HomeMy WebLinkAboutC24410 Multiple Species Habitat Plan (JPA) - Creation of C.V. Conservation CmsnContract No. C24410
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
REQUEST: Update of Multiple Species Habitat Plan and consideration of a Joint
Powers Agreement (JPA) creating the Coachella Valley Conservation
Commission (CVCC) which will complete the processing and
implement the plan.
SUBMITTED BY: Phil Drell, Director of Community Development
DATE: October 13, 2005
CONTENTS:
Recommendation
Discussion
Memorandum from CVAG General Counsel
Joint Powers Agreement
Recommendation:
By minute motion authorize Mayor to execute agreement and appoint a
CVCC Commissioner and an alternate.
Discussion:
The Multiple Species Habitat Conservation Plan is a comprehensive program
designed to address all existing and anticipated future endangered species
issues valley -wide through a series of conservation programs centered around
the acquisition and creation of preserves.
After nearly ten years of study, CVAG is scheduled to approve the public draft
plan on December 5, 2005. The Cities, County and other participating agencies
are expected to complete their approval process by March. Once all the required
participants have approved the plan, the state and federal wildlife agencies will
issue "take permits" allowing development activity to destroy habitat in areas
outside the designated preserves. With the exception of bighorn sheep hillside
habitat, there are no designated preserves in the city.
Contract No. C2441i
Staff Report
Multiple Species Habitat Plan
Page 2
October 13, 2005
Plan impacts will be limited to payment of mitigation fees and the trails program.
The resolution of endangered species issues will simplify the development process
for both private and public projects, especially in regards to future 1-10 interchanges.
The JPA and Coachella Valley Conservation Commission (CVCC) is being created
to complete the adoption process and implement the plan including funding through
grants and collection of mitigation fees, acquisition and management of preserves,
and monitoring required conservation measures. The CVCC will be made up of
representatives from each member agency identified in the plan. Approval and
participation in the CVCC are recommended at this time since it allows the City to
fully participate in the final draft approval process. It will not precommit us to
approval of the plan.
Submitt d by:
Phil Urell
Director of Community Development
Approval:
Homer Croy
ACM for Development Services
( Wpdocsttm%sr%mulhspec.cc)
Approval:
Carlos L`. Ort a
City Manager
JOINT POWERS AGREEMENT
CREATING THE
COACHELLA VALLEY CONSERVATION COMMISSION
This Joint Powers Agreement ("Agreement") is made and
entered into, this 1st day of December, 2005 for
identification purposes only, pursuant to Government Code
Sections 6500 et seq., by and amongst the signatories
hereto. The signatories may include any of the following
public agencies:
(a) City of Cathedral City,
(b) City of Coachella,
(c) City of Desert Hot Springs,
(d) City of Indian Wells,
(e) City of Indio,
(f) City of La Quinta,
(g) City of Palm Desert,
(h) City of Palm Springs,
(i) City of Rancho Mirage,
(j) County of Riverside,
(k) Coachella Valley Water District, and
(1) Imperial Irrigation District.
The foregoing public agencies, upon execution of this
Agreement, are referred to hereinbelow, individually and
collectively, as "Party" or `Parties," "Member" or
"Members" and "Member Agency" or "Member Agencies."
The following public agencies shall be ex officio,
non -voting "Participants" on CVCC's governing board:
(m) Coachella Valley Association of Governments
( CVAG) ;
(n) Riverside County Flood Control and Water
Conservation District;
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(o) Riverside County Regional Parks and Open Space
District; and
(p) Riverside County Waste Management District.
RECITALS
Each of the Parties herein is a public agency. Each
is authorized and empowered to contract with the other
Parties for the joint exercise of powers pursuant to
California Government Code Sections 6500, et seq.
Each of the Parties has the authority and power to
prepare and implement habitat conservation plans for the
protection of rare, threatened and endangered species, and
to acquire, own, maintain and operate habitat reserves for
such species in connection with said habitat conservation
plans.
The formation of a single public agency would most
efficiently serve the interests of the Parties and
Participants by allowing for the joint exercise of the
aforementioned powers.
It is proposed that each of the Parties and
Participants has or shall consider the approval of the
Coachella Valley Multiple Species Habitat Conservation Plan
(the MSHCP) after appropriate review and consideration,
including compliance with all requirements of the
California Environmental Quality Act.
The Parties and Participants are intended as "Local
Permittees" pursuant to the MSHCP.
The MSHCP calls for the Members to form this joint
powers authority, the Coachella Valley Conservation
Commission (CVCC) .
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Pursuant to the MSHCP, CVCC is the venue whereby,
collectively, the Member Agencies shall oversee and
administer the MSHCP.
The Members desire to join together for the purposes
set forth above.
NOW, THEREFORE, it is agreed by and between the
Parties hereto as follows:
Article 1
Definitions
Section 1.1 Definitions. Unless otherwise defined
herein, or the context requires otherwise, the terms with
the initial cap letters that are used in this Agreement
shall have the same meaning as set forth in the MSHCP. As
used in this Agreement, unless the context requires
otherwise, the meaning of the terms set forth below shall
be as follows:
(a) "Accrue," in the context of the date that an
obligation of CVCC accrued, shall not refer to the date of
a demand or claim. Rather, where there is one act,
omission or event giving rise to the obligation, the date
of that one act, omission or event shall be the date the
obligation accrued. However, where an obligation arises
out of more than one act, omission or event, the accrual
date shall refer to the entire period of time running from
the first act, omission or event through the date of the
last act, omission or event related to the same obligation.
(b) "Commission" shall mean the governing legislative
body of CVCC.
(c) "Commissioner" shall mean the individual
designated by a Member Agency to serve as the Member's
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representative on the Commission. Except where the context
dictates otherwise, references to "Commissioner" shall
include a reference to the alternate designated by the
Represented Member Agency to serve in the absence of a
Commissioner.
(d) "CVAG" shall mean the Coachella Valley
Association of Governments.
(e) "Law" or "the Law" shall mean the Joint Exercise
of Powers Act, being Articles 1 and 2 of Chapter 5 of
Division 7 of Title 1 of the California Government Code
(Sections 6500, et seq.).
(f) "Member" or "Member Agency" shall mean a public
agency with voting rights in CVCC listed in subparagraph
(a) through (1) in the opening paragraph of this Agreement
that becomes a signatory to this Agreement or any new party
as permitted pursuant to Section 13.1 (Admission of New
Parties).
(g) "MSHCP" shall mean (i) the Coachella Valley
Multiple Species Habitat Conservation Plan, which is a
comprehensive, multiple species habitat conservation
planning program in the Coachella Valley area of Riverside
County, California that complies with the requirements of
Section 10(a)(1) of the Federal Endangered Species Act and
the California Natural Community Conservation Planning Act
of 2002; as well as (ii) any agreement implementing same.
(h) "Participant" refers to a public agency that is a
signatory to the MSHCP but not a party to this Agreement.
A Participant may attend Commission and other meetings of
CVCC to participate in discussions for implementing,
overseeing and administering the MSHCP. Participants'
obligations are limited to those outlined in their
respective Permit requirements in the MSHCP. They are not
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subject to assessment should the Commission determine
additional resources are necessary to administer the MSHCP
and consequently are non -voting Participants of CVCC.
(i) "Represented Member Agency" refers to the Member
Agency represented by a Commissioner, i.e., the Member
Agency that appointed a particular Commissioner.
(j) "Treasurer" for CVCC shall be the Treasurer of
CVAG (provided CVAG's Treasurer is a Member or a certified
public accountant) or any other certified public accountant
or Member designated by the Commission.
Article 2
Creation of CVCC
Section 2.1 Creation. There is hereby created
pursuant to the Law a public entity to be known as the
"Coachella Valley Conservation Commission," which shall be
an agency or entity that is separate from the Parties to
this Agreement.
Section 2.2 No Precommitment To MSHCP. The parties
are entering into this Agreement prior to the adoption of
the MSHCP for the purpose of allowing the proposed
Permittees to collectively prepare as necessary for the
issuance and acceptance of the Permit to be issued if the
MSHCP is ultimately adopted by the Member Agencies.
However, nothing herein is intended as a precommitment by a
Party to approve or adopt the MSHCP.
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Article 3
Powers and Duties of CVAG
Section 3.1 CVAG's Participation. CVAG shall be a
non -voting ex officio Participant of CVCC and shall have
the following powers and duties:
(a) To provide, under contract with CVCC, all
administrative services required by CVCC during the first
five (5) years of the implementation of the MSHCP; and
thereafter as the administrative services contract may be
renewed from time to time by CVCC;
(b) To empower its Executive Director to serve as
Secretary of CVCC;
(c) To exercise such other powers and duties as the
Commission deems necessary to achieve the purposes of this
Agreement.
Section 3.2 Principal Office. The principal office of
CVAG shall be the principal office of CVCC. The Commission
is hereby granted full power and authority to change said
principal office from said location to another within the
Coachella Valley.
Article 4
Term of Agreement
Section 4.1 Term. This Agreement shall become
effective and CVCC shall exist at such time as this
Agreement has been executed by at least a majority of the
public agencies identified in the first paragraph of this
Agreement. This Agreement shall be automatically
terminated and considered null and void in the event that,
after the Member Agencies which determine not to adopt the
MSHCP have withdrawn from CVCC, the MSHCP is not approved
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by the remaining Parties or the Permit contemplated thereby
is not issued by the Wildlife Agencies. Upon issuance of
the Permit, the term of this Agreement shall automatically
expire at such time as CVCC shall have no further
obligations pursuant to the MSHCP or the Permit.
Article 5
Membership
Section 5.1 Membership. Excluding ex-officio, non-
voting Participants, each public agency which has executed
or hereafter executes this Agreement, and any addenda,
amendments or supplement thereto, and which has not,
pursuant to the provisions hereof, withdrawn or been
terminated, shall be a Member of CVCC.
Article 6
Purposes and Powers
Section 6.1 Purpose. The purpose of this Agreement is
to create a public agency to collectively monitor the
Members' compliance with their responsibilities under the
MSHCP, and to do all acts related or incidental thereto,
either by CVCC alone or in cooperation with the California
Department of Fish and Game, U.S. Fish and Wildlife Service
and other entities, and to otherwise adopt, implement,
manage and administer the MSHCP. Prior to formal adoption
of the MSHCP and/or execution of the Implementing
Agreement, CVCC shall assist in the processing of the MSHCP
for adoption, related negotiations, environmental review,
editing, drafting, planning, promoting or other
administration required or related thereto.
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Within the jurisdictional boundaries of each Member
Agency, however, the adoption and amendment of general
plans, specific plans, community plans, zoning ordinances
and similar land use ordinances, and the granting of land -
use entitlements (collectively, "local land -use actions")
are matters within the sole and absolute discretion of that
Member Agency. Nothing herein shall be construed to
require the approval of such local land -use actions by
CVCC.
Section 6.2 General Powers. CVCC shall have the power
to exercise any power common to all the Members as
authorized by the Law and is hereby authorized to do all
acts necessary for the exercise of these common powers,
including, if adopted, any powers or authority implied or
expressed in the MSHCP and Implementing Agreement,
including, but not limited to, any of the following:
(a) To coordinate the finalization, adoption,
implementation, management and administration of the MSHCP;
(b) To make and enter into contracts, leases and
other agreements;
(c) To incur debt, liabilities or obligations;
(d) To acquire, hold and dispose of property by
purchase, lease, lease purchase or sale as necessary to the
full exercise of its powers;
(e) To lease, acquire, construct, manage, maintain
and operate any buildings, works or improvements;
(f) To sue and be sued in its own name;
(g) To contract for the services of engineers,
attorneys, planners, educators, scientists, technical
specialists, financial consultants and, separate and apart
therefrom, to employ such other agents, employees,
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consultants, advisors, independent contractors and other
staff as it deems necessary;
(h) To issue bonds, notes and other indebtednesses,
and to enter into installment sale and installment purchase
contracts, all as provided for in Section 11.9 (Issuance of
Bonds, Notes and Other Indebtedness);
(i) To apply for, accept and receive state, federal
or local licenses, permits, grants, loans or other aid from
any agency of the United States of America, the State of
California or other public or private entities;
(j) To receive gifts, contributions and donations of
property, funds, services and other forms of financial
assistance from persons, firms, corporations and any
governmental entity;
(k) To adopt rules, regulations, policies, bylaws and
procedures governing the operation of CVCC;
(1) To perform all acts necessary or proper to carry
out fully the purposes of this Agreement;
(m) To invest any money in the treasury pursuant to
California Government Code Section 6505.5 that is not
required for the immediate necessities of CVCC, as CVCC
determines is advisable, in the same manner and upon the
same conditions as local agencies pursuant to California
Government Code Section 53601;
(n) To the extent not hereinafter specially provided
for, to exercise any powers in the manner and according to
the methods provided under the laws applicable to the
County of Riverside; and
(o) Notwithstanding the powers described in this
Section 6.2, nothing in this Agreement shall limit the
local land -use actions or powers granted to a Member under
state law or charter and nothing in this Agreement shall be
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interpreted as a limitation on those local land -use actions
or powers.
Section 6.3 Implementation of the MSHCP. CVCC shall
provide guidance to Members on the implementation of the
MSHCP and will provide opportunities for public
participation in the decision -making process. Those duties
shall include but are not limited to the following:
(a) Upon due consideration and approval, sign the
Implementing Agreement and act as a Permittee under the
Permit;
(b) Consistent with the terms of the MSHCP, hire,
appoint, designate and/or contract with an Executive
Director, Land Manager and Monitoring Program
Administrator.
(c) Establish the Acquisition and Funding
Coordinating Committee, the Reserve Management Oversight
Committee, the Reserve Management Unit Committees and
designate the Monitoring Program Administrator;
(d) Establish a Trails Management Subcommittee to the
Reserve Management Unit Committee for the Santa Rosa and
San Jacinto Mountains Conservation Area;
(e) Establish policies as appropriate under which the
Acquisition and Funding Coordinating Committee will make
recommendations to CVCC;
(f) Identify and make decisions on Local Permittee
MSHCP Reserve System acquisitions where such decision is to
be made by CVCC pursuant to the MSHCP;
(g) Ensure adequate management of locally managed
Reserve Lands;
(h) Assist in the development of Reserve Management
Unit Plans;
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(i) Contract with outside entities for specific
services, such as land management and law enforcement, as
needed;
(j) Manage and coordinate the MSHCP local funding
plan as set forth in the MSHCP;
(k) Develop and implement financing strategies to
maximize funding sources;
(1) Develop an investment policy and review said
policy on an annual basis;
(m) Adopt an annual budget, including but not limited
to expenses associated with land acquisition, and the
Monitoring Program, Management Program and Adaptive
Management Program, consistent with the annual work plans
for same;
(n) Annually review development mitigation fee
remittance for compliance and accuracy;
(o) Prepare annual reports assessing the status of
the Permittees' compliance with the MSHCP and hold public
workshops to present the findings;
(p) Conduct an annual Rough Step analysis to ensure
the Reserve System is being assembled, over time, in a
configuration consistent with the MSHCP;
(q) Act as custodian of records for information
concerning MSHCP implementation;
(r) Maintain a record of the amount of Take and
habitat loss for each Local Permittee;
(s) Maintain a record of the amount of Take
Authorization to Participating Special Entities as set
forth in the Implementing Agreement;
(t) Grant Take Authorization to Participating Special
Entities and others as set forth in the Implementing
Agreement;
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(u) Acquire land and administer grant programs to
non-profit organizations and Permittees to conserve lands
that contribute to MSHCP Reserve Assembly;
(v) Coordinate conservation easement agreements with
landowners, seek grants and other funding sources to assist
with acquisition, and coordinate with other state and
federal acquisition programs in the Plan Area to ensure
efficiency and consistency among acquisition programs; and
(w) Hold regularly scheduled public meetings.
Article 7
Commission
Section 7.1 Governing Body. CVCC shall be governed by
a Commission consisting of a Commissioner representing each
Member Agency; except that each Supervisor's District of
the County of Riverside shall be represented by a
Commissioner. An alternate for each Commissioner may be
appointed by the Represented Member Agency, which alternate
shall meet the same qualifications as a Commissioner,
except that an alternate for a County Supervisor may be any
official elected to serve in any elected, county -wide
position. In the absence of the Commissioner, the
alternate shall have the same authority and power as the
Commissioner. Each Participant may also appoint a
Commissioner and alternate. ,Excluding ex officio
Participants, each Commissioner shall have the voting
rights provided for in Section 7.13 (Voting). Ex officio
Participants shall be non -voting members of the Commission.
The Commission shall exercise all powers and conduct all
business of CVCC, either directly or by delegation to other
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bodies or persons pursuant to this Agreement, the MSHCP and
applicable law.
Section 7.2 Qualifications. Excluding ex officio
Participants, each Commissioner shall be a current member
of the governing body of the appointing Member Agency.
Termination of office with the Represented Member Agency
shall automatically terminate membership on the Commission.
Except as to County Supervisors serving as Commissioners,
each Commissioner (and alternate, including any alternate
designated by the County) shall serve at the pleasure of
the governing body of the appointing Member (or appointing
Participant) and may be removed at any time, with or
without cause, in the sole discretion of said Member's (or
Participant's) governing body.
Section 7.3 Regular Commission Meetings. The
Commission shall hold at least one regular annual meeting
and shall provide for such other regular meetings as it
deems necessary. Meetings of the Commission shall be held
at such locations in the Coachella Valley and at such times
as may be designated from time to time by the Commission.
Section 7.4 Special Meetings of the Commission.
Subject to all noticing requirements of The Brown Act,
special meetings of the Commission may be called by the
Chair, to be held at such times and places within the
Coachella Valley as may be ordered by the Chair. A
majority of the Commissioners may also call a special
meeting for any purpose.
Section 7.5 Quorum. Except as otherwise provided in
this Agreement, CVCC shall act only upon a majority of a
quorum of the Commission. A quorum of any meeting of
Commissioners shall consist of a majority of the
Commissioners then designated by and serving on behalf of
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the Members. Ex officio, non -voting Participants shall not
be included when calculating the number of Commissioners
necessary to constitute a quorum or the number of votes
necessary to approve an action. In the event that a Member
Agency has failed to designate a Commissioner, or a Member
Agency's designated Commissioner has died, resigned, left
office, been terminated or is otherwise unwilling or unable
to act as the designating Member Agency's representative,
and a replacement Commissioner has not yet been designated,
and there is no designated alternate, such that a Member
Agency has no duly acting representative on the Commission,
that Member Agency's vacant Commission seat shall not be
included when calculating the number of Commissioners
necessary to constitute a quorum or the number of votes
necessary to approve an action. Except as otherwise
provided in this Agreement, every act or decision made by a
majority of the Commissioners present at a meeting duly
held at which a quorum is present is the act of the
Commission. In the absence of a quorum, any meeting of the
Commissioners may be adjourned from time to time by a vote
of the majority present, but no other business may be
transacted except as provided for in this Section. The
Commissioners present at a duly called or held meeting at
which a quorum is present may continue to transact business
until adjournment notwithstanding the withdrawal of enough
Commissioners to leave less than a quorum, if any action
taken, other than adjournment, is approved by at least that
number of Commissioners required to constitute a majority
of a quorum.
Section 7.6 Chair and Vice -Chair. The Commission
shall annually elect from its membership a Chair and Vice -
Chair to serve for a one-year term.
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Section 7.7 Conduct of Meetings. The Chair or, in the
absence of the Chair, the Vice -Chair, shall preside at all
meetings of the Commissioners.
Section 7.8 Resignation of a Commissioner. Any
Commissioner may resign effective on giving written notice
to the Commission and the other Member Agencies, unless the
notice specifies a later time for the effectiveness of such
resignation. A successor shall be appointed by the
Represented Member Agency as provided for in this
Agreement.
Section 7.9 Vacancies on the Commission. A vacancy on
the Commission shall exist (a) on the death or resignation
of any Commissioner, (b) at the end of any Commissioner's
term on the governing body of the Represented Member
Agency, (c) whenever the number of Commissioners is
increased, (d) upon termination by the Represented Member
Agency, or (d) on the failure of the Member Agencies to
appoint the full number of Commissioners authorized. A
vacancy shall be filled only by the Represented Member
Agency for whom a Commissioner is not then serving. Absent
notice to the contrary from the Represented Member Agency,
the alternate for the Represented Member Agency may
continue to act in the place of the vacating Commissioner.
Section 7.10 Other Officers. The Executive Director
of CVAG shall be the secretary of CVCC. Any officer,
employee or agent of any Member of CVCC may also be an
officer, employee, or agent of any of the Member Agencies.
CVCC shall have the power to appoint such additional
officers and to employ such employees and assistants as may
be appropriate. Each and all of said officers, employees
and assistants shall serve at the pleasure of CVCC and
shall perform such duties and shall have such powers as
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CVCC may, from time to time, determine. Any officer may
resign at any time by giving written notice to the
Secretary. Any such resignation shall be effective upon
receipt of such notice or at any later time specified in
the notice. Officers shall assume the duties of their
offices immediately after their appointment and shall hold
office until their successors are appointed, except in the
case of their removal or resignation. Vacancies shall be
filled by appointment of the Commissioners and such
appointee shall hold office until the appointment of his or
her successor.
Section 7.11 Minutes. The secretary of CVCC shall
cause to be kept minutes of regular, adjourned regular and
special meetings of the Commission. The Secretary shall
cause a copy of all minutes, along with copies of all
ordinances and resolutions, to be forwarded to each of the
Parties hereto.
Section 7.12 Rules. A majority of Commissioners may
adopt rules governing meetings if not inconsistent or in
conflict with this Agreement. In the absence of rules
adopted by the Commissioners, Roberts' Rules of Order, as
they may be amended from time to time, shall govern the
meetings of the Commission in so far as they are not
inconsistent or in conflict with this Agreement or any CVCC
bylaws.
Section 7.13 Voting. Except as otherwise provided by
this Agreement, each Commissioner shall have one vote.
Section 7.14 Compensation. Commissioners shall serve
without compensation from CVCC. For purposes of this
Section, "compensation" does not include reimbursement of
actual expenses or per diem.
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Article 8
Committees
Section 8.1 Committees. From time to time, and
in addition to the committees to be established pursuant to
the MSHCP, the Commission may create by majority vote
various other committees to carry on the business of CVCC.
Article 9
Conduct of Meetings
Section 9.1 Compliance with Brown Act. All meetings
of the Commission and other CVCC committees, including,
without limitation, regular, adjourned regular and special
meetings, shall be called, noticed, held and conducted in
accordance with applicable provisions of the Ralph M. Brown
Act, California Government Code Sections 54950, et seq.
Article 10
Employees
Section 10.1 CVCC Staff. CVCC may contract with CVAG
for staff services, retain its own staff, or contract with
another entity for services. Unless other employment is
approved by the Commission, the CVCC Executive Director may
utilize CVAG staff as may be necessary to accomplish the
purposes of CVCC. CVAG staff time, as well as office
expenses, direct and indirect overhead, shall be charged to
CVCC utilizing direct billing and other accounting
practices that provide for a clear separation of funds.
Section 10.2 Status. Where CVAG's or other Member
Agency's staff are utilized to accomplish the purposes of
CVCC, all of the privileges and immunities from liability,
exemption from laws, ordinances and rules, all pension,
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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 when engaged in the performance of any of the
functions and other duties under this Agreement. However,
no staff employed directly by CVCC, if any, shall be
deemed, by reason of their employment by CVCC, to be
employed by any of the Members or, by reason of their
employment by CVCC, to be subject to any of the employment
requirements of the Member Agencies.
Section 10.3 Legal Counsel. CVCC may appoint General
Counsel who shall provide legal advice and perform such
other duties as may be prescribed by the Commission.
Counsel to one or more of the Members shall be eligible to
serve as General Counsel to CVCC and such appointment shall
not, by itself, be deemed to be inconsistent, incompatible,
in conflict with or inimical to his or her duties as
counsel to the Member Agency or Agencies, consistent with
all applicable conflict -of -interest statutes and
regulations.
Article 11
Financial Provisions
Section 11.1 Fiscal Year. The fiscal year of CVCC
shall be from July 1 of each year to the succeeding June
30.
Section 11.2 Depositary. The Treasurer shall be the
depositary and have custody of all money of CVCC from
whatever source and shall perform the duties specified in
Government Code Section 6505.5. All funds of CVCC shall be
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strictly and separately accounted for, and regular reports
shall be rendered to the Commission and the Members of all
receipts and disbursements at least quarterly during the
fiscal year. The books and records of CVCC shall be open
to inspection by a Member or Commissioner at all reasonable
times upon reasonable notice. The Treasurer shall contract
with an independent certified public accountant to make an
annual audit of the accounts and records of CVCC, which
shall be conducted, at a minimum, in accordance with the
requirements of the State Controller under Section 26909 of
the California Government Code, and shall conform to
generally accepted auditing standards.
Section 11.3 Property Bonds. The Commission shall
from time to time designate the officers and persons, in
addition to the Treasurer, who shall have charge of,
handle, or have access to any property of CVCC. Each such
officer and person, including the Treasurer, shall file a
bond in an amount designated by the Commission. When
fixing the amount of such bonds, the Commission shall be
deemed to be acting for and on behalf of the Represented
Member Agencies in compliance with Government Code Section
6505.1
Section 11.4 Budget. As soon as practicable after the
effective date of this Agreement, and thereafter at least
thirty (30) days prior to the commencement of each fiscal
year, the Executive Director shall present a proposed
budget to the Commission for the forthcoming fiscal year.
Prior to the commencement of the fiscal year, the
Commission shall adopt a budget for the new fiscal year.
No expenditures in excess of those provided for in the
current, duly adopted budget shall be made without the
approval of the Commission.
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Section 11.5 Working Capital Account. A Working
Capital account, which is to be used for the purpose of
funding general overhead and administrative expenses for
the ongoing operations of CVCC, shall be established by the
Commission in an amount approved in connection with the
annual budget process.
Section 11.6 Additional Funding. In the event that
the Commission proposes to seek funding for a budget in
excess of the funds available from the funding mechanisms
set out in the Plan, an advance or grant may be requested
from CVAG and/or any Member Agency. Should such request be
declined, the Commission, by three -fourths (3/4)vote of the
Member Agencies, meaning an affirmative vote by three -
fourths (3/4) of the total number of Member Agencies, may
levy an assessment on Member Agencies. Said vote shall
include a determination as to the amount deemed necessary
and the manner of apportionment. Thus, notwithstanding the
fact that the County shall be represented by five
Commissioners, the County shall have only one vote on
issues of assessments or apportionment thereof.
The determination as to the apportionment of an
assessment shall be fair and reasonable given the purpose
for which the assessment is required and the degree to
which each Member is affected and/or benefited by the
contemplated expenditure. A Member Agency unable to
immediately fund an assessment shall be permitted to pay an
assessment in installments. Subject only to the
arbitration rights set out at Section 11.7, the
determination of the assessment to be paid by each Member
and the due date shall be final, binding and enforceable as
a term of this Agreement.
09/26/CS Final 20 Coachella Valley
Conservation Commission. JPA
Nothing in this Agreement shall be construed by the
Parties to require the expenditure of any money from the
general funds of a Party unless expressly authorized by the
appropriate governing body of that Party.
Section 11.7 Arbitration. Notwithstanding any other
provision herein, the parties agree as follows: Any
determination with respect to an assessment levied pursuant
to Section 11.6, 13.4 or 15.3 shall be subject to binding
arbitration at the request of any Party to which liability
is assigned; provided, however, that the request for
arbitration shall be made within ninety days of the date
that the Commission votes to impose the assessment. If the
Parties cannot agree on the method of arbitration and
selection of the arbitrator within ninety days of notice of
the request for arbitration, the arbitration shall be
administered by JAMS, or its successor, pursuant to its
Comprehensive Arbitration Rules and Procedures. The
arbitrator shall exercise his or her independent judgment
as to whether or not the Commission has abused its
discretion when it determined the manner of apportionment
of an assessment. The arbitrator may, in the Award,
allocate all or part of the costs of the arbitration,
including the fees of the arbitrator and the reasonable
attorneys' fees of the prevailing party. Judgment on the
arbitration award may be entered in any court having
jurisdiction.
Section 11.8 [Reserved.]
Section 11.9 Issuance of Bonds, Notes and Other
Indebtedness. CVCC may issue bonds, notes or other forms
of indebtedness if such issuance is approved by two-thirds
(2/3) vote of the Commission.
09/26/05 Final 21 Coachella Val_ev
Conservation Commission .:PA
Section 11.10 Disbursements. The Executive Director
shall request warrants from the Treasurer in accordance
with budgets approved by the Commission subject to
quarterly review by the Commission. The Treasurer shall
pay such claims or disbursements and such requisition for
payment in accordance with rules, regulations, policies,
procedures and bylaws adopted by the Commission.
Section 11.11 Accounts. All funds will be placed in
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 Section 6505 et seq. and any other
applicable laws. All revenues and expenditures shall be
reported to the Commission.
Section 11.12 Expenditures Within Approved Annual
Budget. Ali expenditures shall be made within the approved
annual budget. No expenditures in excess of those budgeted
shall be made without the approval of the Commission.
Article 12
Relationship of CVCC and Its Members
Section 12.1 Separate Entity. CVCC shall be a public
entity separate from the Parties to this Agreement and the
debts, liabilities and obligations of CVCC shall not be the
debts, liabilities or obligations of the Members. No
Member shall be jointly or severally liable for any debt or
obligation of CVCC or any of its Members. Specifically,
nothing herein is intended to give rise to any right in any
third party to enforce an obligation set out herein of one
Party to another Party to this Agreement. All property,
09/26/05 Final 22 Coachella Valley
Conserva-ion Commission, .:PA
equipment, supplies, funds and records of CVCC shall be
owned by CVCC, except as otherwise provided in this
Agreement.
Article 13
Admission and Withdrawal of Parties
Section 13.1 Admission of New Parties. Any public
agency identified in the first paragraph of this Agreement,
which public agency did not execute the Agreement when it
first went into effect, shall subsequently be admitted as a
Member upon request by that public agency's legislative
body and without further approval of the then existing
Member Agencies. The admission of said new Member shall be
evidenced by the execution of a written addendum to this
Agreement signed by the new Member. Additional public
entities not identified in the first paragraph of this
Agreement may become Members of CVCC upon such terms and
conditions as provided in the MSHCP. Admission of such
additional public entities shall be evidenced by the
execution of a written addendum to this Agreement signed by
all the Parties including the new Parties
Section 13.2 Withdrawal of Membership.
(a) Prior to Permit Issuance. A Member may withdraw
from CVCC at any time prior to the issuance of a Permit
pursuant to the MSHCP, and notwithstanding any other
provision herein, that Member shall have no continuing
liability for any assessments levied by CVCC after the
effective date specified in the notice of withdrawal.
(b) After Permit Issuance. After Permit issuance a
Member may withdraw by delivering written notice to the
Commission's secretary that the Member's legislative body
09/26/05 Final 23 Coachella valley
Conservation Cor-.Tiss:on JPA
has approved withdrawal and such withdrawal shall be
effective 90 days thereafter. Withdrawal after Permit
issuance shall not relieve the Member of its proportionate
share of any debt or other liability of CVCC that accrued
prior to the effective date of the Member's withdrawal,
provided notice of the potential liability was given by
CVCC to the Member prior to or within the first four years
of said Member's withdrawal from the CVCC. Withdrawal
shall result in the forfeiture of that Member's rights and
claims relating to the distribution of property and funds
upon termination of CVCC as set forth in Section 13.3
(Disposition of Property Upon Termination).
Section 13.3 Disposition of Property Upon Termination.
In the event of the termination of this Agreement, any
property interest remaining in CVCC following the discharge
of all obligations shall be disposed of as the Commission
shall determine with the objective of returning to each
Member a proportionate return on the contributions made by
each, less previous returns if any.
Section 13.4 Continuing Liability. Notwithstanding a
withdrawal of membership, a past Member Agency shall be
responsible to CVCC for its proportionate share, as
determined and approved by a three -fourths (3/4) vote of
the Member Agencies, of any liability of the CVCC Accruing
during the withdrawn Member's period of participation in
CVCC, provided notice of the potential liability was given
by CVCC to the Member prior to or within the first four
years of said Member's withdrawal from the CVCC. The
determination as to the apportionment of such an assessment
shall be fair and reasonable given the purpose for which
the assessment is required and the degree to which each
Member is affected and/or benefited by the contemplated
09/26/05 Final 24 Coachella Valley
Conservation Commission ;PA
expenditure. The Members acknowledge that, given the
possible variables, determination of a proper apportionment
may be difficult. Therefore, subject only to arbitration
rights set out at Section 11.7, the Members agree that the
Commission's good faith determination of a fair
apportionment shall be final, binding and enforceable as a
term of this Agreement. Any such assessment shall be paid
to CVCC within thirty (30) days of billing by CVCC.
Article 14
Provision for Bylaws
Section 14.1. Bylaws. As soon as practicable after the
first meeting of the Commission, the Commission shall cause
to be developed bylaws to govern the day-to-day operation
of CVCC.
Article 15
Contribution and Indemnity Among Members
Section 15.1 No Third Party Beneficiaries. This
Article shall reflect the Parties' rights and obligations
as by and among themselves. Nothing herein shall create
any right in any third party to enforce any right or
obligation set out in this Agreement as against any Party
hereto.
Section 15.2 Hold Harmless and Indemnity. Subject to
the provisions of Section 15.3 and provided that a Party
has acted in good faith and in accordance with this
Agreement, the MSHCP, the Implementing Agreement and the
Permit, CVCC shall defend with counsel acceptable to said
Party, indemnify and hold such Party free and harmless from
09/26/05 -ina_ 25 Coachella Valley
Conservation Commission JPA
any loss, liability or damage incurred or suffered by such
Party by reason of litigation arising from or as a result
of any.of the following: the Party's development
mitigation fee ordinance; the Party's participation in
CVCC; action taken to approve and/or implement the MSHCP;
claims of inverse condemnation or unconstitutional takings
against a Party as a result of or related to its
participation in the MSHCP; or any other act performed or
to be performed by the Party pursuant to this Agreement,
the MSHCP, the Implementing Agreement or the Permit;
provided, however that such indemnification or agreement to
hold harmless pursuant to this section shall be recoverable
only out of CVCC assets and not from other Parties. To the
extent CVCC's assets are insufficient to satisfy its
obligations under this Section, any Member Agency forced to
expend its own funds to satisfy what would otherwise be
CVCC's obligations shall be entitled to reimbursement from
CVCC.
Section 15.3 Limitations on Liability. CVCC shall be
authorized to defend, indemnify and hold harmless any
Commissioner, officer, agent or employee for actions taken
or not taken within the scope of authority given or granted
by CVCC and from and against any claim or suit arising out
of any act or omission of CVCC, the Commission or any
Commissioner, officer, agent or employee in connection with
this Agreement and may purchase insurance as the Commission
may deem appropriate for this purpose.
The Parties acknowledge that Section 895.2 of the
California Government Code provides that a Member is
jointly and severally liable for the torts of the joint
powers agency, but that Sections 895.4 and 895.6 of that
Code allow the members of a joint powers agency to
09/26/05 Final 26 Coachella valley
Conservatior. Commission JPA
contractually agree to indemnity and contribution
provisions that allow such liability to be apportioned
among the members based on their respective degree of fault
giving rise to the liability. The parties further
acknowledge that they have agreed at Section 15.2 above to
indemnify and defend those Member agencies against loss,
liability or damage suffered by a Member Agency
individually as a result of that Agency's good faith acts
taken pursuant to this Agreement or the MSHCP. Now,
therefore, in contemplation of such authority, the Parties
agree that, as among themselves, each shall assume that
portion of the liability imposed upon CVCC or any of its
Members, officers, agents or employees by law for injury
caused by any negligent or wrongful act or omission
occurring during the performance of this Agreement that is
not covered by insurance, that is determined by the
Commission to be that Member's proportionate share Accruing
during the Member's period of participation in CVCC. Said
determination shall be by three -fourths (3/4) vote of the
Member Agencies, meaning an affirmative vote of three -
fourths (3/4) of the total number of Member Agencies. The
Members acknowledge that, given the possible variables,
determination of a proper apportionment may be difficult.
Therefore, subject only to arbitration rights set out at
Section 11.7, the Members agree that the Commission's good
faith determination of a fair apportionment shall be final,
binding and enforceable as a term of this Agreement. Each
Member shall to the extent provided herein indemnify and
hold harmless the other Members for any loss, costs or
expenses that may be imposed on such other Members solely
by virtue of Section 895.2.
09/26/05 Final 27 Coachella Valley
Conservaticn Commission. JPA
Article 16
Miscellaneous Provisions
Section 16.1 Notices. Notices to Members hereunder
shall be sufficient if delivered to the principal office of
the respective Member.
Section 16.2 Amendments. This Agreement may be
amended or terminated, provided such amendment or
termination is consistent with the provisions of the MSHCP
and has been approved by each Member. The vote, assent or
approval of each Member shall be evidenced by a certified
copy of a resolution, minute order or similar writing of
the governing body of the Member Agency, filed with CVCC.
Section 16.3 Prohibition Against Assignment. No
Member may assign any right, claim or interest it may have
under this Agreement, and no creditor, assignee, or third -
party beneficiary of any Member shall have any right, claim
or title to any part, share, interest, fund, or asset of
CVCC. This Agreement shall be binding upon, and shall
inure to, the benefit of the successors of each Party.
Section 16.4 Agreement Complete. The foregoing
constitutes the full and complete Agreement of the Parties.
There are no oral understandings or agreements not set
forth in writing herein.
Section 16.5 Severability. 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 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.
09/26/05 Final 28 Coachella Valley
Conservation Commission JPA
Section 16.6 Multiple Originals. This Agreement may
be executed in counterparts, each of which shall be deemed
an original.
Section 16.7 Execution. The governing legislative
body of each Member has each authorized execution of this
Agreement, as evidenced by the authorized signatures below.
CITY OF CATHEDRAL CITY
Mayor Kathy De Rosa
City of Cathedral City
CITY OF COACHELLA
Mayor Jesse Villarreal
City of Coachella
CITY OF DESERT HOT SPRINGS
Mayor Matt Weyuker
City of Desert Hot Springs
CITY OF INDIAN WELLS
Mayor Ed Monarch
City of Indian Wells
09/26/05 Final
DATE
DATE
DATE
DATE
29 Coachella Valley
Conservation Commission. JPA
CITY OF INDIO
DATE
Mayor Melanie Fesmire
City of Indio
CITY OF LA QUINTA
DATE
Mayor Don Adolph
City of La Quinta
CITY OF PALM DESERT
DATE
Mayor Buford Crites
City of Palm Desert
CITY OF PALM SPRINGS
DATE
Mayor Ron Oden
City of Palm Springs
09/26/05 -ina; 30 Coache:la Valley
Conservation Commission JPA
COUNTY OF RIVERSIDE
DATE
Marion Ashley, Chair
Board of Supervisors
County of Riverside
COACHELLA VALLEY WATER DISTRICT
DATE
Peter G. Nelson, President
Coachella Valley Water District
Coachella, California
IMPERIAL IRRIGATION DISTRICT
DATE
Rudy Maldonado, President
Imperial Irrigation District
Imperial, California
09/26/05 Final 31 Coachella Vallev
Conservation Commission JPA
COMPLETE
MEMORANDUM
TO: Proposed CVMSHCP Permittees
FROM: Toni Eggebraaten, CVAG General Counsel
RE: Final Draft of JPA for the CVCC
DATE: September 30, 2005
The enclosed proposed Joint Powers Agreement is the document that will create the
Coachella Valley Conservation Commission ("CVCC"). CVAG's Executive Committee
unanimously approved the proposed Joint Powers Agreement in this final form on
September 26, 2005. The following outlines the more important terms of the agreement
as ultimately negotiated.
1. The document clearly provides that each of the member jurisdictions retains
ultimate land use authority for decisions within their respective boundaries.
2. Any member may withdraw at any time prior to permit issuance without
penalty. Please note that the permit cannot be issued until after the Plan has
been adopted by each of the participating jurisdictions.
3. Any assessments that might be approved by the Commission must be
apportioned in a manner that is fair and reasonable given the purpose for
which the assessment is required. Any member may require such a
determination be submitted to binding arbitration. The arbitrator is authorized
to exercise his/her independent judgment.
4. Each Member Agency will have one representative ("Commissioner") on the
governing body (the "Commission"), except that Riverside County shall have
one representative from each of the five County Supervisorial Districts. The
three Riverside County Districts that will be permittees (Flood Control and
Water Conservation District; Waste Management District; and Regional Parks
and Open -Space District) will not have separate representation. Each
Commissioner may have one alternative, which alternate must be an elected
official (including the County Supervisor's alternate).
5. Excluding a vote on assessments/apportionment, a majority vote of a quorum
of the Commissioners is necessary to pass any item. With respect to
assessments/apportionment, an affirmative vote of three -fourth's of the
member jurisdictions is necessary. Thus, the County of Riverside would only
have one vote with respect to an assessment/apportionment.
6. The JPA shall indemnify any member jurisdiction for claims arising out of
that jurisdiction's good faith act consistent with its obligations under the Plan
and any agreement implementing the Plan.
7. The Chair or a majority of the Commissioners may call for a Special Meeting.
The original proposal by Energy and Environmental Resources Committee
(E&E) to allow four Commissioners to call a Special Meeting was changed to
require a majority in order to stay consistent with the Ralph M. Brown Act.
The proposed Final Draft of the Joint Powers Agreement includes the most recent
recommended modifications made by the City of La Quinta in correspondence dated
September 15 and September 23, 2005. The recommended modifications were approved
by the CVAG Executive Committee and included in the Proposed Final JPA with the
exception of two:
1. Section 13.4 Continuing Liability — Recommended Wording: Beginning the Section
with, "Subject to the provision of 12.5." Executive Committee Action: not to be
included.
2. Section 15.2 Hold Harmless and Indemnify — Recommended Wording: Ending the
Section with the following sentence: "To the extent CVCC's funds are insufficient to
satisfy its obligations under this section, any Member Agency forced to expend its
own funds to satisfy what would otherwise be CVCC's objections shall be entitled to
reimbursement from CVCC and shall have the right to receive such reimbursement on
a priority basis from any funding the CVCC subsequently receives." Executive
Committee Action: add the following sentence at the end of Section 15.2: "To the
extent CVCC's assets are insufficient to satisfy its obligations under this Section, any
Member Agency forced to expend its own funds to satisfy what would otherwise be
CVCC's obligations shall be entitled to reimbursement from CVCC."
The next step in the formation of the CVCC JPA is the consideration of entering into this
agreement by the governing bodies of each of the proposed Member Agencies. CVAG
respectfully requests that each proposed Member Agency place consideration of the JPA
on the governing body's agenda as soon as possible. Once CVAG receives an adequate
number of approved CVCC JPA's from proposed CVMSHCP permittees, CVAG will
organize the first meeting of the CVCC. Nine CVCC Commissioners must be seated to
call the first meeting. Therefore, it would be most helpful to not only consider the JPA,
but also for your governing body to appoint a CVCC Commissioner and an alternate
CVCC Commissioner. Please notify CVAG of your action and appointments.
Finally, I want to extend my personal thanks to counsel for all of the proposed members,
as well as other staff and CVAG committee members for all of your suggestions and
comments. I truly believe that our collective efforts have resulted in a document that
carefully and thoughtfully serves the proposed member's mutual interests.
Feel free to contact John Wohlmuth or myself if you have continuing questions or
concerns.
End of memo.
Distribution List:
• City of Cathedral City Mayor, City Council, City Manager, City Attorney
• City of Coachella Mayor, City Council, City Manager, City Attorney
• City of Desert Hot Springs Mayor, City Council, City Manager, City Attorney
0 City of Indian Wells Mayor, City Council, City Manager, City Attorney
• City of Indio Mayor, City Council, City Manager, City Attorney
• City of La Quinta Mayor, City Council, City Manager, City Attorney
• City of Palm Desert Mayor, City Council, City Manager, City Attorney
• City of Palm Springs Mayor, City Council, City Manager, City Attorney
• City of Rancho Mirage Mayor, City Council, City Manager, City Attorney
• County of Riverside Board of Supervisors, County Executive Office, County Counsel
• Coachella Valley Water District Board of Directors, General Manager, General
Counsel
• Imperial Irrigation District Board of Directors, General Manager, General Counsel