Attachment 2WVCWP JPA (FINAL) – January 2018
JOINT POWERS AGREEMENT
CREATING THE WEST VALLEY CLEAN WATER PROGRAM AUTHORITY
This JOINT POWERS AGREEMENT CREATING THE WEST VALLEY CLEAN
WATER PROGRAM AUTHORITY (the “Agreement”) is made and entered into this
_____ day of ____________, 2018, by and between the City of Campbell, the City of
Monte Sereno, the City of Saratoga and the Town of Los Gatos, municipal corporations
of the State of California, hereinafter “Member Agencies” (collectively) or “Member
Agency” (individually).
RECITALS
WHEREAS, each of the Member Agencies to the Agreement is a public agency as
defined in California Government Code section 6500; and
WHEREAS, each of the Member Agencies is either directly or indirectly authorized to
implement measures that would regulate, improve, treat, manage, and convey
stormwater and its quantity and quality; and
WHEREAS, in September 1994, the Member Agencies were among the members of a
Cooperative Agreement for stormwater pollution control coordination; and
WHEREAS, the coordinated stormwater pollution abatement, control and management
effort of the Member Agencies is now commonly known as the West Valley Clean Water
Program; and
WHEREAS, the West Valley Clean Water Program has been a successful and cost-
effective means of collaboratively addressing federal and state stormwater requirements
and regulations within the Member Agencies; and
WHEREAS, the Member Agencies desire to create the West Valley Clean Water
Program Authority (“Authority”) on behalf of its member agencies; and
WHEREAS, the Member Agencies desire to create a new public entity to administer the
provisions of this Agreement, the purpose of which is to coordinate stormwater pollution
abatement, control and management efforts; and other activities to develop tools and
information to assist public and private entities in complying with stormwater National
Pollutant Discharge Elimination System (“NPDES”) permits and improving surface water
quality and enhancing water supplies in California.
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions
hereinafter set forth, it is agreed by and among the Member Agencies hereto as follows:
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WVCWP JPA (FINAL) – January 2018
1. Creation of Authority
(a) The West Valley Clean Water Program Authority is hereby created as a joint
powers agency pursuant to the provisions of the Government Code of the State
of California relating to the joint exercise of powers common to public agencies.
(Gov. Code § 6500, et seq.). The Authority is a public entity separate from its
Member Agencies.
(b) Upon the Effective Date of this Agreement, a Notice of Joint Powers Agreement
shall be filed with the California Secretary of State in accordance with
Government Code section 6503.5. The Authority shall comply with all other
formation requirements provided under California law.
2. Purpose
(a) This Agreement provides for the creation of a public entity separate and apart
from the Member Agencies to this Agreement to administer this Agreement,
the purpose of which is to coordinate stormwater pollution abatement, control
and management efforts; and other activities to develop tools and information
to assist public and private entities in complying with stormwater NPDES
permits and improving surface water quality and enhancing water supplies in
California.
(b) The Authority’s functions shall include, but not be limited to:
a. Preparing, adopting, revising, amending, administering, enforcing, and
implementing the West Valley Clean Water Program that supports
compliance with Member Agencies’ stormwater NPDES permit
requirements;
b. Advising the Member Agencies on issues related to urban and rural
stormwater abatement, control and management;
c. Advocating the interests of the Member Agencies related to urban and
rural stormwater abatement, control and management issues with
local, state and federal officials;
d. Improving the quality of receiving waters through the reduction of
stormwater pollution sources in urban and rural watersheds;
e. Improving the conveyance of stormwater through stormwater systems
to reduce flooding and stream bank erosion, and improve water quality;
f. Providing technical research for the development of source and
treatment controls in support of complying with Construction, Industrial,
and Municipal separate storm sewer system (“MS4”) NPDES Permits;
g. Assessing ambient and stormwater monitoring data and improving the
understanding of the most critical pollutants in local receiving waters
and the South San Francisco Bay;
h. Improving public education and information regarding surface and
stormwater quality through the development and distribution of
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WVCWP JPA (FINAL) – January 2018
information regarding stormwater pollution control, sources and
pathways;
i. Providing technical guidance, including handbooks, manuals, and
training programs that support efforts to comply with stormwater
NPDES permits, as well as improve stormwater quality professionals’
ability to advance the effectiveness of stormwater programs;
j. All ancillary activities related to the functions contained herein.
3. Powers of Authority
The Authority is hereby authorized, in its own name, to do all acts necessary for the
exercise of its authority to accomplish the purpose as set forth herein including, but not
limited to, any or all of the following:
(a) To review the West Valley Clean Water Program, budget and staffing; and
recommend revisions or amendments thereto;
(b) To make and enter into contracts and to issue Requests for Proposals
necessary to further the purposes of the Authority;
(c) To prepare reports and other documents for the purpose of applying for and
accepting grants, advances, and contributions;
(d) To employ or contract for services of agents, employees, consultants and
other such persons or entities through an adopted procurement policy directly
or indirectly related to its purposes;
(e) To receive contributions and donations of property, funds, services, and other
forms of assistance from any source, including Member Agencies;
(f) To sue and be sued in its own name;
(g) To incur debts, liabilities, or obligations, subject to limitations herein set forth;
(h) To conduct scientific and technical studies;
(i) To assess and collect, subject to Section 8, from both Initial Members and
future agency members, fees for membership in the Authority, so as to provide
moneys for the financing of its activities, operations, and expansion which are
not adequately funded by the revenues collected for services provided by the
Authority;
(j) To issue bonds, subject to the provisions and limitations of the laws of the State
of California;
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(k) To collect real property assessments, fees, and charges for stormwater
program implementation, subject to the provisions and limitations of the laws
of the State of California;
(l) To adopt annually, by July 1 of each fiscal year, a budget setting forth all
administrative, operational and capital expenses for the Authority, together with
the apportionment of such expenses by levy against each Member Agency to
the extent necessary, subject to Section 9, and
(m)To adopt, as authorized by law, any ordinances or resolutions necessary to
carry out the purposes of this Agreement.
4. Use of Public Funds and Property
The Authority shall be empowered to use for its purposes, public funds, property
and other resources received from the Member Agencies and from other sources.
Where applicable, the Authority’s Board of Directors may permit one or more of the
Member Agencies to provide in-kind services, including the use of property and
services.
5. Term, Termination, Addition or Withdrawal of Member Agencies, Disposition of
Assets
(a) The Authority shall be formed and come into existence on the Effective Date
and shall continue in existence unless terminated by the governing body of
each of the Member Agencies then a party to this Agreement or at any point
in time at which there ceases to be at least two Member Agencies to this
Agreement, at which point in time this Agreement shall be automatically
terminated; provided however, that the Authority and this Agreement shall
continue to exist for the purpose of disposing of liabilities, distributing funds,
property and/or other assets (such funds, property and/or other assets,
collectively, the “Authority Assets”), and all other functions necessary to
conclude the business of the Authority.
(b) Any public agency as defined in California Government Code section 6500
that is directly or indirectly authorized to implement measures that would
regulate stormwater quality may seek to become a party to this Agreement
upon authorization by its governing body, amendment to this Agreement in
accordance with Section 17 below, and execution of this Agreement by the
public agency.
(c) Any Member Agency, upon written notice given by January 1 of any year to the
Chairperson of the Board of Directors, and to all other Member Agencies, may
withdraw from the Authority effective no earlier than July 1 of that year;
provided, however, that the withdrawal of such Member Agency shall not
terminate such Member Agency’s responsibility under any obligation of such
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Member Agency, or the Authority, or any action taken in connection therewith,
provided that the withdrawing agency may pay to the Authority on the effective
date of withdrawal, all money owing to the Authority, and as to those capital
expenditures that the withdrawing agency has agreed to participate in by
contract or otherwise, its share of such capital expenditures. Such financial
obligations of such withdrawing agency may be assumed by another entity
upon a two-thirds (2/3) vote of the Board, absent the participation of the
representative of the withdrawing agency. The withdrawing agency shall
continue to be liable for its share of Authority obligations, including, but not
limited to, operations costs and the General Budget, until the effective date of
its withdrawal.
(d) Upon termination of this Agreement, after the payment and fulfillment of all
obligations of the Authority, any Authority Assets remaining shall be
distributed to the Member Agencies in proportion to the contribution made by
the Member Agencies toward the funding of the Authority. The Authority shall
cease to exist when the Authority Assets have been distributed according to
the provisions contained in this Section, this Agreement generally, and the
Joint Exercise of Powers Act (Gov. Code §6500 et seq.).
6. Governance
(a) Board of Directors: The Authority shall be governed by a Board of Directors,
which shall consist of one director who shall be an elected member of such
agency’s governing body appointed by the governing body of each Member
Agency. A Member Agency may change its director from time-to-time by
notifying the other Member Agencies in writing.
(b) Alternates: An alternate may be designated by a director to act in place of that
director during his or her absence. Such designation shall be in writing by the
designating director and shall be delivered to the other Member Agencies.
(c) Board Powers: The Board shall perform all acts necessary or proper to carry
out the purposes of this Agreement and to execute the General and Specific
Powers of the Authority, which acts include, but are not limited to, the following:
i) Conduct Board meetings pursuant to a schedule adopted by the
Board;
ii) Consider, modify and approve the Authority’s annual work program
and budget, including the activities and budget for the West Valley Clean
Water Program;
iii) Levy, fix, set and/or impose fees, assessments and charges to the
extent permitted by law and by this Agreement;
iv) Authorize, review and accept reports and studies;
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v) Review, recommend, approve and/or regulate fees and rates for
services provided by the Authority or over which the Authority has
regulatory power through contract or otherwise;
vi) Recommend action to Member Agencies and other public bodies on
matter of interest to the Authority:
vii) Accept agencies as subsequent Member Agencies to the Agreement
and members of the Authority, and their representatives as Board members;
viii) Authorize the hiring and/or engagement of Authority staff;
ix) The Board may, from time to time, declare one of the Member
Agencies as the lead agency for specific purposes as may be set forth by
the Board or for the general purpose of staffing the Authority and carrying
out the Authorities functions. At the time said Member Agency is appointed
as a lead agency, the Board shall determine whether the member is to bear
the costs of such lead agency activity or be reimbursed therefor. The
Authority, in any event, shall reimburse agency members for personnel
costs associated with the staffing of the Authority with Member Agency
personnel;
x) Establish committees to carry out Authority purposes, and appoint
committee members from the Authority Board, the legislative bodies or
administration of Member Agencies, Authority staff, and/or staff of the
Member Agencies. The Authority shall reimburse agency members for
personnel costs associated with the staffing of committees with Member
Agency personnel;
xi) Delegate duties to Authority or Board staff and/or members,
appointed committees and committee members, and the City/Town Councils
and/or staff.
(d) Authority Bylaws: Within Six Months after the Effective Date, the Board shall
consider and adopt Bylaws for the Authority.
(e) Vote Required: All actions of the Board may be undertaken by a majority vote
of the Board members present, provided a quorum exists, except for such
Board actions requiring a two-thirds (2/3) vote as may otherwise be set forth
herein. Each Board member shall have one vote.
(f) Board Rules: The Board is empowered to establish its own Rules and
Procedures to the extent those rules are not inconsistent with the laws of the
State of California governing the operations of this Authority.
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(g) Meetings of the Board:
i) Regular Meetings: The Board shall hold scheduled public meetings
at a location selected by the Board.
ii) Special Meetings: Special meetings of the Board may be called in
accordance with the provisions of Section 54956 of the California
Government Code.
iii) Notice of Meetings: All meetings of the Board shall be held subject
to the current provisions of the Ralph M. Brown Act, being Sections 54950
et seq. of the California Government Code, and other applicable laws of the
State of California requiring public meetings.
(h) Minutes: The Board Chairperson shall cause minutes of all meetings to be
kept and shall, as soon as possible after such meeting, cause a copy of the
minutes to be forwarded to each member of the Board.
(i) Staffing: Each of the Member Agencies shall use its best efforts to provide
staff to the Authority as may be necessary initially for the Authority to execute
its powers and duties and as may be required by the Board thereafter. Staff
may be drawn from Member Agencies with the consent of the affected Member
Agency. Additionally, the Authority may contract with or employ entities and/or
individuals not associated with Member Agency staff, as permitted by Section
3.
(j) Officers and Staff: The officers and staff of the Authority are the Chair, Vice-
Chair, Secretary, Treasurer and Executive Director.
(i) Officers: The Board shall, at its first meeting and thereafter at its
first meeting following January 1 of each succeeding year, elect a
Chair and Vice-Chair from among the Directors. The Vice-Chair
shall assume the responsibilities of the Chair in the absence the
Chair. The Chairperson shall preside over all meetings according
to the Rules and Procedures adopted by the Board. The Board
Chairperson shall represent the Authority and execute any
contracts and other documents when required by the Rules and
Procedures.
(ii) Executive Director: There may be an Executive Director appointed
who will serve as the chief executive officer of the Authority. He or
she will be responsible to the Board for the management and
administration of all Authority affairs pursuant to the Boards direction.
Until such time as the Board may determine to appoint an Executive
Director who is not a staff member of a Member Agency, and for
such other times as there is no Executive Director serving, the Board
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may appoint an interim Executive Director, who shall have such
powers and duties as are set forth in this section. An interim
Executive Director shall be the chief administrative officer of one of
the Member Agencies, or such other agency staff member as the
Board deems appropriate.
(iii) Treasurer: There shall be a Treasurer to be the custodian of all
Authority funds, to pay demands and to make or contract for an
annual audit. Such Treasurer shall be the Treasurer of one of the
Member Agencies, a Certified Public Accountant or one of the
Authorities officers or employees as set forth in California
Government Code Sections 6505.5 and 6505.6. The Board shall
designate a qualified person to act as the Treasurer of the
Authority. The person holding the position of Treasurer of the
Authority shall have charge of the depositing and custody of all
funds held by the Authority. The Treasurer shall perform such other
duties as may be imposed by provisions of applicable law, including
those duties described in Government Code section 6505.5, and
that may be prescribed by the Board or the Bylaws. In the event
that the person designated by the Board is not a Director, the
person serving as Treasurer may be reasonably compensated for
performing such work. In the event that the person designated by
the Board to perform such services is an employee of a Member
Agency, the governing body of that Member Agency shall
determine the reasonable charges to be made against the Authority
for the services of Treasurer.
(iv) Secretary: There shall be a Secretary appointed by the Executive
Director who shall be responsible for the noticing of meetings and
recording of minutes of meetings as required by the Brown Act and
the Rules and Procedures, in addition to such other duties as the
Executive Director may assign.
7. Application of Laws to Authority Functions
The Authority shall comply with all applicable laws in the conduct of its affairs,
including but not limited to the Joint Exercise of Powers Act (Gov. Code §6500 et seq.);
Ralph M. Brown Act (Gov. Code § 54950, et seq.), and conflict of interest
laws/regulations (such as Gov. Code § 1090, et seq. the requirements of the California
Political Reform Act, Gov. Code § 87100, et seq., and the regulations of the Fair
Political Practices Commission concerning disclosure and disqualification, 2 California
Code of Regulations § 18700, et seq.), as amended.
8. Apportionment of Expenses
It is the intention of the Authority to collect revenues to cover the costs of Authority
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operations. To the extent that operating expenses exceed revenues during any period,
including the initial start-up period of the Authority, the Member Agencies shall be
responsible for providing the requisite funds to the Authority to ensure that such expenses
are met in the proportion that the total population of the jurisdiction of each agency bears
to the total population of all members of the Authority. Each Member Agency’s
contribution to such expenses is dependent upon such Member Agency’s governing
body’s yearly approval of such contribution, provided, however, that if such Member
Agency’s governing body does not approve such contribution, such Member Agency may
be expelled by a majority vote of the other Member Agencies.
It is the intent of this Agreement that monies and fees advanced to the Authority by
individual Member Agencies to cover Authority costs of operation, including costs of
establishing the Authority, are to be reimbursed to said Member Agencies. Such
reimbursement shall be authorized to the extent that it does not impair necessary working
capital or the ability of the Authority to repay any bond or other debt obligations.
Any and all debts, liabilities, and obligations incurred by or imposed upon the
Authority shall be the debts, liabilities, and obligations solely of the Authority, rather
than the debts, liabilities and obligations of the individual Member Agencies.
For agencies joining the Authority after the effective date of this Agreement,
the Board shall determine such agencies' proportionate financial contribution, which
is due upon joining the Authority.
9. Accounting
(a) The Board shall establish and maintain such funds and accounts as may be
required by Generally Accepted Accounting Principles and by Federal and
State statute and regulation, as applicable.
(b) The Authority shall comply with the accounting and auditing requirements
contained in California Government Code sections 6505-6505.6.
(c) Each and every expenditure of monies shall be authorized by the Board or by
a person designated by the Board to authorize expenditures. The Treasure
shall draw warrants to pay the demands so authorized by the Board.
(d) Before the Authority may expend any monies or incur any financial obligation,
it shall adopt a budget showing proposed expenditures for the Fiscal Year
and the proposed means of financing such expenditures.
(e) The Board will appoint one of its officers to serve as auditor of the Authority.
The auditor shall comply with the duties and responsibilities of the office as
set forth in subdivisions (a) to (d), inclusive, of California Government Code
section 6505.5.
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10. Fiscal Year
For the purposes of this Agreement, the term “Fiscal Year” shall mean the fiscal
year as established from time to time by the Authority, being, at the date of this
Agreement, the period from July 1 to and including the following June 30, except for the
first Fiscal Year, which shall be the period from the date of this Agreement to June 30,
2018.
11. Legal Counsel
The Board shall retain independent legal counsel for the Authority, who shall be
procured consistent with all applicable procurement laws.
12. Privileges and Immunities
All of the privileges and immunities from liabilities, exemptions from laws,
ordinances and rules, all pension, relief, disability, workers’ compensation, and other
benefits that may apply to the activities of officers, agents or employees of public
agencies when performing their respective functions within their respective territorial
limits, shall apply to them to the same degree and extent while engaged as Member
Agencies of the Authority or otherwise as an officer, agent, Director, or other
representative of the Authority or while engaged in the performance of any of their
functions or duties extraterritorially under the provisions of this Agreement.
13. Liability
(a) The debts, liabilities, and obligations of the Authority shall be the debts,
liabilities, or obligations of the Authority alone, and not any of the Member
Agencies of this Agreement.
(b) The Authority, and those persons, agencies and instrumentalities used by it to
perform the functions authorized herein, whether by contract, employment or
otherwise, shall be exclusively liable for any/all injuries, costs, claims,
liabilities, damages of whatever kind to any person arising from or related to
activities of the Authority.
(c) The Authority shall hold harmless and indemnify Member Agencies, and each
of them, including their officers and employees, from any claim or liability
arising from acts or omissions of the Authority in pursuit of this Agreement,
and in so doing, shall provide Member Agencies, and each of them, with legal
defense of any and all claims or liabilities and shall pay reasonable attorney’s
fees and costs incurred in providing such defense.
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(d) Funds of the Authority may be used to defend, indemnify, and hold harmless
the Authority, each Member Agency, and any officers, agents, and employees
for their actions taken within the scope of their duties while acting on behalf of
the Authority.
(e) Each Member Agency and its respective officers, directors and employees
shall be named as additional insured to the same extent and degree that the
Authority and its officers, directors and employees are named as additional
insureds with respect to any insurance as required by the Authority pursuant to
the terms of any contract or franchise agreement entered into by any other
party with the Authority.
15. Entire Agreement
It is understood and agreed that the entire Agreement between the Member
Agencies is contained herein and that this Agreement supersedes all oral agreements
and negotiations between the Member Agencies relating to the subject matter hereof.
All items and exhibits referred to in this Agreement are incorporated or attached and are
deemed to be part of this Agreement.
16. Severability
Should any part, term, or provision of this Agreement be decided by the courts to
be illegal or in conflict with any law of the State of California or otherwise be rendered
unenforceable or ineffectual, the validity of the remaining portions or provisions shall not
be affected thereby, and shall be valid and enforceable to the fullest extent permitted by
law.
17. Amendment
This Agreement may be modified at any time by written amendment executed by all of
the Member Agencies. Any amendment shall become effective upon the execution of
the amendment by each Member Agency, unless specified otherwise.
18. Effective Date
The effective date (“Effective Date”) of this Agreement shall be the first day of the first
month following the execution of this Agreement by the Member Agencies.
19. Successors
This Agreement shall be binding upon and shall inure to the benefit of the successors of
the Member Agencies hereto. Except to the extent expressly provided herein, no
Member Agency may assign any right or obligation hereunder without the consent of the
other Member Agencies.
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20. Counterparts
This Agreement may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
21. Headings
The section headings herein are for convenience only and are not to be construed as
modifying or governing the language in the section to which referred.
22. Consent; Choice of Law; Venue
Wherever in this agreement any consent or approval is required, the same shall not be
unreasonably withheld. This Agreement is made in the State of California, under the
Constitution and laws of such state and is to be so construed. Venue for litigation by
and among any of the Member Agencies related to this Agreement shall be in the Santa
Clara County Superior Court.
IN WITNESS THEREOF, the Member Agencies have executed this Agreement
on the dates hereafter set forth.
CITY OF CAMPBELL
__________________________
City Manager
Dated:_____________________
ATTESTED:
_____________________________
City Clerk
Approved as to Form:
_____________________________
City Attorney
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TOWN OF LOS GATOS
__________________________
Town Manager
Dated:_____________________
ATTESTED:
_____________________________
Town Clerk
Approved as to Form:
_____________________________
Town Attorney
CITY OF MONTE SERENO
__________________________
City Manager
Dated:_____________________
ATTESTED:
_____________________________
City Clerk
Approved as to Form:
_____________________________
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City Attorney
CITY OF SARATOGA
__________________________
City Manager
Dated:_____________________
ATTESTED:
_____________________________
City Clerk
Approved as to Form:
_____________________________
City Attorney
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