HomeMy WebLinkAboutSCRWA - 1992 JPAJOINT EXERCISE OF POWERS AGREEMENT
CREATING THE SOUTH COUNTY REGIONAL
WASTEWATER AUTHORITY
By and Between
THE CITY OF GILROY
i f
THE CITY OF MORGAN HILL
May 19, 1992
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JOINT EXERCISE OF POWERS AGREEMENT
CREATING THE SOUTH COUNTY REGIONAL
WASTEWATER AUTHORITY
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TABLE OF CONTENTS
Pale
ARTICLE I.
DEFINITIONS .. ...............................
2
ARTICLE II.
CREATION OF AUTHORITY; PURPOSE AND POWERS ...
4
Section
2.1. Authority Created .......................
4
Section2.2.
Purpose .. ...............................
4
Section2.3.
Powers ... ...............................
5
ARTICLE III.
ORGANIZATION . ...............................
7
Section
3.1. Governing Board .........................
7
Section
3.2. Meetings of the Board ...................
7
Section
3.3. Officers; Staff; Other Personnel ........
8
ARTICLE IV.
ACCOUNTS AND REPORTS; BUDGETS AND PAYMENTS ..
10
Section
4.1. Accounts and Reports ....................
10
Section
4.2. Budgets and Payments ....................
11
ARTICLE V.
BONDS AND OTHER FORMS OF FINANCING ..........
14
ARTICLE VI.
AUTHORITY PROJECTS ..........................
15
Section
6.1. Planning . ...............................
15
Section
6.2. Project Committee .......................
15
Section
6.3. Maintenance and Operation of Projects ...
15
ARTICLE VII.
PROPERTY RIGHTS .............................
16
ARTICLE VIII. TERMINATION AND DISPOSITION OF ASSETS .......
16
Section8.1.
Term ..... ...............................
16
Section
8.2. Disposition of Assets and
Termination of Agency ...................
16
Section
8.3. Liabilities .............................
16
ARTICLE IX.
DISCHARGE REQUIREMENTS ......................
17
Section
9.1. Wastewater Treatment Standards
and Regulations .......................
17
ARTICLE X.
TERMINATION OF PRIOR AGREEMENT ..............
17
Section
10.1 Termination of Agreement of 1979 ........
17
ARTICLE XI.
MISCELLANEOUS ...............................
19
Section
11.1 Breach ... ...............................
19
Section
11.2 Resolution of Disputes ..................
19
Section
11.3 Indemnification of Member Agencies ......
19
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Section
11.4
Amendments ..............................
20
Section
11.5
Notice ... ...............................
20
Section
11.6
Severance Clause ........................
20
Section
11.7
Section Headings ........................
20
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JOINT EXERCISE OF POWERS AGREEMENT
CREATING THE SOUTH COUNTY REGIONAL
WASTEWATER AUTHORITY
THIS AGREEMENT is. �made and entered into effective the
&7 day of ' aooP. , 1992, by and between the City of
Morgan Hill, a municipal corporation duly organized and
existing pursuant to the laws of the State of California
(herein called "Morgan Hill "), and the City of Gilroy, a
municipal corporation duly organized and existing pursuant to
its charter and the laws of the State of California (herein
called "Gilroy "); the two cities are herein together- referred
to as the "Member Agencies ";
WITNESSETH:
WHEREAS, Pursuant to Chapter 5 of Division 7 of Title 1 of
the Government Code of the State of California (the "Joint
Exercise of Powers Act ") two or more public agencies by
agreement may, if authorized by their legislative or other
governing bodies, jointly exercise any power common to such
public agencies; and
WHEREAS, the Member Agencies are each empowered by law to
purchase, lease, receive, hold and enjoy real and personal
property and control and dispose of it for the common benefit,
and to own, operate and maintain systems, plants, buildings,
works and other facilities for the collection, treatment and
disposal of sewage, waste and storm water, including wastewater
treatment and disposal plants and works and facilities in
connection therewith, and reclamation facilities; and
WHEREAS, the Member Agencies have previously entered into a
joint powers agreement (the "Agreement of 1979 ") regarding the
ownership, operation, maintenance and use of the existing
sewage treatment plant, including reclamation facilities (the
"Existing Treatment Plant ") which each Member Agency is
currently using for the treatment and disposal of its
wastewater; and
WHEREAS, the Member Agencies have determined that the
Existing Treatment Plant does not have sufficient capacity to
serve their needs and that it is necessary to construct new
wastewater facilities in order to do so; and
WHEREAS, upon completion of the new wastewater facilities,
the Existing Treatment Plant will be abandoned except to the
extent components thereof, if any, are incorporated into the
new facilities; and
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WHEREAS, upon the effective date of this Agreement the
Member Agencies intend that the Agreement of 1979 be terminated
and of no further force and effect, but the Member Agencies
desire to carry forward certain of the provisions thereof as
set forth herein; and
WHEREAS, the Member Agencies have determined that their
present and future needs for the collection, treatment and
disposal of sewage, waste and storm water, and for reclamation,
can best be achieved through their cooperative action, and that
a joint exercise of powers authority should be formed for the
purpose of exercising such actions, including the financing of
the acquisition and construction of the new wastewater
facilities; and
WHEREAS, the Member Agencies are each authorized to
contract with the other for the purposes set forth above; and
WHEREAS, it is intended hereby that the Authority herein
created plan, develop and implement regional solutions to the
wastewater treatment and management problems resulting from the
generation of wastewater within the service areas of the Member
Agencies in accordance with all applicable federal, state and
regional water quality requirements, and consistent with the
respective planning needs of each Member Agency.
NOW, THEREFORE, the Member Agencies, for and in
consideration of the mutual promises and agreements herein
contained, do agree as follows:
ARTICLE I
DEFINITIONS
Unless the context otherwise requires, the terms defined in
this Section 1 shall for all purposes of this Agreement have
the meanings herein specified:
Agreement
The term "Agreement" shall mean this Joint Exercise of
Powers Agreement as the same now exists or as it may from time
to time be amended pursuant to the provisions hereof.
Agreement of 1979
The term "Agreement of 1979" shall mean the agreement
between the Member Agencies, dated April 18, 1979, entitled
"1979 Joint Exercise of Powers Agreement between the City of
Gilroy and the City of Morgan Hill Relating to Joint Wastewater
Management Facilities" as supplemented and amended.
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Authority
The term "Authority" shall mean the South County Regional
Wastewater Authority created by this Agreement.
Board
The term "Board" or "Board of Directors" shall mean the
governing body of the Authority.
Existing Treatment Plant
The term "Existing Treatment Plant" shall mean the existing
wastewater treatment plant and disposal facilities, including
reclamation facilities, known as the "Joint Gilroy /Morgan Hill
Sewage Treatment Plant" owned, operated and maintained pursuant
to the Agreement of 1979.
Fiscal Year
The term "Fiscal Year" shall mean July 1st to and including
the following June 30th.
Gilroy
The term "Gilroy" shall mean the City of Gilroy, a
municipal corporation duly organized and existing pursuant to
its charter and the laws of the State of California.
Joint Exercise of Powers Act
The term "Joint Exercise of Powers Act" shall mean
Chapter 5 of Division 7 of Title 1 of the Government Code of
the State of California (being Sections 6500 et sea. thereof)
as such Act now exists or as it may hereafter be amended.
Member Agency, Member Agencies
The term "Member Agency" shall mean either Gilroy or Morgan
Hill. "Member Agencies" shall mean Gilroy and Morgan Hill.
Morgan Hill
The term "Morgan Hill" shall mean the City of Morgan Hill,
a municipal corporation organized and existing pursuant to the
laws of the State of California.
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Project
The term "Project" shall mean any systems, plants,
buildings, works or other facilities or properties for the
collection, treatment or disposal of sewage, waste or storm
water, including reclamation facilities, together with parking,
site development, landscaping, utilities, equipment,
furnishings, improvements and all appurtenant and related
facilities, together with land necessary therefor, acquired,
constructed or financed by the Authority pursuant to this
Agreement. "Project" shall also include any plans, studies or
other development work in connection with acquisition and
construction of any of the foregoing.
ARTICLE II
CREATION OF AUTHORITY; PURPOSE AND POWERS
Section 2.1. Authority Created. There is hereby created
an agency and public entity to be known as the "South County
Regional Wastewater Authority ". The Authority is formed by
this Agreement pursuant to the provisions of the Joint Exercise
of Powers Act. As provided in the Joint Exercise of Powers
Act, the Authority shall be a public entity separate from its
Member Agencies. The debts, liabilities and obligations of the
Authority shall not constitute debts, liabilities or obliga-
tions of the Member Agencies; provided, that any Member Agency
may separately contract for, or assume responsibility for,
specific debts, liabilities or obligations of the Authority.
Within 30 days after the effective date of this Agreement
or any amendment hereto, the Authority will cause a notice of
this Agreement or such amendment, as the case may be, to be
prepared and filed with the Office of the Secretary of State of
the State of California in the manner set forth in Section
6503.5 of the Joint Exercise of Powers Act.
Section 2.2. Purpose. The purpose of this Agreement is to
provide for the joint exercise of powers common to the Member
Agencies. The Member Agencies are each empowered by the laws
of the State of California to exercise the powers specified in
the recitals herein, including acquiring, constructing,
maintaining and operating systems, plants, buildings, works and
other facilities or properties for the collection, treatment or
disposal of sewage, waste or storm water, including wastewater
and disposal plants and works and facilities in connection
therewith, and reclamation facilities, and to adopt and enforce
uniform wastewater treatment standards and regulations. These
common powers will be jointly exercised in the manner
hereinafter set forth.
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Section 2.3. Powers. The Authority, in its own name, or
for the benefit of the Member Agencies, shall have the power to
acquire by purchase, lease, contribution, eminent domain or
otherwise, real or personal property, and to plan for, develop,
contract for, own, acquire, construct, finance, operate and
maintain any systems, plants, buildings, works and other
facilities for the collection, treatment and disposal of
sewage, waste and storm water, including sewage treatment and
disposal plants and works and facilities in connection
therewith, and reclamation facilities.
The Authority is authorized in its own name to do all acts
necessary or convenient to the exercise of said powers for said
purposes, including but not limited to any or all of the
following:
(i) To exercise jointly the common powers of its Member
Agencies in studying, planning and implementing ways
and means to provide for the collection, treatment and
disposal of sewage, wastewater and storm water, and
for reclaimed water.
(ii) To make and enter contracts.
(iii) To contract for the services of engineers, attorneys,
planners, financial consultants or other agents, and
separate and apart therefrom, to employ such other
persons, as it deems necessary.
(iv) To acquire, construct, manage, maintain and operate
any buildings, works, or improvements.
(v) To acquire, hold and dispose of property.
(vi) To incur debts, liabilities, or obligations subject to
limitations herein set forth.
(vii) To sue and be sued in its own name.
(viii) To apply for an appropriate grant or grants and /or
loan or loans under any federal, state or local pro-
grams for assistance in developing any of its Projects.
(ix) To establish rates, tolls, fees, rentals, or other
charges in connection with the facilities and services
provided by the Authority subject to the limitations
set forth in Section 4.2(c) hereof.
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(x) To plan for, construct, operate, or maintain a Member
Agency's sole -use facilities when specifically
requested by that Member Agency, or when necessary to
meet joint discharge requirements.
(xi) To adopt regulations establishing uniform wastewater
treatment standards and regulations throughout the
jurisdictions of the Member Agencies in order to
enable the Authority to comply with its NPDES permit
and any applicable federal and state regulations; when
authorized by a Member Agency, implement, and enforce
through civil or criminal means, such standards and
regulations on behalf of the authorizing Member
Agency; and, on its own behalf, implement, and enforce
through civil or criminal means, such standards and
regulations.
(xii) To issue revenue bonds in accordance with the
following laws:
(a) Article 2, Chapter 5, Title 1, Division
7 of the California Government Code, commencing
with Section 6540.
(b) Chapter 6, Title 5, Division 2 of the
California Government Code, commencing with
Section 54300.
(c) Chapter 5, Part 3, Division 5 of the
California Health and Safety Code, commencing
with Section 4950.
(xiii) To use other financing acts, including, but not
limited to, the Mello -Roos Community Facilities
District Act of 1982, the Municipal Improvement Act of
1913 and the Improvement Bond Act of 1915.
(xiv) To exercise any of the powers set forth in Section 6588
of Article 4 (Marks -Roos Local Bond Pooling Act of
1985) of the Joint Exercise of Powers Act.
Such powers shall be exercised subject only to such
restrictions upon the manner of exercising such powers as are
imposed upon a general law city in the exercise of its powers.
Notwithstanding the foregoing, the Authority shall have any
additional powers conferred under the Joint Exercise of Powers
Act, insofar as such additional powers may be necessary to
accomplish the purposes set forth in Section 2.2. .
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ARTICLE III
ORGANIZATION
Section 3.1. Governing Board. The Authority shall be
administered by a Board of Directors, which shall consist of
five persons, each serving in his or her individual capacity as
a Director of the Authority. Three Directors shall be council
members of the City Council of Gilroy, and two Directors shall
be council members of the City Council of Morgan Hill. Such
Directors shall be appointed within thirty (30) days after
execution of this Agreement by their respective City Councils.
The City Council of each Member Agency shall also appoint alter-
nate Directors whose names shall be on file with the Secretary
of the Authority and who may assume all rights and duties of an
absent Director representing the appointing Member Agency.
Each Director shall serve on the Board at the pleasure of
the City Council by whom such Director was appointed and may be
removed at any time, with or without cause, at the sole
discretion of such City Council. In any case, the term of
office as Director shall terminate if and when such Director
ceases to be a member of such City Council.
The Directors may receive compensation for serving as such
as established by the Board, and shall be entitled to
reimbursement for expenses incurred in the conduct of the
business of the Authority if the Board determines that such
expenses shall be reimbursed.
Section 3.2. Meetings of the Board.
(a) Regular Meetings. The Board shall hold at least one
regular meeting each year, and, by resolution, may provide for
the holding of regular meetings at more frequent intervals.
The date upon which, and the hour and place at which, each such
regular meeting shall be held shall be fixed by resolution of
the Board.
(b) Special Meetings. Special meetings of the Board may
be called in accordance with the provisions of Section 54956 of
the Government Code of the State of California.
(c) Legal Notice. All meetings of the Board shall be
called, noticed, held and conducted subject to the provisions
of the Ralph M. Brown Act (Chapter 9 of Part 1 of Division 2 of
Title 5 of the Government Code of the State of California
(Sections 54950 - 54961)).
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(d) Minutes. The Secretary of the Authority shall cause
minutes of all meetings of the Board to be kept and shall, as
soon as possible after each meeting, cause of copy of the
minutes to be forwarded to each Director and to each Member
Agency.
(e) Bylaws Rules and Regulations. The Board may adopt
bylaws, rules and regulations for the conduct of its affairs.
(f) Conflict of Interest Code. The Board by resolution
shall adopt a Conflict of Interest Code as required by law.
(g) Quorum. A majority of the Directors shall constitute
a quorum for the transaction of business, provided there is at
least one Director from each Member Agency, except that less
than a quorum may adjourn from time to time.
(h) Powers and Limitations Thereon. All power and
authority of the Authority shall be exercised by the Board,
subject, however, to the reserved rights of the Member Agencies
as herein set forth. Each Director shall be entitled to one
vote and, unless otherwise provided herein, a vote of the
majority of those present and qualified to vote, provided such
majority is comprised of at least one Director from each Member
Agency, may adopt any motion, resolution or order and take any
other action they deem appropriate to carry forward the
objectives of the Authority.
(i) Consent or Approval of Member Agency. The consent or
approval of a Member Agency in any matter requiring such
consent or approval hereunder shall be evidenced by a certified
copy of the resolution or other action of the City Council of
such Member Agency filed with the Authority.
Section 3.3. officers: Staff: Other Personnel.
(a) The Authority shall have three officers: Chairperson,
Vice - Chairperson, and Secretary. The Board shall elect a
Chairperson of the Authority and a Vice - Chairperson of the
Authority from among its Directors and shall appoint a
Secretary of the Authority who may, but need not, be a Director.
(b) The City Treasurer of Gilroy is hereby initially
designated as Treasurer of the Authority as required by
Section 6505.5 of the Joint Exercise of Powers Act. Subject
the applicable provisions of any indenture or resolution
providing for a trustee or other fiscal agent, the Treasurer
designated as the depositary of the Authority to have custody
of all the money of the Authority, from whatever source, and,
as such, shall have the powers, duties and responsibilities
specified in the Joint Exercise of Powers Act.
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to
is
(c) The Finance Director of Gilroy is hereby initially
designated as Controller of the Authority as required by
Section 6505.5 of the Joint Exercise of Powers Act and shall
draw all warrants and pay demands against the Authority
approved by the Board, and as such, shall have the powers,
duties and responsibilities specified in Section 6505.5 of the
Joint Exercise of Powers Act.
(d) In lieu of the designation of a Treasurer and
Controller as provided in Subsection 3.3(b) and (c) hereof, the
Authority may, at any time, appoint one of its officers or
employees to either or both of such positions in accordance
with Section 6505.6 of the Joint Exercise of Powers -Act. In
such event, the Board shall determine whether an official bond
is necessary, and, if so, the amount thereof. The offices of
Treasurer and Controller may be held by separate officers or
employees or combined and held by one officer or employee. Any
officer or employee appointed as Treasurer and /or Controller
pursuant hereto shall comply with the duties and
responsibilities of such office or offices as set forth in
Section 6505.6 of the Joint Exercise of Powers Act. The
officer or employee appointed as Treasurer and /or Controller
pursuant hereto shall cause an independent audit to be made by
a certified public accountant or public accountant annually in
accordance with Section 6505 of the Joint Exercise of Powers
Act.
(e) The Treasurer and Controller of the Authority are
designated as the public officers or persons who have charge
of, handle, or have access to, any property of the Authority,
and each such officer need not file an official bond with the
Authority, if such officer already is bonded by a Member Agency
in a sufficient amount as determined by the Board.
(f) The Treasurer and Controller are hereby authorized and
directed to prepare or cause to be prepared:
(i) a special audit as required pursuant to Section
6505 of the Government Code of the State of California every
year during the term of this Agreement as hereinafter provided;
and
(ii) a report as required pursuant to Section 6505.5
in writing on the first day of July, October, January, and
April of each year to the Board and to each Member Agency,
which report shall describe the amount of money held by the
Treasurer and Controller for the Authority, the amount of
receipts since the last such report, and the amount paid out
since the last such report.
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(g) The Board shall employ or contract for the services of
personnel to serve the staff needs of the Authority, including
a Manager who shall be responsible for the general execution of
Authority policy as set by the Board. A staff member may, but
does not have to be, a staff member of a Member Agency. The
Board shall initially contract with Gilroy to provide all
personnel and staff for the Authority.
(h) The Board shall have the power to appoint such other
officers and employees as it may deem necessary and to retain
independent counsel, consultants and accountants.
(i) 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 (including City Council -
members), agents, or employees of either Member Agency 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 duties under this Agreement.
None of the officers, agents, or employees appointed
by the Board shall be deemed by the Member Agencies or by
reason of their appointment and /or employment by the Authority
to be subject to any of the requirements of the Member Agencies.
ARTICLE IV
ACCOUNTS AND REPORTS, BUDGETS AND PAYMENTS
Section 4.1. Accounts and Reports.
(a) There shall be a strict accountability of all
Authority funds and report of all receipts and disbursements in
compliance with the Joint Exercise of Powers Act. The
Authority shall establish and maintain such funds and accounts
as may be required by good accounting practice. The books and
records of the Authority shall be open to inspection at all
reasonable times by the Member Agencies and their representa-
tives. The Authority shall give an unaudited written report of
all financial activities for each Fiscal Year to each Member
Agency within 150 days after the close of each Fiscal Year.
(b) So long as required by Section 6505 of the Joint
Exercise of Powers Act, the Controller of the Authority shall
either make, or contract with a certified public accountant or
public accountant to make, an annual audit of the accounts and
records of the Authority. The minimum requirements of the
audit shall be those prescribed by the State Controller for
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special districts under Section 26909 of the Government Code of
the State of California and shall conform to generally accepted
auditing standards. When such an audit of an account and
records is made by a certified public accountant or public
accountant, a report thereof shall be filed as a public record
with each of the Member Agencies, and, if required by
Section 6505 of the Joint Exercise of Powers Act, with the
County Auditor /Controller of the County of Santa Clara. Each
such report shall be filed within 12 months of the end of the
Fiscal Year or Fiscal Years under examination.
Section 4.2. Budgets and Payments.
(a) Budget. Within sixty (60) days after the first
meeting of the Board, a budget shall be prepared for the
balance of that Fiscal Year. Thereafter, at or prior to each
May meeting of the Board, a proposed budget shall be prepared
for the ensuing Fiscal Year.
The initial budget and each succeeding budget shall
include, for the Fiscal Year for which it is prepared, the
following:
(i) the administrative expenses of the Authority;
(ii) the expenses of maintaining the facilities to be
maintained by the Authority;
(iii) the expenses of operating the facilities to be
operated by the Authority;
(iv) an estimate of income from operations, if any, and its
allocation to the Member Agencies in accordance with
the formula or formulas set forth in the budget;
(v) the allocation of the administrative, maintenance and
operation expenses to the Member Agencies in accor-
dance with the formula or formulas set forth in the
budget;
(vi) the estimated costs of any proposed Project or
Projects to be undertaken during that Fiscal Year;
(vii) the allocation of such Project(s) costs to the Member
Agencies in accordance with the formula or formulas
set forth in the budget; and
(viii) the allocation of debt service obligations on any
bonds or other forms of indebtedness, or obligations
under any lease or other installment purchase
agreement, to the Member Agencies;
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The allocation of the revenues and expenses in the initial
budget shall be shared based on the following formula: Gilroy
58 %; Morgan Hill 42 %. After the initial budget, the revenues
and expenses shall be allocated based on a formula or formulas
to be determined by the Board.
After the Board preliminarily approves of a general budget,
it shall be submitted immediately to the City Councils of the
Member Agencies for review and approval. Final approval of a
general budget shall be made by the Member Agencies by July 1st
following preparation of each budget. A copy of the budget
shall be filed with each Member Agency.
If there is a conflict between the Member Agencies
regarding a proposed budget, until a budget is approved, the
Authority shall operate under the proposed budget and
allocation formula for all administration, operations,
maintenance and approved Projects until resolution of the
conflict. Following resolution of the conflict, adjustments by
way of credits or additional charges shall be made to the
Member Agencies as appropriate.
Each Member Agency agrees to include in its annual budget
amounts estimated to be sufficient to pay all such charges.
(b) Expenditures for the Approved Budget. All transfers
within an approved budget shall be made on the authorization of
the Board. No expenditures in excess of the total budgeted in
such budget shall be made without the approval of the Member
Agencies.
(c) Rates and Charges. Initially the Board will allocate
to and bill the Member Agencies for budget items allocable to
the Member Agencies; each Member Agency will then incorporate
its share of such items into its system of rates and charges
for sewer service and facilities in the manner it deems
appropriate.
However, the Board may determine with respect to any
capacity rights in any facilities reserved in the name of and
for the benefit of the Authority pursuant to Article VII
hereof, or services provided by the Authority in conjunction
therewith, to establish its own system of rates, tolls, fees,
rentals, or other charges in connection therewith and collect
such charges directly from the users and /or beneficiaries
thereof.
In addition, the Board, with the consent of a Member
Agency, may determine, with respect to capacity rights held in
the name of and benefit of that Member Agency pursuant to
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Article VII hereof, or services provided by the Authority in
connection therewith, to establish a system of rates, tolls,
fees, rentals or other charges in connection therewith and
collect such charges directly from the users and /or
beneficiaries thereof.
(d) Payment of Amounts Due. Amounts required to be paid
by any Member Agency shall be due and payable thirty (30) days
after receipt of billing therefor from the Board. After comple-
tion of the purpose for which funds were provided to the
Authority by a Member Agency, any surplus moneys shall be
returned in cash or by way of a credit to that Member Agency in
proportion to the funds so provided.
The Authority may determine to bill in advance of
expenditures, based upon the approved budget; in such case an
accounting shall be maintained with necessary debits or credits
provided as appropriate.
Amounts shall be due and payable and be delinquent thirty
(30) days after a bill is rendered, and thereafter, shall incur
a delinquency penalty and /or an interest charge until paid.
The delinquency charge and /or interest rate charge shall be set
by written policy of the Board.
The Authority is hereby authorized to take any or all legal
actions necessary and permitted by law to enforce the
collection of charges approved in the budget or any other
compliance with the Agreement, including, but not limited to,
actions or proceedings in mandamus to require each Member
Agency to collect the charges approved in the budget from the
taxpayers, landowners, or users of any of the facilities of the
Authority.
(e) Contributions; Payments and Advances. Use of
Personnel Equipment or Property; Exchange of Services. It is
hereby agreed that:
(i) contributions from a Member Agency's treasury may
be made for the purpose set forth in this Agreement;
(ii) payments of public funds of ,a Member Agency may
be made to defray the cost of such purpose;
(iii) a Member Agency may make advances of public funds
to the Authority;
(iv) personnel, equipment or property of a Member
Agency may be used in lieu of other contributions or
advances, however, the Member Agencies must agree in
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advance upon the value to be assigned the personnel,
equipment, property or services, with respect to any said
contributions or advances;
(v) the Member Agencies may exchange services without
payment of any consideration other than such services.
(f) Reimbursement of Funds. Grant funds received by the
Authority from any federal, state or local agency to pay for
budgeted expenditures already paid by the Member Agencies shall
be proportionally returned in cash or by way of a credit to the
Member Agencies to reimburse them for the funds so advanced to
the Authority for the construction of the Project fo-r which
grant money has been received.
ARTICLE V
BOND AND OTHER FORMS OF FINANCING
The Authority shall have the power to issue bonds for the
purpose of raising funds necessary to accomplish its purposes
under this Agreement and to enter into appropriate agreements
or leases to secure the bonds, including an agreement or agree-
ments with any Member Agency wherein said Member Agency agrees
to pay to the Authority all or portions of revenues received by
the Member Agency from a Project, the Existing Treatment Plant,
and /or its wastewater collection system, except as such
revenues may be required to pay maintenance and operation
expenses of such Project, the Existing Treatment Plant and /or
its wastewater collection system, or are otherwise encumbered,
pledged or legally unavailable, but in order to do so, the
Authority shall first obtain the consent of the Member Agencies.
The Authority shall also have the power to issue any other
forms of indebtedness in accordance with the provisions of the
Joint Exercise of Powers Act or other State law for such
purposes, but in order to do so, the Authority shall first
obtain the consent of the Member Agencies.
ARTICLE VI
AUTHORITY PROJECTS
Section 6.1. Planning Policy. In keeping with the purpose
of this Agreement, the Member Agencies hereby authorize and
direct the Board to undertake such studies and planning
relative to the combined service areas of the Member Agencies
as may be necessary, to provide for the joint collection,
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transmission, treatment and disposal of sewage and /or the
reclamation of wastewater. The specific objectives of the
studies shall be to develop regional solutions to the waste-
water treatment and management problems which will be in
accordance with all applicable federal, state and regional
water quality control requirements, consistent with the
respective planning needs of each Member Agency. It is
understood that this Agreement shall not affect the rights or
powers of either Member Agency to independently plan for and /or
construct wastewater or reclamation facilities.
The studies may include proposals for construction of joint
collection systems, trunk and interceptor lines, treatment
plants, disposal systems and reclamation facilities. The
studies may also include proposals to be used in conjunction
with facilities not within the Authority's jurisdiction. Any
studies may consider all phases of planning, design, construc-
tion, maintenance and operation of facilities proposed by the
Authority, and allocation to the Member Agencies of capital,
maintenance and operating costs.
Section 6.2. Project Committee. If it is determined to
undertake a proposed Project for only one Member Agency, the
Directors of that Member Agency shall constitute a subcommittee
of the Board for that Project, and be referred to as the
If Project Committee ". All
actions by a Project Committee shall be deemed actions of the
Authority and shall be taken in the name of the Authority,
however, only that Member Agency desiring to undertake the
Project shall have rights and obligations in the Project.
Section 6.3. Maintenance and Operation of Projects. The
Board shall determine, prior to the acquisition or construction
of any facilities, whether or not the Authority shall maintain
and /or operate the facilities. If the Authority is to maintain
and /or operate the facilities, it shall do so in an efficient
and economical manner and in a manner not detrimental to either
Member Agency. It is the intent of the Member Agencies that
any facilities may be maintained and operated in the name of
the Authority. As an alternative, the Board may determine that
one Member Agency should maintain and /or operate certain
facilities. In such case, it shall obtain the consent of such
Member Agency to do so and enter into an appropriate agreement
therefor.
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ARTICLE VII
PROPERTY RIGHTS
All facilities constructed or acquired by the Authority
shall be held in the name of the Authority for the benefit of
the Member Agencies in accordance with the terms of this
Agreement. The Board shall allocate all such capacity rights
to the Member Agencies except for any portion or portions
thereof which the Board determines shall be reserved in the
name of and for the benefit of the Authority. It is the intent
of the foregoing provision that the Authority not, unless
expressly determined by the Board, acquire any capacity rights
in any facilities, except for the benefit of the Member
Agencies. Capacity rights may not be reallocated, sold, leased
or assigned to one Member Agency from the other without express
written agreement between the Member Agencies.
ARTICLE VIII
TERMINATION AND DISPOSITION OF ASSETS
Section 8.1. Term. The Authority shall continue in full
force and effect so long as any facilities constructed here-
under are owned, maintained, or operated by the Authority, or
until terminated by a written agreement of the Member Agencies;
provided, however, in no event shall this Agreement be
terminated while any bonds or other indebtedness of the
Authority remains outstanding.
Section 8.2. Distribution of Assets and Termination of
Authority. To the extent that any funds (or property in lieu
of funds) received from any Member Agency are used for the
acquisition or construction of Project facilities, the same
shall be allocated annually on the books of the Authority to
the credit of said contributing Member Agency. Upon termina-
tion of the Authority herein created, any facilities owned by
the Authority, and any funds in possession of the Authority at
such time shall be distributed in kind or sold, and the
proceeds thereof distributed to the Member Agencies as their
interests appear on the books of the Authority.
Section 8.3. Liabilities. The debts, liabilities and
obligations of the Authority shall be the debts, liabilities or
obligations of the Authority alone and not of the Member
Agencies; provided, however, that a Member Agency may
separately contract for, or assume responsibility for, specific
debts, liabilities, or obligations of the Agency.
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ARTICLE IX
DISCHARGE REQUIREMENTS
Section 9.1. Wastewater Treatment Standards and
Regulations. Each Member Agency agrees to adopt wastewater
treatment standards and regulations consistent with wastewater
treatment standards and regulations adopted by the Authority.
Such standards and regulations shall include provisions
related to industrial waste in which there shall be established
criteria for, and restrictions on, the nature and quality of
industrial waste discharged either directly or indirectly into
the Authority's facilities.
The industrial waste standards and regulations shall
authorize the issuance of industrial waste discharge permits
thereunder and provide that such permits will be issued by the
Authority, shall authorize field inspectors or other employees
or agents of the Authority to act as enforcement agents of the
Member Agency with the power to inspect and issue notices for
violations of the standards and regulations, and shall confer
upon, and empower the Authority to seek civil injunctive relief
or criminal prosecution, or both, for noncompliance with, or
violation of, such standards and regulations by any discharger.
Nothing in this Section shall preclude either Member Agency
or the Authority from providing additional levels of treatment
to insure meeting waste discharge requirements in the combined
effluent. In the event that one or both Member Agencies are
obligated to provide additional levels of treatment to meet
waste discharge requirements for the combined effluent, the
Member Agency requiring the additional levels of treatment
shall participate in the costs of such treatment based on its
relative contribution of waste characteristics to be treated
and the costs of providing such treatment.
ARTICLE X
TERMINATION OF PRIOR AGREEMENT
Section 10.1. Termination of Agreement of 1979. Upon the
effective date of this Agreement, the Agreement of 1979 shall
terminate and be of no further force and effect, provided,
however:
1. Following completion of the annual audit for the
funds and accounts of the City of Gilroy related to the
operation of the Existing Treatment Plant for Fiscal Year
1991 -92, there shall be a final accounting by the Member
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Agencies of the funds and accounts maintained under the
Agreement of 1979 and appropriate debits and credits made-
to the Member Agencies as a result thereof.
2. Any assets that the Board determines are not
usable in conjunction with the new facilities shall be
disposed of by the Member Agencies, with appropriate credit
being given to the Member Agencies, or, in the event any
such asset is retained by one Member Agency, payment made
or credit given to the other Member Agency for its
interests therein under the Agreement of 1979.
3. Interceptor Sewers. The Member Agencies have,
under the Agreement of 1979, constructed certain
interceptor sewers, the capacity of which has been, and
shall continue to be, allocated as follows:
a. Monterey Highway to Farrell Avenue. The
capacity allocated to the Member Agencies in the
various reaches of this interceptor is as set forth in
Exhibit "A" hereto.
b. Farrell. Avenue to Existing Treatment Plant.
The capacity allocated to the Member Agencies is on a
50:50 basis.
4. Boundary Agreement. The Member Agencies have
established an inter -city boundary line as shown on
Exhibit "B" hereto. Neither City shall extend its city
limits beyond the inter -city boundary line without the
consent of the other. Each City agrees to give such
consent whenever necessary to prevent the boundary line of
any area to be annexed to either City or the city limit
lines of either City from bisecting any parcel of real
property owned by a single owner.
The Member Agencies agree that, if either City
shall by annexation proceedings of any kind extend its city
limits beyond the inter -city boundary line without the
consent of the other City, then no part of the area to
which such annexation proceedings relate shall be served by
the joint facilities to be constructed pursuant hereto.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Breach. If default shall be made by a
Member Agency in any covenant contained in this Agreement, such
default shall not excuse either Member Agency from fulfilling
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its obligations under this Agreement and both Member Agencies
shall continue to be liable for the performance of all condi-
tions herein contained. The Member Agencies hereby declare
that this Agreement is entered into for the benefit of the
Authority created hereby and the Member Agencies hereby grant
to the Authority the right to enforce by whatever lawful means
the Authority deems appropriate all of the obligations of each
of the Member Agencies hereunder. Each of the remedies given
to the Authority hereunder or by any law now or hereafter
enacted is cumulative and the exercise of one right or remedy
shall not impair the right of the Authority to any or all other
remedies.
Section 11.2. Resolution of Disputes. Subject to the
following provisions, any controversy or claim arising out of
or relating to this Agreement, its interpretation or breach,
shall be settled through a dispute resolution process
( "process ") :
The process shall be initiated whenever all Directors
from either Member Agency give written notice to the
Directors of the other Member Agency of the intention to
arbitrate. The notice shall set forth the nature of the
dispute to be resolved, the amount involved, if any, and
the remedy sought.
Arbitration shall be commenced upon the filing of said
notice by either Member Agency with the American
Arbitration Association. Thereafter, the process shall be
conducted in compliance with the rules of the American
Arbitration Association in effect at the time of the filing
of the notice, except that the dispute shall be heard and
determined by one arbitrator.
Judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. Costs
of the process shall be borne by the Member Agency against
which the ruling is made.
Section 11.3. Indemnification of Member Agencies. The
Authority shall, at Authority's sole cost and expense,
indemnify, defend and save harmless the Member Agencies, their
Councilmembers, officers, employees and agents, from all costs,
expenses (including, without limitation, attorneys' fees and
costs of suit), claims, actions, proceedings, obligations,
liabilities, or damages to persons or property or otherwise
arising out of or in any way connected with the intentional or
negligent act or ommission or breach of duty or obligation of
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the Authority, its officers, employees, agents, Directors,
contractors, subcontractors, or any officer, agent or employee
thereof.
Section 11.4. Amendments. This agreement may be amended
only by agreement signed by the Member Agencies.
Section 11.5. Notice. Any notice or instrument required
to be given or delivered may be given or delivered by
depositing the same in any United States Post Office,
registered or certified, postage prepaid, addressed to:
City of Morgan Hill
17555 Peak Avenue
Morgan Hill, California 95037
Attention: City Manager
City of Gilroy
7351 Rosanna Street
Gilroy, California 95020 -2409
Attention: City Administrator
Section 11.6. Severance Clause. If any section,
subsection, sentence, clause or phrase of this Agreement, or
the application thereof to either of the Member Agencies or any
other person or circumstances, is for any reason held invalid,
the validity of the remainder of the Agreement, or the
application of such provision to the other Member Agency, or to
any other persons or circumstances, shall not be affected
thereby. Each of the Member Agencies hereby declares that it
would have entered into this Agreement, and each section,
subsection, sentence, clause or phrase thereof, irrespective of
the fact that one or more sections, subsections, sentences,
clauses or phrases, or the application thereof, to any Member
Agency of any other person or circumstances be held invalid.
Section 11.7. Section Headings. All section headings
contained herein are for convenience of reference only and are
not intended to define or limit the scope of any provision of
this Agreement.
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IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals by their respective officers thereunto, duly
authorized the day and year first above written.
CITY OF ILRO CITY OF GAN H LL
By By �
Mayor ayor
����
At ttest
City Clerk �ty Clerk
(SEAL) (SEAL)
21
80980001/1
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