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HomeMy WebLinkAbout1989-03-14; City Council; 9916; Encina Phase IV Financing Formation of Joint Powers AuthorityCIPC OF CARLSBAD - AGENQ BILL AR« ?7/6 MTR 3/14/89 DFPT ™ TITLE: ENCINA PHASE IV FINANCING - FORMATION OF JOINT POWERS AUTHORITY jr* *t j ^^ DEPT. HCerf^ 1 t'f^A CITY ATTYJ^O<_™ ¥^^ ^™ CITY MGR^V- QgOor O§ .J O OO RECOMMENDED ACTION: Adopt Resolution No.approving the Encina Financing Joint Powers Authority Agreement (EFJPA), the separate agreement with EAA guaranteeing the payment of funds and appointing representatives to EFJPA. Introduce Ordinance No. A/5 5V authorizing the EFJPA to issue revenue bonds. ITEM EXPLANATION: The Encina Administrative Agency (EAA) has approved the expansion of the existing sewer plant. This project, known as Encina Phase IV, is expected to cost in excess of $54 million. Because financing a project of this magnitude places a significant economic burden on the EAA staff and the member agencies, it is imperative that each participant be able to guarantee that all funds will be available for the entire project when bids are awarded. The EAA cannot afford to risk a cash short fall or delay in cash flow needs if the project is to be completed on schedule. In order to avoid unpleasant surprises EAA has asked each member to indicate by April 1, 1989, how funds will be made available. Two agencies, San Marcos County Water District and the Encinitas Sanitary District, have indicated that they will provide cash for their share of the construction costs from existing funds. Under the agreement half of their total cost would be deposited with EAA at the start of the project with the remaining half to be provided one year later. The other agencies find that some or all of their share must be financed using debt. The staff of the four agencies interested in using debt financing (Leucadia, Buena, Vista, and Carlsbad) have been working together to build a financing plan that will provide the necessary cash for the project. A financing team including representatives of Stradling Yocca Carlson and Rauth, Stone and Youngberg, Fieldman Rolap and Associates, and the finance staff from each agency has been formed. The financing plan is relatively simple in concept. The four agencies requiring debt financing will join together in a single purpose Joint Powers Authority. This Authority will have a Board of Directors comprised of one representative from each agency. The Board will approve the issue of bonds to finance the portion of the construction costs allocated to the four member agencies. Each agency will be required to take certain actions related to the repayment of debt and setting of user fees which will provide the cash flow for debt service payments. The actions before the Council accomplish several tasks. The adoption of the attached resolution will approve the formation of the EFJPA, appoint a Page Two of AB # representative and an alternate to sit on the EFJPA Board, and authorize the Mayor to issue a letter to EAA indicating that the City's share of Phase IV costs will be covered by bond issue proceeds. The ordinance before the Council authorizes the EFJPA to issue up to $50 million for the construction of Phase IV. This amount will become a cap limiting the power of the EFJPA. The actual amount of the issue will be determined by the allocation of construction costs based on bids to be received in the summer of 1989. The powers of the EFJPA are limited to the issuance of debt for the financing of the Phase IV project. The staff of the EFJPA will be provided by the City of Carlsbad. The Treasurer/Controller will be the Finance Director and the Recording Secretary will be the City Clerk of the City of Carlsbad. There is no monetary compensation provided for any member or officer of the EFJPA. The EFJPA will generally meet once annually, however during the formation stages additional meetings will be necessary. FISCAL IMPACT: The creation of the EFJPA provides the mechanism necessary for the issuance of bonds which will finance the City's share of the Phase IV project. The creation of the EFJPA has no direct fiscal impact, although some minor amount of staff time will be required of the Finance staff and City Clerk's office to support the EFJPA Board. If the City Council chooses to not participate in the EFJPA, an alternate funding mechanism would have to be selected. Since cash is not readily available to fund the City's share of expansion costs, it is likely that a debt issue of some sort would be required. EXHIBIT: 1. Resolution No. Q^^7 $ approving the separate funding agreement with EAA, approving the EFJPA Agreement and appointing representatives to EFJPA. 2. Proposed Bylaws of the EFJPA. 3. Ordinance No. jti&jj^r authorizing the EFJPA to issue revenue bonds in an amount not to exceed $50,000,000. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 89"78 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, SAN DIEGO COUNTY, CALIFORNIA, APPROVING A SEPARATE AGREEMENT PURSUANT TO THE 39TH SUPPLEMENT TO THE BASIC AGREEMENT CREATING THE ENCINA WATER POLLUTION CONTROL FACILITY AND APPROVING THE JOINT EXERCISE OF POWERS AGREEMENT CREATING THE ENCINA FINANCING JOINT POWERS AUTHORITY WHEREAS, the City of Carlsbad (the "City), has entered into the Thirty-Ninth Supplement To Basic Agreement To Provide For Allocation of Capacity And Costs Of Phase IV Expansion dated December 13, 1988 pertaining to the Encina Joint Sewer System (the "39th Supplement"); and WHEREAS, Section 6 of the 39th Supplement requires the City to deposit certain amounts with the Encina Administrative Agency ("EAA") for payment of the City's share of certain costs required to increase the capacity of the Encina Joint Sewer System or to otherwise guarantee the payment of such amount pursuant to a separate agreement between each agency and EAA; and WHEREAS, the City chooses to provide payment of all or part of its share of the costs plus payment of any other authorized costs by means of the creation of a joint powers authority pursuant to Article 1, Chapter 5, Division 7, Title 1 of the Government Code of the State of California and there is attached hereto as Exhibit A the form of letter agreement between EAA and the City which is intended to serve as the separate agreement within the meaning of Section 6 of the 39th Supplement; and WHEREAS, there has been presented to the City Council the form of the Joint Exercise of Powers Agreement (the "JPA Agreement"), Exhibit B attached hereto, by and among the City of Carlsbad, the City of Vista, the Buena Sanitation District and the Leucadia Water District, which creates the Encina Financing Joint Powers Authority (the "Authority"), and it is proposed that the Authority issue its revenue bonds secured by installment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 payments of the respective members of the Authority to provide funds to purchase each members respective share of the increased capacity and to finance any other authorized costs; and WHEREAS, the JPA Agreement requires the City to appoint a director and alternate director to the Board of the Authority within 30 days of the execution of the Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, as follows: 1. The Separate Agreement to the 39th Supplement (Exhibit A) hereby approved in substantially the form presented, subject to such minor, technical changes as may be approved by the City Manager and the City Attorney, and the Mayor and City Clerk are hereby authorized and directed to execute said separate Agreement for and on behalf of the City and to deliver said agreement to the EAA their execution to constitute conclusive evidence of the approval of any such changes. 2. The JPA Agreement (Exhibit B) is hereby approved in substan- tially the form presented, subject to such minor, technical changes as may be approved by the City Manager and the City Attorney, and the Mayor and City Clerk are hereby authorized and directed to execute said Agreement for and on behalf of the City their execution to constitute conclusive evidence of the approval of any such changes. 3. The City Council appoints Eric Larson as director and John Mamaux as alternate director to the Board of the Authority. 4. This resolution shall take effect immediately upon the adoption thereof. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED by the Carlsbad City Council at a regular meeting thereof held on the 14th day of March , 1989, by the following vote, to wit: AYES: Council Members Lewis, Pettine and Larson NOES* None ABSENT: Council Members Kulchin and Mamaux A. LEWIS, Mayor ATTEST: ALETHA L RAUTENKRANZ, ctyClertc (SEAL) COPY c EXHIBIT A 1200 ELM AVENUE • $&? .• TELEPHONE CARLSBAD, CA 92008-1989 WTWHj/m (619) 434-2867 (Ettg of FINANCE DEPARTMENT March 14, 1989 Encina Administrative Agency 62000 Avenida Encinas Carlsbad, California 92009 Ladies and Gentlemen: This letter is in reference to that certain Thirty-Ninth Supplement To Basic Agreement To Provide For Allocation of Capacity And Costs Of Phase IV Expansion dated as of December 13, 1988 (the "39th Supplement") by and among the cities of Carlsbad and Vista, the Buena Sanitation District, the San Marcos County Water District, Leucadia County Water District and the Encinitas Sanitary District. Pursuant to Section 6 of the 39th Supplement, each member is to deposit its share of the cost of the enlargement of the Encina Water Pollution Control Facility with the Encina Administrative Agency ("EAA") or shall guarantee such payment in accordance with the provisions of a separate agreement between each Agency and the EAA. Said Section 6 requires such deposits to be made or agreements approved, prior to advertisement of Phase IV construction contracts. Pursuant to this letter, the City of Carlsbad hereby agrees with the EAA to provide payment of its share of said costs as set forth in the 39th Supplement, by means of the issuance of revenue bonds of the Encina Financing Joint Powers Authority ("EFJPA"), a joint powers authority entered into among the cities of Carlsbad and Vista, the Buena Sanitation District and the Leucadia County Water District for the express and limited purpose of issuing revenue bonds to provide for payment of each member agency's respective share of the cost of Encina Water Pollution Control Facility expansion and improvements. It is contemplated that each member will enter into an installment purchase agreement with EFJPA secured by certain sewer system revenues to provide repayment of the bonds. Bond proceeds shall be invested consistent with the restrictions found in Section 53601 of the Government Code of the State of California or the investment policy of the EFJPA, whichever is more restrictive. Further, the City agrees to bear all risk of investment loss related to the portion of bond proceeds attributable to the City's share of the project. In the event of such loss, the City agrees (as all other agencies have agreed) to pay to EAA the amount of such shortfall upon demand therefor. Upon recordation of a Notice of Completion of the project EAA will return to the EFJPA any unencumbered funds due to the EFJPA member agencies. This commitment with EAA to provide the City's share of cost is subject to the completion of all necessary legal proceedings for the creation of the joint powers authority and the issuance of revenue bonds thereby and the satisfaction of all conditions precedent thereto. It is our intention that EFJPA will provide the EAA with, the- deposit required by the 39th Supplement in accordance with the financing documents on terms to be negotiated with EAA consistent with the requirements of the bond financing and prior to the award of construction contracts. .* Please indicate your acceptance of this letter agreement and its conformity with the requirements of the 39th Supplement by executing this letter in the space provided below and returning a copy to me at your early convenience. Very truly yours, CITY OF CAtfLS //'/. This letter agreement is hereby accepted in accordance with Section 6 of the 39th Supplement. Encina Administrative Agency By: _ Its: _ _ BEST COPY 7 EXHIBIT B JOINT EXERCISE OF POWERS AGREEMENT CREATING THE ENCINA FINANCING JOINT POWERS AUTHORITY San Diego County, California JOINT EXERCISE OF POWERS AGREEMENT CREATING THE ENCINA FINANCING JOINT POWERS AUTHORITY San Diego County, California THIS AGREEMENT is made and entered into as of the 1st day of February, 1989, by and among the following parties: (a) City of Carlsbad, a municipal corporation, organized and existing pursuant to the Constitution and laws of the State of California ("Carlsbad"). (b) City of Vista, a municipal corporation, organized and existing pursuant to the Constitution and laws of the State of California ("Vista"). (c) Leucadia County Water District, a public corporation, organized and existing pursuant to Division 12 of the Water Code of the State of California ("Leucadia"). (d) Buena Sanitation District, a public corporation, organized and existing pursuant to Division 6 of the Health and Safety Code of the State of California ("Buena"). A. The parties to this agreement hereto have and possess the power and authorization to acquire, construct and operate facilities to provide for the collection, treatment and disposition of wastewater, including appurtenances and appurtenant works in connection therewith. B. Each of the parties has a present and future need for the collection, treatment and disposition of wastewater for the benefit of the respective districts. C. Each of the parties is authorized to contract with each other for the joint exercise of any common power under Article 1, Chapter 5, Division 7, Title 1 of the Government Code of the State of California. COVENANTS In consideration of the mutual promises and covenants herein contained, the parties hereto agree as follows: 2934n/2062/019 -1- PURPOSES AND POWERS 1. Aaencv Created. There is hereby created a public entity to be known as the "Encina Financing Joint Powers Authority*. .-The Authority is formed by this agreement pursuant to the provisions of Article 1, Chapter 5, Division 7, Title 1 (commencing at Section 6500) of the Government Code of the State of California. The Authority shall be a public entity separate from* the parties hereto. 2. Purpose of the Agreement; Common Power to be Exercised. Each Member has in common the power to plan for, acquire/ construct/ maintain, repair, manage, operate and control facilities to provide for the collection, treatment and disposition of wastewater, appurtenances and appurtenant work in connection therewith, or to purchase capacity in any such facilities (the "Facilities"). The purpose of this agreement is to jointly exercise the foregoing common powers in the manner hereinafter set forth. The primary purpose of the Authority will be to issue bonds and use the bond proceeds to acquire wastewater treatment capacity ("Capacity") in or otherwise finance improvements to the Encina Water Pollution Control Facility ("EWPCF") and to pay financing and administrative costs in connection with such bonds and the administration of this agreement. It is contemplated the Authority will finance the acquisition of such capacity and improvements pursuant to installment purchase agreements to be entered into with each Member relating to its proportionate share of such capacity. The installment purchase payments to be received from each Member will be used to pay the principal and interest on the Authority's bonds. 3. Powers. The Authority shall have the power in its own name to do any of the following in connection with pursuing the purposes stated in Section 2 above: . (a) To exercise jointly the common powers of its Members in studying and planning ways and means to provide the Facilities. (b) To prepare and support legislation that may be necessary to carry out this agreement. (c) To make and enter into contracts. (d) To contract for the services of engineers, attorneys, planners, financial consultants, and to employ such other persons/ as it deems necessary. (e) To provide for the acquisition/ construction, management, maintenance and operation of the Facilities or Capacity necessary to carry out the purposes of; this agreement. 2934n/2062/019 -2- *•*>*>, (£) To acquire (whether by lease, purchase or lease purchase), hold and dispose of real and personal property. (g) To incur debts, liabilities, or obligations which are not—the debts, liabilities or obligations of the parties hereto. (h) f To sue and be sued in its own name. (i) To apply for an appropriate grant or grants under any Federal, State or local programs for assistance in developing any of its programs subject to the limitations herein set forth. (j) To exercise any of the powers set forth in Section 6588 of the California Government Code. In exercising the foregoing powers the Authority is subject to the restrictions upon the manner of exercising the powers of general law cities. 4. Definitions. For the purpose of this agreement, the following words shall have the following meanings: (a) "Agreement" means this joint exercise of powers agreement. (b) "Authority" means the Encina Financing Agency Joint Powers Authority formed pursuant to this agreement. (c) "Board" or "Board of Directors" means the governing body of the Authority. (d) "Capacity" means the meaning specified in Section 2 hereof. (e) "Director" means any director or alternate representing a Member. (f) "Member" means each of the members that become a signatory to this agreement, including any public entity executing an addendum of the original agreement as hereinafter provided. (g) "Original Member" means Carlsbad, Vista, Leucadia and Buena. (h) "Fiscal Year" means July 1st to and including the following June 30th or any other fiscal year selected by the Authority. 2934n/2062/019 -3- (i) "Facility" or "Facilities" means any real or personal property, building, works or improvements financed by the Authority to carry out the purposes of this agreement. ORGANIZATION 5. Membership. The Members of the Authority shall be the Original Members hereto and such other public entities as may execute this agreement or any addendum hereto as provided in Section 34, and which have not, pursuant to the provisions hereof, withdrawn herefrom. 6. Names. The names, particular capacities, and addresses of the Members at any time shall be as set forth in this agreement and in any addendum hereto or in any amendment hereof or of any such addendum. 7. Designation of Directors. Within thirty (30) days after the execution of this agreement by the Original Members, each Member shall designate and appoint, by resolution of its governing board, one person from its governing board to act as its Director on the Board. Each Member shall also appoint from its governing board one alternate Director for each Director appointed, whose name shall be on file with the Board and who may assume all rights and duties of the absent Director for whom that person is the appointed alternate Director. The Directors appointed shall be a member of the Board of Directors or City Council, as the case may be, of the Member. Each Director shall hold office from the first meeting of the Board after appointment by the respective legislative bodies until a successor is selected. Each Director shall serve at the pleasure of the legislative body of its appointing Member and may be removed at any time, with or without cause, at the sole discretion of such legislative body. A Director shall not receive compensation from the Authority for services, however, a Director may be reimbursed for reasonable expenses incurred in the conduct of the business of the Authority. 8. Principal Office. As provided by law, the principal office of the Authority shall be designated by the Board. The Board is hereby granted full power and authority to change said principal office from one location to another within the boundaries of one of the Members. 9. Meetings. The Board shall meet at the principal office of the Authority or at such other place as may be designated by the Board. The time and place of regular meetings of the Board shall be determined by resolution adopted by the Board, a copy of such resolution shall be furnished to each party hereto. Regular, adjourned and special meetings shall be called and held in the manner as provided in Chapter 9, Division 2, Title 5 of the Government Code of the State of California (commencing at Section 54950). 2934n/2062/019 -4- c>*»^ 10. Quorum. Any three Directors of the Authority shall constitute a quorum for the purpose of the transaction of business relating to the Authority. Unless otherwise herein provided action can be taken at any meeting of the Board by the vote of any three Directors. 11. Powers and Limitations Thereon. All of the power and authority of-the Authority shall be exercised by the Board/ subject, however, to the reserved right of the Members as herein set forth. Unless otherwise provided herein, each Director shall be entitled to one vote and a vote of any three of the Directors of the Authority qualified to vote shall be sufficient for the adoption of any motion, resolution or order and to take any other action deemed appropriate to carry forward the objectives of the Authority. 12. Minutes. The secretary of the Authority shall cause to be kept minutes of regular, adjourned regular and special meetings of the Board, and shall cause a copy of the minutes to be forwarded to each Director and to each of the Members hereto. 13. By-laws. Rules and Regulations. The Board may adopt from time to time such by-laws, rules and regulations for the conduct of its affairs as it may deem necessary. 14. Assent of Members. The assent or approval of a Member in any matter requiring the approval of the legislative body of the Member shall be evidenced by a certified copy of the resolution of the legislative body filed with the Authority. 15. Officers. There shall be selected from the Membership of the Board, a chairperson and a vice chairperson and a secretary. The combined office of treasurer and controller of the Board shall be the Finance Director of the City of Carlsbad. The treasurer shall be the depositary and have custody of all money of the Authority from whatever source. The controller shall draw all warrants and pay demands against the Authority approved by the Board. In addition, the Board shall have the power to appoint such additional officers as it deems necessary. The chairperson and vice chairperson shall hold office for a period of one year commencing July 1st of each Fiscal Year or until the Board appoints new officers, whichever event is later; provided, however, the first chairperson, vice chairperson and secretary appointed shall hold office from the date of appointment to June 30, 1989. Any officer, employee or agent of the Board may also be an officer, employee or agent of any of the Members. The public officer or officers or persons who have charge of, handle, or have any access to any property of the Authority shall be bonded and the amount of their bond shall be designated and fixed in the budget for each Fiscal Year, which may be covered by bonds of a Member. All other staff functions of the Authority shall be provided by Carlsbad, under the direction of its City Manager. 2934n/2062/019 -5- All of the privileges and immunities from liability, exemption from laws, ordinances and rules, all pension, relief, disability, worker's compensation and other benefits which apply to the activity of officers, agents, or employees of any of the Member's when performing their respective functions shall apply to them to the same degree and extent while engaged in the performance of any of the functions and other duties under this agreement. None of the officers, agents, or employees appointed by the Board shall be deemed by reason of their employment by the Board to be employed by any of the Members or subject to any of the requirements of such Members. BUDGETS AND PAYMENTS 16. General Budget. Within sixty (60) days after the first meeting of the Board, a general budget for the balance of the Fiscal Year and the ensuing fiscal year shall be adopted. The initial budget and each succeeding budget shall include but not be limited to the following: (a) the general administrative expenses of the Authority to be incurred during the period covered by the budget; and (b) the allocation among the Members of the amounts necessary to cover the general budget expenditures. After the first full Fiscal Year, at or prior to each June meeting of the Board, a general budget shall be adopted for the ensuing Fiscal Year. 17. Effect of Failure of Approval of a General Budget. If, after one hundred twenty (120) days from the first consideration of a general budget, the budget fails to attain the required vote of the Directors, the approving Director(s) may treat the refusal of a Director to approve the budget as a request by a Member represented by such a Director to withdraw from the Authority, and if there are only the Original Members, such withdrawal would constitute a termination of the Agreement, except as provided in Section 32 hereof. Upon giving the Members represented by nonapproving Directors thirty (30) days' prior written notice, the remaining Members may proceed with the adoption of a revised budget and the nonapproving Members shall be deemed to have withdrawn from the Authority (except as provided in Section 32 hereof) and shall not be obligated for future debts of the Authority nor shall they receive any benefits of the Authority. Any withdrawing Member shall pay its share of all costs incurred with respect to the Authority and any Facility prior to said withdrawal. 18. Maintenance and Operation of Facilities. Except in connection with the exercise of any rights of remedies pursuant to any documents pertaining to the issuance of revenue bonds by the Authority, the Authority shall not maintain 'or operate any Facilities, it being the intent of the Members that the Authority act solely to finance Members' shares of cost of Facilities or Capacity. 2934n/2062/019 -6- 19. Expenditures for the Approved Budget. All expenditures within the designations and limitations of approved budgets shall be made on the authorization of the Board. No—expenditures in excess of those budgeted shall be made without the approval of the Director(s) representing the Member affected by the budget under consideration. 20. Payment of Amounts Due. Except as hereinafter provided, amounts required to be paid by any Member shall be due and payable sixty (60) days after receipt of billing therefor. Any Member not paying the amount due on time shall pay a late charge of one percent {!%) of the principal amount due for each month or fraction thereof that the payment is delinquent, BOND FINANCING 21. Revenue Bonds. The Board shall have the power and authority to issue revenue bonds for the purposes and in accordance with the procedure and requirements set forth in Article 2, Chapter 5, Division 7, Title 1 of. the Government Code of the State of California (commencing at Section 6540), or as an alternative in accordance with the procedures and requirements set forth in Article 4, Chapter 5, Division 7, Title 1 of the Government Code of the State of Caifornia (comencing at Section 6584). FACILITIES CONSTRUCTION 22. Acquisition and Construction of Facilities. No Facilities shall be acquired or constructed by the Board unless the Board has made provision for the financing thereof. Other than in connection with the purchase of capacity or other financing of Facilities relating to the EWPCF (and the exercise of any rights or remedies pursuant to financing documents therefor)/ the Authority shall not own or operate any Facilities. MAINTENANCE AND OPERATION OF FACILITIES 23. Maintenance and Operation of Facilities. The Authority shall not maintain and/or operate any Facility to be acquired or constructed pursuant in whole or in part to Authority financing except to the extent provided for in any bond finance documents. If the Authority is to maintain and/or operate the Facility, it shall do so in an efficient and economical manner and in a manner not detrimental to the Members. The parties recognize that capacity acquired in the EWPCF will be maintained and operated by the Encina Administrative Agency. 2934n/2062/019 -7- ACCOUNTING AND AUDITS 24. Accounting Procedures. Full books and accounts shall be maintained for the Authority in accordance with practices established by, or consistent with, those utilized by the Controller- ofr the State of California for like public entities. In particular, the Authority's controller and treasurer shall comply strictly with requirements of the statute governing joint powers agencies, Chapter 5, Division 7, Title 1 of the Government Code of the State of California (commencing at Section 6500). 25. Audit. The records and accounts of the Authority shall be audited annually by an independent certified public accountant and copies of the audit reports shall be filed with the County Auditor, the State Controller and each participating Member within six (6) months of the end of the fiscal year under examination. PROPERTY RIGHTS 26. Facilities. All Facilities constructed or acquired by the Authority shall be held in the name of the Authority for the benefit of the Members of the Authority in accordance with the terms of this Agreement. 27. Distribution of Assets and Termination of Authority. To the extent that any funds (or property in lieu of funds) received from any Member are used for the acquisition or construction of Facilities, the same shall be recorded on the books of the Authority to the credit of the contributing Member. Upon termination or dissolution of the Authority, the Facilities and any funds in possession of the Authority at such time shall be distributed in kind or sold, and the proceeds thereof distributed to the Members at the time of termination as their interests are recorded on the books of the Authority. Notwithstanding the foregoing, capacity acquired by the Authority in the EWPCF and sold to each Member shall vest in the name of each Member, to the extent of its proportion of the Capacity purchased upon termination or dissolution of the Authority unless title thereto shall have been conveyed to such Member at an earlier date. 28. Liabilities. Any liability incurred by the Authority during the course of its existence shall be discharged from payments to be made to the Authority by the parties in proportion to their approved participation in Facilities of the Authority for which the liability is attributable. Except as hereinbefore provided, the debts, liabilities and obligations of the Authority shall be the debts, liabilities or obligations of the Authority alone and not of the parties to this agreement. 2934n/2062/019 -8- NOTICE OF AGREEMENT 29. Initial Notice. Within thirty (30) days of the effective date of this Agreement the Authority or Carlsbad on behalf of the Authority shall cause a notice of the Agreement to be prepajrejd in the manner set forth in Section 6503.5 of the California Government Code and filed with the Office of the Secretary of State. 30. Additional Notices. Within thirty (30) days of the effective date of any amendment to this Agreement the Authority shall prepare and file with the Office of the Secretary of State the notice required by said Section 6503.5. TERMINATION. RESCISSION. WITHDRAWAL 31. Term. The Authority shall continue until this Agreement is rescinded or terminated as herein provided. 32. Rescission or Termination. This Agreement may be rescinded and the Authority terminated by written consent of all Members or as provided in Section 17 hereof; provided, however, there are no outstanding bond or other debt or lease obligations of the Authority. 33. Withdrawal. Any Member may withdraw from the Authority at,any time upon giving each of the other Members written notice 120 days prior to the end of a Fiscal Year; provided, however, any withdrawing Member shall be obligated for all expenses incurred prior to withdrawal. NEW MEMBERS. AMENDMENTS 34. Admission of New Members. Additional public entities may become Members of the Authority upon such terms and conditions as may be provided by the Board, evidenced by the execution of a written addendum (including an addendum to Exhibit A hereto) to this Agreement signed by all of the Members including the additional Member. 35. Amendments. This Agreement may be amended only by agreement signed by all of the Members. GENERAL 36. Attorney's Fees. In the event an action is commenced by any party to this Agreement to enforce or construe its rights or obligations arising from this Agreement, the prevailing party in such action, in addition to any other relief and recovery awarded by the Court, shall be entitled to recover all statutory costs plus a reasonable amount for attorney's, engineer's and consultant's fees in regard thereto. 2934n/2062/019 -9- 37. Notice. Any notice or instrument required to be given or delivered may be given or delivered by depositing the same in any United States Post Office registered or certified, postage prepaid, addressed to: City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 Attr>: James F. Elliott, Finance Director City of Vista 600 Eucalyptus Vista, CA 92084 Attn: Frank Rowlen, Finance Director Leucadia County Water District 1960 La Costa Avenue P O Box 2397 Carlsbad, CA 92009 Attn: Candie Chaffin, Finance Director Buena Sanitation District Liquid Waste Division 5454 Ruffin Road, Second Floor San Diego, CA 92123 Attn: Dale Hoffland, Department of Public Works 38. Severance Clause. If any section, subsection, sentence, clause or phrase of this Agreement, or the application thereof, to any of the Members for any other person or circumstances, is for any reason held invalid, the validity of the remainder of the Agreement, or the application of such provision to the other Members, or to any other person or circumstances, shall not be affected thereby. Each of the Members hereby declares that it would have entered into this Agreement, and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases, or the application thereof, to any Member or any other person or circumstance be held invalid. 2934n/2062/019 -10- IN WITNESS WHEREOF, the parties have hereunto set theirhands and seals by their respective corporate officers thereunto, duly authorized, the day and year first abovewritten. ATTEST: City Clerk fe^*±£=r^ ATTEST: CITY OF VISTA By: City Clerk ATTEST: BUENA SANITATION DISTRICT By: Secretary ATTEST: LEUCADIA COUNTY WATER DISTRICT By: Secretary 2934n/2062/019 -11- DRAFT BYLAWS OF THE ENCINA JOINT POWERS AUTHORITY FINANCING AGENCY Adopted , 1989 ARTICLE I - THE AUTHORITY Section 1. Name. The official name of the Authority shall be the "Encina Financing Joint Powers Authority". All capitalized terms used herein shall have the meaning specified in the Joint Exercise of Powers Agreement creating the Encina Financing Joint Powers Authority (the "Agreement") on file with each Member. Section 2. Authority Board Members. The Authority shall be administered by a governing board whose members shall be, at all times, the duly appointed representatives of each of the Members (herein the "Authority Board"). The term of office as a member of the Authority Board of each member of the Agency shall terminate when such member of the Authority Board is replaced by a successor duly appointed by the Member which he/she represents; and the successor to such member of the Agency shall become a member of the Authority Board. Section 3. Office. The business office of the Authority shall be at 1200 Elm Avenue, Carlsbad, California, 92008, or at such other place as may be designated by the Authority Board. Section 4. Compensation. Members may receive their actual and necessary expenses, including traveling expenses incurred in the discharge of their duties, but only if and when authorized by the Authority and if there are unencumbered funds available for such purpose. 2966n/2062/019 -2- ARTICLE II - OFFICERS Section 21. Officers. The Officers of the Authority shall be the Chair, Vice-Chair, Secretary, Treasurer and Controller. Section 22. Chair. The Chair of the Authority shall be elected by the Authority Board from among its members. The term of office shall be from the date of his or her election through the date of the first regular meeting of the Authority in the next succeeding calendar year; provided, that he or she shall serve until a successor has been duly elected. The Chair shall preside at all meetings of the Authority, and shall submit such information and recommendations to the Authority Board as he or she may consider proper concerning the business, policies and affairs of the Authority. The Chair also serves as the chief executive officer of the Authority and shall be responsible for execution and supervision of the affairs of the Authority. Except as otherwise authorized by resolution of the Authority Board, the Chair or the Chair's designee shall sign all contracts, deeds and other instruments executed by the Authority. Section 23. Vice-Chair. The Vice-Chair shall be elected by the Authority Board from among its members. The term of office shall be from the date of his or her election through the date of the first regular meeting of the Authority in the next succeeding calendar year; provided that he or she 2966n/2062/019 -3- shall serve until a successor has been elected. The Vice-Chair shall perform the duties of the Chair in the absence or incapacity of the Chair. In case of the resignation or death of the Chair, the Vice-Chair shall perform such duties as are imposed on the Chair, until such time as the members shall elect a new Chair. Section 24. Secretary. The Secretary shall be elected by the Authority Board from among its Members and shall serve at the pleasure of the Authority. The Secretary shall keep the records of the Authority, shall act as Secretary at the meetings of the Authority and record all votes, and shall keep a record of the proceedings of the Authority in a journal of proceedings to be kept for such purpose, and shall perform all duties incident to the office. Section 25. Treasurer. The Finance Director of the City of Carlsbad shall be the Treasurer and the Controller of the Authority, and shall perform the duties set forth in the Joint Exercise of Powers Agreement. Section 26. Election of Officers. Election of officers shall be the first order of business at the first meeting of the Authority, regular or special, held in each fiscal year. Section 27. Authority to Bind Authority. No member, officer, agenda or employee of the Authority, without prior specific or general authority by a vote of the Authority Board, shall have any power or authority to bind the Authority by any contract, to pledge its credit, or to render it liable for any purpose in any amount. 2966n/2062/019 -4- ARTICLE III - EMPLOYEES AND AGENTS Section 31. Appointment of Employees and Agents. The Authority may from time to time request from the City of Carlsbad or any other Member the services of such personnel, counsel or agents/ permanent or temporary, as may be necessary to carry out the business and affairs of the Authority. The Authority Board may in addition employ temporary professional and technical personnel on such terms and at such rates of compensation as the Authority business and affairs, provided that adequate sources of funds are identified for the payment of such temporary professional and technical services. In the absence of contrary direction, the staff of the City of Carlsbad shall act as the staff of the Authority. ARTICLE IV - MEETINGS Section 41. Regular Meetings. Regular meetings shall be held at the business office of the Authority, or at such other place as the Chair may designate, on dates and at a time as fixed by Resolution of the Authority. If at any time any regular meeting falls on a legal holiday, such regular meeting shall be held on the next business day at the same time. At least 72 hours before a regular meeting, an agenda containing a brief general description of each item of business to be transacted or discussed shall be posted at a location freely 2966n/2062/019 -5- accessible to members of the public. The agenda shall specify the time and location of the regular meeting. No action shall be taken on any item not appearing on the posted agenda except as permitted by law. Section 42. Special Meetings. A special meeting may be called at any time by the Chair or upon the request of two of the members of the Authority by delivering written notice to each member and to each person or entity entitled by law to receive such notices. Notices to the Authority Board shall be sufficient if delivered to the City Clerk or Board Secretary of the Governing Board of each Member. Notices to other persons or entities entitled by law to receive notices must be delivered personally or by mail and must be received at least 24 hours before the time of such meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted and shall be posted at least 24 hours prior to the special meeting in a location that is freely accessible to members of the public. No other business shall be considered at such meetings by the Authority Board. Such written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the Secretary of the Authority a written waiver of notice. Such waiver may be given by telegram. Such written notice may also be dispensed with as to any member who is actually present at the time it convenes. 2966n/2062/019 -6- Section 43. Closed Sessions. Nothing contained in these bylaws shall be construed to prevent the Authority Board from holding closed sessions during a regular or special meeting concerning any matter permitted by law to be considered in a closed session. Section 44. Public Hearings. All public hearings held by the Authority Board shall be held during regular or special meetings of the Authority Board. Section 45. Adjourning Meetings and Continuing Public Hearings to Other Times or Places. The Authority Board may adjourn any meeting to a time and place specified in the order of adjournment. Less than a quorum may so adjourn from time to time. If all members are absent from any regular meeting or adjourned regular meeting the Secretary or Acting Secretary of the Authority may declare the meeting adjourned to a stated time and place and shall cause a written notice of the adjournment to be given in the same manner as provided for special meetings unless such notice is waived as provided for special meetings. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the meeting was held within 24 hours after the time of the adjournment. When a regular or adjourned regular meeting is adjourned as provided in this section, the resulting adjourned regular meeting is a regular meeting for all purposes. When an order of adjournment of any meeting fails to state the hour at which the adjourned meeting is to be held, it shall be held at the hour specified for regular meetings. 2966n/2062/019 -7- Any public hearing being held, or any hearing noticed or ordered to be held at any meeting may by order or notice of continuance be continued or recontinued to any subsequent meeting in the same manner and to the same extent set forth herein for the adjournment of the meetings; provided, that if the hearing is continued to a time less than 24 hours after the time specified in the order or notice of hearing a copy of the order or notice of continuance shall be posted immediately following the meeting at which the order or declaration of continuance was adopted or made. Section 46. Meetings to be Open and Public. All meetings of Authority members to take action or to deliberate concerning Authority business and its conduct shall be open and public. All persons shall be permitted to attend any such meetings except as otherwise provided as permitted by law and Section 43 of these bylaws. Section 47. Quorum. Any three Directors shall constitute a quorum for the purpose of conducting the Authority Board's business and exercising its powers and for all other official purposes, except that less than a quorum may adjourn from time to time until a quorum is obtained. 2966n/2062/019 -8- Section 48. Order of Business. At the regular meeting of the Authority, the following shall be the general order of business: 1. Roll Call 2. Approval of Minutes 3. Reports 4. Unfinished Business 5. New Business 6. Matters Not Appearing on the Agenda 7. Adjournment Section 49. Parliamentary Procedure. The rules of parliamentary procedure set forth in Robert's Rules of Order shall govern all meetings of the Authority, except as otherwise herein provided. ARTICLE V - AMENDMENTS Section 51. Amendments to ByLaws. These bylaws may be amended by the Authority at any regular or special meeting by majority vote, provided that the proposed amendment to any particular section is included in the notice of such meeting. 2966n/2062/019 -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDINANCE NO. NS-54 ORDINANCE OF THE CITY OF CARLSBAD, SAN DIEGO COUNTY, CALIFORNIA, AUTHORIZING THE ENCINA FINANCING JOINT POWERS AUTHORITY TO ISSUE REVENUE BONDS IN AN AMOUNT NOT TO EXCEED $50.000.000. RECilALS WHEREAS, the City of Carlsbad (the "City"), the City of Vista, the Buena Sanitation District, and the Leucadia County Water District entered into or will enter into a Joint Exercise of Powers Agreement in March of 1989 (the "Agreement") creating the Encina Financing Joint Powers Authority (the "Authority") pursuant to the provisions of Article 1, Chapter 5, Division 7, Title 1 of the Government Code of the State of California (the "Act"); and WHEREAS, the purpose of the Agreement is to provide for the financing of facilities to provide for the collection, treatment and disposal of wastewater, appurtenances and appurtenant works, specifically as it relates to the Encina Water Pollution Control Facility ("EWPCF"); and WHEREAS, the City has executed and passed the Thirty-Ninth Supplement to the Basic Agreement to Provide For Allocation Of Capacity And Costs of the Encina Phase IV Expansion, which allocates the cost of certain improvements to the EWPCF among the owners thereof; and WHEREAS, pursuant to Section 6547 of the Government Code of the State of California, the power of the Authority to issue revenue bonds shall not be exercised until authorized by the parties to the Agreement; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, DOES ORDAIN as follows: SECTION 1: Subject to the lawful existence of the Authority, the Authority is hereby authorized to issue revenue bonds in an amount not to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exceed $50,000,000 for the purpose of financing all or part of each member's share of the cost of the expansion of capacity of the Encina Water Pollution Control Facility. The bonds are to be secured from, and only from, revenues collected from the respective sewer enterprises of the respective members, and such other funds as each member may make available for such payment. SECTION 2: This Ordinance shall be subject to the provisions for referendum applicable to general law cities. SECTION 3; This Ordinance shall become effective thirty (30) days from the date of its adoption. SECTION 4: The City Clerk is authorized and directed to publish a copy of this Ordinance once in a newspaper of general circulation published in the City and to post a copy of this notice on the bulletin board of the office of the City, said publication and posting to be within fifteen (15) days of the posting or publication shall not affect the validity of this Ordinance. INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 14th day of March , 1989, and thereafter PASSED, APPROVED AND ADOPTED by the Carlsbad City Council at a regular meeting thereof held on the 21st day of March , 1989, by the following vote, to wit: AYES: Council Members Kulchin, Pettine, Mamaux and Larson NOTES: None ABSENT: Council Member Lewis ATTEST: CLAUDE A. VLEWIS, Mayor ANN J. KULCHIN, Mayor Pro-Tern ALETHA L. RAUTENKRANZ, City Clerk (SEAL)