Attorney to the District
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Packet Pg.-136
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT CREATING
AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER
RESOURCES AUTHORITY
CITY OF SAN BERNARDINO
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By:
Patrick J. Morris, Mayor
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Dated: , 2013
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(SEAL)
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ATTEST: a
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Georgeann Hanna, City Clerk
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Approved as to Form:
James F. Penman,
City Attorney
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By: ,
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Packet Pg. 137
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT CREATING
AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER
RESOURCES AUTHORITY
The Inland Valley Development Agency ("IVDA") hereby executes this Agreement to
acknowledge its withdrawal as a Party to the Original Agreement and to further acknowledge a
that the IVDA is not a Party to this Agreement. 0.
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INLAND VALLEY DEVELOPMENT AGENCY 0
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By.
Title: Co-Chairman
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(SEAL)
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ATTEST:
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Clerk of the board of
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Approved as to Form: a
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General Counsel
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Packet Pg. 138
EXHIBIT"A"
Description of Property
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AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
CREATING AN AGENCY TO BE KNOWN AS THE
SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY
This Amended and Restated Joint Exercise of Powers Agreement-;.("Agreement"), dated
for convenience as of 20 (amending and restating that certain Joint Q
Exercise of Powers Agreement dated August 26, 1998; ("Original Agreement")), is made by and
amon between the City of San Bernardino (the '"`City"` the hila d Valley Development n gefle,, y
(the "INID A 4D and the San Bernardino Valley Municipal Water District (the ""DistrictL)D L
(hereinafter each referred to as a ''_Party'-"° and sometimes collectively referred to as the
""Parties" .
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WITNESSETH
WHEREAS, the Joint Exercise of Powers Act, Article 1 of Chapter 5 of Division 7 of o
Title 1 (commencing with Section 6500) of the Government Code of the State of California
pei as the same now exists or as later amended (hereinafter sometimes referred to as the m
joint exefeise of power°"Act" authorizes the Parties by agreement to jointly exercise certain �
powers common to the Parties; and
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WHEREAS, the Parties hereto recognize the importance of determining the value of the a
f0010111 potential Fedevelopment of eei4ain blighted areas loeated within the City whieli aFe situated LO
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City ef San BefnaFdino (the "Ageney") by possibly r-edeveloping seek afeas wit development
within the City of San Bernardino of (i) 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 users4. and ii a"'municipal park adjacent to the water resources and water storage
project for recreational and aesthetic purposes, (collectively, the "Water Resources Project 4 ),
that may result in possible benefit to the entire G,,: region, all as may be determined by �
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land use analyses, engineering feasibility and environmental studies required to be undertaken by E
the Authority (as defined in Section 2(A) below) pursuant to the California Environmental Q
Quality Act of 1970, as Amended{"LCEQA1�--. and
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WHEREAS, the District and the City have previously undertaken joint efforts to alleviate Q
the high ground water problems within the District boundaries located within the City and have a
a.
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 of further benefit to the Authority; and E
WHEREAS, under the Safe Drinking Water Water Quality and Supply, Flood Control, .2
River and Coastal Protection Bond Act of 2006 (also known as the Proposition 84 Statewide Q
Park Program) the Authority has submitted an application to the State of California ("State")
1
QBVN4WP LEGAL
DOCUMENT TAAENT 1 690
�� � n
requesting a grant of Five Million Dollars ($5,000,000.00) ("Grant") to be used in connection
with the construction of a municipal park at the northwest corner of Ninth Street and "E" Street
in the City of San Bernardino and the District has proposed to both the City and the lNID^ to
acquire etifrenfly deve�property within the City and to p ide fmaneitig f0f the a
A'' in furtherance of tithe Water Resources Project, including the acquisition of rights-of-
way and the construction of dowfl stFeatiidownstrearn channels and delivery systems to facilitate a
surplus water sales upon economically advantageous terms; and
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WHEREAS, the Authority has been advised that as a condition to its receipt of the Grant,
the State requires the City to enter into a joint exercise of powers agreement with the District to d
ensure that the purposes of the Grant will be realized whiclr is a purpose of this Agreement; ail
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WHEREAS if the Authority is successful in receiving the Grant, it is agreed that in �
exchange for the payment to the District (from the Grant funds) of a purchase trice equal to the
current vacant land value (as determined by an independent third party Certified General o
Appraiser) the District will approve the transfer to the Authority of the real properties identified
in the attached Exhibit "A" ("Property') in fee simple subject to a use restriction for municipal in
park and recreation purposes ("Purposes"), with a right of reverter in the event the Property is at C
any time used other than for the Purposes identified herein, and
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WHEREAS, the District anticipates that athe Water Resources Project—that may be Q
engineered and constructed to facilitate water storage and the delivery of water to potential users
will encourage the fede pm
elopmewdeveloent of other properties located within the territorial N
jurisdictions of the City, and the District and the 1VD n ^,,,a,to the mutual benefit of the Parties;
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WHEREAS, each of&aidthe Parties agrees that a regional approach is desirable to (i) _
• direct the
policies and activities of athe Water Resources Project. that may inelude tFaditional �
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, •, and in rr,,,,imity t„ �.ueh n ,eet a a E
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ii) acquire, own, maintain and operate tithe Water Resources Project, for municipal water, a
park and recreational uses as may be legally permitted upon sueh pfapeA the Property, or such
other uses as may be legally pe•mitted ndpermitted and as may be determined by the Authority
all in accordance with CEQA procedures to be hereafter complied with by the Authority; and a
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WHEREAS, each of the Parties hereto has the power to acquire, operate, repair, maintain
and administer a pcss the Water Resources Project as a municipal reservoir, and the
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, et seq., v
t:edevele,1111—It afeas that are ed in municipal bound of the 4t park; and
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2
SBN,N4sarn LEGAL
DOCUMENT 1690
X43
WHEREAS, it has been agreed by each of the Parties that tlthcir respective interests
ther-eef, as well as those of the public in general, may be served if the Parties jointly undertake
the sttWater Resources Project, and deter-mitiatien of pfaetieal and finaneial feasibility-4)f
t4ose peftietis of the City that may be best suited to be fedeveloped 49f muflieipal 11
► the WD A, i efdi ate coordinate their efforts pursuant to the applicable federal and
State of California laws, under the operational control of a joint powers authority created by the a
Parties as further set forth in this Agreement; and
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WHEREAS, it is the intent and desire of the Parties to enter into an agreement to 3
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 a
the aether*yA.uthority, accomplishing the above described genefal pufpe�seWatcr Resources
Project in a manner most capable of promoting the greatest public good and welfare; and
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WHEREAS, o
futihefanee of the r-e�li theFeofl and the AIDA OF the m
Ageney, as applieable, shall m
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with the CR6 an WHEREAS in connection with the Water Resources Project, the Mayor and �
Common Council of the City shall act as the legislative body with respect to all approvals and E
actions required in connection with the adoption of all land use alternatives, planning and a
development decisions with regard to the land within the ' ' l+ ^�n --' ' t'"�
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INIDAandtheAgeney, asapplie le, all M
betindar-ies of the City for a possible Water Resotifees -Pr-pjeet shall eentinee to be tinder- t�
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eontfal and jtifisdietien of the Maj,E)F and Common Gatineil of the City as the legislatiNze b0dy Of T
the Gity of the Plannitig , ft)r- all land use deeisions and
obtaining l feviews and app--e als as y °d-4and the District shall be the designated local
.. _
agency with respect to obtaining such reviews and approvals as are required guider CEQA.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, E
COVENANTS AND CONDITIONS HEREINAFTER CONTAINED, THE PARTIES AND a
EACH OF THEM, DO AGREE HEREBY AS FOLLOWS:
as
Section 1. Purpose: Termination of Agreement. E
a
(a) This Agreement is entered into pursuant to the provisions of ",.bile ' Chaptef
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Division 7 Title 1 ( With Seeti n 6500) of the Govemn en Cl 7 of +fle State el
California (herein ed to as-the"Act!!);�_ relating to the joint exercise of powers E
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 a
Parties to exercise their powers jointly in determining whether to adopt and implement any"the
Water Resources Project" and to exercise said powers jointly in an:y-L'the Water Resources
3
erzVNVAIDr Ennr
DOCUMENT 1690
Ra� 'P
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Project , described as the acquisition, operation, repair, maintenance and administration of a
rr.►- municipal park and recreation area and water resources and water storage project, including the
acquisition of rights-of-way and the construction of down stfeamdownstream 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. a
a
(b) The Parties recognize that the approval and implementation of aoYthe 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-ems
,•.-development - . Nothing contained herein shall in any manner be deemed to be a powe
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 governing body. y
eExcept as otherwise st�ecifically provided herein the Authority shall have the dut�and
obligation to own, and the District shall have the duty and obligation to own(either by providing o
funds to the Authority to satisfy the dutv and obligation or by performing on its own) to maintain
and operate t any water reservoir portion of anythe Water Resources Project as a municipal m
water reservoir, and (ii) the Property as a municipal park, unless the diistfie District, at the
direction of the Authority, shall delegate the duty to maintain and operate stiell the reservoir
v�,atei- storage or- reer-eationa pufpos-.and the Property to another governmental agency that has
duly accepted such delegation by the official action of its governing body. Nothing contained a
herein shall at any time be deemed to be a delegation of the taxing authority, financing authority
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and the ability to incur indebtedness, and eminent domain powers afld the eXefeiSe Of Othe N
edevelop ,»; powers of any Party.
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(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 ache Water Resources Project unless o
the powers of the particular Party are requested to be exercised in furtherance thereof. Each
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Party shall continue to exercise their full and absolute discretion as to those actions that are E
required to be exercised solely by the Parties and not by the Authority. a
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(d) At such time as the Commission (as defined in Section 2(B)(l) below) shall have
accepted a final draft of a feasibility,-fiffani- and operations plan (the -"`Feasibility and Q
Finaneing0perations Plan)hfor a proposed method of fitianeing implementation of athe a
Water Resources Project, and s to *" ." n' ^ ' ' ^„ of a Feasibility and Fi an.-Hi .- U'"" by �
the r^„„m iss ^, the Commission shall provide copies of the final draft of a Feasibility and
F ne Q)erations Plan to each Party to this Agreement * b t ith the fallowing, " r-ed E
Notiee of intent to Mept a Feasibility and b Plan (the "Notiee of intetit"). - of
inte-at shall be deliver-ed to eaeli Pafty to this Agfeement at least six,ty ealendaf da -
i the ipAended date of any eonsideration by the Commissiefl of the adepti n of the fina-I a
Feasibility and Finaneing _ the eaHiest date on
4
SB41 IAID LEGAL
T
PIV
Finaneing Plan. g , eaek and evefy Pat4y to this agree...-..,
obligations and liabilities ineufred by the Commission pr-ior to !he expiFation date of the
Termination Right shall never- be the obligations I.Feement. a
eat of any obligations and liabilities ineafred by the C-ofniiiission pf4eF to the expifation
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a t, f the T ,.,t;o R;g t L
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(e) Upon aoy sueh-e�iefeisethe dissolution of the T, iiin tion Right by °'
x one none vi
Authorityprior to the date stipulated in Section 12(a)(i) below, nothing contained r
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 this Agreement in such other manner as may be determined by the o
Party or Parties and the other governmental agencies then entering into any such substantially
similar agreement, ' , In
within the eity limits of the Gity of San Bemar-dine shall not pFoeeed without said City-appfev-al
and as
i i t ,,,,t�i any suet, .,gfee,, e is shall be , e! .,n ve a ; �
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Section 2. Authority.
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A. Creation of the Authority.
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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" _
herein referred to as the "Authority" . The debts, liabilities and obligations of
the Authority do not constitute debts, liabilities or obligations of the Parties.
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B. Commission of the Authority. a
as
(1) The Authority shall be governed by a Commission composed of,k-(6five
(S) individual members, each serving in their individual capacity as a N -ffibe rilember of the E
Commission. The Commission shall be called the "'San Bernardino Regional Water Resources a
Authority Commission L"' (hereinafter sometimes referred to as the""Commission'-+.
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(2) The Commission shall consist of(i) the Mayor of the City, (ii) two (2 E
two 2 elected council oef-smeanbcrs from the City(iii) the Geti y of can ' emar-ai~^ 0
appointed to sefve on the , -fas may
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SBVN4WD LEGAL
ac , g, 6;
be-appointed by the ' ^°ra of ^n°,v;°nr;Cites legislative body), and (�� ' +'�° +•_�^ r?iii twee
two 2 elected Board members from the District
of the z"ity(as appointed by the District's legislative body) one of whpm shat be the
President of the Dis : *. 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 (1) 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 a
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
n'DA--and the District, the—respect its legislative bed bod , may appoint alternate 3
representatives for the primary representatives, as-applica and
determine such rules, policies and procedures as may then be applicable as to the attendance and
participation by such alternate representatives in the place of the primary ieptesentat..e- ;
lr- ya-� representatives. With respect to the City, Mayor shall determine such rules, policies c°
�
and procedures as may then be applicable as to the attendance and participation by the alternate c
representatives in the place of the primary representatives of the City. The term ""MemberL"' or o
"Members'-"' shall specifically include both primary representatives and alternate representatives
appointed in the manner provided in this Section...,. provided that alternative representatives shall m
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.
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(3) Notwithstanding any other provision in this Agreement, on any matter ti
involving the .proposed municipal park located at the northwest corner of Ninth Street and "E" M
Street (the "Park") and only on any matter involving the Park, the City shall only cast one vote
(of its three votes on the Commission) by the Mayor or the Mayor's designee (designee chosen
from the two other Commission members appointed by the City) and the District shall cast two
votes (of its two votes on the Commission). c
(34) Members shall hold membership on the Commission during the term for
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which they maintain the elected position on their respective legislative body and until their a�
successors have been appointed or elected and qualified; provided, however, that each Member 4
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 pYParty appoints another
individual to serve as a primary or alternate representative to the Commission. a
(45) In case of a 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 E
alternate representative, forthwith notify the Secretary of the Commission of such appointment
or appointments. a
C. Meetings of the Commission.
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8B3,1 AID LEGAL
DOCUMENT 4 690
(1) Regular Meetings and Special Meetings.
The Commission shall provide for its regular meetings. The dates upon which and
the hour at which regular meetings shall be held shall be fixed by resolution and a copy
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of such resolution shall be filed with each of the Parties; provided, however, the Commission
shall hold at least one (1) regular meeting in each Fiscal Year. Special meetings and adjourned a
meetings may be held as required or permitted by law. Meetings nlia" be Biel` at ° ch fiflies
plaees (including without limitation meetings held via teleconference). All meetings of the
Commission shall be held at the Di * t' r * a t 3401 Vanderbilt W c
�- ' r __ -- �crv-�— —��-a;i, �
di Galifemia 9?408 and �t such times and places as any of the Parties hereto may °
reasonably request depending upon the nature of the business to be conducted.
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(2) Ralph M. Brown Act.
All meetings of the Commission, including, without limitation, regular, special o
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 CO
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Government Code).
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(3) Minutes.
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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 reasonably possible N
after each meeting, cause a copy of the minutes to be forwarded to each*wmberMember of the
Commission and to each of the Parties.
It
(4) Quorum. c
A quorum shall be deemed to be constituted at a Commission meeting for
conducting business of the Commission when f3trr- (4not less than three (3) Members are present E
who under California law are legally able to participate in such meeting.No individual other than a
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 �E
must be present at a meeting (including via teleconference) to have the power under this Q
Agreement to cast a vote and to be considered as present for purposes of determining whether the
requirement for a quorum has been met.
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(5) Voting. v
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Except as otherwise provided by law, any action taken by the Commission shall Q
require the affirmative vote of four ( ) `''embefsa majority of a quorum, present and voting. No
7
SBNIN4WD I=L--C-,AL
DOG N4ENT 1690
kL Member, whether a duly appointed primary representative or alternate representative, shall vote
unless present (inchiding via teleconference) 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.
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(i) All actions of the Commission (except actions involving the Park)
shall be subject to the veto power as herein granted to each Party, and such veto Mower may be CD
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 d
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 c
properly vetoed by the appropriate Member or Members on behalf of a Party no later than the C
end of the fifth business day following the adjournment of the particular meeting of the CD
Commission All such exercise of the veto power must occur by the end of the fifth business day m
following the meeting of the Commission when the official action of the Commission occurred Cn
which is then the subject of the veto.
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(ii) The veto power may only be exercised if either (1)the Mayor from Q
the City or such other Member from the City specifically authorized by the Mayor to exercise the ti
veto power on behalf of the Mayor in the event the Mayor is absent from a particular meeting of N
the Commission or (2) both Members from the District transmit notice of said veto by fax or
mail to the secretary, the Cites and the District no later than the end of the fifth business day r
Ci
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
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representatives or the alternate representatives or any combination of primary representatives and ai
alternate representatives of the District. All members of the District seeking to exercise the veto Q
power must be present at the particular meeting of the Commission whether as primary
representatives or alternate representatives to enable the individuals to jointly exercise the veto C
power by the District The Mayor of the City, or the Member authorized by the Mayor from the Q
City in the absence off the Mayor, must similarly be present at the Commission meeting to Q
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. E
(iii) An adjourned regular meeting shall not extend the time during Q
which the veto may be exercised for actions taken at the previous regular meeting from which
the adjournment occurred.
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SBVN4WD r Gr n r
7.B.f
(iv) The person or persons exercising the veto shall transmit notice by
fax or mail to the secretary the City, and the District that a particular action of the Commission
is thereby vetoed by either (1) the Mayor on behalf of the City, or the authorized Member from
the City in the absence of the Mayor, or (2) both Members on behalf of the District. 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, a
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. 3
0
t; All tions of the Commission shall be sul�eet to the veto-powef-as, M
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, and _
faaiwief as hei-einaftef set fe4h. No aetion of the Commission shall be deemed to be a Anal aetion .0
until five (5) business days have lapsed aftef the eonelusien of the paffieulaf meetifig of th
Commission on behalf of the Authofity. An aetion taken at a meeting d
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of the Commission has net been timely d
Member-, on behalf of a -
r _ of the fifth business Q no latef than the Commission.
adjoumment of the �eting of the All sueh exefeise of the veto powe.F
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(4) The veto povver- may only be T
. �.
the City a . ..
Veto PONVeF Oil behalf of the Mayor- in the event the Mayof is absent fi-om a paffietilar- g N�
the C-Omfflission, of (ii) both Membetzs, f+om the Distfiet, of (iii4 the individual
fepfesentifigg E
AIDA and the Distr-iet no latei* thaii the end of the AM business day 4:611owing the adjetwnn:ien
Q
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.. _ is . c�
City,veto powef nitist be either- the Mayor- in the ease of the
G
.. _. asentatwes ef Q
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the veto the par-tiou-1af ffleeting of the Commissi".. a',
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9
SB IAdAAID T G('_A T
Ti7'TLi'P'rT'1� �.�1�.7�
DOCUMENT 4690
Packet Pg. 150
following the adjournment of eanelusion of .
Coffimission oeetiffedwhieh is the stibj ct of the
(ii•) An ,a J lC a l et; v shall net extend the time a„
the adjaur-nmeR4 `-
ttZILLZ.
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(iv)— The s-C eisi g the .,et„ shall t,-aHS!r;t notice b. �n
.. shall .w.. .... U)
A* or- mail to the . . ,
CE)ffiffliSSion is thereby vetoed by eitheF (i) the Mayer on behalf of the Cit�', Or the aLtthEwized- 00i
ember- ffoni the City in t4e absenee of the Mayef, Ew (ii) botli N4efllbefs 044 behalf of !h-e
Distfiet, Or- (iii) the individual Membef en behalf of the WD�_. Tine se-efetaty of�he Commission
dy rwofd in the offieial minutes of the Commission ffleefifig the .."I.-A on behalf
a
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publiely 4 veto ne latef than t4e next meeting 01".11- GH......ssion. The aetion as thus 0
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rraT+cs + the t;eczx ur-r°cti rr of the Comm'
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D. Officers. o
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(1) President, Vice-President and Secretary. a
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i (i) The Mayor of the City of San BernardinoMayef of the City of Sal N
BemafdineDistfiet's shall at all titfies at all times be the President of the
Commission for the conduct of all meetings of the Commission. In the event that the r
Mayor Mayo. Diet let'° aetim �'°„t is absent, the City of San BernardinoGity E)f S
R„mafdi e,D, s_t,.;,,t Member designated by the MayorM.,,,,,fpf, !�jide t to preside in the =
Mayo[Mayof'sP-esident'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-and
shall be atithefized to eyefeise the veto fbr-the City of San E
a
(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 a
, and annually thereafter, the Commission shall elect or re-elect its Vice-President and Q
Secretary. In the event that the Vice-President or Secretary so elected resigns from such office by
providing written notice of resignation to the Secretary of the Commission or ceases to be a
Member of the Commission, the resulting vacancy shall be filled at the next regular meeting of E
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 w
shall act as President. The President, or in the absence of the President and the a
President'sPresi duly appointed alternate representative, the Vice-President shall preside at
10
crzvnn«m LEGAL
DOCUMENT 1690
and conduct all meetings of the Commission. The Secretary shall be responsible for the minutes
and other records of the Authority and the 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.
(2) Treasurer. a
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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 0
Authority. The Treasurer shall perform such duties as are set forth in this Agreement and any o:
other duties specified by the Commission; provided, however, that the person so appointed as
Treasurer shall not concurrently be appointed and acting as Auditor.
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(3) Auditor.
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The Authority shall appoint an Auditor who shall be: (1) the treasurer or chief m
financial officer of one of the Parties; (2) a certified public accountant; or (3) such other U)
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 a
person so appointed as Auditor shall not concurrently be appointed and acting as Treasurer.
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(4) Staff.
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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 Genstiltantsconsultants and E
advisors,may be contracted for by the Authority. a
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(5) Rules and By-Laws.
E
The Commission may adopt, from time to time, such rules and regulations and a
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. E
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Section 3. Powers and Duties of the Authority.
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11
SBNI Ixrn LEGAL
DOG Tr ENT 1690
Packet Pg. 152
` (a) The Authority shall have the powers common to the Parties to be exercised to
acquire, operate, repair, maintain, improve and administer athe Water Resources Project, and in
addition thereto, has all other powers enumerated in the T +Lc ere.ise of Pov,,ers Act, Chapter `,
Division 7, Title -22 ef ihe Gevemmeiit Code of the State ef Calif-afflia (el...... A'ith seetion
" 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 a
a.
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 CA
name. Said powers shall be exercised 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 B e-.,.,grin. in the exercise of similar powers. The y
Authority may also issue revenue bonds pursuant to Article 2, Chapter 5, Division 7, Title 1 of c
the Government Code of the State of California, commencing with Section 6540 as the same o
now exists or may hereafter be amended (hereinafter referred to as the "``Bond Acts;:;. and any
applicable laws of the State of California, whether heretofore or hereafter enacted or amended, CO
and, without limiting the generality of the foregoing, the Authority is also authorized to incur CO
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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 E
such revenue bonds or other forms of indebtedness shall not constitute debts, liabilities or Q
obligations of the Parties. ti
LO
(b) The Authority shall have the power, if authorized by separate agreement with the
District, to establish, maintain and enforce water quality standards and park and facility r
maintenance standards, as the same may be amended from time-to-time, for the economical and
efficient operation and maintenance of athe Water Resources Project. The Authority may enter c
into such operating agreements, license agreements and lease agreements with the District aiidior
the City for the purposes of implementing any recreational aspects of athe Water Resources
Project. Nothing contained herein shall be deemed to delegate any of the powers and authority of as
the District with respect to the acquisition, sale or use of water rights, the sale of wholesale water Q
and the operation and maintenance of all infrastructure and facilities related to the in-flow,
storage and out-flow of water to and from athe Water Resources Project. The Authority may
enter into such agreements with the District, if approved by both the Authority and the District, Q
for the exercise of such additional powers with respect to attic Water Resources Project as may a
be legally delegated by the District to the Authority.
(e) The Authority shall not eker-eise any Fedevelopfflent powefs that afe available to c
E
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ineltiditig, Q
12
CDVAAIli D LEGAL
DOG rMFNTr 1690
,� 3
Community Redevelopmelit—1 -a-1-1--i's found in Health & Safi-4y Code Seetion 33000 et seq-.
(d) The(c) Unless otherwise agreed between the Parties, the Authority shall not
exercise any land use powers or zoning authority with respect to any properties that may become
a part of athe 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 Q
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 o
use entitlements and all necessary permits for the acquisition and construction of any other 0
project within the City. The Authority shall be responsible for acting as the applicant to the City a
in connection with any land use entitlement process and the submittal of any necessary a;
environmental documentation pursuant to CEQA as to athe Water Resources Project.
I �
(ed) Without limiting the generality of the foregoing, it is intended that the Authority c
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 m
federal law), include all or part of the following which may be exercised in whole or in part at Cn
the sole discretion of the Commission:
c
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(1) Negotiating a price and method of acquiring any properties and/or rights- Q
of-way whether within or outside tithe Property in connection with the Water Resources Project ti
as may be required for water reservoir purposes and in furtherance of the Purposes identified N
herein and the ongoing operation of athe Water Resources Project, and authorizing the execution,
and executing any and all documents necessary or desirable to accept the operational control of T
and transfer of athe Property and/or the Water Resources Project;
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(2) Consistent with the requirements of state and federal laws, conducting any 6
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 as
studies and proceedings may indicate in the determination of the Commission will mitigate any Q
adverse effects reflected in such studies;
a�
(3) Granting of franchises, permits and licenses to, and entering into leases Q
and contracts with, any person, firm or corporation, or agency of the State of California and/or a
the federal government, for the use of athe Water Resources Project or any part thereof, for the °-;
pr-omation and aeeammodation of water .Purposes identified herein, or any permitted
use incidental thereto, together with a right or rights to use ate- the 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 athe Water Resources Project a
whenever the Commission shall determine that the use of such portions of athe Water Resources
13
CSBNINPAID LEGAL
DOCUMENT 1690
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;
0.
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(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;
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_(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 c
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 m
within the affected areas of the District;
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(8) Continuing to operate, repair, maintain, improve and administer athe a
Water Resources Project if acquisition and construction occurs as may be delegated by the a
District to the Authority;
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(9) Acquiring, constructing, managing, maintaining, operating or disposing of N
or donating land, building sites, buildings, works or improvements, whether to or from public or r
private persons or entities, and whether on a-in connection with the Water Resources Project or
outside tithe Water Resources Project if for water resource management purposes or in =
furtherance of the fedevelopment of aE'aee ' � *'°., ttfld in fame' anee of die operation of a
athe Water Resources Project if and to the extent such powers are delegated by the City and./or
the District to the Authority; as
4
(10) Suing or being sued in its own name;
c
d
(11) Entering into and performing under lawful agreements with any of the E
Parties, the State of California, the United States of America, or any departments or agencies of Q
any of the foregoing, or any other municipal or public corporation of any kind or nature °-;
whatever;
d
E
(12) Making payment from surplus revenues to any of the Parties, or to public
agencies whose boundaries (ineluding in the ease of the Ageney and the AID A, edevelop ment
Fr o1G�t-r,r°� '-r 'y °°' encompass any area which overlaps any area included in athe Water a
Resources Project. The term "-surplus revenues''-L"' as above referred to shall have whatever
14
SBN1 A[a19 LEGAL
DOGrrrnENT 1690
� �
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 agreernent to which the Authority
is a party or any such resolution or trust indenture then in effect;
(13) Carrying out and enforcing all the provisions of this Agreement; and,
Z
(14) Carrying out and enforcing all rules and regulations and water sales rates n
and charges as deemed appropriate by the Commission.
L
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 a
other acts to be done in the accomplishment of the purposes of this Agreement. One or several w
acts may take place concurrently or in sequence as the Commission shall direct. y
M
(f)44the) Unless sub*ect to a--an exercised right of reverter as identified herein g
above, title to the Water Resources Project and the Property acquired in connection therewith
may legally be held by the Authority in the event the Authority, the City, *'—�=.e 1dD A and the m
District each separately determines that such method of title ownership would facilitate
acquisition, construction and management of attic Water Resources Project. Otherwise, title to
atlhe water reservoir portion of atlhe 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
athe Water Resources Project and any real property on which it is located will be within the
boundaries of the Authority. N
(gt) As of the time of the execution of this Agreement it is not known whether the r
acquisition, operation, repair, maintenance and administration of athe 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 or not to proceed with ^ ^r^° * ^r not pFoeeedthe Water Resources Project. �
Nothing in this Agreement shall be construed to commit either the Authority or any of the Parties a�
at this time to any particular course of action for the acquisition or non-acquisition of the a
Property or the undertaking of a-pythe Water Resources Project and assumption of operational
responsibility thereof, other than the investigation by the Authority as to the practical,
engineering and financial feasibility of any stichthe Water Resources Project and the manner in E
which to proceed with any land acquisition. a
a
Section 4. Fiscal Year.
d
E
For the purposes of this Agreement, the term ""`Fiscal Year" shall mean the period from �
July 1 of each year to and including the following June 30. r
a
Section 5. Assistance to the Authority.
15
SBVN PaID LEGAL
T
DOC rn ENT 1 r_9n
rThe 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, er-(iv) use
their personnel, equipment or property in lieu of or in conjunction with other contributions or
I advances.- or ( make contributions of public�roperty and rights-of-��av owned by them, in a
a.
each case in connection with the Water Resources Project. 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 0
respective legislative body on behalf of such Party. The provisions of Government Code Section M
L
6513 are hereby incorporated into this Agreement.
It is expressly agreed that the City will use reasonable efforts to assist with the ongoing
administration management and maintenance of the municipal park developed on the Property. 0
At such time as the City is reasonably able to allocate the funds necessary to do so, the City will
fully assume the responsibility for the ongoing administration management and maintenance of CO
the municipal park developed on the Property, or, if feasible the City will create a maintenance
district for such purposes.
aD
Section 6. Revenue Bonds. a
In order to pay for acquiring, repairing, improving and financing athe Water Resources N
Project, including all facilities and improvements and any and all expenses incidental thereto or
connected therewith, in addition to utilizing the funds received in connection with the Grant, the r
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 E
Parties. a
a
a�
All fees and expenses of professional and expert services, including, without limitation,
legal counsel, financing consultants, accountants, engineers, architects and other consultants and Q
advisors connected with the acquisition, operation, repair, maintenance, improvement and Q
administration of athe 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) :7hallm—ay be paid, or repaid to the Parties, as the case may be, without any E
preference being granted to any Party or Parties, at the earliest feasible time, to the extent such 0
payment or repayment is both lawful and deemed to be financially prudent in the sole discretion a
of the Commission, from the proceeds of the Grant. the revenue bonds, or other forms of
indebtedness, or any other legally available source.
16
SB3,1NPAZD LEGAL
DOCA 4E-N r 1690
Packet Pg. 157
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 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 a
Dollars ($250,000). Each membe 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 3
premiums shall be paid by the Authority.
L
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 o
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 m
and maintain such procedures, funds and accounts as may be required by sound accounting W
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 E
nearly as possible to typical and customary procedures for the County of San Bernardino. The a
books and records of the Authority in the hands of the trustee or the Authority shall be available ti
for inspection at all reasonable times by authorized representatives of the Parties. The Auditor, N
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 a�
of„ such independent certified public accountant or firm of certified public accountants, in Q
making an audit pursuant to this Agreement shall be a charge against any unencumbered funds of
the Authority available for such purpose.
E
Q
Section 9. Funds. a
The Treasurer of the Authority shall have custody of the Authority money and disburse
the Authority funds pursuant to the accounting procedures developed in accordance with the E
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 .2
the custody and disbursement of the proceeds of any revenue bonds or other forms of
17
8BIA43AID LEGAL
DOCUMENT 1690
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.
a
(a) Receive and receipt for all money of the Authority and place it in the treasury of
the Treasurer of the Authority;
L
(b) Be responsible. upon his or her official bond, for safekeeping and disbursement of U)
all of the Authority money so held;
L
d
(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;
I °
(d) Pay any other sums due from the Authority, from the Authority money, or any
portion thereof, only upon warrants of the Auditor of the Authority; and CO
Cn
(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. Q
ti
Subject to applicable provisions of any trust indenture or financing agreement, which N
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 the Authority funds pursuant to
the accounting procedures developed in accordance with the provisions of Section 8 hereof.
c
The Auditor of the Authority shall draw warrants to pay demands against the Authority d
when the demands have been approved by the Executive Director of the Authority or any other
r
person authorized to so approve in accordance with the accounting provisions developed in E
accordance with the provisions of Section 8 hereof. a
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 E
upon the same conditions as local agencies pursuant to Section 53601 of the Government Code. a
a.
Section 10. Non-Assi nay of Participating Interests.
a�
E
The rights, titles and interests of any Party herein shall not be assignable or transferable
unless qpproved in writing by each of the Parties or unless such assignment or transfer is Q
required by law and is not within the control of the Parry making the assignment or transfer.
18
SBVNPAID LEGAL
DOCUMENT 4690
Packet F'g. 159
7.B.f
Section 11. Budgets; Party Loans.
�M
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 a
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 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 y
Resaufe Pfje *.Grant. Prior to the time or times when the Parties adopt their annual budgets, rr
such funding, if any funding is approved by a legislative body,will be required to be made by the 2
Parties only from any legally available funds that may be allocated for such purpose. The
Executive Director, or another individual designated by the Commission, shall prepare the
Authority budget for whatever period of time is involved and submit it to the Commission for o
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 m
in this Agreement shall ever be deemed to obligate or require any of the Parties to loan moneys, ")
advance funds or provide staffmg andstaffing in lieu services for any of the operations and
activities of the Authority or with regard to any aspect of the Water Resources Project. a
E
a
Section 12. Term.; Amendments;; Termination.
LO
M
(a) This Agreement shall be effective when executed by all of the Parties designated N
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; an d, e*eept as pr-evidea i f Seetio�
Y4, shall continue for so long as necessary to carry out the purposes of any agreement or
contract with respect to athe Water Resources Project or until terminated by unanimous consent,
whichever is later;provided,however, that: X
E
_(i) This emaei#As the Authority's receipt of the Grant is conditioned a
upon this Agreement remaining effective until June 30, 2041, if the Authority receives the Grant m
from the State, this Agreement may not be terminated prior to the expiration of the Te.-.V,;. afie„
Tune 30, 2041 E
without afiy 4;6i4h.:f obligation liabi4t the consent of the A„thoj-:ty ,,,. any Pai4y t„ this
a
Agfe entState; and a.
(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 a
19
SBWWALD LEGAL
DO 7IMEN'T 4690
(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, repair,
maintenance, improvement or administration of athe Property or the Water Resources Project;
and a
a
(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 3
with the United States of America, or any agreement entered into by the Authority with the State
erof California, or any department, administration or agency of either.
d
(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 o
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 m
been disposed in such manner as may be required pursuant to federal and state laws, rules and `n
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 Q
possession of all real property interests in athe Water Resources Project and/or the Property and ti
improvements thereon then owned by the Authority shall be disposed in such manner as may be N
determined by the then Members of the Commission 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 athe Property and/or the Water Resources Project shall be transferred to the
District unless otherwise directed by the then enMcrlibers of the Commission or unless =
otherwise required by law or agreement to which the Authority is a party.
Section 13. Notices. E
Q
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 C
City Clerk of the City, or O eflE of the WD^, of the Clerk of the District, as appropriate, for each E
of the Parties. Q
0.
Section 14. Miscellaneous.
d
E
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 .2
consent or approval is required, the same shall not be unreasonably withheld, however, any
20
cBVN4 D LEGAL
Dt'G r 4ENT 16nn
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. a
Section 16. Severability.
L
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
�a
provisions shall not be affected thereby.
R
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Section 17. Debts and Liabilities. °-
d
The debts and liabilities of the Authority shall be those of the Authority and not of the m
Parties. The Authority shall save, keep, defend, indemnify and hold harmless all Parties, their N
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 a
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-. N
M
Section 18. No Partnership. r
ai
This Agreement is not intended and shall not be construed to create the relationship of
agent ennployee, partnership joint venture or association between the Parties, and neither Party 5
shall have the right or authority to assume create or enlarge anv obligation or commitment on
r
behalf of the other Partv and shall not represent itself as having the authority to bind the other E
Party ilany manner. a
a�
Section 19. Counterparts.
E
This Agreement may be executed in multiple counterparts, each of which shall be Q
deemed an original and all of such counterparts together shall constitute one and the same
instrument. c
E
Q
21
cxzVR MID LEGAL
DOCUMENT 1690
' �
AMENDED AND RESTATED 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 a
CL
and attested by their proper officers thereunto duly authorized, their official seals to be hereto
affixed, as of the date first above written.
L
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TA iT A ATTI [7 A T T T'[ TlC�7G� (1D71RCATT A"CRTGAZ
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Dated: August 27, 1999
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inland, b
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22
SBVN4WD LEGAL
POGUN4FiNT 4690
r� -g1f
jOINT EXERCISE OF, POWERS AGPLEEMENT CREATING AN AGENCY TO BE KNOWN
AS T14E SAN BERNARDINO REGIONAL WATER RESOURCES AUT14ORIT-Y
SAN BERNARDINO VALLEY MUNICIPAL
WATER DISTRICT a
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0
By: N
Title: President
d
Dated: Augur-1999
20
0
d
By: m
Dated: August 25,19.u. -a
20
Approved as to Form:
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Attorney to the District
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23
BNINVam LEGAL
DOCUMENT 4690
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT CREATING
AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER
RESOURCES AUTHORITY
a
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CITY OF SAN BERNARDINO d
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3
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By:
Tide- Patrick J. Morris, Mayor ;
m
Dated: August 27, 19.4S
20 13 0
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(SEAL)
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ATTEST: N
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Georgeann Hanna, City Clerk
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Approved as to Form:
James F. Penman,
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City Attorney E
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24
SB%ZN41A1D LEGAL
POGUN49Nr 1690
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT CREATING
AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER
RESOURCES AUTHORITY
a
I o.
The Inland Valley Development Agency_ ("IVDA") hereby executes this Agreement to CD
acknowledge its withdrawal as a Party to the Origrinal Agreement and to further acknowledge
that the IVDA is not a Party to this Agreement.
L
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INLAND VALLEY DEVELOPMENT AGENCY
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By:
Title: Co-Chairman m
Dated: Cl)
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SEAL
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ATTEST: Cl
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Clerk of the board of =
Inland Valley Development Agency
Approved as to Fonn: E
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General Counsel E
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25
SBNI,%4'AID LEGAL
DOC- N4FNT- 1690
Ft, EXHIBIT"A"
I Description of Property
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26
SBNI Aia71l LEGAL
DOCUMENT 1690
Packet Pg. 167
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
CREATING AN AGENCY TO BE KNOWN AS THE
SAN BERNARDINO REGIONAL WATER RESOURCES AUTHORITY
This Amended and Restated Joint Exercise of Powers Agreement ("Agreement"), dated
for convenience as of , 20 (amending and restating that certain Joint
Exercise of Powers Agreement dated August 26, 1998 ("Original Agreement")), is made by and
3
between the City of San Bernardino (the"City") and the San Bernardino Valley Municipal Water 0
District (the "District") (hereinafter each referred to as a "Party" and sometimes collectively
referred to as the"Parties").
d
WITNESSETH
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0
WHEREAS, the Joint Exercise of Powers Act, Article 1 of Chapter 5 of Division 7 of
Title 1 (commencing with Section 6500) of the Government Code of the State of California, as m
the same now exists or as later amended (hereinafter sometimes referred to as the "Act' N
authorizes the Parties by agreement to jointly exercise certain powers common to the Parties; and
c
d
WHEREAS, the Parties hereto recognize the importance of determining the value of the E
a
potential development within the City of San Bernardino of (1) a water resources and water
ti
storage project, including such water courses as may be necessary and desirable to transport M
water from a project to downstream users, and (ii) a municipal park adjacent to the water
resources and water storage project for recreational and aesthetic purposes, (collectively, the
"Water Resources Project"), that may result in possible benefit to the entire region, all as may be
determined by land use analyses, engineering feasibility and environmental studies required to be 0
undertaken by the Authority (as defined in Section 2(A) below) pursuant to the California
Environmental Quality Act of 1970, as Amended("CEQA"); and
a�
WHEREAS, the District and the City have previously undertaken joint efforts to alleviate 3
the high ground water problems within the District boundaries located within the City and have .2
d
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 E
mitigation efforts will be of further benefit to the Authority; and a
v
a�
WHEREAS, under the Safe Drinking Water, Water Quality and Supply, Flood Control, d
River and Coastal Protection Bond Act of 2006 (also known as the Proposition 84 Statewide E
a
Park Program), the Authority has submitted an application to the State of California ("State") a
requesting a grant of Five Million Dollars ($5,000,000.00) ("Grant") to be used in connection a.
with the construction of a municipal park at the northwest corner of Ninth Street and "E" Street
in the City of San Bernardino and the District has proposed to the City to acquire property within E
the City in furtherance of the Water Resources Project, including the acquisition of rights-of-way
and the construction of downstream channels and delivery systems to facilitate surplus water a
sales upon economically advantageous terms; and
1
Packet Pg:1681.
7.B.g
WHEREAS, the Authority has been advised that as a condition to its receipt of the Grant,
the State requires the City to enter into a joint exercise of powers agreement with the District to
ensure that the purposes of the Grant will be realized,which is a purpose of this Agreement; and
WHEREAS, if the Authority is successful in receiving the Grant, it is agreed that in Q
exchange for the payment to the District (from the Grant funds) of a purchase price equal to the
current vacant land value (as determined by an independent third party Certified General
Appraiser), the District will approve the transfer to the Authority of the real properties identified
in the attached Exhibit "A" ("Property") in fee simple, subject to a use restriction for municipal
park and recreation purposes ("Purposes"), with a right of reverter in the event the Property is at
any time used other than for the Purposes identified herein; and a�
WHEREAS, the District anticipates that the Water Resources Project may be engineered
and constructed to facilitate water storage and the delivery of water to potential users will o
encourage the development of other properties located within the territorial jurisdictions of the
City and the District,to the mutual benefit of the Parties; and m
WHEREAS, each of the Parties agrees that a regional approach is desirable to (i) direct
the policies and activities of the Water Resources Project, and (ii) acquire, own, maintain and
operate the Water Resources Project, for municipal water, park and recreational uses as may be E
a
legally permitted upon the Property, or such other uses as may be legally permitted and as may
be determined by the Authority all in accordance with CEQA procedures to be hereafter M
complied with by the Authority; and
M
r
WHEREAS, each of the Parties hereto has the power to acquire, operate, repair, maintain
and administer the Water Resources Project as a municipal reservoir and municipal park; and
r
WHEREAS, it has been agreed by each of the Parties that their respective interests, as
well as those of the public in general, may be served if the Parties jointly undertake the Water
Resources Project, and coordinate their efforts pursuant to the applicable federal and State of 3
California laws,under the operational control of a joint powers authority created by the Parties as —°
d
further set forth in this Agreement; and
E
WHEREAS, it is the intent and desire of the Parties to enter into an agreement to a
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 Water Resources Project in a manner most E
capable of promoting the greatest public good and welfare; and a
WHEREAS, in connection with the Water Resources Project, the Mayor and Common
Council of the City shall act as the legislative body with respect to all approvals and actions E
required in connection with the adoption of all land use alternatives, planning and development
decisions with regard to the land and the District shall be the designated local agency with a
respect to obtaining such reviews and approvals as are required under CEQA.
2
Packet Pg. 169
7.B.g
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 1. Purpose; Termination of Agreement. a
a
(a) This Agreement is entered into pursuant to the provisions of 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 o
for the purpose of enabling the Parties to exercise their powers jointly in determining whether to
adopt and implement the Water Resources Project and to exercise said powers jointly in the Y
Water Resources Project, described as the acquisition, operation, repair, maintenance and
administration of a municipal park and recreation area and water resources and water storage
project, including the acquisition of rights-of-way and the construction of downstream channels o
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 m
necessary to accomplish the purposes of this Agreement. The foregoing purposes may be co
accomplished and the common powers exercised in the manner hereafter set forth.
as
(b) The Parties recognize that the approval and implementation of the Water E
a
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. Nothing M
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 governing body. Except as otherwise specifically provided
herein, the Authority shall have the duty and obligation to own, and the District shall have the
duty and obligation (either by providing funds to the Authority to satisfy the duty and obligation
or by performing on its own) to maintain and operate, (i) any water reservoir portion of the
Water Resources Project as a municipal water reservoir, and (ii) the Property as a municipal s
park, unless the District, at the direction of the Authority, shall delegate the duty to maintain and 3
operate the reservoir and the Property to another governmental agency that has duly accepted —°
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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 E
to incur indebtedness, and eminent domain powers of any Party. Q
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(c) Nothing contained herein shall require any Party by action of their governing r_
body to approve any proposed financing plan of the Authority, any land use entitlements sought E
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to be obtained by the Authority, or any operational aspect of the Water Resources Project unless a
the powers of the particular Party are requested to be exercised in furtherance thereof. Each Party n
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. s
(d) At such time as the Commission (as defined in Section 2(B)(1) below) shall have Q
accepted a final draft of a feasibility and operations plan (the "Feasibility and Operations Plan")
for a proposed method of implementation of the Water Resources Project, and the Commission
3
Packet Pg. 170
shall provide copies of the final draft of a Feasibility and Operations Plan to each Party to this
`...- Agreement
(e) Upon the dissolution of the Authority prior to the date stipulated in Section
12(a)(i) below, nothing contained herein shall preclude any Party or any combination of Parties a
from entering into one or more substantially similar agreements either with each other or with
other governmental agencies to undertake the purposes of this 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. °
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Section 2. Authoritv. F;
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A. Creation of the Authority.
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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" (herein m Ce
referred to as the "Authority"). The debts, liabilities and obligations of the Authority do not N
constitute debts, liabilities or obligations of the Parties.
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B. Commission of the Authority. Q
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(1) The Authority shall be governed by a Commission composed of five (5) M
individual members, each serving in their individual capacity as a member of the Commission.
i The Commission shall be called the "San Bernardino Regional Water Resources Authority
Commission" (hereinafter sometimes referred to as the"Commission").
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(2) The Commission shall consist of (i) the Mayor of the City, (ii) two (2)
elected council members from the City (as appointed by the City's legislative body), and(iii)two L
(2) elected Board members from the District (as appointed by the District's legislative body).
The elected officials thus serving on the Commission shall be called "Members." Each Party by 3
action of their respective legislative body may similarly designate one (1) additional elected .2
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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 E Cn
attending Commission meetings and to fully participate in such meetings and to cast votes in a
place of a primary representative for such Party. With respect to the District, its legislative body
may appoint alternate representatives for the primary representatives and determine such rules,
policies and procedures as may then be applicable as to the attendance and participation by such E
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alternate representatives in the place of the primary representatives. With respect to the City, the a
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 E
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 Q
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.
4
Racket Pg. 171'
(3) Notwithstanding any other provision in this Agreement, on any matter
involving the proposed municipal park located at the northwest corner of Ninth Street and "E"
Street (the "Park"), and only on any matter involving the Park, the City shall only cast one vote
(of its three votes on the Commission) by the Mayor or the Mayor's designee (designee chosen
from the two other Commission members appointed by the City) and the District shall cast two Q
votes (of its two votes on the Commission). a
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(4) 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 0
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 0
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.
0
(5) In case of a 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. m
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.
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C. Meetings of the Commission.
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(1) Regular Meetings and Special Meetings.
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The Commission shall provide for its regular meetings. The dates upon which and
the hour 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 (1) regular meeting in each Fiscal Year. Special meetings and adjourned meetings
may be held as required or permitted by law (including, without limitation, meetings held via
teleconference). All meetings of the Commission shall be held at such times and places as any of 3
the Parties hereto may reasonably request depending upon the nature of the business to be —°
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conducted.
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(2) Ralph M. Brown Act. a
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All meetings of the Commission, including, without limitation, regular, special
and adjourned meetings, shall be called, noticed, held and conducted in accordance with the E
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provisions of the Ralph M. Brown Act (commencing with Section 54950 of the California a
Government Code).
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(3) Minutes. E
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The Secretary of the Commission shall cause minutes of all regular, special and a
adjourned meetings to be prepared and maintained, and shall, as soon as reasonably 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
Packef 0 g. 172
(4) Quorum.
A quorum shall be deemed to be constituted at a Commission meeting for
conducting business of the Commission when not less than three (3) Members are present who a
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 N
must be present at a meeting (including via teleconference) to have the power under this W
Agreement to cast a vote and to be considered as present for purposes of determining whether the w
requirement for a quorum has been met.
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(5) Voting. e
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Except as otherwise provided by law, any action taken by the Commission shall m
require the affirmative vote of a majority of a quorum, present and voting. No Member, whether W
a duly appointed primary representative or alternate representative, shall vote unless present
(including via teleconference)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 a
having voted on such matter.
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(6) Veto Power.
M
7
(i) All actions of the Commission (except actions involving the Park) v
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 s
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 —°
as
final action for all purposes if the particular action of the commission has not been timely and
w
properly vetoed by the appropriate Member or Members on behalf of a Party no later than the E
end of the fifth business day following the adjournment of the particular meeting of the a
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. a
Q
(ii) The veto power may only be exercised if either(1) 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 E
the Commission, or (2) both Members from the District transmit notice of said veto by fax or
mail to the secretary, the City , and the District no later than the end of the fifth business day a
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
6
Packet Pg. 173
7.B.g".
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 District. All members of the District seeking to exercise the veto
power must be present at the particular meeting of the Commission whether as primary
representatives or alternate representatives to enable the individuals to jointly exercise the veto Q
power by the District. The Mayor of the City, or the Member authorized by the Mayor from the
City in the absence off the Mayor, 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.
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(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. o
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(iv) The person or persons exercising the veto shall transmit notice by m
fax or mail to the secretary, the City, and the District, that a particular action of the Commission W
is thereby vetoed by either (1) the Mayor on behalf of the City, or the authorized Member from
the City in the absence of the Mayor, or (2) both Members on behalf of the District. The
secretary of the Commission shall duly record in the official minutes of the Commission meeting Q
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 M
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.
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D. Officers.
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(1) President,Vice-President and Secretary. s
(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 —°
v
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 E
Commission and shall be authorized to exercise the veto for the City of San Bernardino. Q
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(ii) At the first meeting of the Commission after the effective date of
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this Agreement, the Commission shall elect from the Members a Vice-President and Secretary
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and, thereafter at the first meeting held in July of each succeeding calendar year, and annually a
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 by providing written
notice of resignation to the Secretary of the Commission or ceases to be a Member of the E
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 Q
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.
IC 7
Packet Pg. 174
The Secretary shall be responsible for the minutes and other records of the Authority and the
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. a
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(2) Treasurer.
L
The Authority shall appoint a Treasurer who shall be: (i) the treasurer or chief 0
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 w
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. o
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(3) Auditor. m
The Authority shall appoint an Auditor who shall be: (1) 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 E
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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 M
person so appointed as Auditor shall not concurrently be appointed and acting as Treasurer.
M
(4) Staff.
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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 2
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, 3
financing consultants, accountants, engineers, architects and other consultants and advisors, may 2
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be contracted for by the Authority.
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(5) Rules and By-Laws. a
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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 E
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meetings and affairs as it may deem necessary provided that all such rules and regulations are a
consistent with the provisions of this Agreement.
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Section 3. Powers and Duties of the Authori ty. E
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(a) The Authority shall have the powers common to the Parties to be exercised to a
acquire, operate, repair, maintain, improve and administer the Water Resources Project, and in
addition thereto, has all other powers enumerated in the Act. The Authority is authorized to do
all acts necessary or convenient to the exercise of the aforementioned powers, including, but not
..
8
Packet Pg. 175
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 Q
in the manner provided in the Act and, except as expressly set forth herein, subject only to any 0.
and all such restrictions upon the manner of exercising such powers as are imposed upon the City
in the exercise of similar powers. The Authority may also issue revenue bonds pursuant to
Article 2, Chapter 5, Division 7, Title 1 of the Government Code of the State of California, 0
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 2
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 o
State of California; provided, however, that such revenue bonds or other forms of indebtedness
shall not constitute debts, liabilities or obligations of the Parties. CO
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(b) The Authority shall have the power, if authorized by separate agreement with the
District, to establish, maintain and enforce water quality standards and park and facility
maintenance standards, as the same may be amended from time-to-time, for the economical and E
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efficient operation and maintenance of the Water Resources Project. The Authority may enter
into such operating agreements, license agreements and lease agreements with the District and/or
the City for the purposes of implementing any recreational aspects of the 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 v
and the operation and maintenance of all infrastructure and facilities related to the in-flow,
storage and out-flow of water to and from the Water Resources Project. The Authority may enter
into such agreements with the District, if approved by both the Authority and the District, for the t
exercise of such additional powers with respect to the Water Resources Project as may be legally
s
delegated by the District to the Authority. 3
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(c) Unless otherwise agreed between the Parties, the Authority shall not exercise any
land use powers or zoning authority with respect to any properties that may become a part of the a)
Water Resources Project or for any other properties which may be adjacent thereto or in the a
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 d
any applications and such other documentation, including environmental assessments and reports E
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pursuant to CEQA, as the City may require of any other property owner seeking to obtain land a
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 E
environmental documentation pursuant to CEQA as to the Water Resources Project.
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(d) 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
9
federal law), include all or part of the following which may be exercised in whole or in part at
the sole discretion of the Commission:
(1) Negotiating a price and method of acquiring any properties and/or rights-
of-way whether within or outside the Property in connection with the Water Resources Project as a
may be required for water reservoir purposes and in furtherance of the Purposes identified herein
and the ongoing operation of the Water Resources Project, and authorizing the execution, and 0
executing any and all documents necessary or desirable to accept the operational control of and
transfer of the Property and/or the 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 o
adverse effects reflected in such studies;
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(3) Granting of franchises, permits and licenses to, and entering into leases M
and contracts with, any person, firm or corporation, or agency of the State of California and/or
the federal government, for the use of the Water Resources Project or any part thereof, for the
Purposes identified herein, or any permitted use incidental thereto, together with a right or rights E
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to use the 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 M
than the promotion and accommodation of water resources covering any portion of the Water
Resources Project whenever the Commission shall determine that the use of such portions of the
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;
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(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 s
agreements in connection therewith; 3
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(5) Issuing revenue bonds or other obligations and incurring other forms of
I indebtedness as provided in this Agreement, which are not debts, liabilities or obligations of the E
Parties although the Authority has no power of taxation; Q
v
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(6) Conducting the necessary studies to determine what manner the Authority
may best manage the liquefaction concerns present within the San Bernardino water management E
a
basin, and implementing such recommendations in any manner authorized by law; <t
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(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 E
mitigate the adverse effects of air and water quality issues upon the residents within the City and
within the affected areas of the District; Q
10
Packet ft 177
(8) Continuing to operate, repair, maintain, improve and administer the Water
`w► Resources Project if acquisition and construction occurs as may be delegated by the District to
the Authority;
(9) Acquiring, constructing, managing, maintaining, operating or disposing of Q
or donating land, building sites, buildings, works or improvements, whether to or from public or
private persons or entities, and whether in connection with the Water Resources Project or
outside the Water Resources Project if for water resource management purposes or in furtherance
of the operation of the Water Resources Project if and to the extent such powers are delegated by N
the City and/or the District to the Authority;
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(10) Suing or being sued in its own name;
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(11) Entering into and performing under lawful agreements with any of the o
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 m
whatever;
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(12) Making payment from surplus revenues to any of the Parties, or to public
agencies whose boundaries encompass any area which overlaps any area included in the Water E
a
Resources Project. The term "surplus revenues" as above referred to shall have whatever
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meaning is provided therefor in any resolution or trust indenture adopted by the Commission on LO
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 agreement to which the Authority
is a party or any such resolution or trust indenture then in effect;
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(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 a'
and charges as deemed appropriate by the Commission. o
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 E
other acts to be done in the accomplishment of the purposes of this Agreement. One or several a
acts may take place concurrently or in sequence as the Commission shall direct.
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(e) Unless subject to an exercised right of reverter as identified herein above, title to E
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I the Water Resources Project and the Property acquired in connection therewith may legally be a
held by the Authority in the event the Authority, the City, and the District each separately a.
determines that such method of title ownership would facilitate acquisition, construction and
management of the Water Resources Project. Otherwise, title to the water reservoir portion of the E
Water Resources Project, and all appurtenant facilities, equipment and structures, will be held in
the name of the District. The Parties hereby agree that the Water Resources Project and any real a
property on which it is located will be within the boundaries of the Authority.
11
Packet Pg: 178
(f) As of the time of the execution of this Agreement it is not known whether the
acquisition, operation, repair, maintenance and administration of the 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 or not to proceed with the Water Resources Project. Nothing in this Q
Agreement shall be construed to commit either the Authority or any of the Parties at this time to a
any particular course of action for the acquisition or non-acquisition of the Property or the
undertaking of the Water Resources Project and assumption of operational responsibility thereof, L
other than the investigation by the Authority as to the practical, engineering and financial 0
feasibility of the Water Resources Project and the manner in which to proceed with any land M
acquisition.
Section 4. Fiscal Year.
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For the purposes of this Agreement, the term "Fiscal Year" shall mean the period from
July 1 of each year to and including the following June 30. CO
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Section 5. Assistance to the Authori ty.
_
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The Parties may, except as prohibited by law and this Agreement, in appropriate E
Q
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 N
funds for such purposes, such advances or payments to be repaid, as provided herein, (iv) use --
their personnel, equipment or property in lieu of or in conjunction with other contributions or
advances, or(v) make contributions of public property and rights-of-way owned by them, in each
case, in connection with the Water Resources Project. 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 t
legislative body on behalf of such Party. The provisions of Government Code Section 6513 are 3
hereby incorporated into this Agreement. 2
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It is expressly agreed that the City will use reasonable efforts to assist with the ongoing a�
administration, management and maintenance of the municipal park developed on the Property. a
At such time as the City is reasonably able to allocate the funds necessary to do so, the City will
fully assume the responsibility for the ongoing administration, management and maintenance of
the municipal park developed on the Property, or, if feasible, the City will create a maintenance E
Q
district for such purposes. a
Section 6. Revenue Bonds. c
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In order to pay for acquiring, repairing, improving and financing the Water Resources
Project, including all facilities and improvements and any and all expenses incidental thereto or Q
connected therewith, in addition to utilizing the funds received in connection with the Grant, 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
12
Packet Pg. 179
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.
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All fees and expenses of professional and expert services, including, without limitation, a.
legal counsel, financing consultants; accountants, engineers, architects and other consultants and a
advisors connected with the acquisition, operation, repair, maintenance, improvement and
administration of the Water Resources Project, which have been paid or incurred prior to the y
issuance of the revenue bonds or other forms of indebtedness (but after the effective date of this
Agreement) may be paid, or repaid to the Parties, as the case may be, without any preference a;
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 Grant, the revenue bonds, or other forms of indebtedness, o
or any other legally available source.
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Section 7. Official Bonds. m
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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 E
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as 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 M
Dollars ($250,000). Each Member of the Commission shall file with the Authority an official
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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 3
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 E
and maintain such procedures, funds and accounts as may be required by sound accounting a
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 a
nearly as possible to typical and customary procedures for the County of San Bernardino. The E
a
books and records of the Authority in the hands of the trustee or the Authority shall be available a
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 c
or firm of certified public accountants to make an annual audit of the accounts and records of the E
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 a
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
13
Packet Pg. 180
7.B.g
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. a
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The Treasurer of the Authority shall have custody of the Authority money and disburse
the 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 0
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 Y
indebtedness issued pursuant thereto or any revenues pledged to the payment of such bonds or
other forms of indebtedness.
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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 CO
Section 6505.5, as follows: CO
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(a) Receive and receipt for all money of the Authority and place it in the treasury of
the Treasurer of the Authority;
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(b) Be responsible, upon his or her official bond, for safekeeping and disbursement of M
all of the Authority money so held;
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(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 the Authority money, or any
portion thereof, only upon warrants of the Auditor of the Authority; and
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(e) Verify and report in writing to the Authority and to each of the Parties on a .2
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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. a,
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Subject to applicable provisions of any trust indenture or financing agreement, which (D
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 the Authority funds pursuant to B
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the accounting procedures developed in accordance with the provisions of Section 8 hereof. a
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 E
person authorized to so approve in accordance with the accounting provisions developed in
accordance with the provisions of Section 8 hereof. a
14
Packet Pg. 181
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 of Participating Interests. Q
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The rights, titles and interests of any Party herein shall not be assignable or transferable
unless approved in writing by each of the Parties or unless such assignment or transfer is
required by law and is not within the control of the Party making the assignment or transfer. N
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Section 11. Budgets; Party Loans. ai
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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 o
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
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principal amounts loaned in such Fiscal Year until repaid in full and shall be repaid m
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 E
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the time when the Authority accepts the Grant. 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 LO
required to be made by the Parties only from any legally available funds that may be allocated
for such purpose. The Executive Director, or another individual designated by the Commission,
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shall prepare the Authority budget for whatever period of time is involved and submit it to the 0;v
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 in lieu services for any of the a'
operations and activities of the Authority or with regard to any aspect of the Water Resources 3
Project. 2�
Section 12. Term; Amendments; Termination. E
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(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 shall continue for so long as E
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necessary to carry out the purposes of any agreement or contract with respect to the Water a
Resources Project or until terminated by unanimous consent, whichever is later; provided,
however, that:
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(i) As the Authority's receipt of the Grant is conditioned upon this
Agreement remaining effective until June 30, 2041, if the Authority receives the Grant from the Q
State, this Agreement may not be terminated prior to June 30, 2041 without the consent of the
State; and
15
PackitPg,182' :
(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
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(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
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(iv) No termination or amendment shall adversely affect the operation, repair,
maintenance, improvement or administration of the Property or the 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 o
with the United States of America, or any agreement entered into by the Authority with the State
of California, or any department, administration or agency of either. CO ix
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(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 E
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bonds, together with interest thereon, payable by the Authority, have been paid in full or
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provision for the payment thereof has been made and all moneys, to the extent applicable, have M
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 the Water Resources Project and/or the Property and
improvements thereon then owned by the Authority shall be disposed in such manner as may be
determined by the then Members of the Commission 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 3
required to support the Property and/or the Water Resources Project shall be transferred to the -0
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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. E
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Section 13. Notices.
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Notice hereunder to be given to the Authority or to any Party shall be sufficient if E
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delivered to: the Secretary of the Authority for any notices to be given to the Authority; or to the a
City Clerk of the City, or the Clerk of the District, as appropriate, for each of the Parties. -�
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Section 14. Miscellaneous. E
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The Section headings herein are for convenience only and are not to be construed as a
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
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16
P cket Pg.183
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.
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This Agreement shall be binding upon and shall inure to the benefit of the successors of
the Parties hereto.
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Section 16. Severability. °
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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. o
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Section 17. Debts and Liabilities.
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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 E
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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 M
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.
Section 18. No Partnership.
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This Agreement is not intended and shall not be construed to create the relationship of
agent, employee, partnership,joint venture or association between the Parties, and neither Party °1
shall have the right or authority to assume, create or enlarge any obligation or commitment on 3
behalf of the other Party and shall not represent itself as having the authority to bind the other —°
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Party in any manner.
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Section 19. Counterparts. a
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This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of such counterparts together shall constitute one and the same E
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AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT CREATING
AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER
RESOURCES AUTHORITY
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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. 0
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SAN BERNARDINO VALLEY MUNICIPAL
WATER DISTRICT
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AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT CREATING
AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER
RESOURCES AUTHORITY
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CITY OF SAN BERNARDINO 0
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By:
Patrick J. Morris, Mayor M
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ATTEST:
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Georgeann Hanna, City Clerk
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Approved as to Form:
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AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT CREATING
AN AGENCY TO BE KNOWN AS THE SAN BERNARDINO REGIONAL WATER
RESOURCES AUTHORITY
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The Inland Valley Development Agency ("IVDA") hereby executes this Agreement to 0
acknowledge its withdrawal as a Party to the Original Agreement and to further acknowledge CC
that the IVDA is not a Party to this Agreement. a`�
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INLAND VALLEY DEVELOPMENT AGENCY o
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Clerk of the board of a'
Inland Valley Development Agency
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Approved as to Form: 2
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EXHIBIT "A"
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