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HomeMy WebLinkAbout1990-11-20; City Council; 10919; Revised Basic Agreement and Revised Establishment Document for Encina Joint Powers AgencyCARLSBAD — AGEND >LL 11-20-90 DEPT.ENG TITLE:REVISED BASIC AGREEMENT AND REVISED ESTABLISHMENT DOCUMENT FOR ENCINA JOINT POWERS AGENCY RECOMMENDED ACTION: Council approve Resolution authorizing the Mayor to execute the Revised OI O OO Basic Agreement for ownership, operation and maintenance of the Encina Basin Joint Sewage System and the Revised Establishment Document for the Encina Administrative Agency. ITEM EXPLANATION: For a number of years the Encina Joint Advisory Committee (JAC) through its Technical Advisory Committee (TAG) has been working on a consolidation, update and streamlining of the Encina Basic Agreement. The attached documents are the product of those efforts. Revision primarily involves deletion of obsolete provisions related to past plant expansions, boundary adjustment and other superseded items. The intent has been to establish a concise document that in the future will be revised rather than supplemented as in the past. Future expansions, land acquisition and facility operations will be accomplished by specific separate agreements, leaving the basic document to deal with normal operational issues. Significant changes in the document include: 1 . Trunk line and pump stations jointly owned by Vista and Carlsbad have been deleted from the Joint System definitions. Encina WPCF retains the obligation for maintenance of the Buena Vista and Aqua Hedionda Pump Stations. New maintenance obligation will be established by separate agreement. 2. Section 9 dealing with Capacity rights has been greatly expanded to detail penalties and charges for capacity infringements and establishment of a five percent (5%) capacity pooling program. 3. Continuous capacity monitoring and report of flow commitments are required. 4. The budget has been divided between operations and capital improvements to allow separate approvals with a unanimous vote by the agencies. 5. A new Service Area map is being approved with minor adjustments to the Vallecitos and Buena Sanitation District boundaries. No revisions are proposed for Carlsbad. Each agency has the right to provide service within the service area and to lands annexed into their service boundary. Service outside of the service area, City or District will require unanimous approval of the member agencies. FISCAL IMPACT: None EXHIBITS 1 . Resolution No. 2. y Revised Basic Agreement 3. i Revised Establishment Document 4. Exhibit A to Revised Basic Agreement is on file with the City Clerk. 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. 90-412 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE THE REVISED BASIC AGREEMENT FOR THE ENCINA BASIN JOINT SEWAGE SYSTEM AND THE REVISED ESTABLISHMENT DOCUMENT FOR THE ENCINA JOINT POWERS AGENCY. WHEREAS, the City of Carlsbad is party to the Encina Joint Powers Basic Agreement entered into on July 13, 1961 for the acquisition, construction, ownership, operation and maintenance of the Encina Joint Sewer System; and WHEREAS, the Basic Agreement and the Establishment Document for the Encina Administrative Agency have been revised to provide more concise documents for the agency to operate under; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, as follows: 1. That the above recitations are true and correct. 2. That the Mayor is hereby authorized to execute the Revised Basic Agreement for the Encina Basin Joint Sewage System and the Revised Establishment Document for the Encina Joint Power Agency. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 20th day of Nov. , 1990 by the following vote, to wit: AYES: Council Members Lewis, Larson, Mamaux and Pettine NOES: None ABSENT: Council Me ATTEST: , Mayor ALETHA L RAUTENKRANZ, City Clerk (SEAL) -1 - REVISED BASIC AGREEMENT FOR OWNERSHIP, OPERATION AND MAINTENANCE OF A JOINT SEWAGE SYSTEM. Ref: 9039 THIS AGREEMENT (hereinafter referred to as the Revised Basic Agreement) , is made and entered into this day of , 1990, by and among the CITY OF VISTA, a general law city (hereafter VISTA) , the CITY OF CARLSBAD, a general law city (hereafter CARLSBAD), the BUENA SANITATION DISTRICT, a County Sanitation District (hereafter BUENA), the VALLECITOS WATER DISTRICT, a County Water District (hereafter VALLECITOS), the LEUCADIA COUNTY WATER DISTRICT, a County Water District (hereafter LEUCADIA), and the Encinitas Sanitary District, a Sanitary District (hereafter ENCINITAS). RECITALS WHEREAS, the parties hereto are responsible for providing sewage collection, transmission, treatment and disposal services in their respective service areas and are authorized to contract with other parties for the provision of such services: and WHEREAS, on July 13, 1961, VISTA and CARLSBAD entered into a Basic Agreement pursuant to Chapter 5 of Division 7 of Title 1 of the California Government Code to acquire, construct and operate a Joint Sewer System; and WHEREAS, the Basic Agreement provided that other municipal corporations and public districts or agencies may become parties to the Basic Agreement, thereby becoming members of the Encina Joint Powers; and WHEREAS, on January 6, 1964, BUENA became a member of the Encina Joint Powers and acquired certain interests and capacity rights in the Joint System; and WHEREAS, on March 22, 1965, VALLECITOS (then San Marcos) became a member of the Encina Joint Powers and acquired certain interests and capacity rights in the Joint System; and WHEREAS, on August 17, 1971, LEUCADIA and ENCINITAS became members of the Encina Joint Powers and acquired certain interests and capacity rights in the Joint System; and WHEREAS, it is the desire of the parties hereto to (a) continue functioning as the Encina Joint Powers and (b) modify and condense the enabling legal documents for the Joint Powers by entering into a Revised Basic Agreement pursuant to Article 1, Chapter 5, Division 7, Title 1 of California Government Code relating to the joint exercise of powers, for the purposes of planning, designing, owning, operating, and maintaining a joint _ 1 «_ 10/12/90 sewer system and concurrently reestablishing, by separate agreement, the Encina Adminstrative Agency. NOW THEREFORE, THE PARTIES HERETO COVENANT WITH EACH OTHER AS FOLLOWS: Section 1 DEFINITIONS For the purposes of this agreement the following terms shall have the meanings indicated: 1.1 Joint Advisory Committee fJAC). A committee composed of representatives of the member agencies that advises both the member agencies and the Operator/Administrator on issues relating to the Joint System. 1.2 Joint System. The Encina Water Pollution Control Facility (Unit I) and the Encina Ocean Outfall (Unit J), including all related land, rights of way, and appurtenances. 1.3 Member Agencies. The six members of the Encina Administrative Agency: Vista, Carlsbad, Buena, Vallecitos, Leucadia, and Encinitas. 1.4 Operator/Administrator. The public agency designated by the member agencies as being responsible for operating, maintaining, and administering the Encina Joint System. Since August 1, 1988, the Operator/Administrator has been the Encina Administrative Agency. Section 2 JOINT PARTICIPATION The member agencies shall participate jointly in the planning, design, acquisition, construction, ownership, operation, maintenance and use of the Joint System (including any future expansions thereof), and shall pay for such activities as hereinafter specified. Section 3 AREA TO BE SERVED BY THE JOINT SYSTEM 3.1 Existing Service Area. The area to be served by the Joint System in shown on Exhibit A, which is attached hereto and made a part of this Revised Basic Agreement by reference. Areas lying outside a member agency's legal boundary but inside that member agency's Exhibit A service area may be served by the member agency, providing the member agency provides assurance in the form of a legally binding agreement that these discharges will meet all applicable rules and regulations. Any wastewater received from outside a member agency's legal boundary pursuant to such agreement shall be regarded as the wastewater of the member agency for the purposes of billing, capacity, and source control. - 2 - 10/12/90 3.2 Revisions to the Service Area. Areas lying outside the Exhibit A service areas of the member agencies may be served, provided such areas are annexed by a member agency. Notification of such annexations must be made in writing to the Joint Advisory Committee so that Exhibit A can be modified as appropriate. Member agencies can also request alteration of their Exhibit A service areas; such modifications must be approved in writing by all member agencies, as evidenced by receipt of resolutions from the governing bodies of all member agencies. Member agencies whose Exhibit A service areas are enlarged shall be responsible for providing adequate capacity. 3 .3 Prohibition on Discharges from Outside the Exhibit A Service Area. Each member agency agrees that it will neither permit nor knowingly countenance the use of the Joint System, directly or indirectly, for the disposal of wastewater originating outside of its legal boundary except in the above manner, extent and conditions. Section 4 ENLARGEMENT OF THE JOINT SYSTEM Any member agency having first obtained the consent of Carlsbad and Vista, may at its sole cost and expense enlarge any portion of the Joint System in which it is the owner of capacity rights and any increased capacity in such unit or portion resulting from such enlargement shall belong to the member agency paying the cost and expense thereof. No member agency shall unreasonably withhold consent to such enlargement. Any such enlargement shall be constructed in accordance with plans and specifications approved by Carlsbad and Vista. Section 5 PROTECTION OF THE JOINT SYSTEM/SOURCE CONTROL 5.1 Protection of the Joint System. The Joint System shall not be used by any member agency for any purpose other than the conveyance, treatment or disposal of wastewater which shall be construed to mean domestic sewage and trade wastewaters. Each member agency shall adopt and enforce ordinances, resolutions, rules and regulations, concerning the type and condition of wastewater permitted to be discharged into the sewers under its control and shall prohibit the discharge of any wastewater which would be detrimental to the Joint System. Such ordinances, resolutions, rules and regulations shall reflect the applicable federal and state statutes and regulations and shall be consistent with the Operator/Administrator's industrial pretreatment regulations. 5.2 Prohibitions. No member agency shall allow excessive infiltration of any surface or storm waters to be discharged directly or indirectly into the Joint System. No member agency shall allow cooling water or other unpolluted industrial wastewater to be discharged directly or indirectly into the Joint - 3 - 10/12/90 System without the consent of all other member agencies. No member agency shall authorize a discharge from any groundwater cleanup site unless the discharge is authorized in advance by the Operator/Administrator. Section 6 CAPACITY AND USE OP CAPACITY (CAPACITY INFRINGEMENT) Each member agency shall own and enjoy a perpetual right to use its Joint System capacity in the proportions set forth immediately below herein. No member agency shall in any way grant, encumber, limit or restrict its interest in any part of the Joint System for any purpose other than the treatment and disposal of wastewater, or use the Joint System or any part thereof to a greater percentage than its capacity rights, except as set forth in Sections 9.4 and 9.5, without the prior written consent of the other member agencies, provided that no such excessive use without written consent shall be construed as a waiver of capacity rights by any member agency. Section 7 CAPACITY MONITORING Each member agency shall participate in a joint flow metering system, operated and administered by the Operator/Administrator, and facilitate such measurements of flow into the Joint System as needed for billing purposes and to verify that each agency is within its capacity rights. This metering system shall be maintained according to a separate agreement executed by the Operator/Administrator and the member agencies. Section 8 ACQUISITION/SALE OF EXCESS CAPACITY In the event that any member agency hereafter requires additional capacity in the Joint System and capacity is available from another member agency, the capacity may be licensed, leased or purchased as necessary. Such lease or purchase shall be on terms as are hereafter agreed upon by the member agencies involved. In the event an inter-agency capacity agreement is adopted, the Joint Advisory Committee shall be notified in writing. Licensing, lease or purchase shall be subject to the terms and conditions established in Sections 9.4 and 9.5. Section 9 CAPACITY RIGHTS IN UNITS 9.1 Existing Capacity. Subject to Section 9.2 hereof, until the completion of Phase IV construction, the capacity rights shall be as follows: - 4 - 10/12/90 Unit I MGD — % Unit J MGD — % VISTA CARLSBAD LEUCADIA VALLECITOS BUENA ENCINITAS TOTAL 6.75 5.72 3.75 4.00 1.03 ,25 22.5 30.00 25.40 16.67 17.78 4.59 5.56 100.00 5.97 8.15 4.98 05 16 20 5, 3, 2, 29.51 20.22 27.61 16.89 17.12 10.71 7.45 100.00 Capacity rights in Unit I (Treatment Plant) are based on average daily flow at full secondary treatment. Capacity rights in Unit J (Ocean Outfall) are based on average daily flow to the outfall. This capacity rating assumes that the wet weather peaking factor on the flows to Unit J (including treated flows from Unit I and reclamation failsafe flows) shall continue to be less than 2.00, and all the member agencies agree to make good faith efforts to ensure that the wet weather peaking factor on the flows to Unit "J" remains below 2.00. 9.2 ALLOCATION OF INTERIM OWNERSHIP AND CAPACITY IN UNIT I Interim Unit I (Liquid and Solids) ownerships as of July 1, 1990 during construction of Phase IV and based on 50% completion, shall be as follows: AGENCY VISTA CARLSBAD BUENA VALLECITOS LEUCADIA ENCINITAS TOTAL LIQUID CAPACITY (MGD) 6.39 6.23 1.33 4.72 4.44 1.29 24.40 OWNERSHIP % 26.18 25.53 5.44 19.36 18.21 5.28 100 SOLIDS CAPACITY fMGDl 7.14 6.94 1.93 5.25 5.21 1.44 27.90 OWNERSHIP 25.59 24.86 6.92 18.81 18.67 5.15 100 9.3 Post Phase IV Construction Capacity.Upon completion of Phase IV construction, capacity rights shall be as follows: - 5 - 10/12/90 Unit I Liquid MGD — % Solids MGD — Unit J Disposal MGD — % VISTA: CARLSBAD: BUENA: VALLECITOS: LEUCADIA: ENCINITAS: TOTAL 8.05 9.24 2.26 7.54 7.11 1.80 22.36 25.67 6.28 20.94 19.75 5.00 8.05 9.24 3.51 7.54 7.86 1.80 21.18 24.32 9.24 19.84 20.68 4.74 8.05 9.24 3.51 7.54 7.86 1.80 21.18 24.32 9.24 19.84 20.68 4.74 36.0 100.00 38.0 100.00 38.0 100.00 The total disposal capacity of Unit J shall be 38.0 MGD average daily flow. This capacity rating assumes that the wet weather peaking factor on the flows to Unit J shall continue to be less than 2.13, and all the parties hereto agree to make good faith efforts to ensure that the wet weather peaking factor on the flows to Unit J remains below 2.13. 9.4 Interim Capacity Infringement. During the period of interim Unit I ownership and capacity allocations prior to Phase IV completion, as described in Section 9.2 above, the Member Agencies agree that when any Member Agency's Unit I flows exceed its interim capacity allocation for the treatment of solids, liquids, or both, for any continuous three-month period, such Member Agency shall purchase temporary capacity equal to such excess from all of the Member Agencies with such unused capacity rights on a pro rata basis. Such flows shall be based on measured (ADS) flows, to the maximum extent feasible. The use of capacity on a temporary basis shall be paid for based upon the August 1988 Capacity Management Report calculation allocating 50 percent of the value of the available capacity to the treatment of solids and 50 percent to the treatment of liquids, for a total value of $72,500 per mgd per year. 9.5 Post Phase IV Capacity Infringement. Following Phase IV completion, the member agencies agree to make available up to 5 percent of their respective shares of Encina's total capacities, as set forth in Section 9.3, through a reserve capacity pool, in accordance with the following terms and conditions: a. Flow Calculation. For the purposes of calculating payments due for licensing under this section, flows shall be based on measured (ADS) flows, to the maximum extent feasible. Solids loading flows shall be based on the total flow originating within each member agency. Voting rights, as described in Section 12 shall be in no way affected by temporary use of reserve capacity under this section. Total Reserve Capacity is the total capacity shown in paragraph (g), below. b. Monitoring of Capacity Demand. Each agency shall provide monthly reports to EAA regarding future capacity committed, based - 6 - 10/12/90 V...V* upon its acceptance of applications for or issuance of any building permits, letters of availability, certificates or other entitlements for use which represent that sewer capacity is available to the applicant or project, or which enforceably or practically commit the agency to provide future sewer service. Reports shall be submitted in such form as the Board of EAA may require. Before the measured and committed flows reach 75% of Encina's total capacity (per Section 9.3), the EAA shall initiate a program to ensure adequate capacity to meet projected needs. c. Excess Use a Trespass. Any use of capacity in excess of 95% of their respective share of Encina's total capacity (per Section 9.3) plus 50% of the Total Reserve Capacity, or otherwise in violation of this section, shall be considered a trespass. At the request of any member agency, EAA shall, and is hereby authorized to specifically enforce the terms of this section (Section 9.5) against a member agency or agencies on behalf of the remaining member agencies, including through commencement of a proceeding at law or equity. The parties agree that specific enforcement is a proper remedy in that payment of damages is not an adequate remedy for the potential losses to any member agency resulting from the loss of capacity. For example, replacement of capacity may be impractical and the consequences for the economic development of the members are not readily subject to quantification. Each member agency hereby consents to the commencement of such action or actions by EAA, and waives any right it may have to further approval of such actions under the joint powers agreement creating and establishing EAA. In addition to any injunctive relief, EAA may seek consequential damages on behalf of the remaining member agencies. In any such action, the prevailing party shall be entitled to attorney's fees and costs. d. Indemnity and Hold Harmless. In addition to payment of the amount specified herein, each agency agrees to indemnify, defend and hold harmless the EAA and the other member agencies for any claim, demand, cost, penalty, fine or damage (including reasonable attorney's fees and costs of investigation), arising out of its violation of this section, whether resulting from the agency's active or passive, negligent or intentional act or failure to act to prevent a violation, and notwithstanding the active or passive neglience of those member agencies which are in compliance with the provisions of this section. e. License Payments. When any member agency's flows exceed 100% of its capacity allocation for the treatment of solids, and/or treatment and/or disposal of liquids, for any continuous three- month period, such member agency shall pay for the use of such capacity from the reserve capacity pool in accord with the schedule of values, as adjusted each July 1 (commencing in July 1991) by updating the facility spreadsheet to include any additional and changed capital project costs, and to reflect the current ENRLA construction cost index, as follows: - 7 - 10/12/90 (1) Any portion of reserve up to 50% of Total Reserve Capacity: $ 84,300 per MGD of Unit I liquid capacity per year $133,500 per MGD of Unit I solids capacity per year $ 36,000 per MGD of Unit J capacity per year (2) The use of reserve amounts over 50% of Total Reserve Capacity shall be a violation of this section. In addition to any other remedy provided herein, or available to EAA or the member agencies, an agency shall pay for such use: $140,500 per MGD of Unit I liquid capacity per year $222,500 per MGD of Unit I solids capacity per year $ 60,000 per MGD of Unit J capacity per year Payments to member agencies with unused reserve shall be made annually. Payments from member agencies shall be made quarterly to the EAA and held in a special account. f. Restrictions on Use Over 40% of Reserve. If at any time any agency shall have enforceably or practically committed to provide future sewer service which, when added to its then existing actual flows, equals 95% of its allocated capacity (per Section 9.3) plus 40% of the Total Reserve Capacity, such agency shall: 1. Immediately halt the acceptance or issuance of any building permits, letters of availability, certificates or other entitlements for use which represent that sewer capacity is the agency to provide future sewer service. 2. Immediately inform EAA, in writing, that it has reached this threshold, of the actions it has taken to implement (e) (1) above, and of its intention to present a plan to EAA, within 30 days, for capacity management to prevent the agency from exceeding use of 50% of the Total Reserve Capacity. g. Reserve Capacity. Upon completion of construction, reserve capacity shall be as follows: Unit I Liquid MGD — % Solids MGD — % Phase Unit J Disposal MGD — % IV VISTA: .40 22.36 CARLSBAD: .46 25.67 BUENA: .11 6.28 VALLECITOS: .38 20.94 LEUCADIA: .36 19.75 ENCINITAS: .09 5.00 .40 .46 .18 .38 .39 .09 21.18 24.32 9.24 19.84 20.68 4.74 ,40 ,46 ,18 ,38 ,39 ,09 21.18 24.32 9.24 19.84 20.68 4.74 TOTAL RESERVE 1.8 100.00 1.9 100.00 1.9 100.00 10/12/90 - 8 - h. Sole Method of Allocation. No agency shall provide capacity to any other member agency except pursuant to this section without the unanimous consent of the member agencies; provided that an agency may agree to provide additional capacity on a temporary basis to an agency which has used the maximum reserve capacity authorized by this section if: (1) such arrangement provides for payments at rates not less that the maximum reserve capacity rate per paragraph (e)(2), above; and (2) the capacity so provided does not reduce the Total Reserve Capacity available. Section 10 DEFINITION OF PHASE IV COMPLETION For purposes of Phase IV capacity allocated under Section 9, "completion" is defined as the time when the entire additional treatment train is available for use in compliance with regulatory permits (NPDES APCD, etc.) and the Western Summit/TIC construction contract. Section 11 CAPACITY RIGHTS FOR RECLAMATION 11.1 Future Reclamation. Any member agency, at its own expense, may, and shall have the right to, reclaim water from any wastewater in the Joint System which emanates within the jurisdiction of the respective member agency. And, subject to the following limitations, each member agency shall have the right to install facilities for the reclamation of water from wastewater. Any proposed reclamation shall require the approval of all the member agencies in the event that the proposed reclamation facility is designed and/or constructed such that (i) any solids or non- treated effluent from any such facility may be discharged into Unit I of the Joint System and/or (ii) any reclaimed water may be discharged into Unit J of the Joint System. Such approval shall not be withheld unless the use of the proposed reclamation facility would adversely affect one or more of the member agencies and the reclaimer cannot reasonably mitigate the adverse impact. Nothing in this section shall be construed so as to require approval by the member agencies as to the geographic location of a reclamation facility constructed solely within the boundaries of any member agency. 11.2 Existing Reclamation. Section 11.1 above pertains to all future reclamation facilities. Currently constructed facilities may be operated to their capacity without further action by owners. The current reclamation facilities and capacities are as follows: RECLAMATION ENTITY FACILITY CAPACITY CARLSBAD Calavera Hills 1.20 MGD LEUCADIA Gafner 0.75 MGD VALLECITOS Meadowlark 2.00 MGD BUENA Shadowridge 1.16 MGD _ 9 _ 10/12/90 Section 12 JOINT ADVISORY COMMITTEE The member agencies have created a Joint Advisory Committee (JAC) to advise the member agencies and the Operator/ Administrator. JAC shall continue in this advisory role. 12.1 Powers. Recommendations of JAC shall be advisory only. The JAC shall have the following responsibilities: 12.1.1 To review the operation and maintenance of the Joint System, including the cost thereof, and make reports and recommendations to the governing bodies of the member agencies; 12.1.2 To review and make recommendations regarding proposed expansion, enlargements or modifications of the Joint System to the governing bodies of the member agencies; and 12.1.3 To review and make recommendations regarding contracts, budget matters, regulations, policies, permits and other documents and issues as appropriate to the Operator/Administrator. Each report and recommendation of the JAC permitted by this Section shall be considered as having been made by all the member agencies when made to the Operator/ Administrator and made in accordance with the voting rights and percentages set forth below in Section 12.4.4. 12.2 Representation on JAC. JAC shall be constituted by two appointed representatives from each member agency, with one alternate for each appointed representative. JAC representatives may, but need not, be members of the governing bodies of the member agencies. 12.3 Officers of JAC. JAC shall elect its own officers, which shall include a Chairman, Vice-chairman, and Secretary. The Chairman and Vice-chairman shall be JAC representatives and the Secretary may, but need not, be a JAC representative. 12.4 Meetings of the JAC. 12.4.1 Regular Meetings. The JAC shall provide for its regular meetings; provided, however, it shall hold at least one regular meeting per month. The dates, hour, and place of the regular meetings shall be established by JAC. 12.4.2 Ralph M. Brown Act. All meetings of the JAC, including, without limitations, regular, adjourned regular, and special meetings, shall be called, noticed, held, and conducted in accordance with the provisions of the Ralph M. Brown Act (commencing with Section 54950 of the California Government Code). - 10 - 10/12/90 12.4.3 Minutes. The JAC Secretary shall cause to be kept minutes of all meetings of the JAC, and shall cause a copy of the minutes to be forwarded to each JAC representative. 12.4.4 Vote. The total vote of all members of the JAC shall equal 100%. When voting on a matter involving the Treatment Plant (Unit I) or the Ocean Outfall (Unit J), each JAC representative's percentage vote shall equal one-half of the percentage of that unit's capacity owned by the representative's agency. If only one of an agency's representatives is present, this representative's percentage vote shall equal the total percentage of that unit's capacity owned by the representative's agency. If both representatives are absent, each alternate shall have a percentage vote equal to one-half of the percentage capacity of the alternate's member agency; provided, however, at any JAC meeting where any member agency is represented by only one alternate, the alternate shall have a percentage of vote equal to the total percentage of the capacity of the agency he/she represents. 12.5 Rules. JAC shall adopt rules and regulations for the place, time and conduct of JAC meetings. 12.6 Payment for Attendance. The Operator/ Administrator (or, if requested by the appointing member agency, that member agency as to its representatives) shall pay each representative (or alternate who attends a meeting by reason of the absence of a representative) an attendance fee of twenty-five ($25.00) for each JAC meeting, provided that such payment does not exceed fifty dollars ($50) per calendar month. Attendance fees shall be paid monthly. 12.7 Assistance from the Operator/Administrator. The Operator/Administrator shall provide supplies and clerical and secretarial help for JAC. The cost of such supplies and assistance shall be considered part of the expense of operating and maintaining the Joint System. Section 13 OPERATOR/ADMINISTRATOR The Joint System shall be maintained and operated by any one of the parties hereto, or by another Public Agency, which party or other public agency shall be known as the Operator/ Administrator. 13.1 General Duties. 13.1.1 Joint System. The Operator/Administrator shall maintain and operate the Joint System, and shall preserve it in good repair and working order, all in accordance with recognized sound engineering and accounting practices and local, state, and federal laws and regulations. - 11 - 10/12/90 13.1.2 Pump Stations. The Operator/ Administrator also shall operate and maintain, at the expense of the Cities of Vista and Carlsbad, the Agua Hedionda and Buena Vista Pump Stations (formerly Units B and C of the Joint System) within an annual budget prepared by the Operator/Administrator and approved by Vista and Carlsbad. 13.1.3 Other Facilities. The Operator/ Administrator shall have the authority to operate and maintain other facilities outside the Joint System as recommended unanimously by JAC and in accordance with Operator/Administrator executed operation agreements, which may include budgeting responsibilities. 13.2 Designation and Specific Powers. Effective August 1, 1988, the member agencies created a public agency known as the Encina Administrative Agency (EAA) to serve as the Operator/Administrator of the Encina Joint System. The EAA shall continue to serve as the Operator/Administrator until such time as EAA is terminated by written consent of a majority of the member agencies, evidenced by certified copies of resolutions by their governing bodies. The organization, administration, rules, and specific powers of the EAA shall be as set forth in the Revised Establishment Document establishing the EAA. Upon termination of the EAA and replacement with another Operator/Administrator, employees of the EAA shall become the employees of the new Operator/Administrator subject to existing employment contracts, seniority, retirement rights and any other employee benefits or rights now enjoyed by those employees. Section 14 BUDGETING AND ACCOUNTING 14.1 Annual Budgets. Annually, the Operator/ Administrator shall prepare an operation, maintenance, and administration budget (hereafter referred to as the 0 & M budget) and a capital improvement program budget (hereafter referred to as the capital budget.) The budgets shall be prepared in accordance with generally accepted accounting principles. 14.1.1 Preparation of Estimated O & M Budget. No later than May 1 of each year, the Operator/Administrator shall prepare an estimated budget of the (a) amount of money required to operate, maintain and administer the Joint System during the ensuing fiscal year, and (b) the proportionate amount to be paid by each member agency. Such estimate shall be based on the total operation, maintenance, and administration costs during the current fiscal year as such costs are set forth in the current approved budget for the Joint System. 14.1.2 Approval of Estimated 0 & M Budget. Each estimated 0 & M budget adopted by the Operator/Administrator shall be forwarded to the JAC for consideration and for submission to the member agencies for approval. The Operator/Administrator's - 12 - 10/12/90 estimated O & M budget shall be deemed effective upon unanimous approval by the member agencies and upon the receipt by the Operator/Administrator of certified copies of approving resolutions or minute orders from the governing bodies of each of the member agencies. Until such time as formal approval has been received from each member agency, the estimated O & M budget shall constitute merely a proposed budget, subject to consideration or revisions. The 0 & M budget shall be considered separately from the capital budget and may be approved independently. In the event a proposed budget is not approved, the Operator/Administrator shall continue to operate using the O & M budget figures from the previous fiscal year. 14.1.3 Prepaid 0 & M Contributions. Each member agency shall prepay its estimated portion of the budgeted operation, maintenance, and administration costs and shall pay its actual portion of the costs as determined pursuant to Section 16 of this Revised Basic Agreement. Quarterly on July 1, October 1, January 1, and April 1, the Operator/Administrator shall bill the member agencies and the member agencies shall deposit with the Operator/Administrator one fourth of the annual cost of operation, maintenance, and administration for the following quarter as estimated in Section 16. Provided, however, the last invoice for each fiscal year may be increased or decreased to adjust the estimated amount payable based upon the estimated total expenses for the full year and the estimated total amount and strength of wastewater received from each member agency. In the event that at the end of any fiscal year the amount paid by a member agency exceeds the amount that should have been charged, the excess shall be credited to the member agency the following fiscal year. In case of an underpayment, the member agency shall be billed by the Operator/Administrator and shall pay for the deficiency within 15 days. Each member agency shall make quarterly contribution payments to the Operator/Administrator promptly at the time they become due. 14.1.4 Actual 0 & M Contributions. The member agencies agree to contribute from their treasuries the actual annual costs of the Joint System as divided among the member agencies pursuant to Section 17 of this Revised Basic Agreement. Such costs shall include the actual costs of (1) all materials and supplies used or purchased for the operation, maintenance, or administration of the Joint System, (2) all contracts let by the Operator/Administrator for the performance of budgeted O & M work, and (3) the salaries and wages of all Operator/ Administrator employees providing such services, including vacations and sick leave benefits, workers' compensation, social security and retirement payments, and health insurance. Such costs shall be paid out of the funds deposited with the Operator/Administrator by the member agencies; provided however, the failure of any member agency to pay the Operator/Administrator shall not relieve the other member agencies of their obligation to pay their - 13 - 10/12/90 proportionate shares of operation, maintenance, and administration of the Joint System. 14.1.5 Preparation of Estimated Capital Budget. No later than May 1 of each year, the Operator/Administrator shall prepare an estimated budget of the amount of money required for capital improvement projects during each of the next five fiscal years and over the next twenty years. The estimated capital budget shall show the estimated amount to be paid by each member agency. Such estimate shall be based on existing and/or projected ownership as appropriate. 14.1.6 Approval of Estimated Capital Budget. Each estimated capital budget adopted by the Operator/Admini- strator shall be forwarded to the JAC for consideration and for submittal to the member agencies for approval. The Operator/ Administrator's estimated capital budget shall be deemed effective upon unanimous approval by the member agencies and upon the receipt by the Operator/Administrator of certified copies of approving resolutions or minute orders from the governing bodies of each of the member agencies. Until such time as formal approval has been received from each member agency, the estimated capital budget shall constitute merely a proposed budget, subject to consideration or revisions. The capital budget shall be considered separately from the O & M budget and may be approved independently. 14.1.7 Prepaid Capital Contributions. Each member agency shall prepay its actual portion of the capital costs except as noted in Section 18 of this Revised Basic Agreement. Quarterly on July 1, October 1, January 1, and April 1, the Operator/Administrator shall bill the member agencies and the member agencies shall deposit with the Operator/Administrator one fourth of the actual estimated capital costs except as otherwise specified in Section 18. Any capital funds remaining at the end of the fiscal year shall be retained and credited toward the member agencies for the following fiscal year. Each member agency shall make quarterly contribution payments to the Operator/Administrator promptly at the time they become due. 14.1.8 Actual Capital Contributions. The member agencies agree to contribute their actual capital costs pursuant to Section 18 of this Revised Basic Agreement. Such costs shall include the actual costs of (1) all materials and supplies used or purchased for capital improvement of the Joint System and (2) all contracts let by the Operator/Administrator for the performance of capital improvement projects. Provided however, the failure of any member agency to pay the Operator/ Administrator shall not relieve the other member agencies of their obligation to pay their proportionate shares of the capital expenses of the Joint System. - 14 - 10/12/90 n Section 15 ASSISTANCE TO OPERATOR/ADMINISTRATOR When requested by the Operator/Administrator, the Joint Powers shall provide assistance, and make recommendations to said Operator/Administrator relative to all services and duties it is to perform under the terms of this Revised Basic Agreement. Section 16 RIGHTS OF WAY AND LAND ACQUISITIONS The Operator/Administrator and/or any of the member agencies may, as agreed upon in writing by all the member agencies, act on behalf of the member agencies in acquiring lands and rights of way necessary for the operation, maintenance, ownership, and use of the Joint System. Section 17 PAYMENT OF OPERATION AND MAINTENANCE EXPENSES 17.1 Allocation of Expenses. All operation, maintenance, and administration expenses for Units I and J of the Joint System, hereafter referred to as O & M expenses, shall be paid by each member agency based on each member agency's percentage of ownership and usage in these units. For the purposes of this section the following definitions shall apply: "usage" shall mean the costs for power, chemicals, maintenance, and other sewage treatment, solids handling and disposal processes which result from wastewater entering Unit I or Unit J; "ownership" shall mean the costs for insurance, administration expenses, laboratory expenses, plant operations, services, and maintenance, and other wastewater collection and treatment, solids handling and effluent disposal costs which are incurred irrespective of the amount of wastewater which enters Unit I or Unit J. 17.2 Payment Schedule. Each member agency shall pay its proportionate share of the operation, maintenance and administration expenses in accordance with Section 13.1 of this Revised Basic Agreement. 17.3 Revenue from By-Products. Any revenue received from the sale of fertilizer or other by-products arising out of the operation of the Joint System shall be apportioned to each member agency in the same proportion as their share of the 0 & M expenses for the Joint System in the year in which the revenue is received. Section 18 PAYMENT OF CAPITAL EXPENSES 18.1 Allocation of Expenses. Unless otherwise specified herein, capital expenses shall be allocated based on existing or projected Unit I or Unit J ownership as appropriate. Exceptions are as follows: - 15 - 10/12/90 18.1.1 Phase IV Expansion. Phase IV capacity and costs are allocated according to the methodology shown in Exhibit B, attached hereto and made part of this Revised Basic Agreement by reference. 18.1.2 Joint Flow Metering System. Each member agency is responsible for the capital expenses of meters and monitors serving its respective service area. Capital expenses for the monitors serving the entire Exhibit A service area shall be paid on the basis of Unit J flow. 18.1.3 Encina Sewage Solids Management Program. All expenses shall be allocated in accordance with the terms of a separate agreement to be adopted unanimously by the member agencies. 18.1.4 Additional Land/Right of Way Acquisition. All expenses shall be allocated in accordance with the terms of a separate agreement to be adopted unanimously by the member agencies. 18.2 Payment Schedule. Unless otherwise specified herein, capital expenses shall be prepaid on a quarterly basis. Exceptions are as follows: 18.2.1 Phase IV Expansion, Phase IV contract expenses approved by EAA shall be paid once a month based on invoices from the contractor, the design engineer, and the construction manager. The payments will vary over the duration of the job. The Operator/Administrator shall notify the member agency financial representatives of the amounts needed following receipt of each month's invoices. Final project payments shall be adjusted as described in Exhibit B. 18.2.2 Encina Sewage Solids Management Program. All expenses shall be paid in accordance with the terms of a separate agreement to be adopted unanimously by the member agencies. 18.2.3 Additional Land/Right of Way Acquisition. All expenses shall be paid in accordance with the terms of a separate agreement to be adopted unanimously by the member agencies. 18.2.4 Other Capital Expenses. On occasion, capital expenses may occur earlier in the fiscal year than would allow for regular quarterly billing. If regular quarterly billings do not provide needed capital early enough during the fiscal year, supplemental capital billings shall be sent to the member agencies. In such cases, the Operator/Administrator will notify the member agency financial representatives as far in advance as possible. - 16 - 10/12/90 v Section 19 SETTLEMENT OF DISPUTE OR CONTROVERSY 19.1 Right to Arbitration. Should any dispute or controversy arise in connection with the books, records or accounts of any member agency or in connection with the acquisition, construction, maintenance, operation repair, reconstruction or enlargement of the Joint System or in connection with any of the affairs or operation thereof, or the execution of this agreement, the governing bodies of member agencies that are affected by such dispute may elect to arbitrate the dispute or controversy in accordance with this section. In the event of such election, the governing body of each member agency affected shall appoint or designate one disinterested person as an arbitrator. Said arbitrators so chosen, if an even number, shall designate an additional disinterested person to make an odd number of arbitrators. Said arbitrators so chosen shall act as a Board of Arbitrators in connection with any such dispute or controversy. The findings of fact approved by a vote of the majority of the members of the Board of Arbitrators shall be binding upon the affected member agencies. 19.2 Right of Observation. The parties to any arbitration proceedings held under the provisions of this agreement shall notify every other member agency not a party thereto of such arbitration proceedings and any other member agency shall have the right to be represented at such proceedings by a member agency designated observer. 19.3 Right to Expert Arbitration. Any controversy which can be determined by an engineer's or other expert's findings and which under this section could be submitted to arbitration may, if the parties thereto agree in writing to do so, be submitted to a named engineer or expert who shall be the sole arbitrator. Any such engineer shall be a member of the American Society of Civil Engineers. Any such engineer or expert shall be disinterested as required of arbitrators on an arbitration board. He shall proceed in the same manner provided herein for an arbitration board. Section 20 APPORTIONMENT OF LIABILITY Any liability incurred by the member agencies, which liability arises out of or in connection with the operation and/or maintenance of the Joint System, except for costs of improvements to such facilities and operating and maintenance costs, shall be discharged by payment by each member hereof in proportion to their respective ownership in the facilities at the time of the incident which results in the liability. - 17 - 10/12/90 Section 21 NOTICES Notices required or permitted under this Revised Basic Agreement shall be sufficiently given if in writing and if either served personally or mailed by certified mail to the member agencies. Section 22 SEVERABILITY If any one or more of the terms, provisions, promises, covenants or conditions of this agreement shall by any extent by adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. Section 23 MODIFICATION OF AGREEMENT This agreement shall contain all the terms and conditions made between the parties hereto and shall not be amended except by an agreement in writing signed by all the member agencies. Section 24 SUCCESSION The provisions of this agreement shall be binding upon and shall inure to the benefit of the successors of the parties hereto. Section 25 APPROVAL This agreement shall be approved as of the date that all of the member agencies have approved this agreement and the Revised Establishment Document. IN WITNESS WHEREOF, each party hereto has pursuant to resolution duly passed and adopted by their respective governing bodies caused this Revised Basic Agreement to be executed the day and year first above written. - 18 - 10/12/90 Attest: City Clerk Attest: City Clerk LEUCADIA COUNTY WATER DISTRICT By President VALLECITOS WATER DISTRICT By President BUENA SANITATION DISTRICT By. Chairperson ENCINITAS SANITARY DISTRICT By_ President Approved in form: By CITY OF VISTA, By Mayor By. layor JAC Counsel - 19 - 10/12/90 EXHIBIT B PHASE IV COST ALLOCATION 1. Phase IV cost shall be allocated as follows: a. All costs shall be allocated by unit process and among flow, BOD, and suspended solids in the manner recommended for revenue programs by the State Water Resources Control Board. b. The replacement value of the existing Unit I and Unit J facilities at the mid-point of construction (projected ENRLA of 6465) shall be determined. In determining replacement value, grant funding shall be included except for the grant funding used to pay for the "oversized" portion of "oversized" items (i.e., items sized or undertaken for the ultimate site capacity, such as site grading and paving, piping, etc.). c. Dollar ownership of the existing facilities shall be determined by multiplying existing ownership percentages times the replacement values determined in step b. d. The cost of the proposed Phase IV facilities at the mid- point of construction (projected ENRLA of 6465) shall be estimated by the design engineer. e. The total value of the EWPCF following construction of Phase IV shall be estimated by adding the replacement value of the existing facilities (determined in step b) to the estimated cost of the Phase IV project (determined in step d). f. Needed dollar ownership of the EWPCF following construction of Phase IV shall be determined by multiplying the revised Unit I liquid and solids and Unit J ownerships (determined in Exhibit A of the Thirty-Ninth Supplement) by the total value of the EWPCF following construction of Phase IV (determined in step e). g. Phase IV cost allocations shall be calculated by subtracting existing dollar ownerships (determined in step c) from needed dollar ownerships following construction of Phase IV (determined in step f). Credits and buyins for existing facilities are automatically included in this calculation and need not be calculated separately; however, the dollar values of each are included below for background. - 20 - 10/12/90 Estimated Phase IV cost allocations in dollars and percent of total are as follows: Agency Vista Carlsbad Leucadia San Marcos Buena Encinitas Total Existing Ownership, 22,739,000 20,585,000 13,314,000 H, 099,000 4,436,000 4.694.000 79,867,000 Projected Ownership Following Phase IV Construction. $ 28,938,000 33,216,000 27,297,000 27,105,000 11,020,500 6.470.500 134,047,000 Estimated Phase IV Cost $ % 6,199,000 12.631,000 13.983,000 13,006,000 6,584,500 1.776.500 54,180,000 11.44 23.31 25.81 24.01 12.15 3.28 100.00 Effective Credit/Buyins $ (5,455,000) ( 745,000) 2,916,000 2,091,000 2,023,000 ( 830,000) Final Phase IV cost allocations will be determined following completion of Phase IV construction and will use the actual project costs spread according to the final engineer's estimate instead of the current engineer's estimate in steps d through g above. Actual ENRLA at mid-point of construction will be substituted for the projected value in step b. - 21 - 10/12/90 REVISED ESTABLISHMENT DOCUMENT FOR THE ENCINA ADMINISTRATIVE AGENCY Ref: 9046 THIS AGREEMENT (hereinafter the Revised Establishment Document, "RED") is made and entered into this day of , 1990, by and among the CITY OF VISTA (hereafter VISTA), the CITY OF CARLSBAD (hereafter CARLSBAD), the BUENA SANITATION DISTRICT (hereafter BUENA), the VALLECITOS WATER DISTRICT (hereafter VALLECITOS) , the LEUCADIA COUNTY WATER DISTRICT (hereafter LEUCADIA), and the ENCINITAS SANITARY DISTRICT (hereafter ENCINITAS) , herein called the "member agencies", for the operation, maintenance, and administration of their jointly owned sewerage system. RECITALS WHEREAS, each of the member agencies is a public agency authorized and empowered to contract for the joint exercise of powers under the Government Code of the State of California; and WHEREAS, each of the member agencies has the authority and power to collect, transmit, treat and dispose of wastewater and to construct and operate facilities for such purposes; and WHEREAS, the member agencies recognize the need to operate, maintain and administer the Encina Joint System on a cooperative - 1 - 10/12/90 basis for the collection, transmission, treatment, and disposal of wastewater; and WHEREAS, on August 1, 1988, the member agencies entered into a Joint Exercise of Powers Agreement, which this RED is to replace, pursuant to the provisions of Article 1, Chapter 5, division 7, Title 1 of the California Government Code, creating a public agency known as the Encina Administrative Agency (EAA) to serve as the Operator/ Administrator of the Encina Joint System; and WHEREAS, the Joint Exercise of Powers Agreement establishing the EAA was adopted as a supplement to the "Basic Agreement" establishing the Encina Joint Powers; and WHEREAS, the member agencies desire to revise and condense the Basic Agreement and have drafted legal documents known collectively as the Revised Basic Agreement that are to be considered concurrently with this Agreement; and WHEREAS, the member agencies desire to (a) retain the EAA as the Operator/Administrator of the Encina Joint Powers and (b) reestablish the organization, administration, rules, and specific powers of the EAA by entering into a revised agreement, to be known as the "Revised Establishment Document" ("RED"), separate from the Revised Basic Agreement ("RBA"), pursuant to Article 1, Chapter 5, Division 7, Title 1 of the California Government Code relating to the joint exercise of powers. - 2 - 10/12/90 NOW THEREFORE, THE PARTIES HERETO COVENANT WITH EACH OTHER AS FOLLOWS: Section 1. DEFINITIONS For the purposes of this RED and the RBA, the following terms shall have the meanings indicated below: 1.1 Basic Agreement. That agreement by and among Vista, Carlsbad, Buena, Vallecitos, Leucadia, and Encinitas including all supplements and amendments thereto entered into beginning July 13, 1961. 1.2 Joint Advisory Committee. The Joint Advisory Committee (JAC) as defined in the Revised Basic Agreement. 1.3 Joint System. The Encina Joint System as defined in the Revised Basic Agreement. 1.4 Revised Basic Agreement. That agreement by and among Vista, Carlsbad, Buena, Vallecitos, Leucadia, and Encinitas including all amendments thereto entered into beginning , 1990 and superceding the Basic Agreement. Section 2. TERMS 2.1 Reestablishment of Agency. There is hereby reestablished a public agency known as the Encina Administrative Agency, herein - 3 - 10/12/90 called EAA. For the purposes of this agreement, EAA is a public agency separate from the parties hereto, but it is the intent of these parties that EAA be subordinate to and dependent upon the member agencies in all matters. 2.2 General Duties of the EAA. The EAA shall operate, maintain, and administer the Encina Joint System utilizing funds contributed by the member agencies and grants received from the Federal and State governments. 2.3 Powers. The EAA shall have the following powers as needed to fulfill its duties: 2.3.1 To operate, maintain, administer and manage the Joint System, including any buildings, works or improvements comprising part of the Joint System and located either inside or outside the boundaries of the member agencies, in accordance with sound engineering and accounting practices with local, state and federal laws and regulations; 2.3.2 To make and enter contracts in connection with the administration, management, maintenance and operation of the Joint System; 2.3.3 To employ agents and employees to operate, maintain, administer and manage the Joint System; - 4 - 10/12/90 /••H. 2.3.4 To incur debts, liabilities or obligations in connection with the operation, maintenance, administration and management of the Joint System; 2.3.5 To sue and be sued in its own name, provided that the EAA shall not commence or intervene in any lawsuit without the approval of all of its member agencies, except pursuant to paragraph 2.3.10 hereof; 2.3.6 To acquire, hold, and dispose of such equipment as may be reasonably necessary to the property operation, maintenance, administration and management of wastewater treatment and disposal facilities; 2.3.7 To file reports associated with the operation, maintenance, administration and management of the Joint System ; 2.3.8 In an emergency, to reconstruct or cause to be reconstructed such portions of the Joint system when reconstruction is immediately required to permit the Joint System to continue to function; 2.3.9 To maintain at all times with a responsible insurer or insurers sufficient insurance against loss or damage to the Joint System or portion thereof, workers' - 5 - 10/12/90 /«*»>.C compensation insurance, and insurance against public liability and property damage; 2.3.10 To adopt industrial pretreatment regulations that comply with federal and state pretreatment regulations. The regulations shall include technically based local limits, shall be followed by each member agency, shall apply to industrial connections and groundwater cleanup sites that discharge or have the potential to discharge into the Joint System, and shall allow EAA to take enforcement action against dischargers that violate the regulation; 2.3.11 To review and amend the industrial pretreatment regulations from time to time as the need arises; 2.3.12 To implement all requirements of the pretreatment regulations and all aspects of the Encina service area pretreatment program, including permitting, inspection, monitoring, reporting, and enforcement activities, except that industrial pretreatment permits shall be jointly issued by the member agency in whose jurisdiction the discharge is located and EAA; 2.3.13 To charge and bill the industrial dischargers for their respective share of the EAA's cost to implement the pretreatment regulations, including application review, permit issuance, sampling, monitoring, inspection and enforcement costs; - 6 - 10/12/90 2.3.14 To purchase, lease or condemn real property upon such terms and conditions as approved unanimously by the member agencies; 2.3.15 To operate and maintain other facilities outside the Joint System as recommended by JAC and in accordance with EAA executed operation agreements, or as authorized in the Revised Basic Agreement, which may include budgeting responsibilities. 2.4 Board of Directors. The EAA shall be administered by the governing body of the EAA which shall be known as the Board of Directors of the EAA, herein called the Board. Members of the JAC shall serve as the Board. 2.5 Officers of the Board. The Board shall elect its own officers, which shall include a Chairman, Vice-chairman, Secretary, Treasurer, and Auditor. The Chairman and Vice-chairman shall be members of the Board and the Secretary may, but need not, be a member of the Board. 2.5.1 Treasurer. The Treasurer shall be the treasurer of Vista and shall be the depositary and have custody of all money of the EAA from whatever sources. - 7 - 10/12/90 A 2.5.2 Auditor. The Auditor shall be the auditor of Vista and shall draw all warrants to pay demands against the EAA approved by the Board of Directors. 2.5.3 Other Officers. The General Manager and Attorney for the EAA shall be appointed by the board. The Board shall also have the power to appoint and employ such other consultants, advisors, and independent contractors as it may deem necessary, and subject to the limits of the EAA's approved budget. The public officer, officers, or persons who have charge of, handle, or have access to any substantial property of the EAA shall file an official bond in an amount to be fixed by the Board. The General Manager shall have the power to appoint, promote, demote and remove employees of the EAA subject to the provisions of the personnel policy of the EAA and the EAA's approved budget. 2.6 Meetings of the Board. 2.6.1 Regular Meetings. The Board shall provide for its regular meetings; provided, however, it shall hold at least one regular meeting per month. The dates, hour, and place of the regular meetings shall be fixed by resolution, and a copy of such resolution shall be furnished to each member agency. 2.6.2 Ralph M. Brown Act. All meetings of the Board, including, without limitations, regular, adjourned regular, and special meetings, shall be called, noticed, held, and conducted in - 8 - 10/12/90 ^c accordance with the provisions of the Ralph M. Brown Act (commencing with Section 54950 of the California Government Code). 2.6.3 Minutes. The Secretary of the EAA shall cause to be kept minutes of all meetings of the Board, and shall cause a copy of the minutes to be forwarded to each member of the Board and to each of the parties hereto. 2.6.4 Quorum and Vote. A majority of the Board or their alternates shall constitute a quorum for the transaction of business; except that less than a quorum may adjourn from time to time. The affirmative vote of a majority of a quorum shall be required for the approval of any action. However, when voting on a matter involving the treatment plant (Unit I) or the ocean outfall (Unit J), any member of the Board may call for a weighted vote. In such case, the affirmative vote of members representing a majority of the capacity of the Unit involved shall be required for the approval of any action, to be calculated as follows: The total vote of all members of the Board shall be 100 percent. Each regularly appointed member shall have a percentage of vote equal to one-half of the percentage of capacity of the member agency he/she represents in the Unit involved. Where only one member is present, said member shall have a percentage of vote equal to the total percentage of capacity of the agency he/she represents. At any meeting where no regularly appointed member is represented, each alternative of such regularly appointed member - 9 - 10/12/90 shall have a percentage of vote equal to one-half of the percentage of capacity of the agency he/she represents. Provided, however, at any meeting where any agency is represented by only one alter- nate, said alternate shall have a percentage of vote equal to the total percentage of the capacity of the agency he/she represents. 2.7 Rules. The Board shall adopt rules and regulations, including a conflict of interest code and a purchasing procedure. The Board may, from time to time, review and revise these rules and regulations as needed. 2.8 Budgeting. Annually, the EAA shall prepare an operation, maintenance, and administration budget (hereafter referred to as the O & M budget) and a capital improvement program budget (hereafter referred to as the capital budget). The budgets shall be prepared in accordance with the RBA and generally accepted accounting principles. 2.9 Accounting and Audits. 2.9.1 Fiscal Year. The fiscal year of the EAA shall be from July 1 to June 30. 2.9.2 Accounting Procedures and Audit. Full books and accounts shall be maintained for the EAA in accordance with practices established by or consistent with those utilized by the Controller of the State of California for like public agencies. - 10 - 10/12/90 The Auditor of the EAA shall either make or contract with a certified public accountant to make an annual audit of the accounts and records of the EAA. The minimum requirements of the audit shall be those prescribed by the State Controller for special districts under Section 26909 of the California Government Code and the audit shall conform to generally accepted accounting principles. A report of the audit shall be filed as a public record with each of the member agencies and with the San Diego County Auditor within 30 days of its completion. Such report shall be filed within 12 months of the end of the fiscal year under examination. 2.10 Liabilities. Except as provided hereinabove, the debts, liabilities and obligations of the EAA shall be the debts, liabilities and obligations of the EAA alone, and not the member agencies. 2.11 Withdrawal or Dissolution. Upon withdrawal of a member from the EAA or upon dissolution of the EAA, there shall be a partial or complete distribution of assets and discharge of liabilities as follows. The distribution of assets may be made in kind or assets may be sold and the proceeds thereof distributed to a member agency at the time of withdrawal or to the member agencies at the time of dissolution; provided that, all property and rights in property assigned or transferred by any member agency to the EAA shall be reconveyed to said member agency free and clear of all encumbrances and liens of any kind. - 11 - 10/12/90 2.11.1 Withdrawal. Upon withdrawal of any member agency from the EAA, the withdrawing member shall receive its proportionate or otherwise defined share of any assets of the EAA and shall contribute its proportionate or otherwise defined share toward discharge of any enforceable liability incurred by the EAA. 2.11.2 Dissolution. Upon dissolution of the EAA, each member agency shall receive its proportionate or otherwise defined share toward discharges of any enforceable liabilities incurred by the EAA. 2.12 Rescission or Termination. The EAA shall continue as Operator/Administrator until such time as EAA is terminated by written consent of a majority of the member agencies, evidenced by certified copies of resolutions by their governing bodies. Upon termination of the EAA and replacement with another Operator/Administrator, employees of the EAA shall become the employees of the new Operator/Administrator subject to existing employment contracts, seniority, retirement rights and any other employee benefits or rights now enjoyed by those employees. 2.13 Notices. All notices, statements, demands, requests, consents, approvals, authorizations, agreements, appointments or designations hereunder shall be given in writing and addressed to the principal office of the EAA. - 12 - 10/12/90 2.14 Severability. If any one or more of the terms, provisions, promises, covenants or conditions of this agreement shall by any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 2.15 Modification of Agreement. This agreement shall contain all of the terms and conditions made between the parties hereto and shall not be amended except by an agreement in writing signed by all the member agencies. 2.16 Succession. The provisions of this agreement shall be binding upon and shall inure to the benefit of the successors of the parties thereto. 2.17 Approval. This agreement shall be approved as of the date that all of the member agencies have approved this agreement and the Revised Basic Agreement. IN WITNESS WHEREOF, each party hereto has pursuant to resolution duly passed and adopted by their respective governing bodies caused this Revised Establishment Document to be executed effective as of the day and year first above written. - 13 - 10/12/90 3'"' CITY OF VISTA Attest: By City Clerk Attest: City Clerk LEUCADIA COUNTY WATER DISTRICT By President VALLECITOS WATER DISTRICT By President BUENA SANITATION DISTRICT By Chairperson ENCINITAS SANITARY DISTRICT By President Approved in form: By EAA Counsel - 14 - 10/12/90