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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: 1 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 2 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; 3 WVCWP JPA (FINAL) – January 2018 (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 4 WVCWP JPA (FINAL) – January 2018 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; 5 WVCWP JPA (FINAL) – January 2018 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. 6 WVCWP JPA (FINAL) – January 2018 (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 7 WVCWP JPA (FINAL) – January 2018 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 8 WVCWP JPA (FINAL) – January 2018 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. 9 WVCWP JPA (FINAL) – January 2018 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. 10 WVCWP JPA (FINAL) – January 2018 (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. 11 WVCWP JPA (FINAL) – January 2018 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 12 WVCWP JPA (FINAL) – January 2018 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: _____________________________ 13 WVCWP JPA (FINAL) – January 2018 City Attorney CITY OF SARATOGA __________________________ City Manager Dated:_____________________ ATTESTED: _____________________________ City Clerk Approved as to Form: _____________________________ City Attorney 14