19.3 Consents. Whenever any consent and/or approval is required under this Agreement from any Member Agency, said consent and/or approval shall not be unreasonably withheld.
19.4 Construction and Interpretation. It is agreed and acknowledged by the Member Agencies that this Agreement has been arrived at through negotiation, and that each Member Agency has had a full and fair opportunity to revise the terms of this Agreement. Consequently, the normal rule of construction that any ambiguities are to be resolved against the drafting Member Agency shall not apply in construing or interpreting this Agreement.
19.5 Waiver. The waiver at any time by any Member Agency of its rights with respect to a default or other matter arising in connection with this Agreement shall not be deemed a waiver with respect to any subsequent default or matter.
19.6 Remedies Not Exclusive. The remedies provided in this Agreement are cumulative and not exclusive, and are in addition to any other remedies that may be provided by law or equity. The exercise by either Member Agency of any remedy under this Agreement shall be without prejudice to the enforcement of any other remedy.
19.7 Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not render the other provisions unenforceable, invalid or illegal.
19.8 Successors and Assigns. Except as otherwise provided by law, the rights and duties of the Member Agencies under this Agreement shall not be assigned or delegated without the prior written consent of the other Member Agency. Any attempt to assign or delegate such 3262
46700.02420\42449849.1
rights or duties in contravention of this Agreement shall be null and void. Any approved assignment or delegation shall be consistent with the terms of any contracts, resolutions, indemnities and other obligations of the Agency then in effect, and may be subject to such additional reasonable conditions of approval imposed by the Member Agency approving the assignment or delegation.
19.9 No Third Member Agency Beneficiaries. This Agreement shall not be construed to create any third party beneficiaries. This Agreement is for the sole benefit of the Member Agencies, and their permitted successors, transferees and assignees, and no other person or entity shall be entitled to rely upon or receive any benefit from this Agreement or any of its terms.
19.10 Amendment. This Agreement may be modified or amended only by a subsequent written agreement approved by the governing board of each Member Agency and executed by both Member Agencies pursuant to the terms and conditions of this Agreement.
19.11 Governing Law and Venue. Except as otherwise required by law, this Agreement shall be interpreted, governed by, and construed under the laws of the State of California. The County of San Bernardino shall be the venue for any litigation concerning the enforcement or construction of this Agreement.
19.12 Attorney Fees. In the event any legal action is brought to enforce or construe this Agreement, the prevailing party shall be entitled to an award of reasonable attorney fees, expert witness and consulting fees, litigation costs and costs of suit.
19.13 Notice. Any notice, demand, invoice or other communication required or permitted to be given under this Agreement shall be in writing and either served personally or sent by prepaid, first class U.S. mail to the City Clerk and City Attorney of each Member Agency.
Any notice or other communication served by personal delivery shall be deemed received when actually delivered. Any notice or other communication shall be deemed as received three days after deposit in United States mail, postage prepaid, return receipt requested.
19.14 Counterparts. This Agreement may be executed by the Member Agencies in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. [signature page follows]
3263
46700.02420\42449849.1
IN WITNESS WHEREOF, the Member Agencies hereto have executed this Joint Exercise of Powers Agreement as of the date last executed as set forth below.
CITY OF ONTARIO
By
City Manager
Dated
ATTEST:
By
City Clerk
APPROVED AS TO FORM:
City Attorney
CITY OF CHINO
By
City Manager
Dated
ATTEST:
By
City Clerk
APPROVED AS TO FORM:
City Attorney
3264
46700.02420\42449849.1
EXHIBIT A
ADMINISTRATIVE SERVICES
Personnel: To be separately hired/controlled by Agency, and/or to be provided by Member Agencies by agreement as part of their overall contribution.
Specifically, the Agency will require the following services:
Human Resources/Risk Management
Dispatch Services
Information Technology Management
Fleet Management
Procurement and Purchasing
Legal Services
Facilities Management (including janitorial)
Finance/Budgeting
Provision by a Member Agency of any of the above services shall be compensated by the Agency as set forth in a separate written agreement or as described below for Interim Administrator(s). Compensation methods may include payment of a quarterly fee by the Agency to the Member Agency or recognition of the quarterly amount as an indirect contribution made by the respective agency to be deducted from the contributing Member Agency’s proportional allocation of costs for the operation of the Agency.
Interim Administration:
Until the Agency directly employs personnel to provide administrative services for the Agency or enters into a separate written agreement for employees of a Member Agency to provide administrative services, the Board may identify one or more Member Agencies to provide specified services as the Agency’s “Interim Administrator(s)” pursuant to the terms and conditions set forth below:
In no event shall the term of Interim Administrator extend beyond July 1, 2025, without approval of the Board, and any extension shall not last more than one (1) year. As Interim Administrator, the Member Agency shall perform all services reasonably necessary for the management and administration of the Agency, including but not limited to identifying key staff that will provide services to the Board and the Agency, including staff who shall serve as Secretary and Treasurer/Auditor-Controller pursuant to Section 7.1(b)–(d) of the Agreement.
Such key staff shall at all times remain under the exclusive direction and control of the Member Agency. The Member Agency shall be responsible for all compensation, supervision, and administrative costs relating to Member Agency staff providing services as the Interim Administrator.
3265
46700.02420\42449849.1
In order to compensate the Member Agency for the performance of services as Interim Administrator, the agreed value of the Member Agency’s indirect contribution shall be set forth in a writing approved by the Board and the Member Agency’s City Manager following the Formation Date, and may be revised as necessary in a writing approved by the Board and the Member Agency based on the Member Agency’s projections of the cost to perform its services as Interim Administrator. The compensation may be provided by payment of a quarterly fee by the Agency to the Member Agency or recognition of the quarterly amount as an indirect contribution made by the respective agency to be deducted from the contributing Member Agency’s proportional allocation of costs for the operation of the Agency.
For Agency-budgeted expenses incurred by the Member Agency for contractors, consultants, and other outside services, materials, and supplies, the Member Agency shall draw upon and expend its own funds and the Agency shall reimburse the Member Agency from Agency funds upon receipt of a quarterly invoice from the Member Agency or be credited in its quarterly payments to the Agency. The Agency shall pay each invoice or recognize the credit within thirty (30) days of its receipt. Interim Administrator contributions and reimbursable expenditures by the Member Agency shall be subject to the Agency’s adopted budget, unless such amounts and reimbursable expenditures have been previously approved by the Agency’s Board. A representative of the Member Agency, which shall be an employee of the Member Agency that is not assigned to deliver services as Interim Administrator, shall serve as the main point of contact for the Agency. Any concerns regarding the Member Agency’s performance as Interim Administrator, including staff identified to perform services required of the Interim Administrator, shall be relayed to the designated point of contact.
The Agency shall not have the ability to direct how services are to be performed, specify the location where services are to be performed, or establish hours or days for the performance of services provided by Member Agency staff. The Agency shall not have any right to discharge or discipline any member of the Member Agency’s staff. The Member Agency is retained as an independent contractor and is not an employee of Agency. No employee or agent of the Member Agency shall become an employee of the Agency pursuant to the Member Agency’s role as Interim Administrator, and Member Agency employees or agents assigned to provide services under this Agreement shall remain under the exclusive control of the Member Agency. The Agency shall defend, indemnify, and hold harmless the Member Agency serving as Interim Administrator and its officials, officers, employees, contractors, agents, and authorized volunteers from any and all claims, demands, damages, liabilities, fines, expenses, and related costs and fees, including attorney’s fees, arising from or related to the Member Agency’s performance of services as the Interim Administrator. 3266
46700.02420\42449849.1
EXHIBIT B
CONTRIBUTION FORMULA
From and after the Formation Date, each Member Agency shall pay for the ongoing costs of the Agency according to the following formula, to be initially calculated at the time of the formation of the Agency.
Initial Share of Contributions / Voting Shares
Ontario 65%
Chino 35%
Determination of Future Share of Contributions / Voting Shares Thereafter, each Member Agency’s proportional share will be recalculated: (1) once every five years, and/or (2) upon a unanimous vote to authorize the induction of a New Member Agency pursuant to the Agreement. Expenses of the Agency are to be paid by each Member Agency in proportion to the services provided to each Member Agency.
Determination of the proportion of services provided to each Member Agency shall be based upon actual or estimated number of calls for animal control service from each Member Agency, the number of animals sheltered from each Member Agency, and/or other factors reasonably bearing on the Agency’s costs, as reasonably determined by the Board. For example, if Ontario receives 65% of the Agency’s services and Chino receives 35%, Ontario’s funding contribution would be 65%, Chino’s would be 35%.
Every five years and upon a unanimous vote to authorize the induction of a New Member Agency, the Board shall adopt an addendum to this Exhibit B showing the updated Share of Contributions / Voting Shares, which shall be ministerially added to the Agreement.
Offsets
Each Member Agency may offset its financial contributions by licenses/fee revenues, and/or by making “in-kind” contributions such as personnel or meeting room space.
Costs for such contributions shall be reasonable and as set forth in a written agreement between a Member Agency and the Agency.
Additional Costs for Special Services
If a Member Agency wants additional animal services in its jurisdictional area, the cost allocation for such additional service can be made upon action by the Board and reflected in a written “special services” agreement with the Member Agency. Full cost of “special services” should be borne by the requesting Member Agency.
Services to Other Agencies
Other public agencies who contract with the Agency for services in their jurisdiction but who do not qualify or wish to be inducted as Member Agencies will be responsible for paying their actual costs pursuant to a written “contract services” agreement with the 3267
46700.02420\42449849.1
Agency, plus any startup or entry costs deemed appropriate by the Board. Such public agency will be considered only a “contracting agency” and not a Member Agency with voting power or other rights of membership for purposes of this Agreement. 3268
46700.02420\42449849.1
EXHIBIT C
INVENTORY OF EQUIPMENT AND PROPERTY
3269