HomeMy WebLinkAbout1989-03-14; City Council; 9916; Encina Phase IV Financing Formation of Joint Powers AuthorityCIPC OF CARLSBAD - AGENQ BILL
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TITLE:
ENCINA PHASE IV FINANCING -
FORMATION OF JOINT POWERS AUTHORITY
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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
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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)