BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT:
Title
Receive and Discuss the Proposed Revisions to the Amended and Restated Joint Powers Agreement for the San Francisquito Creek Joint Powers Authority, Agreement A2247 (Palo Alto, District 7).
End
RECOMMENDATION:
Recommendation
A. Receive information and discuss proposed revisions to the draft second Amended and Restated Joint Powers Agreement for the San Francisquito Creek Joint Powers Authority, Agreement No. A2247; and
B. Support staff recommendations in items A through E of the proposed substantive revisions section below.
Body
SUMMARY:
Santa Clara Valley Water District (Valley Water) is one of five public entity member agencies (Member Entities) that created the San Francisquito Creek Joint Powers Authority (SFCJPA) in 1999. All parties executed the Joint Powers Agreement Creating the San Francisquito Creek Joint Powers Authority (Agreement), effective May 18, 1999, which provided a way to collectively contribute resources and implement policies and projects of mutual interest relating to the primary natural features that unite them, including the San Francisquito Creek.
One of the member agencies was officially reconstituted as of January 1, 2020; San Mateo County Flood Control District became the San Mateo County Flood and Sea Level Rise Resiliency District (District). This name change and the agency’s expanded mission precipitated updating the original Agreement. The Amended and Restated Joint Powers Agreement was approved by Valley Water’s Board of Directors (Board) on April 28, 2020.
The parties now desire to amend the Agreement a second time and staff recommends the Board provide input on certain proposed substantive revisions involving policy considerations. Once finalized by all parties, a Second Amended and Restated Joint Powers Agreement for the SFCJPA will be provided to the Board for consideration and approval by the end of this Fiscal Year 2023.
BACKGROUND
Bifurcated Approach to Amended and Restated Agreement Revisions
The original Agreement had not been updated or revised for twenty-one years at the time all member agencies approved the Amended and Restated Agreement in Spring 2020. The SFCJPA’s Executive Director and legal counsel proposed minor administrative updates to reflect changes in laws, guidelines, and standards pertaining to joint powers authorities and to be in sync with how the SFCJPA was currently operating. Many of the other modifications involved larger policy issues relative to expanding the SFCJPA’s enumerated purposes and powers, so were not addressed at that time.
A bifurcated approach was agreed upon whereby the first Amended and Restated Agreement addressed administrative changes and a second Amended and Restated Agreement will address the substantive policy-oriented revisions. This agenda item is presented to discuss such issues and receive input from the Board.
Proposed Substantive Revisions
The SFCJPA’s Executive Director and legal counsel developed a draft Second Amended and Restated Joint Powers Agreement for the SFCJPA, which Member Entities have been asked to review and provide input. The draft Agreement will be discussed at an upcoming SFCJPA Board meeting and a finalized version will ultimately be submitted to all parties for approval, by the end of this Fiscal Year 2023. A discussion of the significant revisions being proposed follows.
A. Add to the SFCJPA’s purposes: “Develop and maintain projects to reduce the risk of coastal flooding from along the San Francisco Bay shoreline.”
Led by the SFCJPA, the Strategy to Advance Flood Protection, Ecosystems and Recreation along the San Francisco Bay (SAFER Bay) Project will build new levees and other flood control structures along the Bay in East Palo Alto and Menlo Park over the next few years. The SFCJPA Board approved a comprehensive plan that included SAFER Bay as one of its projects in 2020 and reaffirmed this commitment in its 2021 comprehensive plan update.
The SFCJPA worked closely with Member Entities in San Mateo County and obtained several grants for the SAFER Bay Project. Valley Water has not been involved in the SAFER Bay Project as it is located geographically outside its jurisdiction. Valley Water also has several projects in its CIP Five-Year Plan that will reduce tidal flooding and address sea level rise such as the San Francisco Bay Shoreline Project, which is led by United States Army Corps of Engineers (USACE).
During the SFCJPA December 15, 2022, Board meeting, a study session was held on the SAFER Bay Project, at which time the Santa Clara County Member Entities raised concerns about their equal financial contributions for the SFCJPA’s operating costs as the SAFER Bay Project is outside their geographic jurisdictions. Also, SFCJPA does not have any plans to increase its staffing yet desires to participate in this Project.
The SFCJPA board meetings will continue to include agenda items to allow for discussion of the SAFER Bay Project and it’s impacts on SFCJPA operating costs. Valley Water staff will continue to attend the SFCJPA Board meetings and provide updates to Valley Water’s Board on any potential changes to operating and project costs due to the SFCJPA’s plan to pursue developing that Project. Valley Water has not made financial contributions to the SAFER Bay direct Project costs and has no plans to do so. With these monitoring measures in place, staff recommends supporting this revision to the SFJPA’s purpose.
B. Add the authority to approve a contract for a capital project or any discrete phase of a capital project to the SFCJPA’s Capital Project Participation role.
The SFCJPA’s capital project participation role would be expanded to allow the entity to approve a contract for a capital project or any discrete phase of a capital project pursuant to certain conditions: 1) the SFCJPA Board determines the agency has the funds necessary to pay for such contract, and 2) funding or other contribution from a Member Entity toward such contract must be approved by the Entity’s governing body.
Staff finds this expanded authority could be an additional avenue to execute capital projects and that Valley Water should continue its past practice of participating and contributing to the capital projects within Santa Clara County or as directed by Valley Water’s Board. Therefore, staff recommends supporting this revised language in the amendment.
C. Add the ability to acquire, hold, and dispose of real property to the SFCJPA’s powers.
These additional powers have a potential to increase the operating costs of the SFCJPA. Staff believes that the SFCJPA leading these efforts to acquire the necessary land rights for the capital projects could be beneficial in some instances, however, so as not to complicate jurisdictional boundaries, Member Entities should retain the land rights to the properties in their jurisdiction. Staff recommends supporting this revised language with minor edits to clarify the land rights issues.
D. Clarify the SFCJPA’s power to conduct eminent domain actions.
The SFCJPA would be able to exercise its power of eminent domain in the jurisdiction of a Member Entity only if the Member Entity adopts a resolution consenting to the Authority’s exercise of eminent domain within its jurisdiction. Staff recommends supporting this revised language.
E. Unlimited Terms of Office for Officers
SFCJPA officers are elected on an annual basis without any limitation on serving sequential terms as Chair and Vice-Chair. A one-year term is common among public agency governing bodies and would be consistent with the Valley Water Board governance policies. As SFJPA Board members themselves are appointed by the individual member agency Boards, who in turn are bound by their own term limits, staff recommends supporting this revised language.
F. Administrative Updates
In addition to the SFCJPA’s proposed substantive revisions discussed above, Valley Water staff recommended several administrative updates be implemented to make the Agreement consistent with current language used in such inter-agency agreements. These administrative updates are currently being considered by the other Member Entities.
Next Steps
The SFCJPA’s board will discuss the draft Second Amended and Restated Joint Powers Agreement for the SFCJPA at upcoming meetings starting this month. While the SFCJPA is not a signatory agency to the Agreement, and as such is not required to take action to approve it, once its board reaches consensus on a finalized version, they will recommend it be considered and approved by the governing bodies of all Member Entities. Staff plans to schedule a Valley Water Board of Directors agenda item to consider and approve the final version by the end of Fiscal Year 2023.
ENVIRONMENTAL JUSTICE IMPACT:
There is no Environmental Justice impact associated with this item. Environmental Justice benefits and impacts of project implementation(s) will be reported on in future project implementation board actions and updates.
FINANCIAL IMPACT:
There is no financial impact associated with this item.
CEQA:
The recommended action does not constitute a project under CEQA because it does not have the potential for resulting in direct or reasonably foreseeable indirect physical change in the environment.
ATTACHMENTS:
None.
UNCLASSIFIED MANAGER:
Manager
Bhavani Yerrapotu, 408-630-2735