HomeMy WebLinkAbout4.7 Approval of a Joint Exercise of Powers Agreement Forming the Dublin Financing AuthoritySTAFF REPORT
CITY COUNCIL
Page 1 of 2
Agenda Item 4.7
DATE:September 21, 2021
TO:Honorable Mayor and City Councilmembers
FROM:Linda Smith, City Manager
SUBJECT:Approval of a Joint Exercise of Powers Agreement Forming the Dublin Financing AuthorityPrepared by:Jay Baksa, Assistant Administrative Services Director
EXECUTIVE SUMMARY:The City Council will consider approving a Joint Exercise of Powers Agreement (JPA) between the City of Dublin and the California Statewide Communities Development Authority (CSCDA) in order for the City to issue revenue bonds. As previously authorized by the City Council, the City will use such bond financing to fund the implementation of energy efficiency and related infrastructure improvement projects.
STAFF RECOMMENDATION:Adopt the Resolution Approving, Authorizing, and Directing the Execution of a Joint Exercise of Powers Agreement By and Between the City of Dublin and the California Statewide Communities Development Authority to Form the Dublin Financing Authority.
FINANCIAL IMPACT:Any legal costs or other costs associated with creating the Dublin Financing Authority will be included as part of the energy improvements project financing, which is being presented in a separate item on tonight’s agenda.
DESCRIPTION:At the July 20, 2021 meeting, the City Council authorized Staff to pursue a tax-exempt bond issuance to fund the implementation of energy efficiency and related infrastructure improvement projects through a design-build energy savings performance contract with Willdan Energy Solutions. As discussed at the meeting, Staff and the City’s financing team (Fieldman Rolapp Associates as municipal advisor, and Hilltop Securities as underwriter) advised that there is a market preference for lease revenue bonds that should result in relatively lower borrowing costs to the City. To issue such bonds, the City needs to form a “Joint Exercise of Powers Authority” (JPA) under the California Government Code. The Joint Exercise of Powers Law (Government Code
86
Page 2 of 2
Sections 6500 et seq.) authorizes the establishment of these JPAs and the issuance of revenue bonds by them for a wide variety of projects and programs.Accordingly, the City team has approached the California Statewide Communities Development Authority (CSCDA) to act as the other party to a JPA, forming what will be called the Dublin Financing Authority. There are currently over 530 cities, counties, and special districts that are program participants to CSCDA. The Dublin City Council will serve as the JPA Board and will have full control over all decisions and actions taken by the JPA.The governing board of the CSCDA has already approved the agreement such that upon approval by the City Council, the Dublin Financing Authority will be formed. The final steps include filing certain documents with the California Secretary of State’s office. The City’s bond counsel, Jones Hall, has prepared the Joint Exercise of Powers agreement and will handle the Secretary of State filings.
STRATEGIC PLAN INITIATIVE:Strategy 2: Explore New City Revenue Streams for Long Term Financial StabilityObjective D: Continue to maintain strong fiscal policies.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:The City Council Agenda was posted.
ATTACHMENTS:1) Resolution Approving, Authorizing, and Directing the Execution of a Joint Exercise of PowersAgreement By and Between the City of Dublin and the California Statewide Communities Development Authority to Form the Dublin Financing Authority. 2) Joint Exercise of Powers Agreement between the City of Dublin and the California Statewide Communities Development Authority
87
ATTACHMENT 1
Reso. No. XX-21, Item X.X, Adopted XX/XX/21 Page 1 of 2
RESOLUTION NO. XX-21
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING, AUTHORIZING AND DIRECTING THE EXECUTION OF A JOINT
EXERCISE OF POWERS AGREEMENT BY AND BETWEEN THE CITY OF DUBLIN
AND THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
TO FORM THE DUBLIN FINANCING AUTHORITY
WHEREAS,under the Joint Exercise of Powers Act, comprising Articles 1, 2, 3
and 4 of Chapter 5 of Division 7 of Title 1 (commencing with section 6500) of the
California Government Code (the JPA Act), a number of California cities, counties and
special districts, entered into a joint exercise of powers agreement pursuant to which
California Statewide Communities Development Authority (CSCDA) was organized; and
WHEREAS,CSCDA, acting pursuant to the JPA Act, may enter into a joint
exercise of powers agreement with one or more public agencies pursuant to which such
contracting parties may jointly exercise any power common to them and to exercise
additional powers granted under the JPA Act; and
WHEREAS,CSCDA and the City of Dublin desire to create and establish the
Dublin Financing Authority (the Authority) pursuant to the JPA Act; and
WHEREAS, there has been presented to this meeting a proposed form of Joint
Exercise of Powers Agreement (the Authority Agreement), by and between CSCDA and
the City, which creates and establishes the Authority; and
WHEREAS,under California law and the Authority Agreement, the Authority will
be a public entity separate and apart from the parties to the Authority Agreement and
the debts, liabilities and obligations of the Authority will not be the debts, liabilities or
obligations of CSCDA, the City or any representative of the City serving on the
governing body of the Authority or as an officer of the Authority.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Dublin
as follows:
Section 1. Approval of Financing Plan and Related Documents. The City
Council hereby approves the Authority Agreement in substantially the form on file with
the City Clerk, together with any changes therein or additions thereto approved by the
City Manager, Assistant City Manager, Administrative Services Director or any of their
designees (each, an Authorized Officer). The Authorized Officers are hereby authorized
and directed for and in the name and on behalf of the City to execute the final form of
the Authority Agreement, and the City Clerk is hereby authorized and directed to attest
88
Reso. No. XX-21, Item X.X, Adopted XX/XX/21 Page 2 of 2
to the final form of each of the Authority Agreement. Execution of the Authority
Agreement by an Authorized Officer shall be conclusive evidence of the approval of any
changes therein or additions thereto by an Authorized Officer.
Section 2. Effective Date. This Resolution shall take effect from and after the
date of its passage and adoption.
PASSED, APPROVED, AND ADOPTED this 21st day of September 2021, by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
__________________________
Mayor
ATTEST:
__________________________
City Clerk
89
JOINT EXERCISE OF POWERS AGREEMENT
by and between
the CITY OF DUBLIN
and
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
creating the
DUBLIN FINANCING AUTHORITY
Dated as of September 21, 2021
Attachment 2
90
TABLE OF CONTENTS
Section 1. Definitions .............................................................................................................. 1
Section 2. Purpose ................................................................................................................. 2
Section 3. Term ...................................................................................................................... 2
Section 4. The Authority ......................................................................................................... 2
Section 5. Powers .................................................................................................................. 5
Section 6. Termination of Powers .......................................................................................... 6
Section 7. Fiscal Year ............................................................................................................ 6
Section 8. Disposition of Assets ............................................................................................. 6
Section 9. Contributions and Advances ................................................................................. 6
Section 10. Obligations ............................................................................................................ 6
Section 11. Agreement not Exclusive ....................................................................................... 7
Section 12. Accounts and Reports ........................................................................................... 7
Section 14. Conflict of Interest Code ........................................................................................ 8
Section 15. Breach ................................................................................................................... 8
Section 16. Notices .................................................................................................................. 8
Section 17. Withdrawals and Additions of Members ................................................................ 8
Section 18. Effectiveness ......................................................................................................... 8
Section 19. Severability ............................................................................................................ 8
Section 20. Successors; Assignment ....................................................................................... 8
Section 21. Amendment of Agreement .................................................................................... 9
Section 22. Form of Approvals ................................................................................................. 9
Section 23. Waiver of Personal Liability ................................................................................... 9
Section 24. Notices .................................................................................................................. 9
Section 25. Section Headings .................................................................................................. 9
Section 26. Miscellaneous ........................................................................................................ 9
91
JOINT EXERCISE OF POWERS AGREEMENT
THIS AGREEMENT, dated as of September 21, 2021, by and between the CITY
OF DUBLIN, a general law city and municipal corporation organized and existing under and by
virtue of the laws of the State of California (the “City”), and CALIFORNIA STATEWIDE
COMMUNITIES DEVELOPMENT AUTHORITY, a joint exercise of powers authority organized
and existing under and by virtue of the laws of the State of California (“CSCDA”).
DECLARATION OF PURPOSE
A. Chapter 5 of Division 7 of Title 1 of the California Government Code (the “Act”)
authorizes the City and CSCDA to create a joint exercise of powers entity which has the power to
exercise any powers common to the City and CSCDA and to exercise additional powers granted
to it under the Act. This Agreement creates such an agency, which shall be known as the “Dublin
Financing Authority” (the “Authority”) for the purposes and to exercise the powers described
herein.
B. The City is authorized to buy, sell, lease and use property and to incur
indebtedness for public purposes pursuant to the California Government Code and other laws of
the State of California.
C. CSCDA is authorized to buy, sell and lease property and to issue bonds, expend
bond proceeds, and borrow and loan money for any of its corporate purposes pursuant to the Act
and an Amended and Restated Joint Exercise of Powers Agreement forming the California
Statewide Communities Development Authority, dated as of June 1, 1998, as amended, by and
among the cities, counties, districts and other political subdivisions that are parties to that
agreement.
D. Article 4 of the Act (known as the “Marks-Roos Local Bond Pooling Act of 1985”)
authorizes and empowers the Authority to issue bonds and to purchase bonds issued by, or to
make loans to, the City or CSCDA for financing public capital improvements, working capital,
liability and other insurance needs, or projects whenever there are significant public benefits, as
determined by the City or CSCDA. The Marks-Roos Local Bond Pooling Act of 1985 further
authorizes and empowers the Authority to sell bonds so issued or purchased to public or private
purchasers at public or negotiated sale.
TERMS OF AGREEMENT
Section 1. 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.
“Act” means Articles 1, 2 and 4 of Chapter 5 of Division 7 of Title 1 of the California
Government Code, as amended.
“Agreement” means this Joint Exercise of Powers Agreement, as it may be amended from
time to time, creating the Authority.
“Authority” means the Dublin Financing Authority created by this Agreement.
“Board” means the governing board of the Authority.
92
-2-
“Brown Act” means the Ralph M. Brown Act (Chapter 9 of Part 1 of Division 2 of Title 5 of
the California Government Code), or any successor legislation hereafter enacted.
“City” means the City of Dublin, a general law city and municipal corporation duly
organized and existing under and by virtue of the laws of the State.
“City Council” means the City Council of the City.
“CSCDA” means California Statewide Communities Development Authority, a joint
exercise of powers authority, duly organized and existing under and by virtue of the laws of the
State.
“Indenture” means each indenture, trust agreement, fiscal agent agreement, lease,
sublease, loan agreement, or other instrument pursuant to which Obligations are issued or
incurred.
“Member” or “Members” means the members of the Authority from time to time as may be
modified in accordance with this Agreement. As of the date of this Agreement, the Members are
the City and CSCDA.
“Obligations” means bonds and any other evidence of indebtedness of the Authority
authorized and issued pursuant to the Act.
“State” means the State of California.
Section 2. Purpose. This Agreement is made pursuant to the Act for the purpose of
assisting the financing and refinancing of capital improvement projects of the City and to finance
working capital for the City by exercising the powers referred to in this Agreement.
Section 3. Term. This Agreement shall become effective as of the date hereof and shall
continue in full force and effect until terminated by a supplemental agreement of CSCDA and the
City; provided, however, that in no event shall this Agreement terminate while any Obligations of
the Authority remain outstanding under the terms of any Indenture or other instrument pursuant
to which such Obligations are issued or incurred.
Section 4. The Authority.
(a) Creation of the Authority. There is hereby created pursuant to the Act an authority and
public entity to be known as the “Dublin Financing Authority.” As provided in the Act, the Authority
shall be a public entity separate from the Members. The debts, liabilities and obligations of the
Authority shall not constitute debts, liabilities or obligations of the Members.
Within 30 days after the effective date of this Agreement or any amendment hereto, the
Authority will cause a notice of this Agreement or amendment to be prepared and filed with the
office of the Secretary of State of the State in the manner set forth in sections 6503.5 of the Act.
Such notice shall also be filed with the office of the Controller of the State.
In addition, as required by Section 53051 of the California Government Code, within 70
days after the effective date of this Agreement, the Authority shall file with the Secretary of State
on a form prescribed by the Secretary of State and also with the County Clerk of Alameda County,
93
-3-
a statement of the following facts: (1) the full, legal name of the Authority, (2) the official mailing
address of the Board, (3) the name and residence or business address of each member of the
Board, and (4) the name, title, and residence or business address of the Chair and Secretary of
the Authority, and within 10 days after any change in the facts required to be stated pursuant to
the foregoing, an amended statement containing such information shall be filed with the Secretary
of State on a form prescribed by the Secretary of State and also with the County Clerk of Alameda
County.
(b)Governing Board. The Authority shall be administered by the Board which shall consist
of the members of the City Council. The term of office as a member of the Board shall terminate
when such member of the Board ceases to hold his or her respective seat on the City Council,
and the successor to such seat on the City Council shall automatically become a member of the
Board upon assuming such office.
Members of the Board shall not receive any compensation for serving as such, but shall
be entitled to reimbursement for any expenses actually incurred in connection with serving as a
member if the Board determines that such expenses shall be reimbursed and there are
unencumbered funds available for such purpose.
(c)Meetings of Board.
(1)Time and Place. Initially, the Board shall conduct regular meetings on the same
date, at the same time and at the same location as the regular meetings of the City
Council. Such regular meetings may occur either during or after the regular meetings of
the City Council, but may not commence earlier than the starting time for the regular
meetings of the City Council. The time and place for holding regular meetings may be
changed at any time by resolution of the Board. If the Secretary does not post an agenda
for a regular meeting pursuant to the Brown Act, then such failure to post shall be deemed
to be a determination by the Chair that no items required discussion and, therefore, that
the regular meeting has been cancelled, except as otherwise provided in the Brown Act.
The Board may hold special meetings at any time and from time to time in accordance
with law.
(2)Legal Notice. All regular and special meetings of the Board shall be called,
noticed, held and conducted subject to the provisions of the Brown Act.
(3)Minutes. The Secretary of the Authority shall cause minutes of all meetings of
the Board to be kept and shall, as soon as practicable after each meeting, cause a copy
of the minutes to be forwarded to each member of the Board and to the Members.
(4)Quorum. A majority of the members of the Board shall constitute a quorum for
the transaction of business, except that less than a quorum may adjourn meetings from
time to time.
(d)Officers; Duties; Bonds.
(1) The officers of the Authority shall be the Chair, Vice Chair, Executive Director,
Assistant Executive Director, Secretary and Treasurer. The Chair shall be the person
serving as the Mayor of the City; the Vice-Chair shall be the person serving as the Vice
Mayor of the City; the Executive Director shall be the person serving as the City Manager
of the City; the Assistant Executive Director shall be the person serving as the Assistant
94
-4-
City Manager of the City; the Treasurer shall be the person serving as the Finance Director
of the City; and the Secretary shall be the person serving as the City Clerk of the City.
The officers shall perform the duties normal to their respective offices and such other
duties as may be impossed by the Board. The Chair, the Executive Director or Assistant
Executive Director, or their designees, shall sign all contracts on behalf of the Authority,
and shall perform such other duties as may be imposed by the Board ; provided that the
Board may, by resolution, authorize other officers of the Authority to sign contracts on
behalf of the Authority. The Vice Chair shall act, sign contracts, and perform all of the
Chair’s duties in the absence of the Chair. The Secretary shall perform such duties as
may be imposed by the Board and cause a copy of this Agreement to be filed with the
California Secretary of State pursuant to the Act. These officers shall have such additional
powers and duties as may be determined by the Board from time to time by resolution.
The City Attorney shall serve as the General Counsel of the Authority.
(2)Pursuant to Section 6505.6 of the Act, the Treasurer of the City is hereby
designated as the Treasurer of the Authority. The Treasurer of the Authority is designated
as the public officer or person who has charge of, handles, or has access to any property
of the Authority, and such officer shall file an official bond in the amount of $25,000 as
required by section 6505.1 of the Act; provided, that such bond shall not be required if the
Authority does not possess or own property or funds with an aggregate value of greater
than $500 (excluding amounts held by a trustee or other fiduciary in connection with any
Bonds). The cost of the bond, if necessary, shall be paid by the City.
(3) So long as required by section 6505 and section 6505.5 of the Act, the
Treasurer of the Authority shall prepare or cause to be prepared: (a) a special audit as
required pursuant to section 6505 of the Act every year during the term of this Agreement;
and (b) a report in writing on the first day of July, October, January and April of each year
to the Board, the City and CSCDA which report shall describe the amount of money held
by the Treasurer of the Authority for the Board, the amount of receipts since the last such
report, and the amount paid out since the last such report (which may exclude amounts
held by a trustee or other fiduciary in connection with any Obligations to the extent that
such trustee or other fiduciary provides regular reports covering such amounts).
(4) The services of the officers shall be without compensation by the Authority. The
City will provide such other administrative services as required by the Authority, and shall
not receive economic remuneration from the Authority for the provision of such services.
(5) 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.
(6) All of the privileges and immunities from liability, exemptions from laws,
ordinances and rules, all pension, relief, disability, worker’s compensation and other
benefits which apply to the activities of officers, agents or employees of the Members
when performing their respective functions within the territorial limits of their respective
Member, shall apply to them to the same degree and extent while engaged in the
performance of any of their functions and duties extraterritorially under the provisions of
this Agreement.
(7) None of the officers, agents or employees, if any, directly employed by the
Authority shall be deemed, by reason of their employment by the Authority, to be employed
95
-5-
by any Member or, by reason of their employment by the Authority, to be subject to any of
the requirements of any Member.
(8) The Members hereby confirm their intent and agree that, as provided in Section
4(A) hereof and in the Act, the debts, liabilities and obligations of the Authority shall not
constitute debts, liabilities or obligations of the City or CSCDA, and they do not intend by
the following sentence to impair this provision. Notwithstanding Section 4(A) hereof and
the Act, the City and the Authority shall indemnify, defend and hold harmless CSCDA and
each of CSCDA’s officers, directors, employees, attorneys, Commission members and
agents from and against any and all costs, expenses, losses, claims, damages and
liabilities directly or indirectly arising out of or in connection with the activities of the
Authority, including but not limited to any transaction or series of transactions undertaken
by or for the benefit of the City. CSCDA may elect to defend itself in any such action with
counsel of its choice, the reasonable fees of such counsel to be paid by the City. The
Authority and the City shall be jointly and severally liable for any indemnity obligation owed
to CSCDA or any other indemnified party under this paragraph. Notwithstanding the
provisions of section 895.6 of the California Government Code, the City shall not have any
right to contribution from CSCDA. This paragraph (8) shall survive the termination of this
Agreement.
(9) In any event, the Authority or the City shall cause all records regarding the
Authority’s formation, existence, operations, any Obligations issued or incurred by the
Authority, obligations incurred by it and proceedings pertaining to its termination to be
retained for at least six years following termination of the Authority or final payment of any
Obligations issued or incurred by the Authority, whichever is later.
Section 5. Powers. The Authority shall have any and all powers which are common powers
of the Members, and the powers separately conferred by law upon the Authority. All such powers,
whether common to the Members or separately conferred by law upon the Authority, are specified
as powers of the Authority except any such powers which are specifically prohibited to the
Authority by applicable law. Except as otherwise set forth herein as permitted by law, the
Authority’s exercise of its powers is subject to the restrictions upon the manner of exercising the
powers of the City.
The Authority is hereby authorized, in its own name, to do all acts necessary or convenient
for the exercise of its powers, including, but not limited to, any or all of the following: to sue and
be sued; to make and enter into contracts; to employ agents, consultants, attorneys, accountants,
and employees; to acquire, hold or dispose of property, whether real or personal, t angible or
intangible, wherever located; to issue bonds or otherwise incur debts, liabilities or Obligations to
the extent authorized by the Act or any other applicable provision of law and to pledge any
property or revenues or the rights thereto as security for such Obligations.
Notwithstanding the foregoing, the Authority shall have any additional powers conferred
under the Act or under applicable law, insofar as such additional powers may be necessary to
accomplish the purposes set forth in Section 2 hereof.
Notwithstanding anything to the contrary in this Agreement, the Authority shall not have
the power or the authority to enter into any retirement contract with any public retirement system
(as defined in Section 6508.2 of the California Government Code) for any reason. The provision
in this paragraph is intended to benefit the Members and to be a confirming irrevocable obligation
of the Authority which may be enforced by the Members, individually or collectively.
96
-6-
Section 6. Termination of Powers. The Authority shall continue to exercise the powers
herein conferred upon it until the termination of this Agreement in accordance with Section 3
hereof.
Section 7. Fiscal Year. Unless and until changed by resolution of the Board, the fiscal year
of the Authority shall be the period from July 1 of each year to and including the following June
30, except for the first fiscal year which shall be the period from the date of this Agreement to
June 30, 2022.
Section 8. Disposition of Assets. Upon termination of this Agreement pursuant to Section
3 hereof, any surplus money in possession of the Authority or on deposit in any fund or account
of the Authority shall be returned in proportion to any contributions made as required by section
6512 of the Act. The Board is vested with all powers of the Authority for the purpose of concluding
and dissolving the business affairs of the Authority. After rescission or termination of this
Agreement pursuant to Section 3 hereof, all property of the Authority, both real and personal, shall
be distributed to the City, subject to Section 9 hereof.
Section 9. Contributions and Advances. Contributions or advances of public funds and of
personnel, equipment or property may be made to the Authority by the Members for any of the
purposes of this Agreement. Payment of public funds may be made to defray the cost of any such
contribution. Any such advance made in respect of a revenue-producing facility shall be made
subject to repayment, and shall be repaid, in the manner agreed upon by the City or CSCDA, as
the case may be, and the Authority at the time of making such advance as provided by se ction
6512.1 of the Act. It is mutually understood and agreed that neither the City nor CSCDA has any
obligation to make advances or contributions to the Authority to provide for the costs and
expenses of administration of the Authority, even though either may do so. The Members may
allow the use of personnel, equipment or property in lieu of other contributions or advances to the
Authority.
Section 10. Obligations.
(a)Authority to Issue or Incur Obligations. When authorized by the Act or other applicable
provisions of law and by resolution of the Board, the Authority may issue or incur Obligations for
the purpose of raising funds for the exercise of any of its powers or to otherwise carry out its
purposes under this Agreement. Said Obligations shall have such terms and conditions as are
authorized by the Board.
(b)Limited Obligations. The Obligations, including the principal and any purchase price
thereof, and the interest and premium, if any, thereon, shall be special obligations of the Authority
payable solely from, and secured solely by, the revenues, funds and other assets pledged therefor
under the applicable Indenture(s) and shall not constitute a charge against the general credit of
the Authority or any Member. The Obligations shall not be secured by a legal or equitable pledge
of, or lien or charge upon or security interest in, any property of the Authority or any of its income
or receipts except the property, income and receipts pledged therefor under the applicable
Indenture(s). The Obligations shall not constitute a debt, liability or obligation of the State or any
public agency thereof, including any Member, other than the special obligation of the Authority as
described above. Neither the faith and credit nor the taxing power of the State or any public
agency thereof, including the Members, shall be pledged to the payment of the principal or
purchase price of, or the premium, if any, or interest on the Obligations nor shall the State or any
97
-7-
public agency or instrumentality thereof, including the Members, in any manner be obligated to
make any appropriation for such payment. The Authority shall have no taxing power.
No covenant or agreement contained in any Obligation or Indenture shall be deemed to
be a covenant or agreement of any director, officer, agent or employee of the Authority or any
Member, in his or her individual capacity and no director or officer of the Authority executing a
Obligation shall be liable personally on such Obligation or be subject to any personal liability or
accountability by reason of the issuance of such Obligation.
Section 11. Agreement not Exclusive. This Agreement shall not be exclusive and shall not
be deemed to amend or alter the terms of other agreements between the City and CSCDA, except
as the terms of this Agreement shall conflict therewith, in which case the terms of this Agreement
shall prevail.
Section 12. Accounts and Reports.
(a)Books and Records. All funds of the Authority shall be strictly accounted for in books
of account and financial records maintained by the Authority, including a report of all receipts and
disbursements. The Authority shall establish and maintain such funds and accounts as may be
required by generally accepted accounting principles and by each Indenture for outstanding
Obligations (to the extent such duties are not assigned to a trustee for owners of Obligations).
The books and records of the Authority shall be open to inspection at all reasonable times by the
Members and their representatives.
(b)Indentures. The Authority shall require that each Indenture provide that the trustee
appointed thereunder shall establish suitable funds, furnish financial reports and provide suitable
accounting procedures to carry out the provisions of such Indenture. Said trustee may be given
such duties in said Indenture as may be desirable to carry out the requirements of this Section
12.
(c)Audits. The Treasurer of the Authority shall cause an independent audit to be made of
the books of accounts and financial records of the Authority in compliance with the requirements
of the Act. Any costs of the audit, including contracts with, or employment of, c ertified public
accountants or public accountants in making an audit pursuant to this Section 12, shall be borne
by the Authority and shall be a charge against any unencumbered funds of the Authority available
for that purpose.
(d)Audit Reports. The Treasurer of the Authority, as soon as practicable after the close of
each Fiscal Year but in any event within the time necessary to comply with the requirements of
the Act shall file a report of the audit performed pursuant to this Section 12 as required by the Act
and shall send a copy of such report to public entities and persons in accordance with the
requirements of the Act.
Section 13. Funds. Subject to the provisions of each Indenture for outstanding Obligations
providing for a trustee to receive, have custody of and disburse funds which constitute Authority
funds, the Treasurer of the Authority shall receive, have the custody of and disburse Authority
funds pursuant to accounting procedures approved by the Board and shall make the
disbursements required by this Agreement or otherwise necessary to carry out the provisions and
purposes of this Agreement.
98
-8-
Section 14. Conflict of Interest Code. The Authority shall, by resolution, adopt a Conflict
of Interest Code to the extent required by law. Such Conflict of Interest Code may be the conflict
of interest code of the City.
Section 15. Breach. If default shall be made by the City or CSCDA in any covenant
contained in this Agreement, such default shall not excuse either the City or CSCDA from fulfilling
its obligations under this Agreement and the City and CSCDA shall continue to be liable for the
performance of all conditions herein contained. The City and CSCDA hereby declare that this
Agreement is entered into for the benefit of the Authority created hereby and the City and CSCDA
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 parties hereunder. Each and all of the remedies
given to the Authority hereunder 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.
Section 16. Notices. Notices and other communications hereunder to the parties shall be
sufficient if delivered to the clerk or secretary of the governing body of each party.
Section 17. Withdrawals and Additions of Members.
(a) Withdrawals. Any Member may withdraw from the Authority by filing with the Board
a certified copy of a resolution of the governing body of the Member expressing its desire to so
withdraw, whereupon the withdrawing Member shall no longer be considered a Member for any
reason or purpose under this Agreement and its rights and obligations under this Agreement shall
terminate. The withdrawal of a Member shall not affect the existence of the Authority nor the
effectiveness of any Obligations of the Authority.
(b) Additional Members. Any public agency may be added as a party to this
Agreement, and become a Member, by filing with the Board a certified copy of a resolution of the
governing body of such public agency whereby it agrees to the provisions of this Agreement and
requests to become a Member. The Board may accept or reject any such proposal in its sole
discretion, and if accepted, such public agency shall become a Member when (i) its admission is
approved by a vote of a majority of the Board voting on the matter and (ii) such public agency
agrees to share public agency’s future share of the costs and expenses incurred by the Authority
in the course of its activities. Upon satisfaction of the provisions of this clause (b), such public
agency shall be a Member for all purposes of this Agreement. The effectiveness of such
membership shall not constitute an amendment or modification of this Agreement.
Section 18. Effectiveness. This Agreement shall become effective and be in full force and
effect and a legal, valid and binding obligation of CSCDA and the City, as the initial Members,
when each party has executed a counterpart of this Agreement.
Section 19. Severability. Should any part, term, or provision of this Agreement be decided
by the courts to be illegal or in conflict with any law of the State, or otherwise be rendered
unenforceable or ineffectual, the validity of the remaining parts, terms or provisions hereof shall
not be affected thereby.
Section 20. Successors; Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the successors of the parties. Except to the extent expressly provided
herein, neither party may assign any right or obligation hereunder without the consent of the other.
99
-9-
Section 21. Amendment of Agreement. This Agreement may be amended by
supplemental agreement executed by the Members at any time; provided, however, that this
Agreement may be terminated only in accordance with Section 3 hereof and, pr ovided further,
that such supplemental agreement shall be subject to any restrictions contained in any
Obligations or documents related to any Obligations to which the Authority is a party.
Section 22. Form of Approvals. Whenever an approval is required in this Agreement,
unless the context specifies otherwise, it shall be given, in the case of CSCDA, by resolution duly
adopted by the board of directors of CSCDA, and, in the case of the City, by resolution duly
adopted by the City Council, and, in the case of the Authority, by resolution duly adopted by the
Board. Whenever in this Agreement any consent or approval is required, the same shall not be
unreasonably withheld.
Section 23. Waiver of Personal Liability. No member, officer, employee, attorney, agent,
and, with respect to CSCDA, Commission member of the Authority, the City or CSCDA shall be
individually or personally liable for any claims, losses, damages, costs, injury and liability of any
kind, nature or description arising from the actions of the Authority or the actions undertaken
pursuant to this Agreement, and the City shall defend such members, officers, employees,
attorneys, agents, or, with respect to CSCDA, Commission member, against any such claims,
losses, damages, costs, injury and liability. Without limiting the generality of the foregoing, no
member, officer, employee, attorney, agent, or, with respect to CSCDA, Commission member, of
the Authority or of any Member shall be personally liable on any Obligations or be subject to any
personal liability or accountability by reason of the issuance of Obligations pursuant to the Act
and this Agreement. To the full extent permitted by law, the Board shall provide for indemnification
by the Authority of any person who is or was a member of the Board, or an officer, employee or
other agent of the Authority, and who was or is a party or is threatened to be made a party to a
proceeding by reason of the fact that such person is or was such a member of the Board, or an
officer, employee or other agent of the Authority, against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with such proceeding, if such
person acted in good faith and in the course and scope of his or her office, employment or agency.
In the case of a criminal proceeding, the Board may provide for indemnification and defense of a
member of the Board, or an officer, employee or other agent of the Authority to the extent
permitted by law.
Section 24. Notices. Notices to the City hereunder shall be sufficient if delivered to the City
Manager, and notices to CSCDA hereunder shall be sufficient if delivered to CSCDA staff.
Section 25. 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.
Section 26. Miscellaneous. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same
instrument.
Where reference is made to duties to be performed for the Authority by a public official or
employee, such duties may be performed by that person’s duly authorized deputy or assistant.
Where reference is made to actions to be taken by a Member, such action may be exercised
through the officers, staff or employees of such Member, in the manner provided by law.
100
-10-
This Agreement is made in the State, under the Constitution and laws of the state and is
to be construed as a contract made and to be performed in the State.
This Agreement is the complete and exclusive statement of the agreement among the
parties with respect to the subject matter hereof, which supersedes and merges all prior
proposals, understandings, and other agreements, whether oral, written, or implied in conduct,
between the parties relating to the subject matter of this Agreement.
101
-11-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their proper officers or officials thereunto duly authorized.
CITY OF DUBLIN
By
Assistant City Manager
Attest:
City Clerk
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY
By:
Authorized Signatory
[Joint Exercise of Powers Agreement - Dublin Financing Authority]
102