HomeMy WebLinkAbout2004-08-17; City Council; 17766; Suspend Enforcement EWA Revised Agreement0 w
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- TITLE: 4B# 17,766
MTG. 8/17/04 CONSENT TO SUSPEND ENFORCEMENT OF SECTION 9
DEPT. PW/M&O BASIC AGREEMENT
OF THE ENCINA WASTEWATER AUTHORITY REVISED
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RECOMMENDED ACTION:
CITY COUNCIL OF THE CITY OF CARLSBAD: Adopt Resolution No.
suspension of enforcement of Section 9 of the Encina Wastewater Authority Revised Basic Agreement.
2004-277 approving
ITEM EXPLANATION:
On June 22, 2004, the City Council adopted and approved the FY 2005 Capital Improvement Program
Budget and Phase V Cost Allocation Model. The City of Carlsbad and other EWA member agencies
have now completed all planning activities required for Phase V and implementation of such plans,
which will occur through EWA. Pending the completion of Phase V, however, it may be necessary for
one or more member agencies to use excess capacity in the Joint System, including the unused
capacity of other member agencies. To address this issue, the EWA Board is requesting that all
member agencies consent to suspend enforcement of capacity allocations in accordance with Sections
9.2.3., 9.2.5., and 9.2.6 of the Revised Basic Agreement (RBA). Section 9 sets forth member agencies’
respective capacity rights in the Encina Joint Facilities and promotes planning by establishing
prescribed remedies in the event a member agency uses excess capacity. The action to suspend
enforcement will allow any member agency to use available capacity until the latter of (a,) acceptance of
the Phase V Project or (b.) amendment of the RBA to reflect changes in capacity rights resulting from
completion of the Phase V Project. The proposed resolution will formally establish Carlsbad’s consent
to suspend enforcement of Section 9.
FISCAL IMPACT:
There is no fiscal impact as a result of this action.
EXHl BITS :
1. Resolution No. 2004-277 approving suspension of enforcement of Section 9 of the Encina
Wastewater Authority Revised Basic Agreement.
Department contact: R. Greaney, (760) 438-2722, bgrea@ci.carlsbad.ca.us
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EXHIBIT I
RESOLUTION NO. 2004-277
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA APPROVING SUSPENSION OF
ENFORCEMENT OF SECTION 9 OF THE ENCINA
WASTEWATER AUTHORITY REVISED BASIC
AGREEMENT
WHEREAS, the Encina Wastewater Authority (“EWA) is proceeding with design and
:onstruction of an expansion of the Encina Water Pollution Control Facility in order to increase the
:apacity of the Joint System, known as Phase V; and
WHEREAS, pending completion of Phase V it may be necessary for one or more of the
nember agencies to utilize excess capacity in the Joint Syste’m, including unused capacity of
mother agency; and
WHEREAS, Section 6 of the “Revised Basic Agreement for Ownership, Operation and
vlaintenance of a Joint Sewage System (“RBA”) allows the member agencies to grant prior written
:onsent of the use of a greater percentage of the Joint System than allocated to a member
agency; and
WHEREAS, absent such consent, any member agency may ask EWA to enforce the
:apacity allocation provisions of Section 9 of the RBA against an infringing member agency,
ncluding by initiating legal actions for injunction relief and penalties; and
WHEREAS, it is in the best interests of EWA and its member agencies that enforcement
if capacity allocations be suspended pending the completion of Phase V, and until such time as
:he capacity rights set forth in Section 9 of the RBA can be restated to reflect the planned
:hanges in capacity rights of the member agencies; and
WHEREAS, the City Council of the City of Carlsbad desires to consent to the suspension
2f enforcement of Section 9 of the RBA as requested by the EWA Board of Directors and Joint
4dvisory Committee.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
Zalifornia, as follows:
1. That the above recitations are true and correct.
2. That EWA Board Resolution No. 2004-1 5, attached hereto as Exhibit “A,” is hereby
approved.
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3.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City of Carlsbad City
That this resolution shall be forwarded to EWA immediately upon its execution.
Zouncil held on the 17th day of Auqust , 2004 by the following vote, to wit:
AYES: Council Members Lewis, Finilla, Hall and Packard.
NOES: None
(SEAL)
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EX H I B IT ”A”
RESOLUTION NO. 2004-1 5
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
ENCINA WASTEWATER AUTHORITY REQUESTING UNANIMOUS CONSENT
FOR USE OF EXCESS CAPACITY PENDING COMPLETION OF PHASE V
EXPANSION
Ref: FtAHR.04-4102
WHEREAS, the Encina Wastewater Authority (“EWA”) is proceeding with
design and construction of an expansion of the Encina Water Pollution Control
Facility in order to increase the capacity of the Joint System, known as Phase V;
and,
WHEREAS, pending completion of Phase V it may be necessary for one or
more of the member agencies to utilize excess capacity in the Joint System,
including unused capacity of another member agency; and,
WHEREAS, section 6 of the “Revised Basic Agreement for Ownership,
Operation and Maintenance of a Joint Sewage System” (“RBA) allows the
member agencies to grant prior written consent of the use of a greater percentage
of the Joint System than allocated to a member agency; and,
WHEREAS, absent such consent, any member agency may ask EWA to
enforce the capacity allocation provisions of section 9 of the RBA against an
infringing member agency, including by initiating legal actions for injunctive relief
and penalties; and,
WHEREAS, it is in the best interests of EWA and its member agencies that
enforcement of capacity allocations be suspended pending the completion of
Phase V, and until such time as the capacity rights set forth in section 9 of the RBA
can be restated to reflect the planned changes in capacity rights of the member
agencies;
NOW, THEREFORE, BE IT RESOLVED:
1. The Board of the Encina Wastewater Authority hereby requests that
each member agency take action to approve this resolution, and transmit such
approval in writing to EWA.
2. In approving this resolution, each member agency agrees to allow
the other EWA member agencies to utilize any available unused capacity rights
in the Joint System without penalty, until the later of the completion and
acceptance of Phase V by EWA or the amendment of the RBA to reflect the
changes in capacity rights in the Joint System, on the terms and conditions set
forth below.
017.238961.1
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3. Upon the unanimous consent of the member agencies to the use of
available unused capacity rights in the Joint System, EWA shall:
a. Notify all member agencies that unanimous approval has
occurred, and transmit copies of all written approvals.
b. Report monthly to the EWA Board of Directors on the
amount of excess usage, if any, by member agency.
c. Continue to charge each member agency its fair share of
operations and maintenance costs based upon actual usage and
ownership of the Joint System in accordance with Section 16 of the RBA,
current policies, practices and formulae.
d. Refrain from enforcement of the provisions of sections 9.2.3,
9.2.5 and 9.2.6 of the REA regarding use of capacity by a member
agency.
4. Any member agency may withdraw its consent to use of unused
capacity in the Joint System by giving written notice to EWA at such time as
another member agency’s usage is exceeding its projected capacity rights upon
the completion of the Phase V facilities. In that event, EWA shall enforce the
provisions of section 9 of the RBA at the request of any member agency.
The General Manager of EWA is directed to transmit a copy of this
resolution to each member agency forthwith.
5.
PASSED AND ADOPTED at a meeting of the Board of Directors of the
Encina Wastewater Authority held June 2, 2004 by the following vote:
AYES: Directors: Campo, Ritter, Packard, Hall, Ferguson, Davy
Juliussen, Sullivan, Houlihan, Guerin
NOES:
ABSENT:
A BSTAl N :
Paul Davy, Chair, Board of Dhctors
Encina Wastewater Authority