93-096 RESOLUTION NO. 93R-96
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ANAHEIM AUTHORIZING FORMATION OF A JOINT
POWERS AUTHORITY AND EXECUTION AND DELIVERY
OF A JOINT POWERS AGREEMENT
WHEREAS, the City of Anaheim ("City") and other public
agencies propose to form a joint powers authority pursuant to
Article 1 of Chapter 5 of Division 7 of Title 1 of the Government
Code of the State of California, to be known as the Financing
Authority for Resource Efficiency of California, in order that
such Authority may, in connection with resource efficiency
programs and facilities, exercise the powers provided to such an
authority under the Government Code of the State of California;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ANAHEIM AS FOLLOWS;
1. The city Council of the City of Anaheim hereby
authorizes and directs the officers and officials of the City,
jointly and severally, to assist in the organization of a joint
powers authority, to be known as the Financing Authority for
Resource Efficiency of California. The city Council of the City
of Anaheim hereby approves and authorizes the Public Utilities
General Manager to execute and the City Clerk to attest the Joint
Powers Agreement forming said joint powers authority, in
substantially the form on file with the city Clerk.
2. The Mayor, the City Manager, Public Utilities
General Manager, the Financial Services Manager of the Public
Utilities Department, the Director of Finance, the city Clerk,
city Attorney and City Treasurer and any other officers and
officials of the City are hereby authorized and directed, jointly
and severally, to take all actions and do all things necessary or
desirable hereunder with respect to the formation of said joint
powers authority, including without limitation the execution and
delivery of any and all agreements, certificates, instruments and
other documents which they, or any of them, may deem necessary or
desirable and not inconsistent with the purposes of this
Resolution.
3. This Resolution shall take effect from and after
the date of its passage and adoption.
THE FOREGOING RESOLUTION is approved and adopted by the
City Council of the City of Anaheim this 8th day of June
1993.
MAY R~OF~E~E C~EIM
ATTES~
THE CITY OF ANAHEIM
1695.1\LMOSE$\Ma¥ 25~ 1993
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss,
CITY OF ANAHEIM )
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Resolution
No. 93R-96 was introduced and adopted at a regular meeting provided by law, of the Anaheim City Council
held on the 8th day of June, 6993, by the following vote of the members thereof:
AYES: COUNCIL MEMBERS: Feldhaus, Hunter, Pickler, Simpson, Daly
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
AND I FURTHER CERTIFY that the Mayor of the City of Anaheiim signed said Resolution No. 93R-96 on the
9th day of June, 1993.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim
this 9th day of June, 1993.
CITY CLERK OF THE CITY OF ANAHEIM
(SEAL)
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original
of Resolution No. 93R-96 was duly passed and adopted by the City Council of the City of Anaheim on
June 8, 1993.
CITY CLERK OF THE CITY OF ANAHEIM
EXHIBIT "A"
[ EXECL'T. i ZN 7Z ~':'
JOINT POWE~t~ AGP. EEMENT
CP. EATING
FINANCIN~ Au'~-uORITY POR P. ESOU~CE EFFICIENCY OF CALIFOP. NIA
LAO1 \6190\2495.8 9~4:54.1
TABLE CF
ARTICLE I--PURPOSE OF AGREEMENT ............... 2
ARTICLE if--DEFINITIONS ................... 2
ARTICLE III--ORGANIZATION .................. 9
3.1 Creation of Authority .............. 9
3.2 Governing Body .................. 10
3.3 Members Entitled to Be Represented by Directors 10
3.4 Regular Meetings ................. 12
3.5 Special Meetings ......... 12
3.6 Legal Notice for Meetings ............ 12
3.7 Minutes of Meetings ......... 13
3.8 Quorum ....... 13
3.9 Voting Generally ................ 13
3.10 Voting on Project Matters ......... 14
3.11 Other Voting Arrangements ............ 14
3.12 Officers ............... 14
ARTICLE IV--POWERS AND FUNCTIONS; FINANCIAL MATTERS 17
4.1 Powers ............. 17
4.2 Indebtedness ............ 19
4.3 Liability and Contribution 19
4.4 Contributions; Payments; Advances, Etc. 21
4.5 Accounts and Reports ........... 22
4.6 Termination of Powers; Liquidation; Distribution 23
24
4.7 Insurance ..........
\61~\~&~.8
ARTICLE V--P~ERSHIP .................... 24
5.1 Original Members ................. 2~
5,2 Additional Members; Procedures ...... , .... 24
5.3 Effectiveness of Additional Memberships ...... 26
5.4 withdrawal or Exclusion of Member ......... 26
ARTICLE VI--GENER3%L PROVISIONS ............... 27
6.1 Breach ...................... 27
6.2 Severability ................... 28
6.3 Successors and Assigns; Amendments ........ 28
6.4 Notices ...................... 29
6.5 Effectiveness; Term Of the Agreement ..... 30
6.6 Execution of CounterlDarts ............ 30
JOINT POWERS AGREE/6ENT
CP~EAT ING
FINA/~CING AU'r~ORITY FOR RESOURCE EFFICIENCY OF CALIFORNIA
THIS AGREEMENT, dated as of July 1, 1993, is made and entered
into by and among the Members.
RECITALS
WHERe, each Member is a Public Agency and is empowered
by law to acquire, construct, maintain and operate facilities, and
rights, properties and improvements necessary therefor, for the
generation, distribution and transmission of electrical or other
energy or natural gas for public or private use or for the
treatment, distribution, transmission and storage of water, waste
water or recycled water for public or private use;
W~L~R~%S, each Member desires to promote, advance,
encourage and participate in conservation, reclan%ation and other
programs which are designed to utilize ener~Ff or water resources
more efficiently; and
W~, each Member desires to enter into an agreement
to create a separate public entity and agency pursuant to the
provisions of the Joint Powers Act for the purpose set forth herein
and desires that such separate public entity and agency have the
powers provided for herein in connection with such purpose;
LA01 \6190\2&95.8 1 95&3~. 1
NOW, THEP. EpOP~E, the Members, for and in considera%icn
the muuual covenants and condiuions set foruh herein, do
agree as follows:
ARTICLE I--PURPOSE OF AGREEMENT
This Agreement is made pursuant to the provisions of
Chapter 5, Division 7, Title 1, of the Goverrunent Code of the State
of California, as amended from time to time, to create a separate
public entity and agency with the power to exercise, in its own
name, the powers referred to herein. Such powers include the
planning, development, financing, purchase, lease, construction,
operation and maintenance of Resource Efficiency Programs and
Facilities.
ARTICLE II- -DEFINITIONS
In addition to the other terms defined herein, the
following terms, whether in the singular or in the plural, when
used herein and initially capitalized shall have the meanings
specified.
Authori~v. The term "Authority" shall mean the separate
public entity and agency created by this Agreement.
Board o£ Directors, The term "Board of Directors" shall
mean the governing body of the Authority es=ablished pursuant
to Sections 3.2 and 3.3 hereof.
Char=mr M,-,her. The term "Charter Member" shall refer to
each of the following Public Agencies which '~xecutes a
L~01 \6190\2~.8 2 9S~3~,.~
counte-'-par~ of this Agreement and delivers
california Municipal Utilities Association on cr befrre
September 1, 1993: 5he City of Anaheim, The City of Los
Angeles, the City of Palo Alto, the North Marin Water
District, 5he City of Riverside, the City of San Francisco and
the San Diego County Water Authority.
Fiscal Year. The term "Fiscal Year" shall mean the
fiscal year of the Authority as established from time to time
by the Board of Directors, being at the date of this Agreement
the period from July i through June 30 of the following year.
Indebtedness. The term "Indebtedness" shall mean bonds,
notes or other evidences of indebtedness, and all other
obligations, instruments and agreements constituting "Bonds"
under the Joint Powers Act.
Joint P~w~rs A¢~. The term "Joint Powers Act" shall mean
the provisions of Chapter 5, Division 7, Title 1, of the
Government Code of the State of California, as amended and
supplemented from time to time.
Liab~l~tv Share. The term "Liability Share" shall mean,
with respect to any Member, the amount of the judpT~ent or
settlement divided by the number of Members at the time the
act or omission or alleged act or omission occurred, unless
any portion of the judgment or settlement arises from an act
or omission or alleged act or omission directly related to the
studying, planning, financing, developing, acquiring,
purchasing, construction, reconstructing, implementing,
LA01 \61~\24~.8 3
improving, enlarging, enhancmng, operating,
selling, disposing cf~ or deco~issioning cf any Project,
Pooled Financing, Study Project or Service as to. which there
shall be one or more Project Contracts, Pooled Projecn
Contracts, Study Project Contracts or Service Contracts, in
which case, with respect to such portion, the term "Liability
Share" shall mean, with respect to any Member, the amount of
such portion multiplied by a fraction equal to (i) such
Member's entitlement or right, if any, to participate in such
Project, Pooled Financing, Study Project or Service at the
time the act or omission or alleged act or omission occurred
divided by (ii) the aggregate amount of all Members'
entitlements or rights to participate in such Project, Pooled
Financing, Study Project or Service at ~he time the act or
omission or alleged act or omission occurred.
M-~her. The term "Member" shall mean (i) each Original
Member, (ii) any Public Agency which shall have met the
conditions of Section 5.2 hereof, and (iii) any successor of
a Public Agency referred to in clause (i) or clause (ii) of
this definition; ~rovided, however, that the term "Member"
shall not include any entity which shall have withdrawn or
been excluded from the Authority pursuant to Section 5.4
hereof.
Ori~al Me=her. The term "Original Member" shall have
the meaning ascribed thereto in Section 5.1 hereof.
LA01 \61~\Z4~.8 4
Pool The ~= ~'
· ~_rm, "Pocl" sha±~ mean the proceeds frsm ~
Pooled Financing which are available for withdrawal by ~=~=~-
or other entities for Projecns which have received a -o._~
Project Approval and for which a Pooled Project Contract has
been executed.
Pooled Financin~. The term "Pooled Financing" shall mean
a financing of one or more Projects that may or may not be
defined in advance of the Pooled Financing, with security for
the financing including Pooled Project Contracts entered into
with one or more Members or other entities before funds are
withdrawn from the Pool by such Members or entities.
Pooled Project APProval. The term "Pooled Project
App=oval" means a formal approval by a Pooled Project Approval
Committee. Each such approval shall be in accordance with
criteria to be established from time to time by the Pooled
Project Approval Committee and any applicable covenants of the
Pooled Financing resolution or indenture.
Pooled Project Contract. The term "Pooled Project
Contract" shall mean a contract between the Authority and a
Member or other entity, providing the Member or other entity
an entitlement to withdraw a specified amount of funds from a
Pool and which establishes the Member's or other entity's
obligations to make payments which will serve as security for
a Pooled Financing.
Pooled Project A~roval Committee. The term "Pooled
Project Approval Committee" shall mean a committee~ which may
include one or more Direc:ors, appoin%ed by ~he Bcard
Directors to (i) review and recom~,end for approval by
Board of Directors one or more Projects f~r a Pooled
Financing, (ii) provide Pooled Project Approvals and (iii)
perform such other functions as shall be detemined by the
Board of Directors.
Pro4ect. The term "Project" shall mean any program,
activity or other undertaking of the Authority which the Board
of Directors designates as a "Project" under this Agreement.
Projects, among other activities, may include: Resource
Efficiency Programs and Facilities; advertising, education,
grants, rebates, discounts, prizes, awards; the construction
or acquisition of facilities for public or private use, land
and all rights associated with land, properties and
improvements necessary or convenient for providing Utility
Services; installations or providing of equipment or services
on customer premises; and contracts for Utility Services from
others.
Pro4ec~ Con~r&¢~. The term "Project Contract" shall mean
a contract between the Authority and a Member or other entity
providing to such Member or other entity an entitlement to
participate in a Project which will be financed with a Project
Financing and which establishes the Member's or other entity's
obligations to make payments which will serve as security for
the Project Financing.
LA01 \6190\2~9~5.~ 6 95&:]/*.1
Pro~ect Financing. The te_~m "Project FinancLn~" skall
mean a financing of one or more defined Projecns, wLsk
security for the financing being payments to be made under one
or more Project Contracts.
Pro~ect Matter. The term "Project Matter" shall mean a
matter for decision by the Board of Directors involving a
question pertinent to the undertaking, studying, planning,
financing, developing, acquiring, constructing, reconstruc-
tion, replacement, implementing, improving, enlarging,
enhancing, operating, maintaining, repairing, selling or
disposing of a Project, Study Project or Service as to which
there are one or more Project Contracts, Pooled Project
Contracts, Study Project Contracts or Service Contracts then
in effect.
Pro~ect Vote. The term "Project Vote" shall mean a vote
or other determination with respect to a Project Matter, taken
or made by the entities which are parties to a Project
Contract, Pooled Project Contract, Study Project Contract or
Service Contract, in accordance with the procedures for such
~W~ vote or other determination specified in such Contract. To
the extent permitted by law, a Project Vote need not be taken
or made during a meeting of the Board of Directors.
~,hlic A~131c~. The term "Public Agency" shall have the
meaning ascribed to the term "public agency" in Article 1 of
the Joint Powers Act.
LA01 \61~\Z4~.~ 7 954~.1
Resource Efficiency Pro.rains and Facilities. Uke 5er~_~
"Resource Efficiency Pregr~ms an~ Facilities', shall mean ~
activities, programs and equipment which are ,designed ~3
conseL-re, change usage patterns of or reduce the demand for
electrical or other energy or capacity, natural gas or water;
(ii) activities, programs and equipment which are designed to
utilize electrical or other energy or capacity, natural gas or
water facilities more efficiently; (iii) programs, equipment
or facilities which are designed to transport, distribute or
treat water, waste water or recycled water for purposes of
reuse; and (iv) any other programs, equipment or facilities
which meet resource efficiency or management needs or
requirements, established or approved from time to time by the
Board of Directors.
Service. The term "Sea-vice" shall mean any program,
activity or other undertaking of the Authority which the Board
of Directors designates as a "Service" under this Agreement.
Services can include, among other activities, Resource
Efficiency Programs and Facilities, the development or
implementation thereof, and the purchase of supplies, material
or equipment therefor.
~ervice C~t~&c~. The term "Service Contract" shall mean
a contract between the Authority and a Member or other entity
providing such Member or other entity an entitlement to
participate in a Service and which establishes the cost
LAO'~ \6190\249~.8 8 95&]4.~
sharlnr or payrnen~ obligations of each Such Member or s:her
enzity to reimburse the Authority.
Study Pro,oct. The zerm "Study Project" shall mean any
program, activity or other undertaking of the Authority which
the Board of Directors designates as a "Study Project" under
this Agreement. A Study Project can include, among other
activities, making studies, performing research, acquiring
options or permits, or incurring other preliminary costs prior
to the undertaking of a Project.
Study Pro,oct Contrack. The term "Study Project Con-
tract" shall mean a contract between the Authority and a
Member or other entity providing to such Member or other
entity an entitlement to participate in a Study Project and
which establishes the cost sharing or payment obligations of
such Member or other entity.
Utility Services. The term "Utility Services" shall mean
generation, production, treatment, delivery and support
services required or useful for providing electric or other
energy or capacity, natural gas, water, waste water or
recycled water services.
ARTICLE III- - ORGANIZATION
3.1 Creation of Authority. Pursuant to the Joint Powers Act,
there is hereby created a public entity and agency to be known as
the "Financing Authority for Resource Efficiency of California"
which shall be a public entity separate and apart from r_he Members.
LAG1 \619~\24~.8 9 ~434.1
3.2 Governin~ Bcdy. The ~v ..... ng ~
~ody the A ........ .,
sha~ be the Board of ' =~- ~ .... ~
· -- Dlr___o~s. -~= Board of Directors sha_= kave
%he ~=sponsibiliEy for the general management of the af= ~-
property and business of ~he Authority and may, from time ~o ~ime,
adopt and modify such By-Laws and other rules and regulations for
that purpose and for the conduct of its meetings as i= may deem
proper. The Board of Directors may exercise and shall be vested
with all powers of the Authority insofar as consistent wi~h
applicable law and this Agreement.
3.3 Members En=itled ~0 Be Represented by Directors. The
Board of Directors shall consist, at any time, of the Directors
then holding such position in accordance with the following
provisions:
3.3.1 Charter Member D~re¢~ors. Each Member which is a
Charter Member shall at all times be entitled to be
represented on the Board of Directors by its own Director.
3.3.2 Par=ici9ation-Based Directors. If, on the first
day of any calendar year after calendar year 1993, there are
Members other than Charter Members,
(a) the President shall cause to be prepared a
computation of all payments made by each Member to or for
the benefit of the Authority in the immediately preceding
Fiscal Year, and
(b) each of the five (5) Members (other than Charter
Members) which have made the greatest amounts ~f payments
as shcwm,, by such ....
c~mpu-a~-~n shall be
represented on ~he Boar~ of ~"=
.... cto~s by i~s own D.rec~
throughou~ the nhen currenu calendar year.
3.3.3 Voting-Based Directors. If, on September 1
calendar year 1993 or on the firs~ day of any subsequent
calendar year, there shall be
(a) Members other than Charter Members and Members
entitled to their own Directors in such calendar year
pursuant to Section 3.3.2 hereof, and
(b) fewer ~han three (3) Voting-Based Directors whose
terms include such calendar year,
the Presiden~ shall cause each Member to be notified that, at
the first regular meeting of the Board of Directors in such
calendar year, there will be a selection of Members entitled
to be represented by their own Directors. At such meeting, by
the majority vote of authorized representatives of Members
voting (in person, on a one-Member, one-vote basis), other
Members shall be selected as Members entitled to their own
Directors. The maximum number of Members entitled to be
represented by their own Directors pursuant to this Section
3.3.3 at any ~ime shall be three (3). Each Director
represen~ing a Member selected pursuan~ to this Section 3.3.3
shall serve for such calendar year (or such greater number of
calendar years as shall be determined unanimously by the Board
of Directors voting on the mat~er at the time of such
selection).
3.3.4 !~en~if!ca:icn of Directors. Each Direc:cr ~hali
be the chief u~i!z~y executive responsible for Ut~lz:y
Services of the Member represented, or the designee of such
chief utility executive. If the Member shall have two or more
utility operations and two or more chief utility executives
responsible for utility Services, the Director shall be the
designee of such chief utility executives (acting in concert).
3.3.5 Relinquishin~ Entitlement to Director. Any
Member, at any time, and for such number of calendar years as
it shall designate, may relinquish its entitlement to be
represented by its own Director, any such relinquishment to be
effective at or after such Member shall deliver to the
Authority an instrument to that effect.
3.4 Recrular Meetings. The Board of Directors shall hold a
regular meeting not less than once each calendar year. The date,
hour and place of regular meetings shall be fixed by resolution of
the Board of Directors.
3.5 Sgecial Meetings. Special meetings of the Board of
Directors may be called in accordance with the provisions of the
Government Code of the State of California, as amended from time to
time.
3.6 Legal Notice for Meetings. All meetings of the Board of
Directors shall be held subject to the provisions of ~he laws of
bodies to be given in nhe manner provided in such laws.
3.7 Minutes of MeetinGs. The Secretary of the Authority
shall cause ~o be kept minutes of the meetings of the Board of
Direc=ors, both regular and special, and shall, within 15 working
days after each meeting, cause a copy of the draft minutes to be
forwarded to each Director for review and commen~. The final
minutes with respect to each meeting of the Board of Directors
shall be forwarded to each Member within 5 working days after the
approval thereof by the Board of Directors.
3.8 Ouorum. At all meetings of the Board of Directors, a
majority of the Board of Directors shall constitute a quorum for
the transaction of business; 9rovided, tha~, if less than a
majority of the Board of Directors is present at a meeting, a
majority of those Directors present may adjourn the meeting.
3.9 Voting Generally. Each Director shall have one vote.
Subject to Sections 3.3.3, 3.10, 3.11, 5.2.2 and 5.4.3 hereof, the
vote of the majority of the Directors voting a~ a meeting at which
a quorum is presen= shall decide any question brought before such
meeting, and such decision shall be deemed to be the action of the
Board.
LAO 1 %6190\2495,8 13 95434.1
..a .... s Each Pro]~c' ~
Pooled Project Contract s~udy Projec~ Con~rac~ and
Con~rac~ shall establish a method by which the
participating therein shall conduct Project Votes wi~h respect to
any Project Matter arising thereunder.
With respect to any Project Matter: (a) no vote shall be taken
thereon by the Board of Directors unless and until a Project Vote
shall have been made or taken thereon and the result of the mos~
recent Project Vote thereon shall have been presented to the Board
of Directors; and (b) no action of the Board of Directors thereon
shall be effective unless the action conforms to the most recent
Project Vote made or taken thereon; provided, that, the limitations
and requirements of clause (a) and clause (b) of this paragraph, or
any portion thereof, may be eliminated with respect to any Project
Matter vote or action by the favorable vote of not less than 80% of
the Directors present at the meeting.
3.11 Other Voting Arrangements. No provision of this
Agreement shall in any way restrict the ability of the Authority to
make and enter into contracts providing for its representation and
voting on management or other committees with respect to a Project.
3.12 Officers.
3.12.1 At its first meeting in each calendar year, the
Board of Directors shall elect or re-elect a President and a
Vice President (each of whom shall be selected fro~among the
LA01 \61~\2&~.~ 14 954~&. I
Pzrec~ors) and shall also appoint or re-appoint a Secrenar>'
and a Treasurer/Auditor ~each of whom may, but need non, be
selected from among the Directors). In the event that the
President, Vice President, Secretary or Treasurer/Auditor so
elected or appointed ceases (in the case of the President or
Vice President) to be a Director, resigns from such office or
is otherwise unable to perform the duties of such office, the
resulting vacancy shall be filled at the next regular or
special meeting of the Board of Directors held after such
vacancy occurs. In the absence or inability of the President
to act, the Vice President shall act as President. The
President, or in the President's absence the Vice President,
shall preside at and conduct all meetings of the Board of
Directors.
3.12.2 The Treasurer/Auditor is designated as the
treasurer and the auditor of the Authority and as such (i)
shall be the depositary of the Authority to have custody of
all the money of the Authority, from whatever source, (ii)
shall draw warrants to pay demands against the Authority when
the demands have been approved by the President or the Vice
President of the Authority, and (iii) shall have the other
powers, duties and responsibilities of such officers as
specified in Section 6505.5 of the Government Code of the
State of California, as amended from time to time, except
insofar as such powers, duties and responsibilities are
assigned to a trustee appointed, as is provided for and
LA01 \6190\249~.8 15
authorlzed by the Goveru~,ent Code of the State of Caltfzrn~a,
as amended from ~ime to ~ime, pursuant to any resolu~Lcn,
indenture or other instrument providing for the'issuance of
bonds or notes of the Authority pursuant to Article IV of this
Agreement.
3.12.3 The President, the Vice President and the
Treasurer/Auditor, to the extent such officers' duties and
responsibilities pursuant to the Joint Powers Act require,
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 shall file an official bond
with the Secretary of the Authority in the amount of $100,000.
3.12.4 In addition to the powers, duties and
responsibilities provided herein or by law, the President, the
Vice President and the Secretary shall have such powers,
duties and responsibilities as are provided in the By-Laws of
the Authority. The Treasurer/Auditor shall have such powers,
duties and responsibilities as are provided herein or by the
laws of the State of California.
3.12.5 The Board of Directors shall have the power to
appoint, or contract to employ, a General Manager, who may be
an employee of a Member and who shall have such powers, duties
and responsibilities as are determined by the Board of
Directors.
3.12.6 The Board of Directors shall have the power to
appoint, or contract to employ, such other o~ficers and
LA01 \6190\2/,95.~ 16 95~3~.1
employees of the Au%hori~y as it may deem necessary, any sf
whom may, but need no~, be employees of a Member, and whs
shall have such powers, duties and responsibilities as are
determined by the Board of Directors.
ARTICLE IV--POWERS AND FUNCTIONS: FINANCIAL MATTERS
4.1 Powers. The Authority shall have, in its own name, any
and all powers authorized by law to two or more of the Members
relating to the planning, development, undertaking, purchase,
lease, acquisition, construction, financing, disposition, use,
operation, repair, replacement or maintenance of (a) facilities for
the generation, production, transmission, conservation, reuse,
recycling, storage, treatment or distribution of electrical or
other energy or capacity, natural gas, water, waste water or
recycled water, or (b) Resource Efficiency Programs and Facilities,
or (c) any combination thereof. The Authority shall also have, in
its own name, any additional powers provided to it by California
law (including Section 6588 of the California Goverr~aent Code), as
amended from time to time.
The Authority shall have, in its own name, the power to do all
acts necessary, appropriate or incidental to the exercise of the
foregoing powers, including, but not limited to, the following:
(a) to make and enter into contracts;
(b) to employ agents and employees;
(c) to plan, develop, acquire, construct, manage,
maintain, repair, replace or operate a~.y
LA01 \6190\2&9~.~ 17 9~434.1
buildlnps, facllitzes, works, roads or
improvements or interests therein;
to acquire (by the exercise of the power of
eminent domain or otherwise), hold, lease,
sell or otherwise dispose of any real or
personal property, tangible or intangible, and
any interests therein, wherever located;
to incur debts, liabilities or obligations
which do not constitute a debt, liability or
obligation of any Member;
(f) to sue and be sued in its own name;
(g) to establish a budget and authorize
expenditures therefrom;
(h) to apply for or receive grants from either
public or private sources for Resource
Efficiency Programs and Facilities;
(i) to enter into agreements for the creation of separate
public entities and agencies pursuant to the Joint Powers
Act; and
(J) to exercise any other power permitted by the
laws of the State of California to carry out
the purpose of the Authority.
Such powers shall be exercised in the manner provided in
Section 6509 of the Government Code of the State of California, as
amended from time to time, subject only to the restrictions upon
the manner of exercising such powers as are imposed uRon the City
LAB1 \6190\~&<~. 8 18
~= ?alo Alno or the City of Riverside ias dete~mined by -'"= ~n-r"2
of Directors) in the exercise cf similar powers.
4.2 Indebtedness. The Authority shall also have the power to
issue or incur, sell and deliver, in accordance with the provisions
of the Joint Powers Act, Indebtedness (i) to provide funds for the
acquisition, construction and financing of one or more Projects
(whether through Project Financing, Pooled Financing or otherwise);
(ii) for the purpose of financing one or more Study Projects and
for the purpose of providing temporary financing of costs of
construction or acquisition of one or more Projects; and (iii) for
the purpose of refinancing previous Indebtedness of the Au:hority,
any Member or Public Agency. The terms and conditions of the
issuance of any such Indebtedness of the Authority shall be set
forth in a resolution, indenture or other instrument, shall include
such security provisions and shall specify such source or sources
of payment, as shall be determined by the Board of Directors.
4.3 Liability and Contribution.
4.3.1 Indebtedness of the Authority, and contracts or
obligations which are entered into or incurred by the
Authority to carry out the purposes of such Indebtedness, and
which are payable from the proceeds of such Indebtedness,
shall not constitute a debt, liability or obligation of any
Member. Pursuant to the Government Code of the State of
California, no debt, liability or obligation of th~ Authority
LA01 \6190\24~ .~ 19 954~, 1
shall be a debn, liability or obligation of any Member exzes~
as provided by Section 895.2 of the Goverr~en~ Code cf the
Stale of California, as amended from time to time, in the case
cf injury caused by a negligent or wrongful act or omission
occurring in the performance of this Agreement.
4.3.2 In the event any Member is held liable upon any
judgTnent for damages caused by a negligent or wrongful act or
omission occurring in the performance of this Agreement, and
pays in excess of its Liability Share of such judgment, such
Member shall be entitled to contribution from each other
Member and may require each other Member to pay an amount
towards the jud97nent for damages, but in no event shall any
such other Member be required to pay in excess of its
Liability Share of such judgment.
4.3.3 In the event any Member shall become liable upon
any settlement of any action, suit or proceeding with respect
to damages caused by a negligent or wrongful act or omission
or alleged negligent wrongful act or omission occurring in the
performance of this Agreement, and pays in excess of its
Liability Share of such settlement, such Member shall be
entitled to contribution from each other Member and may
require each other Member to pay an amount towards the
settlement, but in no event shall any such other Member be
required to pay in excess of its Liability Share of such
settlement. Notwithstanding the foregoing, in no event shall
any such other Member be required to pay any a~ount with
· LAO~ \6190\2495.8 20
respec~ to any such settlement entered into wi5hou% its pri2r
written consent.
4.3.4 Any Member entitled to contribution pursuant ~o
Section 4.3.2 or Section 4.3.3 hereof shall, promptly after
receipt of notice of commencement of any action, suit or
proceeding against such Member in respect of which a claim for
contribution may be made against another Member or Members
under Section 4.3.2 or Section 4.3.3 hereof, notify such other
Member or Members from whom contribution may be sought.
4.3.5 Nothing contained in this Agreement shall in any
way diminish the liability of any Member or other party with
respect to any contract between such Member or other party and
the Authority.
4.4 Contributions: Payments: Advances. Etc. In accordance
with the Government Code of the State of California, the Members
shall make such contributions, payments and advances to the
Authority as are approved from time to time by the Board of
Directors. The Authority may make such arrangements relative to the
repayment or return to the Members of such contributions, payments
and advances as are approved from time to time by the Board of
Directors.
Any Member which fails to make or pay when due any required
contribution, payment or advance to the Authority, may have its
rights under this Agreement terminated and may be excluded from
participation in the Authority as provided in Section ~.4.3 of this
~AO~ \6~\2~.S 21 ~.~
Agreemenn. Any such Member shall continue to be !fable f~r
ob!i~ations under any connracu winh the Authority and for any
unpatd contr±bution, payment or advance approved by the Board of
DirectOrs prior to such Member's exclusion and not objected to by
such Member by written notice to the Authority within thirty
days after such approval.
4.5 Accounts and Reports. There shall be strict account-
ability of all funds and reporting of all receipts and
disbursements of the Authority. The Authority shall establish and
maintain such funds and accounts as may be required by good
accounting practice or by any provision of any resolution,
indenture or other instrument of the Authority securing its
Indebtedness, except insofar as such powers, duties and responsi-
bilities are assigned to a trustee appointed pursuant to such
resolution, indenture or instrument. The books and records of the
Authority shall be open to inspection at all reasonable times to
each Member and its representatives. The Authority, within 120
days after the close of each Fiscal Year, shall give a complete
written report of all financial activities for such Fiscal Year to
the Members~ The Treasurer/Auditor shall cause an annual audit of
the accounts and records of the Authority to be made by an
independent certified public accountant or independent public
accountant, all in accordance with, and at the time or times
required by, law.
LAO! \6190\2495.8 22 95&3(,. 1
All the books, recargs ...... and ~ ~
-=~-~on 4.5, shall be open ~D inspection by 5he holders of
indebtedness of the Authority to the extent and in 5he manner
provided in the resolution, indenture or other instrumen~ providing
for the issuance of such Indebtedness.
4.6 Termination of Powers; Liquidation; Distribution. This
Agreement shall continue in full force and effect, and the
Authority shall continue to possess ~he powers herein conferred
upon it, until the expiration of the term of this Agreement
pursuant to Section 6.5 of this Agreement or until the Members
shall have rescinded this Agreement. Rescission of this Agreement
may only be accomplished by a writing executed by each Member and
approved by resolution of each Member's governing body. In no
event shall this Agreement or the powers herein granted to the
Authority be rescinded until (a) all Indebtedness of the Authority
and the interest thereon shall have been paid or adequate
provisions for such paymen~ shall have been made in accordance with
the instruments governin~ such Indebtedness, and (b) all other
obligations and liabilities of the Authority shall have been met or
adequately provided for, as determined by the Board of Directors
and in accordance with the laws of the State of California.
Upon any such expiration or rescission, the Board of Directors
shall liquidate the business and assets and property of the
Authority as expeditiously as practicable, and distribute any net
proceeds to any Members in such manner as shall be determined by
LA01 \61~\Z4~.~ 23 95&~.1
5he Boari of ~,-=- rianc= ,~-h this Agreemen[ anl -~=
D---~sors In acco - -.._
laws of the State of California.
4.7 Insurance. The Authority shall obtain and cause to be
maintained in effect public liability insurance and directors and
officers insurance, each such insurance to afford coverage to a
limit of not less than $5,000,000 with deductibles not to exceed
10% of the face amount; provided, that the Authority shall not be
required to obtain or maintain such insurance to the extent (i) the
same is not available from reputable insurers in the open market as
standard policies of insurance, or (ii) the Authority is unable to
pay the premiums therefor from funds available to it, or (iii)
determined from time to time by the Board of Directors.
ARTICLE V--MEMB~RSHIP
5.1 Original Members. Each Public Agency authorized to
engage in activities described in this Agreement, eligible for
membership in the California Municipal Utilities A~sociation, and
located in California which executes a counterpart of this
Agreement and delivers it to the California Municipal Utilities
Association. on or before September 1, 1993 shall be an "Original
Member."
5.2 Additional Members: Procedures. After September l, 1993,
any Public Agency, authorized to engage in activities described in
this Agreement, eligible for membership in the Californ~ Municipal
~'-~ ~'=s Association, and located in California may ueccm= a
~=~' ~ upon meeting the ~ '
..... wing additional conditions:
5.2.1 The Public Agency shall apply 5o the Board of
Directors for membership and file with the Board of Directors
an instrument in form and substance satisfactory to the Board
of Directors, together with a certified copy of a resolution
of its governing body, whereby the Public Agency (i) agrees to
the provisions of this Agreement and (ii) requests to become
a Member. In reviewing an application for membership, the
Board of Directors may reject said application based on the
creditworthiness of the applicant or on any other matter which
has affected or may affect the creditworthiness of the
applicant and whichmay thereby affect the creditworthiness of
the Authority. The Board of Directors also reserves the right
to reject an applicant if the Board of Directors determines
that the membership of such applicant would be detrimental to
the effectiveness of the Authority or would interfere with the
realization of the Authority's goals and purposes.
5.2.2 No such Public Agency shall become a Member until
(i) its admission is approved by a vote of two-thirds of the
Directors voting on the matter and (ii) such Public Agency
deposits or agrees to deposit with the Authority an amount
equal to such share of the costs and expenses incurred by the
Authority prior to ~he date of admission of such Public Agency
as a Member as shall be determined by the Board of Directors.
LA01 \6190\2.~9~. 8 2~ 95~.3~,. 1
5.3 Effectiveness of Add!zlonal Memberships. Upon mes~zn~
the conditions of Section 5,2 hereof, the applicant shall become a
Me~er for all purposes of nhis Agreement, and the instrument
provided pursuant to Section 5.2.1 shall become a part of the
official records of the Authority. Neither the effectiveness of
such membership nor such instrument shall constitute an amendment
or modification of this Agreement for purposes of Section 6.3
hereof.
5.4 Withdrawal or Exclusion of Member.
5.4.1 Any Member may withdraw from the Authority upon
the following conditions: (i) the Member shall have filed
with the Board of Directors a certified copy of a resolution
of its governing body expressing its desire to so withdraw and
(ii) if the Authority, prior to the filing Of such resolution,
shall have incurred any obligation payable from contributions,
payments or advances in accordance with Section 4.4, which
obligation matures after the date of such filing, the
withdrawing Member shall have paid, or made arrangements
satisfactory to the Board of Directors to pay, to the
Authority its pro rata portion of such obligation.
5.4.2 Upon compliance with the conditions specified in
Section 5.4.1, the withdrawing Member shall no longer be
considered a Member for any reason or purpose under ~his
Agreement and its rights and obligations under this Agreement
shall terminate. The withdrawal of a Member shall~not affect
any obligations of such Member under any con~rac~ Decween zhe
wizhdrawing Member and the Authority.
5.4.3 Any Member which has {i) defaulted under a
contract with the Authority, or (ii) failed to pay any
required contributions, payments or advances in accordance
with Section 4.4 hereof, may have its rights under this
Agreement terminated and may be excluded from participating in
the Authority by a vote of two-thirds of the Directors voting
on the matter (excluding from voting the Director, if any,
representing the defaulting Member). Any excluded Member
shall continue to be liable for its obligations under any
contract with the Authority and for any unpaid contribution,
payment or advance approved by the Board of Directors prior to
such Member's exclusion and not objected to by such Member by
written notice to the Authority within thirty (30) days after
such approval.
No withdrawal from membership pursuant to Sections 5.4.1 and
5.4.2 hereof or exclusion from participation pursuant to Section
5.4.3 hereof shall constitute an amendment or modification of this
Agreement for purposes of Section 6.3 hereof.
ARTICLE VI--GEN~P~AT, PROVISIONS
6.1 Breach. If default shall be made by any Member in any
undertaking contained in this Agreement, such default shall not
excuse such Member or any other Member from fulfilling its
obligations under this Agreement and each Member shall ~ontinue to
L~01 \~I~\Z&~.8 27 9~&34.1
be liable for the payment of its Liability Share, pursuan: :c
Seezion 4.3, and its contributions, payments and advances pursuant
to Section 4.4, and the perfo~-mance of all condizions herein
contained. Each Member hereby declares that this Agreement is
entered into for the benefit of the Authority created hereby and
each Member hereby grants to the Authority the right to enforce, by
whatever lawful means the Authority deems appropriate, all of the
obligations of such Member hereunder. Each and all of the remedies
given to the Authority hereunder, including those provisions
contained in Section 5.4.3, or by any law now or hereafter enacted
are cumulative and the exercise of one right or remedy shall not
impair the right of the Authority to any or all other remedies.
6.2 Severability. In the event that any term, covenant or
condition of this Agreement or the application of such term,
covenant or condition, shall be held invalid as to any person or
circumstance by any court having jurisdiction in the premises, all
other terms, covenants or conditions of this Agreement and their
application shall not be affected thereby, but shall remain in
force and effect unless a court holds that the provisions are not
separable f~om all other provisions of this Agreement.
6.3 Successors and Assigns: Amendments. This Agreement shall
be binding upon and shall inure to the benefit of the successors
and permitted assigns of the Members. No Member may assign any
right or obligation hereunder without the consent o{ all other
LA01 \61~\24~.8 28 95&34.1
MemDers. The immediately preceding sentence shall not affect, zn
any respect, any right of assi3r~ent under any contracu between any
Member and the Authority. Subject to any requirements of law,
including Section 6573 of the Government Code of the State cf
California, as amended from time to time, this Agreement may be
amended at any time and from time to time by a writing or writings
executed by each Member and approved by resolution of each Member's
governing body.
6.4 Notices.
6.4.1 Any notice, demand or request to any Member
provided for in this Agreement shall be in writing and shall
be deemed properly served, given, or made if delivered in
person or sent by registered or certified mail, postage
prepaid, to the person and at the address designated by such
Member upon the commencement of its membership in the
Authority.
6.4.2 A Member may, at any time, by written notice to
each other Member and the Authority, designate different
persons or different addresses for the giving of notices,
demands or requests to it hereunder.
6.4.3 Any notice, demand or request to the Authority
provided for in this Agreement shall be in wri:ing and shall
be deemed properly sel-ved, given, or made if delivered in
person or sent by registered or certified mail, postage
prepaid, to FARECal, c/o California Municipal%~.Utilities
LA01 \61~1\2~,~.8 2 9 954],~.1
Associauion, 1225 Eighth S~ree~, Suite 440, Sacramen~,
California 95814.
6.4.4 The Auuhori~y may, at any time, by written notice
to each Member, designate a different or additional person or
a different address for the giving of notices, demands or
req~/ests to it hereunder.
6.5 Effectiveness: Term of ~he Aqreement. This Agreemenu
shall become effective on the later of (a) July 1, 1993, or (b} the
first date on which there shall be two or more Charter Members.
Subject to the right to rescind provided by Section 4.6 hereof,
this Agreement shall continue in full force and effect for a period
of 50 years from its effective date or until such time as all
Indebtedness of the Authority and the interest thereon shall have
been paid in full or until adequate provision for such payment
shall have been made in accordance with the instruments governing
such Indebtedness.
6.6 Execution of Counterparts. This Agreement may be
executed in any number of counterparts. All such counterparts
shall be deemed to be originals and shall together constitute but
one and the same instrument.
LA01 \6190\:'~,9~.~ 3 0 ~543J,.1
iN WITNESS W-HEREOF, the Original Members have caused
Agreement to be duly executed and attested by their proper off:ser~
thereunto duly authorized.
CITY OF ANAHEIM
Date: By
Its
ATTEST:
By
t
THE CITY OF LOS ANGELES
Date: By
Its
ATTEST:
By
CITY OF PALO ALTO
Date: By
Its
ATTEST:
By
· LA01 \6190\Z4~.8 3 1 9~&34.1
NORTH MkRIN WATER DiSTRiiT
Dace: By
its
ATTEST:
By
CITY OF RIVERSIDE
Date: By
Its
ATTEST:
By
CITY OF SAN FP~%NCISCO
Date: By
Its
ATTEST:
By
SANDIEGO COUNTYWATER AUTHORITY
Date: By
Its
ATTEST:
By ~
L~ol \61~\Z~.~.8 32 9~434.1
By
~TTEST:
By
LA01 \619~\~49~.8 3 ] 95/,34.1