HomeMy WebLinkAboutAgreement A-19-416 with Central DM Groundwater Sustainability Agency JPA.pdf
2368227v1 / 21603.0001 Page 2 of 23
a basin or subbasin (Wat. Code § 10727); and
D. WHEREAS, the Parties overlie a portion of the Delta-Mendota Subbasin number
5-22.07 of the San Joaquin Valley Groundwater Basin identified in the California Department of
Water Resources (“DWR”) Bulletin 118 (the “Delta-Mendota Subbasin”), said portion being
designated as the “Central Delta-Mendota Region,” as its boundaries may be modified from time
to time as provided by law; and
E. WHEREAS, each Party’s jurisdictional area overlies the Central Delta-Mendota
Region, depicted in Exhibit “B” attached hereto and incorporated herein by this reference, and
DWR has designated the entire Delta-Mendota Subbasin as critically overdrafted. Under SGMA,
each GSA is required to assume its regulatory role by June 30, 2017, and to submit a GSP to DWR
by January 31, 2020; and
F. WHEREAS, the Parties are all public agencies authorized to contract with the State
or Federal governments and agencies, and to exercise powers related to groundwater management,
land use, or both, within their jurisdictional boundaries. Each Party would qualify individually to
serve as a GSA under SGMA; and
G. WHEREAS, the Parties previously entered into that certain “Agreement Supporting
Formation and Operation of the Central Delta-Mendota Region Multi-Agency Groundwater
Sustainability Agency in the Central Delta-Mendota Region,” effective February 15, 2017 (the
“Initial Agreement”), to establish and operate the Central Delta-Mendota Region Multi-Agency
GSA to meet their mutual goal of cost-effective, sustainable groundwater management that
considers the interests and concerns of the Parties and other stakeholders in the Central Delta-
Mendota Region without establishing a legal entity separate from the individual agencies; and
H. WHEREAS, in section 5.4 of the Initial Agreement, the Parties agreed to consider
entering into a joint powers agreement if they found it necessary or beneficial in achieving the goal
of maintaining local control of sustainable groundwater management in the Central Delta-Mendota
Region in compliance with SGMA; and
I. WHEREAS, under the Joint Exercise of Powers Act (Chapter 5 (commencing with
section 6500) of the Division 7 of Title 1 of the Government Code) (the “Act”), two or more public
agencies may by agreement jointly exercise any power held in common by agencies entering into
such an agreement. All of the Parties are public agencies as defined by the Act; and
J. WHEREAS, the Parties are entering into this Agreement to form the Central Delta-
2368227v1 / 21603.0001 Page 3 of 23
Mendota Groundwater Sustainability Agency for the purpose of acting as a separate and
independent public agency and as a single GSA for the Central Delta-Mendota Region; and
K. WHEREAS, the Parties desire to achieve the objectives recited above through
entering into this Agreement.
NOW, THEREFORE, in consideration of the true and correct facts recited above, which are hereby
incorporated herein, and of the covenants, terms and conditions set forth herein, the Parties hereto
agree as follows:
ARTICLE 1.
DEFINITIONS
As used in this Agreement, unless the context requires otherwise, the meaning of the terms
hereinafter set forth shall be as follows:
1.1. “Act” means the Joint Exercise of Powers Act codified at Government Code sections
6500, et seq.
1.2. “Agency” means the Central Delta-Mendota Groundwater Sustainability Agency.
1.3. “Agreement” means this Central Delta-Mendota Groundwater Sustainability Agency
Joint Powers Agreement.
1.4. “Board of Directors” means the governing body of the Agency established pursuant
to Article 6 of this Agreement.
1.5. “Delta-Mendota Subbasin” means the Delta-Mendota Subbasin of the San Joaquin
Valley Groundwater Basin, subbasin number 5-22.07, as identified in Bulletin 118
prepared by the DWR and depicted on Exhibit “A,” attached hereto and incorporated
herein by this reference.
1.6. “Director” means a member of the Agency’s Board of Directors.
1.7. “Central Delta-Mendota Region” means that portion of the Delta-Mendota Subbasin
depicted on the map attached hereto as Exhibit “B,” attached hereto and incorporated
herein by this reference.
1.8. “GSP” means a groundwater sustainability plan, as defined by section 10721,
subdivision (k), of the Water Code.
1.9. “Fiscal Year” means each period beginning on March 1 and ending the last day of
February the following year.
2368227v1 / 21603.0001 Page 4 of 23
1.10. “Member Contributions” means each Party’s allocated share of Agreement Expenses
as determined and described in Article 11 of this Agreement and set forth in Exhibit
“C,” attached hereto and incorporated herein by this reference.
1.11. “SGMA” means the California Sustainable Groundwater Management Act, which is
codified in Part 2.74 (commencing with section 10720) of Division 6 of the Water
Code, and all state regulations adopted under that Part.
ARTICLE 2.
CREATION OF THE AGENCY
2.1. Upon execution of this Agreement by all Parties (“Effective Date”) and pursuant to the
Act, the Parties hereby create a public entity separate and independent from the Parties
to be known as the “Central Delta-Mendota Groundwater Sustainability Agency”.
2.2. Pursuant to Government Code section 6509, the County of Fresno is the designated
Party with respect to the Agency’s exercise of power.
2.3. The boundaries of the Agency are the Central Delta-Mendota Region, as depicted on
the map and described in metes and bounds in Exhibit “B,” which is attached hereto
and incorporated herein by this reference.
2.4. The Agency shall timely file the notices required by Government Code sections 6503.5,
6503.6, and 53051.
ARTICLE 3.
TERM
3.1. This Agreement is effective upon execution by all Parties and continues in full force
and effect until terminated under Article 12.
ARTICLE 4.
PURPOSE OF THE AGENCY
4.1. The purpose of this Agreement is to create a joint powers agency to replace the Central
Delta-Mendota Region Multi-Agency GSA for the Central Delta-Mendota Region that
was formed pursuant to the Initial Agreement. The Parties and the boundaries will be
2368227v1 / 21603.0001 Page 5 of 23
the same, but the structure of the entity will change from a multi-agency GSA to a joint
powers agency that acts as the GSA.
4.2. The purpose of the Agency is to implement SGMA’s requirements and achieve the
sustainability goals provided in SGMA by developing, adopting, submitting,
implementing, enforcing, and revising a GSP for the Central Delta-Mendota Region,
which may be part of a broader GSP coordinated with other GSAs in the Delta-Mendota
Subbasin, and to exercise all powers and authorities of a GSA under SGMA.
4.3. Nothing in this Agreement is intended to confer upon any Party or upon any third party
outside this Agreement the authority to limit or interfere with the respective Party’s
rights and authorities over its own internal matters, including but not limited to, such
Party’s surface water supplies, groundwater supplies, facilities, billing and collection
procedures, and operations and water management, subject to terms of this Agreement.
ARTICLE 5.
POWERS OF THE AGENCY
5.1. The Agency is authorized, in its own name, to do all acts necessary for carrying out the
purpose of this Agreement, including, but not limited to, any and all of the powers
identified in this Article 5, and establishing Member Contributions for the Parties.
5.2. As provided in Government Code section 6508, the Agency is authorized, in its own
name, to do any or all of the following:
a. To make and enter into contracts;
b. To employ agents and employees;
c. To acquire, construct, manage, maintain, or operate any building, works or
improvements;
d. To acquire, hold, or dispose of property;
e. To incur debts, liabilities, or obligations; and
f. To sue and be sued in its own name.
5.3. The Agency may exercise all powers granted to GSAs in SGMA to provide the
maximum degree of local control and flexibility consistent with the sustainability goals
of SGMA as set forth in the GSP, including but not limited to all of the authorities
provided in Chapter 4 (commencing with section 10723), Chapter 5 (commencing with
2368227v1 / 21603.0001 Page 6 of 23
section 10725), Chapter 6 (commencing with section 10727), Chapter 8 (commencing
with section 10730), and Chapter 9 (commencing with section 10732) of SGMA.
5.4. The Agency may exercise the common powers of the Parties, including, but not limited
to, the following:
a. Adopting initial and annual operating budgets;
b. Accepting contributions, grants, or loans from any public or private agency
or individual in the United States or any department, instrumentality, or
agency thereof for the purpose of financing its activities; and
c. Investing money that is not needed for immediate necessities, as the Board
of Directors determines advisable, in the same manner and upon the same
conditions as other local entities in accordance with section 53601 of the
Government Code.
5.5 The Parties agree that they are subject to the Water Code and authorities granted by
SGMA. Furthermore, the Parties agree that nothing contained in this Agreement grants
to the Agency any power to alter any water right, contract right, or any similar right
held by any of the Parties, or to amend a Party’s water delivery practice, course of
dealing, or conduct without the express consent of that Party.
ARTICLE 6.
AGENCY BOARD OF DIRECTORS
6.1. Each Party shall designate one person to serve on the Board of Directors as a Director
and up to two persons to serve as an alternate(s) to its appointed Director, to act during
the absence or disqualification of that Party’s Director. The Director and alternate
Directors shall serve at the pleasure of his or her applicable appointing Party.
6.2. Directors and their alternates shall not be compensated by the Agency for participation
on the Board of Directors. The Agency shall develop a policy for reimbursement
associated with direct expenses.
6.3. Each appointed Director and alternate Director(s) shall comply with all legal
requirements, including disclosure and ethics requirements, applicable to directors of a
California Joint Powers Authority.
2368227v1 / 21603.0001 Page 7 of 23
ARTICLE 7.
OFFICERS AND ADMINISTRATION
7.1 Officers. The Board of Directors shall, at its first meeting and then annually at its first
meeting of each Fiscal Year, elect a Chairman, Vice-Chairman, Secretary, and any
other officers as determined necessary by the Board of Directors. Each officer shall
serve a term of one (1) year and such term may be extended by the Board of Directors
or until the officer resigns or is replaced by the Board of Directors.
7.1.1. The Chairman shall preside at all Board of Directors meetings.
7.1.2. The Vice-Chairman shall act in place of the Chairman at meetings, should
the Chairman be absent.
7.1.3. The Secretary shall keep minutes of all meetings of the Board of Directors
and shall, as soon as possible after each meeting, forward a copy of the
minutes to each member and alternate of the Board of Directors. The
Secretary of the Board is not required to be a member of the Board of
Directors.
7.2 Treasurer. The Agency shall designate a Treasurer from one of the Parties, or in lieu
thereof, a certified public accountant that may be selected by the Agency and
compensated by the Agency under contract to be the depositary and have custody of all
the money of the Agency, from whatever source.
7.2.1 The Treasurer shall receive and keep record of all money of the Agency and
place it in the treasury of the Agency.
7.2.2 The Treasurer shall be responsible, upon his or her official bond, for the
safekeeping and disbursement of all Agency money so managed by him or
her.
7.2.3 The Treasurer shall pay, when due, out of money of the Agency, all sums
payable on outstanding bonds and coupons of the Agency.
7.2.4 The Treasurer shall pay any other sums due from the Agency from Agency
money, or any portion thereof, only upon warrants of the Officer performing
the functions of Controller.
7.2.5 The Act requires strict accountability of all funds and reporting of all
receipts and disbursements. As such, the Treasurer shall verify and report
2368227v1 / 21603.0001 Page 8 of 23
in writing quarterly to the Agency the amount of money held by the Agency,
the amount of receipts since the last report, and the amount paid out since
the last report.
7.3 Controller. The Agency shall designate a Controller from the same Party as the
designated Treasurer, unless a certified public accountant has been designated as
Treasurer. In that case, the Agency shall designate a Controller from one of the Parties.
The Controller shall draw warrants to pay demands against the Agency when the
demands have been approved by the Agency or any person authorized to so approve.
7.4 Legal Counsel. The Board of Directors may hire/appoint legal counsel for the Agency.
7.5 Management. In addition to, or in lieu of, hiring employees, the Agency may engage
one or more third parties to manage any or all of the business of the Agency on terms
and conditions acceptable to the Board of Directors. A third party so engaged may, but
need not, be a Party to this Agreement. Any third party so engaged shall have such
responsibilities as are set forth in the contract for such third party’s services.
ARTICLE 8.
QUORUM AND VOTING
8.1 Quorum. A majority of the Board of Directors members constitutes a quorum of the
Board of Directors.
8.2 Director Votes. Except as set out in Section 8.3, all actions of the Board of Directors
must be taken by majority vote of the Board of Directors at the meeting.
8.3 Matters Requiring Special Vote of Board of Directors. The following determinations
require a two-thirds vote of the then-present Board of Directors:
8.3.1 To exercise the GSA enforcement powers identified in Chapter 9
(commencing with section 10732) of SGMA.
8.3.2 To approve initial and annual operating budgets.
8.3.3 To revise the Member Contributions of the Parties.
8.3.4 To impose certain charges, which may include fees, assessments, or both,
to fund the cost of the Agency in furthering the purposes of this Agreement,
for complying with and as authorized by SGMA, and sustainably managing
groundwater within the Central Delta-Mendota Region.
2368227v1 / 21603.0001 Page 9 of 23
8.3.5 To adopt rules, regulations, policies, and procedures governing the adoption
and implementation of the GSP for the Central Delta-Mendota Region.
8.3.6 To adopt a GSP and any amendments thereto.
ARTICLE 9.
MEETINGS
9.1. The Board of Directors shall hold at least one regular meeting each year and shall
provide for other regular meetings and special meetings as it deems necessary. The
Board of Directors shall fix the hour, date, and place for its regular meetings. All
meetings of the Board of Directors must be called, noticed, held, and conducted in
accordance with the provisions of the Ralph M. Brown Act, which is codified at
Chapter 9 (beginning with section 54950) of Part 1 of Division 2 of Title 5 of the
Government Code.
9.2. The Board of Directors Chairman may appoint, with the concurrence of the majority of
the Board of Directors present, such ad hoc or standing committees as may be useful
from time to time.
9.3 The Secretary of the Board of Directors shall prepare meeting minutes and place them
in the records of the Agency.
ARTICLE 10.
FISCAL YEAR & BUDGET
10.1. Fiscal Year. The Fiscal Year of the Agency shall be from March 1 through the last
day in February the following year.
10.2. Budget. The Board of Directors shall establish an annual budget for the activities
authorized by this Agreement. The budget must describe the amounts that the Board
of Directors anticipates are required for purposes of the Agreement during each Fiscal
Year. Upon its approval of its obligations under the budget, each Party shall have
available funding for its share of the Member Contributions to pay directly to the
Agency.
10.3. The Agency shall not make expenditures or incur liabilities exceeding the amount of
the appropriations allowed by the Agency’s budget.
2368227v1 / 21603.0001 Page 10 of 23
10.4. The Agency may amend the annual budget as needed subject to the provisions in
Article 8 of this Agreement.
ARTICLE 11.
MEMBER CONTRIBUTIONS
11.1. The Member Contributions for each Party determines the share of Agreement Expenses
allocated to each Party, except for any special-purpose contributions or fees owed
pursuant to a separate agreement between less than all of the Parties to this Agreement.
11.2. Initial Member Contributions. The Member Contributions are established pursuant to
the attached Exhibit “C,” which is incorporated herein by this reference. The Member
Contributions in Exhibit “C” are deemed adopted by the Board of Directors upon
Agency formation and shall supersede any previous fee structure established by the
Initial Agreement.
11.3. Member Contributions after Adoption of GSP. Upon adoption of an estimated
sustainable yield and a sustainability goal under the approved GSP for the Central
Delta-Mendota Region, the Board of Directors shall consider recalculating the Member
Contribution for each Party. In addition to the existing Member Contributions provided
in Exhibit “C”, the Parties further agree to collect information adequate to allow the
Board of Directors, by 2023, to develop and levy charges, which may include fees,
assessments, or both, consistent with the GSP, which charges may include, but are not
limited to, a volumetric groundwater extraction fee within the Central Delta-Mendota
Region. Upon adoption of such charges, the Member Contributions in Exhibit “C” may
be evaluated and modified. Furthermore, from time to time, the Board of Directors
may evaluate the Member Contributions in order to consider new information
concerning the relative contribution of each Party with a vote to approve revisions as
provided in Section 8.3.3.
ARTICLE 12.
WITHDRAWAL AND REMOVAL OF PARTY; TERMINATION OF AGENCY
12.1. Withdrawal. Any Party may voluntarily withdraw from this Agreement and the
Agency. The withdrawing Party shall give all Parties written notice of such
2368227v1 / 21603.0001 Page 11 of 23
withdrawal not less than sixty (60) days prior to the withdrawal date. Upon
withdrawal, (a) the Agency and the withdrawing Party shall work together with
DWR to facilitate the withdrawing Party forming either its own GSA or joining a
separate GSA; and (b) the withdrawing Party shall remain subject to the terms of
the GSP that is prepared by the Agency so as to not put local management of the
Delta-Mendota Subbasin in jeopardy, unless and until the withdrawing Party’s
service area is covered by a separate GSP approved by DWR. This obligation
survives a Party’s withdrawal from this Agreement, is for the express benefit of the
remaining Parties, and is subject to the indemnification provisions of Article 15 of
this Agreement.
12.2. Effect of withdrawal. Within thirty (30) days of withdrawal, a withdrawing Party shall
pay for all of its financial obligations incurred prior to the withdrawal date pursuant to
the terms of this Agreement and any other expenses pursuant to California law. This
payment obligation for financial obligations incurred prior to the withdrawal date
survives the Party’s withdrawal from the Agreement, is for the express benefit of the
remaining Parties, and is subject to the indemnification provisions of Article 15 of this
Agreement. All financial obligations under this Agreement that are incurred prior to
the withdrawal date shall survive after the withdrawal date.
12.3. Removal. Any Party may be removed by a two-thirds (2/3rd) vote of the Board of
Directors, and upon removal shall no longer be a Party of the Agency. A Party so
removed shall be liable for payment of such Party’s financial obligations incurred up
to and including the date of removal as calculated by the Member Contributions
described in Article 11.
12.4. Termination of Agency. This Agreement may be terminated and the Agency dissolved
by unanimous written consent of all Parties, except during the outstanding term of any
agency indebtedness. Nothing in this Agreement prevents the Parties from entering
into other joint powers agreements.
12.5. Disposition of Property and Surplus Money.
12.5.1 The Agency shall be formed and come into existence on the Effective Date
and shall continue in existence unless terminated by the governing body of
each of the Parties then a Party to this Agreement or at any point in time at
2368227v1 / 21603.0001 Page 12 of 23
which there ceases to be at least two Parties to this Agreement, at which
point in time this Agreement shall be automatically terminated; provided
however, that the Agency and this Agreement shall continue to exist for the
purpose of disposing of liabilities (“Agency Liabilities”) and distributing
funds, property, and other assets (“Agency Assets”), and all other functions
necessary to conclude the business of the Agency.
12.5.2 Notwithstanding any other provision herein, this Agreement shall remain in
effect and be binding upon the Parties hereto and upon all subsequent
Parties joined herein for such a period as the Agency desires to engage in
any activities under this Agreement. The foregoing provision shall not
apply, however, to any Party that withdraws or is terminated from its
participation in the Agency in accordance with this Agreement.
12.5.3 Upon termination of this Agreement, after payment of all Agency
Liabilities, any Agency Assets remaining shall be distributed to the Parties
in accordance with the Member Contributions identified in Exhibit “C,” and
as amended by the Board of Directors. The Agency shall cease to exist
when the Agency liabilities are paid and Agency Assets have been
distributed according to the provisions contained in this Section, this
Agreement generally, and the Act (Gov. Code §6500 et seq.).
ARTICLE 13.
ADMISSION OF NEW PARTIES
13.1. Additional entities that are both “public agencies” under Government Code section
6500 and “local agencies” under Water Code section 10721, subdivision (n), may
become signatories of this Agreement upon approval by the Board of Directors of
the Agency and approval of the board of the new Party. Upon admission of a new
Party, the Board of Directors shall recalculate Member Contributions, subject to
section 8.3.3, and update any documents and maps as may be required by DWR.
ARTICLE 14.
PRIOR AGREEMENT INTENT INCORPORATED; RATIFICATION
2368227v1 / 21603.0001 Page 13 of 23
14.1 It is the intent of the Parties to incorporate the purpose and activities of the Initial
Agreement into this Agreement and for the Agency to be the GSA for the Central Delta-
Mendota Region.
ARTICLE 15.
SEPARATE ENTITY; INDEMNIFICATION
15.1 Separate Entity. In accordance with the Act, the Agency is a public entity separate
from the Parties. To the greatest extent permitted by law, unless otherwise specifically
agreed to herein by all the Parties as to a specific debt, liability or obligation, the debts,
liabilities and obligations of the Agency shall not be the debts, liabilities or obligations
of the Parties under Government Code section 6508.1. The Agency shall own and hold
title to all funds, property and works acquired by it during the term of this Agreement.
15.2 Indemnification. No Party has the power to obligate any other Party hereto and no
Party’s debt, liability or obligation due any third party may be asserted or collected
against the Agency or any individual Party as a result of membership in the Agency
through this Agreement. The Agency shall indemnify, defend, and save harmless the
Parties, their officers, agents, directors, and employees, from and against any and all
claims and losses whatsoever, occurring or resulting to persons, firms, or entities
furnishing or supplying work, services, labor, materials or supplies to the Agency in
connection with the performance of this Agreement and, except as expressly provided
for by law, from any and all claims and losses accruing or resulting to any persons, firm
or entity for damage, injury, or death arising out of or in connection with the Agency’s
performance of its obligations pursuant to this Agreement. The Agency may also
acquire such policies of directors and officers liability insurance and in such amounts
as the Board of Directors shall deem prudent. The Board of Directors, officers, agents,
and employees of the Agency shall use ordinary care and reasonable diligence in the
exercise of their powers, and in the performance of their duties pursuant to this
Agreement. The Board of directors shall not be liable to the Parties to this Agreement
for any mistake of judgment or any other action made, taken, or omitted by any agent,
employee, or independent contractor selected with reasonable care, nor for loss
incurred through the investment of Agency funds or failure to invest same. To the
2368227v1 / 21603.0001 Page 14 of 23
extent authorized by California law, no Director, officer or employee of the Agency
shall be responsible for any action made, taken, or omitted by any other Director,
officer or employee. Furthermore, each Party shall indemnify, defend, and save
harmless the other Parties, their officers, agents, directors, and employees, from and
against any and all claims of negligence and/or willful misconduct by the indemnifying
Party in performance of this Agreement.
ARTICLE 16.
MISCELLANEOUS
16.1 Amendments. This Agreement may not be amended except by a written amendment
signed by all of the Parties.
16.2 Assignment; Binding on Successors. Except as otherwise provided in this Agreement,
the rights and duties of the Parties may not be assigned or delegated without the express
written consent of the other Parties. Any attempt to assign or delegate such rights or
duties in contravention of this Agreement is null and void. Any approved assignment
or delegation must be consistent with the terms of any contracts, resolutions,
indemnities and other obligations of the Parties under this Agreement then in effect.
This Agreement inures to the benefit of, and be binding upon, the successors and
permitted assigns of the Parties.
16.3 Counterparts. This Agreement may be executed by the Parties in separate counterparts,
each of which when so executed and delivered is an original, but all such counterparts
together constitute the same instrument.
16.4 Governing Law. This Agreement is governed by the laws of the State of California.
16.5 Severability. If any part of this Agreement is held by a court of competent jurisdiction
to be unlawful, invalid, or unenforceable, the remainder of the Agreement remains in
effect and the Parties shall make best efforts to replace the unlawful, invalid, or
unenforceable part of the Agreement with terms to accomplish the Parties’ original
intent.
16.6 Headings. The titles of sections of this Agreement are for convenience only and no
presumption or implication of the intent of the Parties as to the construction of this
Agreement shall be drawn from them.
2368227v1 / 21603.0001 Page 21 of 23
EXHIBIT A
MAP OF DELTA-MENDOTA SUBBASIN BOUNDARIES
2368227v1 / 21603.0001 Page 22 of 23
EXHIBIT B
MAP OF CENTRAL DELTA-MENDOTA REGION BOUNDARIES
2368227v1 / 21603.0001 Page 23 of 23
EXHIBIT C
CENTRAL DELTA-MENDOTA GSA
MEMBER CONTRIBUTIONS
Party Name Member Contributions
Central DM GSA (100%)
Eagle Field Water District Member 10%
County of Fresno SS-MOA Participant 10%
Fresno Slough Water District Member 10%
County of Merced SS-MOA Participant 10%
Mercy Springs Water District Member 10%
Pacheco Water District Member 10%
Panoche Water District Member 10%
San Luis Water District Member 10%
Santa Nella County Water District SS-MOA Participant 10%
Tranquillity Irrigation District Member 10%