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HomeMy WebLinkAboutC-1775 - Newport-Irvine Waste Water Management Planning Agency; see also C-1804.. .L.� .. 1 ,. \ /r . I '.1 �. � =tea .,..� ��1 FIRST AMENDED JOINT EXERCISE OF POWERS AGREEMENT CREATING NEWPORT - IRVINE WASTE - MANAGEMENT PLANNING AGENCY (NIWA) i 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 CHP:wm 2/3 7 i Watershed or Newport Bay or both. i 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. CHP:wm 2/3/76 2. 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, I 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 CHP:wm 2/3/76 3. 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; • I (e) To acquire, hold and dispose of property; (f) To incur debts, liabilities or obligations subject to limitations herein set forth; 4. (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 CHP:wm i 2/3/76 6. t l 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 CHP:wm 2/3/76 7. 0 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 CHP:wm 2/3/76 8- 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), i 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. 9., _. 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 1 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 i other duties under this Agreement. None of the officers, agents, or 10. i 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 I 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 i ,I i s� i I j i l 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 1 i 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, 12. - .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 i i 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 t .14. 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 J 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 15. 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 i 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 CHP:wm 2/3/76 16. 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 i 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. i 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. _ I 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 CHP:wm 2/3/76 17. 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 i 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 i 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 i 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. i 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 i facility or obligations to the Agency, said member cannot sell, lease I or transfer said rights or be relieved'of its obligations, except l ..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 i entities, other than the or`_ginal members hereinabove enumerated, may i wish to participate in the Agency. Additional public entities may become members of the Agency upon such terms and conditions as provided 19. . r 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 i 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. CHP cwm- 2/3/76 20. 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. -2- 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. -4- 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. -10- 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. -21- 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 -24- 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