HomeMy WebLinkAboutC40220 - Priority One CV Funding AgreementContract No. C40220
STAFF REPORT
CITY OF PALM DESERT
Economic Development Department
MEETING DATE: July 23, 2020
PREPARED BY: Janet M. Moore, Director of Finance
Martin Alvarez, Director of Economic Development
REQUEST: Request for approval of revised Bylaws and Funding Agreement for
Priority One CV
Recommendation
By Minute Motion, that the City Council:
1. Approve the amended bylaws for Priority One CV (POCV); and
2. Approve the Funding Agreement for POCV substantially as to form and
authorize legal counsel to finalize (Contract No. C40220); and
3. Authorize a one-time funding payment of $150,000 to POCV; and
4. Authorize the City Manager and/or Mayor to execute any documents
necessary to effectuate the actions taken herewith.
Board of Director's Update
The Board of Directors of the POCV will meet to discuss the proposed amendment to the
bylaws and the Funding Agreement prior to the Council consideration of this item. An
oral report will be provided at the City Council meeting if requested.
Strategic Plan
The creation of POCV supports all three priorities in the Envision Palm Desert Strategic
Plan under Education:
Priority 1: Create and support a community -based Education Coalition in which all
necessary community organizations come together to coordinate and focus their efforts
on improving measures of student success such as graduation rates and achievement
levels.
Priority 2: Become an "education destination" which is successful in attracting and
retaining students of all ages by providing outstanding academic and cultural programs
and demonstrating high levels of career readiness.
Priority 3: Create community awareness of, and support for, the building blocks of student
success, including academic, vocational and career success.
July 23, 2020 - Staff Report
Approval of Bylaws and Funding Agreement for P1 CV
Page 2 of 3
Executive Summary
In order to clarify that POCV is an entity separate from the City, and in accordance with
the Board of Directors' direction on July 6, 2020, an amendment to the bylaws is needed.
In addition, staff and legal counsel have drafted a funding agreement that defines the
City's contribution as 'seed' money to establish the entity and attest that no further funding
is implied or required.
Background Analysis
On March 12, 2020 the City Council authorized the "Finance Director to appropriate
$100,000 from the unobligated Economic Development Reserve Fund to provide seed
capital for the 501(c)(4)". The 501(c)(4), now identified as Priority 1 Coachella Valley
"POCV", is to provide strategic planning and implementation of initiatives to secure a 4-
year stand-alone CSU Palm Desert campus. Since the 501(c)(4) was expected to be an
independent organization, the City Council action simply appropriated funds. It did not
approve any funding agreements, authorize the expenditure of funds, or approve any
contracts.
On May 14, 2020 the City Council authorized a reallocation of $2,000,000 from the Invest
Palm Desert Economic Development Incentive Program to the Unite Palm Desert
Business Support Program. Within the "Discussion" portion of the staff report there is a
reference to POCV under a heading "Focus Area 4 — CSU Expansion Efforts - $50,000
recommended", noting that the effects of the COVID-19 pandemic lessened the
opportunity for community partners to contribute to this effort. Similar to the previous
action, this Council action simply appropriated funding.
As a regional effort, the Board and its staff will be seeking monetary contributions from
other governments, regional entities, businesses and individuals to promote the ongoing
strategic goals of POCV. To emphasize the regional effort to our community partners, an
amendment is needed to the bylaws to increase the number of Board members so that
members appointed by the City do not have a controlling majority of the Board, making
POCV independent of the City. Absent the amendment, and similar to the Palm Desert
Recreational Facilities Corporation (a component unit' of the City), POCV would be
included in the City's Comprehensive Annual Finance Report and simply created in the
City's financial records as a separate governmental fund.
At the meeting of the POCV Board on July 6, 2020, the Board directed legal counsel to
draft the necessary documents to make POCV a separate entity and not a component
unit of the City. The proposed amendment to the bylaws will, 1) increase the Board from
five (5) to seven (7) members to ensure that the City does not maintain a voting majority,
2) make the necessary changes to the board appointment process, and 3) delete the
requirement for City approval of the bylaws going forward.
Governmental Accounting Standards Board "GASB" Statements 14, 34, and 61, as amended).
ATTACHMENTS:
1. Amended Bylaws draft
2. Funding Agreement draft
JMM:pl
*Approved the recommendations, approving
agreement identified as 2nd Replacement
(C40220), and acronym "P1CV," to be used to
reflect "Priority One Coachella Valley," for
consistency.
July 23, 2020 - Staff Report
Approval of Bylaws and Funding Agreement for P1 CV
Page 3 of 3
To further demonstrate the intended `separateness' of POCV and to facilitate the payment
of the $150,000 described above, staff and legal counsel have drafted a funding
agreement that defines the City's contribution as 'seed' money to establish the entity and
confirms that no further funding is implied or required. This is important to confirm as it
satisfies one of the three tests (itemized below), set by Governmental Accounting
Standards Board, to show that POCV is completely separate from the City and therefore
not includable in the City's Comprehensive Annual Financial Report. If POCV was
dependent on the City for financial support going forward, POCV would be a component
unit' of the City and reportable in the City's financial statements.
1) The entity must be legally separated from a participating government, and
2) A participating government cannot appoint a voting majority of the organizations governing
body, and
3) The entity cannot be fiscally dependent on a participating government.
Staff recommends the approval of both the proposed amendment and the funding
agreement.
Fiscal Analysis
Approval of this request will update the bylaws, approve the funding agreement, and upon
execution, authorize payment of the seed money ($150,000) to POCV. Monies have
been set aside and are available in the Economic Development Fund for this purpose.
LEGAL REVIEW DEPT. REVIEW DEPT. AND ASSISTANT
FINANCIAL REVIEW CITY MANAGER
RWH Martin Alvarez
Robert W. Hargreaves
City Attorney
Martin Alvarez
Director of Economic
Development
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N/A
Andy Firestine
Janet M. Moore Assistant City Manager
Director of Finance
City Manager Lauri Aylaian: AvdyFirestlne (for Lauri Aylaian)
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1
BYLAWS
OF
PRIORITY ONE CV
A CALIFORNIA NONPROFIT PUBLIC BENEFIT CORPORATION
ARTICLE I
ORGANIZATION
1.1 Name. The name of this Corporation is PRIORITY ONE CV (“Corporation”).
1.2 Purpose. The Corporation is a nonprofit public benefit corporation and is not
organized for the private gain of any person. It is organized under the Nonprofit Public Benefit
Corporation Law for charitable purposes. The specific purposes of this Corporation are to
enhance the education, arts, environment and economic resources for the residents and guests of
the Greater Coachella Valley and region and engage in any activities in furtherance of the
purposes for which the Corporation is formed.
1.3 Limitation on Corporate Activities. This Corporation is organized and operated
exclusively for social welfare purposes within the meaning of Section 501(c)(4) of the Internal
Revenue Code of 1986, as amended (“Code”), and shall not carry on any other activities not
permitted to be carried on by or inconsistent with a corporation exempt from federal income tax
under Section 501(c)(4) of the Code. Notwithstanding any of the above statements of purposes
and powers, this Corporation shall not, except to an insubstantial degree, engage in any activities
or exercise any powers that are not in furtherance of the specific purposes of this Corporation.
1.4 Dedication of Assets. The property and net earnings of this Corporation are
dedicated to the purposes for which this Corporation is formed, and no part of the property or net
earnings of this Corporation shall ever inure to the benefit of any director or officer thereof, or to
the benefit of any private person. Upon the dissolution or winding up of the Corporation, and
after paying or adequately providing for its debts and obligations, the remaining assets of the
Corporation shall be distributed to a nonprofit fund, foundation or corporation which is
organized and operated exclusively for social welfare purposes and which has established and
maintained its tax-exempt status under Section 501(c)(4) of the Code, provided such assets are
used for the purposes for which the Corporation was established.
1.5 Principal Office. The principal office for the transaction of the activities and
affairs of this Corporation shall be located and maintained at 3111 East Tahquitz Canyon Way,
Palm Springs,73510 Fred Waring Dr., Palm Desert, California 922620. The Board (as that term
is defined in Section 3.2 of these Bylaws) is hereby granted full power and authority to change
the location of the principal office of the Corporation from one location to another location in the
County of Riverside. Any such change shall be noted by the Secretary in these Bylaws, but shall
not be considered an amendment of these Bylaws. The Corporation may also have offices at
such other places, within or without the County of Riverside, as its business may require and as
the Board may designate.
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ARTICLE II
MEMBERS
The Corporation shall have no members as that term is defined by section 5056 of the
California Corporations Code (“CCC”), and shall be governed solely by its Board in accordance
with these Bylaws. Pursuant to section 5310(b) of the CCC, any action which would otherwise
require approval by a majority of all members shall only require the approval of a majority of the
Board. The Corporation may refer to persons or entities associated with it as “members” even
though those persons or entities are not voting members, but no such reference shall constitute
anyone a member within the meaning of section 5056 of the CCC.
ARTICLE III
DIRECTORS
3.1 General and Specific Powers. Subject to the provisions and limitations of the
California Nonprofit Public Benefit Corporation Law and any other applicable laws, and subject
to any limitations in the Articles of Incorporation or these Bylaws, the Corporation’s activities
and affairs shall be managed, and all corporate powers shall be exercised, by or under the
direction of the Board. Without limiting the generality of the foregoing, the Board shall have the
power and authority to exercise this Corporation’s rights as member or shareholder of any other
corporation, venture or entity in which this Corporation has an interest as a member, shareholder
or otherwise. In doing so, the Board may, by resolution authorize one (1) or more officers of this
Corporation to represent this Corporation with respect to any matter to be acted upon by this
Corporation as a member, shareholder or otherwise.
3.2 Authorized Directors. The authorized number of directors (“Directors”) of the
Board of Directors (“Board”) of the Corporation shall be sevenfive (75). The sevenfive (75)
member Board shall be comprised as follows:
3.2.1 Appointed Directors. Three Three 3(3) Directors of the Board shall be
appointed and removed by the City of Palm Desert (“City”) at any time and for any reason in its
sole and absolute discretion. These Directors shall be referred to as “Appointed Directors”.
3.2.2 Elected Directors. The remaining four tewo (42) Directors shall be elected
by a majority of the then current members of the Board (“Elected Directors”) subject to the
following qualifications:
(a) One (1) Director shall be a representative of the Greater Palm
Springs Convention Visitors Bureau (“GPSCVB”), or an alternate organization to
be selected by a majority of the Board.
(b) One (1) Director shall be a representative of the Coachella Valley
Economic Partnership (“CVEP”), or an alternate organization to be selected by a
majority of the Board.
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(c) The remaining Elected Directors shall be selected from the
Coachella Valley community at large.
3.3 Interested Persons. No more than forty-nine percent (49%) of the persons serving
on the Board may be “interested persons.”
3.3.1 As used in this Section 3.3, an “interested person” means:
(a) Any person compensated by the Corporation for services rendered
to it within the previous twelve (12) months, whether as a full-time or part-time employee,
independent contractor or otherwise, excluding any reasonable compensation paid to a Director
for his/her service as Director; and
(b) Any brother, sister, ancestor, descendant, spouse, brother-in-law,
sister-in-law, son-in-law, daughter-in-law, mother-in-law or father-in-law of such person.
3.3.2 Any violation of the provisions of this Section 3.3 shall not affect the
validity or enforceability of any transaction entered into by the Corporation.
3.4 Nomination; Election; and Term of Office.
Subject to the provisions of Section 3.2:
3.4.1 Nomination. Any person qualified to be a Director may be nominated by
any method of nomination authorized by the Board or by any other method authorized by
law.
3.4.2 Election. Elected Directors shall be elected at each Annual Meeting by
existing Directors, and unless the Board provides otherwise, shall hold office until expiration of
the term for which elected and until a successor is elected. The candidates shall be elected onto
the Board by a simple majority vote of the Directors then in office.
3.4.3 Term of Office. Unless the Board provides otherwise, the term of each
Director shall be two (2) years, or until a successor has been elected and qualified. The initial
term of the Threethree (33) Appointed Directors appointed by the City of Palm Desert shall be
six (6) months. Director’s terms of office shall be established and maintained in such a manner
as provided by the Board. There shall be no term limits.
3.4.4 Vacancy During Term of Office. A vacancy occurring in the office of a
Director may be filled by the remaining Directors for the balance of the unexpired term and until
a successor has been elected and qualified.
3.5 Vacancies.
3.5.1 A vacancy or vacancies on the Board shall exist on the occurrence of the
following:
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(a) the death, disqualification, resignation, suspension, expulsion or
termination of any Director;
(b) the declaration by resolution of the Board of a vacancy in the
office of a Director who has been declared of unsound mind by an order of any court, convicted
of a felony or found by final order of judgment of any court to have breached a duty under
Article 3 of Chapter 2 of Division 3 of the CCC;
(c) the increase in the authorized number of Directors; or
(d) the removal of a Director for failure to adhere to policies and
procedures governing the Board.
3.5.2 Removal of a Director for one or more of the reasons listed in (b) above
may be initiated by any member of the Board.
3.6 Resignation of Directors. Except as provided in these Bylaws, any Director may
resign by giving written notice to the Chairperson or the Secretary. The resignation shall be
effective when the notice is given unless it specifies a later time for the resignation to become
effective. If a Director’s resignation becomes effective at a later time, the Board may elect
subject to Section 3.2 a successor to take office as of the date when the resignation becomes
effective. A vacancy in an Appointed Director position shall be filled by the City of Palm
Desert.
3.7 Removal of Directors. An Elected Director may be removed from office, with or
without cause, by a vote of the majority of the Directors then in office. An Appointed Director
may only be removed by written notice of the City of Palm Desert at any time and for any reason
without prior notice.
3.8 Reimbursement of Directors and Officers. Directors and officers may receive
such reimbursement of expenses, if any, for their services as directors or officers, as the Board
may establish by resolution to be just and reasonable to the Corporation at the time that the
resolution is adopted.
3.9 Inspection Rights of Directors. Every Director shall have the absolute right at any
reasonable time to inspect and copy all books, records and documents of every kind and to
inspect the physical properties of the Corporation during normal weekday business hours. If a
Director wishes to be accompanied by an attorney during such inspection, then the inspection
will be scheduled at a time when the Corporation’s attorney will be present.
3.10 Standard of Care. A Director shall perform the duties of a director, including
duties as a member of any committee of the Board on which the Director may serve, in good
faith, in a manner such Director believes to be in the best interest of the Corporation and with
such care, including reasonable inquiry, as an ordinarily prudent person in a like situation would
use under similar circumstances. In performing the duties of a Director, a Director shall be
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entitled to rely on information, opinions, reports or statements, including financial statements
and other financial data, in each case prepared and presented by:
(a) One or more officers or employees of the Corporation whom the Director
believes to be reliable and competent in the matters presented;
(b) Counsel, independent accountants or other persons as to matters which the
Director believes to be within such person’s professional or expert
competence; or
(c) A committee of the Board upon which the Director does not serve, as to
matters within its designated authority, which committee the Director
believes to merit confidence, as long as, in any such case, the Director acts
in good faith, after reasonable inquiry when the need therefore is indicated
by the circumstances and without knowledge that would cause such
reliance to be unwarranted.
A person who performs the duties of a Director in accordance with the above shall
have no liability based upon any failure or alleged failure to discharge that person’s obligations
as a Director.
ARTICLE IV
MEETINGS OF THE BOARD
4.1 In General. Subject to the other provisions of this Article, all meetings of the
Board shall be held in compliance with the requirements under the CCC and state law.
4.2 Place of Meetings. Unless specified otherwise, meetings of the Board shall be
held at the principal office of the Corporation.
4.3 Annual Meetings. The annual meeting of the Board (“Annual Meeting”) shall be
held for the purpose of organization, election of officers and the transaction of such other
business as may properly be brought before the Annual Meeting each year. The exact date and
time of the Annual Meeting shall be set by the Board from time to time.
4.4 Regular Meetings. Regular meetings of the Board shall be held on such date and
time as the Board shall determine from time to time.
4.5 Special Meetings. Special meetings of the Board for any purpose or purposes
may be called by the Chairperson, Secretary or any three two (32) or more Directors.
4.6 Notice of Special Meetings. Notice of the time and place of special meetings
shall be given to each Director by (a) personal delivery of written notice; (b) first-class mail,
postage prepaid; (c) telephone, including a voice messaging system or other system or
technology designed to record and communicate messages; (d) facsimile; (e) electronic mail; or
(f) other electronic means. All such notices shall be given or sent to the Director’s address or
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telephone number as shown on the Corporation’s records. Notices sent by first-class mail shall
be deposited in the United States mail at least four (4) days before the time set for the meeting.
Notices given by personal delivery, telephone or electronic transmission shall be delivered,
telephoned or sent, respectively, at least twenty-four (24) hours before the time set for the
meeting. The notice shall state the time of the meeting and the place, if the place is other than
the Corporation’s principal office.
4.7 Waiver of Notice. Written notice may be dispensed with as to any Director who,
at or prior to the time the meeting convenes, files with the Secretary a written waiver of notice, a
written consent to the holding of the meeting, an approval of the minutes of the meeting, or who
is actually present at the meeting when it convenes. All such waivers, consents and approvals
shall be made a part of the minutes of the meeting.
4.8 Conduct of Meetings. Meetings of the Board shall be presided over by the
Chairperson, or in his or her absence, by a person chosen by the majority of the Directors present
at the meeting. The Secretary shall act as secretary of all meetings of the Board; provided,
however, that, in his or her absence, the presiding officer shall appoint another person to act as
secretary of the meeting.
4.9 Quorum. FourThree (43) of the authorized Directors then in office shall
constitute a quorum of the Board for the transaction of business, except to adjourn.
4.10 Required Vote of Directors. Every action taken or decision made by a majority of
the authorized number of Directors shall be an act of the Board.
4.11 Adjournment. A majority of the Directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place.
ARTICLE V
COMMITTEES OF THE BOARD
5.1 Committees.
5.1.1 Generally. Except as limited by Section 5.2 of these Bylaws, the Board
may, by resolution adopted by a majority of the Directors then in office, create standing or
special committees, or advisory committees, for any purposes and delegate to such committees
any of the powers and authorities of the Board to the extent permitted by section 5212 of the
CCC. Except as otherwise provided in these Bylaws, such committees shall be advisory only
and shall at all times be subject to the control of the Board. Such committees may consist of one
(1) or more Directors, and may also consist of other persons who are not Directors.
5.1.2 Committee Members. The chairperson and members of each standing,
special or advisory committee, except as otherwise provided by the Board or by these Bylaws,
shall be appointed by the Board and may be removed by majority vote of the Directors then in
office.
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5.1.3 Tenure; Vacancies. The chairperson and each member of each standing
committee shall serve until his or her successor is appointed or until such committee is sooner
terminated, or until such person is removed, resigns or otherwise ceases to qualify as a
chairperson or member, as the case may be, of the committee. Chairpersons and members of
special committees shall serve for the life of the committee unless they are sooner removed,
resign or cease to qualify as a chairperson or member, as the case may be, of such committee.
Vacancies on any committee may be filled for the unexpired portion of the term in the same
manner as provided in the case of original appointment.
5.1.4 Quorum; Meetings. Each committee shall meet as often as necessary to
perform its duties, at such times and places as directed by its chairperson or by the Board. A
majority of the members of a committee shall constitute a quorum of such committee and the act
of a majority of the members present at a meeting at which a quorum is present shall be the act of
the committee. Each committee shall keep accurate minutes of its meetings, the chairperson
designating a secretary of the committee for this purpose, and shall make periodic reports and
recommendations to the Board.
5.1.5 Expenditures. Except as may otherwise be provided by the Board or by
these Bylaws, any expenditure of corporate funds by a committee shall require prior approval of
the Board.
5.2 Limitation on Delegation. In accordance with the CCC, the Board may not
delegate any power of final action to any committee not composed entirely of Directors, and may
not delegate to any committee the following powers:
(a) the filling of vacancies on the Board or on any committee which has the
authority of the Board;
(b) the fixing of compensation of the Directors for serving on the Board or on
any committee;
(c) the amendment or repeal of Bylaws or the adoption of new Bylaws;
(d) the amendment or repeal of any resolution of the Board which by its
express terms is not so amendable or repealable;
(e) the appointment of committees of the Board or the members thereof;
(f) the expenditure of corporate funds to support a nominee for Director after
there are more persons nominated for Director than can be elected; or
(g) the approval of any contract or transaction to which the Corporation is a
party and in which one or more of its Directors has a material financial interest, except as special
approval is provided for in section 5233(d)(3) of the CCC.
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ARTICLE VI
OFFICERS OF THE CORPORATION
6.1 Officers. The officers of this Corporation shall be the following: Chairperson,
Vice Chairperson, Secretary and Treasurer. The Board may establish such other offices as it
shall deem advisable. Additional officers so elected shall hold office for such period and shall
have such powers and duties as the Board may authorize from time to time. No offices may be
held by the same person. No officer shall execute, acknowledge, or verify any instrument in
more than one capacity, if such instrument is required to be executed, acknowledged or verified
by two or more officers.
6.1.1 Chairperson. The Chairperson shall preside at all meetings of the Board.
Unless a chief executive officer is designated by the Board, the Chairperson shall serve as the
chief executive officer of the Corporation and shall supervise, direct and control the
Corporation’s activities, affairs and officers. The Chairperson shall exercise and perform such
other powers and duties as the Board may assign from time to time.
6.1.2 Vice Chairperson. The Vice Chairperson shall serve as the Vice
Chairperson of the Board. In the absence of the Chairperson, the Vice Chairperson shall preside
at meetings of the Corporation and shall exercise and perform such other powers and duties as
the Board may assign from time to time.
6.1.3 Secretary. The Secretary shall keep or cause to be kept, at the
Corporation’s principal office or such other place as the Board may direct, a book of minutes of
all meetings, proceedings and actions of the Board, and of meetings of committees of the Board.
The minutes of meetings shall include the time and place that the meeting was held; whether the
meeting was annual, regular or special, and if special, how authorized; the notice given; and the
names of persons present at Board and committee meetings. The Secretary shall keep or cause to
be kept written waivers of notice of meetings; written consents to holding meetings, written
approval of minutes of meetings; and unanimous written consents of action of the Board without
a meeting. The Secretary shall keep or cause to be kept, at the principal office of the
Corporation, a copy of the Articles of Incorporation and Bylaws, as amended to date. The
Secretary shall give, or cause to be given, notice of all meetings of the Board and of committees
of the Board that these Bylaws require to be given. The Secretary shall keep the corporate seal,
if any, in such custody and shall have such other powers and perform such other duties as the
Board or these Bylaws may require.
6.1.4 Treasurer. The Treasurer may also be designated by the alternate title
“Chief Financial Officer.” The Treasurer shall keep and maintain, or cause to be kept, and
maintained adequate and correct books and accounts of the Corporation’s properties and
transactions, including accounts of its assets, liabilities, receipts, disbursements, gains and losses.
The Treasurer shall send, or cause to be given, to the Directors such financial statements and
reports as are required to be given by law, by these Bylaws or by the Board. The books of
account shall be open to inspection by any Director at all reasonable times. The Treasurer shall
(i) deposit, or cause to be deposited, all money and other valuables in the name and to the credit
of the Corporation with such depositories as the Board may designate; (ii) disburse the
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Corporation’s funds upon a check or draft of the Corporation signed pursuant to the order of the
Board; (iii) render to the Chairperson and the Board, when requested, an account of all
transactions as Treasurer and of the financial condition of the Corporation; and (iv) have such
other powers and perform such other duties as the Chairperson, Board or these Bylaws may
require.
6.2 Election; Removal; and Term of Office.
6.2.1 Election. The officers of the Corporation shall be elected by the Board at
its Annual Meeting.
6.2.2 Term of Office. Each officer shall hold office for one (1) year at the
pleasure of the Board and until his or her successor shall be selected and qualified to serve.
6.2.3 Removal. Any officer may be removed from office at any time by a
majority vote of the Board, with or without cause or prior notice.
6.2.4 Resignation. Any officer may resign at any time upon written notice to
the Board, and such resignation is effective upon receipt of written notice by the Board unless
the notice prescribes a later effective date or unless the notice prescribes a condition to the
effectiveness of the resignation. Any resignation is without prejudice to the rights, if any, of this
Corporation under any contract to which the officer is a party.
6.2.5 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise may be filled for the unexpired term at any meeting of the
Board.
ARTICLE VII
INDEMNIFICATION
7.1 Volunteer Officers, Directors or Advisors. Pursuant to Section 5239 of the CCC,
no volunteer officer or Director shall be personally liable for the debts, liabilities or obligations
of the Corporation. Nor shall there be any personal liability to a third party on the part of a
volunteer officer or Director of this Corporation caused by the volunteer officer’s or Director’s
negligent act or omission in the performance of that person’s duties as a volunteer officer or
Director if all the following conditions are met:
(a) the act or omission was within the scope of the volunteer officer’s,
or Director’s duties;
(b) the act or omission was performed in good faith;
(c) the act or omission was not reckless, wanton, intentional, or
grossly negligent; and
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(d) the damages caused by the act or omission are covered pursuant to
liability insurance policy issued to the Corporation as provided by
Section 7.2 of these Bylaws.
This limitation on the personal liability of a volunteer officer or Director
does not limit the liability of the Corporation for any damages caused by acts or
omissions of a volunteer officer or Director, nor does it eliminate the liability of a
volunteer officer or Director as provided in Sections 5233 or 5237 of the CCC, or in any
action or proceeding brought by the Attorney General.
7.2 Requirement to Obtain Liability Insurance. In order to obtain the full benefit of
the limitation of liability set forth in Section 7.1, the Corporation and the officers may obtain, as
needed, liability insurance in the form of a general liability policy for the Corporation or a
director’s and officer’s liability policy as required by Section 5239 of the CCC.
7.3 Other Insurance. The Corporation may purchase and maintain insurance on
behalf of any Director, officer, employee or agent, as that term is defined in Section 5238 of the
CCC, of the Corporation against any liability asserted against or incurred by the Director, officer
employee or agent in such capacity or arising out of the Director’s, officer’s, employee’s or
agent’s status as such, whether or not the Corporation would have the power to indemnify the
Director, officer, employee or agent against such liability under the provisions of section 5238 of
the CCC.
7.4 Indemnification. The Corporation may indemnify a Director, officer, employee
or agent under the provisions of section 5238 of the CCC, or pursuant to any contract entered
into with any employee who is not an officer or Director.
7.5 Advance of Expenses. Expenses incurred in defending any proceeding may be
advanced by the Corporation as authorized in section 5238 of the CCC prior to the final
disposition of such proceeding, upon receipt of an undertaking by or on behalf of the Director,
officer or employee to repay such amount unless it shall be determined ultimately that the
Director, officer or employee is entitled to be indemnified.
ARTICLE VIII
AMENDMENTS
8.1 Amendment of Articles. The amendment or restatement of the Articles of
Incorporation of the Corporation is provided for by California state law and requires the approval
of a majority of the Directors and the written approval of the City of Palm Desert in theirits sole
and absolute discretion. Such amendment shall not be effective until a certificate of amendment
is filed with the Secretary of State.
8.2 Amendment of Bylaws. These Bylaws may be amended or repealed, or new
bylaws may be adopted, only by approval of a majority of the Directors and the City of Palm
Desert in their its sole and absolute discretion.
11
ARTICLE IX
RECORDS
9.1 Minute Book. The Corporation shall keep or cause to be kept a minute book
which shall contain:
(a) The record of all meetings of the Board including date, place, those
attending and the proceedings thereof, a copy of the notice of the meeting and when and how
given, written waivers of notice of meeting, written consents to holding meeting, written
approvals of minutes of meeting, and unanimous written consents to action of the Board without
a meeting, and similarly as to meetings of committees of the Board established pursuant to these
Bylaws.
(b) A copy of the Articles of Incorporation, and all amendments thereof, and a
copy of all certificates filed with the Secretary of State; and
(c) A copy of these Bylaws, and all amendments hereof, duly certified by the
Secretary.
9.2 Financial Statements; Annual Report.
9.2.1 Financial Statements. Financial statements shall be prepared as soon as
reasonably practicable after the close of the calendar year, but not later than the fifteenth (15th)
day of the fourth (4th) month after the close of said calendar year. The financial statements shall
contain in appropriate detail the following: (i) the assets and liabilities, including trust funds, of
the Corporation as of the end of the calendar year; (ii) the principal changes in assets and
liabilities, including trust funds, during the calendar year; (iii) the revenue or receipts of the
Corporation, both unrestricted and restricted to particular purposes, for the calendar year; and
(iv) the expenses or disbursements of the Corporation for both general and restricted purposes,
during the calendar year. At the request of the Board, monthly financial reports may be provided
to the Board.
9.2.2 Annual Report to Directors. An annual report, including the financial
statements prescribed by Section 9.2.1 of these Bylaws, shall be furnished annually to all
Directors within 120 days after the end of the Corporation’s calendar year and shall include any
information required by Section 9.3 of these Bylaws. The financial statements included with the
annual report shall be accompanied by a report thereon of independent accountants, or, if there is
no such report, the certificate of an authorized officer of the Corporation that such statements
were prepared without audit from the books and records of the Corporation. If the Board
approves, the Corporation may send the report and any accompanying material sent pursuant to
this Section 9.3 by electronic transmission.
9.2.3 Exception. Notwithstanding Sections 9.2.1 and 9.2.2, the requirement of a
financial statement and an annual report shall not apply if the Corporation receives less than
$10,000 in gross revenues or receipts during the calendar year, provided, however, that the
12
information specified above for inclusion in an annual report must be furnished annually to all
Directors who request it in writing.
9.3 Report of Transactions and Indemnifications. As part of the annual report to all
Directors required by Section 9.2.2 of these Bylaws, or a separate document if no annual report
is issued, the Corporation shall annually prepare and mail, deliver or send by electronic
transmission to all Directors a statement of any transaction between the Corporation and one of
its officers or Directors or of any indemnification paid to any officer or Director if, and to the
extent, required by section 6322 of the CCC. The statement shall be mailed within 120 days
after the close of the calendar year. The statement required by this Section shall describe briefly:
9.3.1 Covered Transactions. Any covered transaction during the previous
calendar year involving more than Fifty Thousand Dollars ($50,000), or which was one of a
number of covered transactions in which the same “interested person” had a direct or indirect
material financial interest, and which transactions in the aggregate involved more than Fifty
Thousand Dollars ($50,000). The names of the “interested persons” involved in such
transactions, stating such person’s relationship to the Corporation, the nature of such person’s
interest in the transaction and, where practicable, the amount of such interest; provided, that in
the case of a transaction with a partnership of which such person is a partner, only the interest of
the partnership need be stated.
9.3.2 Indemnifications. The statement shall describe briefly the amount and
circumstances of any indemnifications or advances aggregating to more than Ten Thousand
Dollars ($10,000) paid during the calendar year to any officer or Director of the Corporation
pursuant to section 5238 of the CCC.
For purposes of this Section 9.3, an “interested person” is (i) any Director or
officer of the Corporation, or its parent or subsidiary; and (ii) any holder of more than 10 percent
(10%) of the voting power of the Corporation, its parent or subsidiary.
9.4 Periodic Regulatory Filings.
9.4.1 Secretary of State. In accordance with section 6210 of the CCC, the
Corporation shall file a statement of information, in the form required by the Secretary of State,
every two years from the date of its incorporation. The statement must be filed no earlier than
November 1st and no later than the following March 31st of the year in which the filing is
required. In addition, the Corporation must also file a statement if at any time before the
required biennial filing is due the information provided in the previously filed statement has
changed.
9.4.2 Attorney General. Within thirty (30) days of first receiving property, the
Corporation shall file with the Attorney General an initial registration form, setting forth such
information and attaching documents prescribed in accordance with rules and regulations of the
Attorney General. Thereafter, the Corporation shall renew its registration annually no later than
the fifteenth (15th) day of the fourth (4th) month after the close of the calendar year.
13
ARTICLE X
MISCELLANEOUS
10.1 Accounting Period. The accounting period of the Corporation shall commence on
July 1 and shall end on June 30 each year.
10.2 Self-Dealing. In the exercise of voting right by Directors, no Director shall vote
on any issue, motion or resolution which directly or indirectly inures to his or her benefit
financially, except that such Director may be counted in order to qualify a quorum and, except as
the Board may otherwise direct, may participate in a discussion on such an issue, motion or
resolution if he or she first discloses the nature of his or her interest subject to the applicable
provisions of the CCC.
10.3 Bonding. All Directors, officers or employees handling funds shall be properly
bonded, if so required by the Board.
10.4 Gifts and Donations. The Board may accept on behalf of the Corporation any
contributions, gifts, bequests or devises for the general purpose or for any special purpose of the
Corporation not in violation of the Corporation’s Articles of Incorporation.
10.5 Contracts. Unless otherwise set forth in these Bylaws the Board may authorize
any officer or officers, agent or agents of the Corporation, in addition to the officers so
authorized by these Bylaws, to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the Corporation, and such authority may be general or confined to
specific instances.
10.6 Checks; Drafts; etc. Except as otherwise set forth in these Bylaws, all checks,
drafts, or orders for the payment of money, notes, or other evidences of indebtedness issued in
the name of the Corporation, shall be signed by such officer or officers, agent or agents, of the
Corporation and in such manner as shall from time to time be determined by resolution of the
Board.
10.7 Conflicts of Interest. The Corporation, through its Board, may promulgate from
time to time a conflict of interest policy and other policies according to the current law then in
effect to be adhered to by its officers and Directors.
10.8 Inspection of Articles and Bylaws. The Corporation shall keep at its principal
executive office in California the original or a copy of its Articles of Incorporation endorsed and
certified by the Secretary of State and its Bylaws certified by the Secretary, as amended or
otherwise altered to date, which shall be open to inspection by Directors at all reasonable times
during office hours.
10.9 Inspection by Public. In accordance with section 6104 of the Code, copies of the
Corporation’s application for tax exemption and any papers submitted in support of such
application shall be made available by the Corporation for inspection at the request of any
14
individual during regular business hours at the Corporation’s principal place of business and at
any regularly maintained regional or district office of the Corporation having three or more
employees.
10.10 Interpretation and Construction. Any conflict between these Bylaws and the
Articles of Incorporation shall be resolved in favor of the Articles of Incorporation. Unless the
context requires otherwise, the general provisions, rules of construction, and definitions in the
California Nonprofit Public Benefit Corporation Law shall govern the construction of these
Bylaws.
10.11 Dissolution. The Corporation shall not be voluntarily dissolved, except by
approval of the Board. In the event of dissolution of the Corporation in any manner and for any
cause, after the payment or adequate provision for the payment of all of its debts and liabilities,
all of the remaining funds, assets and properties of the Corporation shall be paid or distributed as
provided for in the Articles of Incorporation.
10.12 Job Descriptions and Policies. Notwithstanding any other provision in these
Bylaws to the contrary, the Board may, at its option, implement job descriptions and policies for
Directors, committee members, officers and other employees.
15
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of PRIORITY ONE CV, a
California nonprofit public benefit corporation (“Corporation”); and
2. That the foregoing Bylaws, comprising fourteen (14) pages, constitute the
Bylaws of said Corporation, as duly approved by the Board of Directors of said Corporation at a
meeting duly held on April 14, 2020.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of said
Corporation this ___ day of __________, 2020.
_________________________________________
Jan Harnik, Secretary
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No. C40220
Page 1 of 7
AGREEMENT BETWEEN
PRIORITY ONE CV
AND THE CITY OF PALM DESERT AS IT RELATES TO
FUNDING AND PARTICIPATION
This JOINT FUNDING AGREEMENT (“Agreement”) is made by and between the CITY
OF PALM DESERT (“CITY”), a municipal corporation, and PRIORITY ONE CV
(“POCV”), a nonprofit public benefit corporation, hereinafter sometimes referred to as
“the Parties”.
WITNESSETH
WHEREAS, Priority One CV (POCV) is a California nonprofit public benefit
corporation whose purpose is to enhance the education, arts, environment and
economic resources for the residents and guests of the Greater Coachella Valley and
region and engage in any activities in furtherance of the purposes for which the
Corporation was formed; and
WHEREAS, POCV is organized and operated exclusively for social welfare
purposes within the meaning of Section 501(c)(4) of the Internal Revenue Code of
1986, as amended (“Code”), and shall not carry on any other activities not permitted to
be carried on by or inconsistent with a corporation exempt from federal income tax
under Section 501(c)(4) of the Code; and
WHEREAS, POCV is intended to be a regional effort and members appointed by
the CITY do not have a controlling majority of the Board; and
WHEREAS, at its regular meeting of March 12, 2020, the City Council authorized
the “Finance Director to appropriate $100,000 from the unobligated Economic
Development Reserve Fund to provide seed capital for the 501(c)(4)”. The 501(c)(4),
now identified as Priority 1 Coachella Valley “POCV”, is to provide strategic planning
and implementation of initiatives to secure a 4-year stand-alone CSU Palm Desert
campus; and
WHEREAS, at its regular meeting of May 14, 2020 the City Council authorized a
reallocation of a portion of the $2,000,000 set aside for the Invest Palm Desert
Economic Development Incentive Program to POCV in the amount of $50,000 noting
that the effects of the COVID-19 pandemic lessened the opportunity for community
partners to contribute to this effort; and
WHEREAS, it is the intent and desire of the Parties to enter into this agreement
to provide seed funding in the amounts noted above as a one-time payment for seed
funding for POCV as a legally separate organization from the CITY.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter stated, the Parties agree as follows:
Section 1. Purpose:
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No. C40220
Page 2 of 7
(a) This Agreement is made for the express purpose of providing a one-time
payment of One Hundred Fifty Thousand Dollars and NO/100 ($150,000)
as seed funding to assist with the establishment of POCV, a legally
separate organization from the City, to further its efforts to enhance the
education, arts, environment and economic resources for the residents
and guests of the Greater Coachella Valley;
(b) The Parties understand that the CITY is not required nor does the CITY
intend to imply that the CITY will contribute any additional amounts other
than the $150,000 seed money, going forward;
Section 2. Term:
This Agreement shall be effective upon full execution and continue in effect until
the earlier of; 1) 180 days after the audited financial statements are presented by POCV
wherein the CITY’s seed money has been expended, or 2) terminated in accordance
with the termination provisions set forth hereinafter. The Parties contemplate that this
Agreement will remain in effect for the full term, and be subject to annual review. The
Parties agree that extensions may also be granted, after the term expiration, by written
agreement of the Parties.
Section 3. Funding:
(a) POCV shall use funds provided by CITY for the purposes specified in this
Agreement. POCV shall provide to the CITY a copy of the annual financial
report no later than 30 days after the report is available to the public as
well as such monthly/quarterly detail as CITY may reasonably request.
(b) It is anticipated that future operating funds of POCV will be derived from
grants, donations, and contributions of cities, community partners,
individuals, and businesses and no one government participating entity
will have an ongoing financial burden to fund POCV activities.
(c) Funds are to be used in support of the POCV mission, which includes an
initiative to secure a standalone, 4-year campus of the California State
University system at the Palm Desert campus location. Funds may be
used at the discretion of the Board, so long as the majority of the Board
supports use of the funds and evidenced by a formal Board vote pursuant
to the bylaws of POCV. Activities for which funds may be directed include,
but are in no way limited to: paying for consultants and lobbyists that
advance the mission and initiatives of the organization, professional
services such as accounting and management services, fees and other
administrative costs associated with operation of POCV, as well as
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No. C40220
Page 3 of 7
purchase of equipment such as computers or other technological supplies
required.
Section 4. Staffing.
It is understood that POCV will contract for, or employ such staff and support
personnel as may be deemed necessary or desirable. It is further understood that such
staff will not be employees of the CITY.
Section 5. Termination and Amendments.
(a) This Agreement may be terminated by the CITY, with or without cause, at
any time after the CITY giving thirty (30) days' written notice to POCV of
said termination. Upon such notice being properly given, this Agreement
shall terminate upon the date specified in the written notice.
(c) This Agreement may be amended or modified only by written agreement
signed by both parties, and failure on the part of either party to enforce
any provision of this Agreement shall not be construed as a waiver of the
right to compel performance of such provision or provisions.
Section 6. Relationship of Parties.
It is understood that the contractual relationship of POCV to the City is that of
Independent Contractor; POCV is not the agent of the City, nor an employee of the City.
City shall not direct the manner in which POCV provides its services, but POCV shall be
responsible for the results achieved. City shall exercise no control over the manner and
details of POCV staffing. The City is not responsible for salary reimbursement or
provisions.
Section 7. Assignment.
This Agreement shall not be assigned or duties hereunder delegated by POCV
without the written consent of the City.
Section 8. Other Obligations.
The responsibilities and obligations of each Party to this Agreement shall be
solely as provided in this Agreement, or as may be provided for in supplemental
agreements to be executed by the Parties.
Section 9. Insurance.
(a) General Liability Insurance. POCV shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office
form CG 00 01, in an amount not less than $1,000,000 per occurrence,
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No. C40220
Page 4 of 7
$2,000,000 general aggregate, for bodily injury, personal injury, and property
damage. The policy must include contractual liability that has not been amended.
Any endorsement restricting standard ISO “insured contract” language will not be
accepted.
OTHER INSURANCE PROVISIONS
(d) Proof of Insurance. POCV shall provide certificates of insurance to City as
evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers’ compensation. Insurance certificates and
endorsements must be approved by City’s Risk Manager prior to commencement
of performance.
(e) Primary/Non-Contributing. Coverage provided by POCV shall be primary
and any insurance or self-insurance procured or maintained by City shall not be
required to contribute with it. The limits of insurance required herein may be
satisfied by a combination of primary and umbrella or excess insurance. Any
umbrella or excess insurance shall contain or be endorsed to contain a provision
that such coverage shall also apply on a primary and non-contributory basis for
the benefit of City before the City’s own insurance or self-insurance shall be
called upon to protect it as a named insured.
(f) Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against the
City of Palm Desert, its elected or appointed officers, agents, officials, employees
and volunteers, or shall specifically allow POCV or others providing insurance
evidence in compliance with these specifications to waive their right of recovery
prior to a loss. POCV hereby waives its own right of recovery against the City of
Palm Desert, its elected or appointed officers, agents, officials, employees and
volunteers.
(g) Requirements Not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage, limits
or other requirements, or a waiver of any coverage normally provided by any
insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of other coverage, or a waiver of
any type. If the POCV maintains higher limits than the minimums shown above,
the City requires and shall be entitled to coverage for the higher limits maintained
by the POCV. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No. C40220
Page 5 of 7
(h) Additional Insured Status. General liability policy shall provide or be
endorsed to provide that the City of Palm Desert and its officers, officials,
employees, agents, and volunteers shall be additional insureds under such
policies. This provision shall also apply to any excess/umbrella liability policy.
(i) Pass Through Clause. POCV agrees to ensure that its sub-consultants,
sub-contractors, and any other party involved with providing After School
Program these services, provide the same minimum insurance coverage and
endorsements required of POCV. POCV agrees to monitor and review all such
coverage and assumes all responsibility for ensuring that such coverage is
provided in conformity with the requirements of this section. POCV agrees that
upon request, all agreements with consultants, subcontractors, and others
engaged in the project will be submitted to City for review.
(j) Self-Insured Retentions. Any self-insured retentions must be declared to
and approved by the City’s Risk Manager. City reserves the right to require that
self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these specifications unless
approved by City.
Section 10. Hold Harmless.
The POCV's relationship to the City is solely that of an independent contractor. No
employee of the POCV is an employee or agent of the City in any respect, and POCV
shall be solely responsible for all activities of its employees, agents, its own
independent contractors and third parties for all losses, costs, damages or injuries
(including wrongful death) caused by or arising out of any act or omission of the POCV,
its employees, agents, or independent contractors relating to the services performed or
to be performed by POCV hereunder. POCV specifically agrees to save and hold
harmless the City, its officers, employees and agents from any liability or claim of
liability arising from performance under this Agreement.
Section 11. Notices:
Notices required or permitted hereunder shall be sufficiently given if made in writing and
delivered either personally, registered or certified mail, or other means deemed
acceptable for delivery of such notices, as follows:
To: Priority One CV
c/o Coachella Valley Economic Partnership
ATTN: Joe Wallace, Chairman
3111 East Tahquitz Canyon Way
Palm Springs, CA 92262
To: City of Palm Desert
ATTN: Lauri Aylaian, City Manager
73510 Fred Waring Drive
Palm Desert, CA 92260
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No. C40220
Page 6 of 7
In Witness Thereof, this Agreement and memorandum of understanding has
been executed this 23rd day of July, 2020.
PRIORITY ONE CV CITY OF PALM DESERT
a Municipal Corporation
Signature GINA NESTANDE, MAYOR
Print Name
Title
ATTEST:
GRACE L. ROCHA, ACTING CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
APPROVED AS TO FORM:
______
ROBERT W. HARGREAVES, CITY ATTORNEY
BEST, BEST & KRIEGER, LLP
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No. C40220
Page 7 of 7
Acknowledgment
State of California )
) SS.
County of _____________ )
On _______________, 2020 before me, _______________________,
personally appeared ________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) 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. (Seal)
Signature _____________________________
Acknowledgment
State of California )
) SS.
County of______________________ )
On _______________, 2020 before me, _______________________,
personally appeared ________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) 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. (Seal)
Signature _____________________________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No C40220.
2ND REPLACEMENT
Page 1 of 8
AGREEMENT BETWEEN
PRIORITY ONE CV
AND THE CITY OF PALM DESERT AS IT RELATES TO
FUNDING AND PARTICIPATION
This JOINT FUNDING AGREEMENT (“Agreement”) is made by and between the CITY
OF PALM DESERT (“CITY”), a municipal corporation, and PRIORITY ONE CV
(“POCV”), a nonprofit public benefit corporation, hereinafter sometimes referred to as
“the Parties”.
WITNESSETH
WHEREAS, Priority One CV (POCV) is a California nonprofit public benefit
corporation whose purpose is to enhance the education, arts, environment and
economic resources for the residents and guests of the Greater Coachella Valley and
region and engage in any activities in furtherance of the purposes for which the
Corporation was formed; and
WHEREAS, POCV is organized and operated exclusively for social welfare
purposes within the meaning of Section 501(c)(4) of the Internal Revenue Code of
1986, as amended (“Code”), and shall not carry on any other activities not permitted to
be carried on by or inconsistent with a corporation exempt from federal income tax
under Section 501(c)(4) of the Code; and
WHEREAS, POCV is intended to be a regional effort and members appointed by
the CITY do not have a controlling majority of the Board; and
WHEREAS, at its regular meeting of March 12, 2020, the City Council authorized
the “Finance Director to appropriate $100,000 from the unobligated Economic
Development Reserve Fund to provide seed capital for the 501(c)(4)”. The 501(c)(4),
now identified as Priority 1 Coachella Valley “POCV”, is to provide strategic pla nning
and implementation of initiatives to secure a 4-year stand-alone CSU Palm Desert
campus; and
WHEREAS, at its regular meeting of May 14, 2020 the City Council authorized a
reallocation of a portion of the $2,000,000 set aside for the Invest Palm De sert
Economic Development Incentive Program to POCV in the amount of $50,000 noting
that the effects of the COVID-19 pandemic lessened the opportunity for community
partners to contribute to this effort; and
WHEREAS, it is the intent and desire of the Pa rties to enter into this agreement
to provide seed funding in the amounts noted above as a one -time payment for seed
funding for POCV as a legally separate organization from the CITY.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter stated, the Parties agree as follows:
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No C40220.
2ND REPLACEMENT
Page 2 of 8
Section 1. Purpose:
(a) This Agreement is made for the express purpose of providing a one -time
payment of One Hundred Fifty Thousand Dollars and NO/100 ($150,000)
as seed funding to assist with the establishment of POCV, a legally
separate organization from the City, to further its efforts to enhance the
education, arts, environment and economic resources for the residents
and guests of the Greater Coachella Valley;
(b) The Parties understand that the CITY is not required nor does the CITY
intend to imply that the CITY will contribute any additional amounts other
than the $150,000 seed money, going forward;
Section 2. Term:
This Agreement shall be effective upon full execution and continue in effect until
the earlier of; 1) 180 days after the audited financial statements are a financial report is
presented by POCV wherein the CITY’s seed money has been expended ., or 2)
terminated in accordance with the termination provisions set forth hereinafter. The
Parties contemplate that this Agreement will remain in effect for the full term, and be
subject to annual review. The Parties agree that extensions may also be granted, after
the term expiration, by written agreement of the Parties.
Section 3. Funding:
(a) POCV shall use funds provided by CITY for the purposes specified in this
Agreement. POCV shall provide to the CITY a copy of the annual financial
report no later than 30 days after the report is available to the public as
well as such monthly/quarterly detail as CITY may reasonably request.
(b) It is anticipated that future operating funds of POCV will be derived from
grants, donations, and contributions of cities, community partners,
individuals, and businesses and no one government participating entity
will have an ongoing financial burden to fund POCV activities.
(c) Funds are to be used in support of the POCV mission, which includes an
initiative to secure a standalone, 4-year campus of the California State
University system at the Palm Desert campus location. Funds may be
used at the discretion of the Board, so long as the majority of the Board
supports use of the funds and evidenced by a formal Board vote pursuant
to the bylaws of POCV. Activities for which funds may be directed include,
but are in no way limited to: paying for consultants and lobbyists that
advance the mission and initiatives of the organization, professional
services such as accounting and management services, fees and other
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No C40220.
2ND REPLACEMENT
Page 3 of 8
administrative costs associated with operation of POCV, as well as
purchase of equipment such as computers or other technological supplies
required.
Section 4. Staffing.
It is understood that POCV will contract for, or employ such staff and support
personnel as may be deemed necessary or desirable. It is further understood that such
staff will not be employees of the CITY.
Section 5. Termination and Amendments.
(a) This Agreement may be terminated by the CITY, with or without cause, at
any time after the CITY giving thirty (30) days' written notice to POCV of
said termination. Upon such notice being properly given, this Agreement
shall terminate upon the date specified in the written notice.
(c) This Agreement may be amended or modified only by written ag reement
signed by both parties, and failure on the part of either party to enforce
any provision of this Agreement shall not be construed as a waiver of the
right to compel performance of such provision or provisions.
Section 56. Relationship of Parties.
It is understood that the contractual relationship of POCV to the City is that of
Independent Contractor; POCV is not the agent of the City, nor an employee of the City.
City shall not direct the manner in which POCV provides its services, but POCV shall be
responsible for the results achieved. City shall exercise no control over the manner and
details of POCV staffing. The City is not responsible for salary reimbursement or
provisions.
Section 67. Assignment.
This Agreement shall not be assigned or duti es hereunder delegated by POCV
without the written consent of the City.
Section 78. Other Obligations.
The responsibilities and obligations of each Party to this Agreement shall be
solely as provided in this Agreement, or as may be provided for in supplem ental
agreements to be executed by the Parties.
Section 89. Insurance.
~~~~~~~~~~~ DRAFT FOR DISCUSSION PURPOSES ONLY~~~~~~~~~~~~~
Contract No C40220.
2ND REPLACEMENT
Page 4 of 8
(a) General Liability Insurance. POCV shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office
form CG 00 01, in an amount not less than $1,000,000 per occurrence,
$2,000,000 general aggregate, for bodily injury, personal injury, and property
damage. The policy must include contractual liability that has not been amended.
Any endorsement restricting standard ISO “insured contract” language will not be
accepted.. POCV shall maintain commercial general liability insurance, on a
primary basis. with coverage at least as broad as Insurance Services Office form
CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000
general aggregate, for bodily injury, personal injury, and property damage. The
policy shall be endorsed that the City of Palm Desert and its officers, officials,
employees, agents, and volunteers are additional insureds and to waive
subrogation against the aforementioned parties.
OTHER INSURANCE PROVISIONS
(d) Proof of Insurance. POCV shall provide certificates of insurance to City as
evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers’ compensation. Insurance certificates and
endorsements must be approved by City’s Risk Manager prior to commencement
of performance.
(e) Primary/Non-Contributing. Coverage provided by POCV shall be primary
and any insurance or self -insurance procured or maintained by City shall not be
required to contribute with it. The limits of insurance required herein may be
satisfied by a combination of primary and umbrella or excess insurance. Any
umbrella or excess insurance shall contain or be endorsed to contain a provision
that such coverage shall also apply on a primary and non -contributory basis for
the benefit of City before the City’s own insurance or self -insurance shall be
called upon to protect it as a named insured.
(f) Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against the
City of Palm Desert, its elected or appointed officers, agents, officials, employees
and volunteers, or shall specifically allow POCV or others providing ins urance
evidence in compliance with these specifications to waive their right of recovery
prior to a loss. POCV hereby waives its own right of recovery against the City of
Palm Desert, its elected or appointed officers, agents, officials, employees and
volunteers.
(g) Requirements Not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage, limits
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or other requirements, or a waiver of any coverage normally provided by any
insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of other coverage, or a waiver of
any type. If the POCV maintains higher limits than the minimums shown above,
the City requires and shall be entitled to coverage for the higher limits maintained
by the POCV. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
(h) Additional Insured Status. General liability policy shall provide or be
endorsed to provide that the City of Palm Desert and its officers, officials,
employees, agents, and volunteers shall be additional insureds unde r such
policies. This provision shall also apply to any excess/umbrella liability policy.
(i) Pass Through Clause. POCV agrees to ensure that its sub -consultants,
sub-contractors, and any other party involved with providing After School
Program services, provide the same minimum insurance coverage and
endorsements required of POCV. POCV agrees to monitor and review all such
coverage and assumes all responsibility for ensuring that such coverage is
provided in conformity with the requirements of this section. POCV agrees that
upon request, all agreements with consultants, subcontractors, and others
engaged in the project will be submitted to City for review.
(j) Self-Insured Retentions. Any self-insured retentions must be declared to
and approved by the City’s Risk Manager. City reserves the right to require that
self-insured retentions be eliminated, lowered, or replaced by a deductible. Self -
insurance will not be considered to comply with these specifications unless
approved by City.
Section 910. Hold Harmless.
The POCV's relationship to the City is solely that of an independent contractor. No
employee of the POCV is an employee or agent of the City in any respect, and POCV
shall be solely responsible for all activities of its employees, agents, its own
independent contractors and third parties for all losses, costs, damages or injuries
(including wrongful death) caused by or arising out of any act or omission of the POCV,
its employees, agents, or independent contractors relating to the services performed or
to be performed by POCV hereunder. POCV specifically agrees to save and hold
harmless the City, its officers, employees and agents from any liability or claim of
liability arising from performance under this Agreement.
Section 101. Notices:
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Notices required or permitted hereunder shall be sufficiently given if made in writing and
delivered either personally, registered or certified mail, or other means deemed
acceptable for delivery of such notices, as follows:
To: Priority One CV
c/o Coachella Valley Economic Partnership
ATTN: Joe Wallace, Chairman
3111 East Tahquitz Canyon Way
Palm Springs, CA 92262
To: City of Palm Desert
ATTN: Lauri Aylaian, City Manager
73510 Fred Waring Drive
Palm Desert, CA 92260
In Witness Thereof, this Agreement and memorandum of understanding has
been executed this 23rd day of July, 2020, _________.
PRIORITY ONE CV CITY OF PALM DESERT
a Municipal Corporation
Signature GINA NESTANDE, MAYOR
Print Name
Title
ATTEST:
GRACE L. ROCHA, INTERM CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
APPROVED AS TO FORM:
ROBERT W. HARGREAVES, CITY ATTORNEY
BEST, BEST & KRIEGER, LLP
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Acknowledgment
State of California )
) SS.
County of _____________ )
On _______________, 2020 before me, _______________________,
personally appeared ________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) 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. (Seal)
Signature ___________________________________
Acknowledgment
State of California )
) SS.
County of______________________ )
On _______________, 2020 before me, _______________________,
personally appeared ________________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) 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. (Seal)
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Signature ___________________________________