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HomeMy WebLinkAboutJPFA Resolution 2013-01 (By-Laws)RESOLUTION NO. 2013-01 RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN RAFAEL JOINT POWERS FINANCING AUTHORITY APPROVING BY- LAWS AND CERTAIN RELATED MATTERS WHEREAS, the San Rafael Joint Powers Financing Authority (the "Authority") has been formed under a Joint Exercise of Powers Agreement dated April 20, 1992, between the San Rafael Redevelopment Agency (the "Agency") and the City of San Rafael (the "City"), as amended and restated in its entirety by the Amended and Restated Joint Exercise of Powers Agreement dated as of March 18, 2013, among the City, the California Municipal Finance Authority (the "CMFK) and the City of San Rafael, as successor to the San Rafael Redevelopment Agency (the "Successor Agency"); and WHEREAS, the Board of Directors of the Authority now desires to revise its existing by-laws and desires to adopt amended and restated by-laws governing the operation of the Authority; NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the San Rafael Joint Powers Financing Authority as follows: Section 1. Adoption of By -Laws. The Amended and Restated By -Laws attached hereto as Exhibit A (the "By -Laws") are, as of the date hereof, adopted as the by-laws of the Authority. Section 2. Effective Date. This Resolution shall take effect immediately upon its passage and adoption. PASSED AND ADOPTED by the Board of Directors of the San Rafael Joint Powers Financing Authority at a special meeting thereof held on the 18th day of March, 2013. AYES: MEMBERS: Colin, Connolly, Heller, McCullough & Chairman Phillips NOES: MEMBERS: None ABSENT: MEMBERS: None 16-qty_,e dict" Esther C. Beirne Secretary AMENDED AND RESTATED BY-LAWS OF THE SAN RAFAEL JOINT POWERS FINANCING AUTHORITY Adopted March 18, 2013 13048.01 ARTICLE I THE AUTHORITY Section 1.1. Name. The official name of the Authority shall be the "San Rafael Joint Powers Financing Authority." The Authority was initially created pursuant to the Joint Exercise of Powers Agreement, dated April 20, 1992, between the San Rafael Redevelopment Agency (the "Agency") and the City of San Rafael (the "City"), as amended and restated in its entirety by the Amended and Restated Joint Exercise of Powers Agreement dated as March 18, 2013, among the City, the California Municipal Finance Authority (the "CMFA") and the City of San Rafael, as successor to the San Rafael Redevelopment Agency (the "Successor Agency"). Section 1.2. Authority Board Members. The Authority shall be administered by a governing board of directors (the "Board") that shall consist of five members of the City Council of the City (the "City Council"). The term of office as a member of the Board shall terminate when such member of the Board shall cease to hold its respective office on the City Council, and the successor to such member of the City Council shall become a member of the Board, upon assuming such office. Section 1.3. Office. The business office of the Authority shall be the City Hall of the City, or at such other place as may be designated by the Board. Section 1.4. Compensation. Board members shall serve without compensation by the Authority. Board members shall receive compensation or reimbursement of expenses by the City in the same manner as other duties performed in the course of service to City. Section 1.5. Conflicts of Interest. The Authority shall adopt the City's Conflict of Interest Code as its Conflict of Interest Code. ARTICLE II OFFICERS Section 2.1. Officers. The Officers of the Authority shall be the Chair, Vice Chair, Executive Director, Secretary and Treasurer and Controller. Section 2.2. Chair. The Chair of the Authority shall be the member who is the Mayor of the City. The term of office shall be the same as the term of the Mayor of the City. The Chair shall preside at all meetings of the Authority, and shall submit such information and recommendations to the Board as he or she may consider proper concerning the business, policies and affairs of the Authority. Section 2.3. Vice Chair. The Vice Chair shall be the member who is the Vice Mayor of the City. The term of office shall be the same as the term of Vice Mayor of the City. The Vice Chair shall perform the duties of the Chair in the absence or incapacity of the Chair. In case of the resignation or death of the Chair, the Vice Chair shall perform such duties as are imposed on the Chair, until such time as a new Chair is selected or appointed. Section 2.4. Executive Director. The City Manager of the City is hereby designated as the Executive Director of the Authority. The Executive Director of the Authority shall be -2- responsible for execution and supervision of the affairs of the Authority. Except as otherwise authorized by resolution of the Board, the Executive Director or the Executive Director's designee shall sign all contracts, deeds and other instruments executed by the Authority. Section 2.5. Secretary. The Secretary shall be the person who is the City Clerk of the City and shall serve at the pleasure of the Authority. The Secretary shall keep the records of the Authority, shall act as Secretary at the meetings of the Authority and record all votes, and shall keep a record of the proceedings of the Authority in a journal of proceedings to be kept for such purpose, and shall perform all incident to the office. Section 2.6. Treasurer and Controller. The Finance Director of the City is hereby designated as Treasurer and Controller of the Authority. Subject to the applicable provisions of any trust agreement, indenture or resolution providing for a trustee or other fiscal agent, the Treasurer and Controller is designated as the depositary of the Authority to have custody of all the money of the Authority, from whatever source, and, as such, shall have the powers, duties and responsibilities specified in section 6505.5 of the Act. Section 2.7. Confirmation of Officers. Confirmation of officers shall be the first order of business at the first meeting of the Authority, regular or special, held in each calendar year. Section 2.8. Legal Advisor. The person serving in the position of City Attorney of the City shall act as the legal advisor of the Authority and shall perform such duties as may be prescribed by the Board; provided, however, that in the event that the City Attorney of the City determines that a conflict exists in connection with his or her representation of the Authority as to any specific matter, he or she shall so advise the Board and the Board shall select such other attorney or firm of attorneys as it shall determine to act as the legal advisor to the Authority with respect to such matter. Section 2.9. Authority to Bind Agency. No member, officer, agent or employee of the Authority, without prior specific or general authority by a vote of the Board, shall have any power or authority to bind the Authority by any contract, to pledge its credit, or to render it liable for any purpose in any amount. ARTICLE III - EMPLOYEES AND AGENTS Section 3.1. Appointment of Employees and Agents. The Authority may from time to time request from the City the services of such personnel, counsel or agents, permanent or temporary, as may be necessary to carry out the business and affairs of the Authority. The Board may in addition employ temporary professional and technical personnel on such terms and at such rates of compensation as the Board may determine, for the performance of Agency business and affairs, provided that adequate sources of funds are identified for the payment of such temporary professional and technical services. ARTICLE IV —MEETINGS Section 4.1. Regular Meetings. Regular meetings shall be held at the City Council Chambers of the City, or at such other place as the Chair may designate. The Board shall conduct regular meetings on the same date, and at the same time and at the same location as the regular meetings of the City Council. Such regular meetings may occur either prior to, -3- during or after the regular meetings of the City Council, but in no event shall commence earlier than the starting time for the regular meetings of the City Council. If the Secretary does not post an agenda for a regular meeting pursuant to Government Code Section 54954.21, 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 should be cancelled, except as otherwise provided in Section 54954.2. In the event a meeting is cancelled, the following meeting will continue to be held at its regularly scheduled date, time and location. Section 4.2. Special Meetings. A special meeting may be called at any time by the Chair or the Executive Director by delivering written notice to each member. Such written notice may be dispensed with as to any Board member who at or prior to the time the meeting convenes files with the Secretary of the Authority a written waiver of notice. Such waiver may be given by telegram or telecopy. Such written notice may also be dispensed with as to any member who is actually present at the meeting. Special meetings will be held in accordance with the Ralph M. Brown Act. Section 4.3. Closed Sessions. Nothing contained in these bylaws shall be construed to prevent the Board from holding closed sessions during a regular or special meeting concerning any matter permitted by law to be considered in a closed session. Section 4.4. Public Hearings. All public hearings held by the Board shall be held during regular or special meetings of the Board. Section 4.5. Adjourning Meetings and Continuing Public Hearings to Other Times or Places. The Board may adjourn any meeting to a time and place specified in the order of adjournment. Less than a quorum may so adjourn from time to time. If all Board members are absent from any regular meeting or adjourned regular meeting the Secretary or Acting Secretary of the Authority may declare the meeting adjourned to a stated time and place and shall cause a written notice of the adjournment to be given in the same manner as provided for special meetings unless such notice is waived as provided for special meetings. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the meeting was held within 24 hours after the time of the adjournment. When a regular or adjourned regular meeting is adjourned as provided in this section, the resulting adjourned regular meeting is a regular meeting for all purposes. When an order of adjournment of any meeting fails to state the hour at which the adjourned meeting is to be held, it shall be held at the hour specified for regular meetings. Any public hearing being held, or any hearing noticed or ordered to be held at any meeting may by order or notice of continuance be continued or recontinued to any subsequent meeting in the same manner and to the same extent set forth herein for the adjournment of the meetings; provided, that if the hearing is continued to a time less than 24 hours after the time specified in the order or notice of hearing a copy of the order or notice of continuance shall be posted immediately following the meeting at which the order or declaration of continuance was adopted or made. Section 4.6. Ralph M. Brown Act. The Ralph M. Brown Act applies to all meetings of the Board. Section 4.7. Quorum. A majority of the members of the Board shall constitute a quorum for the purpose of conducting its business and exercising its powers and for all other official purposes, except that less than a quorum may adjourn from time to time until a quorum is obtained. Any action or decision of the Authority shall be on motion duly approved by a majority of a quorum of the Board at a lawfully held meeting. Section 4.8. Order of Business. The Chair or Executive Director shall prepare or approve the agenda of all meetings. Business will be conducted according to the agenda, except when determined by the Board as permitted by law. Section 4.9. Parliamentary Procedure. The presiding officer at the meeting shall determine the rules of conduct. The presiding officer may be guided by the rules of parliamentary procedure set forth in Robert's Rules of Order, but failure to follow Robert's Rules of Order shall not affect the validity of any action or motion duly taken or adopted by the Board at any lawfully held meeting. ARTICLE V — AMENDMENTS Section 5. Amendments to By -Laws. These by-laws may be amended by the Board at any regular or special meeting by majority vote, provided that a description of the proposed amendment to any particular section is included in the notice of such meeting. -5- AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT THIS AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT (the "Agreement"), dated as of March jS, 2013, is among the CITY OF SAN RAFAEL, a charter city organized and existing under the laws of the State of California (the "City"), the CALIFORNIA MUNICIPAL FINANCE AUTHORITY, a joint exercise of powers authority duly organized and existing under the laws of the State of California ("CMFA"), and the CITY OF SAN RAFAEL (the "Successor Agency"), as successor agency to the San Rafael Redevelopment Agency (the "Agency"). BACKGROUND: 1. The City and the Agency have heretofore entered into a Joint Exercise of Powers Agreement dated April 20, 1992 (the "Original Agreement") creating the City of San Rafael Joint Powers Financing Authority, subsequently renamed the San Rafael Joint Powers Financing Authority (the "Authority"). 2. The Authority was formed for the purpose of assisting the financing and refinancing of certain redevelopment activities of the Agency and, to that end, has issued two series of lease revenue bonds (the "Bonds") to finance and refinance a parking garage with the redevelopment project area of the Agency. 3. Pursuant to ABx1 26, passed by the Legislature of the State of California and signed by the Governor of the State of California in June 2011 ("AB 26"), and the California Supreme Court's decision in California Redevelopment Assn. v. Matosantos, the Agency was dissolved on February 1, 2012, and the Successor Agency, pursuant to Section 34178 of the California Health and Safety Code, succeeded the Agency as a party to the Original Agreement. 4. Recent legislation of the State of California, known as AB 1484, added Section 34187(b) to the California Health and Safety Code, which section provides that within one year after all of the debts of a redevelopment agency are retired or paid off, its successor agency shall terminate its existence. 5. The last bonded indebtedness of the Agency is scheduled to be paid on December 1, 2022, thereby resulting of the termination of the Successor Agency by December 1, 2023. 6. Under California law, it is uncertain whether the dissolution of the Successor Agency will impact the existence or status of the Authority. 7. The City desires to revise the Original Agreement in order to (i) ensure that it survives the demise of the Successor Agency and (ii) expand the powers of the Authority. 8. Articles 1, 2 and 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Act") authorize the City and CMFA to create a joint exercise of powers entity which has the power to exercise any powers common to the City and CMFA and to exercise additional powers granted to it under the Act. 9. The City and CMFA are each empowered by law to undertake certain projects and programs. 10. The City is authorized to buy, sell and lease property and to issue bonds, expend bond proceeds, and borrow and loan money for certain public purposes under the Act. 11. CMFA 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 under the Act and a Joint Exercise of Powers Agreement, dated as of January 1, 2004, among the County of San Diego, the City of Santa Clarita and the City of Oakland and additional members as set forth therein. 12. Article 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Marks -Roos Local Bond Pooling Act of 1985") authorizes a joint powers agency formed under the Act to issue bonds and to purchase bonds issued by, or to make loans to, the City or CMFA 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 CMFA. 13. The City and CMFA wish to enter into this Agreement to ensure the continuation of the Authority, and to provide the Authority with the additional powers set forth herein. AGREEMENT: For and in consideration of the premises and the material covenants hereinafter contained, the parties hereto hereby formally covenant, agree and bind themselves as follows: Section 1. Definitions. Unless the context otherwise requires, the terms defined in this Section 1 have the meanings herein specified. "AB 26" means ABx1 26, passed by the Legislature of the State of California and signed by the Governor of the State of California in June 2011. "AB 1484" means AB 1484, passed by the Legislature of the State of California and signed by the Governor of the State of California in June 2012. "Act" means Articles 1, 2 and 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, including the Marks -Roos Local Bond Pooling Act of 1985, as amended. 'Agency" means the former San Rafael Redevelopment Agency, which was dissolved on February 1, 2012 pursuant to the provisions of AB 26 and the California Supreme Court's decision in California Redevelopment Assn. v. Matosantos. "Agreement' means this Joint Exercise of Powers Agreement, as it may be amended from time to time, creating the Authority. "Authority" means the San Rafael Joint Powers Financing Authority created by the Original Agreement, and whose existence is continued under this Agreement. "Board" means the governing board of the Authority. "Bonds" means bonds and any other evidence of indebtedness of the Authority authorized and issued under the Act. -2- "By -Laws" means the By -Laws which are adopted by the Board, as amended from time to time. "Cy" means City of San Rafael, a charter city organized and existing under the laws of the State of California. "CMFA' means the California Municipal Finance Authority, a joint exercise of powers authority duly organized and existing under and by virtue of the laws of the State of California. "Member" or "Members" means the City and/or CMFA, as appropriate. "Original Agreement" means the Joint Exercise of Powers Agreement dated April 20, 1992 between the City and the Agency creating the Authority. "Successor Agency" means the City of San Rafael, in its role as successor agency under the provisions of AB 26 and AB 1484. Section 2. Purpose. This agreement is entered into under the Act for the purpose of assisting the financing and refinancing of certain public programs and projects of the City and for the purpose of aiding in the financing and refinancing of public capital improvements, as defined in the Act, for the benefit of the City by exercising the powers referred to in the recitals hereof and described in Section 5. Section 3. Term. This Agreement supersedes the Original Agreement and takes effect as of the date hereof and continues in full force and effect until terminated by a supplemental agreement of CMFA and the City; provided, however, that in no event shall this Agreement terminate while any Bonds or other obligations of the Authority remain outstanding under the terms of any indenture, trust agreement, contract, agreement, lease, sublease or other instrument under which such Bonds are issued or other obligations are incurred. The Authority shall cause all records regarding its formation, existence, any Bonds issued by it, 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 Bonds, whichever is later. Section 4. The Authority. (a) Status of Authority. There is hereby continued under the Act an agency and public entity to be known as the "San Rafael Joint Powers Financing Authority." As provided in the Act, the Authority is and will be a public entity separate from the City, CMFA and the Successor Agency (which is withdrawing as a member of the Authority pursuant to Section 25 hereof). The debts, liabilities and obligations of the Authority do not and shall not constitute debts, liabilities or obligations of the City or CMFA. Within 30 days after the effective date of this Agreement or any further 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 of California in the manner set forth in Section 6503.5 of the Act. (b) Governing Board. The Authority shall be administered by the Board whose members shall be, at all times, the members of the City Council of the City. The term of office as a member of the Board will terminate when such member of the Board ceases to be a member of the City Council of the City; and the successor to such member of the City Council of the City will become a member of the Board upon assuming such office. Members of the Board -3- will not receive any compensation for serving as such, but are entitled to reimbursement for any expenses actually incurred in connection with serving as a member if the Board determines that such expenses will be reimbursed and unencumbered funds are available for that purpose. (c) Meetings of Board. (i) Time and Place. The Board will hold regular meetings as provided in the By -Laws. The Board may hold special meetings at any time and from time to time in accordance with law. (ii) Legal Notice. All meetings of the Board will be called, noticed, held and conducted subject to the provisions of the Ralph M. Brown Act (Chapter 9 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California), or any successor legislation hereinafter enacted. (iii) Minutes. The Board will cause minutes of all meetings of the Board to be kept and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each member of the Board and to the City and CMFA. (iv) Quorum. A majority of the members of the Board 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 (i) The Officers of the Authority shall be the Chair, Vice -Chair, Executive Director, Secretary, Treasurer and Controller, consisting of the persons specified in the By -Laws and shall have the powers vested in them under the By -Laws and such other powers as may be granted by the Board from time to time by resolution. (ii) The Treasurer and Controller of the Authority is hereby 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). (iii) So long as required by Section 6505 and Section 6505.5 of the Act, the Treasurer and Controller of the Authority shall prepare or cause to be prepared: (a) a special audit as required under Section 6505 of the Act every year during the term of this Agreement; and (b) a report in writing on the first day of January, April, July and October of each year to the Board, the City and CMFA which report shall describe the amount of money held by the Treasurer and Controller 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 of other fiduciary in connection with any Bonds to the extent that such trustee or other fiduciary provides regular reports covering such amounts). (iv) The City shall determine the charges, if any, to be made against the Authority for the services of the Treasurer and Controller. (v) 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. -4- (vi) 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. (vii) 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 by any Member or, by reason of their employment by the Authority, to be subject to any of the requirements of any Member. (viii) 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 do not and shall not constitute debts, liabilities or obligations of the City or CMFA, and they do not intend by the following sentence to impair this provision. To the extent that liability is imposed or a claim is made on CMFA, for any reason whatsoever notwithstanding Section 4(a) hereof and the Act, directly or indirectly arising out of a transaction or series of transactions undertaken by or for the benefit of the City in connection with the activities of the Authority, the City shall indemnify, defend and hold harmless CMFA and each of its officers, directors, employees and agents from and against any and all costs, expenses, losses, claims, damages and liabilities arising out of or in connection with the activities of the Authority. CMFA 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 are jointly and severally liable for any indemnity obligation owed to CMFA. Notwithstanding the provisions of Section 895.6 of the Government Code of the State, the City has no right to contribution from CMFA. Section 5. Powers. The Authority shall have any and all powers which are common powers of the City and CMFA, and the powers separately conferred by law upon the Authority. All such powers, whether common to the Parties 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. The Authority's exercise of its powers is subject to the restrictions upon the manner of exercising the powers of the City. The Authority has the power, in its own name, to construct, buy, sell or lease property and to issue, sell and deliver Bonds and incur debt for such purposes and for any purpose authorized under the Act. The Authority is authorized, in its own name, to do all acts necessary for the exercise of said powers for said purposes, including but not limited to any or all of the following: to make and enter into contracts; to employ agents and employees; and to sue and be sued in its own name. Notwithstanding the foregoing, the Authority has 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. 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. Section 7. Fiscal Year. Unless and until changed by resolution of the Board, the fiscal year of the Authority is 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, 2013. -5- Section 8. Disposition of Assets. Upon termination of this Agreement under Section 3, any surplus money in possession of the Authority or on deposit in any fund or account of the Authority will 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 under Section 3, all property of the Authority, both real and personal, shall be distributed to the City, subject to Section 9. 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 City and CMFA 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 will be repaid, in the manner agreed upon by the City or CMFA, as the case may be, and the Authority at the time of making such advance as provided by 6512.1 of the Act. It is mutually understood and agreed that neither the City nor CMFA 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 City or CMFA may allow the use of personnel, equipment or property in lieu of other contributions or advances to the Authority. Section 10. Bonds. (a) Authority To Issue Bonds. When authorized by the Act or other applicable provisions of law and by resolution of the Board, the Authority may issue Bonds 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 Bonds shall have such terms and conditions as are authorized by the Board. Notwithstanding the foregoing, the Authority shall not incur any other form of indebtedness including (but not limited to) bonds, debentures, notes, or other securities, for the repayment of money borrowed, without the prior written approval of the CMFA, which approval shall not be unreasonably withheld or delayed. (b) Bonds Are Limited Obligations. The Bonds, 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. The Bonds 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 Bonds shall not constitute a debt, liability or obligation of the State or any public agency thereof, including CMFA and the City, 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 CMFA and the City, shall be pledged to the payment of the principal or purchase price of, or the premium, if any, or interest on the Bonds nor shall the State or any public agency or instrumentality thereof, including CMFA and the City, 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 Bond or Indenture shall be deemed to be a covenant or agreement of any director, officer, agent or employee of the Authority, in his or her -6- individual capacity and no director or officer of the Authority executing a Bond shall be liable personally on such Bond or be subject to any personal liability or accountability by reason of the issuance of such Bond. Section 11. Agreement Not Exclusive. This Agreement is not exclusive and does not amend or alter the terms of other agreements between the City and CMFA, except as the terms of this Agreement conflict therewith, in which case the terms of this Agreement will prevail. Section 12. Accounts and Reports. 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 Bonds (to the extent such duties are not assigned to a trustee for owners of Bonds). The books and records of the Authority shall be open to inspection at all reasonable times by the City and CMFA and their representatives. 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. (a) Audits. The Treasurer and Controller 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, certified 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. (b) Audit Reports. The Treasurer and Controller 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 subsection (a) of 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 Bonds providing for a trustee to receive, have custody of and disburse funds which constitute Authority funds, the Treasurer and Controller 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. 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 the City or CMFA defaults in any covenant contained in this Agreement, such default will not excuse either the City or CMFA from fulfilling its obligations under this Agreement and the City and CMFA will continue to be liable for the payment of contributions and the performance of all conditions herein contained. The City and CMFA hereby declare that this Agreement is entered into for the benefit of the Authority and the City and CMFA 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. Withdrawal. Neither CMFA nor the City may withdraw from this Agreement prior to the end of the term of this Agreement determined in accordance with Section 3, provided, however, that CMFA may withdraw from this Agreement if such withdrawal will not terminate the existence of the Authority. Section 18. Effectiveness . This Agreement shall become effective and be in full force and effect and a legal, valid and binding obligation of CMFA and the City when each party has executed a counterpart of this Agreement. Section 19. Severability. If any part, term, or provision of this Agreement is decided by the courts to be illegal or in conflict with any law of the State of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms or provisions hereof will not be affected thereby. Section 20. Successors, Assignment. This Agreement is binding on and inures 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. Section 21. Amendment. This Agreement may be amended by supplemental agreement executed by the Members at any time. However, this Agreement may be terminated only in accordance with Section 3 and any such supplemental agreement is subject to any restrictions contained in any Bonds or documents related to any Bonds 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 CMFA, by resolution duly adopted by the board of directors of CMFA, and, in the case of the City, by resolution duly adopted by the City Council of the City, 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 or employee of the Authority, the City or CMFA is individually or personally liable for any claims, losses, damages, costs, injury and liability of every kind, nature and description arising from the actions of the Authority or the actions undertaken under this Agreement, and the City shall defend such members, officers or employees against any such claims, losses, damages, costs, injury and liability. Without limiting the generality of the foregoing, no member, officer or employee of the Authority or of any Member is personally liable on any Bonds or be subject to any personal liability or accountability by reason of the issuance of Bonds under 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 In 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. 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 25. Withdrawal of Successor Agency. Upon the effective date of this Agreement, the Successor Agency is withdrawing from the Authority and will no longer be a member of the Authority. On and after the effective date of this Agreement, any reference to a member of the Authority shall not include either the Agency or the Successor Agency. The City and CMFA acknowledge that the execution of this Agreement by the Successor Agency is solely for the purpose of implementing the Successor Agency's withdrawal as a member of the Authority. 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 the City or CMFA, such action may be exercised through the officers, staff or employees of the City or CMFA, as the case may be, in the manner provided by law. The section and subsection headings herein are for convenience only and are not to be construed as modifying or governing the language in the section or subsection referred to. 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. In IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by their proper officers thereunto duly authorized, and their official seals to be hereto affixed, as of the day and year first above written. Attest: Attest: Attest: City Clerk Member of the Board of Directors City Clerk -10- CITY OF SAN RAFAEL Z City Manager CALIFORNIA MUNICIPAL FINANCE AUTHORITY Z Member of the Board of Directors CITY OF SAN RAFAEL, as Successor Agency 2 City Manager CI TY OF SAN RAFAEL a - P Ff /-A-C l N C- � ROUTING SLIP / APPROVAL FORM INSTRUCTIONS: USE THIS FORM WITH EACH SUBMITTAL OF A CONTRACT, AGREEMENT, ORDINANCE OR RESOLUTION BEFORE APPROVAL BY COUNCIL / AGENCY. AGENDA ITEM NO. 1 DATE OF MEETING: March 18, 2013 FROM: Mark Moses DEPARTMENT: Finance DATE: 3/4/2013 TITLE OF DOCUMENT: RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN RAFAEL JOINT POWERS FINANCING AUTHORITY APPROVING AMENDED AND RESTATED BY-LAWS Department Head (signature) *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** (LOWER HALF OF FORM FOR APPROVALS ONLY) APPROVED AS COUNCIL / AGENCY APPROVED AS TO FORM: AGENDA ITEM: - - /2 E, City City anager (signature) City Attorney (signature) NOT APPROVED REMARKS: AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT THIS AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT (the "Agreement"), dated as of March 15, 2013, is among the CITY OF SAN RAFAEL, a charter city organized and existing under the laws of the State of California (the "City"), the CALIFORNIA MUNICIPAL FINANCE AUTHORITY, a joint exercise of powers authority duly organized and existing under the laws of the State of California ("CMFA"), and the CITY OF SAN RAFAEL (the "Successor Agency"), as successor agency to the San Rafael Redevelopment Agency (the "Agency"). BACKGROUND: 1. The City and the Agency have heretofore entered into a Joint Exercise of Powers Agreement dated April 20, 1992 (the "Original Agreement") creating the City of San Rafael Joint Powers Financing Authority, subsequently renamed the San Rafael Joint Powers Financing Authority (the "Authority"). 2. The Authority was formed for the purpose of assisting the financing and refinancing of certain redevelopment activities of the Agency and, to that end, has issued two series of lease revenue bonds (the "Bonds") to finance and refinance a parking garage with the redevelopment project area of the Agency. 3. Pursuant to ABx1 26, passed by the Legislature of the State of California and signed by the Governor of the State of California in June 2011 ("AB 26"), and the California Supreme Court's decision in California Redevelopment Assn. v. Matosantos, the Agency was dissolved on February 1, 2012, and the Successor Agency, pursuant to Section 34178 of the California Health and Safety Code, succeeded the Agency as a party to the Original Agreement. 4. Recent legislation of the State of California, known as AB 1484, added Section 34187(b) to the California Health and Safety Code, which section provides that within one year after all of the debts of a redevelopment agency are retired or paid off, its successor agency shall terminate its existence. 5. The last bonded indebtedness of the Agency is scheduled to be paid on December 1, 2022, thereby resulting of the termination of the Successor Agency by December 1, 2023. 6. Under California law, it is uncertain whether the dissolution of the Successor Agency will impact the existence or status of the Authority. 7. The City desires to revise the Original Agreement in order to (i) ensure that it survives the demise of the Successor Agency and (ii) expand the powers of the Authority. 8. Articles 1, 2 and 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Act") authorize the City and CMFA to create a joint exercise of powers entity which has the power to exercise any powers common to the City and CMFA and to exercise additional powers granted to it under the Act. 9. The City and CMFA are each empowered by law to undertake certain projects and programs. 10. The City is authorized to buy, sell and lease property and to issue bonds, expend bond proceeds, and borrow and loan money for certain public purposes under the Act. 11. CMFA 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 under the Act and a Joint Exercise of Powers Agreement, dated as of January 1, 2004, among the County of San Diego, the City of Santa Clarita and the City of Oakland and additional members as set forth therein. 12. Article 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Marks -Roos Local Bond Pooling Act of 1985") authorizes a joint powers agency formed under the Act to issue bonds and to purchase bonds issued by, or to make loans to, the City or CMFA 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 CMFA. 13. The City and CMFA wish to enter into this Agreement to ensure the continuation of the Authority, and to provide the Authority with the additional powers set forth herein. I'IreL'7a ff Z ffiLr�LT&A For and in consideration of the premises and the material covenants hereinafter contained, the parties hereto hereby formally covenant, agree and bind themselves as follows: Section 1. Definitions. Unless the context otherwise requires, the terms defined in this Section 1 have the meanings herein specified. "AB 26" means ABx1 26, passed by the Legislature of the State of California and signed by the Governor of the State of California in June 2011. "AB 1484" means AB 1484, passed by the Legislature of the State of California and signed by the Governor of the State of California in June 2012. "Act" means Articles 1, 2 and 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, including the Marks -Roos Local Bond Pooling Act of 1985, as amended. "Agency" means the former San Rafael Redevelopment Agency, which was dissolved on February 1, 2012 pursuant to the provisions of AB 26 and the California Supreme Court's decision in California Redevelopment Assn. v. Matosantos. "Agreement" means this Joint Exercise of Powers Agreement, as it may be amended from time to time, creating the Authority. "Authority" means the San Rafael Joint Powers Financing Authority created by the Original Agreement, and whose existence is continued under this Agreement. "Board" means the governing board of the Authority. "Bonds" means bonds and any other evidence of indebtedness of the Authority authorized and issued under the Act. -2- "By -Laws" means the By -Laws which are adopted by the Board, as amended from time to time. "City" means City of San Rafael, a charter city organized and existing under the laws of the State of California. "CMFA" means the California Municipal Finance Authority, a joint exercise of powers authority duly organized and existing under and by virtue of the laws of the State of California. "Member" or "Members" means the City and/or CMFA, as appropriate. "Original Agreement" means the Joint Exercise of Powers Agreement dated April 20, 1992 between the City and the Agency creating the Authority. "Successor Agency" means the City of San Rafael, in its role as successor agency under the provisions of AB 26 and AB 1484. Section 2. Purpose. This agreement is entered into under the Act for the purpose of assisting the financing and refinancing of certain public programs and projects of the City and for the purpose of aiding in the financing and refinancing of public capital improvements, as defined in the Act, for the benefit of the City by exercising the powers referred to in the recitals hereof and described in Section 5. Section 3. Term. This Agreement supersedes the Original Agreement and takes effect as of the date hereof and continues in full force and effect until terminated by a supplemental agreement of CMFA and the City; provided, however, that in no event shall this Agreement terminate while any Bonds or other obligations of the Authority remain outstanding under the terms of any indenture, trust agreement, contract, agreement, lease, sublease or other instrument under which such Bonds are issued or other obligations are incurred. The Authority shall cause all records regarding its formation, existence, any Bonds issued by it, 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 Bonds, whichever is later. Section 4. The Authority. (a) Status of Authority. There is hereby continued under the Act an agency and public entity to be known as the "San Rafael Joint Powers Financing Authority." As provided in the Act, the Authority is and will be a public entity separate from the City, CMFA and the Successor Agency (which is withdrawing as a member of the Authority pursuant to Section 25 hereof). The debts, liabilities and obligations of the Authority do not and shall not constitute debts, liabilities or obligations of the City or CMFA. Within 30 days after the effective date of this Agreement or any further 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 of California in the manner set forth in Section 6503.5 of the Act. (b) Governing Board. The Authority shall be administered by the Board whose members shall be, at all times, the members of the City Council of the City. The term of office as a member of the Board will terminate when such member of the Board ceases to be a member of the City Council of the City; and the successor to such member of the City Council of the City will become a member of the Board upon assuming such office. Members of the Board -3- will not receive any compensation for serving as such, but are entitled to reimbursement for any expenses actually incurred in connection with serving as a member if the Board determines that such expenses will be reimbursed and unencumbered funds are available for that purpose. (c) Meetings of Board. (i) Time and Place. The Board will hold regular meetings as provided in the By -Laws. The Board may hold special meetings at any time and from time to time in accordance with law. (ii) Legal Notice. All meetings of the Board will be called, noticed, held and conducted subject to the provisions of the Ralph M. Brown Act (Chapter 9 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California), or any successor legislation hereinafter enacted. (iii) Minutes. The Board will cause minutes of all meetings of the Board to be kept and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each member of the Board and to the City and CMFA. (iv) Quorum. A majority of the members of the Board 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 (i) The Officers of the Authority shall be the Chair, Vice -Chair, Executive Director, Secretary, Treasurer and Controller, consisting of the persons specified in the By -Laws and shall have the powers vested in them under the By -Laws and such other powers as may be granted by the Board from time to time by resolution. (ii) The Treasurer and Controller of the Authority is hereby 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). (iii) So long as required by Section 6505 and Section 6505.5 of the Act, the Treasurer and Controller of the Authority shall prepare or cause to be prepared: (a) a special audit as required under Section 6505 of the Act every year during the term of this Agreement; and (b) a report in writing on the first day of January, April, July and October of each year to the Board, the City and CMFA which report shall describe the amount of money held by the Treasurer and Controller 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 of other fiduciary in connection with any Bonds to the extent that such trustee or other fiduciary provides regular reports covering such amounts). (iv) The City shall determine the charges, if any, to be made against the Authority for the services of the Treasurer and Controller. (v) 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. -4- (vi) 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. (vii) 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 by any Member or, by reason of their employment by the Authority, to be subject to any of the requirements of any Member. (viii) 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 do not and shall not constitute debts, liabilities or obligations of the City or CMFA, and they do not intend by the following sentence to impair this provision. To the extent that liability is imposed or a claim is made on CMFA, for any reason whatsoever notwithstanding Section 4(a) hereof and the Act, directly or indirectly arising out of a transaction or series of transactions undertaken by or for the benefit of the City in connection with the activities of the Authority, the City shall indemnify, defend and hold harmless CMFA and each of its officers, directors, employees and agents from and against any and all costs, expenses, losses, claims, damages and liabilities arising out of or in connection with the activities of the Authority. CMFA 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 are jointly and severally liable for any indemnity obligation owed to CMFA. Notwithstanding the provisions of Section 895.6 of the Government Code of the State, the City has no right to contribution from CMFA. Section 5. Powers. The Authority shall have any and all powers which are common powers of the City and CMFA, and the powers separately conferred by law upon the Authority. All such powers, whether common to the Parties 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. The Authority's exercise of its powers is subject to the restrictions upon the manner of exercising the powers of the City. The Authority has the power, in its own name, to construct, buy, sell or lease property and to issue, sell and deliver Bonds and incur debt for such purposes and for any purpose authorized under the Act. The Authority is authorized, in its own name, to do all acts necessary for the exercise of said powers for said purposes, including but not limited to any or all of the following: to make and enter into contracts; to employ agents and employees; and to sue and be sued in its own name. Notwithstanding the foregoing, the Authority has 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. 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. Section 7. Fiscal Year. Unless and until changed by resolution of the Board, the fiscal year of the Authority is 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, 2013. -5- Section 8. Disposition of Assets. Upon termination of this Agreement under Section 3, any surplus money in possession of the Authority or on deposit in any fund or account of the Authority will 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 under Section 3, all property of the Authority, both real and personal, shall be distributed to the City, subject to Section 9. 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 City and CMFA 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 will be repaid, in the manner agreed upon by the City or CMFA, as the case may be, and the Authority at the time of making such advance as provided by 6512.1 of the Act. It is mutually understood and agreed that neither the City nor CMFA 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 City or CMFA may allow the use of personnel, equipment or property in lieu of other contributions or advances to the Authority. Section 10. Bonds. (a) Authority To Issue Bonds. When authorized by the Act or other applicable provisions of law and by resolution of the Board, the Authority may issue Bonds 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 Bonds shall have such terms and conditions as are authorized by the Board. Notwithstanding the foregoing, the Authority shall not incur any form of indebtedness including (but not limited to) bonds, debentures, notes, or other securities, for the repayment of money borrowed, without the prior written approval of the CMFA, which approval shall not be unreasonably withheld or delayed. (b) Bonds Are Limited Obligations. The Bonds, 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. The Bonds 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 Bonds shall not constitute a debt, liability or obligation of the State or any public agency thereof, including CMFA and the City, 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 CMFA and the City, shall be pledged to the payment of the principal or purchase price of, or the premium, if any, or interest on the Bonds nor shall the State or any public agency or instrumentality thereof, including CMFA and the City, 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 Bond or Indenture shall be deemed to be a covenant or agreement of any director, officer, agent or employee of the Authority, in his or her M individual capacity and no director or officer of the Authority executing a Bond shall be liable personally on such Bond or be subject to any personal liability or accountability by reason of the issuance of such Bond. Section 11. Agreement Not Exclusive. This Agreement is not exclusive and does not amend or alter the terms of other agreements between the City and CMFA, except as the terms of this Agreement conflict therewith, in which case the terms of this Agreement will prevail. Section 12. Accounts and Reports. 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 Bonds (to the extent such duties are not assigned to a trustee for owners of Bonds). The books and records of the Authority shall be open to inspection at all reasonable times by the City and CMFA and their representatives. 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. (a) Audits. The Treasurer and Controller 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, certified 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. (b) Audit Reports. The Treasurer and Controller 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 subsection (a) of 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 Bonds providing for a trustee to receive, have custody of and disburse funds which constitute Authority funds, the Treasurer and Controller 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. 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 the City or CMFA defaults in any covenant contained in this Agreement, such default will not excuse either the City or CMFA from fulfilling its obligations under this Agreement and the City and CMFA will continue to be liable for the payment of contributions and the performance of all conditions herein contained. The City and CMFA -7- hereby declare that this Agreement is entered into for the benefit of the Authority and the City and CMFA 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. Withdrawal. Neither CMFA nor the City may withdraw from this Agreement prior to the end of the term of this Agreement determined in accordance with Section 3, provided, however, that CMFA may withdraw from this Agreement if such withdrawal will not terminate the existence of the Authority. Section 18. Effectiveness_. This Agreement shall become effective and be in full force and effect and a legal, valid and binding obligation of CMFA and the City when each party has executed a counterpart of this Agreement. Section 19. Severability. If any part, term, or provision of this Agreement is decided by the courts to be illegal or in conflict with any law of the State of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms or provisions hereof will not be affected thereby. Section 20. Successors; Assignment. This Agreement is binding on and inures 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. Section 21. Amendment. This Agreement may be amended by supplemental agreement executed by the Members at any time. However, this Agreement may be terminated only in accordance with Section 3 and any such supplemental agreement is subject to any restrictions contained in any Bonds or documents related to any Bonds 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 CMFA, by resolution duly adopted by the board of directors of CMFA, and, in the case of the City, by resolution duly adopted by the City Council of the City, 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 or employee of the Authority, the City or CMFA is individually or personally liable for any claims, losses, damages, costs, 'injury and liability of every kind, nature and description arising from the actions of the Authority or the actions undertaken under this Agreement, and the City shall defend such members, officers or employees against any such claims, losses, damages, costs, injury and liability. Without limiting the generality of the foregoing, no member, officer or employee of the Authority or of any Member is personally liable on any Bonds or be subject to any personal liability or accountability by reason of the issuance of Bonds under 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. 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 25. Withdrawal of Successor Agency. Upon the effective date of this Agreement, the Successor Agency is withdrawing from the Authority and will no longer be a member of the Authority. On and after the effective date of this Agreement, any reference to a member of the Authority shall not include either the Agency or the Successor Agency. The City and CMFA acknowledge that the execution of this Agreement by the Successor Agency is solely for the purpose of implementing the Successor Agency's withdrawal as a member of the Authority. 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 the City or CMFA, such action may be exercised through the officers, staff or employees of the City or CMFA, as the case may be, in the manner provided by law. The section and subsection headings herein are for convenience only and are not to be construed as modifying or governing the language in the section or subsection referred to. 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.