Loading...
CAPISTRANO VALLEYWASTEWATER AUTHORITYAGREEMENT FOR DISSOLUTION AND TERMINATION OF JOINT EXERCISE OF POWERS AGREEMENT CREATING CAPISTRANO VALLEY WASTEWATER AUTHORITY THIS AGREEMENT is entered into as of June30, , 1993 by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter, the "CITY") and the CAPISTRANO BEACH SANITARY DISTRICT ("DISTRICT"), as the members of the CAPISTRANO VALLEY WASTEWATER AUTHORITY (hereinafter, the "AUTHORITY"). RECITALS A. The DISTRICT and the CITY entered into that certain agreement entitled "Joint Exercise of Powers Agreement Creating Capistrano Valley Wastewater Authority" on April 5, 1988 (hereinafter, the "JPA") to create the AUTHORITY. B. Sections 12 and 13 of the JPA provide that the JPA shall continue in full force and effect unless terminated by mutual agreement of the parties, and that the JPA may be rescinded and the AUTHORITY terminated by written consent of all parties. C. The CITY and the DISTRICT have jointly determined that the purposes for which the JPA was entered into and the AUTHORITY created no longer exist, and accordingly have determined to rescind the AUTHORITY and terminate the JPA. NOW, THEREFORE, in consideration of the facts recited above and the promises contained herein, the parties agree as follows: Section 1. The JPA is rescinded and the AUTHORITY terminated effective June 30, 1993, subject to completion of the activities set forth in Sections 2 and 3 herein. Section 2. The General Manager of the AUTHORITY is hereby authorized and directed to undertake all of the following activities to wind up the JPA: 2.1 Provide written notice to all contractors, consultants and vendors of the AUTHORITY, notifying each of them of the rescission of the JPA and termination of the AUTHORITY, and providing notice of the termination of any contract or agreement between the AUTHORITY and such contractor, consultant or vendor. 2.2 Provide written notice to the office of the Secretary of State of the State of California, setting forth the rescission of the JPA and the termination of the AUTHORITY. PSM311012483-0001 2025985.1 05/06/93 2.3 Cause to be distributed to all Directors of the AUTHORITY, and to the General Manager and the General Counsel of the AUTHORITY, the form of "Annual Statement/Leaving Office Statement" pursuant to the Political Reform Act of 1974, as amended; and, upon receipt of such completed forms by the Directors, General Manager and General Counsel of the AUTHORITY, the General Manager is hereby authorized and directed to transmit such completed statements, together with a letter providing notice of the termination of the AUTHORITY and the rescission of the JPA, to the Clerk of the Board of Supervisors of the County of Orange, California, as the "code reviewing body" for the AUTHORITY. 2.4 Determine whether any unpaid invoices, claims or other liabilities exist with respect to the AUTHORITY and, if so, to cause such invoices, claims and liabilities to be paid upon presentation of the appropriate documentation. 2.5 Cause to be prepared a final audit of the AUTHORITY, which audit shall include the assets, funds and property of the AUTHORITY as allocated to the DISTRICT and the CITY in accordance with Section 11(B) of the JPA. Section 3. Upon completion of the final audit as set forth in Section 2.5 above, the General Manager is hereby authorized and directed to distribute to the DISTRICT and the CITY, the funds, assets and property of the AUTHORITY, as allocated to the DISTRICT and the CITY in the final audit. Section 4. The original of all records, documents and files of the AUTHORITY shall be maintained with the DISTRICT for the period required by law. IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above. CAPI S BEACH SANITARY DISTRICT epi fit ATTEST Secretary CITY OF S�DT;on=es= ISTRANO r it A ST: Cit dergi y ¢p_ FS2\131\012483-0001\2025995.1 05/06/93 0 0 8. APPROVAL OF LICENSE AGREEMENT FOR THE CONSTRUCTION OF PRIVATE IMPROVEMENTS IN A CITY STORM DRAIN EASEMENT (27112 HIGHLAND DRIVE/ POCHIROWSKI) (600.30) As set forth in the Report dated June 15, 1993, from the Director of Engineering and Building, the License Agreement between the City and William Pochirowski was approved allowing a portion of the improvements for the property at 27112 Highland Drive (including a small portion of a wall, entry gates, and colored concrete driveway) to be constructed within a City storm drain easement. The Mayor and City Clerk were authorized to execute the License Agreement, and the City Clerk was authorized to forward the Agreement to the County Recorder. APPROVAL OF CONSTRUCTION MODIFICATION NO. t TO FUNDING CONTRACT NO. 750749 WITH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR TASKS RELATED TO THE SAN JUAN CREEK RAILROAD BRIDGE AND TRACK REALIGNMENT (CALTRANS) (600.50) As set forth in the Report dated June 15, 1993, from the Director of Engineering and Building, Contract Modification No. 1 to Funding Contract No. 75Q749 with Caltrans was approved. The Modification reduces the funding for environmental and right-of-way acquisition consultants, increases the funding for City administrative costs, introduces funding for utility relocation design, retains the original funding for design contingency and right-of-way acquisition, and extends the expiration date to March 31, 1994. The Mayor was authorized to execute the agreement on behalf of the City. 10. TERMINATION OF JOINT POWERS AGREEMENT - CAPISTRANO VALLEY WASTEWATER AUTHORITY 0.50 As set forth in the Report dated June 15, 1993, from the Director of Engineering and Building, the Agreement for Dissolution and Termination of Joint Exercise of Power Agreement Creating Capistrano Valley Wastewater Authority was approved. The Mayor was authorized to execute the document. 11. DENIAL OF CLAIM - PROPERTY DAMAGE (STEVEN AND MARY KUHN) (170.10) The claim received by the City on May 12, 1993, from the Law Offices of Steven R. Kuhn, on behalf of Steven R. Kuhn and Mary Lois Kuhn, in the amount of $120,000 for property damage, was denied, as set forth in the Report dated June 15, 1993, from the City Attorney. The following items on the Consent Calendar were considered separately, as requested by Council Member Vasquez. APPROVAL OF CITY COUNCIL MINUTES a. Adjourned Regular Meetingof f May 18, 1993 It was moved by Council Member Hausdorfer, seconded by Council Member Nash, and unanimously carried that the Minutes of the Adjourned Regular Meeting of May 18, 1993, be approved as submitted. b. Revular Meeting of May 18, 1993 Council Member Vasquez noted that he and Council Member Nash were present for the public vote following the Closed Session regarding the Management Incentive Pay for the former Assistant City Manager position. City Council Minutes -4- 6/15/93 AGENDA ITEM TO: FROM: SUBJECT: June 15, 1993 George Scarborough, City Manager William M. Huber, Director of Engineering be Building Termination of Joint Powers Agreement - Capistrano Valley Wastewater Authority RECOMMENDATION It is recommended that the City Council approve the "Agreement for Dissolution and Termination of Joint Exercise of Powers Agreement Creating Capistrano Valley Wastewater Authority" and Authorize the Mayor to execute and City Clerk to attest said agreement. SITUATION A. Summary and Recommendation At its June 1 board meeting, Capistrano Beach Sanitary District requested dissolution of the Capistrano Valley Wastewater Authority, a Joint Powers Authority consisting of the City of San Juan Capistrano and the Sanitary District. The Authority responsibilities are being absorbed by the South Orange County Reclamation Authority (SOCRA). It is thus believed the Authority is of a redundant nature and, therefore, dissolution is recommended. B. Background In April, 1988, the City and Capistrano Beach Sanitary District formed a Joint Powers Authority (JPA) for the purpose of working jointly on water reclamation issues. Since this time, SOCRA was formed to work on issues regarding reclaimed water throughout the Capistrano Valley area. As the Wastewater Authority is somewhat redundant, the Capistrano Beach Sanitary District requested that the Authority be disbanded at the June 1 board meeting. Board members for the City are Larry Buchheim and Jeff Vasquez. Staff concurs with this request and recommends approval of the agreement. COMMISSION/BOARD REVIEW. RECOMMENDATIONS The Capistrano Valley Wastewater Authority approved the proposed action at its June 1, 1993 meeting. FINANCIAL CONSIDERATIONS The Authority was funded by the City and Sanitary District. Although no funds have been requested over the past several years, the disbanding will save City sewer funds which were used to support the Authority. Any remaining funds after payment of final expenses will be refunded to the City on a pro rata basis. FOR CRY COUNCIL AGEN 14 AGENDA ITEM • • June 15, 1993 Page 2 NOTIFICATION Dennis Erdman, CVWA Lawrence Buchheim, Board Member ALTERNATE ACTIONS 1. Approve the agreement. 2. Approve the agreement subject to Council modifications. 3. Do not approve the agreement. 4. Return to staff for additional information. RECOMMENDATION It is recommended that the City Council approve the "Agreement for Dissolution oand Termination of Joint Exercise of Powers Agreement Creating Capistrano Valley Wastewater Authority" and Authorize the Mayor to execute and City Clerk to attest said agreement. Respectfully submitted, William M. Huber, P.E. WMH/rl Attachment: Agreement 0 0 JOINT EXERCISE OF POWERS AGREEMENT CREATING CAPISTRANO VALLEY WASTEWATER AUTHORITY ORANGE COUNTY, CALIFORNIA TITLE Section 1 Section 2 Section 3 Section 4 Section 5 Section 6 Section 7 Section 8 Section 9 Section 10 Section 11 Section 12 Section 13 Section 14 Section 15 Section 16 Section 17 Section 18 Section 19 Section 20 0 0 TABLE OF CONTENTS JOINT EXERCISE OF POu ERS AGREEMENT CREATING CAPISTRANO VALLEY" WASTE'NATER AUTHORITY PAGE Recitals Purpose and Powers.............................................2 Agency Created ..................................... .........3 Purpose of the Agreement Common Power to be Exercised...................................4 Powers and Duties of the .Authority................................4 Definitions.....................................................5 Organization...................................................6 Planning.....................................................10 Budgets and Payments..........................................10 Project Construction...........................................12 Accounting and Audits..........................................12 Property Rights................................................13 Term.........................................................14 Rescission or Termination.......................................14 Arbitration....................................................14 Admission of New Members......................................17 Amendments..................................................17 Notice........................................................17 Miscellaneous..................................................17 Agreement Binding Upon Successors and Assignees..................18 Severability...................................................18 a JOINT EXERCISE OF POWERS AGREEMENT CREATING THE CAPISTRANO VALLEY" u'ASTE%'ATER AUTHORITY THIS AGREEMENT is made and entered into by and between THE CAPISTRANO BEACH SANITARY DISTRICT ("CBSD"), and the CITY OF SAN JUAN CAPISTRANO ("CSJC"), with an effective date of April S 1988 Section 1. Recitals. A. Each of the parties hereto is a public agency authorized and empowered to contract for the joint exercise of powers under Article 1, Chapter 5, Division 7, Title 1 of the Government Code of the State of California. B. Each of the parties hereto have and possess power and authorization to acquire and construct facilities for the collection, transmission, treatment and disposal of wastewater and other waste products, including the reclamation of wastewater for the benefit of the lands and inhabitants within their respective boundaries. C. The CBSD presently owns and operates a wastewater treatment and disposal facility which needs extensive capital investment, to be able to meet the needs of their service area for a reasonable planning period of approximately twenty (20) years. D. The CSJC presently is a member of the South East Regional Reclamation Authority ("SERRA") for the purpose of treatment and disposal of wastewaters generated within the City's boundaries. To meet the ultimate wastewater treatment and disposal needs of the service area of the City, CSJC may be committed to extensive capital investment for facilities at the Jay B. Latham Treatment Plant, owned and operated by SERRA. -3- 0 0 E. Based upon the needs of each of the parties to this agreement to provide cost-effective wastewater treatment and disposal service to their respective service areas, there is an apparent need for coordinated planning of wastewater disposal and reclamation of wastewater for the benefit of each of the parties. F. A regional wastewater disposal and reclamation program can best be achieved through the cooperative action of the parties operating through a joint exercise of powers agency. G. It has been mutually determined that based upon the economic and mutual benefits to both parties this project is in their best interest. COVENANTS In consideration of the mutual promises and covenants herein contained, the parties here to agree as follows: PURPOSE AND POWERS Section 2. Agency Created. There is hereby created a public entity to be know as the "CAPISTRANO VALLEY WASTEWATER AUTHORITY". The Authority is formed by this agreement pursuant to the provisions of Article 1, Chapter 5, Division 7, Title 1 of the Government Code of the State of California. The Authority shall be a public entity separate from the parties hereto. The debts, liabilities and obligations of the Authority shall not constitute debts, liabilities or obligations of either or both the Capistrano Beach Sanitary District or City of San Juan Capistrano. -4- Section 3. Purpose of the Agreement: Common Power to be Exercised. Each party has in common the power to plan for, acquire, construct, maintain, repair, manage, dispose of, operate and control facilities for the collection, transmission, treatment and disposal of wastewater, the reclamation of wastewater and the use of reclaimed wastewater for any beneficial purpose. The purpose of this agreement is to jointly exercise the foregoing common powers in the manner hereinafter set forth. Section 4. Powers and Duties of the Authority. The Authority shall have the power in its own name to do any of the following: A. To exercise jointly the common powers of its parties hereto in studying, planning, managing, constructing, acquiring lands, right-of-ways, operating and maintaining the facilities for wastewater disposal, reclamation and other related uses for the service area of the parties to this agreement. B. To make and enter into contracts, leases and agreements C. To contract for the services of engineers, attorneys, planners, financial consultants, construction contractors and separate and apart therefrom, to appoint agents and representatives and to employ such other staff persons as it deems necessary. D. To acquire, lease, purchase, construct, hold, manage, maintain, operate and dispose of any buildings, property (real and personal), works, or improvements. E. To acquire, hold and dispose of property, real and personal by gift, or bequeth from other government agencies, purchase, eminent domaine, lease purchase, lease of sale. F. To incur debts, liabilities, or obligations subject to the limitations herein set forth, including the selling of bonds. G. To sue and be sued in its own name. -5- H. To apply for receive and administer any appropriate grants or loans under receive and administer any Federal, State or local programs for assistance in developing or implementing any of its programs. 1. To jointly exercise the common powers of the parties. J. To adopt rules, regulations and bylaws or procedures governing the Authority and its operations. K. Said powers shall be exercised in the manner provided in Section 6500 et seq. of the California Government Code, and, to the extent not herein specifically provided for, any power necessary or incidental to the foregoing powers in the manner and according to the procedures provided for under the law applicable to the CBSD and CSJC. Section 5. Definitions. For the purpose of this Agreement, the following words have the following meanings: A. "Agreement" means this joint exercise of powers agreement. B. "Authority" means the Capistrano Valley Wastewater Authority formed pursuant to this Agreement. C. 'Board or Board of Directors" means the governing body of the Authority. D. "Party" means each of the agencies that become a signatory to this agreement, accepting the rights and obligations of the Authority hereunder, including any public entity executing an addendum of the original agreement as hereinafter provided. E. "Participating Party" means a member that has or will acquire rights and assume obligations in connections with a particular project. F. "Participating Director" means the director representing a participating party. M 0 0 G. "Fiscal Year" means July lst to and including the following June 30th. H. "Facility or Facilities" means any building, works or improvement acquired, maintained or constructed by the Authority pursuant to this agreement. 1. "Project" means the facilities constructed by the Authority pursuant to the project budget procedure. Section 6. Organization. A. Board of Directors. There shall be five members of the Board of Directors. Within 30 days after the execution of this Agreement by CBSD and CSJC, each party shall designate and appoint, by resolution of its governing body, two persons to act as directors on the Board of the Authority. Once appointed, the directors shall, as reasonably as practicable, appoint a fifth Board member who will be mutually agreed upon for a 1 -year period and subject to consideration for reappointment annually. Each party shall also appoint one alternate director for each active director whose name shall be on file with the Board and who may assume all rights and duties of the absent director representing the appointing member. Each director and alternate shall hold office from the first meeting of the Board after their appointment by the party they represent until their successor is selected. Directors and alternates shall serve at the pleasure or an appointee of the governing Board of the appointing member and may be removed at any time, with or without cause, in the sole discretion of said member's governing Board. A director or alternate shall be a member or an appointee of the governing Board of the appointing party. -7- # 0 A director may receive such compensation from the Authority for their services as may from time to time be established by the Board. A director may be reimbursed for expenses incurred by such direction in the conduct of the business of the Authority. B. Of f iters. 1. Chair and Vice Chair There shall be selected from the membership of the Board, a chair and a vice chair. The chair and vice chair shall hold office for a period of one year commencing July 1st of each and every fiscal year; provided, however, the chair and vice chair appointed shall hold office from the date of appointment to June 30th of the ensuring fiscal year. 2. Treasurer and .Auditor The Director of Administrative Services of the City of San Juan Capistrano shall be the treasurer of the Authority, to be the depository and have custody of all money of the authority from whatever source. The treasure shall draw all warrants and pay demands against the authority approved by the Board. .An independent auditor shall be appointed by the Board of Directors and shall perform an annual independent audit and prepare an annual financial statement expressing opinion on these financial components. The designated treasurer and auditor may be changed only by the consent of all directors. -8- 3. Other Officers The Board shall have the power to appoint such additional officers as it deems necessary including management personnel. Any officer, employee or agent of the Board may also be an officer, employee or agent of any of the members. The appointment by the Board of such a person shall be evidence that the two positions are compatible. Legal counsel shall be selected by the Board. Professional and expert services, including, without limitation, accountants and other consultants and advisors, shall be contracted for by the Board. All such services shall be performed for the authority as part of the planning, design and construction of any Authority facilities. 4. Privileges and benefits The Authority shall secure appropriate bonds and provide adequate insurance coverage to the extent determined necessary for those designated officers and employees executing their duties on behalf of the Authority. All of the privileges and immunities from liability, exemption from laws, ordinances and rules, all pension, relief, disability, workmen's compensation and other benefits which apply to the activity of officers, agents, or employees of any of the members 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 extraterratiorially under this agreement. C. Principal Office. The principal office of the Authority shall be established by the Board. The Board is hereby granted full power and authority to change said principal office from one location to another in the County of Orange. Any change shall be noted by the secretary under this section but shall not be considered an amendment to this agreement. D. 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 0 0 shall be furnished to each party hereto. The Board shall adopt rules for conducting the meetings and other business. Ail meetings of the Board 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). E. Quorum. Three fifths of the directors shall constitute a quorum for the purposes of the transaction of business relating to the Authority. A majority of the participating directors, but not less than one (1) from each agency, shall constitute a quorum for the purposes of the transaction of business of the Authority on matters relating to each project in which all of the parties are participating. F. 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 parties as herein set forth. Unless otherwise provided herein, each director or participating director shall be entitled to one vote and a vote of the majority of those present and qualified to vote may adopt any motion, resolution or order and take any other action they deem appropriate to carry forward the objectives of the Authority. G. 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 copies of the minutes to be forwarded to each director and to each of the members hereto. H. Rules. The Board may adopt from time to time such rules and regulations for the conduct of its affairs as may be required. -10- f. Vote of Assent of Members. The vote, assent or approval of members in any matter requiring such vote, assent or approval hereunder shall be evidenced by a certified copy of the resolution of the governing board of such member filed with the Authority. Section 7. Planning. The parties of this agreement have cooperatively authorized and prepared the initial studies and planning to provide for the collection, treatment, reclamation and disposal of sewage for each of the parties. The specific objectives of the various studies and reports were to obtain a solution to the wastewater treatment and disposal problems of each agency. To achieve this objective, additional studies may be necessary and may include proposals for the construction of trunk and intercepting sewers, treatment plants, and outfalls for final disposal. In addition, other studies may address the reclamation of sewage for any and all uses including, but not limited to, water for domestic, agricultural and recreational uses. Additional studies may also expand upon and concentrate on the methods of financing any construction proposed and the allocation of construction costs among the benefited members. These studies shall also consider all phases of the maintenance and operation of joint facilities and the allocation to the benefited parties of the maintenance and operating costs. Section 8. Budgets and Payments A. General Budget. Within sixty (60) days after the first meeting of the Board, a general budget shall be adopted for the balance of the fiscal year and the ensuring fiscal year. The initial budget and each succeeding budget shall include the following: (1) The general administrative expenses of the Authority to be incurred during the period covered by the budget; and (2) the allocation among the members of the amounts necessary to cover the general budget expenditures. The expenditures required in the initial budget (from ONE formation to June 30, 1988), shall be shared equally by all parties. If after the initial budget the Board provides an allocation to the members on some basis other than equal amounts, the general budget must be approved by the unanimous consent of all of the directors. After the first full fiscal year, at or prior to each May meeting of the Board, a general budget shall be adopted for the ensuing fiscal year. B. Project Budgets. In addition to the general budget, the Board may budget at any time for the study, implementation or construction of any specific project proposed to be constructed by the Authority. Each project budget shall include the following: 1. The administrative expenses allocated to the project during planning and construction; 2. The cost of studies and planning for the project; 3. The cost of the engineering and construction of the project; 4. The allocation among the participating members of the total project cost; 5. An estimate of annual maintenance and operating expenses for the project; and 6. A formula for allocating annual project maintenance and operating expenses. .After the Board approves a project budget, it shall be submitted to each participating member that is to be obligated for the payment of any amount thereunder and the Authority shall not incur any expense for the project until the project budget has been approved by the governing body of each of the proposed participating members. C. Expenditures for the Approved Budget. All expenditures within the designations and limitations of approved general, project or maintenance and operation budgets shall be made on the authorization of a majority of the participating directors for the general and project budget expenditures. No expenditures in excess of those budgeted shall be made without the unanimous consent and approval of all of the directors representing the member affected by the -12- 0 0 budget under consideration. D. Payment of Amounts Due. Amounts required to be paid by each party shall be due and payable forty-five (45) days after receipt of billing therefor from the Board. E. Reimbursement of Funds Grant funds or loans received by the Authority from any Federal, State or local agency to pay for budgeted expenditures for which the Authority has received all or a portion of said funds from its parties shall be proportionally paid to said party to reimburse the parties for the funds advanced to the Authority for the construction of the facilities for which grant or loan money has been received. Section 9. Project Construction. Acquisition and Construction of Projects. No project shall be acquired or constructed by the Board without the unanimous consent of the participating parties. Approval of a project budget by each of the participating parties shall constitute consent for the acquisitions and construction of the project. Section 10. Accounting and Audits. A. 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 of the -t3- 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 I of the Government Code commencing at Section 6500. B. Audit. The records and accounts of the .Authority shall be audited annually by an independent certified public accountant and copies of such other 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. Section 11. Property Rights. A. Project Facilities. All facilities constructed or acquired by the Authority shall be held in the name of the Authority for the benefit of the membership of the Authority in accordance with the terms of this agreement. Capacity rights in respective project facilities shall be held for the benefit of the participating members in proportion to each members agreed percentage of capacity rights in such project facility unless otherwise agreed to in writing by said participating members. It is the intent of the foregoing provision that the Authority shall not acquire any unallocated capacity rights in any facility for disposal or use, except for the benefit of the participating members in proportion to their original percentage of capacity rights in said facility. Capacity rights may not be reallocated, sold, leased or assigned without the written consent of all participating members in said project. B. 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 allocated annually on the books of the Authority to the credit of said contributing -14- 0 0 member. Upon termination or dissolution of the Authority herein created, the facilities, and any funds, in possession of the Authority at such times shall be distributed in kind or sold or returned as given, and the proceeds or investments thereof distributed to the members at the time of termination as their interests appear on the books of the Authority. Unless the parties mutually agree otherwise, any Public Works or other facilities assigned or transferred to either party shall be assigned or transferred free and clear of all encumbrances and leins of any kind. C. Liabilities. Any liability incurred by the .Authority during the course of its existence shall be discharged from payments hereby agreed to be made to the Authority by each of the parties hereto in proportion to their contribution or 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. Section 12. Term. This Agreement shall continue in full force and effect unless terminated by mutual agreement of the parties hereto. Section 13. Rescission or Termination. This agreement may be rescinded and the Authority terminated by written consent of all parties. Section 14. .Arbitration. Any controversy or claim between any two or more parties to this ,Agreement, or between any such party or parties and the Authority, in respect to the Authority's operations, or to any claims, disputes, demands, differences, controversies, or misunderstandings arising under, out of, or in relation to this contract, or any breach -15- 0 0 thereof, shall be submitted to and determined by arbitration. To the extent not inconsistent herewith, the rules of the American Arbitration Association shall apply. The party desiring to initiate arbitration shall give notice of its intention to arbitrate to every other party to this Agreement and the Authority. Such notice shall designate as "respondents" such other parties as the initiating party intends to have bound by any award made therein. Any party not so designated but which desires to join in the arbitration may, within ten days of service upon it of such notice, file a response indicating its intention to join in and to be bound by the results of the arbitration, and further designating any other parties it wishes to name as a respondent. Within twenty (20) days of the service of the initial demand for arbitration, the American Arbitration Association, hereinafter referred to as "AAA" shall submit simultaneously to the initiating party and to all parties named as respondents or filing a response therein, and an identical list of names of persons chosen from the AAA National Panel of Arbitrators which persons shall be, to the extent possible, a person first in the field of wastewater disposal and reclamation as well as public law. Each party to the dispute shall have seven days from the mailing date in which to cross off any names to which he objects, number the remaining names indicating the order of his preference, and return the list to the AAA. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have approved on both lists, in accordance with the designated order of mutual preference, the AAA shall invite the acceptance of an arbitrator to serve. If the parties fail to agree upon one of the persons names, or if an acceptable arbitrator is unable to act, or if for any other reason the appointment cannot be made from the submitted list, the AAA shall have the power to make the appointment of the arbitrator from other members of the panel without the submission of any additional list. -16- The arbitrator shall determine the rights of the parties in accordance with the law, and the award shall be subject to review as to the arbitrator's application of the law by any court having jurisdiction thereof, whether or not any mistake of law shall appear upon the face of the award. As to all questions of facts, however, the determination of the arbitrator shall be binding upon all parties and shall be final. Any party shall be entitled to written findings of fact and conclusions of law as to all issues determined by the award. Subject to the above limitations, the award shall be binding upon all parties to the arbitration and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator may, in his discretion, as part of the arbitration award impose upon any one party or allocate among two or more of the parties, the liability for the arbitration fees and expenses. Such allocable fees may include the initial administration fees, fees for second and subsequent hearings, postponement fees, and overtime fees. Allocable expenses may include the expenses of producing witnesses, the cost of stenographic records, the cost of any transcripts, travel expenses of the arbitrator and Tribunal administrator, the expenses of any witnesses, the costs of any proofs produced at the direct request of the arbitrator, and any other expenses relating directly to the arbitration. In the event of the failure of the arbitrator to provide for the allocation of such fees and expenses, the arbitration fees shall be divided equally between the parties and the expenses shall be borne by the party incurring them." -17- Section 15. Admission of New Members. It is recognized that public entities, other than the original members, may wish to participate in the Authority. Additional public entities may become members of the Authority upon such terms and conditions as provided by the Board and the unanimous consent of each existing member of the Authority, evidenced by the execution of a written addendum to this agreement signed by ail of the members including the additional member. The authority shall have the ability to create subcategories of membership for special projects. Section 16. Amendments. This agreement may be amended only by the unanimous vote of all members. Section 17. Notice. Any notice or instrument required to be given hand delivered or delivered by depositing the same in any United States Post Office, postage prepaid, addressed to the addresses of the members as shown herein, shall be deemed to have been received by the party to whom the same is addressed at the expiration of five days after deposit of the same in the United States Post Office for transmission by mail as aforesaid or if hand delivered the date of actual receipt. Section 18. Miscellaneous. A. The section headings herein are for convenience only and are not to be construed as modifying or governing the language in the section referred to. -18- B. Whenever in this agreement any consent or approval is required, such consent or approval shall not be reasonably withheld. C. This agreement is made in the State of California under the Constitution of laws of such State and is to be so construed. D. To preserve a reasonable degree of flexibility, many parts of this agreement are stated in general terms. It is understood that there may be operating memoranda, executed and amended from time to time by the mutual agreement of the parties that will further define the rights and obligations of the parties. E. This agreement was drafted by both parties with consideration of the needs and desires of the involved parties. Section 19. Agreement Binding Upon Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each party to this Agreement, and upon any such succession or assignment, the successor or assignee shall accept and assume in writing each and every obligation applicable under this Agreement as a condition of thereafter exercising its right to use its respective capacity in the treatment facility. All successors and assignees are subject to the membership approval requirements setforth in Section 15 of this agreement. Section 20. Severability. Should any part, term, or provision of this agreement be determined by the courts to be illegal or in conflict within any law of the State of California, or is otherwise rendered unenforceable or ineffectual, the validity of the remaining portions shall not be affected thereby. -19- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to to be executed April 5 ,1988. CAPISTRANO BEACH SANITARY DISTRICT P.O. Box 2008 Capistya Beach 92624 By Approved by Board of Directors by President Resolution No. 265 Date March 28, 1988 Date March 28, 1988 CITY OF SAN JUAN CAPISTRANO 32400 Pase Adelanto San Jua 'pistr no, A� 7^ / Y Mayor t o . Bland Date April 5, 1988 ATTEST: Mary Ann no er, City /-�lerk APPROVED AS TO FORM: , City 0 • The motion carried by the following vote: AYES: Councilmen Schwartze, Friess, Buchheim, and Mayor Bland NOES: None ABSENT: Councilman Hausdorfer 4. JOINT EXERCISE OF POWERS AGREEMENT CREATING THE CAPISTRANO VALLEY WASTEWATER AUTHORITY 600.50 E --- Written Communications: Report dated April 5, 1988, from the Director of Public Works, forwarding a joint powers agreement setting forth the financial, legal, and administrative authority of the City and the Capistrano Beach Sanitary District in the creation of the Capistrano Valley Wastewater Authority to operate a joint facility at the northern boundary of Capistrano Beach. The City's share of the treatment plant project construction was estimated at $12,000,000. The report requested an initial allocation of $50,000 for the start up of the Authority. Creation of Capistrano Valley Wastewater Authority and Appointment of Directors: It was moved by Councilman Buchheim, seconded by Councilman Schwartze and unanimously carried to approve the Joint Exercise of Powers Agreement creating the Capistrano Valley Wastewater Authority and to authorize the allocation of $50,000 from the Sewer Enterprise Fund for Authority operations. Mayor Bland and Councilman Buchheim were appointed as Directors to the Authority, and the City Manager and the Director of Public Works were appointed as Alternate Directors to represent the City. 5. AWARD OF CONTRACT - CAMINO CAPISTRANO BRI Written Communications: Report dated April 5, 1988, from the Director of Public Works, forwarding results of bids received for the Camino Capistrano Bridge Landscaping Project. The report recommended award of the contract to the low responsible bidder, Tracy and Haigh Landscaping, Inc. The report advised that the project will be funded from the Systems Development Tax; however, there are currently no grant funds available. A budget transfer was requested. Award of Contract: It was moved by Councilman Schwartze, seconded by Councilman Buchheim and unanimously carried to award the contract for the Camino Capistrano Bridge Landscaping Project to the low responsible bidder, Tracy and Haigh Landscaping, Inc., of Rancho Santa Margarita, in the amount of $73,900. All other bids were rejected. The Mayor and City Clerk were authorized to execute the document on behalf of the City. A budget transfer in the amount of $103,000 from the Camino Capistrano Rehabilitation - Oso to Acjachema Project to the Camino Capistrano Bridge Landscaping Project was authorized. -11- 4/5/88 . AGENDA ITEM April 5, 1988 TO: Stephen B. Julian, City Manager FROM: W. D. Murphy, Director of Public Works SUBJECT: Joint Exercise of Powers Agreement, Creating the Capistrano Valley Wastewater Authority SITUATION The City and the Capistrano Beach Sanitary District (CBSD) have been working together to determine the feasibility of constructing a joint wastewater treatment plant to provide treatment services for both communities. Last June, a Facilities Plan was developed and presented to the public which identified alternatives and located a potential site at the northern boundary of Capistrano Beach (see map). Subsequently, an EIR was authorized to analyze the site and solicit additional public opinion. The results of the EIR process were positive and, in January, 1988, the document was certified and approved. With the initial phase of studying completed, it has been acknowledged that a joint facility would be of mutual benefit. To continue on in this endeavor, it is now appropriate for the District and the City to enter into a joint powers agreement. This agreement will provide for the joint exercise of the powers each agency now has in common, including: financial, legal, and administrative authorities. The proposed organization (Capistrano Valley Wastewater Authority) designates by this agreement a five member Board of Directors; two from each agency and one to be appointed by the other four through mutual agreement. The members of the Board will select officers; however, the Director of Administrative Services for the City of San Juan Capistrano has been identified as Treasurer for the Authority. Other sections to this agreement specify that budgets will require unanimous approval of the participating members and expenditures will be made on the authorization of the majority of the directors. No expenditures in excess of those budgeted will be made without the unanimous consent of project members. New members may participate in the Authority with the unanimous consent of the existing members. Additionally, this agreement is binding upon the successors and assigns of each party to the agreement with the obligations of the Authority not constituting the obligations of either agency. With the establishment of this joint powers authority, the City Council will need to appoint two directors and alternates to serve as the City's representatives to the Authority. The two directors should be City Council members, with the City Manager and Director of Public Works to act as alternates. In so doing the City will be continuing its efforts to provide for needed wastewater treatment capacity in an economically beneficial way to both the San Juan Capistrano and Capistrano Beach communities. NOTIFICATION Capistrano Beach Sanitary District; residents in the vicinity of the proposed plant site; SERRA and Member Agencies; City Homeowners Associations. ,AGENDA ITEM April 5, 1988 Page 2 COMMISSION/BOARD REVIEW, RECOMMENDATIONS The Capistrano Beach Sanitary District Board of Directors has approved the Joint Powers Agreement. Numerous public meetings with the community groups throughout the last year, reviewing the Facilities Plan and EIR, discussed the formation of a joint agency to facilitate this project. FINANCIAL CONSIDERATIONS The City has currently expended approximately $54,000 on this project. With the creation of the Joint Powers Authority, additional costs will be incurred to fund the agency as an independent operation. The development of an initial budget will be prepared following the formation of the Authority. A financial report on the feasibility of the City's participation in this project shows that the existing City Sewer Enterprise Fund has monies available to accommodate the beginning phase of this project; that is, design engineering, bid solicitation and contract award and construction start-up. Additional money will be necessary to fund the completion of the plant's construction. The City's share of the treatment plant project construction has been estimated to be about $12,000,000. With the City's/Joint Authority's ability to issue bonds, $9,000,000 of the City's obligation could be issued, allowing the existing Sewer Enterprise Fund balance to remain intact. Additionally, this would provide the City the ability to obtain capacity with the expense to be borne by new sewer users. In any case, the financial expenditures of the City for the entire project will need to be determined soon after the Authority is formed. An initial allocation of $50,000 from the Sewer Enterprise Fund to accommodate the start up of the Authority is being requested. ALTERNATE ACTIONS 1. Adopt the Joint Exercise of Powers Agreement, creating the Capistrano Valley Wastewater Authority, designate two Directors and two alternate directors to represent the City and authorize the allocation of $50,000 from the Sewer Enterprise Fund for Authority operations. 2. Do not enter into the Joint Exercise of Powers Agreement. 3. Refer to staff for additional informations. RECOMMENDATION By motion, adopt the Joint Exercise of Powers Agreement, creating the Capistrano Valley Wastewater Authority, designate two Directors and two alternate directors to represent the City and authorize the allocation of $50,000 from the Sewer Enterprise Fund for Authority operations. Respectfully submitted, W. D. Murphy WDM/CSF:nb 0 RESOLUTION NO. 265 0 RESOLUTION OF THE CAPISTRANO BEACH SANITARY DISTRICT TO ENTER INTO A JOINT POWERS AGREEMENT WITH THE CITY OF SAN JUAN CAPISTRANO FOR THE PURPOSE OF FORMING THE CAPISTRANO VALLEY WASTEWATER AUTHORITY WHEREAS, the Capistrano Beach Sanitary District and the City of San Juan Capistrano have undertaken the study and planning for a possible joint wastewater treatment plant; and WHEREAS, it appears to be in the best interest of both the Capistrano Beach Sanitary District and the City of San Juan Capistrano to proceed to construct, own and operate such facility; and WHEREAS, the Capistrano Beach Sanitary District is willing to sell a portion of its land to the proposed Joint Powers Authority for the benefit of the City of San Juan Capistrano and the City of San Juan Capistrano is willing to purchase such land for the joint project; and WHEREAS, it has been agreed that the governing board of the new Joint Authority to be formed will be comprised of a member or an appointee of the governing Board of the appointing party; and WHEREAS, it is the desire of Capistrano Beach Sanitary District to utilize a "turn Key" design, construct, and operate type of contract to perform this project NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Capistrano Beach Sanitary District to enter into a Joint Powers Agreement with the City of San Juan Capistrano for the purpose of forming the Capistrano Valley Wastewater Authority, which Joint Powers Agreement is attached hereto as exhibit "A". THE FOREGOING RESOLUTION is ADOPTED this 28th day of March, 1988 President of Capistrano Beach Sanitary District Attest: S cretary of Capistrano Beach Sanitary District 0 0 MEMORANDUM TO: George Scarborough, City Manager FROM: Cheryl Johnson, City Clerk DATE: June 1, 1993 SUBJECT: Termination of Joint Powers Agreement - Capistrano Valley Wastewater Authority 4,6,P,A„f. Council Member Vasquez gave me three originals of the subject agreement this date, advising that the Council needed to take an action on this and that they wanted to finalize it by I believe he said June 28th. Do you want to try for an agenda item or a 4/5th vote? cc: Bill Huber P; June 17, 1993 IAIOA,OAAI10 I�IIAAIA 1961 1776 Mr. Dennis Erdman Capistrano Valley Wastewater Authority P. O. Box 2008 Capistrano Beach, California 92624 Re: Termination of Joint Powers Agreement - Capistrano Valley Wastewater Authority Dear Mr. Erdman: MEMBERS OF THE CITY COUNCIL COLLENE CAMPBELL GARY L. HAUSDORFER GIL JONES CAROLYN NASH JEFF VASOUEZ CITY MANAGER GEORGESCARBOROUGH At their meeting of June 15, 1993, the City Council of the City of San Juan Capistrano approved the "Agreement for Dissolution and Termination of Joint Exercise of Powers Agreement Creating Capistrano Valley Wastewater Authority. Two fully -executed copies of the agreement are enclosed for your use. We have retained one fully -executed copy for our files. If you need any further information, please let us know. Very truly yours, Cheryl Johnson City Clerk Enclosure cc: Director of Engineering and Building (with copy of agreement) 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493-1171 MICHAEL W I ED LAT MILFORD W DAHL, UP THEODORE I WALLACE Dennis Erdman Capistrano Valley P.O. Box 2008 Capistrano Beach, 0 0 RUTAN & TUCKER ATTORNEYS AT LAW A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS BANK OF THE WEST, SUITE 1400 611 ANTON BOULEVARD COSTA MESA, CALIFORNIA 92626-1998 DIRECT ALL MAIL TO: P. O. BOX 1950 COSTA MESA, CALIFORNIA 92628-1950 TELEPHONE (114) 641-5100 (213) 625-1586 TELECOPIER (7I4) 545-9035 021THOMAS LAWSON POSEY JAMES IN TUCKER SIR.110BB-19501 PUT— RE W DAHL SR . (1919-1900) H RODGER AGWELL 11925 TUAGI May 6, 1993 Wastewater Authority CA 92624 Re: Agreement to Terminate Joint Powers Agreement Dear Dennis: As we discussed this date, enclosed please find two "signing originals" of the proposed Agreement between the Capistrano Beach Sanitary District and City of San Juan Capistrano, to terminate the Joint Powers Agreement forming the Capistrano Valley Wastewater Authority. The enclosed version is substantively identical to that distributed to the CVWA Board in December, 1992, except that the dates in the opening paragraph and Section 1 have been updated. Please give me a call if you have any questions regarding the enclosed Agreement. Otherwise, I look forward to seeing you when the CVWA Board of Directors meets - perhaps for its last time - at 3:00 p.m. on June 1, 1993. Enclosures FS2\131\012483-0001\2046781. 05/06/93 Very truly yours, 9 E-�. ............ stuuseto '� 1961 1776 MEMORANDUM TO: Interested Persons FROM: Mary Ann Hanover DATE: April 8, 1988 SUBJECT: Joint Exercise of Powers A MEMBERS OF THE CITY COUNCIL ANTHONY L. BLAND LAWRENCE F. BUCHHEIM KENNETH E. FRIESS GARY L. HAUSDORFER PHILLIP R. SCHWARTZE CITY MANAGER STEPHEN B JULIAN The City Council of the City of San Juan Capistrano at its regular meeting held April 5, 1988, approved the Joint Exercise of Powers Agreement creating the Capistrano Valley Wastewater Authority. Council designated Councilman Buchheim and Councilman Bland as Directors of the Capistrano Valley Wastewater Authority and City Manager, Stephen B. Julian, and Director of Public Works, William D. Murphy, were appointed as alternates. If we can be of further assistance, please call. MARY ANN ANOVER MAH/mac cc: Director of Public Works Santa Margarita Water District Village San Juan Community Assoc Moulton Niguel Water District Capistrano Garden Homes Homeowners Assoc. I and 2 Sunhollow Homeowners Assoc. Mission Hills Ranch Homeowners Assoc. Andrew Y. Lui Capistrano Valley Mobile Estates Villa San Juan Jose Rosan Mission Glen Homeowners Assoc. Capistrano Valley Water District Rio Vista Homeowners Assoc. Saddleback Capistrano Homeowners Assoc. Mission Park Homeowners Assoc. Capistrano Beach Water District State of California Regional Water Quality Control Board Dana Point Sanitary District City of San Clemente SERRA Casitas Capistrano Homeowners Assoc, II, and III Malaspina Homeowners Assoc. Tierra Del Caballo Homeowners Assoc. Cecilia Yorba and Cecilia Harrison Great Western Savings 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493-1171 0 April 8, 1988 Capistrano Beach Sanitary District P. O. Box 2008 Capistrano Beach, California 92624 MEMBERS OF THE CITY COUNCIL ANTHONY L. BLAND LAWRENCE F. HUCHHEIM KENNETH E. FRIESS GARY L. HAUSDORFER PHILLIP R. SCHWARTZE CITY MANAGER STEPHEN B JULIAN Re: Joint Exercise of Powers Agreement (Capistrano Valley Wastewater Authority) Gentlemen: The City Council of the City of San Juan Capistrano at its regular meeting held April 5, 1988, approved the Joint Exercise of Powers Agreement creating the Capistrano Valley Wastewater Authority. Council designated Councilman Buchheim and Councilman Bland as Directors of the Capistrano Valley Wastewater Authority and City Manager Stephen B. Julian and Director of Public Works William D. Murphy were appointed as alternates. A fully -executed copy of the Agreement is enclosed for your records. Thank you for your cooperation. If we can be of further assistance, please call. Very truly yours, Mary Annanover, CMC City Clerk MAH/mac Enclosure cc: Director of Public Works 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493-1171 9 • CAPISIRANO VALLEY NEWS - April 14, 1988 New plant for San Juan, Capo Beach By Alex Williams Staff Writer Sewage capacity may no longer be a problem for the communities of San .Juan Capistrano and Capistrano Beach now that a new sewage plant has been approved. On April 5, the San Juan City Coun- cil unanimously approved a joint - powers agreement with Capistrano Beach to create the Capistrano Val- ley Wastewater Authority. The new plant, scheduled to be built near the Price Club in 1989, should cover the treatment needs of both communities up to the time they reach maximum populations. "I'm just tickled;" said Councilman Larry Buchheim. "I never thought I'd live to see it." He said his father tried to bring the communities together on a similar project 50 years ago. The plant, Buchheim said, would employ new technology that will make treatment more efficient. San Juan currently processes its sewage at the South East Regional Reclamation tSERRA) plant in Dana Point across San Juan Creek from the future site. The city owns 28 percent of the SERRA plant, which services six lo- cal water districts including San Juan's and Capistrano Beach's. Buchheim said the city could lease or sell their current capacity at SERRA and use the funds to offset the cost of the new plant. Buchheim, along with Mayor Tony Bland, will serve on the Capistrano Valley Wastewater Authority Board along with two members of the Capistrano Beach Sanitary District and a fifth member to be appointed by the other four board members. The city redevelopment agency, said Buchheim, will provide money for the new plant. The facility is planned to treat 6.3 million gallons of sewage per day.