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HomeMy WebLinkAboutItem 7.1 Tri-Valley Transp JPA STAFF REPORT CITY CLERK File #600-40 CITY COUNCIL DATE:October 15, 2013 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager SUBJECT: Approve and Authorize Adoption of the Tri-Valley Transportation Council Joint Exercise of Powers Agreement Prepared by Obaid Khan, Senior Civil Engineer (Traffic/Transportation) EXECUTIVE SUMMARY: The proposed Tri-Valley Transportation Council (TVTC) Joint Exercise of Powers Agreement (JEPA) document consolidates the existing Joint Powers Agreement (JPA) and JEPA into one all-inclusive governing document for the development and implementation of a Tri-Valley Transportation Plan/Action Plan and Fee program. The proposed JEPA includes changes to the voting structure along with administrative adjustments that allow more flexibility for administration of the TVTC and Fee program by member jurisdictions. The TVTC is tentatively scheduled to take formal action on the proposed JEPA at the October 17, 2013 meeting FINANCIAL IMPACT: There will be no financial impacts to the City. However, there will be administrative benefits resulting from the JEPA amendments. The City of Dublin is scheduled to Chair and staff the TVTC in future years. The amended JEPA will reduce staff time associated with TVTC administration contracting. RECOMMENDATION: Resolution Staff recommends that the City Council adopt Approving and Authorizing the Adoption of the Tri-Valley Transportation Council Joint Exercise of Powers Agreement; and authorize the City’s TVTC representative to approve and execute the JEPA on behalf of the City at a future meeting of the TVTC. Submitted By Reviewed By Director of Public Works Assistant City Manager ITEM NO. 7.1 Page 1 of 3 DESCRIPTION: The Tri-Valley Transportation Council (TVTC) was formed in 1991 with the creation of a Joint Powers Agreement (JPA) and is comprised of elected officials from Contra Costa and Alameda Counties, the Town of Danville, and the Cities of Dublin, Livermore, Pleasanton, and San Ramon. TVTC’s JPA provides for the preparation of a Tri-Valley Transportation Plan/Action Plan for Routes of Regional Significance and cost sharing of recommended improvements. In 1998, the TVTC entered into a Joint Exercise of Powers Agreement (JEPA) to create the Tri- Valley Transportation Development (TVTD) Fee. This fee is a mechanism to partially fund the $763 million cost of 11 high priority transportation projects identified in the Transportation Plan/Action Plan and the Strategic Expenditure Plan (SEP). The SEP is TVTC’s funding and project prioritization plan. These projects are needed to address some of the more congested elements of the Tri-Valley transportation network. In 2011 the TVTC directed the TVTC Technical Advisory Committee to overhaul and consolidate the JPA and JEPA and form one all-inclusive governing document. As directed by the TVTC, the Technical Advisory Committee prepared a new JEPA that incorporates the changes described below: Changes the existing voting requirements 1. for any JEPA, SEP, or TVTD Fee modification from unanimity to a supermajority of six. Eliminates overlapping inconsistencies 2. between sections within the JPA and JEPA. Makes administrative edits 3. to the document (e.g. adding and editing several “Definitions” and correcting Government Code references). Eliminates outdated language 4. that currently exists in both the JPA and JEPA (e.g., references to a reimbursement of ACTIA for the I-580/I-680 interchange construction). Creates an independent agency 5. that retains the same structure, membership, and focus of the TVTC. Since the TVTC was not established as a separate legal entity, the management of contracts has always been unwieldy and required one member agency to execute the contract on the TVTC’s behalf. This presents (a) accounting complexities for the contracting agency; and (b) challenges as the Chair rotates. The new JEPA will create a separate agency and enable the TVTC to enter into contracts on its own behalf, streamline decision-making processes, and allow the TVTC to apply for and receive grant funding on behalf of TVTC projects. The Chair/administration functions will continue to rotate between member jurisdictions but the creation of an independent agency will improve the administrative logistics. Streamlines and updates administrative processes 6. associated with the operation of the TVTC. Processes associated with the operation of the TVTC are embedded in the current JEPA, JPA, or both, which limits the ability of the TVTC to adapt to changing needs (e.g., a change in the rotation of the Chair from an annual to a biennial schedule necessitates a JEPA amendment). Specifically, these changes will: Separate administrative actions (rotation of Chair, etc.) from the new JEPA and define  them in a set of Bylaws; Extend the SEP Update Timeframe from a two-year cycle to a five-year cycle;  Separate TVTD Fee and SEP actions from the new JEPA; and  Adopt an annual budget method of administrative management, rather than remaining  within a fixed percentage of revenue system. Page 2 of 3 On July 31, 2013, the TVTC reviewed the new JEPA and released it for local approval. Currently, an amendment to the TVTC JEPA requires unanimous approval of all jurisdictions and involves a two-step process. Step 1 – Local Approval: All member jurisdictions are asked to support the proposed JEPA and authorize their representative to endorse the proposal at an upcoming TVTC meeting on October 17, 2013. In taking the proposed action, the City Council meeting will fulfill this first step. The member jurisdictions will take action on this item as follows: October 1: Danville October 8: San Ramon October 14: Livermore October 15: Dublin, Pleasanton, Alameda County, Contra Costa County Step 2 – TVTC approval: The TVTC will take formal action on the proposed JEPA at a meeting (currently scheduled for October 17, 2013). If approved, the City of Dublin TVTC representative will then sign the JEPA. After the JEPA is approved, the TVTC will review and take action on a new set of Bylaws which will govern the operation of the TVTC. In the near future the City Council will be asked to consider a TVTD Fee increase, originally proposed in 2011, to address funding shortfalls for priority transportation projects in the Tri- Valley. This fee increase was approved by Dublin City Council on April 19, 2011 but not approved unanimously by all seven participating jurisdictions and therefore, not implemented by the TVTC. The TVTC is expected to consider a TVTD Fee increase at a future meeting. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None Required. ATTACHMENTS: 1. Resolution Approving and Authorizing the Adoption of the Tri-Valley Transportation Council Joint Exercise of Powers Agreement 2. Joint Exercise of Powers Agreement Page 3 of 3 RESOLUTION NO. – 13 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * APPROVING AND AUTHORIZING THE ADOPTION OF THE TRI-VALLEY TRANSPORTATION COUNCIL (TVTC) JOINT EXERCISE OF POWERS AGREEMENT WHEREAS, the TVTC jurisdictions of the Cities of San Ramon, Dublin, Livermore, Pleasanton, Town of Danville, and the Counties of Alameda and Contra Costa entered into a Joint Powers Agreement (JPA) in 1991 for the purpose of jointly preparing a Tri-Valley Transportation Plan/Action Plan; and WHEREAS, the TVTC Strategic Expenditure Plan (SEP) identified 11 high priority transportation improvements to the regional transportation system necessary to accommodate traffic growth from ongoing development in the Tri-Valley area and elsewhere; and WHEREAS , the TVTC entered into a Joint Exercise of Powers Agreement (JEPA) in 1998 to create the Tri-Valley Transportation Development Fees (TVTDF) as a mechanism to partially fund the $763 million cost of 11 original high priority projects in the TVTC/SEP to address some of the more congested elements of the Tri-Valley transportation network; and WHEREAS , the 1991 JPA and the 1998 JEPA contain sections that overlap and are not consistent and the TVTC directed administrative staff to update and streamline the two Agreements into a new standalone agreement; and WHEREAS , on July 31, 2013, the Tri-Valley Transportation Council (TVTC) approved the new JEPA, authorizing staff to forward the plan to the seven-member jurisdictions for local adoption. In order to adopt the proposed JEPA, the governing bodies of all seven-member jurisdictions must act to approve the JEPA; and WHEREAS , the primary purposes of the new JEPA are to remove the SEP and the Tri- Valley Transportation Development Fee (TVTDF) document from the JEPA in order to expedite and build in flexibility to adapt to changes as needed, eliminate overlapping inconsistencies between the two existing governing documents, remove outdated language, streamline administrative processes, and address agency status; and WHEREAS , the new Joint Exercise of Powers Agreement is a new stand-alone agreement that officially supercedes all the previous agreements; and WHEREAS , the new JEPA would: 1. Create an independent agency that retains the same structure, membership, and focus of the TVTC. The purpose of creating a separate agency is to enable the TVTC to enter into contracts on its own behalf, streamline decision-making processes, and apply for, and receive, grant funding on behalf of TVTC projects. 2. Change the existing voting requirementsfor any JEPA, SEP, or TVTDF modifications from unanimity to a 6:1 supermajority. 3. Eliminate overlapping inconsistencies that currently exist in the TVTC’s governing documents, i.e. the Joint Powers Agreement (1991), Joint Exercise of Powers Agreement (1998), and addendums thereto. 4. Eliminate outdated language that currently exists in both the JPA (1991) and JEPA (1998). 5. Streamline and update administrative processes associated with the operation of the TVTC, such as:  Separating administrative actions (rotation of Chair, etc.) from the new JEPA and defining them in a set of Bylaws;  Extending the SEP Update Timeframe from a two-year cycle to a five-year cycle;  Separating TVTD fee and SEP actions from the new JEPA; and  Adopting an annual budget method of administrative management, rather than remaining within a fixed percentage of revenue system. WHEREAS, the adoption of the JEPA requires unanimous approval of all seven member jurisdictions, and; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Dublin adopts the amendments to the JEPA outlined in this resolution and authorizes the City of Dublin Representative to approve the amendments at the Tri-Valley Transportation Council Public Hearing. th PASSED, APPROVED AND ADOPTED this 15 day of October, 2013, by the following vote: AYES : NOES : ABSENT : ABSTAIN : _______________________________ Mayor ATTEST : ___________________________________ City Clerk JOINT EXERCISE OF POWERS AGREEMENT Establishing the Tri-Valley Transportation Council for Planning and Facilitating the Implementation of Transportation Improvement Projects in the Tri-Valley Transportation Area BY AND AMONG The County of Alameda The County of Contra Costa The City of Dublin The City of Livermore The City of Pleasanton The City of San Ramon, and The Town of Danville October 17, 2013 TABLE OF CONTENTS JOINT EXERCISE OF POWERS AGREEMENT ............................ SECTION 1. DEFINITIONS ........................................ SECTION 2. GENERAL PROVISIONS .................................. a.Purpose ........................................................ b.Creation of Agency ............................................. c.Supersede ...................................................... SECTION 3. GOVERNING COUNCIL .................................. a.Governing Council .............................................. b.Membership ..................................................... c.Meetings of the Governing Council .............................. d.Required Votes and Approvals ................................... e.Bylaws ......................................................... f.Principal Office ............................................... g.Committees ..................................................... SECTION 4. OFFICERS AND ADMINISTRATION ........................ a.Chair and Vice Chair ........................................... b.Secretary ...................................................... c.Treasurer ...................................................... d.Auditor ........................................................ e.Officers in Charge of Records, Funds and Accounts ......... 13 f.Staffing ....................................................... SECTION 5. POWERS OF THE AGENCY ............................... a.General Powers ................................................. b.Specific Powers ................................................ c.Restrictions on Exercise of Powers.............................. d.Obligations of Agency .......................................... SECTION 6. TRI-VALLEY TRANSPORTATION DEVELOPMENT FEES .......15 a.Adoption of Fee Nexus Study .................................... b.Recommendation of TVTD Fee Amounts ............................ c.Collection of TVTD Fees ........................................ d.TVTD Fee Adjustments ........................................... e.TVTD Fee Accounts .............................................. SECTION 7. TRANSPORTATION IMPROVEMENT PROJECTS ................ SECTION 8. STRATEGIC EXPENDITURE PLAN ......................... a.SEP Preparation and Adoption ................................... b.Project Prioritization ......................................... c.Review Period .................................................. SECTION 9. MISCELLANEOUS ...................................... a. Amendments .................................................. b. Liability and Indemnity ..................................... c. Term; Termination ........................................... d. Withdrawl .................................................. e. Disposition and Distribution of Assets ...................... f. Continued Existence of Agency ............................... g. Section Headings ............................................ h. Law Governing ............................................... i. Severability ................................................ j. Notice ..................................................... k. Agreement Not Exclusive .................................... l. Breach .................................................... m. Insurance ................................................... n. Successors ................................................. EXECUTION OF AGREEMENT ........................................ JOINT EXERCISE OF POWERS AGREEMENT ESTABLISHING THE TRI-VALLEY TRANSPORTATION COUNCIL is made and entered into as of ______, 2013 (Ñthe Effective THIS AGREEMENT DateÒ) by and among the Parties (the County of Alameda, the County of Contra Costa, the Town of Danville, the City of Dublin, the City of Livermore, the City of Pleasanton, and the City of San Ramon) signatory hereto, each of which is a public entity duly organized and existing under the Constitution and other laws of the State of California. , Chapter 5 of Division 7 of Title 1 of the Government Code of the WHEREAS State of California (commencing at Section 6500) authorizes the Parties to enter into an agreement for the joint exercise of any power common to them and, by that agreement, create an entity that is separate from each of the Parties; and , the Parties recognize that adequate transportation planning is WHEREAS essential to the orderly development of the Tri-Valley Area (defined in Section 1.bb), and that review and coordination of planning and implementation of transportation facilities in the Tri-Valley Area is to the benefit of all parties hereto and their constituents; and , the Parties desire for adequate transportation planning result WHEREAS the creation of the Tri-Valley Transportation CouncilÔs first Joint Powers Agreement (JPA) in 1991 that provided for coordinated transportation efforts; and , the Parties also recognized that traffic impacts from new residential WHEREAS and commercial developments forecast by the Association of Bay Area Governments in the Tri-Valley Area would adversely affect the quality of life for the existing residents of the Cities and Counties unless those regional impacts are mitigated by off-site street improvement; and , through the adoption of the Tri-Valley Transportation Plan/Action WHEREAS Plan for Routes of Regional Significance (ÑAction PlanÒ), the Parties identified regional Transportation Improvement Projects designed to help mitigate the regional impacts of forecast development within the Tri-Valley Area; and , the Parties entered into a Joint Exercise of Powers Agreement (JEPA) WHEREAS in 1998, with two subsequent addendums in 2003 and 2009, for purposes of collecting traffic impact fees for the Transportation Improvement Projects on a uniform basis and to use the fees collected in a coordinated manner to provide for financing and construction of the Transportation Improvement Projects; and Consolidated Update of JPA & JEPA 5 Final Administrative Draft: July 31, 2013 , substantial time has passed since the initial execution of the 1991 WHEREAS JPA and the execution of the 1998 JEPA; and , the Parties wish to establish a separate entity known as the Tri- WHEREAS Valley Transportation Council pursuant to the provisions of the Joint Exercise of Powers Act; , in consideration of the facts stated above, the mutual NOW, THEREFORE advantages to be derived, and the mutual covenants contained herein, it is agreed by and among the Parties hereto as follows: SECTION 1 Definitions a.Act means the Joint Exercise of Powers Act, Chapter 5 of Division 7 of Title 1 of the California Government Code, commencing with Section 6500, as it may be amended from time to time. b.Agreement means this joint exercise of powers agreement as it now exists or as it may from time to time be amended, and which is made effective only upon the signature and execution of all the Parties. c.Alameda County Transportation Commission (ÑAlameda CTCÒ) is a joint powers authority, governed by a 22-member commission, that serves as the Congestion Management Agency for Alameda County and delivers the projects and programs in the Expenditure Plan of its transportation sales tax measure. d.Auditor means an independent certified accountant selected by the Governing Council to audit the records and accounts of the TVTC. e.Bylaws means the rules, regulations, and other operational and organizational directives adopted by the Governing Council for the conduct of the TVTCÔs meetings and other affairs. f.City (or Town) means each municipality that is a Party to this Agreement. g.Contra Costa Transportation Authority (ÑCCTAÒ) is an 11-member joint powers agency that serves as the Congestion Management Agency for Contra Costa County and delivers the projects and programs in the expenditure plan of its half-cent sales tax measure. h.County means the agency representing the unincorporated geographic areas, within the county of Contra Costa or Alameda, that is a Party to this Agreement. Consolidated Update of JPA & JEPA 6 Final Administrative Draft: July 31, 2013 i.Fiscal Year means the period from each July 1st to and including the following June 30. th j.Governing Council means the governing body constituted herein to administer this Agreement and manage the affairs of the TVTC. k.Gross Floor Area refers to the sum of the area of all floor levels of a structure, including, but not limited to, cellars, basements, mezzanines, penthouses, corridors, lobbies, retail areas, and offices, that are included within the principal outside faces of exterior walls, not including architectural setbacks or projections. Included are all stories or areas that have floor surfaces with clear standing head room (six feet, six inches, minimum) regardless of their use. Where a ground level area, or part thereof, within the principal outside faces of the exterior walls is left unenclosed, the gross area of the unenclosed portion is to be considered as a part of the overall square footage of the building. All unroofed areas and unenclosed roofed-over spaces, except as defined above, are to be excluded from area calculations. The gross area of any parking garages within the building shall not be included within the gross area of the entire building. l.Industrial Use is a land use category that refers to land designated for the purpose of manufacture or fabrication of products, the processing of materials, the warehousing of merchandise for sale or distribution, research and development of industrial products and processes, and the wholesaling of merchandise. m.Joint Exercise of Powers Agreement means this agreement of the Parties to jointly exercise their power or powers, privileges and authority, as authorized by the Act, to implement purposes of the TVTC as described in Section 2.a and 2.b. n.Land Use Entitlement means a permit or approval granted for a development project as that term is defined in Government Code Section 66000 o.Land Use Type means Industrial Use, Multi-Family Residential use, Office Use, Other Use, Retail Use, and Single Family Residential Use. p.Legislative Body means the governing board of each Party. q.Member (or Members) means the individual appointed by a Party to Governing Council. r.Multi-Family Residential Use is a land use category that refers to land Consolidated Update of JPA & JEPA 7 Final Administrative Draft: July 31, 2013 designated for buildings or parts thereof designed and used exclusively as a dwelling unit among other dwelling units, either on the same parcel (e.g., apartments and mobile home parks) or under separate ownership (e.g., condominiums, townhomes, duplexes, or duets). s.Office Use is a land use category that refers to land designated for for buildings or parts thereof designed and used for non-retail, non-manufacturing businesses. t.Other Uses refers to land use categories not implicitly included within the land use categories of "Single Family Residential", "Multi Family Residential", ÒRetailÒ, ÒOfficeÒ, or "IndustrialÒ, and for which alternative rates can be found in the or in a list of peak- Institute of Transportation Engineers Trip Generation Manual hour trip rates that the Tri-Valley Transportation Council has explicitly approved. u.Party (or Parties) refers to the following signatory agencies to this Agreement: the County of Alameda, the County of Contra Costa, the Town of Danville, the City of Dublin, the City of Livermore, the City of Pleasanton, and the City of San Ramon. v.Project Sponsor means a Party designated in the Strategic Expenditure Plan to oversee the use of Tri-Valley Transportation Development Fee revenues in the development of a specific regional Transportation Improvement Project. The Party designated as Project Sponsor may be, but need not be, the lead agency for environmental clearance or the agency responsible for the design or construction of the project itself w.Retail Use is a land use category that refers to land designated for buildings or parts thereof designed and used for retail sale of merchandise and services x.Single Family Residential Use is a land use category that refers to land for buildings or parts thereof designed and used for occupation as the residence of one family. y.Strategic Expenditure Plan (ÑSEPÒ) refers to the TVTCÔs May 16, 2011 funding and project prioritization plan, adopted by TVTC by execution of this agreement, and as may be amended from time to time, but at least every five years, by the TVTC with a supermajority vote of six. z.Subsidized Housing Development refers to housing facilities developed by public agencies, limited dividend housing corporations, or non-profit corporations, and maintained exclusively for persons or families of very low, low or moderate income, as defined in Section 50093 of the Health an Consolidated Update of JPA & JEPA 8 Final Administrative Draft: July 31, 2013 aa.Transportation Improvement Projects (or "Projects") refer to those public improvements required to implement the 2011 Update to the Tri-Valley Transportation Council Strategic Expenditure Plan, adopted by TV execution of this agreement, and as that plan may be amended fro bb.Transportation Plan/Action Plan for Routes of Regional Significance (ÑAction PlanÒ) refers to the transportation planning document prepared by the TVTC to establish coordinated transportation plans including routes of regional significance, multi-modal transportation service objectives (MTSOs) for these routes and specific actions to be implemented by each participating jurisdiction among the TVTC Parties. The TVTC Action Plan helps TVTC parties in the county of Contra Costa comply with the Measure J Growth Management Program and is incorporated into the Contra Costa Countywide Comprehensive Transportation Plan (CTP). cc.Tri-Valley Area refers to the geographic area that encompasses the town of Danville, the cities of Dublin, Livermore, Pleasanton and San Ramon, and portions of the counties of Alameda and Contra Costa immediately adjacent to the cities and town referenced in this definition. dd.Tri-Valley Transportation Council (ÑTVTCÒ) means the separate entity created by this Agreement, whose purpose and membership is defined herein. ee.Tri-Valley Transportation Development Fee (ÑTVTDFÒ or ÑTVTD FeeÒ) refers to the fees to be imposed by the Cities and Counties on development within the Tri- Valley Area. SECTION 2 General Provisions a.Purpose. The purpose of this Agreement is to establish a separate agency that is responsible for coordinating transportation planning efforts within the Tri-Valley Area by facilitating the implementation of Transportation Improvement Projects identified in its Strategic Expenditure Plan and: i.Establishing a framework for the enactment by the Parties of a TVTD Fee to fund all or part of the necessary transportation improvements in the SEP. ii.Establishing funding goals and seeking commitments, for identified Transportation Improvement Projects. Consolidated Update of JPA & JEPA 9 Final Administrative Draft: July 31, 2013 iii.Establishing mechanisms for collecting, managing and disbursing the TVTD Fee and to formalize institutional arrangements for the implementation of the Projects to be constructed with fee revenues. iv.Facilitating cooperative regional planning efforts through the adoption and implementation of the regional transportation plans (such as the Transportation Plan/Action Plan for Routes of Regional Significance), the SEP and the TVTD Fee program. b.Creation of Agency. There is hereby created a public entity to be known as the ÑTri-Valley Transportation Council.Ò The TVTC is formed by this Agreement pursuant to the provisions of the Act. The TVTC is a public agency separate from the Parties to this Agreement and shall exercise in the manner set forth in this Agreement the powers common to each of the Parties, for the purposes stated in this Agreement. c.Supersede. This Agreement supersedes the 1991 JPA and the 1998 JEPA, as amended. SECTION 3 Governing Council a.Governing Council. The TVTC shall be governed by the TVTC Governing Council, which shall exercise all powers and authority on behalf of the TVTC. b.Membership. The Governing Council shall consist of seven (7) members appointed by the Parties as follows: one (1) Member appointed by the Board of Supervisors of Alameda County, one (1) Member appointed by the Board of Supervisors of Contra Costa County, one (1) Member appointed by the Town Council of Danville, one (1) Member appointed by City Council of the City of Dublin, one (1) Member appointed by City Council of the City of Livermore, one (1) Member appointed by City Council of the City of Pleasanton, Member appointed by City Council of the City of San Ramon i. Each Member shall have one vote. ii. Each Member must be a member of the Legislative Body for the Party that appointed the Member. iii. Each Party may appoint an alternate, or alternates, for its Member, who may serve as the Member in the MemberÔs absence. The Consolidated Update of JPA & JEPA 10 Final Administrative Draft: July 31, 2013 alternate Member must be a Member of the Legislative Body for the Body that appointed the Member. iv. All Members and their alternates serve at the pleasure of their appointing Party. v. All vacancies on the TVTC Governing Council shall be filled by the PartyÔs respective Legislative Body as soon as practicable following the effective date of the vacancy. Any Member or alternate shall cease to be a Member when such person ceases to hold office as a member of the respective appointing Legislative Body. c.Meetings of the Governing Council. All TVTC meetings shall be held in accordance with the provisions of the Ralph M. Brown Act. All meeting shall be public unless a specified closed session is held in accordance with the California Government Code. i. Quorum. At least five (5) Members must be present in order for the Governing Council to act. ii. Regular Meetings. The Governing Council shall establish a date, time, and place for regular meetings fixed by the Bylaws. iii. Special Meetings. Special meetings and emergency meetings of the Governing Council may be called in accordance with State law. iv. Call, Notice, and Conduct of Meetings. All meetings of the Council, including without limitation, regular, adjourned regular, and special meetings, shall be called, noticed, held, and conducted in accor provisions of Section 54950, ., of the California Government Code, as may be et seq amended from time to time. d.Required Votes and Approvals. Actions of the TVTC shall require the following votes: i. Supermajority of Six. A vote of at least six (6) members, is required to: Adopt or amend the Strategic Expenditure Plan; amend the TVTD Fee structure, with the exception of the annual automatic Construction Cost Index adjustment, as described in Section 6d(i), ÑTVTD Fee Adjustments,Ò which may be amended by a simple majority; amend this Agreement under Section 9(a) below; and terminate this Agreement under Section 9(c)(i) below. Consolidated Update of JPA & JEPA 11 Final Administrative Draft: July 31, 2013 ii. Supermajority of Five. A vote of at least two-thirds (2/3) of the entire Governing Council, or five (5) Members, shall be required for the TVTC to: Adopt or amend a regional transportation plan that has required performance objectives that a Party to this Agreement must meet, such as the Tri-Valley Transportation Plan/Action Plan for Routes of Regional Significance or other future transportation plans prepared for the Tri-Valley Transportation Council; adopt a budget of TVTC expenditures; or amend the Bylaws. iii. Simple majority. A vote by a simple majority of the Members at any meeting of the TVTC at which a quorum is present for any action other than those described in subsection i or ii above. e.Bylaws. The TVTC shall create and adopt, and from time to time as are necessary or convenient to achieve or facilitate the conduct of the Governing CouncilÔs meetings and procedures. f.Principal Office. The principal office of the TVTC shall be designated by the TVTC Governing Council and shall be located within the boundaries of one of the Members. g.Committees. The TVTC may have such committees as established pursuant to the Bylaws. SECTION 4 Officers and Administration a.Chair and Vice Chair. The Governing Council shall elect a Chair and Vice-Chair from among its Members at its initial meeting. These officers shall serve a term as defined by the Bylaws, starting on July 1st of each Fiscal Year. The Chair shall preside at the meetings of the Governing Council, call meetings to order, adjourn meetings, put to vote all questions moved and seconded, announce result of votes, execute documents and official actions on behalf of the G when duly approved, and carry out other duties set forth in the Bylaws. The Vice Chair shall serve as Chair in the absence of the Chair. b.Secretary. The Governing Council shall appoint a Secretary who may be a Member of the Governing Council. The Secretary shall record votes, prepare, distribute, and maintain minutes, and maintain the official records of the TVTC, and perform other duties set forth in the Bylaws. The Secretary shall cause a copy of this Agreement to be filed with the California Secretary of State and the State of California pursuant to Government Code section 6503.5. Consolidated Update of JPA & JEPA 12 Final Administrative Draft: July 31, 2013 c.Treasurer. The Governing Council shall designate a treasurer pursuant to Government Code section 6505.5. The Treasurer shall have the responsibility and accountability for the management and disbursement of TVTD Fee funds. The Treasurer shall perform the following duties: i.Serve as custodian of all of the accounts, funds and monies of the TVTC from whatever source, and shall have the duties and obligations set forth in Government Code sections 6505 and 6505.5; and ii.Keep a record of all TVTD Fees disbursements and expenditures made by the Treasurer in accordance with this Agreement; and iii.Transmit monies, based on direction from an approved TVTC resolu from the TVTD Fee Account to Project Sponsors for the planning, design and construction of the Transportation Improvement Projects as l and in accordance with, the SEP; and iv.Transmit monies from the TVTD Fee Account for TVTC expenditures as authorized in the TVTC annual budget; and v.Account for all monies from the TVTD Fee Account received in accordance with Government Code §6505; and vi.Other duties as specified by law or as required by the Bylaws and the TVTC. d.Auditor. The Governing Council shall designate, or select, an auditor pursuant to Section 6505.5 of the Act to assure that there shall be strict accountability of all funds and reporting of all receipts and disbursements of the TVTC. As provided in Government Code sections 6505 and 6505.5, the Auditor shall m arrangements with a certified public accountant or firm of certified public accountants for the annual audit of accounts and records of the e.Officers in Charge of Records, Funds and Accounts. Pursuant to Government Code section 6505.5, the Treasurer and Auditor shall have charge of, handle, and have access to all accounts, funds, and money of the TVTC and al TVTC relating thereto. The public officer or officers or persons who have charge of, handle, or have any access to any property of the TVTC shall the amount of their bond shall be designated and fixed in the TVTC budget for each fiscal year, and may be covered by bonds of a Party. The S have charge of, handle and have access to all other records of t f.Staffing. The Governing Council may employ, contract, or appoin Consolidated Update of JPA & JEPA 13 Final Administrative Draft: July 31, 2013 Administrator to implement the objectives of the TVTC and as may be necessary for the functions and purposes of this Agreement. Any officer, agent of the Governing Council may also be an officer, employee, of the Parties. SECTION 5 Powers of the Agency a.General Powers. The TVTC shall exercise in the manner herein provided the powers common to all of the Parties, as provided by the Constitution and laws of the State of California, and all incidental, implied, expressed, or necessary powers for the accomplishment of the purposes of this Agreement, subject to the restrictions set forth in subsection 5(c). As provided in the Act, the TVTC shall be a public entity separate from the Parties. The TVTC shall have the power to plan, coordinate and receive disbursements of traffic impact fee revenues from the Parties to help implement Transportation Improvement Projects in the Tri- Valley Area. The TVTC shall have all of the powers provided in Articles 2 and 4 of the Act, unless specifically prohibited or restricted by this Agreement. The TVTC shall have the powers to do the following in its own n i.To make and enter into contracts; and ii.To retain consultants, contractors, agents or personnel; and iii.To sue and be sued in its own name; and iv.To apply for, accept, receive, and disburse grants, loans, and o from any agency for the United States of America or of the State of California; and v.Perform such other functions as may be necessary or appropriate to carry out this Agreement, so long as such other functions performed are not prohibited by any provision of law. b.Specific Powers. The TVTC is hereby authorized, in its own name, to conduct all acts necessary for the exercise of the foregoing powers, including but not limited to, any of the following. i.Prepare and adopt a regional transportation plan (such as the Tri-Valley Transportation Plan/Action Plan for Routes of Regional Significance) that coordinates transportation planning efforts in the Tri-Valley Area; and Consolidated Update of JPA & JEPA 14 Final Administrative Draft: July 31, 2013 ii.Prepare and implement a Strategic Expenditure Plan; and iii.Prepare and adopt a budget for the TVTCÔs administrative functions; and iv.Establish Bylaws and such other rules and regulations as may be necessary for its operation and for the conduct of the TVTCÔs business including an appropriate conflict of interest/disclosure policy; v.Exercise a power common to the parties so long as the power is exercised in furtherance of the purposes of the Agreement; and vi.Collect TVTD Fees imposed by its Member agencies on development within the Tri-Valley Area, in accordance with Section 5; and vii.Use TVTD Fees to fund a portion of the costs of Transportation Improvement Projects, in accordance with the SEP, within the Tri-Valley Area; and viii.Perform such other functions as may be necessary or appropriate to carry out this Agreement, so long as such other functions performed are not prohibited by any provision of law. c.Restrictions on Exercise of Powers. The TVTC shall exercise in the manner herein provided the powers common to each of the Parties as appropriate to the accomplishment of the purposes of this Agreement. For purposes of Government Code Section 6509, the powers of the TVTC shall be exercised subject to the restrictions upon the manner of exercising such powers as are imposed upon the City of San Ramon, a Charter City. The TVTC shall exist as an agency legally and financially self-sufficient from and independent of the Parties to this Agreement. The TVTC has no authority to condemn property, or impose a debt or obligation upon or incur one for or on behalf of a Party to this Agreement. d.Obligations of Agency. The debts, liabilities, and obligations of the TVTC shall not be the debts, liabilities, and obligations of any Party or Member. SECTION 6 Tri-Valley Transportation Development Fees The revenues from the TVTD Fees are used to fund the regional Transportation Improvement Projects (ÑProjectsÒ) identified in the Tri-Valley Transportation Plan/Action Plan (TVTP/AP) for Regional Significance and the Strategic Expenditure Consolidated Update of JPA & JEPA 15 Final Administrative Draft: July 31, 2013 Plan (SEP), and to pay for TVTC administrative costs as authorized in the TVTC annual budget. The maximum allowable traffic impact fees that can be imposed to fund the total unfunded cost of Projects are established by the Tri-Valley Transportation Council Nexus Study (Ñ2008 Nexus StudyÒ), adopted on January 30, 2008 and amended on February 26, 2008, and in any subsequent nexus study. With regard to subsequent TVTD Fee updates: a.Adoption of Fee Nexus Study. The TVTC shall conduct, as needed, a fee nexus study to establish the legal basis for regional development impact fee amounts. b.Recommendation of TVTD Fee Amounts. The TVTC shall through resolution, based on the findings of a nexus study, recommend regional impact fee amounts for categories of land use entitlements within the Tri-Valley Area for purposes of funding a portion of the costs of the Projects. The TVTC may recommend an exemption from the fee public schools, Subsidized Housing Developments and the governmental buildings owned by any public entity unless a Party can and does impose the TVTD Fee on governmental buildings of a public entity other than one of the Parties. c.PartyÔs Adoption of TVTD Fee Ordinances and Collection of TVTD Fees. If the TVTD Fees are amended, each Party shall consider the adoption, by ordinance or resolution, of TVTD Fees in amounts recommended by the TVTC, and will consider including as part of the proposed ordinance or resolution, the following: i.Require each project developer to pay TVTD Fees prior to issuance of building permits for the project, or no later than occupancy, and to the extent permitted by law; and ii.Levy TVTD Fees on all development projects not exempt from payme the fee; and iii.Apply TVTD Fees on all significant changes to existing development agreements adopted after the execution of this Agreement. The TVTD Fee shall be applied to all components of a project that are subject to an amended or renewed development agreement. As used herein, significant means any of the following: (a) change in land use type (e.g., office to retail); (b) intensification of land use types (e.g., increases in square footage of approved Office); (c) extension of term of development agreements; and (d) reduction or removal of project mitigation requirements or conditions of approval. Consolidated Update of JPA & JEPA 16 Final Administrative Draft: July 31, 2013 d.TVTD Fee Adjustments. i.Each Party shall consider, as part of a TVTD Fee resolution or ordinance, implementing an automatic adjustment of the TVTD Fee as of July 1 of each year, based on the increase or decrease in the Engineering News Record Construction Cost Index for the San Francisco Bay Area for the period ending December 31 of the preceding calendar year; and ii.In addition to considering the automatic adjustment described in Section 6d(i), each Party shall consider adjusting TVTD Fees to reflect revisions in the Project list, program revenue, and other factors. The amount of such adjustments shall be included in a written addendum to the SEP that shall be approved by the TVTC with a supermajority vote of six. Concerted efforts shall be made to attract and obtain other funds from other available revenue sources for which the projects are eligible. e.TVTD Fee Accounts. Each Party to this Agreement agrees to the following if it adopts TVTD Fees: i.To place the TVTD Fees in an interest-bearing individual account used specifically for the Projects, in a manner consistent with the law. The deposits in each account shall be invested in the same manner as other funds of the Party; and ii.Each Party shall transmit to the Treasurer within 30 days of the end of each quarter not less than 80% of all TVTD Fees collected by that Party during the quarter, and any interest or income generated on such 80% amount, together with notification of the Projects that the Party intends to fund with any retained portion of the revenues; and iii.To maintain a current record of all TVTD Fee revenue collected and retained by that Party, including interest or income on such funds, and make available to the Treasurer an accounting for inclusion in any audit of TVTD Fees. SECTION 7 Transportation Improvement Projects a.The TVTC shall use the TVTD Fees it collects from the Parties to fund a portion of the costs of the Transportation Improvement Projects outlined in the adopted SEP. Notwithstanding the foregoing, the TVTD Fee imposed and collected by the County of Contra Costa shall not be used to fund any Projects that are not Consolidated Update of JPA & JEPA 17 Final Administrative Draft: July 31, 2013 authorized by Government Code sections 66484 or 66484.7 and Contra Costa CountyÔs implementing ordinance. b.Project Sponsors are eligible to receive TVTD Fees in accordance with the SEP only if they have adopted the uniform TVTD Fees (including all subsequent fee adjustments and the annual CCI adjustments) as recommended by the TVTC with a vote of a supermajority of six. c.The TVTC shall comply with the requirements of the Mitigation Fee Act and shall provide each Party with all information necessary for each Party to comply with its separate Mitigation Fee Act requirements. SECTION 8 Strategic Expenditure Plan a.SEP Preparation and Adoption. The TVTC shall adopt or update the Strategic Expenditure Plan every five years. The Strategic Expenditure Plan shall include a list of Projects, the estimated project cost of each Project, revenue estimates for the TVTD Fee, as well as a prioritization plan and a timeline for project delivery. It shall also include reasonable requirements for indemnification and insurance, as appropriate for individual projects, and shall include requirements that Project Sponsors or other entities which construct any of the Projects defend and indemnify the Parties. The SEP shall also include guidelines governing credit and/or reimbursement for any entity-constructed Projects and developer- constructed Projects. b.Project Prioritization. The TVTC shall consider the following criteria when establishing the priority of Projects: i. Ability of Project Sponsors to move directly to final Project Readiness: design and construction, which could be represented by, among other things, completion of environmental documentation, inclusion of the project in the Regional Transportation Improvement Program, preparation of plans, specifications and estimates; and ii. Ability of project to leverage other funding, eligibility of Project Funding: the project for external funding, or commitment of external funding; and iii. Ability of the project to address traffic congestion Project Effectiveness: or safety problems. c.Review Period. The SEP must be reviewed at least once every five years by the TVTC. Each revision shall require approval by the TVTC with a vote of a Consolidated Update of JPA & JEPA 18 Final Administrative Draft: July 31, 2013 supermajority of six. SECTION 9 Miscellaneous a. Amendments. This Agreement may be amended at any time only by a supermajority of six votes, as approved by resolution adopted by the Legislative Body of each Party. b. Liability and Indemnity. i. Nothing in this Agreement shall be construed to hold any Party liable to any other Party, or any person not a party hereto, for the desig construction, installation, inspection, operation, maintenance and/or repair of any of the Transportation Improvement Projects. This Agreement is designed to implement the subvention or disbursement of public funds from one public agency to another and accordingly is not an agreement as defined in Government Code section 895. ii. A Party is not liable to any other Party for the inadvertent failure or legal inability to collect a TVTD Fee. iii.Each Party shall defend, hold harmless and indemnify the other Parties and their officers, agents and employees from any and all claims, costs and liability arising out of or in connection with an act or failure to act under this Agreement, or breach of any term of this Agreement, and caused by the negligence or willful misconduct of the indemnitor, its officers, agents or employees. iv.The TVTC shall defend, hold harmless and indemnify the Parties and their officers, agents and employees from any and all claims, costs and liability arising out of or in connection with an act or failure to act under this Agreement, or breach of any term of this Agreement, by the TVTC, except to the extent such claims, costs or liability arise from the negligence or willful misconduct of an indemnitee or its officers, agents, or employees. v.TVTC Project Sponsors shall require, in all consultant and contractor contracts used to implement Transportation Improvement Projects, that such consultant and contractor agree to defend, indemnify and hold harmless the TVTC, and each Party to this Agreement, and their respective council members, board members, officers and employees, from all claims, losses, damages, costs, injury and liability arising out of the provision of services provided pursuant to the consultant or contractorÔs contract with the Project Sponsor. Consolidated Update of JPA & JEPA 19 Final Administrative Draft: July 31, 2013 c.Term; Termination. i. Term. The term of this Agreement is from the Effective Date unt ThisAgreement may be terminated terminated pursuant to its terms. at any time only by a supermajority of six vote of the Parties, as approved by resolution adopted by the Legislative Body of each Party. ii.Effective Date of Termination. Termination shall not under any circumstances become effective until June 30 of a Fiscal Year, provided such date is a minimum of six (6) months following the effective date of a written notice of termination to the TVTC Governing Council approved by the Legislative Bodies for all the Parties. d.Withdrawal. Any Party may withdraw from this Agreement on one yearsÔ written notice to the other Parties, given at least 30 days prior to the end of any Fiscal Year. Any withdrawing Party shall be obligated for its proportionate share of any expenses incurred prior to the effective date of the with withdrawal of any Party from this Agreement shall in no way affect the rights and obligations of the remaining Parties. If a Party withdraws Agreement, that Party shall not be entitled to the return of any funds contributed to the TVTC, if any, nor to the return in cash or in kind of any materials or supplies until termination of this Agreement. e. Disposition and Distribution of Assets. Upon dissolution of the TVTC, any assets of the TVTC shall be distributed to the respective grantors or assignors thereof, in the amounts and at the time or times as may be determined by the Governing Council. Upon completion of the purposes of this Agreement, any surplus money on hand shall be returned to the Parties in proportion to the contributions made to the TVTC. f. Continued Existence of Agency. Upon dissolution, this Agreement and the TVTC shall continue to exist as required or necessary for the limited purpose of distributing the Assets and Cash Reserves and winding up and closing out the business, accounts and affairs of the TVTC. g. Section Headings. All section headings in this Agreement are for convenience of reference only and are not to be construed as modifying or governing language in the section referred to or to define or limit the scope of any provision of this Agreement. Consolidated Update of JPA & JEPA 20 Final Administrative Draft: July 31, 2013 h. Law Governing. This Agreement is made under the Constitution and laws of the State of California and is to be so construed. i. Severability. In the event any provision of this Agreement is determined to be illegal or invalid for any reason, all other provisions and articles of this Agreement shall remain in full force and effect unless and until otherwise determined. The illegality of any provision of this Agreement shall in no way affect the legality and enforceability of any other provisions of this Agreement. j. 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, postage prepaid, addressed to the TVTC Chair and to the Members at their addresses as reflected in the records of the TVTC, and shall be deemed to have been received by the party to which the notice is addressed upon the earlier of receipt or 72 hours after mailing k. Agreement Not Exclusive. This Agreement shall not be exclusive and shall not be deemed to amend or alter the terms of other agreements between or among the Parties, unless the terms of this Agreement conflict, in which case the terms of this Agreement shall prevail. l. Breach. Any default made by any Party in any covenant conta Agreement shall not excuse any Member from fulfilling its respective obligations under this Agreement. The Parties declare that this Agreement is entered into for the benefit of the TVTC created hereby. The TVTC is authorized to take any or all legal or equitable actions, including but not limited to injunction and specific performance, necessary or permitted by law to enforce this Agreement. m. Insurance. The TVTC shall procure such general liability insurance as the Governing Council shall approve. n. Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the Parties. Except to the extent provided herein, none of the Parties may assign any right or obligation hereunder without the of the others. Consolidated Update of JPA & JEPA 21 Final Administrative Draft: July 31, 2013 EXECUTION OF AGREEMENT the parties hereto have caused this Agreement to be executed an IN WITNESS WHEREOF, attested by their proper officers thereupon duly authorized and their official seals to be hereto affixed on the dates as shown herein. MEMBERS APPROVED AS TO FORM: , a political subdivision COUNTY OF ALAMEDA of the State of California By: ___________________________ By: ___________________________ Its: ___________________________ Its: __________________________ Date: ___________________________ Date: ________________________ ATTEST: By: ___________________________ Its: ___________________________ Date: ___________________________ APPROVED AS TO FORM: , a political COUNTY OF CONTRA COSTA subdivision of the State of California By: ___________________________ By: ___________________________ Its: ___________________________ Its: __________________________ Date: ___________________________ Date: ________________________ ATTEST: By: ___________________________ Its: ___________________________ Date: ___________________________ Consolidated Update of JPA & JEPA 22 Final Administrative Draft: July 31, 2013 APPROVED AS TO FORM: a municipal corporation TOWN OF DANVILLE, By: ___________________________ By: ____________________________ Its: ___________________________ Its: __________________________ Date: ___________________________ Date: ________________________ ATTEST: By: ___________________________ Its: ___________________________ Date: ___________________________ APPROVED AS TO FORM: a municipal corporation CITY OF DUBLIN, By: ___________________________ By: ____________________________ Its: ___________________________ Its: __________________________ Date: ___________________________ Date: ________________________ ATTEST: By: ___________________________ Its: ___________________________ Date: ___________________________ APPROVED AS TO FORM: a municipal corporation CITY OF LIVERMORE, By: ___________________________ By: ____________________________ Its: ___________________________ Its: __________________________ Date: ___________________________ Date: ________________________ Consolidated Update of JPA & JEPA 23 Final Administrative Draft: July 31, 2013 ATTEST: By: ___________________________ Its: ___________________________ Date: ___________________________ APPROVED AS TO FORM: a municipal corporation CITY OF PLEASANTON, By: ___________________________ By: ____________________________ Its: ___________________________ Its: __________________________ Date: ___________________________ Date: ________________________ ATTEST: By: ___________________________ Its: ___________________________ Date: ___________________________ APPROVED AS TO FORM: , a Charter City CITY OF SAN RAMON By: ___________________________ By: ____________________________ Its: ___________________________ Its: __________________________ Date: ___________________________ Date: ________________________ ATTEST: By: ___________________________ Its: ___________________________ Date: ___________________________ Consolidated Update of JPA & JEPA 24 Final Administrative Draft: July 31, 2013 POO-RDES-100613_2