HomeMy WebLinkAbout06.B- City Manager 6.B
RESOLUTION (ID # 3737) DOC ID: 3737 A
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Public Hearing
From: Allen Parker M/CC Meeting Date: 03/16/2015
Prepared by: Brandon Mims, (909) 384-
5122
Dept: City Manager Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing
the Execution of a Joint Exercise of Powers Agreement Relating to the California
Municipal Finance Authority and Approving the Issuance of the California Municipal
Finance Authority Refunding Revenue Bonds (Inland Regional Center Project), Series
2015, in an Aggregate Principal Amount Not to Exceed $80,000,000 for the Purpose of
Refinancing the Acquisition of Property and the Construction, Improvement, and
Equipping of an Office Facility and Certain Other Matters Thereto. (#3737)
Current Business Registration Certificate: No
Financial Impact:
There are no costs associated with membership in the CMFA and the City will in no way
become exposed to any financial liability by reason of its membership in the CMFA.
The Board of Directors of the California Foundation for Stronger Communities, a
California non-profit public benefit corporation (the "Foundation"), acts as the Board of
Directors for the CMFA. Through its conduit issuance activities, the CMFA shares a
portion of the issuance fees it receives with its member communities and donates a
portion of these issuance fees to the Foundation for the support of local charities. With
respect to the City of San Bernardino, it is expected that that a portion of the issuance
fee will be granted by the CMFA to the general fund of the City. Such grant may be
used for any lawful purpose of the City. The Borrower will be the beneficiary of the
CMFA's charitable donation through a 25% reduction in issuance fees.
Mayor to open the hearing. . .
Motion: Close the hearing; and adopt the Resolution.
Synopsis of Previous Council Action:
<<Insert synopsis here>>
Issue
1. A public hearing is required under the Tax and Equity Fiscal Responsibility Act
("TEFRA") in connection with the proposed issuance of revenue bonds in one or
more series by the California Municipal Finance Authority ("CMFA"), a joint
exercise of powers authority and public entity of the State of California, in an
amount not to exceed $80,000,000, (the "Bonds"), to assist in refinancing the
acquisition of property and the construction, improvement and equipping of an
office facility located within the Waterman Business Park located at 1365
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Waterman Avenue San Bernardino, California, 92408 (the "Protect").
2. Adopt a resolution to become a member of the CMFA and to approve the
financing of the Project by the CMFA.
Background
The California Housing Foundation requested that the CMFA serve as the municipal
issuer of the Bonds in an aggregate principal amount not to exceed $80,000,000 of tax-
exempt revenue refunding bonds. Proceeds of the Bonds are to be loaned to the
California Housing Foundation, a California nonprofit public benefit corporation (or any
successor or assigns thereto) pursuant to a Loan Agreement (the "Loan Agreement").
The proceeds of the Bonds loaned to the Borrower will be applied to refinance the
acquisition, construction and equipping of an approximately 200,000 rentable square
feet office facility located within the Waterman Business Park located at 1365 Waterman
Avenue San Bernardino, California, 92408 (the "Facilities"), that are leased by the
Borrower to the Inland Regional Center ("Inland Regional Center") for the continuance
of the Borrower's and Inland Regional Center's mission of providing services to
individuals with developmental disabilities. The Facilities will be owned by the Borrower
and operated by Inland Regional Center.
In order for all or a portion of the Bonds to qualify as tax-exempt bonds, the City of San
Bernardino must conduct a public hearing (the "TEFRA Hearing") providing for the
members of the community an opportunity to speak in favor of or against the use of tax-
exempt bonds for the financing of the Project. Prior to such TEFRA Hearing,
reasonable notice must be provided to the members of the community. Following the
close of the TEFRA Hearing, an "applicable elected representative" of the governmental
unit hosting the Project must provide its approval of the issuance of the Bonds for the
financing of the Project.
California Municipal Finance Authority (CMFA)
The CMFA was created on January 1, 2004 pursuant to a joint exercise of powers
agreement to promote economic, cultural and community development, through the
financing of economic development and charitable activities throughout California. To
date, over 200 municipalities have become members of CMFA. The CMFA was formed
to assist local governments, non-profit organizations and businesses with the issuance
of taxable and tax-exempt bonds aimed at improving the standard of living in California.
The CMFA's representatives and its Board of Directors have considerable experience in
bond financings. In order for the CMFA to have the authority to serve as the issuer of
the bonds for the Project, it is necessary for the City of San Bernardino to become a
member of the CMFA. Attached to this report is a copy of the Joint Exercise of Powers
Agreement to be executed by a designated signatory of the City.
❑ The Joint Exercise of Powers Agreement provides that the CMFA is a public
entity, separate and apart from each member executing such agreement.
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The debts, liabilities and obligations of the CMFA do not constitute debts,
liabilities or obligations of the members executing such agreement.
❑ The Bonds to be issued by the CMFA for the Project will be the sole
responsibility of the Borrower, and the City will have no financial, legal, moral
obligation, liability or responsibility for the Project or the repayment of the Bonds
for the financing of the Project.
❑ All financing documents with respect to the issuance of the Bonds will contain
clear disclaimers that the Bonds are not obligations of the City or the State of
California, but are to be paid for solely from funds provided by the Borrower.
❑ There are no costs associated with membership in the CMFA and the City
will in no way become exposed to any financial liability by reason of its
membership in the CMFA.
Participation by the City in the CMFA will not impact the City's appropriations limits and
will not constitute any type of indebtedness by the City. Outside of holding the TEFRA
hearing, adopting the required resolution and executing the Joint Exercise of Powers
Agreement of the CMFA, no other participation or activity of the City or the City Council
with respect to the issuance of the Bonds will be required.
Withdrawal from CMFA
The Joint Exercise of Powers Agreement expressly provides that any member may
withdraw from such agreement upon written notice to the Board of Directors of the
CMFA. In the case of the proposed bond financing for the Borrower, the City following
its execution of the Joint Exercise of Powers Agreement, could, at any time following the
issuance of the Bonds, withdraw from the CMFA by providing written notice to the Board
of Directors of the CMFA.
Fiscal Impact
As noted above, there are no costs associated with membership in the CMFA and the
City will in no way become exposed to any financial liability by reason of its membership
in the CMFA. The Board of Directors of the California Foundation for Stronger
Communities, a California non-profit public benefit corporation (the "Foundation"), acts
as the Board of Directors for the CMFA. Through its conduit issuance activities, the
CMFA shares a portion of the issuance fees it receives with its member communities
and donates a portion of these issuance fees to the Foundation for the support of local
charities. With respect to the City of San Bernardino, it is expected that that a portion of
the issuance fee will be granted by the CMFA to the general fund of the City. Such
grant may be used for any lawful purpose of the City. The Borrower will be the
beneficiary of the CMFA's charitable donation through a 25% reduction in issuance
fees.
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Summary
In light of the foregoing, and in order to support the Inland Regional Center Project, staff
recommends that the City conduct the TEFRA Hearing, execute the Joint Exercise of
Powers Agreement of the CMFA, and adopt the resolution in favor of the issuance of
the Bonds by the CMFA.
City Attorney Review:
Supporting Documents:
TEFRA Resolution (DOC)
CMFA JPA Agreement- City of San Bernardino (PDF)
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I RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A JOINT EXERCISE
3 OF POWERS AGREEMENT RELATING TO THE CALIFORNIA MUNICIPAL
4 FINANCE AUTHORITY AND APPROVING THE ISSUANCE OF THE
CALIFORNIA MUNICIPAL FINANCE AUTHORITY REFUNDING REVENUE �.
5 BONDS (INLAND REGIONAL CENTER PROJECT), SERIES 2015, IN AN m
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $80,000,000 FOR THE Cr
6 PURPOSE OF REFINANCING THE ACQUISITION OF PROPERTY AND THE
7 CONSTRUCTION, IMPROVEMENT, AND EQUIPPING OF AN OFFICE FACILITY
AND CERTAIN OTHER MATTERS THERETO w
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9 WHEREAS, pursuant to Chapter 5 of Division 7 of Title 1 of the Government Code a.
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10 of the State of California (the "Act"), certain public agencies (the "Members") have entered
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11 into a Joint Exercise of Powers Agreement Relating to the California Municipal Finance o
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Authority, dated as of January 1, 2004 (the "Agreement") in order to form the California
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14 Municipal Finance Authority (the "Authority"), for the purpose of promoting economic, c
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15 cultural and community development, and in order to exercise any powers common to the ti
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16 Members, including the issuance of bonds, notes or other evidences of indebtedness; and
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WHEREAS, the City of San Bernardino, California (the "City"), has determined that >
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it is in the public interest and for the public benefit that the City become a Member of the o
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20 Authority in order to facilitate the promotion of economic, cultural and community N
21 development activities in the City, including the financing of projects therefor by the
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22 Authority; and
23 WHEREAS, there is now before the Mayor and Common Council (the "Council") of E
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the City the form of the Agreement; and a
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26 WHEREAS, the Agreement has been filed with the City, and the members of the
27 Council of the City, with the assistance of its staff, have reviewed said document; and
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1 WHEREAS, the Authority is authorized to issue and sell revenue bonds for the
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purpose, among others, of financing or refinancing the construction of capital projects; and
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4 WHEREAS, the California Housing Foundation, a California nonprofit public benefit
5 corporation or an assignee thereof(the `Borrower"), pursuant to a loan agreement, borrowed
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6 $77,530,000 to finance the acquisition, construction and equipping of an approximately
200,000 rentable square feet office facility (the "Facilities"), located at 1365 Waterman F
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Avenue, San Bernardino, California, 92408, for lease to Inland Counties Regional Center, m
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Inc., a California nonprofit public benefit corporation (the "Corporation"); and
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WHEREAS, the Facilities have been completed and the office lease by and between v
12 the Borrower and Corporation has been in effect since November 29, 2007; and 0
13 WHEREAS, the Borrower finds it necessary and desirable to refinance the Facilities c
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0 to realize net present value savings; and ti
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WHEREAS, the Borrower has requested that the Authority issue and sell its
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17 Refunding Revenue Bonds (Inland Regional Center Project), Series 2015 (the "Bonds") in an o
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18 amount not to exceed $80,000,000 for the purpose of making a loan to the Borrower to X
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19 refinance the Facilities; and
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20 WHEREAS, the project to be financed by the Bonds consists of refinancing the
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Facilities, the funding of a reserve fund for the Bonds and the financing of the costs of issuing w
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23 the Bonds (collectively, the "Project"); and
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WHEREAS, in order for the interest on the Bonds to be tax-exempt, Section 147(f) of
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25 the Internal Revenue Code of 1986, as amended (the "Code"), requires that an "applicable
26 elected representative" of the governmental unit, the geographic jurisdiction of which contains
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1 the site of facilities to be financed with the proceeds of the Bonds, hold a public hearing on
2 the issuance of the Bonds and approve the issuance of the Bonds following such hearing; and
3 WHEREAS, the Authority has determined that the Council of the City is an
4 "applicable elected representative" for purposes of holding such hearing; and .,
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WHEREAS, the Authority has requested that the Council of the City approve the
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issuance of the Bonds by the Authority in order to satisfy the public approval requirement of
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Section 147(f) of the Code and, the requirements of Section 4 of the Agreement; and ~
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9 WHEREAS, notice of such public hearing has been duly given as required by the a`
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10 Code, and this Council of the City has heretofore held such public hearing at which all
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interested persons were given an opportunity to be heard on all matters relative to the o
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financing or refinancing of the Project and the Authority's issuance of the Bonds therefor; and
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14 WHEREAS, it is in the public interest and for the public benefit that the Council of c
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15 the City approve the issuance of the Bonds by the Authority for the aforesaid purposes; ti
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17 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON g
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The foregoing recitals are true and correct. o
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SECTION 2. The Agreement is hereby approved and the Mayor or the designee
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thereof is hereby authorized and directed to execute said document, and the City Clerk or such u
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Clerk's designee is hereby authorized and directed to attest thereto.
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24 SECTION 3. The Council of the City hereby approves the issuance of the Bonds by
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the Authority. It is the purpose and intent of the Council of the City that this resolution
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27 constitute approval of the issuance of the Bonds (a) by the "applicable elected representative"
28 of the governmental unit having jurisdiction over the area in which the Project is located in
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1 accordance with Section 147(f) of the Code and (b) by the Council of the City in accordance
2 with Section 4 of the Agreement.
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4 SECTION 4. The issuance of the Bonds shall be subject to the approval of the
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Authority of all financing documents relating thereto to which the Authority is a party. The
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6 City shall have no responsibility or liability whatsoever with respect to the Bonds.
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SECTION 5. The adoption of this Resolution shall not obligate the City or any
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9 department thereof to (i) provide any financing to acquire or construct the Project or any a
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10 refinancing of the Project; (ii) approve any application or request for or take any other action
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11 in connection with any planning approval, permit or other action necessary for the acquisition,
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construction, rehabilitation or operation of the Project; (iii) make any contribution or advance
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any funds whatsoever to the Authority; or (iv) take any further action with respect to the
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15 Authority or its membership therein.
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SECTION 6. The Mayor of the City, and/or his designees, are hereby authorized and c
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18 directed to execute such other agreements, documents and certificates, and to perform such
19 other acts and deeds, as may be necessary or convenient to effect the purposes of this
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20 Resolution and the transactions herein authorized.
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22 SECTION 7. The City Clerk shall forward a certified copy of this Resolution and an F
23 originally executed Agreement to the Authority in care of its counsel:
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25 Ronald E. Lee, Esq.
26 Jones Hall, APLC
27 475 Sansome Street, Suite 1700
28 San Francisco, CA 94111
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2 SECTION 8. This resolution shall take effect immediately upon its passage.
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Packet Pg.459
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A JOINT EXERCISE
2 OF POWERS AGREEMENT RELATING TO THE CALIFORNIA MUNICIPAL
FINANCE AUTHORITY AND APPROVING THE ISSUANCE OF THE
3 CALIFORNIA MUNICIPAL FINANCE AUTHORITY REFUNDING REVENUE
4 BONDS (INLAND REGIONAL CENTER PROJECT), SERIES 2015, IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $80,000,000 FOR THE
5 PURPOSE OF REFINANCING THE ACQUISITION OF PROPERTY AND THE
CONSTRUCTION, IMPROVEMENT, AND EQUIPPING OF AN OFFICE FACILITY
6 AND CERTAIN OTHER MATTERS THERETO
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Uj
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Common Council of the City of San Bernardino at a meeting o
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10 thereof, held on the day of , 2015,by the following vote, to wit:
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11 Council Members: AYES NAYS ABSTAIN ABSENT �a
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12 MARQUEZ
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BARRIOS c
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VALDIVIA
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16 SHORETT
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17 NICKEL y
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18 JOHNSON
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MULVIHILL 0
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21 Georgeann Hanna, City Clerk
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22 The foregoing resolution is hereby approved this day of , 2015. r
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25 R. Carey Davis, Mayor a
City of San Bernardino
26 Approved as to form:
Gary D. Saenz, City Attorney
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28 By:
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JOINT EXERCISE OF POWERS AGREEMENT
RELATING TO THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY
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THIS AGREEMENT, dated as of January 1, 2004, among the parties executing this �.
Agreement (all such parties, except those which have withdrawn as provided herein, are referred
to as the "Members" and those parties initially executing this Agreement are referred to as the
"Initial Members"): U-
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WITNESSETH
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WHEREAS, pursuant to Title 1, Division 7, Chapter 5 of the California Government a
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Code (in effect as of the date hereof and as the same may from time to time be amended or c
supplemented, the "Joint Exercise of Powers Act"), two or more public agencies may by v
agreement jointly exercise any power common to the contracting parties; and
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WHEREAS, each of the Members is a "public agency" as that term is defined in Section
6500 of the Joint Exercise of Powers Act; and
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WHEREAS, each of the Members is empowered by law to promote economic, cultural
and community development, including, without limitation, the promotion of opportunities for
the creation or retention of employment, the stimulation of economic activity, the increase of the
tax base, and the promotion of opportunities for education, cultural improvement and public 0
health, safety and general welfare; and =a
WHEREAS, each of the Members may accomplish the purposes and objectives described
in the preceding preamble by various means, including through making grants, loans or m
providing other financial assistance to governmental and nonprofit organizations; and co
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WHEREAS, each Member is also empowered by law to acquire and dispose of real v
property for a public purpose; and r
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WHEREAS, the Joint Exercise of Powers Act authorizes the Members to create a joint
exercise of powers entity with the authority to exercise any powers common to the Members, as Q
specified in this Agreement and to exercise the additional powers granted to it in the Joint Q
Exercise of Powers Act and any other applicable provisions of the laws of the State of California; °0-
and Q
WHEREAS, a public entity established pursuant to the Joint Exercise of Powers Act is v
empowered to issue or execute bonds, notes, commercial paper or any other evidences of a
indebtedness, including leases or installment sale agreements or certificates of participation
therein (herein "Bonds"), and to otherwise undertake financing programs under the Joint
Exercise of Powers Act or other applicable provisions of the laws of the State of California to Q
accomplish its public purposes; and
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6.B.b
WHEREAS, the Members have determined to specifically authorize a public entity
authorized pursuant to the Joint Exercise of Powers Act to issue Bonds pursuant to the Joint
Exercise of Powers Act or other applicable provisions of the laws of the State of California; and
WHEREAS, it is the desire of the Members to use a public entity established pursuant to
the Joint Exercise of Powers Act to undertake the financing and/or refinancing of projects of any s
nature, including, but not limited to, capital or working capital projects, insurance, liability or
retirement programs or facilitating Members use of existing or new financial instruments and
mechanisms; and LL
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WHEREAS, it is further the intention of the Members that the projects undertaken will
result in significant public benefits to the inhabitants of the jurisdictions of the Members; and
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WHEREAS, by this Agreement, each Member desires to create and establish the c
"California Municipal Finance Authority" for the purposes set forth herein and to exercise the v
powers provided herein; rCa
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NOW, THEREFORE, the Members, for and in consideration of the mutual promises and
agreements herein contained, do agree as follows: _
Section 1. Purpose.
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This Agreement is made pursuant to the provisions of the Joint Exercise of Powers Act.
The purpose of this Agreement is to establish a public entity for the joint exercise of powers c
common to the Members and for the exercise of additional powers given to a joint powers entity
under the Joint Powers Act or any other applicable law, including, but not limited to, the
issuance of Bonds for any purpose or activity permitted under the Joint Exercise of Powers Act m
or any other applicable law. Such purpose will be accomplished and said power exercised in the
manner hereinafter set forth. in
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Section 2. Term.
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This Agreement shall become effective in accordance with Section 17 as of the date
hereof and shall continue in full force and effect until such time as it is terminated in writing by d
all the Members; provided, however, that this Agreement shall not terminate or be terminated
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until all Bonds issued or caused to be issued by the Authority (defined below) shall no longer be Q
outstanding under the terms of the indenture, trust agreement or other instrument pursuant to nom.
which such Bonds are issued, or unless a successor to the Authority assumes all of the a
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Authority's debts, liabilities and obligastions.
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Section 3. Authority.
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A. CREATION AND POWERS OF AUTHORITY. U
Pursuant to the Joint Exercise of Powers Act, there is hereby created a public Q
entity to be known as the "California Municipal Finance Authority" (the "Authority"),
and said Authority shall be a public entity separate and apart from the Members. Its
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6.B.b
debts, liabilities and obligations do not constitute debts, liabilities or obligations of any
Members.
B. BOARD.
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The Authority shall be administered by the Board of Directors (the "Board," or s
the "Directors" and each a "Director") of the California Foundation for Stronger
Communities, a nonprofit public benefit corporation organized under the laws of the Q
State of California (the "Foundation"), with each such Director serving in his or her w
individual capacity as a Director of the Board. The Board shall be the administering
agency of this Agreement and, as such, shall be vested with the powers set forth herein, 5
and shall administer this Agreement in accordance with the purposes and functions
provided herein. The number of Directors, the appointment of Directors, alternates and
successors, their respective terms of office, and all other provisions relating to the
qualification and office of the Directors shall be as provided in the Articles and Bylaws v
of the Foundation, or by resolution of the Board adopted in accordance with the Bylaws
of the Foundation. g
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All references in this Agreement to any Director shall be deemed to refer to and c
include the applicable alternate Director, if any, when so acting in place of a regularly
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appointed Director.
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Directors may receive reasonable compensation for serving as such, and shall be
entitled to reimbursement for any expenses actually incurred in connection with serving o
as a Director, if the Board shall determine that such expenses shall be reimbursed and
there are unencumbered funds available for such purpose.
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The Foundation may be removed as administering agent hereunder and replaced m
at any time by amendment of this Agreement approved as provided in Section 16; co
provided that a successor administering agent of this Agreement has been appointed and c
accepted its duties and responsibilities under this Agreement. r
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C. OFFICERS; DUTIES; OFFICIAL BONDS.
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The officers of the Authority shall be the Chair, Vice-Chair, Secretary and
Treasurer (defined below). The Board, in its capacity as administering agent of this a
Agreement, shall elect a Chair, a Vice-Chair, and a Secretary of the Authority from as
among Directors to serve until such officer is re-elected or a successor to such office is Q
elected by the Board. The Board shall appoint one or more of its officers or employees to 2
serve as treasurer, auditor, and controller of the Authority (the "Treasurer") pursuant to U
Section 6505.6 of the Joint Exercise of Powers Act to serve until such officer is re-elected
or a successor to such office is elected by the Board. E
Subject to the applicable provisions of any resolution, indenture, trust agreement a
or other instrument or proceeding authorizing or securing Bonds (each such resolution,
indenture, trust agreement, instrument and proceeding being herein referred to as an
"Indenture") providing for a trustee or other fiscal agent, and except as may otherwise be
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specified by resolution of the Board, the Treasurer is designated as the depositary of the
Authority to have custody of all money of the Authority, from whatever source derived
and shall have the powers, duties and responsibilities specified in Sections 6505, 6505.5
and 6509.5 of the Joint Exercise of Powers Act.
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The Treasurer of the Authority is designated as the public officer or person who Cr
has charge of, handles, or has access to any property of the Authority, and such officer
shall file an official bond with the Secretary of the Authority in the amount specified by
resolution of the Board but in no event less than $1,000. w
The Board shall have the power to appoint such other officers and employees as it 2
may deem necessary and to retain independent counsel, consultants and accountants. a
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The Board shall have the power, by resolution, to the extent permitted by the Joint
Exercise of Power Act or any other applicable law, to delegate any of its functions to one v
or more of the Directors or officers, employees or agents of the Authority and to cause
any of said Directors, officers, employees or agents to take any actions and execute any
documents or instruments for and in the name and on behalf of the Board or the
Authority.
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D. MEETINGS OF THE BOARD.
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(1) Ralph M. Brown Act.
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All meetings of the Board, including, without limitation, regular,
adjourned regular, special, and adjourned special meetings shall be called, c
noticed, held and conducted in accordance with the provisions of the m
Ralph M. Brown Act (commencing with Section 54950 of the C
Government Code of the State of California), or any successor legislation ci
hereinafter enacted(the "Brown Act"). o
(2) Regular Meetings. v
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The Board shall provide for its regular meetings; provided,
however, it shall hold at least one regular meeting each year. The date,
hour and place of the holding of the regular meetings shall be fixed by Q
resolution of the Board. To the extent permitted by the Brown Act, such a.
meetings may be held by telephone conference. �¢
(3) Special Meetings.
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Special meetings of the Board may be called in accordance with E
the provisions of Section 54956 of the Government Code of the State of
California. To the extent permitted by the Brown Act, such meetings may a
be held by telephone conference.
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(4) Minutes.
The Secretary of the Authority shall cause to be kept minutes of
the regular, adjourned regular, special, and adjourned special meetings of
the Board and shall, as soon as possible after each meeting, cause a copy
of the minutes to be forwarded to each Director. �.
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(5) Quorum.
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A majority of the Board shall constitute a quorum for the �—
transaction of business. No action may be taken by the Board except upon
the affirmative vote of a majority of the Directors constituting a quorum, a
except that less than a quorum may adjourn a meeting to another time and L
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E. RULES AND REGULATIONS. c
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The Authority may adopt, from time to time, by resolution of the Board such rules
and regulations for the conduct of its meetings and affairs as may be required.
Section 4. Powers.
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The Authority shall have the power, in its own name, to exercise the common powers of
the Members and to exercise all additional powers given to a joint powers entity under any of the o
laws of the State of California, including, but not limited to, the Joint Exercise of Powers Act, for C
any purpose authorized under this Agreement. Such powers shall include the common powers c
specified in this Agreement and may be exercised in the manner and according to the method m
provided in this Agreement. The Authority is hereby authorized to do all acts necessary for the o
exercise of such power, including, but not limited to, any of all of the following: to make and Co
enter into contracts; to employ agents and employees; to acquire, construct, provide for o
maintenance and operation of, or maintain and operate, any buildings, works or improvements; r
to acquire, hold or dispose of property wherever located; to incur debts, liabilities or obligations;
to receive gifts, contributions and donations of property, funds, services, and other forms of a
assistance from person, firms, corporations and any governmental entity; to sue and be sued in its d
own name; to make grants, loans or provide other financial assistance to governmental and
nonprofit organizations (e.g., the Members or the Foundation) to accomplish any of its purposes; a
and generally to do any and all things necessary or convenient to accomplish its purposes. a-
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Without limiting the generality of the foregoing, the Authority may issue or cause to be g
issued Bonds, and pledge any property or revenues as security to the extent permitted under the U
Joint Exercise of Powers Act, or any other applicable provision of law; provided, however, the C
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Authority shall not issue Bonds with respect to any project located in the jurisdiction of one or E
more Members unless the governing body of any such Member, or its duly authorized
representative, shall approve, conditionally or unconditionally, the project, including the issuance a
of Bonds therefor. Such approval may be evidenced by resolution, certificate, order, report or
such other means of written approval of such project as may be selected by the Member (or its
authorized representative) whose approval is required. No such approval shall be required in
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connection with Bonds that refund Bonds previously issued by the Authority and approved by
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The manner in which the Authority shall exercise its powers and perform its duties is and
shall be subject to the restrictions upon the manner in which a California general law city could
exercise such powers and perform such duties. The manner in which the Authority shall exercise
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its powers and perform its duties shall not be subject to any restrictions applicable to the manner
in which any other public agency could exercise such powers or perform such duties, whether
such agency is a party to this Agreement or not. w
Section 5. Fiscal Year.
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For the purposes of this Agreement, the term "Fiscal Year" shall mean the fiscal year as
established from time to time by resolution of the Board, being, at the date of this Agreement, the c
period from July 1 to and including the following June 30, except for the first Fiscal Year which v
shall be the period from the date of this Agreement to June 30, 2004.
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Section 6. Disposition of Assets.
At the end of the term hereof or upon the earlier termination of this Agreement as set o
forth in Section 2, after payment of all expenses and liabilities of the Authority, all property of
the Authority both real and personal shall automatically vest in the Members in the manner and M
amount determined by the Board in its sole discretion and shall thereafter remain the sole
property of the Members; provided, however, that any surplus money on hand shall be returned o
in proportion to the contributions made by the Members.
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Section 7. Bonds.
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From time to time the Authority shall issue Bonds, in one or more series, for the purpose cn
of exercising its powers and raising the funds necessary to carry out its purposes under this c
Agreement.
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The services of bond counsel, financing consultants and other consultants and advisors C
working on the projects and/or their financing shall be used by the Authority. The expenses of m
the Board shall be paid from the proceeds of the Bonds or any other unencumbered funds of the E
Authority available for such purpose. ¢
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Section 8. Bonds Only Limited and Special Obligations of Authority. a
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The Bonds, together with the interest and premium, if any, thereon, shall not be deemed U
to constitute a debt of any Member or pledge of the faith and credit of the Members or the c
Authority. The Bonds shall be only special obligations of the Authority, and the Authority shall E
under no circumstances be obligated to pay the Bonds except from revenues and other funds
pledged therefor. Neither the Members nor the Authority shall be obligated to pay the principal a
of, premium, if any, or interest on the Bonds, or other costs incidental thereto, except from the
revenues and funds pledged therefor, and neither the faith and credit nor the taxing power of the
Members nor the faith and credit of the Authority shall be pledged to the payment of the
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principal of, premium, if any, or interest on the Bonds nor shall the Members or the Authority in
any manner be obligated to make any appropriation for such payment.
No covenant or agreement contained in any Bond or related document shall be deemed to
be a covenant or agreement of any Director, or any officer, employee or agent of the Authority in
his or her individual capacity and neither the Board of the Authority nor any Director or officer s
thereof executing the Bonds shall be liable personally on any Bond or be subject to any personal
liability or accountability by reason of the issuance of any Bonds.
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Section 9. Accounts and Reports.
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All funds of the Authority shall be strictly accounted for. The Authority shall establish
and maintain such funds and accounts as may be required by good accounting practice and by C'
any provision of any Indenture (to the extent such duties are not assigned to a trustee of Bonds).
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The books and records of the Authority shall be open to inspection at all reasonable times by v
each Member.
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The Treasurer of the Authority shall cause an independent audit to be made of the books
of accounts and financial records of the Authority by a certified public accountant or public
accountant in compliance with the provisions of Section 6505 of the Joint Exercise of Powers
Act. In each case the minimum requirements of the audit shall be those prescribed by the State
Controller for 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
accounts and records is made by a certified public accountant or public accountant, a report o
thereof shall be filed as a public record with each Member and also with the county auditor of
each county in which a Member is located; provided, however, that to the extent permitted by
law, the Authority may, instead of filing such report with each Member and such county auditor, m
elect to post such report as a public record electronically on a website designated by the
Authority. Such report if made shall be filed within 12 months of the end of the Fiscal Year or in
Years under examination. o
The Treasurer is hereby directed to report in writing on the first day of July, October, r
January, and April of each year to the Board and the Members which report shall describe the
amount of money held by the Treasurer for the Authority, the amount of receipts since the last d
such report, and the amount paid out since the last such report (which may exclude amounts held a,
by a trustee or other fiduciary in connection with any Bonds to the extent that such trustee or a
other fiduciary provided regular reports covering such amounts.)
Any costs of the audit, including contracts with, or employment of, certified public
accountants or public accountants in making an audit pursuant to this Section, shall be borne by v
the Authority and shall be a charge against any unencumbered funds of the Authority available
for that purpose. _
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In any Fiscal Year the Board may, by resolution adopted by unanimous vote, replace the Q
annual special audit with an audit covering a two-year period.
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Section 10. Funds.
Subject to the applicable provisions of any Indenture, which may provide for a trustee or
other fiduciary to receive, have custody of and disburse Authority funds, the Treasurer of the
Authority shall receive, have the custody of and disburse Authority funds pursuant to the
accounting procedures developed under Sections 3.0 and 9, and shall make the disbursements s
required by this Agreement or otherwise necessary to carry out any of the provisions of purposes 4)
of this Agreement.
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Section 11. Notices.
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Notices and other communications hereunder to the Members shall be sufficient if o
delivered to the clerk of the governing body of each Member; provided, however, that to the
extent permitted by law, the Authority may, provide notices and other communications and
postings electronically(including, without limitation, through email or by posting to a website). v
Section 12. Additional Members/Withdrawal of Members. o
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Qualifying public agencies may be added as parties to this Agreement and become
Members upon: (1) the filing by such public agency with the Authority of an executed C
counterpart of this Agreement, together with a copy of the resolution of the governing body of =
such public agency approving this Agreement and the execution and delivery hereof; and (2) M
adoption of a resolution of the Board approving the addition of such public agency as a Member. M
Upon satisfaction of such conditions, the Board shall file such executed counterpart of this o
Agreement as an amendment hereto, effective upon such filing.
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A Member may withdraw from this Agreement upon written notice to the Board;
provided, however, that no such withdrawal shall result in the dissolution of the Authority so 0°
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long as any Bonds remain outstanding. Any such withdrawal shall be effective only upon receipt
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of the notice of withdrawal by the Board which shall acknowledge receipt of such notice of o
withdrawal in writing and shall file such notice as an amendment to this Agreement effective
upon such filing. v
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Section 13. Indemnification. E
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To the full extent permitted by law, the Board may authorize indemnification by the a
Authority of any person who is or was a Director or an officer, employee of other agent of the a
Authority, and who was or is a party or is threatened to be made a party to a proceeding by Q
reason of the fact that such person is or was such a Director or an officer, employee or other U-
agent of the Authority, against expenses, including attorneys fees,judgments, fines, settlements v
and other amounts actually and reasonably incurred in connection with such proceeding, if such c
person acted in good faith in a manner such person reasonably believed to be in the best interests E
of the Authority and, in the case of a criminal proceeding, had no reasonable cause to believe the
conduct of such person was unlawful and, in the case of an action by or in the right of the a
Authority, acted with such care, including reasonable inquiry, as an ordinarily prudent person in
a like position would use under similar circumstances.
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Section 14. Contributions and Advances.
Contributions or advances of public funds and of the use of personnel, equipment or
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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 or
advance. Any such advance may be made subject to repayment, and in such case shall be repaid, s
in the manner agreed upon by the Authority and the Member making such advance at the time of
such advance. It is mutually understood and agreed to that no Member has any obligation to
make advances or contributions to the Authority to provide for the costs and expenses of w
administration of the Authority, even though any Member may do so. The Members understand
and agree that a portion of the funds of the Authority that otherwise may be allocated or
distributed to the Members may instead be used to make grants, loans or provide other financial o
assistance to governmental units and nonprofit organizations (e.g., the Foundation) to 1_
accomplish any of the governmental unit's or nonprofit organization's purposes. c
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Section 15. Immunities.
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All of the privileges and immunities from liabilities, exemptions from laws, ordinances
and rules, and other benefits which apply to the activity of officers, agents or employees of
Members when performing their respective functions within the territorial limits of their
respective public agencies, shall apply to the same degree and extent to the Directors, officers,
employees, agents or other representatives of the Authority while engaged in the performance of M
any of their functions or duties under the provisions of this Agreement.
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Section 16. Amendments.
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Except as provided in Section 12 above this Agreement shall not be amended modified,
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or altered, unless the negative consent of each of the Members is obtained. To obtain the m
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negative consent of each of the Members, the following negative consent procedure shall be in
followed: (a) the Authority shall provide each Member with a notice at least sixty (60) days 0
prior to the date such proposed amendment is to become effective explaining the nature of such w
proposed amendment and this negative consent procedure; (b)the Authority shall provide each
Member who did not respond a reminder notice with a notice at least thirty (30) days prior to the
date such proposed amendment is to become effective; and (c) if no Member objects to the d
proposed amendment in writing within sixty (60) days after the initial notice, the proposed L
amendment shall become effective with respect to all Members. ¢
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Section 17. Effectiveness. a
This Agreement shall become effective and be in full force and effect and a legal, valid v
and binding obligation of each of the Members on the date that the Board shall have received
from two of the Initial Members an executed counterpart of this Agreement, together with a E
certified copy of a resolution of the governing body of each such Initial Member approving this
Agreement and the execution and delivery hereof. a
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Section 18. Partial Invalidity.
If any one or more of the terms, provisions, promises, covenants or conditions of this
Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any
reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms,
provisions, promises, covenants and conditions of this Agreement shall not be affected thereby, Cr
and shall be valid and enforceable to the fullest extent permitted by law.
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Section 19. Successors. w
This Agreement shall be binding upon and shall inure to the benefit of the successors of
the parties hereto. Except to the extent expressly provided herein, no Member may assign any o
right or obligation hereunder without the consent of the other Members. °-
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Section 20. Miscellaneous. v
This Agreement may be executed in several counterparts, each of which shall be an o
original and all of which shall constitute but one and the same instrument.
The section headings herein are for convenience only and are not to be construed as
modifying or governing the language in the section referred to.
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Wherever in this Agreement any consent or approval is required, the same shall not be
unreasonably withheld. c
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This Agreement shall be governed under the laws of the State of California.
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This Agreement is the complete and exclusive statement of the agreement among the 0°
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Members, which supercedes and merges all prior proposals, understandings, and other in
agreements, whether oral, written, or implied in conduct, between and among the Members o
relating to the subject matter of this Agreement.
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IN WITNESS WHEREOF, the City of San Bernardino has caused this Agreement
to be executed and attested by its duly authorized representatives as of the day of
12015.
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CITY OF SAN BERNARDINO
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