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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 1 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Program, which will be such a voluntary contractual assessment program, as permitted by the Act, the Authority JPA, originally made and entered into April 1, 1991, as amended to date, and the Amendment to Joint Powers Agreement Adding the City of Arcadia as an Associate Member of the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. 2 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. 3 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 4 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 5 Cily,Clerk-aflhe )City of Arcadia W 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) 6 - Z, $17 C0PY of Document Recorded asno�a Has n Origin an has bE '20140501074' in1 LOS AN(actca r mt%j'Q I r% - Rw.wcOER Notice of Agreement Running with Land Affecting Real Property 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 74 -)5 26 27 _-S I 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 \��il� I ail \r 1�11'•II ".1 \Illr IIb,i141 \1 14011TUI'r 1114 \1111 11 ltrr\Ir %Itr \111 0 I COMES NOW Defendant City of Arcadia, a public entity, and hereby provides formal 2 notice that the parties to the instant litigation have entered into an agreement and release 3 regarding the above - entitled matter. 4 NOTICE is hereby given that pursuant to the attached Settlement and Release Agreement 5 regarding the real property located at 2205 Canyon Road, Arcadia, California 91006 ( "Property "), 6 Plaintiffs Eric T. Chen and Sylvia C. Chen (collectively "Plaintiffs "), who are the owners of the 7 Property, have entered into a binding agreement under which Defendant City of Arcadia and 8 Plaintiffs, their associates, owners, predecessors, successors, heirs, executors, administrators, 9 council members, assigns, agents, directors, officers, partners, employees, representatives, a 10 lawyers, and all persons acting by, through, under, or in concert with any of them are released 9 O CL from any and all liability or legal responsibility, in equity or at law, for any damages or any 61uif 12 diminution in value of the Property that has occurred or will occur in the future, any suits, debts, �a >x2 13 tA. liens, liabilities, claims, demands, and damages of any nature whatsoever, known or unknown, 3: t;t cS- 14 fixed or contingent related in any way to the Property, except as expressly provided in the 15 wz Settlement and Release Agreement. The Property is more particularly described as follows: to o 16 Lot 54 of Tract No. 23145, in the City of Arcadia, County of Los P M 17 Angeles, State of California, as per map recorded in Book 631, 18 Pages 90 -92 inclusive of maps, in the office of the County 19 Recorder of said County ( "Affected Land "). 20 Under the Settlement and Release Agreement, the City of Arcadia or any successive 21 owner of the real property located at or about 2143 Canyon Road in Arcadia, California ("City 22 Property ") shall be under an ongoing duty to maintain and repair a supportive wall, in a 23 workmanlike manner, that protects the slope that ascends from the City Property to the Property, 24 and reasonably maintain the slope ascending to the Property. Pursuant to California Civil Code 25 § 1468, the Settlement and Release Agreement runs with both the Property and the City Property. 26 The City Property is more particularly described as follows: L7 APN 5765 - 002 -900: 21.13 Canyon Road. Arcadia. CA 01006 28 I I hat portion of the North\+.cst one yuaiter of fractional section I5. i VI I W1 I N' V II(I I \11 \ I \I I I ( 1 INa" RI \1 Pnt ►PI R I 1 It I 1 1) \ I "m I \tiYt rV It() \I) \Iti \01 \I If t?R\1 \ 'Olt-got, j 2 3 4 5 6 7 8 9 a 0 10 0.s o w� 12 -!LQOLL 13 3 o,� 14 �mwaa tuz W 15 �o 16 tn n 17 18 19 20 21 T? 23 24 25 26 27 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 i ii II\t \EI1a 11`•(�RI \1 VR )IT RIN fit( •\111) \I :_'ti`( i \i 11 1 cif \,I 1 "I ern. 1 2 3 4 5 18 19 20 21 22 23 74 25 26 27 ,8 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\ ( ti If 1 110.1 \ 911)111, 6 7 8 9 a Q, N 10 Q o woo — 12 ' �R�20 >x 13 tiY Q1.3 33�t6 14 W�Qaa wz w 15 �a 16 M 17 18 19 20 21 22 23 74 25 26 27 ,8 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\ ( ti If 1 110.1 \ 911)111, 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. 0,11C(1: ',41,,'I % ! .2014 i dled: ,-4 1/ -, 201 1 Dated- Np2i, T 2014 Y < J r CI1I :N C'I IkN CITY OF ARCADIA tfy. DoxiiT1VT LAZZ.r1R T CITY MANAGER J..igtiattires continue on nett pagel Dated.�,�L 8 Dated: of ATTEST: , 2014 By: kouk CI CLERK APPROVED AS TO FORM: 2014 By: STEPHEN P. DEITSCil CITY ATTORNEY tN r� x Q o t' ums OF! JTC" ON N39'S2'QQ'E 1 roa. I ! ; t I I t I � I / { I� 1 4h Mt10 � 1 t 07 y 4r all r1 Vo- O. TOM ti4 V} t t 1 r ■a.wAiYr�rs•�a•������e• RESERVOIR NO.2 o e 10 20 ao E a— l ` of SCALE T-1O' =°s°.a.w r - .+: CITY OF ARCADIA CANYON ROAD SLOPE SMOTLRETMG �•' • +• ."".,'...°'Ob. ?.°` _ �"�...�.. _ PLOW iOOMSERMESDEPARTMEW PLAN _ t o e 10 20 ao E a— l ` of SCALE T-1O' =°s°.a.w r - .+: CITY OF ARCADIA CANYON ROAD SLOPE SMOTLRETMG �•' • +• ."".,'...°'Ob. ?.°` _ �"�...�.. _ PLOW iOOMSERMESDEPARTMEW PLAN _ 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- ' r LN _ . 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