HomeMy WebLinkAboutReso 2018-200RESOLUTION NO. 2018-200
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE AMENDED AND
RESTATED JOINT EXERCISE OF POWERS AGREEMENT
BY AND BETWEEN THE CITY OF CHULA VISTA AND THE
SAN DIEGO UNIFIED PORT DISTRICT CREATING THE
CHULA VISTA BAYFRONT FACILITIES FINANCING
AUTHORITY; APPOINTING THE MAYOR TO THE
GOVERNING BOARD OF THE CHULA VISTA BAYFRONT
FACILITIES FINANCING AUTHORITY; AND APPOINTING
COUNCILMEMBER AGUILAR TO THE GOVERNING
BOARD OF THE CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY
WHEREAS, on May 6, 2014, acting pursuant to Article I (commending with Section
6500) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California
(the “JPA Act”), the San Diego Unified Port District (the “District) adopted Resolution 2014-109
approving a Joint Exercise of Powers Agreement (the “JEPA Agreement”) with the City of
Chula Vista creating the Chula Vista Bayfront Facilities Financing Authority (the “Authority”);
and
WHEREAS, on May 13, 2014, acting pursuant to the JPA Act, the City Council of the
City of Chula Vista adopted Resolution 2014-070 approving the JEPA Agreement with the
District creating the Authority; and
WHEREAS, the City and the District have worked cooperatively to draft amendm ents to
the JEPA Agreement limiting the Authority’s jurisdiction to the Chula Vista Bayfront and
adopting Chapter 2.56 of the Chula Vista Municipal Code as the Authority’s procurement policy;
and
WHEREAS, the City Council desires to approve the Amended and Restated JEPA
Agreement as set forth in Exhibit 1, attached hereto and incorporated herein by reference as if set
forth in full; and
WHEREAS, pursuant to Section 4(B) of the JEPA Agreement, the Authority shall be
administered by a Governing Board, which shall be comprised of five members (Board
Members) consisting of (i) two members appointed by the City Council of the City, (ii) two
members appointed by the Port District Board of Commissioners, and (iii) the Port
Commissioner appointed by the City Council of the City; and
WHEREAS, pursuant to Section 4(B) of the JEPA Agreement, Board Members shall be
designated from time to time by action of the governing board of the City Council and the
District, respectively and must be members of the governing body or employees of the District or
the City, as applicable; and
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
Resolution No. 2018-200
Page No. 2
WHEREAS, adopting an Amended and Restated Joint Exercise of Powers Agreement
and appointing Governing Board Members are not projects as defined under Section 15378(b)(5)
of the California Environmental Quality Act (CEQA) Guidelines because these actions involve
only an organizational or administrative activity of government that will not result in a direct or
indirect physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the
State CEQA Guidelines the activity is not subject to CEQA.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula
Vista, that it does hereby adopt the Amended and Restated Joint Exercise of Powers Agreement
by and between the City of Chula Vista and the San Diego Unified Port District creating the
Chula Vista Bayfront Facilities Financing Authority in the form set forth in Exhibit 1 to this
Resolution, with such modifications as may be required or approved by the City Attorney.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
does hereby authorize and recommend that the Mayor execute the subject Amended and Restated
Joint Exercise of Powers Agreement.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
does hereby appoint the Mayor to the Governing Board of the Chula Vista Bayfront Facilities
Financing Authority.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
does hereby appoint Councilmember Aguilar to the Governing Board of the Chula Vista
Bayfront Facilities Financing Authority.
[SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
Resolution No. 2018-200
Page No. 3
Presented by Approved as to form by
Kelly G. Broughton, FASLA Glen R. Googins
Director of Development Services City Attorney
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 25th day of September 2018 by the following vote:
AYES: Councilmembers: Aguilar, Diaz, McCann, Padilla, and Casillas Salas
NAYS: Councilmembers: None
ABSENT: Councilmembers: None
Mary Casillas Salas, Mayor
ATTEST:
Kerry K. Bigelow, MMC, City Clerk
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
CITY OF CHULA VISTA )
I, Kerry K. Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing
Resolution No. 2018-200 was duly passed, approved, and adopted by the City Council at a
regular meeting of the Chula Vista City Council held on the 25th day of September 2018.
Executed this 25th day of September 2018.
Kerry K. Bigelow, MMC, City Clerk
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
AMENDED AND RESTATED
JOINT EXERCISE OF POWERS AGREEMENT
by and between
CITY OF CHULA VISTA
and
SAN DIEGO UNIFIED PORT DISTRICT
creating the
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
dated as of
_______, 20__
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
TABLE OF CONTENTS
Page
i
Section 1. Definitions ....................................................................................................................... 2
Section 2. Purpose ............................................................................................................................ 3
Section 3. Term ................................................................................................................................ 3
Section 4. The Authority .................................................................................................................. 3
A. Creation of the Authority .................................................................................... 3
B. Governing Board ................................................................................................. 4
C. Meetings of Board ............................................................................................... 4
D. Officers; Duties; Bonds ....................................................................................... 5
Section 5. Powers ............................................................................................................................. 7
Section 6. Termination of Powers .................................................................................................... 8
Section 7. Fiscal Year ....................................................................................................................... 8
Section 8. Disposition of Assets ....................................................................................................... 8
Section 9. Contributions and Advances............................................................................................ 8
Section 10. Bonds ............................................................................................................................... 8
A. Authority To Issue Bonds .................................................................................... 8
B. Bonds Limited Obligations.................................................................................. 8
Section 11. Agreement Not Exclusive ................................................................................................ 9
Section 12. Accounts and Reports ...................................................................................................... 9
A. Audits .................................................................................................................. 9
B. Audit Reports ...................................................................................................... 9
Section 13. Funds ............................................................................................................................... 9
Section 14. Conflict of Interest Code ............................................................................................... 10
Section 15. Breach ............................................................................................................................ 10
Section 16. Notices ........................................................................................................................... 10
Section 17. Withdrawal .................................................................................................................... 10
Section 18. Effectiveness.................................................................................................................. 10
Section 19. Severability .................................................................................................................... 10
Section 20. Successors; Assignment ................................................................................................ 10
Section 21. Amendment of Agreement ............................................................................................ 10
Section 22. Form of Approvals ........................................................................................................ 10
Section 23. Waiver of Personal Liability ......................................................................................... 11
Section 24. Section Headings ........................................................................................................... 11
Section 25. Counterparts .................................................................................................................. 11
Section 26. Designees ....................................................................................................................... 11
Section 27. Governing Law .............................................................................................................. 11
Section 28. Integration...................................................................................................................... 11
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
1
AMENDED AND RESTATED
JOINT EXERCISE OF POWERS AGREEMENT
THIS AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT (this
“Agreement”), dated as of _______, 20__, is entered into by and between the CITY OF CHULA
VISTA (the “City”), a chartered city organized and existing under the laws of the State, and the SAN
DIEGO UNIFIED PORT DISTRICT (the “Port District”), a public corporation created by the
legislature in 1962 pursuant to Harbors and Navigation Code Appendix 1 (the “Port Act”), (each of the
City and the Port District, a “Member”).
DECLARATION OF PURPOSE
A. Chapter 5 of Division 7 of Title 1 of the Government Code (known as the “Joint
Exercise of Powers Act” and referred to herein as the “Act”)) authorizes the City and the Port District
to create a joint exercise of powers entity which has the power to exercise any powers common to the
City and the Port District and to exercise additional powers granted to it under the Act, including but
not limited to the issuance of bonds (defined under Section 6585(c) of the Act) pursuant to
Section 6588 thereof. This Agreement creates such an entity, which shall be known as the Chula Vista
Bayfront Facilities Financing Authority, for the purposes and to exercise the powers described herein.
This Agreement amends, restates, and supersedes that certain Joint Exercise of Powers Agreement
creating the Chula Vista Bayfront Facilities Financing Authority, dated as of May 1, 2014, by and
between the Port District and the City, in its entirety.
B. Article 4 of the Act (known as the “Marks-Roos Local Bond Pooling Act of 1985,”
Government Code Section 6584 et seq.) authorizes and empowers the Authority to issue bonds and to
purchase bonds issued by, or to make loans to, the City or the Port District or other public or private
entity for financing or providing interim financing for the acquisition, construction, installation and
improvement of public facilities and other public capital improvements, working capital, liability and
other insurance needs, or projects whenever there are significant public benefits, as determined by the
City or the Port District. The Marks-Roos Local Bond Pooling Act of 1985 further authorizes and
empowers the Authority to sell bonds so issued or purchased to public or private purchasers at public
or negotiated sale.
C. Each of the Members is empowered by law to promote economic development for the
benefit of the citizens of the City and the State.
D. Each of the Members may accomplish the purposes and objectives described in the
preceding preamble by various means, including through making loans or providing subsidies for
projects of public benefit that serve a public purpose.
E. Each Member is also empowered by law to acquire and dispose of real property for a
public purpose.
F. The Act authorizes the Members to create a joint exercise of powers entity with the
authority to exercise any powers common to the Members, as specified in this Agreement and to
exercise the additional powers granted to it in the Act and any other applicable provisions of the laws
of the State of California.
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
2
G. A public entity established pursuant to the Act is empowered to issue or execute bonds,
notes, commercial paper or any other evidences of indebtedness, including leases or installment sale
agreements or certificates of participation therein (as defined in Section 6585(c) of the Act, “Bonds”),
and to otherwise undertake financing programs under the Act or other applicable provisions of the laws
of the State of California to accomplish its public purposes.
H. The Members have determined to specifically authorize a public entity authorized
pursuant to the Act to issue Bonds pursuant to the Act or other applicable provisions.
I. The Members have undertaken certain common efforts to create a master plan and
promote development of the approximately 535-acre Chula Vista Bayfront (“Chula Vista Bayfront”)
and have entered into that certain Amended and Restated Chula Vista Bayfront Master Plan Financing
Agreement dated June 20, 2017 (the “Financing Agreement”).
J. It is the desire of the Members to use a public entity established pursuant to the Act to
undertake the financing and/or refinancing of portions of the Chula Vista Bayfront project
contemplated by the Financing Agreement.
K. 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.
TERMS OF AGREEMENT
Section 1. Definitions. Unless the context otherwise requires, the terms defined in this
Section shall for all purposes of this Agreement have the meanings herein specified.
Act. The term “Act” means Chapter 5 of Division 7 of Title 1 of the Government Code
(Section 6500 et seq.), as amended.
Agreement. The term “Agreement” means this Amended and Restated Joint Exercise of
Powers Agreement, as it may be amended from time to time, creating the Authority.
Authority. The term “Authority” means the Chula Vista Bayfront Facilities Financing
Authority created by this Agreement.
Board; Board of Directors. The terms “Board” or “Board of Directors” mean the governing
board of the Authority established pursuant to, and consisting of the members selected in accordance
with, Section 4.B. hereof.
Board of Port Commissioners. The term “Board of Port Commissioners” means the Board of
Port Commissioners of the Port District.
Bonds. The term “Bonds” has the meaning set forth in Declaration G above.
Brown Act. The term “Brown Act” means the Government Code provisions at Section 54950
et seq. governing the notice and agenda requirements for meetings of government agencies in the State
and any later amendments, revisions, or successor enactments.
City. The term “City” means the City of Chula Vista, a charter city organized and existing
under the laws of the State.
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
3
City Council. The term “City Council” means the City Council of the City.
Fiscal Year. The term “Fiscal Year” has the meaning set forth in Section 7.
Government Code. The term “Government Code” means the Government Code of the State.
Harbors and Navigation Code. The term “Harbors and Navigation Code” means the Harbors
and Navigation Code of the State.
Indenture. The term “Indenture” means each indenture, trust agreement or other such
instrument pursuant to which Bonds are issued.
Member. The term “Member” or “Members” means the City and/or the Port District, as
appropriate.
Port District. The term “Port District” means the San Diego Unified Port District, a public
corporation created by the Legislature in 1962 pursuant to Harbors and Navigation Code Appendix 1
(the “Port Act”).
State. The term “State” means the State of California.
Section 2. Purpose. This Agreement is made pursuant to the Act for the purpose of
assisting in the financing and refinancing of capital improvement projects of the Members and other
activities of the Members as permitted under the Act relating to the Chula Vista Bayfront as
contemplated by the Financing Agreement or otherwise, by exercising the powers referred to in this
Agreement. The Authority’s jurisdiction shall be limited to the Chula Vista Bayfront (as depicted on
Schedule 1 attached hereto) unless otherwise provided by amendment of this Agreement.
Section 3. Term. This Agreement shall become effective as of the date hereof and shall
continue in full force and effect until terminated b y a supplemental agreement of the Port District and
the City; provided, however, that the initial terms of the members of the Board and the officers of the
Authority shall commence upon the appointment of the initial Board members, and the duties and
responsibilities of the members of the Board and the officers of the Authority (including, without
limitation, the responsibility to make or cause to be made an audit and audit reports) shall commence
therewith; and provided further, 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 pursuant to which such Bonds are
issued or other obligations are incurred.
Section 4. The Authority.
A. Creation of the Authority. There is hereby created pursuant to the Act an
authority and public entity to be known as the “Chula Vista Bayfront Facilities Financing Authority.”
As provided in the Act, the Authority shall be a public entity separate from the City and the Port
District. The debts, liabilities and obligations of the Authority shall not constitute debts, liabilities or
obligations of the City or the Port District.
Within 30 days after the effective date of this Agreement or any amendment hereto, the
Authority will cause a notice of this Agreement or amendment to be prepared and filed with the office
of the Secretary of State of the State and the office of the Controller of the State in the manner set forth
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
4
in Section 6503.5 of the Act. Within 30 days after the effective date of this Agreement or any
amendment hereto, a full copy of this Agreement and any amendment shall be filed with the Controller
of the State and the San Diego County Local Agency Formation Commission as set forth in Section
6503.6 of the Act.
The Board may adopt such by-laws, policies and procedures as it deems necessary or desirable
for the administration and operation of the Authority.
B. Governing Board. The Authority shall be administered by the Board, which
shall be comprised of five members consisting of (i) two members appointed by the City Council, (ii)
two members appointed by the Board of Port Commissioners, and (iii) the Port Com missioner
appointed by the City Council. Board members shall be designated from time to time by action of the
City Council and the Board of Port Commissioners, respectively, certified copies of which shall be
delivered to the Secretary. Board Members must be members of the governing body or employees of
the Port District or the City, as applicable. The term of office as a member of the Board shall terminate
when such member of the Board (i) shall be replaced by action of the City Council (with respect to
Board members appointed by it) or the Board of Port Commissioners (with respect to Board members
appointed by it), or (ii) shall cease to hold his or her respective office or employment at the City or the
Port District, as the case may be.
C. Meetings of Board.
(1) Time and Place. The Board shall hold its regular meetings at such
times as may be established by resolution of the Board or pursuant to bylaws of the Authority. The
Board may suspend the holding of regular meetings so long as there is no need for Authority business,
and provided that any action taken regarding the sale of Bonds shall occur by resolution placed on a
noticed and posted meeting agenda consistent with the requirements for regular meetings under the
Brown Act. At all times, each regular meeting of the Authority shall take place pursuant to a 72-hour
notice and agenda requirement or as otherwise provided by the Brown Act.
The Board may hold special meetings at any time and from time to time in accordance with the
Brown Act. A special meeting may be called at any time by the Secretary of the Authority or the
Executive Director of the Authority by delivering written notice to each Board 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, telecopy or electronic mail. Such written notice may also be dispensed with as to any
member who is actually present at the meeting.
Nothing contained in this Agreement 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.
All public hearings held by the Board shall be held during regular or special meetings of the
Board. Meetings of the Board may be held by teleconference in accordance with the provisions of the
Brown Act.
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
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
5
declare the meeting adjourned to a stated time a nd 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 notic ed 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.
The Chair of the Board or the Executive Director of the Authority 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.
The presiding officer at the meeting shall determine the rules of conduct.
(2) Legal Notice. All regular and special meetings of the Board shall be
called, noticed, held and conducted subject to the provisions of the Brown Act.
(3) Minutes. The Secretary of the Authority shall cause minutes of all
meetings of the Board to be kept and shall, as soon as practicable after each meeting, cause a copy of
the minutes to be forwarded to each member of the Board and to the City and the Port District.
(4) Quorum. A majority of the members of the Board shall constitute a
quorum for the transaction of business, except that less than a quorum may adjourn meetings from time
to time. Any action or decision of the Authority shall be on motion duly approved by a majority of the
Board (i.e., three members) at a lawfully held meeting.
D. Officers; Duties; Bonds.
(1) The officers of the Authority shall be the Chair, the Vice Chair, the
Secretary, the Treasurer, the Auditor and the Executive Director.
(A) Chair. The Chair of the Authority shall be the Board member
selected to serve as Chair by action of the Board . 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.
(B) Vice Chair. The Vice Chair shall be the Board member who is
selected to serve as Vice-Chair by action of the Board. The term of office shall be the same as the term
of the Mayor of the City. The Vice Chair shall perform the duties of the Chair in the absence or
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
6
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.
(C) Secretary. The Clerk of the Port District is hereby designated
as the Secretary 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 duties incident to the office.
(D) Treasurer and Auditor. The Chief Financial Officer/Treasurer
of the Port District is hereby designated as the Treasurer and Auditor 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 is designated as a public officer or person who has charge of, handles, or
has access to any property of the Authority and, as such, shall file an official bond if so required by the
Board of the Authority pursuant to Section 6505.1 of the Act. The Treasurer shall have the powers,
duties and responsibilities specified in Section 6505.5 of the Act.
(E) Executive Director. The President/CEO of the Port District is
hereby designated the Executive Director of the Authority and shall be 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. In addition, subject to the applicable provisions of any trust
agreement, indenture or resolution providing for a trustee or other fiscal agent, the Executive Director
is designated as a public officer or person who has charge of, handles, or has access to any property of
the Authority and, as such, shall file an official bond if so required by the Board pursuant to
Section 6505.1 of the Act.
(2) So long as required by Sections 6505 and 6505.5 of the Act, the
Treasurer of the Authority shall prepare or cause to be prepared: (a) a special audit as required pursuant
to Section 6505 of the Act no less frequently than once in every two-year period during the term of
this Agreement; and (b) a report in writing on the first day of July, October, January and April of each
year to the Board, the City and the Port District, which report shall describe the amount of money held
by the Treasurer of the Authority for the Board, the amount of receipts since the last such report, and
the amount paid out since the last such report (which may exclude amounts held by a trustee or other
fiduciary in connection with any Bonds to the extent that such trustee or other fiduciary provides
regular reports covering such amounts).
(3) The services of the officers shall be without compensat ion by the
Authority unless said officers are otherwise compensated as employees of the City or the Port District.
The City and the Port District will provide such other administrative services as required by the
Authority, and shall not, unless otherwise determined by a resolution of the Board of the Authority,
receive economic remuneration from the Authority for the provision of such services.
(4) 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.
(5) All of the privileges and immunities from liability, exemptions from
laws, ordinances and rules, all pension, relief, disability, worker’s compensation an d other benefits
which apply to the activities of officers, agents or employees of the Members when performing their
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
7
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.
(6) None of the officers, agents or employees, if any, directly employed by
the Authority shall be deemed, by reason of their employment by t he 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.
(7) The Members hereby confirm their intent and agree that, as provided
in Section 4.A hereof and in the Act, the debts, liabilities and obligations of the Authority shall not
constitute debts, liabilities or obligations of the City or the Port District.
(8) In any event, the Authority or the City shall cause all records regarding
the Authority’s formation, existence, operations, any Bonds issued by the Authority, obligations
incurred by it and proceedings pertaining to its termination to be retained for at least s ix (6) years
following termination of the Authority or final payment of any Bonds issued by the Authority,
whichever is later.
(9) 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.
(10) No Board 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 rende r it liable for any purpose in any amount.
Section 5. Powers. The Authority shall have any and all powers which are common powers
of the City and the Port District, and any and all powers separately conferred by law upon the Authority.
All such powers, whether common to the Members or separately conferred by law upon the Authority,
are specified as powers of the Authority to the extent permitted by law, except any such powers which
are specifically prohibited to the Authority by applicable law. To the extent required by the Act, the
Authority’s exercise of its powers is subject to the restrictions upon the manner of exercising the
powers of the City.
The procedures of Chapter 2.56 of the Chula Vista Municipal Code, as they may be amended
from time to time to the extent consented to by the Authority’s Board, shall be the Authority’s
procurement policy, to the extent applicable to procurement by the Authority, until and unless the
Authority Board adopts a new procurement policy.
The Authority is hereby authorized, in its own name, to do all acts necessary or convenient for
the exercise of its powers, including, but not limited to, any or all of the following: to sue and be sued;
to make and enter into contracts; to employ agents, consultants, attorneys, accountants, a nd employees;
to acquire, hold or dispose of property, whether real or personal, tangible or intangible, wherever
located; and to issue Bonds or otherwise incur debts, liabilities or obligations to the extent authorized
by the Act or any other applicable provision of law and to pledge any property or revenues or the rights
thereto as security for such Bonds and other indebtedness.
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
8
Notwithstanding the foregoing, the Authority shall have any additional powers conferred under
the Act or under applicable law, insofar as such additional powers may be necessary to accomplish the
purposes set forth in Section 2 hereof.
Section 6. Termination of Powers. The Authority shall continue to exercise the powers
herein conferred upon it until the termination of this Agreement in accordance with Section 3 hereof.
Section 7. Fiscal Year. Unless and until changed by resolution of the Board, the Fiscal
Year of the Authority shall be the period from July 1 of each year to and including the following
June 30, except for the first Fiscal Year, which shall be the period from the date of this Agreement to
June 30, 2014.
Section 8. Disposition of Assets. Upon termination of this Agreement pursuant to
Section 3 hereof, any surplus money in possession of the Authority or on deposit in any fund or account
of the Authority shall be returned in proportion to any contributions made as required by Section 6512
of the Act. The Board is vested with all powers of the Authority for the purpose of concluding and
dissolving the business affairs of the Authority. After rescission or termination of this Agreement
pursuant to Section 3 hereof, all property of the Authority, both real and personal, shall be distributed
to the City and the Port District as they shall agree, subject to Section 9 hereof.
Section 9. Contributions and Advances. Contributions or advances of public funds and
of personnel, equipment or property may be made to the Authority by the City and the Port District for
any of the purposes of this Agreement. Payment of public funds may be made to defray the cost of
any such contribution. Any such advance made in respect of a revenue -producing facility shall be
made subject to repayment, and shall be repaid, in the manner agreed upon by the City or the Port
District, as the case may be, and the Authority at the time of making such advance as provided by
Section 6512.1 of the Act. It is mutually understood and agreed that neither the City nor the Port
District 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 the Port
District 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. Among
other things, the Marks-Roos Local Bond Pooling Act of 1985 authorizes the Authority to execute and
deliver or cause to be executed and delivered certificates of participation in a lease or installment sale
agreement with any public or private entity, or, at its option, to issue or cause to be issued bonds, rather
than certificates of participation, and enter into a loan agreement with the public or private entity.
B. Bonds 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 gen eral 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
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
9
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 authority thereof, including the Port
District 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 authority thereof, including the Port
District 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 authority or instrumentality
thereof, including the Port District 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 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 shall not be exclusive and shall not
be deemed to amend or alter the terms of other agreements between the City and the Port District.
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 that such duties are not assigned to a trustee for owners of B onds). The books
and records of the Authority shall be open to inspection at all reasonable times by the City and the Port
District 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.
A. Audits. The Auditor of the Authority shall make or cause to be made an audit
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, 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 Auditor 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 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 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.
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
10
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 or the Port District or the Authority may adopt a Conflict of Interest Code
separate from that of the City or Port District.
Section 15. Breach. If default shall be made by the City or the Port District in any covenant
contained in this Agreement, such default shall not excuse either the City or the Port District from
fulfilling its obligations under this Agreement, and the City and the Port District shall continue to be
liable for the payment of contributions and the performance of all conditions herein contained. The
City and the Port District hereby declare that this Agreement is entered into for the benefit of the
Authority created hereby and the City and the Port District 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
Members. 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 to the City and the Port District hereunder shall be sufficient if
delivered to the Administrative Services/Finance Director of the City as to the City, and to the Chief
Financial Officer/Treasurer of the Port District, as to the Port District.
Section 17. Withdrawal. Neither the Port District nor the City may withdraw from this
Agreement prior to the end of the term of this Agreement determined in accordance with Section 3.
Section 18. Effectiveness. This Agreement shall become effective and be in full force and
effect and a legal, valid and binding obligation of the Port District and the City when each party has
executed a counterpart of this Agreement.
Section 19. Severability. Should any part, term, or provision of this Agreement be decided
by the courts to be illegal or in conflict with any law of the State, or otherwise be rendered
unenforceable or ineffectual, the validity of the remaining parts, terms or provisions hereof shall not
be affected thereby.
Section 20. Successors; Assignment. This Agreement shall be binding upon and shall inure
to the benefit of the successors of the parties. Except to the extent expressly provided herein, neither
party may assign any right or obligation hereunder without the consent of the other.
Section 21. Amendment of Agreement. This Agreement may be amended by supplemental
agreement executed by the Members at any time; provided, however, that this Agreement may be
terminated only in accordance with Section 3 hereof and, provided further, that such supplemental
agreement shall be 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: (A) in the case of the Port District, by
resolution duly adopted by the Board of Port Commissioners of the Port District; (B) in the case of the
City, by resolution duly adopted by the City Council of the City; and (C) 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.
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
11
Section 23. Waiver of Personal Liability. No Board member, officer or employee of the
Authority, the City or the Port District shall be individually or personally liable for any claims, losses,
damages, costs, injury and liability of any kind, nature or description arising from the actions of the
Authority or the actions undertaken pursuant to this Agreement, and the Authority shall defend such
Board members, officers or employees against any such claims, losses, damages, costs, injury and
liability. Without limiting the generality of the foregoing, no Board member, officer or employee of
the Authority or of any Member shall be personally liable on any Bonds or be subject to any personal
liability or accountability by reason of the issuance of Bonds pursuant to the Act and this Agreement.
To the fullest 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 Authority. In the case of a crimin al 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. Counterparts. 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.
Section 26. Designees. 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 Port District or the City, such action
may be exercised through the officers, staff or employees of the Port District or the City, as the case
may be, in the manner provided by law.
Section 27. Governing Law. 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.
Section 28. Integration. 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.
[Remainder of page intentionally left blank]
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their duly authorized representatives, as of the day and year first above written.
CITY OF CHULA VISTA
By:
Mayor
Attest:
City Clerk
Approved as to Form:
City Attorney
SAN DIEGO UNIFIED PORT DISTRICT
By:
Name: _____________________________________
Title: ______________________________________
Approved as to Form and Legality:
General Counsel
Assistant Deputy
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F
4815-5195-7617.2
13
Schedule 1
[Map of Chula Vista Bayfront Attached]
DocuSign Envelope ID: 2AC6CBC8-8499-4700-BDB8-30652240607F