HomeMy WebLinkAboutStaff Report 2304-1239 City Council
Staff Report
From: City Manager
Report Type: CONSENT CALENDAR
Lead Department: Public Works
Meeting Date: June 5, 2023
Report #:2304-1239
TITLE
Approval of Second Amended and Restated Joint Powers Agreement for the San Francisquito
Creek Joint Powers Authority, CEQA: Not a Project
RECOMMENDATION
Staff recommends that Council approve and authorize the City Manager or their designee to
execute the Second Amendment and Restated Joint Powers Agreement (Attachment A) among
the cities of Palo Alto, Menlo Park, and East Palo Alto; the Santa Clara Valley Water District; and
the San Mateo County Flood and Sea Level Rise Resiliency District, for the primary purpose of
restating the terms of the agreement forming the San Francisquito Creek Joint Powers
Authority, managing the joint contribution of services, and providing policy direction on issues
of mutual concern relating to San Francisquito Creek.
BACKGROUND
On May 18, 1999, the City Council approved the San Francisquito Creek Joint Powers
Agreement ).1 This agreement was made by and among the City of Menlo Park, the City of Palo
Alto, the City of East Palo Alto, the Santa Clara Valley Water District, and the San Mateo Flood
Control District (“Member Entities”), all of which are public entities organized and operating
under the laws of the State of California and each of which is a public agency as defined in
California Government Code section 6500, to create the San Francisquito Creek Joint Powers
Authority (SFCJPA).
On April 20, 2020, the City Council approved the Joint Powers Agreement for the San
Francisquito Creek Joint Powers Authority Amended and Restated as of January 1, 2020.2 The
Amended and Restated Joint Powers Agreement contained minor procedural updates and
1 City Council, May 18, 1999, Agenda Item #14, SR #214:99https://recordsportal.paloalto.gov/Weblink/DocView.aspx?id=66475&dbid=0&repo=PaloAlto
2 City Council, April 20, 2020, Agenda Item #7, SR #11204
https://www.cityofpaloalto.org/files/assets/public/agendas-minutes-reports/reports/city-manager-
reports-cmrs/year-archive/2020/id.-11204-amended-and-restated-agreement-for-the-san-francisquito-
creek-joint-powers-authority.pdf?t=58443.4
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other agreement language modifications including San Mateo County Flood and Sea Level Rise
Resiliency District (OneShoreline) assuming revenues and responsibility of its San Mateo County
Flood Control District predecessor. Many of these updates involved minor language changes to
reflect current practices of the San Francisquito Creek Joint Powers Authority (SFCJPA) or
updates to State law related to JPAs. However, there remained outstanding substantive policy-
oriented updates.
ANALYSIS
•Reconciliation of original document text to actual practice (for example: hiring of SFCJPA
staff, and board roles).
•Clarification of SFCJPA authority for and decision-making process regarding land
acquisition.
•Addition of language establishing that the SFCJPA shall not exercise the power of
eminent domain in the jurisdiction of a Member Entity unless the Member Entity adopts
a resolution consenting to the use of eminent domain within its jurisdiction.
•Clarification of OneShoreline representation on the SFCJPA Board to prevent duplicative
representation from one member organization.
•Clarification of SFCJPA scope regarding shoreline projects and watershed stewardship.
•Modernization and simplification of language including sections names as they appear
on the Table of Contents for clarity.
•Addition of now-standard clauses common to local government agreements.
•Format reconciliation.
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FISCAL/RESOURCE IMPACT
STAKEHOLDER ENGAGEMENT
ENVIRONMENTAL REVIEW
ATTACHMENTS
APPROVED BY:
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SECOND AMENDED AND RESTATED
JOINT POWERS AGREEMENT
FOR THE
SAN FRANCISQUITO CREEK
JOINT POWERS AUTHORITY
AMENDED AND RESTATED
as of
__________________, 2023
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Attachment A - Second
Amended and Restated
Joint Powers Agreement
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i
SECOND AMENDED AND RESTATED JOINT POWERS AGREEMENT FOR
THE SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY
TABLE OF CONTENTS
Page
1. CREATION OF THE SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY ......... 1
2. PURPOSES ........................................................................................................................ 2
3. PARTIES TO AGREEMENT ............................................................................................... 2
4. TERM OF AGREEMENT .................................................................................................... 2
5. POWERS OF THE AUTHORITY ......................................................................................... 2
6. MEMBER ENTITY APPROVALS AND RESPONSIBILITIES .............................................. 3
7. CAPITAL PROJECT PARTICIPATION ............................................................................... 4
8. MEMBERSHIP .................................................................................................................... 4
9. BOARD OF DIRECTORS ................................................................................................... 4
10. OFFICERS .......................................................................................................................... 5
11. FISCAL YEAR ..................................................................................................................... 5
12. OPERATING BUDGET ....................................................................................................... 5
13. ANNUAL AUDIT AND AUDIT REPORTS ............................................................................ 6
14. ESTABLISHMENT AND ADMINISTRATION OF FUNDS.................................................... 6
15. WITHDRAWAL ................................................................................................................... 6
16. EXPULSION ....................................................................................................................... 7
17. TERMINATION AND DISTRIBUTION ................................................................................. 7
18. PROHIBITION AGAINST ASSIGNMENT ............................................................................ 8
19. AMENDMENTS .................................................................................................................. 8
20. SEVERABILITY .................................................................................................................. 8
21. INDEMNIFICATION ............................................................................................................ 8
22. CHOICE OF LAW AND VENUE .......................................................................................... 8
23. COUNTERPARTS .............................................................................................................. 9
24. AGREEMENT COMPLETE ................................................................................................. 9
25. NO THIRD-PARTY BENEFICIARIES .................................................................................. 9
26. NONWAIVER OF RIGHTS .................................................................................................. 9
27. AGREEMENT EXECUTION ................................................................................................ 9
28. EQUAL OPPORTUNITY ..................................................................................................... 9
29. NOTICES ...........................................................................................................................10
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Attachment A - Second
Amended and Restated
Joint Powers Agreement
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SECOND AMENDED AND RESTATED JOINT POWERS AGREEMENT
FOR THE SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY
This Second Amended and Restated Agreement Joint Powers Agreement for the San
Francisquito Creek Joint Powers Authority (Agreement) is made by and among the City of East
Palo Alto, the City of Menlo Park, the City of Palo Alto, the San Mateo County Flood and Sea
Level Rise Resiliency District, and the Santa Clara Valley Water District (each a Member Entity
and collectively, the Member Entities), all of which are public entities organized and operating
under the laws of the State of California, and each of which is a public agency as defined in
California Government Code section 6500. This Agreement is effective upon full execution by all
Member Entities (Effective Date).
RECITALS
A. The Joint Exercise of Powers Act, Government Code sections 6500 et seq. (JPA Law),
permits two or more local public entities by agreement to jointly exercise any power
common to them.
B. Following years of effort to address environmental and flooding concerns related to the
watershed and floodplain of San Francisquito Creek (encompassing approximately
50 square miles from the Santa Cruz Mountains to San Francisco Bay), and soon after
the flood of record in 1998 damaged approximately 1,700 properties, the Member
Entities established the San Francisquito Creek Joint Powers Authority (Authority)
pursuant to that certain “Joint Powers Agreement Creating the San Francisquito Creek
Joint Powers Authority,” dated as of May 18, 1999, to collectively contribute resources
and implement policies and projects of mutual interest relating to the primary natural
features that unite them, including the San Francisquito Creek.
C. The Joint Powers Agreement Creating the San Francisquito Creek Joint Powers
Authority, dated as of May 18, 1999, was thereafter revised pursuant to the Joint Powers
Agreement for the San Francisquito Creek Joint Powers Authority, Amended and
Restated as of January 1, 2020.
D. Each Member Entity agrees to contribute resources and funding towards implementation
of projects of mutual interest and benefit relating to San Francisquito Creek and San
Francisco Bay shoreline.
E. The governing body of each Member Entity has determined that it is in the Member
Entity’s best interest and the public interest that this Second Amended and Restated
Joint Powers Agreement for the San Francisquito Creek Joint Powers Authority be
executed.
NOW, THEREFORE, the Member Entities, by, between and among themselves, in
consideration of the mutual benefits, promises, and agreements set forth below, hereby agree
as follows:
1. Creation of the San Francisquito Creek Joint Powers Authority
Pursuant to the JPA Law, the Member Entities create a public agency, separate and
apart from the Member Entities to be known as the San Francisquito Creek Joint Powers
Authority (Authority). Pursuant to Government Code section 6508.1, the debts, liabilities,
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and obligations of the Authority shall not constitute debts, liabilities, or obligations of any
party to this Agreement. A Member Entity may separately contract for or assume
responsibility for specific debts, liabilities, or obligations of the Authority. For purposes of,
and to the extent required by, Government Code section 6509, in exercising its powers,
the Authority shall be subject to the restrictions upon the manner of exercising the
powers of the City of Menlo Park, except as otherwise authorized or permitted by the
JPA Law.
2. Purposes
This Agreement is entered into by Member Entities under the JPA Law for the following
purposes:
a. Develop and maintain projects to reduce the risk of flooding in and around San
Francisquito Creek.
b. Develop and maintain projects to reduce the risk of coastal flooding from along
the San Francisco Bay shoreline.
c. Maintain, restore, enhance the environment, and create recreational
opportunities, where possible, in implementing the other purposes stated herein.
d. Provide regional information related to flood preparedness and emergency
response agencies and others to enhance their ability to communicate about and
respond to flood risks.
e. Secure and administer funding for the benefit of the Authority’s operations,
capital projects, and related work.
3. Parties to Agreement
Withdrawal or expulsion of any Member Entity from this Agreement does not affect this
Agreement nor each Member Entity’s intent to contract with the Member Entities then
remaining. Pursuant to Assembly Bill 825 (Chapter 292, Statutes of 2019), which
amended the San Mateo County Flood Control District Act to provide for the San Mateo
County Flood and Sea Level Rise Resiliency District, the Member Entities agree that the
San Mateo County Flood and Sea Level Rise Resiliency District (OneShoreline) is the
entity formerly known as the San Mateo County Flood Control District, and as such is
subject to the terms and conditions of this Agreement.
4. Term of Agreement
This Agreement continues in full force until terminated in accordance with
paragraph 17. Termination and Distribution.
5. Powers of the Authority
The Authority shall have all powers common to the Member Entities, and such additional
powers granted to it by law, necessary to fulfill the purposes of this Agreement. The
Authority, through its Board of Directors, is authorized to do all acts necessary to fulfill
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the purposes of this Agreement referred to in paragraph 2. Purposes including, but not
limited to, each of the following:
a. Make and enter into contracts;
b. Incur debts, liabilities, and obligations, provided that no debt, liability, or
obligation of the Authority shall be a debt, liability, or obligation of a Member
Entity except as separately agreed to by a Member Entity;
c. Receive contributions and donations of property, funds, services, and other forms
of assistance from any source;
d. Acquire, hold, and dispose of real property, including, without limitation, the
power to convey real property to a Member Entity, as deemed appropriate by the
Authority’s Board of Directors, and as accepted by the Member Entity, provided,
however, that the Authority shall not exercise the power of eminent domain in the
jurisdiction of a Member Entity unless the Member Entity adopts a resolution
consenting to the Authority’s exercise of eminent domain within its jurisdiction.
e. Sue and be sued in its own name;
f. Contract with independent consultants and contractors;
g. Receive, collect, and disburse monies;
h. Hire staff in conformance with an approved operating budget;
i. Assign, delegate, or contract with a Member Entity or third party to perform any
of the Authority’s duties including, but not limited to, acting as administrator for
the Authority; and
j. Exercise all other powers and carry out other duties as necessary and proper to
fulfill the provisions of this Agreement.
6. Member Entity Approvals and Responsibilities
Each Member Entity has the approval authority, obligations, and responsibilities set forth
in this Agreement. The Member Entities retain the following powers:
a. The designation of each Member Entity’s Director and alternate as specified in
paragraph 9. Board of Directors;
b. Approval of an amendment to this Agreement as specified in
paragraph 19. Amendments;
c. Approval of the Member Entity’s funding or other contribution for a capital project
as specified in paragraph 7. Capital Project Participation; and
d. Approval of the Member Entity’s contribution to the annual budget of the
Authority as specified in paragraph 12. Operating Budget.
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7. Capital Project Participation
The Authority may approve a contract for a capital project or any discrete phase of a
capital project in accordance with the following conditions:
a. The Authority’s Board of Directors has determined that the Authority will have the
funds necessary to pay for that capital project or that discrete phase of the
project being approved; and
b. Any funding or other contribution from a Member Entity to that capital project or
to that discrete phase of the capital project has been approved by the Member
Entity’s governing body or designee. Each Member Entity shall have the right to
determine independently whether to participate in any capital project.
8. Membership
Member Entities may be added to the Authority by amending this Agreement, as
described in paragraph 19. Amendments, and Member Entities may withdraw or be
expelled, as described in paragraph 15. Withdrawal and paragraph 16. Expulsion.
9. Board of Directors
a. Directors. There shall be a Board of Directors to govern the Authority. The
Board of Directors shall be comprised of one Director designated by each
Member Entity. Each Director shall have one vote on the Board of Directors.
Each Director shall have an alternate designated by the governing body of each
Member Entity. No two Directors and no two Alternate Directors shall be from
the same governing body of any Member Entity.
b. Alternates. All references in this Agreement to a Director refer to and include the
Director’s alternate, when acting in place of a Director.
c. Compensation. Directors are not entitled to compensation by the Authority. The
Board of Directors may authorize reimbursement of expenses incurred by
Directors in connection with serving as a Director.
d. Term. The term of office of a Director shall terminate when such person ceases
to be a member of the governing body of the Member Entity or the Member Entity
designates another Director and/or alternate to serve.
e. Powers. The powers of the Board of Directors are each of the powers of the
Authority not specifically reserved to the Member Entities by this Agreement. No
Action of the Authority shall be effective or binding unless and until such action
has been authorized by the Board of Directors and either 1) is consistent with the
budget approved by the Board of Directors pursuant to paragraph 12. Operating
Budget, or 2) complies with paragraph 7. Capital Project Participation.
f. Meetings. The Board of Directors shall hold at least one regular meeting each
year, at which time the Board of Directors shall elect its officers pursuant to
paragraph 10. Officers. The Board of Directors shall fix the date, hour, and place
at which each regular meeting is to be held. To the extent practicable, each
Board of Directors meeting shall be held in Northern Santa Clara County or
Southern San Mateo County. The Chair presides at all meetings. A special
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meeting may be called upon written request by the Chair or at least two
Directors.
g. Brown Act. Each regular, adjourned regular, or special meeting of the Board of
Directors shall be called, noticed, held, and conducted in accordance with the
Ralph M. Brown Act (Government Code §54950, et seq.).
h. Notices, Agendas, Minutes. The Board of Directors shall appoint or hire a Clerk
of the Board of Directors who shall be responsible for preparing minutes of each
regular and special meeting of the Board of Directors, and issuing notices and
agendas in accordance with the law.
i. Quorum. No business may be transacted by the Board of Directors without a
quorum of members of the Board of Directors being present except that less than
a quorum may adjourn from time to time. A quorum consists of a majority of the
members of the Board of Directors.
j. Action of the Board of Directors. Except as otherwise specified in this
Agreement, or required by law, any action of the Board of Directors shall require
a vote of a majority of the Directors.
10. Officers
a. The officers of the Authority are the Chair, and Vice-Chair.
b. The officers shall be elected or appointed by the Board of Directors at its first
meeting of the calendar year unless delayed by an action of the Board of
Directors.
c. The term of office for Chair and Vice Chair shall be determined by a vote of the
Board of Directors. The officers shall assume the duties of their offices upon
being elected or appointed, as appropriate.
d. If the Chair or Vice Chair ceases to be a member of the Board of Directors, the
Board of Directors shall elect or appoint a new officer at the next regular meeting
of the Board of Directors held after the vacancy occurs.
11. Fiscal Year
Each fiscal year of the Authority shall begin on July 1 of a calendar year and end on
June 30 of the next following calendar year.
12. Operating Budget
a. The Board of Directors shall adopt an annual operating budget, which shall be
separate from the budget for any capital project of the Authority. The operating
budget shall include the proposed contribution from each Member Entity and
other sources of income for the fiscal year.
b. The operating budget shall not be effective unless and until the governing body
of each Member Entity approves that Member Entity’s contribution to the
operating budget.
c. A Member Entity’s contribution shall become due and payable to the Authority
upon adoption of the annual operating budget by the Board of Directors and
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approval of the Member Entity’s contribution to the budget by that Member
Entity’s governing body.
13. Annual Audit and Audit Reports
The Board of Directors shall cause an annual financial audit to be made by an
independent certified public accountant with respect to all Authority receipts,
disbursements, other transactions, and entries into the books. A report of the financial
audit shall be filed as a public record with each Member Entity. The audit shall be filed
no later than as required by State law. The Authority shall pay the cost of the financial
audit from its annual operating budget in the same manner as other administrative costs.
14. Establishment and Administration of Funds
a. Accountability. The Authority is responsible for the strict accountability of all
funds and reports of all receipts and disbursements. It shall comply with every
provision of law relating to the establishment and administration of funds, in
particular, Government Code §6505. The funds shall be accounted for on a full
accrual basis.
b. Investment/Disbursement. The Authority shall receive and disburse funds only
in accordance with policies and procedures established by the Board of Directors
and in conformity with applicable law.
c. Insurance/Bonds. The Authority shall procure, carry and maintain, in full force
and effect, at all times during the term of this Agreement, such insurance and
bonds to protect the Authority and the Board of Directors, officers, employees,
agents, and Member Entities, as deemed appropriate by the Board of Directors.
d. Depository and Auditor Controller. The Board of Directors shall designate one
of its officers, employees or a third party to perform all acts required by
Government Code §6505 (regarding an annual audit), §6505.1 (regarding charge
of and access to property), §6505.5 (regarding the depository and custodian of
money), and §6505.6 (regarding independent audit where an officer or employee
acts as treasurer, auditor, or both), as such laws are amended from time to time.
15. Withdrawal
a. Member Entities may withdraw from the Authority for subsequent fiscal years by
providing written notice to the Authority and each Member Entity on or before
May 1 of any fiscal year. Withdrawal shall be effective on July 1 of the next fiscal
year. This shall be the exclusive means by which a Member Entity may withdraw
from the Authority.
b. Any Member Entity that withdraws shall remain liable for any budget
contributions or capital project participation approved before withdrawal.
c. Any Member Entity that withdraws shall remain liable for any and all demands,
claims, or liabilities of any nature, including death or injury to any person,
property damage, or any other loss caused by or arising out of that Member
Entity’s performance or failure to perform the obligations assumed before the
Member Entity withdraws from this Agreement. Any Member Entity that
withdraws shall remain subject to the provisions of paragraph 21. Indemnification
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with respect to any event or occurrence taking place before the Member Entity
withdraws.
16. Expulsion
a. The Authority may expel a Member Entity from the Authority by a four-fifths (4/5)
vote of the Authority Board of Directors for a breach of this Agreement
determined by the Board of Directors to be a material breach.
b. Any Member Entity that has been expelled pursuant to this paragraph shall have
no further liability or obligation pursuant to this Agreement after the effective date
of such expulsion; except such Member Entity shall remain liable for any and all
demands, claims, or liabilities of any nature, including death or injury to any
person, property damage, or any other loss caused by or arising out of that
party’s performance or failure to perform the obligations assumed before the
Member Entity was expelled, including any budget contributions or capital project
participation approved before expulsion.
c. Any Member Entity that has been expelled shall remain subject to the provisions
of paragraph 21. Indemnification with respect to any event or occurrence taking
place before the Member Entity was expelled.
17. Termination and Distribution
a. Termination. This Agreement shall continue until terminated. This Agreement
may be terminated by the written consent of four-fifths (4/5) of the Member
Entities. The Agreement may only be terminated after disposing of all claims,
distribution of assets, and performance of all other functions necessary to
conclude the obligations and affairs of the Authority.
b. Concluding Affairs. The Board of Directors is vested with all powers of the
Authority for the purpose of concluding and dissolving the business affairs of the
Authority, including for the disposition, division, or distribution of any property
acquired as a result of the joint exercise of powers.
c. Surplus. In the event that the Authority is terminated, any surplus money on
deposit in any fund or account of the Authority shall be returned to Member
Entities in proportion to the contributions made to that fund or account, as
required by Government Code §6512.
d. Property. All real property and any improvements thereon, that were owned by a
Member Entity and contributed to the Authority shall be returned to the Member
Entity, upon its approval, that contributed such property.
e. Member Entity Obligations. In no event shall any funds or assets be
distributed, divided or returned to a Member Entity until such Member Entity has
either paid their share of all outstanding debts and obligations that were incurred
while they were a Member Entity, or executed a contract with the Authority to pay
for all outstanding debts and obligations that were incurred while they were a
Member Entity.
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18. Prohibition Against Assignment
No Member Entity may assign a right, claim, or interest it may have under this
Agreement, and any such assignment shall be void. No creditor, assignee, or third-party
beneficiary of a Member Entity has a right, claim, or title to any part, share, interest,
fund, or asset of the Authority.
19. Amendments
This Agreement may only be amended by approval by the governing body for each and
every Member Entity. A proposed amendment must be submitted to each Member Entity
at least thirty (30) days in advance of the date on which it will be considered. An
amendment is effective upon full execution by all Member Entities.
20. Severability
If a court of competent jurisdiction holds any provision of this Agreement to be illegal,
unenforceable, or invalid in whole or in part for any reason, the validity and enforceability
of the remaining provisions, or portions of them, will not be affected, unless an essential
purpose of this Agreement would be defeated by the loss of the illegal, unenforceable, or
invalid provision.
21. Indemnification
a. Funds of the Authority may be used to defend, indemnify, and hold harmless the
Authority, any Member Entity, any member of the Board of Directors, and each
officer, employee and agent of the Authority or Member Entities, for their actions
taken within the scope of their duties while acting on behalf of the Authority.
b. In lieu of and notwithstanding the pro rata risk allocation, which might otherwise
be imposed between the Member Entities pursuant to Government Code
Section 895.6, the Member Entities agree that all losses or liabilities incurred by
a Member Entity shall not be shared pro rata but, instead, the Member Entities
agree that, pursuant to Government Code Section 895.4, each Member Entity
hereto shall fully indemnify and hold each of the other Member Entities, their
officers, board members, employees, and agents, harmless from any claim,
expense or cost, damage or liability imposed for injury (as defined in Government
Code 810.8) occurring by reason of the negligent acts or omissions or willful
misconduct of the indemnifying Member Entity, its officers, employees, or agents,
under or in connection with or arising out of any work, authority, or jurisdiction
delegated to such Member Entity pursuant to this Agreement. No Member Entity,
nor any officer, board member, employees, or agent thereof shall be responsible
for any damage or liability occurring by reason of the negligent acts or
omissions or willful misconduct of the other Member Entity hereto, its officers,
board members, employees, or agents, under or in connection with or arising out
of any work, authority, or jurisdiction delegated to such other Member Entity
pursuant to this Agreement. The rights, duties, and obligations of the Member
Entities as set forth above in this paragraph 21. Indemnification, survive
completion, termination, expiration, and suspension of this Agreement.
22. Choice of Law and Venue
The Parties agree that this Agreement is to be governed, construed, and enforced in
accordance with the laws of the State of California. The Parties also agree that the
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venue of any litigation arising out of or connected with this Agreement will lie exclusively
in the state trial court or Federal District Court located in Santa Clara County or San
Mateo County in the State of California. The Parties consent to jurisdiction over their
persons and over the subject matter of any such litigation in such courts, and consent to
service of process issued by such courts.
23. Counterparts
This Agreement may be executed in counterparts, each of which shall be an original, but
all of which shall constitute one instrument.
24. Agreement Complete
The foregoing constitutes the full and complete Agreement of the Member Entities.
There are no oral understandings or agreements not set forth in writing herein.
25. No Third-Party Beneficiaries
Nothing in this Agreement, whether express or implied, shall be construed to give any
person or entity, other than the Parties hereto, any legal or equitable right, remedy, or
claim under or in respect of this Agreement or any covenants, conditions, or provisions
contained herein.
26. Nonwaiver of Rights
The failure of either Party to this Agreement to object to or to take affirmative action with
respect to any conduct of the other Party that is in violation of the terms of this
Agreement will not be construed as a waiver thereof, or as waiver of any future breach
or subsequent wrongful conduct.
27. Agreement Execution
Unless otherwise prohibited by law or policy of any Member Entity, the Member Entities
agree that an electronic copy of a signed agreement, or an electronically signed
agreement, has the same force and legal effect as an agreement executed with an
original ink signature. The term “electronic copy of a signed agreement” refers to a
transmission by facsimile, electronic mail, or other electronic means of a copy of an
original signed agreement in a portable document format. The term “electronically signed
agreement” means an agreement that is executed by applying an electronic signature
using technology in compliance with the Electronic Signature Act (California Civil Code
§1633).
28. Equal Opportunity
a. Equal Opportunity Employer
Each of the Member Entities is an equal opportunity employer and requires their
contractors to have and adhere to a policy of equal opportunity and non-
discrimination, including that such contractors will comply with all applicable
federal, state, local laws and regulations, and will not discriminate against any
subcontractor, employee, or applicant for employment in the recruitment, hiring,
employment, utilization, promotion, classification or reclassification, transfer,
recruitment advertising, evaluation, treatment, demotion, layoff, termination, rates
of pay or other forms of compensation, and selection for professional
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development training (including apprenticeship), or against any other person, on
the basis of sex (which includes pregnancy, childbirth, breastfeeding and medical
conditions related to pregnancy, childbirth or breastfeeding), race, religion, color,
national origin (including language use restrictions), ancestry, religious creed
(including religious dress and grooming practices), political affiliation, disability
(mental and physical, including HIV or AIDS), medical condition (cancer and
genetic characteristics), genetic information, marital status, parental status,
gender, age (40 and over), pregnancy, military and veteran status, sexual
orientation, gender identity and gender expression, the exercise of family and
medical care leave, the exercise of pregnancy disability leave, or the request,
exercise, or need for reasonable accommodation.
b. Compliance with Applicable Equal Opportunity Laws
All equal opportunity and non-discrimination policies of Member Entity
contractors must be in conformance with applicable state and federal guidelines
including the Federal Equal Opportunity Clause, 41 Code of Federal Regulations,
Part 60-1, §60-1.4; Title VII of the Civil Rights Act of 1964 as amended; the
Americans with Disabilities Act of 1990; the Rehabilitation Act of 1973 (§503 and
§504); the Age Discrimination Act of 1975 (42 U.S.C. §6101 et seq.); the
California Fair Employment and Housing Act (Government Code §12900 et.
seq.); and California Labor Code §1101 and §1102.
c. Investigation of Claims
Member Entity contractors must designate a specific position within its
organization to be responsible for investigating allegations of non-compliance
with the anti-discrimination and anti-harassment provisions of this Section 28.
Contractors must conduct a fair, prompt, and thorough investigation of all
allegations directed to the contractor by any Member Entity. In cases where such
investigation results in a finding of discrimination, harassment, or hostile work
environment, the contractor must take prompt, effective action against the
offender.
29. Notices
Unless otherwise specified in this Agreement, all requests for written approval or legal
notices must be sent to the representatives’ addresses on file with the Authority. All
notices are deemed to have been given when made in writing and when delivered or
mailed to the representatives at their respective addresses.
IN WITNESS WHEREOF, the Member Entities hereto have executed this Agreement on the
dates as set for the below.
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DATED: , 2023 CITY OF MENLO PARK
By:
Name
Mayor
ATTEST:
By:
Name
City Clerk
APPROVE AS TO FORM:
City Attorney
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DATED: , 2023 CITY OF PALO ALTO
By:
Name
Mayor
ATTEST:
By:
Name
City Clerk
APPROVE AS TO FORM:
City Attorney
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DATED: , 2023 CITY OF EAST PALO ALTO
By:
Name
Mayor
ATTEST:
By:
Name
City Clerk
APPROVE AS TO FORM:
City Attorney
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DATED: , 2023 SANTA CLARA VALLEY WATER DISTRICT
By:
John L. Varela
Chair, Board of Directors
ATTEST:
By:
Michele L. King, CMC
Clerk, Board of Directors
APPROVE AS TO FORM:
District Counsel
J. Carlos Orellana
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DATED: , 2023 SAN MATEO COUNTY FLOOD AND
SEA LEVEL RISE RESILIENCY DISTRICT
By:
Name
Chair, Board of Directors
ATTEST:
By:
Name
Clerk, Board of Directors
APPROVE AS TO FORM:
Brian Kulich
Lead Deputy County Counsel
General Counsel
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SECOND AMENDED AND RESTATED JOINT POWERS AGREEMENT FOR THE
SAN FRANCISQUITO CREEK
JOINT POWERS AGREEMENTAUTHORITY
AMENDED AND RESTATED
as of
__________________, 2023
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SECOND AMENDED AND RESTATED JOINT POWERS AGREEMENT FOR
THE SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY
TABLE OF CONTENTS
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SECOND AMENDED AND RESTATED JOINT POWERS AGREEMENT
FOR THE SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY
This Second Amended and Restated Agreement Joint Powers Agreement for the San Francisquito
Creek Joint Powers Authority (“Agreement”) is made by and among the City of East Palo Alto, the
City of Menlo Park, the City of Palo Alto, the City of East Palo Alto, the Santa Clara Valley
Water District, and the San Mateo County Flood and Sea Level Rise Resiliency District (“, and
the Santa Clara Valley Water District (each a Member Entity and collectively, the Member Entities”),
all of which are public entities organized and operating under the laws of the State of
California, and each of which is a public agency as defined in California Government Code
section 6500. This Agreement is effective upon full execution by all Member Entities (Effective Date).
RECITALS
A. The Joint Exercise of Powers Act, being Government Code sections 6500 et seq.
(the “JPA Law”), permits two or more local public entities by agreement to jointly exercise any
power common to them.
B. Following years of effort to address environmental and flooding concerns related to the
watershed and floodplain of San Francisquito Creek (encompassing approximately 50 square
miles from the Santa Cruz Mountains to San Francisco Bay), and soon after the flood of
record in 1998 damaged approximately 1,700 properties, the Member Entities established the
San Francisquito Creek Joint Powers Authority (Authority) pursuant to that certain “Joint
ExercisePowers Agreement Creating the San Francisquito Creek Joint Powers Authority,”
dated as of May 18, 1999, to collectively contribute resources and implement policies and
projects of mutual interest relating to the primary natural features that unite them, including
the San Francisquito Creek (“Creek”).
C. The Joint Powers Agreement Creating the San Francisquito Creek Joint Powers Authority, dated as of
May 18, 1999, was thereafter revised pursuant to the Joint Powers Agreement for the San Francisquito
Creek Joint Powers Authority, Amended and Restated as of January 1, 2020.
D. Each Member Entity agrees to contribute resources and funding towards implementation of projects
of mutual interest and benefit relating to San Francisquito Creek and San Francisco Bay shoreline.
C.E. The governing body of each Member Entity has determined that it is in the
Member Entity’s best interest and in the public interest that this Second Amended and
Restated Joint Powers Agreement for the San Francisquito Creek Joint Powers Authority be
executed to make minor procedural updates, including the change on January 1, 2020 of the
San Mateo County Flood Control District to the San Mateo County Flood and Sea Level Rise
Resiliency District.
NOW, THEREFORE, the Member Entities, by, between and among themselves, in
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consideration of the mutual benefits, promises, and agreements set forth below, hereby agree as
follows:
1. CREATION OF THE SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY.
1. Creation of the San Francisquito Creek Joint Powers Authority
Pursuant to the JPA Law, the Member Entities create a public agency, separate and apart from
the Member Entities to be known as the San Francisquito Creek Joint Powers Authority (the
“Authority”). Pursuant to Government Code section 6508.1, the debts, liabilities, and
obligations of the Authority shall not constitute debts, liabilities, or obligations of any party to
this Agreement. A Member Entity may separately contract for or assume responsibility for
specific debts, liabilities, or obligations of the Authority. For purposes of, and to the extent
required by, Government Code section 6509, in exercising its powers, the Authority shall be
subject to the restrictions upon the manner of exercising the powers of the City of Menlo Park,
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except as otherwise authorized or permitted by the JPA Law.
2. Purposes
2. PURPOSES. This Agreement is entered into by Member Entities under the JPA
Law for the following purposes:
a. To facilitate and perform bank stabilization, channel clearing and other
Creek maintenance.
b. To plan flood control measures for the
a. Develop and maintain projects to reduce the risk of flooding in and
around San Francisquito Creek watershed.
b. Develop and maintain projects to reduce the risk of coastal flooding from
along the San Francisco Bay shoreline.
c.a. To take actions necessary to preserve and enhance environmental values and instream uses of San
Francisquito Creek.Maintain, restore, enhance the environment, and create recreational opportunities,
where possible, in implementing the other purposes stated herein.
d.b. To coordinate emergency mitigation and response activities relating to San Francisquito
Creek.Provide regional information related to flood preparedness and emergency response agencies and
others to enhance their ability to communicate about and respond to flood risks.
e. To make recommendations to Member Entities for funding and alternatives for long term flood
control for Member Entity consideration.Secure and administer funding for the benefit of the
Authority’s operations, capital projects, and related work.
3. PARTIES TO AGREEMENT.
c. Each Member Entity certifies that it intends to and does contract with every other Member
Entity which is a signatory to this Agreement. Each Member Entity also certifies that the deletion
3. Parties to Agreement
Withdrawal or expulsion of any Member Entity from this Agreement does not affect this
Agreement nor each Member Entity’s intent to contract with the Member Entities then
remaining. Pursuant to Assembly Bill 825 (Chapter 292, Statutes of 2019), which amended the
San Mateo County Flood Control District Act to provide for the San Mateo County Flood and
Sea Level Rise Resiliency District, the Member Entities agree that the San Mateo County Flood
and Sea Level Rise Resiliency District (OneShoreline) is the entity formerly known as the San
Mateo County Flood Control District, and as such is subject to the terms and conditions of this
Agreement.
4. TERM OF AGREEMENT.
4. Term of Agreement
This Agreement became effective as of May 18, 1999 and continues in full force until terminated
in accordance with Paragraph 18paragraph 17. (Termination and Distribution).
5. POWERS OF THE AUTHORITY.
5. Powers of the Authority
The Authority shall have all powers common to the Member Entities, and such additional powers
granted to it by law, necessary to fulfill the purposes of this Agreement. The Authority, through its
Board of Directors, is authorized, in its own name and subject to the limitations set forth
below, to do all acts necessary to fulfill the purposes of this Agreement referred to in
Paragraphparagraph 2. (Purposes) including, but not limited to, each of the following:
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a. Make and enter into contracts;
b. Incur debts, liabilities, and obligations, provided that no debt, liability, or obligation of the
Authority shall be a debt, liability, or obligation of a Member Entity except as separately agreed
to by a Member Entity;
c. Receive contributions and donations of property, funds, services, and other
forms of assistance from any source;
a. Acquire, hold, and dispose of real property, including, without
limitation, the power to convey real property to a Member Entity, as
deemed appropriate by the Authority’s Board of Directors, and as
accepted by the Member Entity, provided, however, that the
Authority shall not exercise the power of eminent domain in the
jurisdiction of a Member Entity unless the Member Entity adopts a
resolution consenting to the Authority’s exercise of eminent domain
within its jurisdiction.
d.b. Sue and be sued in its own name;
e.c. Contract with independent consultants and/or contractors;
f. Receive, collect, and disburse monies;
g.d. Carry out other duties as required to accomplish other responsibilities as set forth
in this Agreement;
e. Hire staff in conformance with an approved operating budget;
h.f. Assign, delegate, or contract with a Member Entity or third party to perform any
of the Authority’s duties of the Board including, but not limited to, acting as
administrator for the Authority; and
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i. Exercise all other powers and carry out other duties as necessary and proper
to carry outfulfill the provisions of this Agreement.
These powers shall be exercised in the manner provided by applicable law
and as expressly set forth in this Agreement.
6. MEMBER ENTITY APPROVALS AND RESPONSIBILITIES.Member Entity Approvals and
Responsibilities
Each Member Entity has the approval authority, obligations, and responsibilities set forth in this
Agreement. No action of the Authority shall be effective or binding unless and until such action
has been approved in accordance with Subparagraph “e.” (Action of the Board) of Paragraph 10.
(Board Members) by theThe Member Entities retain the following powers:
g. The designation of each Member Entity’s Director and alternate as specified in
paragraph 9. Board of Directors consistent with a budget;
h. Approval of an amendment to this Agreement as specified in
paragraph 19. Amendments;
i. Approval of the Member Entity’s funding or other contribution for a capital project as
specified in paragraph 7. Capital Project Participation; and
j. Approval of the Member Entity’s contribution to the annual budget of the Authority as
specified in paragraph 12. Operating Budget.
6. Capital Project Participation
The Authority may approve a contract for a capital project or any discrete phase of a capital project in
accordance with the following conditions:
a. The Authority’s Board of Directors has determined that the Authority will have the
funds necessary to pay for that capital project or that discrete phase of the project being
approved; and
Any funding or other contribution from a Member Entity to that capital project or to that
discrete phase of the capital project has been approved by independent action of
eachthe Member Entity’s governing body.
7. PROJECT PARTICIPATION APPROVAL AUTHORITY.
b. or designee. Each Member EntitiesEntity shall have the right to determine
independently whether to participate in any capital improvement project. No
capital improvement project shall be approved by the Authority unless and until
Member Entities sufficient to fund the project fully have approved the project by
independent action of each such funding Member Entity’s governing body.
8.7. MEMBERSHIP.Membership
New Member Entities may be added to the Authority by amending this Agreement, as described
in Paragraph 21paragraph 19. (Amendments), and Member Entities may withdraw or be expelled,
as described in Paragraph 16paragraph 15. (Withdrawal) and Paragraph 17paragraph 16.
(Expulsion).
9.8. BOARD OF DIRECTORS.Board of Directors
a. Directors. There shall be a Board of Directors (the “Board”) to govern the
a. affairs of the Authority. The Board of Directors shall be comprised of one director, and one
alternate director, fromDirector designated by each Member Entity. Each director hasDirector shall
have one vote. An alternate director may cast a vote as a member of on the Board of Directors
only in the absence of the director from that same Member Entity. Each director andDirector shall
have an alternate director shall be a member of the governing body of the Member Entity and
shall be designated by itsthe governing body; provided, however, that no of each Member Entity.
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No two directorsDirectors and no two alternate directorsAlternate Directors shall be from the same
governing body of any Member Entity.
c. Alternates. All references in this Agreement to a Director refer to and include the
Director’s alternate, when acting in place of a Director.
b.d. Compensation. Directors and alternate directors are not entitled to
compensation by the Authority. The Board of Directors may authorize reimbursement of expenses
incurred by Directors in connection with serving as a Director.
by directors or alternate directors.
e. Term. The term of office of a Director shall terminate when such person ceases to be a
member of the governing body of the Member Entity or the Member Entity designates
another Director and/or alternate to serve.
c.f. Powers. The powers of the Board of Directors are each of the powers of the
Authority
not specifically reserved to the Member Entities by this Agreement. The Member Entities
retainNo Action of the Authority shall be effective or binding unless and until such action has been
authorized by the Board of Directors and either 1) is consistent with the budget approved by the Board of
Directors pursuant to paragraph 12. Operating Budget, or 2) complies with paragraph 7. Capital Project
Participation.
the following powers:
(1) The designation of the Board as specified in Subparagraph “a.” of Paragraph 9. (Board of
Directors);
(2) Approval of an amendment to this Agreement as specified in
Paragraph 21. (Amendments);
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(3) Approval of actions pursuant to Paragraph 6. (Member Entity
Approvals and Responsibilities);
(4) Approval of project participation as specified in paragraph 7.
(Project Participation Approval Authority); and
(5) Approval of the annual budget of the Authority as specified in
Paragraph 13. (Budget).
10. BOARD MEMBERS.
a.g. Meetings. The Board of Directors shall hold at least one regular meeting each year, at
which time the Board of Directors shall elect its officers as appropriate to comply with
Paragraph 11pursuant to paragraph 10. (Officers). The Board of Directors shall fix the date,
hour, and place at which each regular meeting is to be held. To the extent practicable, each
Board of Directors meeting shall be held in Northern Santa Clara County or Southern San
Mateo County. The Chair presides at all meetings. A special meeting may be called upon
written request by the Chair or at least two directorsDirectors.
b.h. Brown Act. Each regular, adjourned regular, or special meeting of the
Board of Directors shall be called, noticed, held, and conducted in accordance with the Ralph M.
Brown Act
(Sections 54950, et seq., of the Government Code §54950, et seq.).
c.i. Notices, Agendas, Minutes. The Board of Directors shall appoint or hire a Clerk of the Board of
Directors who shall draftbe responsible for preparing minutes of each regular and
special meeting of the Board, which shall be considered for approval by the Board at a
subsequent regular meeting of Directors, and issuing notices and agendas in accordance with the law.
d.j. Quorum. No business may be transacted by the Board of Directors without a quorum
of members of the Board of Directors being present except that less than a quorum may adjourn
from time to
time. A quorum consists of a majority of the members of the Board of Directors.
e. Action of the Board of Directors. Except as otherwise specified in this
Agreement, or required by law, any action of the Board of Directors shall
require a vote of a majority of the Board.
k. 11. OFFICERSDirectors.
7. Officers.
The officers of the Authority are the Chair, and Vice-Chair, and
Secretary.
a. Election/Term/Duties.
b. The officers shall be elected or appointed by the
Board of Directors at its first meeting of the calendar year, unless that is delayed by an action of
the Board of Directors.
c. The term of office for Chair, and Vice-Chair, and Secretary is one year shall be determined by a
vote of the Board of Directors. The officers shall assume the duties of their offices upon being
elected or appointed, as appropriate.
If any of the Chair, or Vice-Chair, or Secretary ceases to be a member of the Board of Directors,
the Board of Directors shall elect or appoint a new officer at the next regular meeting of the
Board of Directors held after the vacancy occurs.
b. Compensation. Officers are not entitled to compensation by the Authority. The Board may
authorize reimbursement of expenses incurred by officers.
c. Appointment/Contract. The Board may appoint such officers and may
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hire or contract with such persons or firms as it considers necessary to carry out the purposes
of
this Agreement.
12. FISCAL YEAR. The first fiscal year of the Authority is July 1, 1999 through
d. June 30, 2000.
8. Fiscal Year
Each subsequent fiscal year of the Authority shall begin on July 1st of a calendar year and end on
June 30th of the next following calendar year.
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9. Operating Budget
a. BUDGET. The Board of Directors shall adopt an annual operating budget, which shall
be
separate from the budget for any capital project of the Authority’s capital projects budget. The
operating budget shall include the proposed contribution from each Member Entity for the fiscal
year and other sources of income for the fiscal year.
b. The operating budget shall not be effective unless and until the governing body
of each Member Entity has approvedapproves that Member Entity’s contribution to the
operating budget.
c. A Member Entity contributions’s contribution shall become immediately due and
payable to the Authority upon adoption of the annual operating budget, unless expressly provided
otherwise in by the Board of Directors and approval of the Member Entity’s
contribution to the budget by that Member Entity’s governing body.
10. Annual Audit and Audit Reports
14. ANNUAL AUDIT AND AUDIT REPORTS. The Board of Directors shall cause an annual
financial audit to be made by an independent certified public accountant with respect to all
Authority receipts, disbursements, other transactions, and entries into the books. A report of the
financial audit shall be filed as a public record with each Member Entity. The audit shall be filed
no later than as required by State law. The Authority shall pay the cost of the financial audit from
its annual operating budget in the same manner as other administrative costs.
15. ESTABLISHMENT AND ADMINISTRATION OF FUNDS.
11. Establishment and Administration of Funds
a. Accountability. The Authority is responsible for the strict accountability of all funds and
reports of all receipts and disbursements. It shall comply with every provision of law relating to
the establishment and administration of funds, particularly Section 6505 of the Californiain
particular, Government Code §6505. The funds shall be accounted for on a full accrual basis.
b. Investment/Disbursement. The Authority shall receive and disburse funds
only in accordance with policies and procedures established by the Board of Directors and in
conformity with
applicable law.
c. Insurance/BondBonds. The Authority shall procure, carry and maintain, in full
force and effect, at all times during the term of this Agreement, such insurance and bonds to
protect the Authority and its members of the Board of Directors, officers, employees, agents,
and Member Entities, as deemed appropriate by the Board of Directors.
d. Depository and Auditor Controller. The Board of Directors shall designate one of its
officers, employees or a third party to perform all acts required by Government Code Sections
§6505 (regarding an annual audit), §6505.1 (regarding charge of and access to property),
§6505.5 (regarding the depository and custodian of money), and §6505.6 (regarding
independent audit where an officer or employee acts as treasurer, auditor, or both), as such laws
are amended from time to time.
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12. Withdrawal
a. WITHDRAWAL. Member Entities may withdraw from the Authority for
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subsequent fiscal years by providing written notice to the Authority and each Member Entity on
or before May 1 of any fiscal year. Withdrawal shall be effective on July 1 of the next fiscal
year. This shall be the exclusive means by which a Member Entity may withdraw from the
Authority.
b. Any Member Entity that withdraws shall remain liable for any budget
contributions or capital improvement project participation approved before withdrawal.
c. Any Member Entity that withdraws shall remain liable for any and all demands,
claims, or liabilities of any nature, including death or injury to any person, property damage, or
any other loss caused by or arising out of that partyMember Entity’s performance
or failure to perform the obligations assumed before the Member Entity withdraws from this
Agreement. Any Member Entity that withdraws shall remain subject to the provisions of
Paragraph 23. (Liability of the Authority; Release and Indemnity) paragraph 21. Indemnification
with
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respect to any event or occurrence taking place before the Member Entity withdraws.
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13. Expulsion
a. EXPULSION. The Authority may expel a Member Entity from the Authority by a
four-fifths (4/5) vote of the Authority Board of Directors for a breach of this Agreement
determined by the Board of Directors to be a material breach.
b. Any Member Entity that has been expelled pursuant to this paragraph shall have
no further liability or obligation pursuant to this Agreement after the effective date of such
expulsion; except such Member Entity shall remain liable for any and all demands, claims, or
liabilities of any nature, including death or injury to any person, property damage, or any other
loss caused by or arising out of that party’s performance or failure to perform the obligations
assumed before the Member Entity was expelled, including any budget contributions or c apital
improvement project participation approved before expulsion.
c. Any Member Entity that has been expelled shall remain subject to the provisions
of Paragraph 23. (Liability of the Authority; Release and Indemnity)paragraph 21. Indemnification
with respect to any event or occurrence taking place before the Member Entity was expelled.
18. TERMINATION AND DISTRIBUTION.
14. Termination and Distribution
a. Termination. This Agreement shall continue until terminated. This
Agreement may be terminated by the written consent of four-fifths (4/5) of the Member Entities;
provided, however, this. The Agreement and the Authority shall continue to exist after
termination for the purpose ofmay only be terminated after disposing of all claims, distribution of
assets, and performance of all other functions necessary to conclude the obligationobligations and
affairs of the Authority.
b. Surplus. In the event that the Authority is terminated, any surplus money on deposit in
any fund or account of the Authority shall be returned in proportion to the contributions
made as required by Section 6512 of the California Government Code Concluding Affairs.
The Board of Directors is vested with all powers of the Authority for the purpose of
concluding and dissolving the business affairs of the Authority, including for the
disposition, division, or distribution of any property acquired as a result of t he joint exercise
of powers.
19. NOTICES. Notices to each Member Entity under this Agreement are sufficient if mailed to
its respective address on file with the Authority.
b. 20. PROHIBITION AGAINST ASSIGNMENT.
a. Surplus. In the event that the Authority is terminated, any surplus money on deposit in
any fund or account of the Authority shall be returned to Member Entities in proportion
to the contributions made to that fund or account, as required by Government Code
§6512.
b. Property. All real property and any improvements thereon, that were owned by a
Member Entity and contributed to the Authority shall be returned to the Member Entity,
upon its approval, that contributed such property.
c. Member Entity Obligations. In no event shall any funds or assets be distributed, divided
or returned to a Member Entity until such Member Entity has either paid their share of all
outstanding debts and obligations that were incurred while they were a Member Entity, or
executed a contract with the Authority to pay for all outstanding debts and obligations
that were incurred while they were a Member Entity.
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15. Prohibition Against Assignment
No Member Entity may assign a
right, claim, or interest it may have under this Agreement, and any such assignment shall be
void. No creditor, assignee, or third-party beneficiary of a Member Entity has a right, claim, or
title to any part, share, interest, fund, or asset of the Authority.
16. Amendments
21. AMENDMENTS. This Agreement may only be amended by approval by the
governing body for each and every Member Entity. A proposed amendment must be submitted
to each Member Entity at least thirty (30) days in advance of the date when the Member Entity
considers iton which it will be considered. An amendment is to be effective immediately unless
otherwise designatedupon full execution by all Member Entities.
22. SEVERABILITY. If a portion, term, condition, or
17. Severability
If a court of competent jurisdiction holds any provision of this Agreement is
determined by a court to be illegal or in conflict with the law of the State of California, or is
otherwise rendered, unenforceable or ineffectual, or invalid in whole or in part for any reason, the
validity and enforceability of the remaining portions, terms, conditions, and provisions is, or
portions of them, will not be affected.
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23. LIABILITY OF THE AUTHORITY; RELEASE AND INDEMNITY, unless an
essential purpose of this Agreement would be defeated by the loss of the illegal, unenforceable, or
invalid provision.
18. Indemnification
a. Funds of the Authority may be used to defend, indemnify, and hold harmless
the Authority, any Member Entity, any member of the Board of Directors, and
each officer, employee and agent of the Authority or Member Entities, for their
actions taken within the scope of their duties while acting on behalf of the
Authority. The parties to this Agreement release each other and agree to hold
each other harmless, as well as their officers and employees, for any loss or
liability arising from their respective activities pursuant to this Agreement.
Except as otherwise provided herein, each party agrees to indemnity, defend
b. In lieu of and notwithstanding the pro rata risk allocation, which might otherwise be
imposed between the Member Entities pursuant to Government Code Section 895.6,
the Member Entities agree that all losses or liabilities incurred by a Member Entity
shall not be shared pro rata but, instead, the Member Entities agree that, pursuant to
Government Code Section 895.4, each Member Entity hereto shall fully indemnify and
hold harmlesseach of the other partiesMember Entities, their officers, agentsboard
members, and employees, and agents, harmless from any and all demands, claims,
or liabilities of any nature, including death or injury to any person, property
damage, or any other loss caused by or arising out of that party’s performance
or failure to perform the obligations assumed underclaim, expense or cost, damage
or liability imposed for injury (as defined in Government Code 810.8) occurring by
reason of the negligent acts or omissions or willful misconduct of the indemnifying
Member Entity, its officers, employees, or agents, under or in connection with or
arising out of any work, authority, or jurisdiction delegated to such Member Entity
pursuant to this Agreement. EachNo Member Entity agrees that legal counsel for
any Member Entity may be designated by the Board to represent the Authority
by performing legal services, including litigation, and that any potential conflict
of interest arising from such representation shall be deemed waived, nor any
officer, board member, employees, or agent thereof shall be responsible for any
damage or liability occurring by reason of the Authority andnegligent acts or
omissions or willful misconduct of the other Member Entity hereto, unless an actual
adverse relationship exists between the Member Entity and the Authority with
respect to the particular matter. The designation of legal counsel from a
Member Entity shall be with the approval of that Member Entityits officers,
board members, employees, or agents, under or in connection with or arising out of
any work, authority, or jurisdiction delegated to such other Member Entity pursuant to
this Agreement. The rights, duties, and obligations of the Member Entities as set forth
above in this paragraph 21. Indemnification, survive completion, termination,
expiration, and suspension of this Agreement.
19. Choice of Law and Venue
24. GOVERNING LAW. ThisThe Parties agree that this Agreement shallis to
be governed by and, construed, and enforced in accordance with the laws of the
State of California.
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25. COUNTERPART The Parties also agree that the venue of any litigation
arising out of or connected with this Agreement will lie exclusively in the state trial
court or Federal District Court located in Santa Clara County or San Mateo County in
the State of California. The Parties consent to jurisdiction over their persons and over the
subject matter of any such litigation in such courts, and consent to service of process
issued by such courts.
20. Counterparts
This Agreement may be executed in counterparts, each of which shall be an
original, but all of which shall constitute one instrument.
21. Agreement Complete
26. AGREEMENT COMPLETE. The foregoing constitutes the full and complete
Agreement of the Member Entities. There are no oral understandings or agreements not set forth
in writing herein.
22. No Third-Party Beneficiaries
27. NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, whether
express or implied, shall be construed to give any person or entity, other than the partiesParties
hereto,
any legal or equitable right, remedy, or claim under or in respect of this Agreement or any
covenants, conditions, or provisions contained herein.
23. Nonwaiver of Rights
The failure of either Party to this Agreement to object to or to take affirmative action with respect to any
conduct of the other Party that is in violation of the terms of this Agreement will not be construed as a
waiver thereof, or as waiver of any future breach or subsequent wrongful conduct.
24. Agreement Execution
Unless otherwise prohibited by law or policy of any Member Entity, the Member Entities agree that an
electronic copy of a signed agreement, or an electronically signed agreement, has the same force and legal
effect as an agreement executed with an original ink signature. The term “electronic copy of a signed
agreement” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of
an original signed agreement in a portable document format. The term “electronically signed agreement”
means an agreement that is executed by applying an electronic signature using technology in compliance
with the Electronic Signature Act (California Civil Code §1633).
25. Equal Opportunity
a. Equal Opportunity Employer
Each of the Member Entities is an equal opportunity employer and requires their contractors to have and
adhere to a policy of equal opportunity and non-discrimination, including that such contractors will
comply with all applicable federal, state, local laws and regulations, and will not discriminate against any
subcontractor, employee, or applicant for employment in the recruitment, hiring, employment, utilization,
promotion, classification or reclassification, transfer, recruitment advertising, evaluation, treatment,
demotion, layoff, termination, rates of pay or other forms of compensation, and selection for professional
development training (including apprenticeship), or against any other person, on the basis of sex (which
includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or
breastfeeding), race, religion, color, national origin (including language use restrictions), ancestry,
religious creed (including religious dress and grooming practices), political affiliation, disability (mental
and physical, including HIV or AIDS), medical condition (cancer and genetic characteristics), genetic
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information, marital status, parental status, gender, age (40 and over), pregnancy, military and veteran
status, sexual orientation, gender identity and gender expression, the exercise of family and medical care
leave, the exercise of pregnancy disability leave, or the request, exercise, or need for reasonable
accommodation.
b. Compliance with Applicable Equal Opportunity Laws
All equal opportunity and non-discrimination policies of Member Entity contractors must be in
conformance with applicable state and federal guidelines including the Federal Equal Opportunity Clause,
41 Code of Federal Regulations, Part 60-1, §60-1.4; Title VII of the Civil Rights Act of 1964 as amended;
the Americans with Disabilities Act of 1990; the Rehabilitation Act of 1973 (§503 and §504); the Age
Discrimination Act of 1975 (42 U.S.C. §6101 et seq.); the California Fair Employment and Housing Act
(Government Code §12900 et. seq.); and California Labor Code §1101 and §1102.
c. Investigation of Claims
Member Entity contractors must designate a specific position within its organization to be
responsible for investigating allegations of non-compliance with the anti-discrimination
and anti-harassment provisions of this Section 28. Contractors must conduct a fair,
prompt, and thorough investigation of all allegations directed to the contractor by any
Member Entity. In cases where such investigation results in a finding of discrimination,
harassment, or hostile work environment, the contractor must take prompt, effective
action against the offender.
26. Notices
Unless otherwise specified in this Agreement, all requests for written approval or legal notices must be
sent to the representatives’ addresses on file with the Authority. All notices are deemed to have been
given when made in writing and when delivered or mailed to the representatives at their respective
addresses.
IN WITNESS WHEREOF, the partiesMember Entities hereto have executed this Agreement on
the dates
as set forthfor the below.
[(SIGNATURES TO FOLLOW ON SEPARATE PAGES])
04/02/20 9
DATED: , 2020 CITY OF MENLO PARK
By:
Cecilia Taylor, Mayor
ATTEST:
By:
Judi Herren, City Clerk
APPROVE AS TO FORM:
Cara E. Silver
Interim City Attorney
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04/02/20 10
DATED: , 2020 CITY OF PALO ALTO
By:
Adrian Fine, Mayor
ATTEST:
By:
Beth Minor, City Clerk
APPROVE AS TO FORM:
Cassie Coleman
Assistant City Attorney
04/02/20 11
DATED: , 2020 CITY OF EAST PALO ALTO
By:
Regina Wallace-Jones, Mayor
ATTEST:
By:
Walfred Solorzano, City Clerk
APPROVE AS TO FORM:
Rafael Alvarado
City Attorney
04/02/20 12
DATED: , 2020 SANTA CLARA VALLEY WATER DISTRICT
By:
Nai Hsueh, Chair
ATTEST:
By:
Michele L. King, CMC, Board Clerk
APPROVE AS TO FORM:
District Counsel By
Leslie Orta
Senior Assistant District Counsel
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DATED: , 2023 CITY OF MENLO PARK
By:
Name
Mayor
ATTEST:
By:
Name
City Clerk
APPROVE AS TO FORM:
City Attorney
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DATED: , 2023 CITY OF PALO ALTO
By:
Name
Mayor
ATTEST:
By:
Name
City Clerk
APPROVE AS TO FORM:
City Attorney
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DATED: , 2023 CITY OF EAST PALO ALTO
By:
Name
Mayor
ATTEST:
By:
Name
City Clerk
APPROVE AS TO FORM:
City Attorney
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DATED: , 2023 SANTA CLARA VALLEY WATER
DISTRICT
By:
John L. Varela
Chair, Board of Directors
ATTEST:
By:
Michele L. King, CMC
Clerk, Board of Directors
APPROVE AS TO FORM:
District Counsel
J. Carlos Orellana
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DATED: , 2023 SAN MATEO COUNTY FLOOD
AND
SEA LEVEL RISE RESILIENCY
DISTRICT
By:
Name
Chair, Board of Directors
ATTEST:
By:
Name
Clerk, Board of Directors
APPROVE AS TO FORM:
Brian Kulich
Lead Deputy County Counsel
General Counsel
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