17533916.18
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
OF THE WEST COUNTY AGENCY
AMENDED AND RESTATED AS OF
June 15, 1984
AMENDED AS OF
April 2, 1990
AMENDED AS OF
November 23, 1992
AMENDED AS OF
December 21, 1993
AMENDED AS OF
July 2, 1996
AMENDED AS OF
July 21, 2020
AMENDED AND RESTATED AS OF
September 15, 2022
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AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT OF THE WEST
COUNTY AGENCY
This AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT ("Amended and Restated Agreement") dated as of September 15, 2022 ("Effective Date") and is among WEST COUNTY WASTEWATER DISTRICT, a public corporation and a sanitary district organized and existing pursuant to the provisions of California Health and Safety Code Sections 6400 et seq., in the State of California (“WCW”), the CITY OF RICHMOND, a municipal corporation and charter city duly organized and existing under a freeholder’s charter in the State of California (“Richmond”), and the RICHMOND MUNICIPAL SEWER DISTRICT, a public corporation and a sewer district organized and existing pursuant to the provisions of California Health and Safety Code Sections 4600 et seq. in the State of California (“RMSD”) (WCW and Richmond/RMSD together are each a "Member" and collectively the "Members"); each duly organized and existing in the County of Contra Costa under the constitution and laws of the State of California.
A. The Members first entered into a Joint Exercise of Powers Agreement (the "Agreement") on February 15, 1977; amended this Agreement on August 11, 1981, amended and restated this agreement on June 15, 1984, and further amended this Agreement on April 2, 1990, November 23, 1992, December 21, 1993, July 2, 1996, December 5, 2020, and July 21, 2020.
B. The Members intend that this Amended and Restated Agreement supplant and supersede all previous iterations of the Agreement as set forth above.
C. Each of the Members have the power to plan, acquire, construct, maintain, manage, operate, and control facilities for the collection, transmission, treatment, and disposal of wastewater; and the Members propose by this agreement to exercise said powers jointly for the purpose of providing for the more efficient disposal of the wastewater produced in each Member’s jurisdiction, to the economic, financial and general benefit of each Member.
D. The Agency completed a series of projects to construct wastewater disposal facilities. The first phase (the "A" projects) was comprised of A-1: Deep Water Outfall, A-2:
Transmission Pipeline/Sludge Line, A-3 WCW Effluent Pump Station, and A-4: miscellaneous Richmond Improvements. The second phase (the "B" projects) was comprised of B-1:
Richmond Sludge Pump Station, B-2: WCW Wet Weather Primary Facilities, B-3: WCW Wet Weather Secondary Facilities, B-3: Sludge Lagoons and WCW Equalization Basins. The third phase (the "C" projects) was comprised of Richmond Wet Weather and Additional Facilities.
The projects were supported by eleven separate clean water grants totaling over $70 million dollars.
E. The Parties intend by this Amended and Restated Agreement to clarify the management and operations of the Agency and to modernize and update the joint powers agreement by which the Agency operates.
The Members therefore agree as follows:
1. Definitions. Unless the context otherwise requires, the terms defined in this Section will, for all purposes of this Amended and Restated Agreement, have the meanings herein specified.
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1.1 “Agency” means the joint powers agency, known as the West County Agency, which was created by the Members pursuant to the Joint Exercise of Powers Agreement dated February 15, 1977.
1.2 “Agreement” means this Amended and Restated Joint Exercise of Powers Agreement.
1.3 “Board” means the Agency's Board of Directors, the governing body of the Agency.
1.4 “Capital Costs” means all costs related to construction of any facilities by or for the Agency, according to generally accepted accounting principles, including directly related studies, reports, design, engineering, inspection, and construction contract payments, and general and administration expenses incurred before completion of such facilities, excluding operating costs. Capital Costs credited to a Member shall include the allocable costs of such Member whether paid from local contributions or grants to such Member.
1.5 “Facilities” means those facilities owned and operated by the Agency, as more specifically identified in Schedule B.
1.6 “Fiscal Year” means the period commencing on July 1 to and including the following June 30.
1.7 “Law” means the Joint Exercise of Powers Act, codified at California Government Code Section 6500 et seq.
1.8 “Management Agency” means the Member which has been designated by the Members 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 Amended and Restated Agreement and delegated by the Board.
1.9 “Manager” means the person acting as the Agency's chief administrative officer to administer the affairs of the Agency and effect the policies of the Board. The Manager will be the chief officer of the Management Agency.
1.10 “Operating Costs” means the costs of operation, maintenance, inspection, repairs, replacement, and administration necessary for ordinary use and operation of the Facilities. Such costs shall include expenses for utilities, insurance, tools, equipment, materials, supplies, wages, salaries, contract payments and other expenses necessary for the normal operation, maintenance, and administration of the Facilities.
1.11 “Project” means a facility, or any interest therein, for the collection, transmission, treatment, and disposal of wastewater to be acquired, constructed, or operated by or on behalf of the Agency pursuant to the Agreement or the Amended and Restated Agreement.
2. Authority and Purpose. The Amended and Restated Agreement is made pursuant to the Law and its purpose is to provide for the more efficient disposal of the wastewater produced in each Member’s jurisdiction, to the economic, financial and general benefit of each Member.
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3. Creation of the Agency. As provided in the Law, the Agency is a public entity separate from each of the Members, and the debts, liabilities and obligations of the Agency shall not constitute debts, liabilities or obligations of any of the Members, except as expressly provided herein. The Agency will exercise the powers set forth in Section 5.
4. Term. This Amended and Restated Agreement is effective as of the Effective Date and will continue in full force and effect until the Members jointly terminate the Amended and Restated Agreement as set forth in Section 21. The Parties shall meet and confer to review the Amended and Restated Agreement's cost sharing and other relevant provisions no later than September 30, 2024, to determine whether amendments to the Amended and Restated Agreement are necessary to equitably allocate costs, benefits, and liabilities relating to the Facilities.
5. Powers.
5.1 General Powers. The Agency will exercise, in the manner described in Section 5.3, the powers which are common to each Member, or as otherwise permitted under the Law, and all incidental, implied, expressed, or necessary powers to accomplish the purpose of this Amended and Restated Agreement. The Agency has the power to acquire, construct, operate and maintain any Project or Facilities for the disposal of the wastewater produced in each Member’s jurisdiction and to enter into agreements with public or private entities.
5.2 Specific Powers. The Agency is authorized, in its own name, to do all acts necessary or convenient for the exercise of such powers for such purposes that each of its Members could do separately, and all other acts authorized by the Law, including but not limited to any or all of the following:
A. to make and enter into contracts;
B. to apply for and accept grants, advances, and contributions; C. to employ or contract for the services of engineers, attorneys, planners, financial consultants, fiscal agents, and such other persons or firms as it deems necessary;
D. to make plans and conduct studies;
E. to acquire, construct, manage, maintain, operate, and control any buildings, works, or improvements in connection with the collection, treatment, and disposal of wastewater;
F. to acquire, hold or dispose of property;
G. to sue and be sued in its own name;
H. to incur debts, liabilities, or obligations, subject to limitations herein set forth;
I. to issue indebtedness, to enter into installment sales agreements or loan agreements in connection with the financing of any Project, and to issue grant
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anticipation notes pursuant to California Government Code Sections 53859 et seq. for the purpose of financing Projects or Facilities;
J. to establish rates, tolls, fees, rentals, or other charges in connection with the facilities and services provided by the Agency; K. to employ agents and employees;
L. to exercise the power of eminent domain for the acquisition of property for any Project of the Agency;
M. to sell or lease any Project, and to sell or beneficially reuse any byproducts of the conveyance, treatment, or disposal process; and N. to enter into joint exercise of powers agreements pursuant to the Law.
5.3 For the purposes of Government Code Section 6509, the Agency's powers will be exercised subject only to the restrictions upon the manner of exercising such powers as are imposed upon Richmond in the exercise of similar powers.
6. Boundaries. The boundary of the Agency is the consolidated boundaries of the Members, as may be altered from time to time.
7. Organization.
7.1 West County Agency Board of Directors. The Agency will be governed by the West County Agency Board of Directors, which will exercise all powers and authority on behalf of the Agency.
7.2 Directors.
A. The Board will consist of four appointed directors, two from WCW and two from Richmond/RMSD. WCW, and Richmond/RMSD will each appoint one alternate director to serve in the case of absence or conflict of either of the appointed directors. All directors and alternates must be elected officials from the Member agency's governing body.
Each director and alternate will hold office from the first meeting of the Board after appointment by the Member until their successor is selected. Each director and alternate will serve at the pleasure of the Member they represent and may be removed at any time, without cause, in the sole discretion of that Member’s governing body.
B. WCW will be entitled to two votes through its designated directors, or alternate; Richmond and RMSD, jointly, will be entitled to two votes through their designated directors or alternate.
C. Directors will be entitled to receive compensation as provided by law for directors of a sanitary district under the Sanitary District Act of 1923.
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7.3 Principal Office. The principal office of the Agency is the Managing Agency's principal office. The Board may change the principal office upon giving at least fifteen days’ notice to each Member, the Regional Water Quality Control Board, the State Water Resources Control Board, and to any other agency or office as required by law.
7.4 Officers. The Agency will have five officers: Chair, Vice Chair, Manager, Secretary, and Treasurer/Auditor. The directors will select from the Board a Chair and Vice Chair who will hold office for a period of one year, commencing July 1 of each and every Fiscal Year; but, if a Member removes from the Board a director serving as an officer, then the Board will appoint a director from the Board to fill the vacant office for the remainder of that Fiscal Year.
A. Manager. The Board will employ the services of a Manager who will be the chief administrative officer of the Agency. The Manager shall coordinate the business and operations of the Agency, reply to communications on behalf of the Agency, approve payment of amounts duly authorized by the Board, and carry out other duties that may be assigned to him or her by the Board. The Manager will be the General Manager of WCW or the City Manager of Richmond, or their designee. The Agency will not have any employees that are not employees of the Members. The Manager or their designated representative shall attend the Board meetings, report on administrative business, and take direction from the Board.
B. Secretary. The Secretary may be a staff person of one of the Members. The Secretary shall prepare, distribute, and maintain minutes of Board meetings and official actions of the Agency. The Secretary shall file all notices in accordance with Government Code Sections 6503.5 and 53051.
C. Treasurer/Auditor. The Treasurer of the Management Agency shall be Treasurer/Auditor of the Agency. The Treasurer/Auditor will have all powers, duties, and responsibilities specified in the Law, without limitation, Sections 6505, 6505.5, 6505.6 thereof. There will be strict accountability of all Agency funds and report of all receipts and disbursements and compliance with the Law.
7.5 Access to Property. The Treasurer/Auditor and Manager are hereby designated as the persons who have charge of, handle and have access to the property of the Agency, and each shall file with the Agency an official bond in an amount to be fixed by the Board, the cost of which will be paid by the Agency. (Government Code § 6505.1)
7.6 Officers, Employees and Agents. None of the officers, agents or employees directly employed by the Agency will by reason of that employment become officers, agents or employees of any Member. The Agency may contract with any Member for any services. None of the persons whose services are supplied by a Member will by reason of that employment become an employee of the Agency. The Agency may appoint or employ an officer, employee, or agent of a Member as its officer, employee, or agent.
8. Meetings; Budget.
8.1 Regular Meetings. The Board will hold at least one regular meeting each year. The date, time, and place of regular meetings will be fixed by resolution of the Board.
8.2 Special Meetings. Special meetings of the Board may be called in accordance with the provisions of Government Code Section 54956.
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8.3 Notice of Meetings. All meetings of the Board will be held subject to the provisions of the Ralph M. Brown Act, Government Code Sections 54950, et seq.
9. Quorum. Three of the directors of the Board will constitute a quorum for the transaction of business, except that less than a quorum may adjourn from time to time.
9.1 Bylaws. The Board may adopt from time to time any bylaws, rules or regulations necessary or convenient for conducting its affairs.
10. Management Agency.
10.1 WCW is hereby designated as the Management Agency to administer the business of this Agency, subject to the direction of the Board. WCW will serve as the Management Agency through December 31, 2024, or sooner if agreed upon by the Board.
Commencing on January 1, 2025, Richmond/RMSD will serve as the Management Agency for a period of five years, and thereafter the Members will alternate Management Agency responsibilities every five years. The Members will coordinate the transition of files and administrative tasks prior to the designation of a new Management Agency.
10.2 The Board may select another Member or may abolish the role of Management Agency at any time, and assume the duties and responsibilities of the Management Agency. The Management Agency is hereby delegated all authority explicitly or impliedly necessary to administer the business of the Agency, subject to direction of the Board.
10.3 The Management Agency's General Manager or City Manager (or his or her designee) will be designated as the Manager of the Agency, subject to the direction of the Board.
11. Budget; Distribution of Agency Costs; Payment.
11.1 Budget. A general budget for the operations of the Agency will be adopted by the Board for the ensuing Fiscal Year prior to June 30 of each year. The budget will provide sufficient detail to constitute an operating guideline, including but not limited to the following: revenues from various sources; the necessary contributions to be made by each Member; expenditures to be made for administration and operation of the Agency; expenditures for capital repairs or new Projects; and, unless otherwise provided by separate arrangement between the Members, expenditures for administration, maintenance and operating costs of the Facilities.
11.2 Contributions; Delegation of Authority. Approval of the general budget will constitute authority for the Manager to bill the Members for their contributions and expend funds for the purposes outlined in the approved budget, but within the availability of funds on hand as determined by the Treasurer/Auditor. Each Member hereby agrees to include in each annual budget approved by the governing body of such Member amounts estimated to be sufficient to maintain the Joint Operating Fund balance as described in Section 11.3. The Manager is hereby authorized to take any or all legal actions necessary and permitted by law on behalf of the Agency to enforce the collection of any payments or to enforce any other provision of this Amended and Restated Agreement, including, but not limited to, actions or proceedings in mandamus to require each Member to include the amounts estimated to be necessary in each annual budget, or to collect those charges from the taxpayers, landowners or users of any of the Facilities.
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11.3 Joint Operating/Capital Fund.
A. A Joint Operating Fund will be used to pay all Capital and Operating Costs as defined in Section 1.4 and 1.10. Each Member shall maintain a deposit of $300,000 with the Agency in the Joint Operating/Capital Fund, which will increase annually by the Consumer Price Index ("CPI") with a minimum increase of no less than three percent (3%).
The CPI shall mean the change in CPI for Urban Wage Earners and Clerical Workers for San Francisco-Oakland-Hayward, California for the all items category for the 12-month period prior to the beginning of the Fiscal Year budgeted, as determined by the U.S. Department of Labor, Bureau of Labor Statistics, or other mutually agreeable source if such a CPI is no longer available. The deposit ensures sufficient cashflow for the continued operations and maintenance of the Agency. Any shortfall in the Joint Operating Fund revenues will be made up from available reserves dedicated by the Board for such a purpose, and if those available reserves are insufficient to cover the shortfall, any other available reserve funds not designated by the Board for other purposes or otherwise legally restricted may be used to meet that shortfall. The Manager will invoice each Member for its deposit. All operating costs will be paid for from the Member deposit.
B. All moneys in the Joint Operating Fund will be paid out by the Treasurer/Auditor for the purposes for which that fund was created upon authorization by the Chair or the presiding officer of the Management Agency and approval by the Treasurer/Auditor and Manager of demands for payment, or as otherwise authorized by resolution of the Board, filed with the Treasurer/Auditor.
11.4 Quarterly Statements: On a quarterly basis, the Agency Manager will provide statements of all Agency financial transactions for the preceding quarter to each Member. Statements will be provided to each Member by November 1, February 1, May 1, and August 1 each year. The Agency Treasurer/Auditor will invoice each Member as necessary each quarter to maintain the Joint Operating/Capital Fund balance as defined in Section 11.3.
Invoices for the joint operating fund will be immediately due and payable within 30 days of billing.
11.5 Distribution of Capital Costs.
Capital Costs will be allocated to each Member in accordance with Schedule A.
The Agency may require each Member to advance its share of a Project's capital costs. Funds received from the Members and grant funds received from state and federal governments will be deposited in the Joint Operating/Capital Fund and applied to the Project costs. Funds remaining after final Project close out and final audit by any granting agency will be returned to the Members in proportion to their contributions.
11.6 Distribution of Operating Costs. Operating costs for the Facilities will be allocated to each Member on a 50/50 basis. The Board, by resolution passed by no less than three votes, may determine other ratios, based on prorated shares of projects or on other means, where circumstances require deviation from the above.
12. Ownership of the Facilities. The Agency will own and hold title to the Facilities.
13. SBS Project. The Members desire to contract for the design and construction of SBS Facilities, as the term is used in the Fifth Amendment to the Agreement. The Members will
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proceed with construction of the SBS Facilities in accordance with the provisions and agreement set forth in Schedule C to this Amended and Restated Agreement.
14. Capacity Rights. It is generally understood1 that the Facilities currently have a hydraulic capacity of 62 m.g.d. for wet weather, depending on tidal conditions2. During peak wet weather flows, the parties' maximum permitted capacity rights are approximately as follows:
Outfall Pipeline
WCW 21 m.g.d. .
Richmond/RMSD 41 m.g.d.
Total 62 m.g.d. .
15. Records and Accounts.
15.1 The Agency will keep accurate and correct books of account, showing in detail the costs and expenses of any construction and the maintenance, operation and administration of the Facilities and all financial transactions of the Members relating to the Facilities, which books of account will correctly show any receipts and also any costs, expenses or charges to be paid by all or any of the Members. Time records and books of account will be open to inspection at all times by any representative of any of the Members, or by any accountant or other person authorized by any Member to inspect said books of account.
15.2 The Agency will also maintain accurate records relating to the sewage flow and strength of effluent from each of the Members as required for NPDES reporting.
16. Income from Operation. Any treated wastewater for reuse or other substance arising out of and apportionable to the operation of the Facilities will be the property of the Agency and may be sold by the Agency for the best obtainable prices. The income of any such sale will be credited to the Members in proportion to the Capital Costs contributed by the Members for the Facilities of Members, less the Operating Costs charged to such Members.
17. Failure to Meet Discharge Requirements.
17.1 The Agency will cause the combined effluent of all dischargers, as well as the receiving water of the combined discharge, to be monitored to determine whether or not federal and/or state discharge requirements are being met. In addition, the Agency will cause the effluent of each discharger to be monitored. If the combined effluent of all dischargers at the point of ultimate discharge into the receiving water fails to meet discharge requirements, the Member or Members responsible for the violation will be solely responsible for any fines levied or criminal sanctions imposed. In this regard, the Member or Members responsible for the violations shall hold harmless the Agency and the other non-violating Member from all liability and/or damages incurred by said Agency and/or Member as a direct and proximate result of said violation, including, but not limited to, legal, engineering, and administrative expenses and
1 Based on Technical Memo No. 2 – Flow Equalization and Hydraulics (Carollo, December 2010), attached hereto as Schedule D.
2 The Parties recognize the need for a future project to construct a low lift pump station to address the impacts of tidal conditions on the Outfall, which is anticipated to begin in the next 2-5 years.
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direct or indirect damages incurred by the Agency or the Member as a result of a cease and desist order or court injunction from any state or federal agency within the jurisdictional limits of said Agency or Member.
17.2 If both Members are responsible for failure of the combined effluent to meet discharge requirements, the Members responsible for the violation will be jointly and severally responsible to the Agency.
17.3 Upon notification of such violation, the Member or Members will take prompt, corrective action as necessary to meet said discharge requirements. If any Member fails to take such action, the Agency by unanimous vote of the Board (excluding those Members of the Board who are representatives of the Member who is in violation of the discharge requirements) may elect to do either one or both of the following:
A. Undertake, at the cost and expense of the violating Member, the construction of such additional treatment facilities as are necessary to meet said discharge requirements; or
B. Impose a prohibition of additional connections to the collection system of the Member or Members in violation.
17.4 Nothing in this Section precludes one or more Members from providing additional levels of treatment to ensure meeting waste discharge requirements in the combined effluent. If one or more Members are obligated to provide additional levels of treatment to meet waste discharge requirements for the combined effluent, all Members requiring the additional levels of treatment shall participate in the costs of such treatment based on their relative contribution of waste characteristics to be treated and the costs of providing such treatment.
18. Contributions; Payments and Advances; Use of Personnel, Equipment or Property; Exchange of Services.
18.1 Contributions from a Member’s treasury may be made for the purposes set forth in this Amended and Restated Agreement.
18.2 Payments of public funds of a Member may be made to defray the cost of such purposes.
18.3 Each of the Members may make advances of public funds, to be repaid as set forth in this Amended and Restated Agreement.
18.4 Subject to approval of the Board, personnel, equipment or property may be used in lieu of other contributions or advances.
18.5 The Members may exchange services without payment of any consideration other than such services, or a Member may agree to provide all or any portion of such services to another Member.
18.6 The Board may provide for the repayment or return to a Member of all or any part of any contributions, payments or advances made by that Member.
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19. 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 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 Richmond Area. The cost of mediation will be shared equally. In the alternative, a party may choose to resolve questions or disputes arising under this Amended and Restated Agreement through arbitration or judicial determination.
20. No Withdrawal from Authority; Termination; Disposition of Assets.
20.1 No Member may withdraw from the Agency, but all Members may agree to dissolve the Agency and terminate the Amended and Restated Agreement. Upon termination of this Amended and Restated Agreement, the assets of the Agency will be divided among the then parties to this Amended and Restated Agreement in a manner that is equitable and consistent with the use and operation of the Facilities and in compliance with discharge permit requirements. Upon dissolution of the Agency, the Parties will mutually determine ownership of the Facilities and may enter into Joint Use Agreements or other agreements to share costs and liabilities associated with continued joint use of any Facility.
20.2 Each party to this Amended and Restated Agreement waives its right to seek a judicial partition of any interest it may have in the Agency and/or in any assets of the Agency, including real property, improvements to real property and personal property.
21. Elections. For the purpose of holding any election within the Agency's boundaries, the 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 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 purposes of any 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.
22. Amendments. This Amended and Restated Agreement may be amended only by an agreement approved and executed by all of the Members.
23. Filing with the Secretary of State. The Secretary shall file with the Secretary of State notices in accordance with Government Code Sections 6503.5 and 53051.
24. Notices. All notices which any Member or the Agency may wish to give in connection with this Amended and Restated Agreement will be in writing and will be served by personal delivery during usual business hours at the principal office of the Member or Agency, to an officer or person apparently in charge of said office, or by depositing same in the United States mail, postage prepaid, and addressed to the Member or Agency at its principal office, or to such other address as the Agency or Member may designate from time to time by written notice given as in this paragraph provided. Service of notice pursuant to this paragraph shall be deemed complete on the day of service by personal delivery or deposit in the mail.
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25. Successors: Assignment. This Amended and Restated Agreement will be binding upon and will inure to the benefit of the successors of the Members. In the event of the consolidation of some, but less than all, of the Members, the consolidated Member will retain all of the rights and responsibilities of the former individual Member. No Member will assign its rights hereunder except to a duly formed public entity organized and existing under the laws of the State of California, subject to the consent of the other Members.
26. Severability. Should any part, term or provision of this Amended and Restated Agreement be decided by a final judgment of a court 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.
27. Section Headings. All section headings contained herein are for convenience or reference only and are not intended to define or limit the scope of any provision of this Amended and Restated Agreement.
28. Financing. At the time of execution of this Amended and Restated Agreement, the Parties warrant that, to their current, actual knowledge, after reasonable inquiry, the Agency has no outstanding indebtedness nor is it a party to any installment sales agreements or loan agreements in connection with the financing of any Project.
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The Members are executing this Amended and Restated Agreement to be effective as of the Effective Date.
WEST COUNTY WASTEWATER DISTRICT
, 20__ By:
CITY OF RICHMOND
, 20__ By:
RICHMOND MUNICIPAL SEWER DISTRICT
, 20__ By:
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SCHEDULE A
ALLOCATION OF CAPITAL COSTS
Capital Costs will be allocated according to the following schedule:
Richmond/RMSD West County Wastewater District
65% 35%
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SCHEDULE B
FACILITIES
The facilities constructed by the Agency were designated either as "Sole-Use Facilities" (used by or for one Member) or "Joint Use Facilities" (used by or for both WCW and Richmond/RMSD) in the Agreement. The terms "Sole-Use Facilities" and "Joint Use Facilities" are no longer used in this Amended and Restated Agreement. All "Sole-Use Facilities" are owned and operated by the respective Members and are no longer relevant to this Amended and Restated Agreement. All "Joint Use Facilities" will be referred to as "Facilities" for the purpose of this Amended and Restated Agreement.
Facilities are owned and operated by the Agency as further described in Section 13 and are listed below.
1. Submarine Outfall
2. Transmission Pipeline from Confluence structure to Submarine Outfall
3. Confluence Structure
4. Cathodic Protection System*
5. Outfall Diffusers
6. Aide-to-Navigation Marker Buoys
7. Joint Dechlorination Facility**
*The Cathodic Protection System protects the transmission pipelines including the 6" sludge line owned by the City of Richmond and the 36" effluent line owned by West County Wastewater District.
**Under construction as of the effective date of the Amended and Restated Agreement.
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SCHEDULE C
EXHIBIT A
OF AMENDMENT NO. 5 TO THE
JOINT EXERCISE OF POWERS AGREEMENT
OF THE WEST COUNTY AGENCY
RECITALS
This Amendment No. 5 is made with regard to the following facts and circumstances.
A. Richmond owns and operates a wastewater treatment plant (“Richmond WWTP”) and WCWD owns and operates a separate water quality and resource recovery plant (“WCWD WQRRP”). The Richmond WWTP and WCWD WQRRP generate chlorinated secondary effluent that must be dechlorinated before it is discharged to San Francisco Bay pursuant to California Regional Water Quality Board (“RWQCB”) Order No. R2-2019-003, and National Pollutant Discharge Elimination System (NPDES) Permit No. CA003539 effective April 1, 2019.
B. The Richmond WWTP and WCWD WQRRP effluent dechlorination facilities and equipment were constructed in the 1980’s. The majority of the existing effluent dechlorination facilities are situated on the Richmond WWTP. Declorination of effluent from the Richmond WWTP and WCWD WQRRP is accomplished by injecting an adequate quantity of sodium bisulfate into chlorinated effluent prior to discharge. For convenience of reference, the existing dechlorination facilities will be referred to as the “SBS Facilities”.
C. Richmond and Richmond Municipal Sewer District (collectively “Richmond”) and West County Wastewater District (“District”) separately engaged Carollo Engineers (“Carollo”) to assess the condition of the SBS Facilities. The Carollo condition assessments concluded that the SBS Facilities have reached the end of their useful life and need to be replaced or rehabilitated.
D. The Carollo condition assessments offered alternative projects including rehabilitating the SBS Facilities, replacing the SBS Facilities as Joint Facilities and replacing the SBS Facilities as Sole Use Facilities. After considering all feasible alternatives, the Agency Board of Directors decided to proceed with design and construction of a project that will demolish and replace the SBS Facilities as Joint Facilities.
E. On May 15, 2020, the Agency Board of Directors adopted its Resolution authorizing the Agency Manager to execute a contract with Carollo for design of the project for demolition and replacement of the SBS Facilities (the “SBS Project”).
F. Bids for SBS Project construction will be solicited once Carollo completes and the Agency approves design of the SBS Project. Richmond requested, and WCWD agreed, that Richmond will undertake procurement of SBS Project construction bids using Richmond’s usual procurement process.
G. The Richmond WWTP is operated and maintained pursuant to a contract between Richmond and Veolia Water West Operating Services (“Veolia”). Richmond and WCWD have
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determined that it is in their mutual best interests to engage Veolia to manage construction of the SBS Project at the Richmond WWTP.
AGREEMENT
NOW, THEREFORE, RICHMOND AND WCWD HEREBY AGREE AS FOLLOWS:
1. Incorporation of Recitals. The foregoing recitals are true and correct statements of fact and the circumstances underlying this Amendment No. 5 and are incorporated herein by this reference. Capitalized terms throughout this Amendment No. 5 not otherwise defined herein shall have the same meaning as defined in the JPA.
2. Procurement of Construction Bids and Award of Contract. Upon completion and approval of SBS Project design, Richmond will undertake on behalf of the Agency procurement of bids for construction of the SBS Project. The bids so obtained will be presented to the Agency Board of Directors for approval. Upon the Agency’s approval, the City of Richmond shall enter into the contract for construction of the SBS Project on behalf of the Agency.
3. SBS Project Management. Veolia shall be engaged to manage all aspects of the SBS Project at the Richmond WWTP pursuant to Veolia’s existing contract with Richmond.
Richmond and WCWD will share the cost of SBS Project construction management in the same percentage as the allocation of Capital Costs below.
4. Cost Allocation and Payment of Expenses. Richmond and WCWD are obligated to share Capital Costs and Operating Costs in accordance with percentages allocated in the JPA, and most recently in JPA Amendment No. 3. WCWD and Richmond have determined and hereby agree that a different cost allocation of Capital Costs and Operating Costs is appropriate for the SBS Project.
a. Allocation of Capital Costs. Capital Costs for the SBS Project shall be allocated and paid as follows: Richmond – 65%; WCWD – 35%. b. Allocation of Operating Costs. Operating Costs for the SBS Project shall be allocated and paid as follows: Richmond – 65%; WCWD – 35%. This allocation of Operating Costs is based upon the estimated use of the completed SBS Project by Richmond and WCWD. Upon request by Richmond or WCWD, this allocation of Operating Costs can be revised to reflect actual use of the completed SBS Project.
c. Payment of Capital Costs. Upon approval of a contract for construction of the SBS Project, the Agency Manager shall bill each Member for its share of the Capital Costs for the SBS Project. Each Member shall, within 30 days of billing, deposit its proportionate share of SBS Project Capital Costs into the Joint Operating Fund or such other fund as may be established for the SBS Project. All Capital Costs for the SBS Project shall be paid from the fund into which the deposits are made.
5. Joint Facilities. The completed SBS Project will constitute Joint Facilities under the JPA.
6. Mutual Cooperation. Successful design and implementation of the SBS Project will require the cooperation and involvement of Richmond and WCWD. To that end, Richmond
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and WCWD will develop a process whereby both agencies will be kept fully informed and allowed to review, comment on and be involved with all aspects of SBS Project design, Capital Costs, construction, construction management, construction changes and all other facets of the SBS Project sufficiently in advance to meaningfully participate.
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SCHEDULE D
Carollo Technical Memo No. 2 – Flow Equalization and Hydraulics