HomeMy WebLinkAboutC-1775 - Newport-Irvine Waste Water Management Planning Agency; see also C-1804.. .L.� .. 1 ,. \ /r . I
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FIRST AMENDED JOINT EXERCISE OF
POWERS AGREEMENT CREATING NEWPORT - IRVINE
WASTE - MANAGEMENT PLANNING AGENCY (NIWA)
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I. .
R E C I T A L S
A. The Newport- Irvine Waste - Management Agency (known as
"NIWA ") was created by an agreement dated March 28, 1975, and ap-
proved by and entered into between Irvine Ranch Water District and
County Sanitation District No. 5 of Orange County.
B. NIWA was first organized for the primary purpose of
qualifying and acting as an agency under Section 208 of the Federal
Water Pollution Control Act and agencies promulgated pursuant thereto.
C. Changes circumstances have indicated that it is no longer
possible in the foreseeable future for NIWA to act as a 208 agency,
and the intention is to modify the agency to provide'for studies
and assistance to the State Water Resources Control Board.
D. It is desired to provide that the Amended Agreement shall
consist of one or more of the following agencies:
(a) County Sanitation District No. 5 of Orange County;
(b) Orange County Water District;
(c) City of Newport Beach;
(d) City of Irvine;
(e) County of Orange;
(f) Orange County Flood Control District;
(g) Orange County Harbors, Beaches and Parks District;
and such other additional entities as are subsequently included herein
as Member Agencies pursuant to the provisions of Section 36 of this
Agreement.
E. The hereinabove named parties include within their existing
boundaries territory including -or related to the San Diego Creek
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Watershed or Newport Bay or both.
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F. Irvine Ranch Water District is undertaking the formulation
of regional plans for facilities for the collection, treatment,
disposal and reclamation of wastewater from within the hereinabove
described area which in part is tributary to Newport Bay, as well
as other areas which partly are within the boundaries of the Orange
County Water District, all of which are entities being situated in
the County of Orange.
G: All above - listed parties and potential parties to this
Agreement possess the power and authorization to conduct planning
and other studies into water quality and other matters of the San
Diego Creek Watershed area, either directly or in conjunction with
another entity or entities.
H. An area -wide waste treatment management planning process
and resulting,plan.for the San Diego Creek- Newport.Bay Area maybe .
compatible with ascertaining the existence of and solution to any
existent or future water quality and other matters that now or in
the future may be existent and such an effort can be achieved effec-
tively through the cooperative action of the parties to this Agree-
ment, operating through an entity established by this joint exercise
of powers agreement either directly or in conjunction with another
entity or entities.
I. Each of the parties is authorized to contract with each
of the other parties to this Agreement for the joint exercise of
the common powers set forth herein pursuant to the authorization
set forth in Article I, Chapter 5, Division 7, Title I of the Govern-
ment Code.
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J. The parties to this Agreement and the entity hereby created
is intended to be and is comprised to be representative of local govern-
mental agencies in the San Diego Creek Watershed - Newport Bay Area.
ii K. The governing body of the entity hereby established,
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except as to the Director of the Department of Fish and Game or his
designee, shall be comprised of persons holding offices on the
governing body of the Member Agency whom they represent on the gov-
erning body of the entity established by this Agreement, which gov-
erning body shall be reflective of the local governmental agencies
in the hereinabove- described area.
L. In the event that.in the future circumstances change,
then it is anticipated that NIWA would have the power to be designated
a planning agency under Section 208 of the Federal Water Pollution
Control Act and regulations established pursuant thereto.
f II.
COVENANTS
In consideration of the mutual promises and covenants herein
contained, the parties hereto agree as follows:
.2II.
PURPOSE AND POWERS
1.. Agency Created. There is hereby created a public entity
to be known as the "Newport- Irvine Waste - Management Planning Agency
(NIWA)." The Agency is formed by this Agreement pursuant to the i
provisions of Article I, Chapter 5, Division 7, Title I of the Govern-
ment Code of the State of California. The Agency shall be a public
entity separate from the parties hereto.
2.
Purpose
of the Agreement:
Common
Powers to be
Exercised.
Each member
has
the common power to
conduct
planning and
other studies
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into water quality and other matters in the San Diego Creek watershed
area inclusive of the power and authorization to accomplish an area -wide
waste treatment management plan on an ongoing continuous basis to the.
extent and'as provided for in Section 208 of the Federal Water Pollutior
Control Act and regulations promulgated pursuant thereto either directl;
or in conjunction with another entity or entities.
The purpose of this Agreement is to jointly exercise the
foregoing common power in the manner hereinafter set forth.
3. Powers. The Agency shall have the power in its own name
to do any of the following: -.
(a) To exercise jointly the. con -non powers of its members
to conduct planning and other studies into water quality and other matte
in the San Diego Creek Watershed area including the accomplishment on
an ongoing basis as provided for in Section. 208 of the Federal Water
Pollution Control Act and regulations promulgated pursuant thereto of
an area -wide waste treatment management planning process either directl
or in conjunction with another entity or entities;
(b) To make and enter into contracts;
(e) To contract for the services of engineers, attorneys,
planners, financial consultants, and separate and apart therefrom to
employ such other persons, as it deems necessary, subject to limitation
hereinafter provided;
(d) To acquire, construct, manage, maintain, and operate
any buildings, works, or improvements;
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(e) To acquire, hold and dispose of property;
(f) To incur debts, liabilities or obligations subject
to limitations herein set forth;
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(g)�o sue and be sued in its own name;
(h) To apply for an appropriate grant or grants under
any federal, state, or local programs for assistance in developing
any of its programs including but not limited to an area -wide waste
management planning process to the extent and as described in the Act
and regulations promulgated pursuant to the Act and any other applicab
local,.state, or federal statutory or regulatory provisions or any
combination of the foregoing;
(i) To the extent not herein specifically provided
for, to exercise any powers in the manner and according to the methods
provided under the laws applicable to the County Sanitation .District
Act.
(j) Legal services shall be provided by the office of
the County,Counsel at no cost to the: Agency. The County of Orange
Environmental Management Agency shall provide technical and
administrative staff support, which shall be augmented by staff
assistance -from the Agency members in their respective capabilities.
The Agency shall contract for the services of attorneys, engineers,
planners, financial consult-aats, and other persons only when and to the
extent the work cannot be done_ expeditiously by the County Counsel,
the Environmental Management Agency, and the staffs of the respective
Agency members.
4. The following words shall have the following meanings-
(a) "Agreement" means this.joint exercise of powers
Agreement.
(b) "Agency" means the Nei. port- Irvine Waste-Management
Planning Agency (NIY7A) form:d pursuant to this Agreement.
(c) "Board" or "Board.of Directors" means the governing
body of the Agency.
S.
(d) "Member" or "Party" means each of the parties which
become a signatory to this Agreement, accepting the rights and
obligations of the Agency hereunder, including any public entity
executing an addendum of the original agreement as hereinafter provided.
(e) "Participating Member" means a member that has
or will acquire rights and assume obligations in connection with
a particular project.
(f) "Participating Director" means the regular Director
or Alternate Director of the Board who has been appointed by a
member which has become a Participating Member.
(g) The Directors appointed for the County of Orange,
the Orange County Flood Control District, and the Orange County
Harbors,.Beaches and Parks District may consist of only one or two
individuals. Notwithstanding such appointments, the County of Orange,
I the Orange County Flood Control District, and the Orange County
Harbors, Beaches and Parks District shall be treated as separate
entities, and if an individual Director for two or more of such three
entities, he shall have a vote for each such entity he represents.
(h) "Fiscal Year" means July lst to and.including the
following June 30th.
(i) "Facility" or "Facilities" means any building,
works, or improvement acquired or constructed by Agency.
(j) "Project" means the facilities constructed by Agency
pursuant to the project budget procedure.
(k) "General Budget" means the approved budget applicable
to the expenses of administration of.the Agency.
TV.
ORGANIZATION
5. Membership. The members of the Agency shall be each
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public entity which has executed or hereafter executes this Agreement,
or any addenda, amendment or supplement thereto, within the period
of time specified in Section 7 of this Agreement and which has not,
pursuant to the provisions hereof, withdrawn therefrom.
6. Names. The names, particular capacities, and addresses
of the members at any time shall be shown on Exhibit "B ", attached
hereto, as amended or supplemented from time to time.
7. Designation of Directors. Within thirty (30) days after
the execution of this Agreement,' each member including the Director
of the Department of Fish and Game shall designate and appoint one
person to act as its director on the Board. Each member shall also
appoint one alternate director whose name shall be on file with the
Board and who may assume all rights and duties of the absent director
representing the appointing member. Each director and alternate shall
hold office from the first meeting of the Board after his appointment
until his successor is selected. Directors and alternates shall serve
at the pleasure of the appointing member and may be removed at any time,
with or without cause, in the sole discretion of said appointing member.
Except as to the Director of the Department of Fish and.Game or his
designee, each Director shall be a member of the governing board
of a member duly elected, appointment in lieu of election to such
elective public office, or by reason of appointment thereto and
holding an elective office as provided in Section 4730 of the Health
and Safety Code. Alternate Directors shall either meet the same
requirements as Directors or shall be employees or other officials
of_the appointing members. A Director or Alternate shall not receive
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any compensation from the Agency for his services, but may be
reimbursed for expenses incurred by such Director in the conduct
of the business of the Agency. Any such appointment of such persons.
shall evidence and be conclusive that such positions are compatible
and the offices of Director and Alternate Director are intended and
in fact established on such basis. In the event that one.of the
hereinabove named entities has not executed this Agreement within
forty -five (45) consecutive days following.written notice given in the
manner hereinafter provided of the execution of this Agreement by any
two of the hereinabove designated entities, such nonaction shall be
deemed. an,election not to participate herein at this time.- Subsequent j
participation herein may be accomplished in accordance -with Section 36
of this Agreement.
8. Principal Office. The principal office of the Agency ,
shall be established by the board. The board is hereby granted full
poorer and authority to change said principal office from one location
to another in the County of orange. Any change shall be noted by
the secretary under this section but shall not be considered an
amendment to this Agreement.
9. Meetings. The board shall meet at the principal office
of the Agency or at such other place as may be designated by the
board. The time and place of regular meetings of the board shall be
determined by resolution adopted by the board. A copy of such
resolution shall be furnished to each party hereto. Any meeting of
a project committee shall be deemed to be a meeting of the Agency
and shall be open to all directors. Regular, adjourned and special
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meetings shall be called and held in the manner as provided in
Chapter 9, Division 2, Title 5 of the Government Code of the State
of California.(commencing at Section 54950).
10. Quorum. A majority of the directors shall constitute
a quorum for the purposes of the transaction of business relating to
the Agency. A majority of the directors, but not less than two (2),
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shall constitute a quorum for the purposes of the transaction of
business of the Agency on matters relating to each project in which .
riot all of the parties are participating.
11. Powers and Limitations Thereon. All of the powers
..and authority of the Agency shall be exercised by the board, subject,
however, to the reserve right of the members as herein set forth.
Unless otherwise provided herein, each director or participating
director shall be entitled to one vote, and a vote of,the majority
of.the Board qualified to vote may adopt any motion, resolution,
ordinance, or order and take any-other action they deem appropriate
to carry forward the objectives of the Agency or of a project committee.,
12. Minutes'. The secretary of the Agency shall cause to
be kept minutes of regular, adjourned regular and special meetings of
the Board, and shall cause a copy to be sent to each of the members
hereto.
13. Rules. The Board may adopt from. tine to time such :rules
and regulations for the conduct of its affairs as may be required.
14. Vote or Assent of Members. The vote, assent, or approval
of members in any matter requiring such vote, assent, or approval
hereunder shall be evidenced by a certified copy of the resolution of
the governing board of such member filed with the Agency.
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15. Offters. There shall be Acted from the membership
of the board, a chairman and .a vice chairman. The board shall appoint
a secretary who may be a director. The treasurer of the Irvine Ranch
Water District shall be the treasurer of the Agency; to be the
depository and have custody of all money of the Agency from whatever
source. The auditor or. officer having similar responsibilities of
the Irvine Ranch Water District will be the auditor of the Agency
and shall draw -all warrants and pay demands against the Agency
1 approved by the board. (In addition, the board shall have the power
to appoint such additional officers as it deems necessary.) The
treasurer.and auditor hereby designated may be changed by the consent
of all directors. The chairman, vice chairman, and secretary shall
hold office for a period of one year commencing July 1st of each and
every fiscal year; provided, however, the first chairman, vice chairman
and secretary appointed shall hold office from the date of appointment j
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to June 30th of the ensuing fiscal year. Any officer, employee or
agent of the board may also be an officer, employee or agent of any
of the members. The appointment.by the board of such a person shall
be evidence that the two positions are compatible. The public officer
or officers or persons who have charge of, handle, or have any access
to any property of the Agency shall be bonded and the amount of their
bond shall be designated in the applicable budget and thus fixed.
All of the privileges and immunities from liability, exemption,
from laws, ordinances and rules, all pension, relief, disability;
workmen's compensation and other benefits which apply to the activity
of officers, agents, or employees of any of the members when performing
their respective functions shall apply to them to the same degree
and extent while engaged in the performance of any of the functions and
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other duties under this Agreement. None of the officers, agents, or
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employees appointed by the board shall be deemed, by reason of their
employment by the board, to be employed by any of the members, or, by
reason of their employment by the board, to be subject to any of the
requirements of such members.
V.
PLANNING
16. Planning Policy. In keeping with one of the purposes
of this Agreement, the members hereby authorize the board in its
discretioniequest designation of the San Diego Creek- Newport Bay
Area as an area having water quality problems as defined in Section 2081
-of the Federal Water Pollution Control Act and that the Agency be
` designated as the areawide waste treatment management planning agency
for such areas either directly or in conjunction with another entity
t or entities. .
VI.
BUDGETS AND PAYMENTS
' 17. General Budget. Within thirty (30) consecutive calendar
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days after the first meeting of the board, a general budget shall be
adopted for the balance of the fiscal year and the ensuing fiscal year.
The initial budget and each succeeding budget shall include the
following: (a) the general administrative expenses of the Agency to
be incurred during the period covered by the budget; and (b) the
allocation among the members of the amounts necessary to cover the
general budget expenditures. The expenditures required in the initial
budget (from formation to June 30, 1976.) shall be shared equally. If
after the initial budget the board provides an allocation to the
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members on some Ais other than equal amou9s, the general budget
must be approved by the unanimous consent of all of the directors.
After the first full fiscal year, at or prior to each June meeting of-
the board,, a general budget shall be adopted for the ensuing fiscal
year.
18. Project Budgets. In addition to the general budget,
the board may budget at any time for the study, implementation or
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construction of any specific project proposed to be constructed by
the Agency. Each project budget shall include the following:
(a) the administrative expenses allocated to the
project during planning and construction;
(b) the cost of 'studies and planning for the project;
(c) the cost of the engineering and construction of
the project;
(d) the allocation among the participating members,
the total project costs;
(e) an estimate of annual maintenance and operating
expenses; and
(f) a formula for allocating annual maintenance and
operating expenses.
After the board approves a project budget, it shall.be
submitted to each member who has expressed a desire to participate
and is to be obligated for payment of any amount thereunder and the
Agency shall not incur any expense for the project until the project
budget has been approved by the governing body of each of the proposed
participating members. in the event a project budget is not approved,
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.the cost of prep ring the budget shall be 0-vided among the proposed
participating members in accordance with the proposed allocation of-
the total project costs.
19. Maintenance and Operation Budgets. For each project
maintained and operated by the Agency, a maintenance and operation
budget shall be prepared and approved at or prior to each June meeting
`.of the board for the ensuing fiscal -year. Said budget shall include
the following:
(a)
the
expenses
of
maintaining the project;
(b)
the
expenses
of
operating the project;
(c) an estimate of income from operations, if any; and
(d) the allocation of maintenance. and operation expenses
among the participating members in accordance with the formula set
forth in the approved project budget.
A maintenance and operating budget must be approved by two-
thirds (2/3) of. the directors or. by two- thirds (2/3). of the participate
.directors if the budget affects less than the entire membership. Copie
of each operating budget shall be mailed to each participating member
within thirty (30) days of its adoption_
In regard to payment of expenses of the Agency, it is agreed
as follows: (a) All operational costs and maintenance costs directly
related to use of the facilities, including necessary improvements,
repairs, adjustments, replacements, and incidental accounting and
administrative costs in connection therewith shall be paid by each
member using the facilities in proportion to their use; and (b) the
maintenance costs not directly related to use of the - facilities,
including necessary improvements, repairs; adjustments, replacements
and extraordinary or standby maintenance, and incidental accounting
and administrative costs in connection therewith, shall be paid by
the participating members in proportion to their respective percentage
share of the costs of said facilities as herein provided. Any change
of the foregoing may be made by the unanimous consent of all of the
participating members.
20. Effect of Failure of Approval of Budget. If, after
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one hundred twenty (120) consecutive calendar days from the first
submission of a general budget, the budget fails to attain the required
vote, the consenting directors of members, in the case of the general
budget, may treat the refusal of the representative director or
member-to approve the budget as a request for a withdrawal from the
Agency, in the case of failure to approve a general budget, or from
the project, but not from the Agency;; in the case of failure to
approve a project budget, by such member and remaining members may
thereafter, upon giving the non - consenting member thirty (30) consecutiv
days prior written notice, proceed with adoption of.a revised budget and
the non - consenting member shall not be obligated for future debts
of the Agency or of the project, as the case may be, nor shall it
receive any benefits therefrom. The foregoing is subject to the
provisions of Section 35. hereof.
21. Expenditures for the Approved Budget. All expenditures
within the designations and limitations of approved general, project
or maintenance and operation budgets shall be made on the authorization
of a majority of the directors for general budget expenditures or of
a majority of the directors of the participating members for other 1
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expenditures. No expenditures in excess of those budgeted shall be
made without the unanimous consent and approval of all of the
directors representing the member.affected by the budget under
consideration.
22. Payment of Amounts Due. Amounts required to be paid
by any member shall be due and payable forty -five (45) days after
receipt of billing therefore from the board.
23. Reimbursement of Funds. Grant funds received by
the Agency from any federal, state or local agency to pay for
budgeted expenditures for which the Agency has received all or a
portion of said funds from its members shall be proportionally paid
to said members to reimburse the members for the funds advanced to
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the Agency for the construction of the facilities for which grant
money has been received.
VII.
BOND FINANCING
24. Revenue Bonds. The board shall.have the power and .
authority to issue revenue bonds for the purposes now or hereinafter
provided for in this Agreement as set forth in subparagraph 3(j) hereof
provided, such subsequent powers properly constitute the joint exercise
of a common power as required by law. Any such revenue bonds shall
be issued in accordance with the procedure and requirements set forth
in Article 2, Title 1, Division 7 of the Government Code of the State
of California (coi-inencing ..t Section 6540) and to the extent applicable
the Revenue 'Bond Law of 1941. Any election or referendum provided.for
in Section 54307.1 of the Government Code shall be held separately
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within each enti which is participating the project to be con-
structed with the proceeds of the. revenue bonds proposed to be issued.
VIII.
PROJECT CONSTRUCTION
25. Acquisition and Construction of Projects. No project
shall be acquired or constructed by the board without the unanimous
consent of every member, or if it is a project of less than all of
the members, the unanimous consent of all of the.participating
members. Approval of a project budget by all of the participating
members shall constitute consent for the acquisition and construction.
of the project.
26. Project Members. If it is determined that a proposed
project of less than all of the members, the participating directors
for each project shall constitute a subcommittee of the board.
referred to as the _ Project Committee ". All
actions by a project committee shall be deemed actions of the Agency
and shall be taken in the name of the Agency, however, only the
participating members of a project shall have the rights and obligations,
in said project as herein provided.
IX.
MAINTENANCE AND OPERATION OF FACILITIES
27. Maintenance and Operation of Facilities. The board,
or the project committee, as the case may be, shall determine prior
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to the acquisition or construction of any project, whether or not
the Agency shall maintain and /or operate such facilities. The Agency
shall only maintain or operate any such facilities if it is determined
that none of the Agency members are willing or able to maintain and
operate such facilities at the member's own expense. Facilities
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constructed or acquired by the Agency shall be held in the name of
the Agency only in those instances where the majority of the board
of the participating directors make a determination that ownership
by a member of the Agency is not in the public interest. It is the
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intent of the parties that when any project is maintained or operated
in the name of the Agency, a majority of the participating directors
shall make all determinations of the Agency in connection therewith.
If it is determined that one or more of the members shall maintain
and /or operate said facilities, said members shall by written agree-
ment consent thereto prior to the acquisition or construction thereof.
I X.
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ACCOUNTING AND AUDITS
28. Accounting Procedures. Full books and accounts shall be
maintained for the Agency in accordance with practices established by,
or consistent with, those utilized by the Controller of the State of
California for like public entities. In particular, the Agency's
controller and treasurer shall comply, strictly with requirements of
the statute governing joint powers agencies, Chapter 5, Division 7,
Title 1 of the Government Code commencing at Section 6500.
29. Audit. The records and accounts of the Agency shall be
audited annually by an independent certified public accountant and
copies of such other reports shall be filed with the County Auditor,
the State Controller and each participating member within six (6)
months of the end of the fiscal year under examination.
XI.
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PROPERTY RIGHTS
30. Project Facilities. All facilities constructed or
acquired by the Agency shall be held in the name of the Agency for
the benefit of the membership of the Agency in accordance with the
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terms of this Agreement. Capacity rights in respect to project .
facilities shall be held for the benefit of the participating members
in proportion to each member's agreed percentage of capacity rights
in such project facility unless otherwise agreed to in writing by
said participating members. It is the intent of the foregoing
provision that the Agency shall not acquire any unallocated capacity
rights in any facility for disposal or use, except for the benefit
of the participating members in proportion to their original percentage.
of'capacity rights in said facility. Capacity rights may not be
reallocated, sold, leased or assigned without the written consent of
all participating members in a project.
31. Distribution of Assets and Termination. of Agency. To
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the extent that any funds (or property in lieu of funds) received from
any member are used for the acquisition or construction of facilities,
the same shall be:allocated annually on the books of the Agency to the
credit of said contributing member. Upon termination or dissolution
of the Agency herein created, the facilities, and any funds, in
possession of the Agency at such time shall be distributed in'kind or
sold, and the proceeds thereof distributed to the members at the time
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of termination as their interests appear on the.books of the Agency.
32. Liabilities. Any liability incurred by the Agency during
the course of its existence shall be discharged from payments hereby
agreed to be made to the Agency by each of the parties hereto in
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proportion to their contribution or approved participation in facilities
of the Agency for which the liability is attributable.- Except as
hereinabove provided, the debts, liabilities, and obligations of the
Agency shall be the debts, liabilities or obligations of the Agency
alone and not of the parties to this Agreement.
XII.
FORMATION, TERIM, TERDIINATION, WITHDRAWAL
33. Term. The Agency shall continue until this Agreement
is rescinded or terminated as herein provided.
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34. Rescission or Termination. This Agreement may be
rescinded and the Agency terminated by written consent of all members.
35. Withdrawal. Any member may withdraw from the Agency
at any time upon giving each of the members one hundred and twenty
(120) days written notice prior to the end of a fiscal.year; provided,
however, in the event the withdrawing member has any rights in any
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facility or obligations to the Agency, said member cannot sell, lease
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or transfer said rights or be relieved'of its obligations, except
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..its obligation to pay its share of operation and maintenance costs
..directly related to the use of the facilities, without the execution of.
I a written agreement executed by it and all members affected by such
withdrawal. The Agency may not sell, lease, transfer, or use any
.. rights of a member who has withdrawn without first obtaining the writter
I_ consent of the withdrawn member. Upon termination, a withdrawn member
will be treated like all other members in regard to the provisions of
Section 31 hereof.
36. Admission of New Members. It is recognized that public
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entities, other than the or`_ginal members hereinabove enumerated, may
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wish to participate in the Agency. Additional public entities may
become members of the Agency upon such terms and conditions as provided
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by the board and the unanimous consent of each existing member of
the Agency, other than those hereinabove enumerated as evidenced by
the execution of a written addendum to this Agreement, signed by all
of the members including the additional member. However, the Cities
o€ Newport - Beach,. Costa Mesa, Irvine, Santa Ana, Tustin, and Orange,
-and the:State- Department of-Fish and -Game are invited to become
members and shall have the right to execute this Agreement and become
a Member Agency with all the rights, duties, privileges and obligations
under this Agreement, provided they execute an Addendum to this
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Agreement to such effect within forty -five (45) consecutive calendar
days after receipt of written notice of approval of this First
Amended Joint Exercise of Powers Agreement.
37. Amendments. This Agreement may be amended only by the
unanimous vote of all members.
38. Notice. Any notice or instrument required to be given
or.delivered by depositing the same in any United States Post Office,
registered or certified, postage prepaid, addressed to the addresses
of the members as shown on Exhibit "H" shall be deemed to have been
received by the party to whom,the same is addressed at the expiration
of seventy -two (74) hours after deposit of the same in the United.
States Post Office for transmission by registered or certified mail as
aforesaid.
.39. Date of Formation. The Agency shall exist at such time
as this Agreement has been executed by the Irvine Ranch Water District,
County Sanitation District No. 5 of Orange County, Orange County
Water District, County of Orange, Orange County Flood Control District,
and Orange County Harbors, Beaches and Parks. District.
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40. Arbitration. Any controversy or claim between any two
or more parties to this Agreement; or between any such party or
parties and the Agency, in respect to the Agency's operations, or•to
any claims, disputes, demands, differences, controversies, or
misunderstandings arising under, out of, or in relation to this
contract, or any breach thereof, shall be submitted to and determined.'
by arbitration. To the extent not inconsistent herewith, the rules
of the American Arbitration Association shall apply. The party desir
to initiate arbitration shall give notice of its intention to arbitrate
to every other party to this Agreement and the Agency. Such notice
shall designate as "respondents" such other parties as the initiating
party intends to have bound by any award made therein. Any party.not
so designated but which desires to join in the arbitration may, within
ten days of service upon it of such notice, file a response indicating
its intention to join in.and to be bound by the results of the arbitrate
and further designating any other parties it wishes to name as a
respondent. Within twenty (20) days of the service of the initial
demand for arbitration, the American Arbitration Association, herein-
after referred to as "AAA ", shall submit simultaneously to the initiatir
party and to all parties named as respondents or filing a response
therein, an identical list of names of persons chosen from the AAA
National. Panel of Arbitrators which persons shall be; to the extent
possible, men first in the field of waste water disposal and reclamation
as well as public law. Each party to the dispute shall have seven days
21.
from the maili' * ate in which to cross o any .names to which he
objects, number the remaining names indicating the order of his
preference., and return the list to the AAA. If a party does not
i
return the list within the time specified, all persons named therein
shall be deemed acceptable. From.among the persons who have been
approved on both lists, in accordance with the designated order
of mutual preference, the AAA shall invite the acceptance -of an
arbitrator to serve. If the parties fail to agree upon one of the
persons named, or if an acceptable arbitrator is unable to act, or if
for any other reason the appointment cannot be made from the submitted
list, the AAA shall have the power to make the appointment of the
arbitrator from other members of the panel without the submission of.
any additional list_
The arbitrator shall determine the rights of the parties'
in accordance with the law, and the award shall be subject to review
as to the arbitrator's application of the law by any court having
jurisdiction thereof, whether or not any mistake of law shall appear
upon the face.of the award. As.to all.questions of facts, however,
the determination of the arbitrator shall be binding upon all parties
and shall be final. Any party shall be entitled to written findings
of fact and conclusions of law as to all issues determined by the
award. Subject to.the above limitations, the.award shall be binding
upon all parties to the arbitration and judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
The arbitrator may, in his discretion, as part.of the
arbitration award, impose upon any one party or allocate among two
j` -
22.
or more of the parties, the liability for the arbitration fees and
expenses. Such allocable fees may include the initial administration
i
fees, fees for second and subsequent hearings, postponement fees, fees
for second and subsequent hearings, postponement fees, and overtime
j
fees. Allocable expenses may include the expenses of producing
witnesses, the cost of stenographic records, the cost of any
. I
transcripts, travel expenses of the arbitrator and Tribunal Admin-
istrator, the expenses of any witnesses, the costs of any proofs
produced at the direct request of the arbitrator, and any other
expenses relating directly to the arbitration. In the event of the
failure of the arbitrator to provide for the allocation of such fees
and expenses, the arbitration fees shall be divided.equally between the
parties and the expenses shall be borne by the party incurring them.
41. Severance. If any section, subsection, sentence, clause;
or.phrase of this Agreement, or the application thereof, to any of
the members for any other person-or circumstances is for any reason
held invalid, the validity of the remainder of the Agreement, or the
application of such provision to the other members, or to any other
person or circumstances, shall not be affected thereby.- Each of the
members hereby declares that it would have entered into this Agreement,
f
I
2.3.
-71.7&
FIRST AMENDED JOINT EXERCISE OF
POWERS AGREEMENT CREATING NEWPORT- IRVINE
WASTE- MANAGEMENT PLANNING AGE14CY (NIWA)
I.
R E C I T A L S:
A. The Newport- Irvine Waste - Management Agency
(known as "NIWA ") was created by an agreement dated March
28, 1975, and approved by and entered into between Irvine
Ranch Water District and County Sanitation District No. 5 of
Orange County.
B. NIWA was first organized for the primary
purpose of qualifying and acting as an agency under Section
208 of the Federal Water Pollution Control Act and regulations
promulgated pursuant thereto.
C. Changed circumstances indicate that it is no
i
longer possible in the foreseeable future for NIWA to act as
a 208 agency, and the intention is to modify the agency to j
provide for studies and assistance to whatever entity acts
as such 208 agency.
On January 22, 1976, Southern California Association
of Governments (SCAG) was so designated and as one of the
conditions of such designation, SCAG is required to provide
for full participation and concurrance of NIWA in the planning
process. The intention of the parties to this Agreement is to
modify this Joint Powers Agreement to provide assistance to
SCAG in its 208 planning functions by contract and otherwise.
it
D. It is desired that the First Amended Joint
Exercise of Powers Agreement shall consist of two or more of
i
the following as parties hereto:
(a) County Sanitation District No. 5 of
Orange County;
(b) Orange County Water District;
(c) City of Newport Beach;
(d) City of Irvine;
i
(e) .County of Orange;
(f) Irvine Ranch Water District;
(g) Orange County Flood Control District;
(h) Orange County Harbors,.Beaches, and Parks District;
(i) California Department of Fish and Game;
and such other additional entities as are subsequently
included herein as Member Agencies pursuant to the provisions
of Section 32 of this Agreement.
E. The hereinabove named parties include within
their existing boundaries in whole or in part territory
included in or. related to the San Diego Creek Watershed,
Newport Bay, or both.
F. Irvine Ranch Water District is undertaking
the formulation of regional plans for facilities for the
collection, treatment, disposal and reclamation of wastewater
from within the hereinabove described area which in part is
tributary to Newport Bay, as well as other areas which are
partly within the boundaries of the Orange County Water
District, all of which are entities being situated in the
County of Orange.
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G. All the hereinabove named parties and potential
parties to this Agreement possess the power and authorization
to conduct planning and other studies into water quality and
other matters of the San Diego Creek Watershed - Newport Bay
Area, either directly or in conjunction with another entity
or entities.
H. An area -wide waste treatment management
planning process and resulting plan for the San Diego Creek -
Newport Bay Area may be compatible with ascertaining the
existence of and solution to any water quality problems
and /or other matters that now or in the future may be present
within the San Diego Creek Watershed - Newport Bay Area. Such an
effort can be achieved effectively through the cooperative
action of the parties to this Agreement, operating through
an entity established by this joint exercise of powers
agreement either directly or in conjunction with another
entity or entities.
I. Each of the parties is authorized to contract
with each of the other parties to this Agreement for the
joint exercise of the common powers set forth herein pursuant
to the authorization set forth in Article I, Chapter 5,
Division 7, Title I of the Government Code.
J. The parties to this Agreement and the entity
hereby created is intended to be and is comprised to be
I
representative of local governmental agencies included in or
related to the San Diego Creek Watershed - Newport Bay Area.
-3-
K. The governing body of the entity hereby
established, except as to the Director of the Department of
Fish and Game or his designee, shall be comprised of persons
holding offices on the governing bodies of the Member Agencies
whom they represent, which governing body established hereby
shall be reflective of the local governmental agencies in
the hereinabove described area.
L. In the event that circumstances change in the
future, it is intended that NIWA have the power to be designated
a planning agency under Section 208 of the Federal Water
Pollution Control Act and regulations established pursuant
thereto.
II.
In consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
III.
PURPOSE AND POWERS
1. Agency Created
There is hereby created a public entity to be
known as the "Newport- Irvine Waste - Management Planning
Agency (NIWA)." The Agency is formed by this Agreement
pursuant to the provisions of Article I, Chapter 5, Division
7, Title I of the Government Code of the State of California.
The Agency shall be a public entity separate from the parties
hereto.
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2. Purpose of the Agreement /Common Powers to
be Exercised
Each member has the common power to conduct
planning and other studies into water quality and other
matters in the San Diego Creek Watershed - Newport Bay Area
inclusive of the power and authorization to accomplish an
area -wide waste treatment management plan on an ongoing,
continuous basis to the extent and as provided for in Section
208 of the Federal Water Pollution Control Act and regulations
promulgated pursuant thereto either directly or in conjunction
with another entity or entities.
The purpose of this Agreement is to jointly exercise
the foregoing common power in the manner hereinafter set
forth.
3. Powers
The Agency shall have the power in its own
name to do any of the following:
(a) To exercise jointly the common powers of
its members to conduct planning and other studies into water
quality and other matters in the San Diego Creek Watershed -
Newport Bay Area including the accomplishment, on an ongoing
basis as provided for in Section 208 of the Federal Water
Pollution Control Act and regulations promulgated pursuant
thereto, of an area -wide waste treatment management planning
process either directly or in conjunction with another
entity or entities;
-5-
(b) To make and enter into contracts;
(c) To contract for the services of engineers,
attorneys, planners, financial consultants; and separate and
apart therefrom, to employ such other persons, as it deems
necessary, subject to limitations hereinafter provided.
(d) To incur debts, liabilities or obligations
subject to limitations herein set forth;
(e) To sue and be sued in its own name;
(f) To apply for an appropriate grant or
grants under any federal, state, or local programs for
assistance in developing any of its programs including but
not limited to an area -wide waste management pl.anning process
to the extent and as described in the Act and regulations
promulgated pursuant to the Act and any other applicable
local, state, or federal statutory or regulatory provisions
or any combination of the foregoing;
(g) To the extent not herein specifically
provided for, to exercise any powers in the manner and
according to the methods provided under the laws applicable
to the County Sanitation District Act;
(h) Legal services shall be provided by the
office of the County Counsel at no cost to the Agency. The
Environmental Management Agency of the County of orange shall
provide technical and administrative staff support, which
shall be augmented by staff assistance from the Agency
members in their respective capabilities. The Agency shall
-6-
contract for the services of attorneys, engineers, planners,
financial consultants, and other persons only when and to j
the extent the work cannot be done expeditiously by the
County Counsel, the Environmental Agency, and the staffs of
the respective Agency members.
4. The following words shall have the following
meanings:
(a) "Agreement" means this First Amended Joint
Exercise of Powers Agreement.
(b) "Agency" means the Newport - Irvine Waste-
Management Planning Agency (NIWA) formed pursuant to this
Agreement.
(c) "Board" or "Board of Directors" means
the governing body of the Agency. .
(d) "Member" or "Party" means each of the
parties which become a signatory to this Agreement, accepting
the rights and obligations of the Agency hereunder, including
any public entity executing an addendum, amendment, or
supplement to the original agreement as hereinafter provided.
I
(e) "Participating Member" means a member
that has or will acquire rights and assume obligations in
connection with a particular project.
(f) "Participating Director" means the
regular Director or Alternate Director of the Board who has
been appointed by a member which has become a Participating
Member.
-7-
(g) The Directors appointed for the County
of Orange, the orange County Flood Control District, and
the Orange County Harbors, Beaches and Parks District may
consist of only one or two individuals. Notwithstanding
such appointments, the County of Orange, the orange County
Flood Control District, and the Orange County Harbors,
Beaches and Parks District shall be treated as separate
entities, and an individual Director for two or more of such
three entities shall have a vote for each such entity he
j represents.
(h) "Fiscal Year" means July 1st to and
including the following June 30th.
(i) "Project" means the study, assistance or
other planning function accomplished pursuant to the project
budget procedure.
(j) "General Budget" means the approved
j budget applicable to the expenses of administration of the
Agency.
IV.
ORGANIZATION
5. Membership
The members of the Agency shall be each
public entity listed in Section I of this Agreement which
has executed or hereafter executes this Agreement, or any
addenda, amendment or supplement thereto, within the period
of time specified in Section 7 of this Agreement and which
-8-
has not, pursuant to the provisions hereof, withdrawn therefrom.
Additional entities may be subsequently included herein as Member
Agencies pursuant to the provisions of Section 32 of this Agreement.
6. Names
The names, particular capacitites, and addresses
of the members.at any time shall be shown on Exhibit "A ",
attached hereto, as amended or supplemented from time to time.
7. Designation.of Directors
Within thirty (30) days after the execution
of this Agreement, each member including the Director of the
Department of Fish and Game, shall designate and appoint one
person to act as its Director on the Board. Each member,
including the Director of the Department of Fish and Game,
shall also appoint one Alternate Director whose name shall
be on file with the Board and who may assume all rights and
duties of the absent Director representing the appointing
member. Each Director and Alternate shall hold office from
the first meeting of the Board after his appointment until
his successor is selected. Directors and Alternates shall
serve at the pleasure of the appointing member and may be
removed at any time, with or without cause, in the sole
discretion of said appointing member. Except as to the
Director of the Department of Fish and Game or his designated
Alternate, each Director shall be a member of the governing
board of a member, duly elected, appointed in lieu of election to such
elective public office, or appointed thereto and holding an
elective office as provided in Section 4730 of the Health
U
and Safety Code. Alternate Directors shall either meet
the same requirements as Directors or shall be employees
or other officials of the appointing members. A Director
or Alternate shall not receive any compensation from the
Agency for his services, but may be reimbursed for expenses
incurred by such Director in the conduct of the business of
the Agency. Any such appointment of such persons shall
evidence and be conclusive that such positions are compatible
and the offices of Director and Alternate Director are
intended and in fact established on such basis. In the
event that one of the hereinabove named entities has not
executed this Agreement within forty -five (45) consecutive
days following written notice given in the manner hereinafter
provided for the execution of this Agreement, such nonaction
shall be deemed an election not to participate herein at
this time. Subsequent participation herein may be accomplished
in accordance with Section 32 of this Agreement.
8. Principal Office
The principal office of the Agency shall be
established by the Board. The Board is hereby granted full
i
power and authority to change said principal office from one
location to another in the County of Orange. Any change
shall be noted by the Secretary under this section but shall
not be considered an amendment to this Agreement.
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9. Meetings
The Board shall meet at the principal office
of the Agency or at such other place as may be designated by
the Board. The time and place of regular meetings of the
Board shall be determined by resolution adopted by the
Board. A copy of such resolution shall be furnished to each
party hereto. Any meeting of a project committee shall be
deemed to be a meeting of the Agency and shall be open to
all Directors. Regular, adjourned, and special meetings
shall be called and held in the manner as provided in Chapter
9, Division 2, Title 5 of the Government Code of the State
of California (commencing at Section 54950),
10. Quorum
A majority of the Directors shall constitute
a quorum for the purposes of the transaction of business
I
relating to the Agency. A majority of the Directors, but
not less than two (2), shall constitute a quorum for the
purposes of the transaction of business of the Agency on
matters relating to each project in which not all of the
parties are participating.
11. Powers and Limitations Thereon
All of the powers and authority of the Agency
shall be exercised by the Board, subject, however, to the
reserve right of the members as herein set forth. Unless
otherwise provided herein, each Director or Participating
-11-
I
Director shall be entitled to one vote, and a vote of the
majority of the Board qualified to vote may adopt any motion,
resolution, ordinance,, or order and take any other action
they deem appropriate to carry forward the objectives of the
Agency or of a project committee.
12. Minutes
The Secretary of the Agency shall cause to be
kept minutes of regular, adjourned regular, and special
meetings of the Board, and shall cause a copy to be sent to
each of the members hereto.
13. Rules
The Board may adopt from time to time such
rules and regulations for the conduct of its affairs as may
be required.
14. Vote or Assent of Members
The vote, assent, or approval of members in
any matter requiring such vote, assent, or approval hereunder
shall be evidenced by a certified copy of the resolution of
the governing board of such member filed with the Agency.
15. Officers
There shall be selected from the membership
of the Board a Chairman and a Vice Chairman. The Board
shall appoint a Secretary who may be a Director. The Treasurer
of the Irvine Ranch Water District shall be the Treasurer of
the Agency; to be the depository and have custody of all
money of the agency from whatever source. The Auditor or
-12-
i •
officer having similar responsibilities of the Irvine Ranch
Water District will be the Auditor of the Agency and shall
draw all warrants and pay demands against the Agency approved
by the Board. (In addition, the Board shall have the power
to appoint such additional officers as it deems necessary.)
The Treasurer and Auditor hereby designated may be changed
by the consent of all Directors. The Chairman, Vice Chairman,
and Secretary shall hold office for a period of one year
commencing July 1st of each and every fiscal year; provided,
however, the first Chairman, Vice Chairman and Secretary
appointed shall hold office from the date of appointment to
June 30th of the ensuing fiscal year. Any officer, employee
or agent of the Board may also be an officer, employee or
agent of any of the members. The appointment by the Board
of such a person shall be evidence that the two positions
are compatible. The public officer or officers or persons
who have charge of, handle, or have access to any property
of the Agency shall be bonded and the amount of their bond
shall be designated in the applicable budget and thus fixed.
All of the privileges and immunities from liability,
exemption from laws, ordinances and rules, all pension,
relief, disability, workmen's compensation and other benefits
which apply to the activity of officers, agents, or employees
of any of the members when performing their respective
functions shall apply to them to the same degree and extent
while engaged in the performance of any of the functions and
-13-
other duties under this Agreement. None of the officers, agents,
or employees appointed by the Board shall be deemed, by
reason of their employment by the Board, to be employed by
any of the members, or, by reason of their employment by the
Board, to be subject to any of the requirements of such
members.
V.
16. Planning Policy
In keeping with one of the purposes of this
Agreement, to have the power to be designated a planning
agency under Section 208 in the event of future changed
circumstances, the members hereby authorize the Board, in
its discretion, to request designation of the San Diego
Creek Watershed - Newport Bay Area as an area having water
quality problems as defined in Section 208 of the Federal
Water Pollution Control Act and that the Agency be designated
as the areawide waste treatment management planning agency
for such areas either directly on in conjunction with another
entity or entities.
VI.
BUDGETS AND PAYMENTS
17. General Budget
Within thirty (30) consecutive calendar days
after the first meeting of the Board, a general budget shall
be adopted for the balance of the fiscal year and the ensuing
fiscal year. The initial budget and each succeeding budget
-14-
shall include the following:
(a) the general administrative expenses of
the Agency to be incurred during the period covered by the
budget; and
(b) the allocation among the members of the
amounts necessary to cover the general budget expenditures.
The expenditures required in the initial budget (from formation
to June 30, 1976) shall be shared equally. If after the
initial budget the Board provides an allocation to the
members on some basis other than equal amounts, the general
budget must be approved by the unanimous consent of all the
Directors. After the first full fiscal year, at or prior to
each June meeting of the Board, a general budget shall be
adopted for the ensuing fiscal year.
18. Project Budgets
In addition to the general budget, the Board
may budget at any time for specific studies, planning efforts
or assistance to whatever entity is acting as the 208 Agency.
Each project budget shall include the following:
(a) the administrative expenses allocated to
the project; f
(b) the cost of studies, assistance and /or
planning effort involved in the project;
(c) the allocation among the participating
I
members of the total project costs.
After the Board approves a project budget, it
shall be submitted to each member who has expressed a
-15-
desire to participate and is to be obligated for payment of
any amount thereunder. The Agency shall not incur any
expense for the project until the project budget has been
approved by the governing body of each of the proposed
participating members. In the event a project budget is not
approved, the cost of preparing the budget shall be divided
among the proposed participating members in accordance with
the proposed allocation of the total project costs.
19. Effect of Failure of Approval of Budget
If, after one hundred twenty (120) consecutive
calendar days from the first submission of.a general budget,
the budget fails to attain the required vote, the consenting
i
Directors or members, in the case of the general budget, may
treat the refusal of the representative Director or member
to approve the budget as a request for a withdrawal from the
Agency, in the case of failure to approve a general budget;
I
or from the project, but not from the Agency, in the case of
failure to approve a project budget by any member. The
remaining members may thereafter, upon giving the non-
consenting member thirty (30) consecutive days prior written
notice, proceed with the adoption of the revised budget and
I
the non - consenting member shall not be obligated for future
debts of the Agency or of the project, as the case may be,
nor shall it receive any benefits therefrom. The foregoing
i
is subject to the provisions of Section 31 hereof.
-16-
20. Expenditures for the Approved Budget
All expenditures within the designations and
limitations of approved general or project budgets shall be
made on the authorization of a majority of the Directors
for general budget expenditures, or of a majority of the
Directors of the participating members for other expenditures.
No expenditures in excess of those budgeted shall be made
without the unanimous consent and approval of all of the
Directors representing the member affected by the budget
under consideration.
21. Payment of Amounts Due
Amounts required to be paid by any member
shall be due and payable forty -five (45) days after receipt
of billing therefore from the Board.
22. Reimbursement of Funds
Grant funds, if any, received by the Agency
from any federal, state or local agency to pay for budgeted
expenditures for which the Agency has received.all or a
portion of said funds from its members shall be proportionally
paid to said members to reimburse the members for the funds
advanced to the Agency for the project for which grant money
has been received.
VII.
23. Initiation of Projects
No project shall be initiated by the Board
without the unanimous consent of every member, or if it.is a
-17-
project of less than all of the members, the unanimous
consent of all of the participating members. Approval of a
project budget by all of the participating members shall
constitute consent for the initiation of the project.
24. Project Members
If it is determined that less than all of
the members desire participation in proposed projects,
the participating Directors for each project shall constitute,
a subcommittee.of the Board referred to as the Project
Committee ". All actions by a project committee shall be
deemed actions of the Agency and shall be taken in the name
of the Agency; however, only the participating members of a
project shall have the rights and obligations in said project
as herein provided.
VIII.
ACCOUNTING AND AUDITS
25. Accounting Procedures
Full books and accounts shall be maintained
for the Agency in accordance with practices established by,
or consistent with, those utilized by the Controller of the
State of California for like public entities. In particular;
the Agency's controller and Treasurer shall comply strictly
with the requirements of the statute governing joint
powers agencies -- Chapter 5, Division 7, Title I of the
Government Code commencing at Section 6500.
MR M.
26. Audit
0
The records and accounts of the Agency shall
be audited annually by an independent certified public
accountant and copies of such other reports shall be filed
with the County Auditor, the State Controller, and each
participating member within six (6) months of the end of the
fiscal year under examination.
Agency
IX.
PROPERTY RIGHTS
27. Distribution of Assets and Termination of
To the extent that any funds are.received
from any member to be used for the studies, assistance, or
other planning functions, the same shall be allocated
annually,on the books of the Agency to the credit of said
contributing member. Upon termination or dissolution of the
Agency herein created, any funds in possession of the Agency,
at such time shall be distributed to the members at the time
of termination as their interests appear on the books of the
Agency.
28. Liabilities
Any liability incurred by the Agency during
the course of its existence shall be discharged from payments
hereby agreed to be made to the Agency by each of the parties
hereto in proportion to their contribution or approved
participation in projects of the Agency for which the
liability is attributable. Except as hereinabove provided,
the debts, liabilities, and obligations of the Agency shall
be the debts, liabilities, or obligations of the Agency
-19-
alone and not of the parties to this Agreement.
K.1A
FORMATION, TERM, TERMINATION, WITHDRAWAL
29. Term
The Agency shall continue until this Agreement
is rescinded or terminated as herein provided.
30. Rescission or Termination
This Agreement may be rescinded and the
Agency terminated by written consent of all members.
31. Withdrawal
Any member may withdraw from the Agency at
any time upon giving each of the members one hundred twenty
(120) days written notice prior to the end of a fiscal year;
provided, however, in the event the withdrawing member has
any rights or obligations to the Agency, said member cannot
transfer said rights or be relieved of its obligations
without the execution of a written agreement executed by it
and all members affected by such withdrawal. The Agency may
not utilize the rights, if any, of a member who has withdrawn
without first obtaining the written consent of the withdrawn
member. Upon termination, a withdrawn member will be treated
like all other members in regard to the provisions of Section
27 hereof.
32. Admission of New Members
It is recognized that public entities, other
than those hereinabove enumerated, may wish to participate
in the Agency. Such additional public entities may become
-20-
members of the Agency upon such terms and conditions as
provided by the Board and by the unanimous consent of existing
members of the Agency as evidenced by the execution of a
written addendum to this Agreement, signed by all existing
members as well as such additional member. However, the
Cities of Costa Mesa, Santa Ana, Tustin, and Orange and the
i
Water Districts of El Toro and Los Alisos are invited to
become members and shall have the right to execute this
Agreement and
duties, privi
provided they
effect within
after receipt
Amended Joint
become Member Agencies with all the rights,
Leges, and obligations under this Agreement,
execute an addendum to this Agreement to such
forty -five (45) consecutive calendar days
of written notice.of approval of this First
Exercise of Powers Agreement.
1 33. Amendments
This Agreement may be amended only by the
unanimous vote of all members.
34. Notice
Any notice or instrument required to be given
or delivered by depositing the same in any United States
Post Office, registered or certified, postage prepaid,
addressed to the addresses of the members as shown on
Exhibit "B" shall be deemed to have been received by the
party to whom the same is addressed at the expiration of
seventy -two (72) hours after deposit of the same in the
United States Post Office for transmission by registered or
certified mail as aforesaid.
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i
35. Arbitration
i
Any controversy or claim between.any two or
more parties to this Agreement, or between any such party or
parties and the Agency, in respect to the Agency's operations,
or to any claims, disputes, demands, differences, controversies,
or misunderstandings arising under, out of, or in relation
to this contract, or any breach thereof, shall be submitted
to and determined by arbitration. To the extent not
inconsistent herewith, the rules of the American Arbitration
Association shall apply. The party desiring to initiate
arbitration shall give notice of its intention to arbitrate
i
to every other party to this Agreement and the Agency. Such
I
notice shall designate as "respondents" such other parties
as the initiating party intends to have bound by any award
made therein. Any party not so designated but which desires
to join in the arbitration may, within ten (10) days of
service upon it of such notice, file a response indicating
its intention to join in and to be bound by the results of
the arbitration and further designating of any other parties
it wishes to name as respondents. Within twenty (20) days
of the service of the initial demand for arbitration, the
American Arbitration Association, hereinafter referred to as
"AAA ", shall submit simultaneously, to the initiating party
and to all parties named as respondents or filing a response
therein, an identical list of names of persons chosen from
the AAA National Panel of Arbitrators, which persons shall
-22-
n
u
be, to the extent possible, experts in the field of waste
water disposal and reclamation, as well as public law. Each
party to the dispute shall have seven (7) days from the
mailing date in which to cross off any names to which he
objects, number the remaining names indicating the order of
his preference, and return the list to the AAA. If a party
does not return the list within the time specified, all
persons named therein shall be deemed acceptable. From
among the persons who have been approved on both lists, in
accordance with the designated order of mutual preference,
the AAA shall invite the acceptance of an arbitrator to
serve. If the parties fail to agree upon one of the persons
named, or if an acceptable arbitrator is unable to act, or
if for any other reason the appointment cannot be made from
the submitted list, the AAA shall have the power to make the
appointment of the arbitrator from other members of the
panel without the submission of any additional list.
The arbitrator shall determine the rights of the
parties in accordance with the law, and the award shall be
subject to review as to the arbitrator's application of the
law by any court having jurisdiction thereof, whether or not
any mistake of law shall appear upon the face of the award.
As to all questions of facts, however, the determination of
the arbitrator shall be binding upon all parties and shall
be final. Any party shall be entitled to written findings
of fact and conclusions of law as to all issues determined by
-23-
the award. Subject to the above limitations, the award
shall be binding upon all parties to the arbitration and
judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
The arbitrator may, in his discretion, as part of
the arbitration award, impose upon any one party or allocate
among two or more of the parties, the liability for the
arbitration fees and expenses. Such allocable fees may
include the initial administration fees, fees for second and
subsequent hearings, postponement fees, and overtime fees.
Allocable expenses may include the expenses of producing
witnesses, the cost of stenographic records, the cost of any
transcripts, travel expenses of the arbitrator and Tribunal
I Administrator, the expenses of any witnesses, the costs of
any proofs produced at the direct request of the arbitrator,
and any other expenses relating directly to the arbitration.
In the event of the failure of the arbitrator to provide for
the allocation of such fees and expenses, the arbitration
fees shall be divided equally between the parties and the
expenses shall be borne by the party incurring them.
36. Severance
If any section, subsection, sentence, clause,
or phrase of this Agreement, or the application thereof, to
any of the members or any other person or circumstances, is
for any reason held invalid, the validity of the remainder
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T � t •
1,
of the Agreement, or the application of such provision to
the other members, or to any other person or circumstances,
shall not be affected thereby. Each of the members hereby
declares that it would have entered into this Agreement, and
each section, subsection, sentence, clause or phrase thereof
irrespective of the fact that one or more sections, subsections,
sentences, clauses, or phrases, or the application thereof,
to any member or any other person or circumstances be held
invalid.
37. Execution
In lieu of each party executing an original
r
agreement, each party may sign one or more identical copies
of the original agreement and their executed copy, when
filed with the Secretary of NIWA, shall constitute an
agreement between all parties who have executed such copies.
IN WITNESS WHEREOF, the parties hereto have set
their hands and seals by their respective officers thereunto
authorized the day and year first hereinabove written.
0
RESOLUTION NO.
9103
to
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE AMENDMENT NO. 2 TO JOINT EXERCISE
OF POWERS AGREEMENT CREATING NIWA (NEWPORT- IRVINE
WASTE - MANAGEMENT PLANNING AGENCY)
WHEREAS, there has been presented to the City Council
of the City of Newport Beach an Amendment No. 2 to First
Amended Joint Exercise of Powers Agreement Creating Newport -
Irvine Waste- Management Planning Agency in order to permit
NIWA to borrow money for a short period of time to pay operational
costs pending receipt of membership revenues; and
WHEREAS, the City Council has reviewed the terms
and conditions of said Amendment No. 2 and finds them to be
satisfactory and that it would be in the best interest of the
City to authorize the Mayor and City Clerk to execute said
Amendment;
NOW, THEREFORE, BE IT RESOLVED by the City Council
of the City of Newport Beach that said above - described Amendment
is hereby approved, and the Mayor and City Clerk are authorized
and directed to execute the same on behalf of the City of
Newport Beach.
I
I
ADOPTED this 23rd day of May , 1977.
Mayor
ATTEST:
City Clerk
DDO /bc
5/18/77
a
0
le
aft_,_..
AMENDMENT NO. 2 TO
FIRST AMENDED JOINT EXERCISE OF
POWERS AGREEMENT CREATING
NEWPORT - IRVINE WASTE - MANAGEMENT PLANNING AGENCY
(NIWA)
I.
R E C I T A L S:
The Newport- Irvine Waste - Management Planning
Agency (NIWA) was created by an agreement entitled "JOINT
EXERCISE OF POWERS AGREEMENT CREATING NEWPORT- IRVINE WASTE -
MANAGEMENT PLANNING AGENCY (NIWA) ", dated March 28, 1975,
hereinafter and in some instances referred to as "JPA ",
approved and entered into between Irvine Ranch Water District
and County Sanitation District No. 5 of Orange County.
The above - referenced JPA was subsequently amended
by that certain agreement entitled "FIRST AMENDED JOINT
EXERCISE OF POWERS AGREEMENT CREATING NEWPORT- IRVINE WASTE-
MANAGEMENT PLANNING AGENCY (NIWA) ", dated April 27, 1976,
hereinafter and in some instances referred to as "FIRST
AMENDED JPA ", which amended the JPA to include the following
parties as Member Entities:
(a) County Sanitation District No. 5 of
Orange County,
(b) Orange County Water District,
(c) City of Newport Beach,
(d) City of Irvine,
ft
r-0-011
66�A
(e) County of Orange,
(f) Irvine Ranch Water District,
(g) Orange County Flood Control District,
(h) Orange County Harbors, Beaches and
Parks District,
(i) California Department of Fish and Game,
(j) City of Costa Mesa, and
(k) City of Orange
An addendum to the above - referenced FIRST AMENDED
JPA, entitled "ADDENDUM NO. ONE TO FIRST AMENDED JOINT
EXERCISE OF POWERS AGREEMENT CREATING :NEWPORT- IRVINNE WASTE -
MANAGEMENT PLANNING AGENCY (NIWA) ", dated.July 22, 1976, was
subsequently approved, which amended the FIRST AMENDED JPA
to include the City of Santa Ana as a Member Entity.
An amendment to the above - referenced FIRST AMENDED
JPA entitled "AMENDMENT NO. 1 TO FIRST AMENDED JOINT EXERCISE
OF POWERS AGREEMENT CREATING NEWPORT - IRVINE WASTE- MANAGEMENT
PLANNING AGENCY (NIWA) ", dated June 15, 1976, was subsequently
approved.
II.
The parties hereto desire to further amend the
FIRST AMENDED JPA as follows:
That Paragraph III 3(i) be added to read as
follows:
-2-
� I
"(i) By a two- thirds vote of the members
of the Board of Directors, NIWA may borrow
money for a short period of time to meet
expenses necessary to the accomplishment of
the purposes of NIWA as set forth herein,
until expected revenues are available for
these expenses (1) from advances of-funds
from the Member Entities of NIWA under the
authority of Government Code Section 6504,
and /or (2) from private lending sources
pursuant to the temporary borrowing powers
granted local agencies in Government Code
Sections 53850 -53858 and 53859 - 53859.08.
As to the advances of funds from
Member Entities described above, one or
more of the Member Entities of NIWA may
make deposits in addition to amounts
allocated among members to cover approved
budget expenditures, such advanced amounts
to be repaid, with interest, upon receipt
of expected revenues. Interest shall be at
the rate at which interest is earned during
this period by funds invested in the County
Treasurer's commingled investment fund."
-3-
III.
In lieu of each party executing an.original
amendment, each party may sign one or more identical copies
of the original amendment and these executed copies, when
filed with the Secretary of NIWA, shall constitute a fully
executed amendment. This amendment shall be effective as of
the date upon which the last party hereto executes an
identical copy of this amendment.
DATED/
APPROVED AS TO FORM:
City Aftorney
CITY OF NEWPORT BEACH
(Name of Member Agency)
By
Title Mayor
By
Title City Clerk
-4- i
f
0 4
RESOLUTION NO. 8646
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A JOINT
POWERS AGREEMENT BETWEEN THE IRVINE RANCH
WATER DISTRICT, CITY OF NEWPORT BEACH,
ET AL, IN CONNECTION WITH THE NEWPORT
IRVINE WASTE MANAGEMENT PLANNING AGENCY
WHEREAS, there has been presented to the,City
Council of the City of Newport Beach a certain joint powers
agreement between the Irvine Ranch Water District, City of
Newport Beach, et al in connection with the Newport Irvine
Waste Management Planning Agency; and
WHEREAS, the City Council has considered the terms
and conditions of said agreement and found them to be fair
and equitable, and in the best interests of the City;
NOW, THEREFORE, BE IT RESOLVED by the City Council
of the City of Newport Beach that said agreement above
described is approved, and the Mayor and City Clerk are hereby
authorized and directed to execute the same on behalf of the
City of Newport Beach.
ADOPTED this 24th day of November , 1975.
ATTEST:
City Clerk
DDO:yz
11/24/75