HASPA Board of Trustees Meeting March 21, 2024
Contact: [email protected] / 510-544-2325
1 March 21, 2024
March 21, 2024 - 3:00 PM - In-Person and Remote Participation
HASPA Board of Trustees
Meeting Agenda
A Joint Powers Authority comprised of the East Bay Regional Park District, Hayward Area Recreation and Park District, and the City of Hayward.
Meeting location: HARD District Office at 1099 E Street, Hayward, CA and online via Zoom (Register for meeting link:
https://ebparks.zoom.us/webinar/register/WN_9zaE7KRqTZqT5oAs-PnaQg
Special notice regarding public participation:
The Hayward Area Shoreline Planning Agency (HASPA) intends to hold meetings through a hybrid platform of in-person and remote attendance to allow members of the public to participate via remote attendance through the East Bay Regional Park District’s (EBRPD) virtual platform, Zoom. The Board of Trustees and designated staff will, with limited exceptions, participate in - person at the office of HARD, District Office at 1099 E Street, Hayward, or other designated public facility within the HASPA service area. Occasionally, members of the Board of Trustees may attend remotely as permitted by the Brown Act.
For those members of the public not attending in-person, public comments may also be submitted one of in the following ways:
1. Send an email to [email protected]
by 12:00 p.m. the day of the meeting. Please identify
the Agenda Item Number in the subject line of your email. Emails will be compiled into one file, distributed to the HASPA Board of Trustees and Technical Advisory Committee (TAC) staff, and published on the EBRPD Public Meeting Page ( https://www.ebparks.org/calendar/public- meetings). Written comments received after 12:00 p.m. that address an item on the agenda will still be included as part of the record.
2. Live via Zoom. If you would like to make a live public comment during the meeting this option is available through the virtual meeting platform: *Note: this virtual meeting preregistration link will have you preregister for the meeting and then provide you details to the virtual meeting for the purpose of providing a public comment: Preregistration required:
https://ebparks.zoom.us/webinar/register/WN_9zaE7KRqTZqT5oAs-PnaQg
HAYWARD AREA SHORELINE PLANNING AGENCY
City of Hayward
East Bay Regional Park District
Hayward Area Recreation and Park District
HASPA Board of Trustees Meeting March 21, 2024
Contact: [email protected] / 510-544-2325
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Comments received during the meeting and up until the public comment period on the relevant agenda item is closed will be provided in writing to the HASPA Board of Trustees. All comments received by the close of the public comment period will be available after the meeting as supplemental materials and will become part of the official meeting record. If you have any questions, please contact Amanda Sanders at [email protected] or (510) 544-2650.
How to view the meeting virtually and provide live Public Comment during the meeting: Registration is required at below link. Meeting details will be provided when registration is completed.
When: March 21, 2024 03:00 PM Pacific Time (US and Canada) Topic: HASPA Board of Trustees Meeting
Register in advance for this webinar:
https://ebparks.zoom.us/webinar/register/WN_9zaE7KRqTZqT5oAs-PnaQg
CALL TO ORDER
ROLL CALL
Public Comments
The Public Comment section provides an opportunity to address the Board on items not listed on the agenda. The Board welcomes your comments and requests that speakers present their remarks in a respectful manner, within established time limits, and focus on issues which directly affect the Board or are within the jurisdiction of the Board. As the Board is prohibited by State law from discussing items not listed on the agenda, your item will be taken under consideration and may be referred to staff.
1. Approval of Minutes from the HASPA Meeting Held on February 8, 2024 - Draft Action Minutes of February 8, 2024 (Attachment 1)
2. Welcome Remarks From New HASPA Chair, Francisco Zermeno
3. City of Hayward Project Update – (City Staff)
4. JPA Agreement Discussion (Devan Reiff, EBRPD) (Attachment 2, 3 and 4)
5. Old Business (TAC and Board):
a. Recruitment Efforts for Additional Trustee Agencies
b. Community Engagement Activities
6. New Business (TAC and Board):
a. Updates on Trustee Agency Capital Projects
7. Board Member Announcements
8. Agenda Setting for Next Meeting
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ADJOURNMENT
HASPA facilities and meetings comply with the Americans with Disabilities Act. If special accommodations are needed for you to participate, please contact EBRPD staff at (510) 544-2325 as soon as possible, but preferably at least three working days prior to the meeting.
HASPA Board of Trustees Meeting March 21, 2024
Contact: [email protected] / 510-544-2325
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HAYWARD AREA SHORELINE PLANNING AGENCY
City of Hayward
East Bay Regional Park District
Hayward Area Recreation and Park District
Meeting of Board of Trustees
Hybrid Meeting: Hayward Area Park & Recreation District & Zoom February 8, 2024
DRAFT MINUTES
HASPA TRUSTEES PRESENT:
Dennis Waespi, East Bay Regional Park District, HASPA Chair (Remote Attendance) Lou Andrade, Hayward Area Recreation and Park District
Francisco Zermeño, City of Hayward
HASPA PROSPECTIVE TRUSTEES PRESENT:
Eric Hentschke, Alameda County Mosquito Abatement District Rita Duncan, Oro Loma Sanitary District
HASPA TAC MEMBERS PRESENT:
Devan Reiff, East Bay Regional Park District
Eddie Willis, East Bay Regional Park District
Taylor Richard, City of Hayward
Erik Pearson, City of Hayward
Brian Laczko, Hayward Area Recreation and Park District Erika Castillo, Alameda County Mosquito Abatement District Jackie Zipkin, East Bay Dischargers Authority
Jimmy Dang, Oro Loma Sanitary District
STAFF:
Amanda Sanders, East Bay Regional Park District
Jason Rosenberg, East Bay Regional Park District
Elizabeth Blanton, City of Hayward
Makenna Colucci, City of Hayward
VISITORS:
Maria Long, Alameda County Supervisor Marquez’ office
Nicole Witt, Hanson Bridgett
Jack Alcorn, Tri City Voice
Kate Kafka
Attachment 1: 2.8.2024 HASPA BOT Minutes
HASPA Board of Trustees Meeting March 21, 2024
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CALL TO ORDER: A special meeting of the Hayward Area Shoreline Planning Agency (HASPA) was called to order at 3:00 P.M. by Devan Reiff, HASPA Lead Staff, and role was taken by Devan Reiff.
Emergency Remote Meeting Attendance was requested by Chair Waespi due to a contagious illness. Devan Reiff asked Trustees Zermeño and Andrade if there was a motion to allow for Chair Waespi to attend remotely. Motioned the vote by Trustee Zermeño, seconded by Trustee Andrade. Unanimously passed.
1. Approval of Minutes from the HASPA Meeting held on December 7, 2023 - Draft Action Minutes of December 7, 2023
Trustee Andrade motioned the vote and Trustee Zermeño seconded. Vote: Ayes – Zermeño, Andrade, Waespi. Approved unanimously.
Public Comments: None
2. Election of 2024 HASPA Chairperson
Chair Waespi nominated Trustee Zermeño, Trustee Andrade seconded. Passed unanimously.
Newly elected Chair Zermeño, will take up Chair responsibilities at the March 21st Board of Trustees meeting.
3. City of Hayward Project Update – Data Center
Elizabeth Blanton with City of Hayward gave an update on application from STACK Data Center.
Project area is located just south of Hwy 92 on Eden Canyon Road. It is just outside of the 100- year flood event zone. The property is z oned industrial park which allows for a data center.
Project requests to demolish nine single buildings on the site to construct two data centers. The tallest building would be 115-feet, which requires approval from the Planning Commission. Public benefits are required to get approval for height in excess of what is allowed by the zoning. Data centers require a significant amount of power, the proposal shows two generator yards, with 28 generators with a substation and a PG&E switching yard. Public benefits to balance visual impact, suggested package include s artistic screenin g around substation and switching yard. Other suggestions include a small parklet style park at the corner of Eden Landing and Production, a bike repair area, a bike shelter and additional public amenities. Staff has requested one or more of the following additions be added to the proposal: a half-basketball court, walking trail, climate change signs, meeting space that can be rented by public, or small business space that can be rented. Public review comment time will allow for feedback. The project will be subject to CEQA.
Trustee Andrade stated that HARD is having a reception to raise money for the Hayward Shoreline Interpretive Center. Some funding towards the Hayward Shoreline Interpretive Center HASPA Board of Trustees Meeting March 21, 2024
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might be a good project to be added as a public benefit enhancement for the Data Center project.
He suggests that it is added as an option. Trustee Zermeño said the ideas are good, would like to add more suggestions of public art, perhaps a statue , likes to add Hayward Shoreline Center as suggested by Trustee Andrade. Trustee Zermeño mentioned that the bike repair shop is out of the way. Elizabeth replied that the idea was to have the bike repair shop connected to a pocket park there, that it would serve that industrial area and is also close to the SF Bay Trail. Prospective Trustee Duncan stated that she isn’t familiar with STACK Data, is it new to Hayward? Elizabeth said this would be first time City of Hayward is working with them. The company is not connected to Stack Youth and Family Center on Tennyson Road. Prospective Trustee Duncan stated that AC Transit is reducing some of their routes. Is there public transportation available to get the public to the site ? Trustee Andrade replied that the parklet would be mostly used by the employees on lunch break.
Prospective Trustee Duncan asked if the applicant is worried about sea level rise. Elizabeth responded that while the site is close to some of the mapped inundation areas, it is outside of it, so that would be a risk that the company would be taking on. Prospective Trustee Duncan asked if the public benefits would be mostly for the immediate area employees, would the public meeting area would it be for the public at large? Elizabeth said all the public amenities could be for the wider public, especially a public meeting room, and if the amenities are connected to existing facilities (ex. SF Bay Trail) it would make it more accessible for the larger public. Hoping that it will benefit the larger Hayward community. Chair Waespi asked what the cost of the project is. Elizabeth stated that she hasn’t seen any cost estimates yet, and that it is the most significant project on the shoreline in Hayward in regard to height. Chair Waespi said that there needs to be a lot more public benefits than what currently suggested. It will be the first thing seen when entering Hayward from Hwy 92. He approves of the idea of Hayward Shoreline Center being included, and some SF Bay Trail connections. Chair Waespi thinks HASPA should put in comments requesting more public benefit conveyances . Elizabeth said that it is always a negotiation with the applicant to warrant the additional impacts from the project versus the public benefits. This will also be going to a work session with the Planning Commission.
4. Update on JPA Agreement
Devan Reiff introduced Nicole Witt, attorney with Hanson Bridgett, assisting HASPA with creating new JPA agreement . At the last meeting in December there was discussion about the JPA Agreement. After receiving comments, a final draft version was provided to the TAC. After the revised drafts were provided to the legal counsel of all JPA Trustees and prospective Trustees, there was additional feedback received. Staff is suggesting an additional special Trustee meeting in March 2024 to consider the JPA Agreement.
Nicole noted the recent proposal from HARD (to voluntarily join as a Tier 3 agency) was optimistic, but we would like to pursue it and get back to the group. The suggestion was that members could join at a higher tier if they wanted. The JPA Agreement, as currently worded, has three tiers of membership based on agency operational budgets. The new suggestion would allow agencies to join at different Tiers than those assigned by operational budget . The HARD proposal would create three Tier three agencies, to include EBRPD, Hayward and HARD.
Trustee Zermeño said that he likes the idea of majority voting of 50% plus one. Nicole said that HASPA Board of Trustees Meeting March 21, 2024
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the current wording is that a majority vote wins, but in certain situations the weighted voting could take place. Trus tee Zermeño said that everyone is as important as other people’s vote, regardless of how much money they pay in dues.
Trustee Andrade asked if we did research into how other JPA’s worked. Devan replied yes, that other JPA’s have majority voting as regular and weighted voting as an option. Nicole said that the idea is that when weighted voting takes place it makes sure that the higher tiers would be responsible fiscally for additional projects/work that they would have to pay for. Prospective Trustee Hentschke said that for capital projects AC Mosquito Abatement has a smaller budget, so they wouldn’t be able to be able to put in as much money . Prospective Trustee Duncan says that she agrees with Trustee Zermeño and there should be majority vote for decisions. Trustee Andrade said that HARD is the third largest landowner on the shoreline and they want to protect their interest. The tier suggestion was from HARD. There should be cooperation between agencies, especially with grants. Trustee Andrade said we should say that any grant that someone gets should have to work with other HASPA agencies and would like a policy in place. He would like to see the proposal come back in March. Trustee Zermeño said the tiers came about because Hayward has more money than Oro Loma. Rita asked if this would affect recruitment. Trustee Andrade said he wasn’t sure how it would affect recruitment.
Chair Waespi asked when the weighted voting would apply. Nicole said that it would only apply if a T rustee stated “I motion for weighted voting on this item” . The weighted voting proposal was carefully researched by the TAC, to ensure that HASPA could have the ability to grow, as well as have a good fiduciary balance. The new proposal would cause the work done on the current weighted voting language to be restructured , but would hopefully find approval Chair Waespi said that we have gone over this so many times, thinks that it isn’t productive. Chair Waespi said that agencies said they couldn’t make the same r esponsibilities or monetary commitments, so we came up with weighted voting and tiers. Trustee Andrade suggested that there should be a higher voting requirement to get over to a majority vote, so it would, for example, require 70% approval (or, three a gencies voting to approve a motion). . Nicole cautioned that i f two members have more than 50% of the fiscal responsibility and all the administrative responsibility, and other three trustees vote something that the two other agencies don’t like, they couldn’t stop it. Super majority would be three agencies. 51% would be weighted based on the percentages of the tiers.
Trustee Zermeño suggested that a vote be motioned at this meeting. Nicole said that she thinks that it is premature for a motion and that it should be brought back soon for review by the Trustees. Chair Waespi stated that it is an informational item so we can’t take a motion as it hasn’t been noticed. Nicole said the intent is to bring the new JPA language back to present to the Trustees at the March special meeting.
5. Selection of Special Meeting Dates
Suggest adding two Special meetings of the HASPA Board: March 21 st selected, and May 9th
selected. April 11th meeting is a regular meeting and was already scheduled.
Trustee Zermeño motioned, seconded by Trustee Andrade. Approved unanimously.
HASPA Board of Trustees Meeting March 21, 2024
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8 March 21, 2024
6. Old/New Business
Jackie Zipkin, EBDA, gave an update on the H orizontal Levee project that would provide flood control near the Oro Loma plant . EBDA held a design charette that was intended to get design feedback from stakeholders: 32 representatives of various agencies including all of the current and prospective HASPA members and TAC members, plus other s-- a wide- ranging group Currently completing 30% design drawings, have been awarded a new grant from SFEP/EPA that will take the project through final design and the CEQA process. The charette was very successful in generating ideas for the project and for HASPA moving forward. EBDA is building a strong coalition. Shared artistic examples of work in progress of two potential futures, one where there is traditional riprap uses, and an environmental example. Talked about having a bridge to connect the community from the San Lorenzo community park to the Bay Trail at the shoreline, which doesn’t currently have access. It’s meant to illustrate potential future amenities for this project.
Trustee Andrade said the bridge is a great idea and it would open up access to a lot of things, especially for walking and biking connectivity. Chair Waespi said it is a great vision and a big challenge.
7. Board Meeting Announcements
Trustee Zermeño mentioned that from May to September there are events in Downtown Hayward, would like to invite HASPA to have booths at the events.
Erik Pearson is hosting City of Hayward’s Earth Day Fair on Saturday, April 20 th. Staff agreed to
have a HASPA table at the event at Meek Park.
HARD is having an open house at Eden Mansion to benefit Hayward Shoreline Interpretive Center. Flyer to be distributed to the group.
8. Agenda Setting for Next Meeting
Community engagement plan; Earth Day events traveling roadshow for April events – will have HASPA table at the Meeks Park event
Meeting adjourned at 4:24pm
HASPA Board of Trustees Meeting March 21, 2024
Contact: [email protected] / 510-544-2325
9 March 21, 2024
HAYWARD AREA SHORELINE PLANNING AGENCY
Memorandum
DATE: March 21, 2024
TO: HASPA Board of Trustees, TAC
FROM: Devan Reiff, EBRPD / Nicole Witt (Hanson Bridgett)
SUBJECT: Proposed JPA Agreement
The HASPA Board of Trustees (Board), prospective Trustees, and staff from the Board and prospective Trustees on the Technical Advisory Committee (TAC) have been engaged in diligent negotiations about a new Joint Powers Authority Agreement (JPA Agreement) for the Hayward Area Shoreline Planning Agency (HASPA) since 2022. Trustees and prospective Trustees expressed an interest in HASPA becoming a larger agency, ensuring its longevity to protect the Hayward Shoreline from the effects of climate change and sea level rise. The goals of this new JPA Agreement are to meet HASPA's evolving needs for the next 20+ years and to give the agency maximum flexibility to address possible future expansion in operations and management.
Attorneys for HASPA, from the firm of Hanson Bridgett, received substantive input from the Board, prospective Trustees, TAC members, and the legal counsel from the respective agencies. The majority of that input has been incorporated into this draft JPA Agreement, for the consideration of the Board and TAC. A clean copy of the draft JPA Agreement (Attachment 3) was circulated to TAC staff on March 8, 2024 in anticipation of this March 21st Board meeting.
The JPA Agreement consists of 20 sections and four attachments (called “Schedules”). Of the JPA Sections, #5, “Organization” and #8, “Budget,” are the most pertinent to the recent discussions.
Changes from previous drafts of the JPA Agreement are as follows:
• Hayward Area Park and Recreation District (HARD) is now listed as a Tier 3 agency and, as a result, any motion subject to weighted voting will require the approval of at least three agencies. See Schedules C and C1, as agreed to by the TAC, for each agency’s weighed voting percentages (Attachment 4) . This is Attachment 2: Proposed JPA Agreement Memorandum
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consistent with non- weighted voting, which will also require the approval of at least three agencies.
• A new defined term, "Climate Change Impacts," to ensure that the JPA Agreement speaks consistently about the purpose of HASPA.
• Removal of the delegation of authority to the HASPA Board to approve "non- substantive amendments.”
• Clarification of the intent of any alternative Surcharge allocation, and a new requirement that, if a party's Surcharge allocation is higher than the percentage allocations in Schedule C, the party must consent to the higher allocation. • Clarification that the approval threshold for any motion subject to weighted voting is 51%.
• Clarification that the parties may sign the JPA by electronic signature.
The TAC grappled with the weighted voting/tiered dues structure in an effort to create a structure for HASPA that is both fair and functional. The ability of the members to call for weighted voting is critical for the efficient functioning of HASPA. Propos ed alternatives would have allowed one member agency to veto the budget and other similar actions, which would impair HASPA's ability to expand its role in the Hayward Shoreline region.
Additionally, the proposal to include a supermajority vote threshold for approval of the budget, or for dues increases, would create an administrative burden that could lead to mistakes—and subsequent related litigation.
Trustees have also suggested that HASPA staff should be actively pursuing additional new HASPA member agencies, to expand the agency so that it includes all public landowners on the Hayward Shoreline. Staff agrees this is a priority and can report that efforts encouraging Alameda County join HASPA are underway. Staff will bring an engagement plan to the April 11
th Board meeting detailing both outreach to prospective new HASPA Board members as well as community engagement efforts to involve the public in HASPA.
This JPA Agreement seeks to balance the efficient functioning the agency and adequate protections for the parties. Staff seeks Trustee and prospective Trustee direction on the adequacy of this version of the JPA Agreement, and further, staff seeks direction from the Board to prepare a final version of the JPA Agreement for the next regular HASPA Board meeting on April 11, 2024, for potential adoption.
HASPA Board of Trustees Meeting March 21, 2024
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AMENDED AND RESTATED HAYWARD AREA SHORELINE PLANNING AGENCY
JOINT EXERCISE OF POWERS AGREEMENT
July 1, 2024
TABLE OF CONTENTS
Attachment 3: Proposed JPA Agreement
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Section 1. Definitions.................................................................................................................... 17 Section 2. Authority and Purpose ................................................................................................. 18 Section 3. Creation of HASPA ..................................................................................................... 19 Section 4. Powers .......................................................................................................................... 19 Section 5. Organization ................................................................................................................. 20 a. HASPA Board .................................................................................................................... 20 b. Voting ................................................................................................................................ 21 c. JPA Amendments............................................................................................................... 21 d. Certain JPA Amendments Delegated to the Board. ........................................................... 21 e. Certain JPA Amendments Delegated to the Manager/Managing Agency. ........................ 21 f. Meetings ............................................................................................................................. 22 g. Bylaws................................................................................................................................ 22 Section 6. Managing Agency/Manager......................................................................................... 22 a. Managing Agency .............................................................................................................. 22 b. Manager ............................................................................................................................. 22 Section 7. Employees .................................................................................................................... 23 a. Agency Employees ............................................................................................................ 23 b. Officers, Employees, Agents of the Parties ....................................................................... 23 Section 8. Budget and Finance...................................................................................................... 23 a. Budget ................................................................................................................................ 23 b. Dues ................................................................................................................................... 24 c. Funding and Agency Financial Commitments .................................................................. 24 Section 9. Treasurer, Controller, Accountability, and Access to Property ................................... 24 a. Treasurer ............................................................................................................................ 24 b. Controller ........................................................................................................................... 25 c. Accountability of Funds ..................................................................................................... 26 d. Access to Property and Funds ............................................................................................ 26 Section 10. Term, Termination, and Withdrawal of a Party ......................................................... 26 a. Term ................................................................................................................................... 26 b. Termination ........................................................................................................................ 26 c. Withdrawal ......................................................................................................................... 27 d. Reinstatement ..................................................................................................................... 27 Section 11. Elections ..................................................................................................................... 27 Section 12. Boundaries and Service Area ..................................................................................... 28 HASPA Board of Trustees Meeting March 21, 2024
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Section 13. Amendments .............................................................................................................. 28 Section 14. New Parties ................................................................................................................ 29 Section 15. Dispute Resolution ..................................................................................................... 29 Section 16. Severability ................................................................................................................ 29 Section 17. Counterparts. .............................................................................................................. 30 Section 18. Successors; Assignment ............................................................................................. 30 Section 19. Governing Law .......................................................................................................... 30 Section 20. Joint Drafting ............................................................................................................. 30
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TABLE OF SCHEDULES
Schedule A: HASPA Boundary Map
Schedule B: Service Area Map
Schedule C: Annual Dues Table/Weighted Voting Chart
Schedule C-1: Example Annual Dues Table
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AMENDED AND RESTATED HAYWARD AREA SHORELINE PLANNING AGENCY
JOINT EXERCISE OF POWERS AGREEMENT
THIS AGREEMENT, dated for convenience as of July 1, 2024, is made and entered into by and among the East Bay Regional Park District, a special district (hereinafter referred to as “Regional Park District”); the Oro Loma Sanitary District, a sanitary district (hereinafter referred to as “Oro Loma”), the Alameda County Mosquito Abatement District, a mosquito control district (hereinafter referred to as “ACMAD”), the Hayward Area Recreation and Park District, a California special district (hereinafter referred to as “HARD”); and the City of Hayward, a municipal corporation (hereinafter referred to as “Hayward”) (collectively “Parties” and individually “Party”); each duly organized and existing in the County of Alameda under the constitution and laws of the State of California.
WITNESSETH:
WHEREAS, the Hayward Area Shoreline Planning Agency (hereinafter referred to as “HASPA” or “Agency”), is a joint powers authority consisting of representatives from the Regional Park District, Oro Loma, ACMAD, HARD, and Hayward; WHEREAS, HASPA was formed pursuant to the December 7, 1970 Joint Exercise of Powers Agreement (hereinafter the “Agreement”);
WHEREAS, the Agreement was subsequently extended on October 7, 1975, November 13, 1979, June 10, 1985, September 11, 1990, September 21, 1995, August 25, 2000, July 1, 2005, June 30, 2010, June 30, 2015, December 1, 2015, January 1, 2021, January 1, 2022, June 30, 2022, and May 11, 2023;
WHEREAS, HASPA's original purpose, which has been fulfilled, was to study, plan, and adopt policies concerning the land uses in the Shoreline area, in order to develop a HASPA Board of Trustees Meeting March 21, 2024
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comprehensive plan for the governing bodies of the original parties so that the plans and actions of each party are compatible with those of the other parties; WHEREAS, the Hayward Shoreline faces serious impacts to infrastructure and resources caused by sea level rise, groundwater intrusion, and storm surge (“Climate Change Impacts”); WHEREAS, HASPA adopted the Hayward Regional Shoreline Adaptation Master Plan, which creates a framework for a region-wide response to Climate Change Impacts; WHEREAS, the Parties wish to continue HASPA and its powers and functions in addressing the new mission of responding to Climate Change Impacts by promoting public health and climate adaptation measures, protecting critical infrastructure at the shoreline, and maintaining public access to the shoreline, as more particularly described herein; WHEREAS, Climate Change Impacts create a unique challenge to the preservation of open space resources at the shoreline. Climate adaptation measures facilitate the conservation and restoration of park lands and habitat for threatened species in the East Bay; WHEREAS, Climate Change Impacts threaten waste water treatment facilities located along the Hayward Shoreline. Addressing and mitigating sea level rise is necessary to ensure these sanitary sewer facilities remain functional and to prevent the sewer overflows into the San Francisco Bay in order to protect public health;
WHEREAS, the coastal inundation and flooding exacerbated by sea level rise increase the breeding habitat for mosquitoes and warmer temperatures associated with climate change can accelerate mosquito development. Engaging in preventative climate change efforts is a crucial way to combat and prevent the transmission of vector-borne diseases which will further ACMAD’s mission of improving the health and comfort of Alameda County residents; HASPA Board of Trustees Meeting March 21, 2024
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WHEREAS, HARD is a recreational and park district established under Public Resources Code Section 5780 et seq. empowered to, among other things, acquire, operate, maintain, and improve recreational facilities and open space, which includes the authority to respond to Climate Change Impacts by implementing climate adaptation measures to safeguard its property; WHEREAS, the City of Hayward, pursuant to Section 200 of the City Charter and Article XI, Section 5 of the California Constitution, may make and enforce all laws and regulations in respect to municipal affairs, and pursuant to Article XI, Section 7 of the California Constitution may exercise its police powers to make and enforce ordinances and regulations to promote the public health, safety, and welfare, which includes development and implementation of climate adaption measures to address Climate Change Impacts along the Hayward Shoreline, including sea level rise and/or inundation;
WHEREAS, the Parties desire that this Agreement supersede and supplant all previous iterations of the Agreement set forth above;
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the Parties agree as follows:
Section 1. Definitions
a. “Agency” means HASPA.
b. “Agreement” means this Amended and Restated Joint Exercise of Powers Agreement.
c. “HASPA Board” means the Hayward Area Shoreline Planning Agency Board of Trustees, being the governing body of HASPA.
d. “Controller” means the public officer performing the functions of auditor or controller as determined pursuant to the Act.
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e. “Hayward Shoreline” or “Service Area” means all areas of the City of Hayward and all areas of the unincorporated land in the Alameda County that are west of the Southern Pacific Railroad tracks and are between the boundaries of the City of San Leandro on the north and the City of Fremont on the south and all areas where the 100 year inundation line is currently shown on FEMA maps, as shown in Schedule A.
f. “Manager” or “Managing Agency” means the Party, individual, or independent contractor, designated by the HASPA Board to act for and on behalf of the Agency, as the agent or representative of the Agency, pursuant to and within the scope of authority provided in this Agreement and delegated by the HASPA Board, as further described in Section 6.
g. “Supporting Agency” means a Party that contracts for a project within the Service Area that is not otherwise supported by annual dues.
h. “Surcharge” means funds required for any expenditure that is approved by the HASPA Board, but is not itemized in the annual budget.
i. “Treasurer” means the public officer designated and performing the functions of as determined pursuant to Section 6505.5 or Section 6505.6 of the Act.
Section 2. Authority and Purpose
This Agreement is made pursuant to Chapter 5, of Division 7, Title 1 of the California Government Code (Sections 6500 et seq.; the "Act") and relates to the joint exercise of powers held by each of the parties and as otherwise granted by the Act. The purpose of this Agreement is to jointly exercise the common powers of the parties to address Climate Change Impacts on the Hayward Shoreline by promoting and implementing climate adaptation measures on the HASPA Board of Trustees Meeting March 21, 2024
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Hayward Shoreline through shoreline planning activities, collaboration to advance projects, and seeking funding for projects.
Section 3. Creation of HASPA
The Agency is a public agency separate from the Parties. The Agency will exercise the powers set forth in this Agreement. No debt, liability, or obligation of the Agency will constitute a debt, liability, or obligation of the parties, except as expressly provided in this Agreement.
Section 4. Powers
To the greatest extent permitted by law and in the manner provided herein, the Agency will exercise the powers which are common to each Party, or as otherwise permitted under the Act, and all incidental, implied, expressed, or necessary powers to accomplish the purposes of this Agreement. The Agency is hereby authorized, in its own name, to perform all acts necessary to fulfill the purposes of this Agreement, including but not limited to any or all of, the following:
a. to make and enter into contracts;
b. to employ agents and employees;
c. to apply for and accept grants, advances and contributions d. to receive, accept, and expend or disburse monies by contract or otherwise for purposes consistent with this Agreement;
e. to employ or contract for the services of planners, financial advisors, consultants, contractors, fiscal agents, and such other persons as the HASPA Board deems necessary and to establish compensation, salaries, and other benefits for such persons as are necessary to implement this Agreement;
f. to make plans and conduct studies;
g. to acquire, hold or dispose of property;
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h. to sue and be sued in its own name;
to incur debts, liabilities or obligations and issue indebtedness; i. to prepare and adopt a general budget for HASPA’s functions; j. to explore shoreline protection in conjunction with climate adaptation; k. to develop and adopt bylaws and policies for the conduct of the business of the Agency;
l. to insure itself and the Parties from loss, liability, and claims arising out of or in any way connected with the performance of this Agreement; and m. To enter into joint exercise of powers agreements pursuant to the Act.
For the purposes of California Government Code Section 6509, the powers of the Agency will be exercised subject to the restrictions upon the manner of exercising such powers as are imposed on the City of Hayward, a charter city.
Section 5. Organization
a. HASPA Board
The Agency will be governed by the HASPA Board, which will exercise all powers and authority on behalf of the Agency except as otherwise provided herein. The HASPA Board is composed of representatives from each Party, who are known as trustees. Each party to this Agreement will appoint one member of its governing body to be a trustee and will appoint a second member of its governing body to be an alternate trustee to serve in the absence of that Party’s trustee. Each trustee and alternate will serve at the pleasure of his or her governing body, but in no event will either a trustee or alternate trustee serve on the HASPA Board if he or she is no longer a member of the governing body of a party. Each trustee (or alternate trustee serving the absence of the trustee) is allocated one vote on any matter before the HASPA Board. In HASPA Board of Trustees Meeting March 21, 2024
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accordance with the Bylaws, the trustees will elect from among themselves, and establish the terms of office for, a Chair and such other officers, as they deem necessary or desirable. b. Voting
1. Majority Vote and Weighted Voting. Generally, the affirmative vote of a majority of the total membership of the HASPA Board is required to adopt any action. However, any HASPA Board member may call for any motion to be subject to weighted voting. The call for weighted voting must be made before the motion is made. The weighted percentage of each member's vote will be as set forth in Schedule C. An affirmative vote of at least 51% is required to adopt any motion subject to weighted voting, subject to the consent requirement in Section 8(a) if applicable. c. J
PA Amendments.
Unless explicitly provided in the Agreement, the HASPA Board and the governing boards of the Parties must approve all amendments to the Agreement, including any amendments to the Agreement that effect the rights, obligations, or status of the Parties to this Agreement, add new parties to the Agreement, or alter the authority and purpose of the Agency. d. Certain JPA Amendments Delegated to the Board.
The Parties have delegated to the HASPA Board the authority to make any revision to the provisions of the Agreement related to the operations of the Agency, which is necessary to effect the purpose of the Agency.
e. Certain JPA Amendments Delegated to the Manager/Managing Agency.
In addition, the Parties have delegated to the Manager/Managing Agency the authority to make such administrative revisions to the Agreement as described in Section 12.
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f. Meetings
All meetings of the HASPA Board are public meetings and will be held subject to the requirements of the Ralph M. Brown Act, Section 54950 et seq. of the California Government Code, other applicable laws of the State of California, and the bylaws of the HASPA Board. A majority of the trustees will constitute a quorum.
g. Bylaws
The HASPA Board may adopt, and from time to time amend, bylaws of the HASPA Board as necessary or convenient in the determination of the HASPA Board to achieve its purposes. The bylaws may set forth how meetings of the HASPA Board will be conducted.
Section 6. Managing Agency/Manager
a. Managing Agency
If the HASPA Board designates a Party as the Managing Agency, the duties of the Managing Agency will alternate among the Tier 3 Parties as set forth in Schedule C. The Tier 3 Parties will rotate the Managing Agency role as needed. b. Manager
The HASPA Board may employ a staff member of one of the Parties or other individual to manage the Agency, or it may contract for the services of the Manager. In such case, the HASPA Board will prescribe the duties, compensation, and terms and conditions of employment, or of the contract, of the Manager. At a minimum, the Manager will coordinate the business of the Agency, hire and direct any Agency employees, attend HASPA Board meetings, prepare, distribute and maintain agendas and minutes of the HASPA Board meetings and official actions of the Agency, and carry out other duties as may be assigned by the HASPA Board. The Manager will serve at the pleasure of the HASPA Board. In the event the HASPA Board HASPA Board of Trustees Meeting March 21, 2024
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employs or contracts for the services of a Manager, the Managing Agency will be responsible for supporting tasks such as administration of the contract for the services of a Manager and use of office resources.
Section 7. Employees
a. Agency Employees
The Agency may directly employ officers, agents, or employees, but none of the officers, agents, or employees directly employed by the Agency will be deemed, by reason of their employment by the Agency, to be employed by any Party or to be subject to any of the requirements of any Party. Any officer, employee, or agent of the Agency may also be an officer, employee, or agent of any Party, provided that the HASPA Board or Manager determines that the two positions are compatible.
b. Officers, Employees, Agents of the Parties
All privileges and immunities from liability, all exemptions from laws, ordinances and rules, and all pension, relief, disability, worker's compensation, and other benefits which apply to the activities of officers, agents, or employees of a Party when performing their respective functions will apply to them to the same degree and extent while engaged in the performance of any of the functions and other duties under this Agreement.
Section 8. Budget and Finance
a. Budget
The Agency may adopt a budget for activities consistent with its powers and may require the contribution of funds from the Parties for the expenditures included in that budget.
As opportunities arise, the Board may approve the imposition of Surcharges to fund expenses that are not otherwise included in the adopted budget. Generally, Surcharges will be allocated HASPA Board of Trustees Meeting March 21, 2024
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to each Party in accordance with the percentages in Schedule C. However, at the request of any Party, the Board may consider a different allocation for the Surcharge. At the Board's discretion, such allocation may be among all of the Parties or only a portion of the Parties. The intent of any such alternative allocation is to give Supporting Agencies and/or any party that may receive unique benefits from the expense the opportunity to contribute at a higher level than the applicable percentage in Schedule C. If a Party's Surcharge allocation is higher than the percentage in Schedule C, the Party must consent in writing to the Surcharge allocation.
The Board's decision on any allocation will be final.
b. Dues
On July 1 of each year, each Party will pay the annual dues to the Agency. The total amount of annual dues will equal the total adopted budget for that fiscal year. Each Party's allocation of the annual dues will be based on the percentages set forth in Schedule C. c. Funding and Agency Financial Commitments
The Agency may apply for and receive grants and other funding from outside sources to support its purpose. The Agency may be the responsible fiscal agency for the funding or an appropriate Party may be selected. The Agency may not make any financial commitment that requires revenues in excess of those available to it.
Section 9. Treasurer, Controller, Accountability, and Access to Property a. Treasurer
Pursuant to Government Code Section 6505.5, the treasurer of the Managing Agency, or other duly authorized staff person, is the Treasurer of the Agency. Alternatively, pursuant to Government Code Section 6505.6, the HASPA Board may appoint one of the Agency's officers HASPA Board of Trustees Meeting March 21, 2024
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or employees as Treasurer of the Agency. The Treasurer will be the depositary, and have custody of all the money of the Agency from whatever source. The Treasurer will:
1. Receive and receipt for all money of the Agency and place it in the treasury of the Treasurer to the credit of HASPA.
2. Be responsible upon his or her official bond for the safekeeping and disbursement of all Agency money and personal property.
3. Pay, when due, out of money of the Agency, all sums due from the Agency, or any portion thereof, only upon warrants of the public officer performing the functions of Controller of the Agency.
4. Verify and report in writing on the first day of July, October, January, and April of each year to the Agency, and to each of the Parties, the amount of money held for HASPA, the amount of receipts since the last report, and the amount paid out since the last report.
5. Invest all of the Agency’s funds not currently required in the manner provided by law including but not limited to Government Code sections 6509.5 and 53601 and collect interest thereon for account of the Agency.
6. Have the powers, duties, and responsibilities of the treasurer as specified in the Act, including, without limitation, Sections 6505 and 6505.5 thereof.
b. Controller
Pursuant to Government Code Section 6505.5, the auditor of the Managing Agency, or other duly authorized staff person, is the Controller of HASPA. Alternatively, pursuant to HASPA Board of Trustees Meeting March 21, 2024
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Government Code Section 6505.6, the HASPA Board may appoint one of the Agency's officers or employees as Controller of the Agency. If an appointment is made pursuant to Government Code Section 6505.6, the offices of the Treasurer and Controller may be held by the separate individuals or the offices may be held by the same individual. The Controller will draw warrants to pay demands against the Agency when the demands have been duly authorized by the HASPA Board. The Controller will have the powers, duties, and responsibilities specified in the Act, including, without limitation, Sections 6505 and 6505.5 thereof. c. Accountability of Funds
There will be strict accountability of all HASPA funds and report of all receipts and disbursements and compliance with the Act. The Controller will either make or arrange for a contract with a certified public accountant or public accountant to make an annual audit of the accounts and records of the Agency.
d. Access to Property and Funds
As provided in Section 6505.1 of the Act, the Treasurer is hereby designated as the person who has charge of, handles, and has access to the property of the Agency. The HASPA Board will require such person to file an official bond in an amount to be fixed by the HASPA Board and the cost of said bond will be paid by the Agency.
Section 10. Term, Termination, and Withdrawal of a Party a. Term
This Agreement is effective as of the date of execution by the last party hereto and will continue in full force and effect until terminated by mutual agreement of the Parties. b. Termination
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Upon mutual agreement of the Parties to terminate the Agreement, the Agency will liquidate any assets. After the discharge of all enforceable liabilities, the liquidated assets will be divided equally among the Parties, unless otherwise agreed to by the Parties. In terminating this Agreement, the Parties agree to apportion any employee retirement obligations of the Agency equally among all Parties. All Parties will comply with all legal requirements related to the Agency's pension liabilities and obligations as specified in the Act and the Public Employees Retirement Law (California Government Code Section 20000 et seq.). c. Withdrawal
Any Party may withdraw from the Agency by reaching an agreement with the remaining Parties, whereby the remaining Party(ies) acquires all of the rights in this Agreement and in the Agency and assumes all liability, including bonded indebtedness, of the withdrawing Party. d. Reinstatement
A party, subsequent to its filing of its notice of withdrawal or its actual withdrawal from the Agency, may seek reinstatement as a member of the Agency in accordance with the procedures for adding a new party as set forth in Section 14.
Section 11. Elections
For the purpose of holding any election within the Agency's boundaries, the HASPA Board may call and hold an election to submit propositions to the electors of the Agency in the same manner as the board of supervisors of a county may call and hold county elections, and the electors of the Agency will have the right to petition for referendum on any ordinance enacted by the HASPA Board in the same manner as the electors of a county, except that all computations referred to in those sections and the officers of the county mentioned in those sections will be construed to refer to comparable computations and officers of the Agency. For the purposes of HASPA Board of Trustees Meeting March 21, 2024
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any such election or referendum petition, the electors residing within the boundaries of the Agency who would be qualified to vote for candidates for Governor at any general election will be the electors of the Agency.
Section 12. Boundaries and Service Area
The boundary of the Agency will be the consolidated boundaries of all Parties, as may be amended from time to time. The current boundaries are shown in Schedule B. In the event the Agency's boundaries change, the Managing Agency or Manager will prepare an updated Schedule B, which will be automatically incorporated into this Agreement. For clarity, HASPA generally will exercise the common powers described in this Agreement within the Service Area, as shown in Schedule A. In the event the Service Area changes (e.g. due to the withdrawal of a Party, updates to the FEMA maps), the Managing Agency or Manager will prepare an updated Schedule A, which will be automatically incorporated into this Agreement.
Section 13. Amendments
The Parties authorize the HASPA Board to approve amendments to the Agreement as described in section 5(d) and the trustees are each authorized to execute any such amendments on behalf of their respective agencies. All other amendments to this Agreement require approval HASPA Board of Trustees Meeting March 21, 2024
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by unanimous vote of the total membership of the HASPA Board and a writing approved and executed by the governing bodies of all Parties.
Section 14. New Parties
A new party may be added to this Agreement by forwarding a duly adopted resolution of its governing body to the Manager or Managing Agency. If approved by the HASPA Board, the addition of the new party will be effective upon approval of the amendment by all Parties.
Section 15. Dispute Resolution
In the event of any dispute, the parties will promptly meet and confer, first at a staff level and then elevated to a meeting of the HASPA Board, in a good faith attempt to resolve the dispute. In connection with such negotiations, the party asserting the dispute must provide the other with a written description of the nature of the dispute, along with reasonable supporting documentation. If a dispute cannot be resolved by the parties independently, they may agree to submit such dispute to non-binding mediation by a mutually agreed-upon neutral third party with offices in the San Francisco Bay Area. The cost of mediation will be shared equally. In the alternative, a party may choose to resolve questions or disputes arising under the Agreement through arbitration or judicial determination.
Section 16. Severability
If any one or more of the covenants or agreements set forth in this Agreement should be contrary to any provision of law or contrary to the policy of law to such an extent as to be unenforceable in any court of competent jurisdiction then such covenant or covenants, or such agreement or agreements, will be null and void and will be deemed separable from the remaining covenants and agreements and will in no way affect the validity of remaining portions of this Agreement.
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Section 17. Counterparts.
This Agreement may be separately executed in any number of counterparts, and each counterpart signature page and the remainder of this Agreement will constitute the original Agreement. Facsimile, electronic, or digital signatures will be treated in all respects as having the same effect as an original signature.
Section 18. Successors; Assignment
This Agreement will be binding upon and inure to the benefit of the successors of the Parties. No Party may assign any right or obligation hereunder without the consent of the others.
Section 19. Governing Law
This Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of California, without giving effect to conflict of law provisions.
Section 20. Joint Drafting
All Parties participated in the drafting of this Agreement and the Agreement will not be construed against any Party as the drafter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and attested by their respective officers, duly authorized to so act, on the dates set forth.
SIGNATURE BLOCKS ON FOLLOWING PAGES
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Schedule C: Annual Dues Table/Weighted Voting Chart1
Agency Weighted Voting %
ACMAD (Tier 1) 10%
Oro Loma (Tier 2) 18%
HARD (Tier 3) 24%
Hayward (Tier 3) 24%
EBRPD (Tier 3) 24%
TOTALS 100%
1 The weighted voting allocation described in this Schedule C is based on the agencies' annual operating budgets. Tier 1 agencies have an annual operating budget of less than $10 million.
Tier 2 agencies have an annual operating budget of between $10 million to $30 million, and Tier 3 agencies have and annual operating budget over $30 million. The tiers described above are fixed and may not be modified except by amendment to the Agreement.
Attachment 4: Proposed JPA Agreement Schedule C & C1
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Schedule C-1: Example Annual Dues Table
For illustrative purposes only
Agency Weighted Voting % Example Annual Dues Allocation ACMAD (Tier 1) 10% $13,000
Oro Loma (Tier 2) 18% $23,400
HARD (Tier 3) 24% $31,200
Hayward (Tier 3) 24% $31,200
EBRPD (Tier 3) 24% $31,200
TOTALS 100% Example Annual Budget Total:
$130,000