DRAFT
5/5/25
Jones Hall 5-12-25
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Joint Powers Agreement
Between Participating Cities, Contra Costa County, and the Contra Costa Flood Control and Water Conservation District for
Implementation of the Contra Costa County Regional Alternative Compliance System Term Sheet
1. PURPOSE
The joint powers authority (“JPA”) formed pursuant to this Agreement will administer the Contra Costa County Regional Alternative Compliance (RAC) System, establish a community facilities district pursuant to the Mello-Roos Community Facilities Act of 1982 (Mello-Roos Act) in order to finance on-going maintenance costs for “Off-Site GSI Projects” constructed pursuant to the RAC System, and take other actions in furtherance of the RAC System. The RAC System is a program designed to offer a flexible, cost-effective, and scientifically defensible compliance option for the Municipal Regional Permit’s development provisions requiring post-construction stormwater treatment. The RAC System allows the owners of regulated developments and certain public agencies (buyers) to purchase “compliance units” in green stormwater infrastructure (GSI) treatment facilities or “Off-Site GSI Projects” constructed elsewhere within the County. The developers of the Off-Site GSI Projects, which may be public agencies or private entities, generate the “compliance units” that can be exchanged through the RAC System and purchased by the buyers (owners of the regulated developments and public agencies that cannot treat stormwater on their own sites). Private buyers will contribute to the cost of operating and maintaining the Off-Site GSI Projects by annexing their development sites into the proposed community facilities district formed by the JPA. Public agencies that are buyers will pay fees directly to the JPA as an alternative funding mechanism because such public agencies cannot be levied a special tax under the proposed community facilities district.
2. ESTABLISHMENT OF THE JPA
2.1 Separate Legal Entity. The JPA, as a joint powers authority is a separate entity from the participating agencies (“Member Agencies”) and is responsible for the administration of this Agreement.
2.2 Filing of Notices with Secretary of State and County Clerk. Within thirty (30) days after the effective date of this Agreement, the JPA shall cause a notice of this Agreement to be prepared and filed with the office of the California Secretary of State and the State Controller containing the information required by California Government Code Section 6503.5.
2.3 Within seventy (70) days after the effective date of this Agreement, the JPA shall cause a statement of the information concerning the JPA, required by California Government Code Section 53051, to be filed with the office of the California Secretary of State, the Contra Costa County Clerk, and the Contra Costa County Local Agency Formation Commission (LAFCO) stating the facts required to be stated pursuant to subdivision (a) of Government Code Section 53051.
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3. TERM
The Agreement shall become effective when all Member Agencies have executed the Agreement. The Agreement will be effective until dissolved through procedures outlined in this document.
4. POWERS AND OBLIGATIONS OF AUTHORITY
4.1 General Powers. The JPA shall have the power in its own name to exercise any and all common powers of its Member Agencies and such additional powers accorded to it by law reasonably related to the purposes of the JPA, including, but not limited to, the powers to:
a. Acquire, lease, construct, own, manage, maintain, dispose of or operate (subject to the limitations herein) any buildings, works or improvements within the boundaries of the Member Agencies deemed necessary by the Board to implement the RAC System; b. Acquire, hold, manage, maintain, or dispose of any other property within the boundaries of the Member Agencies by any lawful means, including without limitation gift, purchase, lease, lease-purchase, license, eminent domain or sale to support the RAC System; c. Seek, receive, and administer funding from any available public, nonprofit, foundation or private source, including grants or loans under any available Federal, State and local programs to support the RAC System;
d. Make and enter into other contracts;
e. Form and implement one or more community facilities districts pursuant to the Mello-Roos Community Facilities Act of 1982 (“Mello-Roos Act”); f. Incur all authorized debts, liabilities, and obligations, subject to the limitations herein to accomplish the stated purposes and objectives of the JPA; g. Receive gifts, contributions and donations of property, funds, services and other forms of financial or other assistance from any persons, firms, corporations or governmental entities;
h. Sue and be sued in its own name;
i. Seek the adoption or defeat of any Federal, State or local legislation or regulation necessary or desirable to accomplish the stated purposes and objectives of the JPA; j. Adopt rules, regulations, policies, bylaws and procedures governing the operation of the JPA;
k. To invest money pursuant to California Government Code Section 6505.5 that is not required for the immediate necessities of the JPA, as the JPA determines is advisable, in the same manner and upon the same conditions as local agencies, pursuant to Section 53601 of the California Government Code as it now exists or may hereafter be amended; -3-
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l. Carry out and enforce all the provisions of this Agreement; and m. Exercise all other powers not specifically mentioned herein, but common to Member Agencies, and authorized by California Government Code Section 6508 as it now exists or may hereafter be amended.
4.2 Specific Powers and Obligations. The JPA shall have the power in its own name to exercise the following specific powers and obligations to:
a. Conduct an audit of the records and accounts of the JPA annually by an independent certified public accountant and copies of such audit report shall be filed with the State Controller, the County Auditor, and shall be provided to the Member Agencies no later than fifteen (15) days after receipt of such audit reports by the JPA. b. Use any statutory power available to it necessary or desirable to finance the exercise of any power of the JPA.
c. The debts, liabilities and obligations of the JPA shall not be the debts, liabilities and obligations of the Member Agencies but only of the JPA; and d. Defend, hold harmless and indemnify, to the fullest extent permitted by law, each Member Agency from any liability, claims, suits or other actions.
5. BOARD OF DIRECTORS
5.1 JPA Governing Board. The JPA shall be governed by a Board of Directors consisting of one (1) voting representative and one (1) alternate from each Member Agency. An alternate shall serve in the absence of the Board Member for the agency they represent.
Alternates have no voting power other than when serving for an absent Board Member.
5.2 Qualifications. JPA Board members shall be the chief executive officer or general manager of the Member Agency or that official’s designee.
5.3 Board Officers. The Board shall annually select one of its members to serve as Chair and one member as Vice Chair.
a. If the Chair is unable to continue serving on the Board, then the ViceChair shall become Chair. A new Vice Chair will then be selected from another Member Agency.
b. If the Vice Chair is unable to continue serving on the Board, a new Vice Chair will be selected.
c. The Chair shall preside over all meetings of the Board and perform such other duties as may be imposed by the Board in accordance with law and this Agreement. -4-
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d. The Vice-Chair shall preside over all meetings of the Board in the Chair’s absence and perform such other duties as may be imposed by the Board in accordance with law and this Agreement when the Chair is absent.
5.4 Additional Officers and Consultants. The Board may appoint any additional officers deemed necessary or desirable. The Board may also retain such consultants or independent contractors as may be deemed necessary.
5.5 Bonding Requirements. The officers or persons designated to have charge of, handle, or have access to any funds or property of the JPA shall be so designated and empowered by the Board. Each such officer or person may be required to file an official bond with the JPA in an amount established by the Board.
5.6 Subcommittees. The Board may create permanent or ad hoc subcommittees to give advice to the Board on such matters as may be referred to such subcommittee by the Board.
5.7 Meetings. The Board shall hold publicly noticed meetings in accordance with a schedule established by the Board. The Board shall meet no less than once per year. Meetings shall be conducted and noticed in accordance with the provisions of the Ralph M. Brown Act.
5.8 Voting. All voting powers of the JPA shall reside in the Board.
5.9 Required Votes for Board Actions. Except as provided in Sections 11 and 19, any action of the Board shall require an affirmative vote of a majority of the Directors on the entire Board.
5.10 Approval of Annual Budget. Prior to April 1 each year, the designated Manager shall prepare and present a proposed budget to the Board for its review and approval. Prior to July 1 of each year, the Board shall approve the final budget for the following fiscal year.
5.11 Rules. The Board may adopt from time to time such bylaws, rules, and regulations for the conduct of meetings of the Board and of the affairs of the JPA.
5.12 Minutes. The Secretary shall cause minutes of all meetings of the Board to be drafted. Upon approval by the Board, such minutes shall become a part of the official records of the JPA.
5.13 Conflicts of Interest.
a. California Political Reform Act. Board members shall be considered “public officials” within the meaning of the California Political Reform Act of 1974, as amended, and its regulations, for purposes of financial disclosure, conflict of interest and other requirements of such Act.
b. Levine Act. Board members are “officials” within the meaning of California Government Code Section 84308 ( the “Levine Act”) and subject to the restrictions of such act on the acceptance, solicitation or direction of contributions. -5-
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5.14 Dispute Resolution. Should any dispute among the Member Agencies arise out of this Agreement and should the Member Agencies be unable to resolve the dispute, the Member Agencies shall, at the written request of any Member Agency, meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. If the dispute is not resolved by mediation, then the dispute shall be submitted to binding arbitration for resolution, with an arbitrator selected in accordance with Code of Civil Procedure Section 1281.6.
6. POWERS AND DUTIES OF GOVERNING BOARD
6.1 Powers and Duties. Describes the powers and duties of the Board of Directors.
Examples of powers include:
a. Perform the activities described in Section 6.2 with respect to the CFD described therein;
b. Review and recommend an annual budget to the Member Agencies; c. Make and enter into contracts or sub-contracts, and authorize by resolution officers or agents to execute such contracts;
d. Incur debt, liabilities and obligations on behalf of the JPA as authorized by law;
e. Invest JPA funds pursuant to the investment policy of the JPA; f. Appoint the Treasurer to have custody over all JPA funds (may be Treasurer of one of member agencies);
g. Receive contributions, donations or grants of property, funds, services, or other forms of assistance from any source;
h. Coordinate JPA activities with other Joint Powers Authorities or public agencies established for similar purposes in pursuing the common purposes set forth above; i. Appoint a Legal Advisor for the JPA;
j. Appoint, suspend and or terminate the Manager or enter into and terminate agreements for Management Services; and
k. Appoint a Secretary.
6.2 Community Facilities District
a. Community facilities district (“CFD”) will be established by the Board of Directors in accordance with the Mello-Roos Act.
b. CFD will levy special taxes on development sites owned by private buyers to finance maintenance of Off-Site GSI Projects. Off-Site GSI Projects may be publicly-owned -6-
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or privately-owned. JPA will enter into agreements with owners of Off-Site GSI Projects to provide for CFD funding of maintenance.
c. CFD will initially be formed to include (i) original CFD boundaries that consist of a single property within the jurisdiction of one of the Member Agencies and (ii) a future annexation area that includes the remaining territory of the initial Member Agencies. d. As additional public agencies join the CFD, the JPA will add such agencies’ territory to the CFD’s future annexation area. e. Private buyers will annex their properties into the CFD from the future annexation area. Member agencies will not need to approve annexations from the future annexation area into the CFD.
f. Board of Directors will be responsible for levying special taxes to fund maintenance of Off-Site GSI Properties and administering the CFD. Board of Directors may engage necessary consultants.
g. Board of Directors shall prepare all reports and notices required by the Mello-Roos Act.
7. OPERATIONS AND FACILITIES
7.1 Principal Office. The principal physical office of the JPA shall be established by Board resolution at one of the Member Agencies offices or at another suitable location.
7.2 Assumption of Responsibilities by the JPA. As soon as practicable after the effective date of this Agreement, a notice of an organizational meeting of the Board shall be published. During the first meeting the Board shall designate a Manager or engage Management Services.
7.3 Delegation of Authority; Transfer of Records, Accounts, Funds and Property.
The JPA shall establish procedures by which it may receive the transfer of records, accounts, funds or property from Member Agencies or other entities.
8. NO EMPLOYEES
8.1 The JPA shall not hire employees or retain consultants that could otherwise be classified as common law employees.
9. MANAGER OF THE JPA
9.1 Powers and Duties. The JPA Board shall appoint a Manager or acquire Management Services. The Manager may be only be a staff person of one of the Member -7-
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Agencies, a consultant, an independent contractor, or an employee of another entity who can perform the responsibilities and duties described in this section JPA. The Manager shall have the following powers, responsibilities and duties:
a. Planning, coordinating and supervising the operation of the JPA on a dayto-day basis to ensure that the policies and direction of the Board are implemented operationally and administratively;
b. Making recommendations to the Board regarding the operations of the JPA;
c. supervising and managing the JPA contractors;
d. Establishing policies and procedures for the JPA in order to implement directives from the Board.
e. Preparing the annual budget for submission to the Board.
10. INSURANCE AND LIABILITY
10.1 Insurance Coverage. The JPA shall be responsible for obtaining insurance coverage for its activities, as the Board deems appropriate.
10.2 Limitation on Liability. No debt, liability, or obligation of the JPA shall constitute a debt, liability or obligation of any Member Agency. Except as expressly authorized by the Member Agencies, no Member Agency shall be responsible for the acts and omissions of another Member Agency’s officers or employees nor shall a Member Agency incur any liabilities arising out of the services and activities of another Member Agency’s officers or employees.
11. ADDITION OF MEMBER AGENCIES
The addition of other agencies to the JPA shall require a super majority approval of threequarters of the entire Board. Recognizing the effort of the original Member Agencies to establish the JPA, the Board may require a financial contribution to become a member of the JPA.
12. MAINTENANCE AND OPERATION COSTS: COST ALLOCATION
12.1 Records and Accounts. The JPA shall cause to be kept accurate and correct books of account, showing capital costs (if any), and maintenance and operation costs of the JPA. The aforementioned described books and records shall be open to inspection at all times during normal business hours by Member Agencies. The Treasurer shall cause all financial records of the JPA to be audited by an independent public accountant or certified public accountant at least once a fiscal year and a copy of the audit to be delivered promptly to each Member Agency.
12.2 Allocation of Operating Expenses. Unless changed by mutual agreement of the Member Agencies, the operating costs and expenses in the budget shall be shared equally by the -8-
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Member Agencies. Notwithstanding the foregoing, any remaining operating costs and expenses associated with the operation and maintenance of the Off-Site GSI Facilities and the administration of the CFD, which are not fully paid for by special taxes collected by the CFD, shall be apportioned to the Member Agencies based upon the maximum special taxes levied in each Member Agency’s jurisdiction.
13. WITHDRAWAL OF A MEMBER AGENCY FROM THE JOINT POWERS
AUTHORITY
A Member Agency may withdraw from this Agreement by filing written notice of intention to do so with the other Member Agencies at least twelve (12) months in advance of the intended withdrawal date. The withdrawal of any Member Agency shall not terminate this Agreement provided at least two (2) Member Agencies remain. Withdrawal shall not relieve the Member Agency from any financial commitments associated with projects or programs that the withdrawing Member agreed to participate in prior to the effective date of the withdrawal.
14. DISPOSITION OF ASSETS UPON WITHDRAWAL OF A MEMBER AGENCY No Member Agency, by withdrawing, shall, except as may be agreed to by the Board, be entitled to payment or return of funds paid or property donated, if any, by the withdrawing Member Agency to the JPA or to any distribution of its assets.
15. TERMINATION; DISSOLUTION AND DISPOSITION OF ASSETS
This Agreement may be terminated and the JPA dissolved upon the consent of all Member Agencies. Upon termination of this Agreement and dissolution of the JPA, property owned by the Member Agencies shall be disposed of by the JPA. JPA funds shall first be used to pay expenses, debts, liabilities and obligations of the JPA and then allocated based upon the funding formula then current under Section 12.2 above. The Board shall reasonably value any remaining property in accordance with generally accepted accounting principles.
16. CAPITAL ASSETS
Capital assets of Member Agencies may be transferred to the JPA according to the disposition rules of the Member Agencies.
17. CONTRIBUTIONS AND ADVANCES
Pursuant to Government Code Section 6504, the Member Agencies may in their discretion make financial contributions, loans or advances to the JPA for the purposes of the JPA set forth in this Agreement. The repayment of such contribution, loans or advances will be on the written terms agreed to by the Member Agency making the contribution, loan or advance and the JPA.
18. LIMITATIONS ON POWERS
As required by Government Code Section 6509, the power of the JPA is subject to the restrictions upon the manner of exercising power possessed by the City of San Pablo. -9-
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19. AMENDMENT
This Agreement may be amended by a super majority vote of three quarters of the entire Board provided that notice of the proposed amendment is provided to the governing bodies of each of the Member Agencies at least 30 days in advance of its consideration by the Board. However, any amendment that could adversely affect the operation of the CFD shall require the unanimous approval of all Member Agencies’ legislative bodies.
20. NOTICE
Any notice required to be given or delivered by any provision of this Agreement shall be personally delivered or deposited in the U.S. Mail, registered or certified, postage prepaid, addressed to the Member Agencies at their addresses as reflected in the records of the JPA, and shall be deemed to have been received by the Member Agencies to which the same is addressed upon the earlier of receipt or seventy-two (72) hours after mailing.
21. SEVERABILITY
If a provision of the Agreement is found to be illegal or unenforceable, the validity of the remaining portions or provisions shall not be affected.
22. SUCCESSORS
This Agreement shall be binding upon and accrue to the benefit of any successor of a Member Agency.
23. ASSIGNMENT AND DELEGATION
No Member Agency may assign any rights or delegate any duties under this Agreement without the written consent of all other Member Agencies.
24. COUNTERPARTS
This Agreement may be executed in one (1) or more counterparts.
25. INTEGRATION
This Agreement represents the full and entire Agreement among the Members.
26. EXECUTION
The legislative bodies of the Members have each authorized execution of this Agreement, as evidenced by the respective signatures attested below.
Signature Blocks shall be included in the Final JPA Agreement.