HomeMy WebLinkAbout7015RESOLUTION NO. 7015
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ARCADIA, CALIFORNIA, CONSENTING TO THE INCLUSION OF
PROPERTIES WITHIN THE CITY'S JURISDICTION IN THE
CALIFORNIA HOME ENERGY RENOVATION OPPORTUNITY
PROGRAM ( "HERO ") TO FINANCE DISTRIBUTED
GENERATION RENEWABLE ENERGY SOURCES, ENERGY AND
WATER EFFICIENCY IMPROVEMENTS, AND APPROVING THE
AMENDMENT TO THE JOINT POWERS AGREEMENT
WHEREAS, the Western Riverside Council of Governments ( "Authority ") is a joint
exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of
the Government Code of the State of California (Section 6500 and following) (the "Act ")
and the Joint Power Agreement entered into on April 1, 1991, as amended from time to
time (the "Authority JPA"); and
WHEREAS, the Authority intends to establish the California HERO Program to
provide for the financing of renewable energy distributed generation sources, energy
and water efficiency improvements, and electric vehicle charging infrastructure (the
"Improvements ") pursuant to Chapter 29 of the Improvement Bond Act of 1911, being
Division 7 of the California Streets and Highways Code ( "Chapter 29 ") within counties
and cities throughout the State of California that elect to participate in such program;
and
WHEREAS, the City of Arcadia (the "City) is committed to development of
renewable energy sources and energy efficiency improvements, reduction of
greenhouse gases, protection of our environment, and reversal of climate change; and
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WHEREAS, in Chapter 29, the Legislature has authorized cities and counties to
assist property owners in financing the cost of installing Improvements through a
voluntary contractual assessment program; and
WHEREAS, installation of such improvements by property owners within the
jurisdictional boundaries of the counties and cities that are participating in the California
HERO Program would promote the purposes cited above, and
WHEREAS, the City wishes to provide innovative solutions to its property owners
to achieve energy and water efficiency and independence, and in doing so cooperate
with Authority in order to efficiently and economically assist property owners in the City
to finance such Improvements; and
WHEREAS, Authority has authority to establish the California HERO Program,
which will be such a voluntary contractual assessment program, as permitted by the
Act, the Authority JPA, originally made and entered into April 1, 1991, as amended to
date, and the Amendment to Joint Powers Agreement Adding the City of Arcadia as an
Associate Member of the Western Riverside Council of Governments to Permit the
Provision of Property Assessed Clean Energy (PACE) Program Services within the City
(the "JPA Amendment "), by and between Authority and the City, a copy of which is
attached as Exhibit "A" hereto, to assist property owners within the incorporated area of
the City in financing the cost of installing Improvements; and
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings; the levy and collection of assessments or any required remedial action in
the case of delinquencies in the payment of any assessments or the issuance, sale or
administration of any bonds issued in connection with the California HERO Program.
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THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES
HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:
SECTION 1. The City Council finds and declares that properties in the
City's incorporated area will be benefited by the availability of the California
HERO Program to finance the installation of Improvements.
SECTION 2. The City Council consents to inclusion in the California HERO
Program of all of the properties in the incorporated area within the City and to the
Improvements, upon the request by and voluntary agreement of owners of such
properties, in compliance with the laws, rules, and regulations applicable to such
program; and to the assumption of jurisdiction thereover by Authority for the purposes
thereof.
SECTION 3. The consent of the City Council constitutes assent to the
assumption of jurisdiction by Authority for all purposes of the California HERO Program
and authorizes Authority, upon satisfaction of the conditions imposed in this Resolution,
to take each and every step required for or suitable for financing the Improvements,
including the levying, collecting, and enforcement of the contractual assessments to
finance the Improvements and the issuance and enforcement of bonds to represent and
be secured by such contractual assessments.
SECTION 4. The City Council hereby approves the JPA Amendment, attached
hereto as Exhibit "A" and incorporated by reference herein, and authorizes the
execution thereof by the City Manager.
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SECTION 5. City staff is authorized and directed to coordinate with Authority
staff to facilitate operation of the California HERO Program within the City, and report
back periodically to this City Council on the success of such program.
SECTION 6. The City Clerk shall certify to the adoption of this Resolution.
Passed, approved, and adopted this 1st day of April , 2014.
A
Mayor of th City f Arcadia
ATTEST:
City' lerk
APPROVED AS TO FORM:
Stephen P. Deitsch
City Attorney
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES) SS:
CITY OF ARCADIA )
I, GENE GLASCO, City Clerk of the City of Arcadia, hereby certifies that the
foregoing Resolution No. 705 was passed and adopted by the City Council of the City of
Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said
Council held on the 1st day of April, 2014 and that said Resolution was adopted by the
following vote, to wit:
AYES: Council Member Amundson, Harbicht, Kovacic, Wuo and Segal
NOES: None
ABSENT: None
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Cily,Clerk-aflhe )City of Arcadia
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When Recorded Mail To:
Howard B. Golds
Scott W. Ditfurth
Best, Best & Krieger LLP
3390 University Avenue, 5" Floor
P.O. Box 1028
Riverside, CA 92502
Title(s)
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C0PY of Document Recorded
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LOS AN(actca r mt%j'Q I r% - Rw.wcOER
Notice of Agreement Running with Land Affecting Real Property
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HOWARD B. GOLDS, Bar No. 112626
howard.golds @bbklaw.com
SCOTT W. DITFURTH, Bar No. 238127
scott.ditfurth@bbklaw.com
bbklaw.com
BEST BEST & KRIEGER LLP
3390 University Avenue, 5th Floor
P.O. Box 1028
Riverside, California 92502
Telephone: (951) 686 -1450
Facsimile: (951) 686 -3083
Attorneys for Defendant
CITY OF ARCADIA
EXEMPT FROM FILING FEES PURSUANT
TO GOVERNMENT CODE SECTION 6103
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — GLENDALE COURTHOUSE
ERIC T. CHEN and SYLVIA C. CHEN,
Plaintiffs,
V.
CITY OF ARCADIA, et al., a California
corporation; and DOES 1 through 20,
inclusive,
Defendants.
Case No. BC504634
NOTICE OF AGREEMENT RUNNING WITH
LAND AFFECTING REAL PROPERTY
LOCATED AT 2205 CANYON ROAD,
ARCADIA, CALIFORNIA 91006 AND 2143
CANYON ROAD IN ARCADIA,
CALIFORNIA 91006
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COMES NOW Defendant City of Arcadia, a public entity, and hereby provides formal
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notice that the parties to the instant litigation have entered into an agreement and release
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regarding the above - entitled matter.
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NOTICE is hereby given that pursuant to the attached Settlement and Release Agreement
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regarding the real property located at 2205 Canyon Road, Arcadia, California 91006 ( "Property "),
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Plaintiffs Eric T. Chen and Sylvia C. Chen (collectively "Plaintiffs "), who are the owners of the
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Property, have entered into a binding agreement under which Defendant City of Arcadia and
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Plaintiffs, their associates, owners, predecessors, successors, heirs, executors, administrators,
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council members, assigns, agents, directors, officers, partners, employees, representatives,
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lawyers, and all persons acting by, through, under, or in concert with any of them are released
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from any and all liability or legal responsibility, in equity or at law, for any damages or any
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diminution in value of the Property that has occurred or will occur in the future, any suits, debts,
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liens, liabilities, claims, demands, and damages of any nature whatsoever, known or unknown,
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fixed or contingent related in any way to the Property, except as expressly provided in the
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Settlement and Release Agreement. The Property is more particularly described as follows:
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Lot 54 of Tract No. 23145, in the City of Arcadia, County of Los
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Angeles, State of California, as per map recorded in Book 631,
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Pages 90 -92 inclusive of maps, in the office of the County
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Recorder of said County ( "Affected Land ").
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Under the Settlement and Release Agreement, the City of Arcadia or any successive
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owner of the real property located at or about 2143 Canyon Road in Arcadia, California ("City
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Property ") shall be under an ongoing duty to maintain and repair a supportive wall, in a
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workmanlike manner, that protects the slope that ascends from the City Property to the Property,
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and reasonably maintain the slope ascending to the Property. Pursuant to California Civil Code
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§ 1468, the Settlement and Release Agreement runs with both the Property and the City Property.
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The City Property is more particularly described as follows:
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APN 5765 - 002 -900: 21.13 Canyon Road. Arcadia. CA 01006
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I I hat portion of the North\+.cst one yuaiter of fractional section I5. i
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Township I North, Range 11 West, San Bernardino Base and
Meridian in the City of Arcadia, described as follows:
Beginning at the most westerly corner of Lot 53 of Tract No.23145
as per map recorded in Book 631, pages 90 to 92 inclusive of Maps
in the office of the County Recorder of Los Angeles County;
thence S 32o 03' 18 "W 260.00 feet; thence S 40o 51' 07 "W
217.29 feet; thence S 47o 12' 06" E 315.00 feet to a point in the
northwesterly line of Lot 55 of said Tract 23145 distant N 390 52'
00" E, 56 feet from the most westerly corner of Lot 55; thence
along the northwesterly line of Tract 23145 N 390 52' 00" E 98.00
feet; thence N 90 28' 38" W 83.95 feet to the Point of Beginning.
FURTHER NOTICE is hereby given that the Plaintiffs and Defendant City of Arcadia
have agreed and thereupon did covenant with one another, to forever release and discharge any
and all liability or legal responsibility for any future damages to the Property except as set forth in
the Settlement and Release Agreement, which is attached hereto as Exhibit "A."
FURTHER NOTICE is hereby given that the Settlement and Release Agreement, which is
attached hereto as Exhibit "A" shall constitute a covenant against the Property and the City
Property and shall discharge any and all liability against Plaintiffs and the City of Arcadia for any
damages, claims, or repairs, present or future, related to the Property, except as set forth in the
Settlement and Release Agreement. The Releases set forth in the Settlement and Release
Agreement shall run with the Property and City Property in perpetuity.
Dated: May 12 . 2014
BEST BEST & KRIEGER LLP
B R. w
HOWA -Mi". COLDS
SCOTT W. DITFURTI-I
Attorneys for Defendant
CITY OF ARCADIA
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I Dated: May 7, 2014
OBAGI & STODDER
ZEI AGI, JR.
El
s for 1811
ER T. CHEN
S VIA C. CHEN .
State of California,
County of Los Angeles,
On May 7, 2014, before me,s�}-'-C3e.\�erncaAr>, , personally appeared Zein E. Obagi, Jr.,
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon behalf of
which the person, or the entity upon behalf or which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Seal
-"+ SCU f f UE f TENCOURT
`j Commission # 2003133
z;~�" 1 Notary Public - California z
°j
Los Angeles County
„ty Camin. EAprres Jan 30. 2017
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Signature
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I Dated: May 7, 2014
OBAGI & STODDER
ZEI AGI, JR.
El
s for 1811
ER T. CHEN
S VIA C. CHEN .
State of California,
County of Los Angeles,
On May 7, 2014, before me,s�}-'-C3e.\�erncaAr>, , personally appeared Zein E. Obagi, Jr.,
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon behalf of
which the person, or the entity upon behalf or which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Seal
-"+ SCU f f UE f TENCOURT
`j Commission # 2003133
z;~�" 1 Notary Public - California z
°j
Los Angeles County
„ty Camin. EAprres Jan 30. 2017
��
Signature
tittll(i III \I.RI.1%11`I \11II Ii%tIIFAI 11I40i11LItIVI II 1) \1121141 ftt�11�. Uti slit\
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CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA 1
ss.
COUNTY OF RIVERSIDE )
On May 12 2014 before me, Joy S. Ashwood Notary Public ,
Nam. Arid TWO Of Olfiw (e9 'Jane Da. Ndery Put)"CI
Dale
personally appeared Scott W. Ditfurth N."ofSIWW(.)
who
proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon behalf of which
the person acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
para ra h is true and correct
JOY-
r S.�SHwoou WITNESS my hand and officia a I.
ComTasiw •X7151
iY Wy fto - CMMof "
Mvenk is Cotntr
C
ature o Notary u is
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ Individual
❑ Corporate Officer
Title(s) Title or Type of Document
❑ Partner(s) ❑ Limited
❑ General
Number Of Pages
• Attorney -In -Fact
• Trustee(s)
0 Guardian /Conservator
❑ Other: Date Of Document
Signer(s) Other Than Named Above
EXHIBIT "A"
SETTLEMENT AND RELEASE AGREEMENT
1. PARTIES AND DATE.
This Settlement and Release Agreement ( "Agreement ") is entered into by and between
Plaintiffs Eric 'I'. Chen and Sylvia C. Chen (collectively "Chens ") on the one hand, and
Defendant City of Arcadia ( "City ") on the other hand. The Chens, together with the City, shall
be referred to herein as the "Parties."
Z. RECITALS.
2.1 Chens own real property located at 2205 Canyon Road in Arcadia, California
( "Property "). Immediately adjacent to the west and southwest of the Property, and below it is a
cut slope ( "Slope ") that is owned by City and terminates at certain City -owned real property
( "City Property'), at or about 2143 Canyon Road in Arcadia, California, on which water storage
tanks are located. Chens claim that the Slope has eroded and/or subsided in a manner that has
caused damage to the Property, continues to threaten augmented damage to the Property, and that
such erosion or subsidence was caused by the City's improper design, construction and
maintenance of they real prnpetty on which the water storage tutrks arc: located ntkl/ot the Slope.
City disputes Chens claims regarding the Slope.
2.2 On April 2, 2013, Chens filed a lawsuit entitled Eric T. Chen and Sylvia C. Chen
v. City of Arcadia, et at., Los Angeles Superior Court, Case No. BC504634 (the "Action "),
asserting causes of action against City for Inverse Condemnation, Declaratory Relief,
Negligence, and Nuisance, all of which were premised upon purported damage caused to the
Property by reason of the alleged erosion or subsidence of the Slope (the "Claims ").
2.3 Thereafter, on May 23, 2013, City filed an Answer to the Action, denying any and
all claims asserted by Chens.
2.4 Chens, on the one hand, and City on the other hand, now desire to fully and
finally settle and resolve any and all rights, claims, disputes, causes of action and alleged claims
which currently exist in favor of the Parties, including, but not limited to, all claims arising out of
the Action, the Claims or the Property. The Parties expressly intend that this settlement shall
further pertain to any claims for interest, attorneys' fees, witness fees, and/or all other costs or
expenses associated with the Action.
3. TERIMS.
3.1 Recitals. The Recitals are incorporated into and area part of this Agreement.
3.2 Settlement. In consideration of this Agreement and the promises set forth herein,
the Parties agree that one appropriate and proper method to repair, stabilize and preserve the
integrity of the Slope is to construct a "shotcrete" wall ('*Wail ") along those portions of the Slope
that the City deems appropriate, from time to time in its own discretion. The location of the
initial Wall City intends to construct, which the Chens approve, is depicted in Attachment "l ".
City will, at its sole expense, construct the Wail and oversee its construction. The Parties further
agree that an integral purpose cat' the `Nall is Io protect the Slope from water, water invasion and
heavy vegetation that could threaten the exterior bedrock foundation of the Property with
disintegration.
3.2.1 Construction. City will have exclusive control of the design, bidding,
construction and maintenance of the Wall, including any additions or modifications
thereto, except that City shall ensure that (1) the Wall is constructed in a workmanlike
manner for its intended purpose, and (2) the Wall's construction is completed by October
1, 2014. City shall notify Chens in writing upon full completion of the construction of
the Wall. Said notice shall be deemed complete upon its deposit in the U.S. Mail with
appropriate postage paid and addressed to 2205 Canyon Road, Arcadia, California,
91006.
3.2.2 Maintenance and Repair. City, or its successor with regard to the City
Property, shall be under a continuing and ongoing duty to maintain and repair all parts of
the Wall in a workmanlike manner, notwithstanding whether the Wall is located on the
Property or City Property, and a duty to reasonably maintain the Slope. The City agrees
to permit the Property's owner(s), the Property's owner(s)' designees or experts, access
to the City Property up to twice a year, upon 10 days written notice, to inspect the Wall,
at the Piupotiy's owner(s)' sole cost. Such access shall be at the option of the owner(s)
of the Property, and shall not ever be deemed waived if not exercised by the Chens or
their successors. Nothing set forth in this Agreement shall provide the Property
owner(s)' authorization to do any destructive testing, or any other testing, of the Wall,
other than a visual inspection of the Wall.
3.2.3 Construction. Maintenance. and Repair Easement, Chens shall grant the
City a temporary construction easement in order for the City, its agents, contractors,
consultants, and employees to perform any work required to construct the Wall, or in
order to perform any maintenance or repair of the Wall. City shall give Chens reasonable
written notice prior to any entry onto the Property necessitated by the temporary
construction easement for the construction of the Wall, repair of the Wall or maintenance
of the Wall, which such notice shall be no less than five business days prior to the access
sought.
3.2.4 Permanent Easement. If necessary, upon the City's written request, Chens
shall grant a permanent easement for construction and repair of not more than 1.5 feet for
any portion of the Wall that is required to be permanently placed on the Property, and the
Chens will execute any and all documents necessary to create and record said easement.
31 Dismissal. Within ten (10) days of execution of this Agreement, Chens shall file
a request for dismissal, with prejudice, as to the entirety of the Action, indicating that the action
has been dismissed pursuant to Cal. Civ. Proc. Code § 664.6.
3.4 Release. Contingunt upon hill completion of the Wall, as set forth in paragraph
3.2.1, and the City's continual discharge of its duty to maintain and repair the Wall with
reasonable care, and the City's continual discharge of its duty to reasonably maintain the Slope,
the Parties hereby mutually release and billy, finally and forever discharge one another and their
,►ssociaws, omiers, predecessors, successors, heirs, executors, administrators, council members,
assigns, agents, directors, officers, partners, employees, representatives, lawyers, and all persons
acting by, through, under, or in concert with the City (hereinafter collectively called "Additional
Releasees'� of and from any and all suits, debts, liens, claims, liability or legal responsibility, in
equity or at law, for any and all damages sustained by either party, whether known or unknown,
existing or contingent, including but not limited to any diminution in value of the Property, that
has occurred or will occur in the future and which are related to the Action, the Claims, the
Property, the Slope and/or the construction, maintenance or repair of the Wall, except as
otherwise set forth in this Agreement.
3.5 Waiver of Civil Code Section 1542. Contingent upon full completion of the Wall,
as set forth in paragraph 3.2.1, and the City's continual discharge of its duty to maintain and
repair the Wall with reasonable care, and the City's continual discharge of its duty to reasonably
maintain the Slope, it is the intention of the Parties that the release entered into as part of this
Agreement shall be effective as a bar to all actions, causes of action, obligations, costs, expenses,
attorney's fees, damages, losses, claims, liabilities and demands of any character, nature and
kind, known or unknown, suspected or unsuspected, to be so barred; in furtherance of which
intention the Parties expressly waive any and all right and benefit conferred upon them by the
provisions of Section 1542 of the California Civil Code, which reads as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor.
The Parties hereby acknowledge that the foregoing waiver of the provisions of Section
1542 of the California Civil Code was bargained for separately. The Parties hereto expressly
agree that the release provisions herein contained shall be given full force and effect in
accordance with each and all of their express terms and provisions, including but not limited to
those terms and provisions relating to unknown or unsuspected claims, demands and causes of
action hereinabove specified. The Parties specifically agree to assume the risk of the subsequent
discovery or understanding of any matter, fact or law which if now known or understood would
in any respect have affected this Agreement.
3.6 Notice of Action. Chens hereby represent and warrant that they are the sole
owners and title - holders of the Property. It is acknowledged and agreed that this Agreement is
binding on Chens as well as their heirs, assigns, transferees, and successors in interest to the
Property. It is the affirmative duty of each of the Parties, their heirs, assigns, transferees and
successors in interest to inform and give notice to any and all subsequent buyers, lenders or
transferees who may seek to acquire title or an interest in the Property or the City Property that a
lawsuit for damages was filed by the Chens under case number 130504634, and to provide said
case number along with a copy of this Agreement to any person or entity who seeks or is in fact
acquiring title to or an interest in the Property so that said person or entity is oracle aware of and
placed on notice ut'the Claims, the Action and this Agreement.
3.7 Re;c( rdation. Upon !xectition of this Agreement, City shall record with the Los
Angeles County Recorder's Office a Notice of Release and Settlement concerning this
Agrcement in the chain of title liar the Property ind the City Property. Said recording �liall
identify and be against the Property. A true and correct copy of the Notice of Recordation is
attached hereto as Exhibit "A."
3.8 Indemnification. The Chens agree to indemnify, defend and hold the City and the
Additional Releasees harmless from any and all claims made against the City and the Additional
Releasees if, and only if, those claims proximately result from the Chens' failure to disclose or
concealment of this Settlement Agreement to their immediate successor(s) in interest with regard
to the Property. In addition, each successor to the Chens shall indemnify, defend and hold the
City and the Additional Releasees harmless from any and all claims made against the City and
the Additional Releasees if, and only if, those claims proximately result from that person(s)
failure to disclose, or concealment, of the terms of this Settlement Agreement to that person's or
persons' immediate successor(s) in interest with regard the Property. Indemnification, defending
and holding harmless, here, means paying any and all litigation costs, including any damages
awarded or pain in settlement or by judgment.
The City, likewise, agrees to indemnify, defend and hold the Chens and their successors
(collectively, the Property Owners) in interest to the Property harmless from any and all claims
made against the Property Owners if, and only if, those claims proximately result from the City's
failure to disc iosc or concealttteut of uds Settlement Agreement to its immediate successor(s) in
interest with regard to the City Property. In addition, each successor to the City shall indemnify,
defend and hold the Property Owners harmless from any and all claims made against the
Property Owners if, and only if, those claims proximately result from that person(s) failure to
disclose, or concealment, of the terms of this Settlement Agreement to that person's or persons'
immediate successor(s) in interest with regard the City Property. Indemnification, defending and
holding harmless, here, means paying any and all litigation costs, including any damages
awarded or pain in settlement or by judgment.
3.9 Integrated Aggeemellt. This Agreement is the final and entire agreement between
the Parties concerning the subject matter of this Agreement. All agreements of the Parties with
respect to the subject matter hereof are in writing and supersede all prior written and oral
agreements and understandings of the Parties, or their predecessors, as it relates to the Property,
including the settlement agreement entitled "Notice of Mutual Release and Settlement
Agreement Concerning Real Property Located at 2205 Canyon Road, Arcadia, California,
91006," recorded in the official records of Los Angeles County on December 5, 2007 as Doc.
No. 20072664598. "this Agreement cannot be modified except by a written document signed by
all of the Parties. None of the Parties are relying upon any usher negotiations, discussions or
agreements in connection with the subject matter of this Agreement. [his is a Cully integrated
agreement.
3.10 Representation and Warranty. The Parties hereby represent and warrant that they
are the sole and rightfid owner of all rights, title:, and interest in every claim and other matter
which is released herein and have not heretofore assigned or otherwise transferred any interest in
any claim that they may have against any other party or any other party's respective affiliates,
subsidiaries, predecessors and that is released and discharged pursuant to this Agreement.
3.11 Independent Representation by Counsel. fhc Parties represent and warrant that in
executing this Agreement they have relied solely upon their own judgment. belief :aid
knowledge, and the advice and recommendations of their own independently selected legal
counsel, concerning the nature, extent and duration of their rights and claims hereunder, and that,
except as provided herein, they have not been influenced to any extent whatsoever in executing
this Agreement, by any representations, statements or omission pertaining to any of the matters
herein contained by any party or by any persons representing any party.
3.12 Governing Law. This Agreement shall in all respects be interpreted, enforced and
governed by and under the taws of California.
3.13 Constriction. This Agreement has been jointly negotiated and drafted. The
language of this Agreement shall be construed as a whole according to its fair meaning, and not
strictly for or against any of the Parties.
3.14 Execution in Countemarts. This Agreement may be executed in counterparts by
the Parties and shall become effective and binding upon the Parties at such time as all of the
signatories hereto have signed the original or a counterpart original of this Agreement. All
counterparts so executed shall constitute one Agreement, binding upon all of the Parties hereto,
notwithstanding that all of the Parties are not signatory to the original or the same counterpart.
Copies of this executed Agroomcat Shull be dccuicd origuuals, raid enfurecable like the original
Agreement.
3.15 Attorneys' Fees. Each party shall bear his/her /its own attorneys' fees,
investigation expenses, expert or consultant fees, survey fees, and litigation costs incurred as a
result of the Action, and in connection with negotiating this Agreement except that the prevailing
party in an action to enforce the obligations hereunder shall be entitled to an award of attorneys'
fees and costs, including experts' fees, unless such party fails to submit to mediation within 30
days of service of a written demand by the other party to submit to mediation, which such
demand shall include a copy of this Agreement and be served by U.S. Certified Mail with return
receipt requested, or other such reliable form of service requiring the receiving party's signature
to confirm receipt.
3,16 Severability. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid, illegal, unconstitutional or unenforceable, such portion shall be deemed
severed from this Agreement and the remaining parts shall remain in full force and effect as if no
invalid or unenforceable provisions had been part of this Agreement.
3.17 No Admission of Liability. It is understood and agreed by the Parties that this
Agreement is a compromise of a disputed claim or disputed causes of action. This Agreement,
with its terms and conditions, shall not be construed as an admission of liability by the City in
that the City expressly denies any liability related to the Action or the Property.
3.18 Survivability of Covenants. All representations and agreements ,et forth in this
Agreement shall be deemed continuing and shall survive the execution date of this Agreement,
and no act or omission by any Party hereto or any beneficiary to this Agreement shall be deemed
it waiver of any of the rights hereunder.
3.19 Covenant to "fake Further Actions Necessary. The Parties hereby agree to
execute such other documents and to take '4uch (,flier -ictionti its may he reason-Lhly neccssary to
luilher the purposes of this Agreement, with the Parties to bear their own costs and attorneys'
fees for these additional actions.
3.20 Successors and Assigns. Each of the terns of this Agreement is binding upon
each of the Parties and their respective predecessors, assigns, executors, administrators,
representatives, principals, insurers, agents, and successors -in- interest.
3.21 Covenants Running with the Land, Each of the covenants hereto shall run with
both the Property and City Property as covenants entered into pursuant to Cal. Civil Code §
1 468.
3.22 Effective Date. This Agreement shall be deemed effective as of the date it is
executed by all Parties.
3.23 Authority. The undersigned representative of the City represents and warrants that
he is duly authorized under the City's charter and by the Arcadia City Council to enter into this
Settlement Agreement.
FAC'H OF THE UNDERSIGNED HFRF.RY I)Frf.ARFS THAT THF. TERMS OF THIS
SETTLEMENT AGREEMENT AND GENERAL RELEASE HAVE BEEN COMPLETELY
READ AND ARE FULLY UNDERSTOOD, AND BY EXECUTION HEREOF
VOLUNTARILY ACCEPTS THE TERMS WITH THE INTENT TO BE LEGALLY BOUND
THEREBY.
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EXHIBIT "A"
AMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF ARCADIA AS AN ASSOCIATE MEMBER
OF THE WESTERN RIVERSIDE COUNCIL OF
GOVERNMENTS TO PERMIT THE PROVISION OF
PROPERTY ASSESSED CLEAN ENERGY (PACE)
PROGRAM SERVICES WITH SUCH CITY
This Amendment to the Joint Powers Agreement ( "JPA Amendment ") is made
and entered into on the 15 f- day of It prl 1 , 2014, by City of Arcadia
( "City ") and the Western Riverside Council of Governments ( "Authority ") (collectively the
"Parties ").
RECITALS
WHEREAS, Authority is a joint exercise of powers authority established pursuant
to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California
(Section 6500 and following) (the "Joint Exercise of Powers Act ") and the Joint Power
Agreement entered into on April 1, 1991, as amended from time to time (the "Authority
JPA "); and
WHEREAS, as of October 1, 2012, Authority had 18 member entities (the
"Regular Members "); and
WHEREAS, Chapter 29 of the Improvement Act of 1911, being Division 7 of the
California Streets and Highways Code ( "Chapter 29 ") authorizes cities, counties, and
cities and counties to establish voluntary contractual assessment programs, commonly
referred to as a Property Assessed Clean Energy ( "PACE ") program, to fund certain
renewable energy sources, energy and water efficiency improvements, and electric
vehicle charging infrastructure (the "Improvements ") that are permanently fixed to
residential, commercial, industrial, agricultural or other real property; and
WHEREAS, Authority intends to establish a PACE program to be known as the
"California HERO Program" pursuant to Chapter 29 as now enacted or as such
legislation may be amended hereafter, which will authorize the implementation of a
PACE financing program for cities and county throughout the state; and
WHEREAS, City desires to allow owners of property within its jurisdiction to
participate in the California HERO Program and to allow Authority to conduct
proceedings under Chapter 29 to finance Improvements to be installed on such
properties; and
WHEREAS, this JPA Amendment will permit City to become an Associate
Member of Authority and to participate in California HERO Program for the purpose of
facilitating the implementation of such program within the jurisdiction of City; and
A -1
WHEREAS, pursuant to the Joint Exercise of Powers Act, the Parties are
approving this JPA Agreement to allow for the provision of PACE services, including the
operation of a PACE financing program, within the incorporated territory of City; and
WHEREAS, the JPA Amendment sets forth the rights, obligations and duties of
City and Authority with respect to the implementation of the California HERO Program
within the incorporated territory of City.
MUTUAL UNDERSTANDINGS
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions hereinafter stated, the Parties hereto agree as follows:
A. JPA Amendment.
1. The Authority JPA. City agrees to the terms and conditions of the
Authority JPA, attached.
2. Associate Membership. By adoption of this JPA Amendment, City shall
become an Associate Member of Authority on the terms and conditions set forth herein
and the Authority JPA and consistent with the requirements of the Joint Exercise of
Powers Act. The rights and obligations of City as an Associate Member are limited
solely to those terms and conditions expressly set forth in this JPA Amendment for the
purposes of implementing the California HERO Program within the incorporated territory
of City. Except as expressly provided for by the this JPA Amendment, City shall not
have any rights otherwise granted to Authority's Regular Members by the Authority JPA,
including but not limited to the right to vote on matters before the Executive Committee
or the General Assembly, the right to amend or vote on amendments to the Authority
JPA, and the right to sit on committees or boards established under the Authority JPA or
by action of the Executive Committee or the General Assembly, including, without
limitation, the General Assembly and the Executive Committee. City shall not be
considered a member for purposes of Section 9.1 of the Authority JPA.
3. Rights of Authority. This JPA Amendment shall not be interpreted as
limiting or restricting the rights of Authority under the Authority JPA. Nothing in this JPA
Amendment is intended to alter or modify Authority Transportation Uniform Mitigation
Fee (TUMF) Program, the PACE Program administered by Authority within the
jurisdictions of its Regular Members, or any other programs administered now or in the
future by Authority, all as currently structured or subsequently amended.
A -2
B. Implementation of California HERO Program within City Jurisdiction.
1. Boundaries of the California HERO Program within City Jurisdiction City
shall determine and notify Authority of the boundaries of the incorporated territory within
City's jurisdiction within which contractual assessments may be entered into under the
California HERO Program (the "Program Boundaries "), which boundaries may include
the entire incorporated territory of City or a lesser portion thereof.
2. Determination of Eligible Improvements. Authority shall determine the
types of distributed generation renewable energy sources, energy efficiency or water
conservation improvements, electric vehicle charging infrastructure or such other
improvements as may be authorized pursuant to Chapter 29 (the "Eligible
Improvements ") that will be eligible to be financed under the California HERO Program,
3. Establishment of California HERO Program Authority will undertake such
proceedings pursuant to Chapter 29 as shall be legally necessary to enable Authority to
make contractual financing of Eligible Improvements available to eligible property
owners within the Program Boundaries.
4. Financing the Installation of Eligible Improvements. Authority shall
develop and implement a plan for the financing of the purchase and installation of the
Eligible Improvements under the California HERO Program.
5. Ongoing Administration. Authority shall be responsible for the ongoing
administration of the California HERO Program, including but not limited to producing
education plans to raise public awareness of the California HERO Program, soliciting,
reviewing and approving applications from residential and commercial property owners
participating in the California HERO Program, establishing contracts for residential,
commercial and other property owners participating in such program, establishing and
collecting assessments due under the California HERO Program, adopting and
implementing any rules or regulations for the California HERO Program, and providing
reports as required by Chapter 29.
City will not be responsible for the conduct of any proceedings required to be
taken under Chapter 29; the levy or collection of assessments or any required remedial
action in the case of delinquencies in such assessment payments; or the issuance, sale
or administration of any bonds issued in connection with the California HERO Program.
6. Phased Implementation. The Parties recognize and agree that
implementation of the California HERO Program as a whole can and may be phased as
additional other cities and counties execute similar agreements. City entering into this
JPA Amendment will obtain the benefits of and incur the obligations imposed by this
JPA Amendment in its jurisdictional area, irrespective of whether cities or counties enter
into similar agreements.
A -3
C. Miscellaneous Provisions.
1. Withdrawal. City or Authority may withdraw from this JPA Amendment
upon six (6) months written notice to the other party; provided, however, there is no
outstanding indebtedness of Authority within City. The provisions of Section 6.2 of the
Authority JPA shall not apply to City under this JPA Amendment.
2. Mutual Indemnification and Liability. Authority and City shall mutually
defend, indemnify and hold the other party and its directors, officials, officers,
employees and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liabilities, losses, damages or injuries of any kind, in law or
equity, to property or persons, including wrongful death, to the extent arising out of the
willful misconduct or negligent acts, errors or omissions of the indemnifying party or its
directors, officials, officers, employees and agents in connection with the California
HERO Program administered under this JPA Amendment, including without limitation
the payment of expert witness fees and attorneys fees and other related costs and
expenses, but excluding payment of consequential damages. Without limiting the
foregoing, Section 5.2 of the Authority JPA shall not apply to this JPA Amendment. In
no event shall any of Authority's Regular Members or their officials, officers or
employees be held directly liable for any damages or liability resulting out of this JPA
Amendment.
3. Environmental Review. Authority shall be the lead agency under the
California Environmental Quality Act for any environmental review that may required in
implementing or administering the California HERO Program under this JPA
Amendment.
4. Cooperative Effort. City shall cooperate with Authority by providing
information and other assistance in order for Authority to meet its obligations hereunder.
City recognizes that one of its responsibilities related to the California HERO Program
will include any permitting or inspection requirements as established by City.
5. Notice. Any and all communications and /or notices in connection with this
JPA Amendment shall be either hand - delivered or sent by United States first class mail,
postage prepaid, and addressed as follows:
Authority:
Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS1032
Riverside, CA 92501 -3609
Att: Executive Director
City:
City of Arcadia
Public Works Services Department
P. O. Box 60021
Arcadia, CA 91066 -6021
Attn: Public Works Services Director
6. Entire Agreement. This JPA Amendment, together with the Authority JPA,
constitutes the entire agreement among the Parties pertaining to the subject matter
hereof. This JPA Amendment supersedes any and all other agreements, either oral or
in writing, among the Parties with respect to the subject matter hereof and contains all
of the covenants and agreements among them with respect to said matters, and each
Party acknowledges that no representation, inducement, promise of agreement, oral or
otherwise, has been made by the other Party or anyone acting on behalf of the other
Party that is not embodied herein.
7. Successors and Assigns. This JPA Amendment and each of its
covenants and conditions shall be binding on and shall inure to the benefit of the Parties
and their respective successors and assigns. A Party may only assign or transfer its
rights and obligations under this JPA Amendment with prior written approval of the other
Party, which approval shall not be unreasonably withheld.
8. Attorney's Fees. If any action at law or equity, including any action for
declaratory relief is brought to enforce or interpret the provisions of this Agreement,
each Party to the litigation shall bear its own attorney's fees and costs.
9. Governing Law. This JPA Amendment shall be governed by and
construed in accordance with the laws of the State of California, as applicable.
10. No Third Party Beneficiaries. This JPA Amendment shall not create any
right or interest in the public, or any member thereof, as a third party beneficiary hereof,
nor shall it authorize anyone not a Party to this JPA Amendment to maintain a suit for
personal injuries or property damages under the provisions of this JPA Amendment.
The duties, obligations, and responsibilities of the Parties to this JPA Amendment with
A -5
respect to third party beneficiaries shall remain as imposed under existing state and
federal law.
11. Severability. In the event one or more of the provisions contained in this
JPA Amendment is held invalid, illegal or unenforceable by any court of competent
jurisdiction, such portion shall be deemed severed from this JPA Amendment and the
remaining parts of this JPA Amendment shall remain in full force and effect as though
such invalid, illegal, or unenforceable portion had never been a part of this JPA
Amendment.
12. Headings. The paragraph headings used in this JPA Amendment are for
the convenience of the Parties and are not intended to be used as an aid to
interpretation.
13. Amendment. This JPA Amendment may be modified or amended by the
Parties at any time. Such modifications or amendments must be mutually agreed upon
and executed in writing by both Parties. Verbal modifications or amendments to this
JPA Amendment shall be of no effect.
14. Effective Date. This JPA Amendment shall become effective upon the
execution thereof by the Parties hereto.
IN WITNESS WHEREOF, the Parties hereto have caused this JPA Amendment
to be executed and attested by their officers thereunto duly authorized as of the date
first above written.
CITY OF ARCADIA WESTERN RIVERSIDE COG
City Manager
ATlClerk
ty
APPROVED AS TO FORM:
'S7_t� P1, �4�
Stephen P. Deitsch
City Attorney
00-
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Updated through July, 2012
JOINT POWERS AGREEMENT OF
THE WESTERN RIVERSIDE
COUNCIL OF GOVERNMENTS
This Agreement is made and entered into on the 1st day of April, 1991, pursuant to
Government Code Section 6500 et. seq. and other pertinent provisions of law, by and
between six or more of the cities located within Western Riverside County and the County
of Riverside.
RECITALS
A. Each member and party to this Agreement is a governmental entity
established by law with full powers of government in legislative, administrative, financial,
and other related fields.
B. The purpose of the formation is to provide an agency to conduct studies and
projects designed to improve and coordinate the common governmental responsibilities
and services on an area -wide and regional basis through the establishment of an
association of governments. The Council will explore areas of inter - governmental
cooperation and coordination of government programs and provide recommendations and
solutions to problems of common and general concern.
C. When authorized pursuant to an Implementation Agreement, the Council shall
manage and administer thereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, the parties hereto agree as follows:
20323.00016 \7651699.1
PURPOSE AND POWERS
1.1 Aqency Created.
There is hereby created a public entity to be known as the "Western Riverside
Council of Governments" ( "WRCOG "). WRCOG is formed by this Agreement pursuant to
the provision of Government Code Section 6500 et. seq. and other pertinent provision of
law. WRCOG shall be a public entity separate from the parties hereto.
1.2 Powers.
1.2.1. WRCOG established hereunder shall perform all necessary functions
to fulfill the purposes of this Agreement. Among other functions, WRCOG shall:
a. Serve as a forum for consideration, study and recommendation on
area -wide and regional problems;
b. Assemble information helpful in the consideration of problems peculiar
to Western Riverside County;
C. Explore practical avenues for intergovernmental cooperation,
coordination and action in the interest of local public welfare and means of improvements in
the administration of governmental services; and
d. Serve as the clearinghouse review body for Federally- funded projects
in accordance with Circular A -95 in conjunction with the Southern California Association of
Governments.
1.2.2. The Council shall have the power in its own name to do any of the
following;
20323.00016 \7651699.1 2
a. When necessary for the day to day operation of the Council, to make
and enter into contracts;
b. To contract for the services of engineers, attorneys, planners, financial
consultants and separate and apart therefrom to employ such other persons, as it deems
necessary;
C. To apply for an appropriate grant or grants under any federal, state, or
local programs.
d. To receive gifts, contributions and donations of property, funds,
services and other forms of financial assistance from persons, firms, corporations and any
governmental entity;
e. To lease, acquire, construct, manage, maintain, and operate any
buildings, works, or improvements;
f. To delegate some or all of its powers to the Executive Committee and
the Executive Director of the Council as hereinafter provided.
1.2.3 The association shall have the power in its own name, only with the
approval of all affected member agencies to;
a. Acquire, hold and dispose of property by eminent domain, lease, lease
purchase or sale.
b. To incur debts, liabilities, obligations, and issue bonds;
ORGANIZATION OF COUNCIL
2.1 Parties.
20323.00016 \7651699.1 3
The parties to WRCOG shall be the County of Riverside and each city located
within Western Riverside County which has executed or hereafter executes this Agreement,
or any addenda, amendment, or supplement thereto and agrees to such become a member
upon such terms and conditions as established by the general council or executive
committee, and which has not, pursuant to provisions hereof, withdrawn therefrom. Only
the parties identified in this section shall be considered contracting parties to the JPA under
Government Code section 6502.
2.2 Names.
The names, particular capacities and addresses of the parties at any time shall be
shown on Exhibit "A" attached hereto, as amended or supplemented from time to time.
2.3 Duties.
WRCOG shall do whatever is necessary and required to carry out the
purposes of this agreement and when authorized by an Implementation Agreement
pursuant to section 1.2.3 as appropriate, to make and enter into such contracts, incur such
debts and obligations, assess contributions from the members, and perform such other acts
as are necessary to the accomplishment of the purposes of such agreement, within the
provisions of Government Code Section 6500 et seq. and as prescribed by the laws of the
State of California.
2.4 Governing Bodv.
2.4.1. WRCOG shall be governed by a General Assembly with membership
consisting of the appropriate representatives from the County of Riverside, each city which
is a signatory to this Agreement, Western Municipal Water District, and Eastern Municipal
Water District, the number of which shall be determined as hereinafter set forth. The
20323.00016 \7651699.1 4
General Assembly shall meet at least once annually, preferably scheduled in the evening.
Each member agency of the General Assembly shall have one vote for each mayor, council
member, county supervisor, and water district board member present at the General
Assembly. The General Assembly shall act only upon a majority of a quorum. A quorum
shall consist of a majority of the total authorized representatives, provided that members
representing a majority of the member agencies are present. The General Assembly shall
adopt and amend by -laws for the administration and management of this Agreement, which
when adopted and approved shall be an integral part of this Agreement. Such by -laws may
provide for the management and administration of this Agreement.
2.4.2. There shall be an Executive Committee which exercises the powers of
this Agreement between sessions of the General Assembly. Members of the Executive
Committee shall be the Mayor from each of the member cities, four members of the
Riverside County Board of Supervisors and the President of each Water District, the
remaining member of the Board of Supervisors shall serve as an alternate, except any City
Council, at its discretion, can appoint a Mayor Pro Tem or other city council member in
place of the Mayor, and each water district board, at its discretion, can appoint another
board member in place of the President. The Executive Committee shall act only upon a
majority of a quorum. A quorum shall consist of a majority of the member agencies.
Membership of the Water Districts on the General Assembly and Executive Committee of
WRCOG shall be conditioned on the Water Districts entering into a separate
Memorandums of Understanding with WRCOG. Membership of the Riverside County
Superintendent of Schools on the General Assembly and Executive Committee of WRCOG
20323.00016 \7651699.1 5
shall be conditioned on the Superintendent of Schools entering into a separate
Memorandums of Understanding with WRCOG.
2.4.3. Each member of the General Assembly and the Executive Committee
shall be a current member of the legislative body such member represents.
2.4.4. Each participating member on the Executive Committee shall also
have an alternate, who must also be a current member of the legislative body of the party
such alternate represents. The name of the alternate members shall be on file with the
Executive Committee. In the absence of the regular member from an agency, the alternate
member from such agency shall assume all rights and duties of the absent regular
member.
2.5 Executive Director.
The Executive Director shall be the chief administrative officer of the Council.
He shall receive such compensation as may be fixed by the Executive Committee. The
powers and duties of the Executive Director shall be subject to the authority of the
Executive Committee and include the following:
a. To appoint, direct and remove employees of the Council.
b. Annually to prepare and present a proposed budget to the Executive
Committee and General Assembly.
C. Serve as Secretary of the Council and of the Executive Committee.
d. To attend meetings of the Executive Committee.
e. To perform such other and additional duties as the Executive Committee may
require.
20323.00016 \7651699.1 6
2.6 Principal Office.
The principal office of WRCOG shall be established by the Executive
Committee and shall be located within Western Riverside County. The Executive
Committee is hereby granted full power and authority to change said principal office from
one location to another within Western Riverside County. Any change shall be noted by the
Secretary under this section but shall not be considered an amendment to this Agreement.
2.7 Meetings.
The Executive Committee shall meet at the principal office of the agency or at
such other place as may be designated by the Executive Committee. The time and place
of regular meetings of the Executive Committee shall be determined by resolution adopted
by the Executive Committee; a copy of such resolution shall be furnished to each party
hereto. Regular, adjourned and special meetings shall be called and conducted in
accordance with the provisions of the Ralph M. Brown Act, Government Code Section
54950 et. seq., as it may be amended.
2.8 Powers and Limitations of the Executive Committee.
Unless otherwise provided herein, each member or participating alternate of
the Executive Committee shall be entitled to one vote, and a vote of the majority of those
present and qualified to vote constituting a quorum may adopt any motion, resolution, or
order and take any other action they deem appropriate to carry forward the objectives of
the Council.
20323.00016 \7651699.1 7
2.9 Minutes.
The secretary of the Council shall cause to be kept minutes of regular
adjourned regular and special meetings of the General Assembly and Executive
Committee, and shall cause a copy of the minutes to be forwarded to each member and to
each of the members hereto.
2.10 Rules.
The Executive Committee may adopt from time to time such rules and
regulations for the conduct of its affairs consistent with this agreement or any
Implementation Agreement.
2.11 Vote or Assent of Members.
The vote, assent or approval of the members in any manner as may be
required, hereunder shall be evidenced by a certified copy of the action of the governing
body of such party filed with the Council. It shall be the responsibility of the Executive
Director to obtain certified copies of said actions.
2.12 Officers.
There shall be selected from the membership of the Executive Committee, a
chairperson and a vice chairperson. The Executive Director shall be the secretary. The
Treasurer of the County of Riverside shall be the Treasurer of the Council and the
Controller or Auditor of the County of Riverside shall be the Auditor of the Council. Such
persons shall possess the powers of, and shall perform the treasurer and auditor functions
respectively, for WRCOG and perform those functions required of them by Government
Code Sections 6505, 6505.5 and 6505.6, and by all other applicable laws and regulations,
including any subsequent amendments thereto.
20323.00016 \7651699.1 8
The chairperson and vice chairperson, shall hold office for a period of one
year commencing July 1st of each and every fiscal year; provided, however, the first
chairperson and vice chairperson appointed shall hold office from the date of appointment
to June 30th of the ensuing fiscal year. Except for the Executive Director, any officer,
employee, or agent of the Executive Committee may also be an officer, employee, or agent
of any of the members. The appointment by the Executive Committee of such a person
shall be evidence that the two positions are compatible.
2.13 Committees.
The Executive Committee may, as it deems appropriate, appoint committees
to accomplish the purposes set forth herein. All committee meetings of WRCOG, including
those of the Executive Committee, shall be open to all members.
2.14 Additional Officers and Employees.
The Executive Committee shall have the power to authorize such additional
officers and assistants as may be appropriate. Such officers and employees may also be,
but are not required to be, officers and employees of the individual members.
2.15 Bondinq Requirement.
The officers or persons who have charge of, handle, or have access to any
property of WRCOG shall be the members of the Executive Committee, the treasurer, the
Executive Director, and any other officers or persons to be designated or empowered by
the Executive Committee. Each such officer or person shall be required to file an official
bond with the Executive Committee in an amount which shall be established by the
Executive Committee. Should the existing bond or bonds of any such officer be extended
to cover the obligations provided herein, said bond shall be the official bond required
20323.00016 \7651699.1 9
herein. The premiums on any such bonds attributable to the coverage required herein shall
be appropriate expenses of WRCOG.
2.16 Status of Officers and Employees.
All of the privileges and immunities from liability, exemption from laws,
ordinances and rules, all pension, relief, disability, worker's compensation, and other
benefits which apply to the activity of officers, agents, or employees of any of the members
when performing their respective functions shall apply to them to the same degree and
extent while engaged in the performance of any of the functions and other duties under this
Agreement. None of the officers, agents, or employees appointed by the Executive
Committee shall be deemed, by reason of their employment by the Executive Committee,
to be employed by any of the members or, by reason of their employment by the Executive
Committee, to be subject to any of the requirements of such members.
2.17 Restrictions.
Pursuant to Government Code Section 6509, for the purposes of determining the
restrictions to be imposed by the Council in its exercise of the above - described joint
powers, reference shall be made to, and the Council shall observe, the restrictions imposed
upon the County of Riverside.
2.18 Water Districts and TUMF Matters.
Pursuant to this Joint Powers Agreement, WRCOG administers the Transportation
Mitigation Fee ( "TUMF ") for cities in western Riverside County. The fee was established
prior to the Water District's involvement with WRCOG and will fund transportation
improvements for the benefit of the County of Riverside and the cities in western Riverside
County. As such, the Western Municipal Water District and the Eastern Municipal Water
20323.00016 \7651699.1 10
District General Assembly and Executive Committee Members shall not vote on any matter
related to the administration of the TUMF program or the expenditure of TUMF revenues.
FUNDS AND PROPERTY
3.1 Treasurer.
The Treasury of the member agency whose Treasurer is the Treasurer for WRCOG
shall be the depository for WRCOG. The Treasurer of the Council shall have custody of all
funds and shall provide for strict accountability thereof in accordance with Government
Code Section 6505.5 and other applicable laws of the State of California. He or she shall
perform all of the duties required in Government Code Section 6505 and following, such
other duties as may be prescribed by the Executive Committee.
3.2. Expenditure of Funds.
The funds under this Agreement shall be expended only in furtherance of the
purposes hereof and in accordance with the laws of the State of California and standard
accounting practices shall be used to account for all funds received and disbursed.
3.3. Fiscal Year.
WRCOG shall be operated on a fiscal year basis, beginning on July 1 of each year
and continuing until June 30 of the succeeding year. Prior to July 1 of each year, the
General Assembly shall adopt a final budget for the expenditures of WRCOG during the
following fiscal Year.
3.4. Contributions /Public Funds.
In preparing the budget, the General Assembly by majority vote of a quorum shall
determine the amount of funds which will be required from its members for the purposes of
20323.00016 \7651699.1 11
this Agreement. The funds required from its members after approval of the final budget
shall be raised by contributions 50% of which will be assessed on a per capita basis and
50% on an assessed valuation basis, each city paying on the basis of its population and
assessed valuation and the County paying on the basis of the population and assessed
valuation within the unincorporated area of Western Riverside County as defined in the
by -laws. The parties, when informed of their respective contributions, shall pay the same
before August Ist of the fiscal year for which they are assessed or within sixty days of being
informed of the assessment, whichever occurs later. In addition to the contributions
provided, advances of public funds from the parties may be made for the purposes of this
Agreement. When such advances are made, they shall be repaid from the first available
funds of WRCOG.
The General Assembly shall have the power to determine that personnel, equipment
or property of one or more of the parties to the Agreement may be used in lieu of fund
contributions or advances.
All contributions and funds shall be paid to WRCOG and shall be disbursed by a
majority vote of a quorum of the Executive Committee, as authorized by the approved
budget.
3.5 Contribution from Water Districts.
The provision of section 3.4 above shall be inapplicable to the Western Municipal
Water District and the Eastern Municipal Water District. The amount of contributions from
these water districts shall be through the WRCOG budget process.
20323.00016 \7651699.1 12
Iv
BUDGETS AND DISBURSEMENTS
4.1 Annual Budget.
The Executive Committee may at any time amend the budget to incorporate
additional income and disbursements that might become available to WRCOG for its
purposes during a fiscal year.
4.2 Disbursements.
The Executive Director shall request warrants from the Auditor in accordance
with budgets approved by the General Assembly or Executive Committee subject to
quarterly review by the Executive Committee. The Treasurer shall pay such claims or
disbursements and such requisitions for payment in accordance with rules, regulations,
policies, procedures and bylaws adopted by the Executive Committee.
4.3 Accounts.
All funds will be placed in appropriate accounts and the receipt, transfer, or
disbursement of such funds during the term of this Agreement shall be accounted for in
accordance with generally accepted accounting principles applicable to governmental
entities and pursuant to Government Code Sections 6505 et seq. and any other applicable
laws of the State of California. There shall be strict accountability of all funds. All revenues
and expenditures shall be reported to the Executive Committee.
4.4 Expenditures Within Approved Annual Budget.
All expenditures shall be made within the approved annual budget. No
expenditures in excess of those budgeted shall be made without the approval of a majority
of a quorum of the Executive Committee.
20323.00016 \7651699.1 13
4.5 Audit.
The records and accounts of WRCOG shall be audited annually by an
independent certified public accountant and copies of such audit report shall be filed with
the County Auditor, State Controller and each party to WRCOG no later than fifteen (15)
days after receipt of said audit by the Executive Committee.
4.6 Reimbursement of Funds.
Grant funds received by WRCOG from any federal, state, or local agency to
pay for budgeted expenditures for which WRCOG has received all or a portion of said funds
from the parties hereto shall be used as determined by WRCOG's Executive
Committee.
V
LIABILITIES
5.1 Liabilities.
The debts, liabilities, and obligation of WRCOG shall be the debts, liabilities,
or obligations of WRCOG alone and not of the parties to this Agreement.
5.2 Hold Harmless and Indemnity.
Each party hereto agrees to indemnify and hold the other parties harmless
from all liability for damage, actual or alleged, to persons or property arising out of or
resulting from negligent acts or omissions of the indemnifying party or its employees.
Where the General Assembly or Executive Committee itself or its agents or employees are
held liable for injuries to persons or property, each party's liability for contribution or
indemnity for such injuries shall be based proportionately upon the contributions (less
voluntary contributions) of each member. In the event of liability imposed upon any of the
20323.00016 \7651699.1 14
parties to this Agreement, or upon the General Assembly or Executive Committee created
by this Agreement, for injury which is caused by the negligent or wrongful act or omission of
any of the parties in the performance of this Agreement, the contribution of the party or
parties not directly responsible for the negligent or wrongful act or omission shall be limited
to One Hundred Dollars ($100.00). The party or parties directly responsible for the
negligent or wrongful acts or omissions shall indemnify, defend, and hold all other parties
harmless from any liability for personal injury or property damage arising out of the
performance of this Agreement. The voting for or against a matter being considered by the
General Assembly or executive or other committee or WRCOG, or abstention from voting
on such matter, shall not be construed to constitute a wrongful act or omission within the
meaning of this Subsection.
AT
ADMISSION AND WITHDRAWAL OF PARTIES
6.1 Admission of New Parties.
It is recognized that additional cities other than the original parties, may wish
to participate in WRCOG. Any Western Riverside County city may become a party to
WRCOG upon such terms and conditions as established by the General Assembly or
Executive Committee. Any Western Riverside County city shall become a party to WRCOG
by the adoption by the city council of this agreement and the execution of a written
addendum thereto agreeing to the terms of this Agreement and agreeing to any additional
terms and conditions that may be established by the general assembly or Executive
Committee. Special districts which are significantly involved in regional problems and the
boundaries of which include territory within the collective area of the membership shall be
20323.00016 \7651699.1 15
eligible for advisory membership in the Council. The representative of any such advisory
member may participate in the work of committees of the Council.
6.2 Withdrawal from WRCOG.
It is fully anticipated that each party hereto shall participate in WRCOG until
the purposes set forth in this Agreement are accomplished. The withdrawal of any party,
either voluntary or involuntary, unless otherwise provided by the General Assembly or
Executive Committee, shall be conditioned as follows:
a. In the case of a voluntary withdrawal following a properly noticed public
hearing, written notice shall be given to WRCOG, six months prior to the effective date of
withdrawal;
b. Withdrawal shall not relieve the party of its proportionate share of any
debts or other liabilities incurred by WRCOG prior to the effective date of the parties' notice
of withdrawal;
C. Unless otherwise provided by a unanimous vote of the Executive
Committee, withdrawal shall result in the forfeiture of that party's rights and claims relating
to distribution of property and funds upon termination of WRCOG as set forth in Section VII
below;
d. Withdrawal from any Implementation Agreement shall not be deemed
withdrawal from membership in WRCOG.
20323.00016 \7651699.1 16
VII
TERMINATION AND DISPOSITION OF ASSETS
7.1 Termination of this Agreement.
WRCOG shall continue to exercise the joint powers herein until the
termination of this Agreement and any extension thereof or until the parties shall have
mutually rescinded this Agreement; providing, however, that WRCOG and this Agreement
shall continue to exist for the purposes of disposing of all claims, distribution of assets and
all other functions necessary to conclude the affairs of WRCOG.
Termination shall be accomplished by written consent of all of the parties, or
shall occur upon the withdrawal from WRCOG of a sufficient number of the agencies
enumerated herein so as to leave less than five of the enumerated agencies remaining in
WRCOG.
7.2 Distribution of Property and Funds.
In the event of the termination of this Agreement, any property interest
remaining in WRCOG following the discharge of all obligations shall be disposed of as the
Executive Committee shall determine with the objective of distributing to each remaining
party a proportionate return on the contributions made to such properties by such parties,
less previous returns, if any.
VIII
IMPLEMENTATION AGREEMENTS
8.1 Execution of Agreement.
When authorized by the Executive Committee, any affected member agency
or agencies enumerated herein, may execute an Implementation Agreement for the
20323.00016 \7651699.1 17
purpose of authorizing WRCOG to implement, manage and administer area -wide and
regional programs in the interest of the local public welfare. The costs incurred by WRCOG
in implementing a program including indirect costs, shall be assessed only to those public
agencies who are parties to that Implementation Agreement.
IX
MISCELLANEOUS
9.1 Amendments.
This Agreement may be amended with the approval of not less than
two- thirds (2/3) of all member agencies.
9.2 Notice.
Any notice or instrument required to be given or delivered by depositing the
same in any United States Post Office, registered or certified, postage prepaid, addressed
to the addresses of the parties as shown on Exhibit "A ", shall be deemed to have been
received by the party to whom the same is addressed at the expiration of seventy -two (72)
hours after deposit of the same in the United States Post Office for transmission by
registered or certified mail as aforesaid.
9.3 Effective Date.
This Agreement shall be effective and WRCOG shall exist from and after such
date as this Agreement has been executed by any seven or more of the public agencies,
including the County of Riverside, as listed on page 1 hereof.
9.4 Arbitration.
Any controversy or claim between any two or more parties to this Agreement,
or between any such party or parties and WRCOG, with respect to disputes, demands,
20323.00016 \7651699.1 18
differences, controversies, or misunderstandings arising in relation to interpretation of this
Agreement, or any breach thereof, shall be submitted to and determined by arbitration.
The party desiring to initiate arbitration shall give notice of its intention to arbitrate to every
other party to this Agreement and to the Executive Director of the Council. Such notice
shall designate as "respondents" such other parties as the initiating party intends to have
bound by any award made therein. Any party not so designated but which desires to join in
the arbitration may, within ten (10) days of service upon it of such notice, file with all other
parties and with the Executive Director of the Council a response indicating its intention to
join in and to be bound by the results of the arbitration, and further designating any other
parties it wishes to name as a respondent. Within twenty (20) days of the service of the
initial demand for arbitration, the initiating party and the respondent or respondents shall
each designate a person to act as an arbitrator. The designated arbitrators shall mutually
designate the minimal number of additional persons as arbitrators as may be necessary to
create an odd total number of arbitrators but not less than three to serve as arbitrator(s).
The arbitrators shall proceed to arbitrate the matter in accordance with the
provisions of Title 9 of Part 3 of the Code of Civil Procedure, Section 1280 et. seq. The
parties to this Agreement agree that the decision of the arbitrators will be binding and will
not be subject to judicial review except on the ground that the arbitrators have exceeded
the scope of their authority.
9.5 Partial Invalidity.
If any one or more of the terms, provisions, sections, promises, covenants or
conditions of this Agreement shall to any extent be adjudged invalid, unenforceable, void or
voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the
20323.00016 \7651699.1 19
remaining terms, provisions, sections, promises, covenants and conditions of this
Agreement shall not be affected thereby and shall be valid and enforceable to the fullest
extent permitted by law.
9.6 Successors.
This Agreement shall be binding upon and shall inure to the benefit of the
successors of the parties hereto.
9.7 Assignment.
The parties hereto shall not assign any rights or obligations under this
Agreement without written consent of all other parties.
9.8 Execution.
The Board of Supervisors of the County of Riverside and the city councils of
the cities enumerated herein have each authorized execution of this Agreement as
evidenced by the authorized signatures below, respectively.
20323.00016 \7651699.1 20
Original Members Agencies
1.
City of Banning
2.
City of Beaumont (withdrawn)
3.
City of Calimesa
4.
City of Canyon Lake
5.
City of Corona
6.
City of Hemet
7.
City of Lake Elsinore
8.
City of Moreno Valley
9.
City of Murrieta
10.
City of Norco
11.
City of Perris
12.
City of Riverside
13.
City of San Jacinto
14.
City of Temecula
15.
County of Riverside
Additional City Members
1.
City of Eastvale (added on 08/02/2010, Resolution 01 -11)
2.
City of Jurupa Valley (added on 07/29/2011, Resolution 02 -12)
3.
City of Menifee (added on 10/06/2008, Resolution 03 -09)
4.
City of Wildomar (added on 08/04/2008, Resolution 01 -09)
20323.00016 \7651699.1 21
THE WESTERN RIVERSIDE
COUNCIL OF GOVERNMENTS
Participating Agencies
5. Eastern Municipal Water District (membership on the Governing Board
of WRCOG, 05/1112009)
6. Riverside County Superintendent of Schools (membership as an ex-
officio, advisory member of WRCOG, 11/07/2011)
7. Western Municipal Water District (membership on the Governing Board
of WRCOG, 05/11/2009)
20323.00016 \7651699.1 22