HomeMy WebLinkAboutReso 2019-129RESOLUTION NO. 2019-129
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 FOR THE CHULA
VISTA BAYFRONT FACILITIES FINANCING AUTHORITY;
CONSENTING TO THE APPOINTMENT OF THE CITY
ATTORNEY TO SERVE AS CO-COUNSEL TO SUCH
AUTHORITY; AND APPOINTING A COUNCILMEMBER TO
ITS GOVERNING BOARD
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 (the “City”) 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, on September 25, 2018, the City Council adopted Resolution 2018-200
approving an Amended and Restated JEPA Agreement (the “2018 Amended and Restated J EPA
Agreement”); and
WHEREAS, the District did not take action on the 2018 Amended and Restated JEPA
Agreement; and
WHEREAS, the City and the District have worked cooperatively to draft additional
amendments to the JEPA Agreement limiting the Authority’s jurisdiction to the Chula Vista
Bayfront and clarifying the structure and operations of the Authority (the “2019 Amended and
Restated JEPA Agreement;”) and
WHEREAS, the City Council desires to approve the 2019 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.D (4) of the 2019 Amended and Restated JEPA
Agreement, the Port Attorney of the District and the City Attorney of the City shall act as co-
counsel to the Authority; provided, however, that the Board of Port Commissioners, as it relates
to the Port Attorney, and the City Council, as it relates to the City Attorney, shall consent to the
appointment of its respective counsel to serve as co-counsel to the Authority prior to the Port
Attorney or the City Attorney acting on behalf of the Authority; and
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Resolution No. 2019-129
Page No. 2
WHEREAS, the City Council desires to consent to the appointment of the City Attorney
to serve as co-counsel to the Authority; and
WHEREAS, pursuant to Section 4.B of the JEPA Agreement, as amended and restated,
the Authority shall be administered by a Governing Board, which shall be comprised of five
Board Members, consisting of (i) two members appointed by the City Council of the City, (ii)
two members appointed by the District Board of Commissioners, and (iii) the Port Commissioner
appointed by the City Council of the City; and
WHEREAS, at its regular meeting of September 25, 2018, the City Council did approve
Resolution 2018-200 appointing Mayor Casillas Salas and Councilmember Aguilar to the City’s
two Governing Board seats; and
WHEREAS, Councilmember Aguilar’s Governing Board term expired concurrent with
her exit from City Council office on December 11, 2018 and it is now necess ary for the City
Council to appoint a new Governing Board Member; and
WHEREAS, adopting an Amended and Restated Joint Exercise of Powers Agreement,
consenting to the appointment of the City Attorney to serve as co -counsel to the Authority, and
appointing a new Governing Board Member 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 approve and 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 for
the Chula Vista Bayfront Facilities Financing Authority in substantially the form set forth in
Exhibit 1 to this Resolution, with such minor modifications as may be required or approved by
the City Manager and the City Attorney.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
does hereby authorize and direct the Mayor to execute the subject Amended and Restated Joint
Exercise of Powers Agreement in a final form approved by the City Attorney.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
does hereby consent to the appointment of the City Attorney to serve as co-counsel to such
Authority.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
does hereby appoint Deputy Mayor Padilla to the Governing Board of the Authority.
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Resolution No. 2019-129
Page No. 3
Presented by Approved as to form by
Gary Halbert Glen R. Googins
City Manager City Attorney
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 18th day of June 2019 by the following vote:
AYES: Councilmembers: Diaz, Galvez, 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. 2019-129 was duly passed, approved, and adopted by the City Council at a
regular meeting of the Chula Vista City Council held on the 18th day of June 2019.
Executed this 18th day of June 2019.
Kerry K. Bigelow, MMC, City Clerk
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AMENDED AND RESTATED
JOINT EXERCISE OF POWERS AGREEMENT
by and between
CITY OF CHULA VISTA
and
SAN DIEGO UNIFIED PORT DISTRICT
For
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
Attachment 1DocuSign Envelope ID: 88F532E3-8A90-42F4-A3E5-A61F17B1E8E9
TABLE OF CONTENTS
Page
i
Section 1. Definitions.............................................................................................................. 2
Section 2. Purpose ................................................................................................................... 3
Section 3. Term ....................................................................................................................... 4
Section 4. The Authority ......................................................................................................... 4
A. Ratification and Confirmation of Creation of the Authority ..................... 4
B. Governing Board ........................................................................................ 4
C. Meetings of Board...................................................................................... 5
D. Officers; Duties; Other Authority Matters ................................................. 6
Section 5. Powers .................................................................................................................... 9
Section 6. Termination of Powers ........................................................................................... 9
Section 7. Procurement Policy ................................................................................................ 9
Section 8. Fiscal Year ............................................................................................................. 9
Section 9. Disposition of Assets ............................................................................................. 9
Section 10. Contributions and Advances .................................................................................. 9
Section 11. Bonds ................................................................................................................... 10
A. Authority To Issue Bonds ........................................................................ 10
B. Bonds Limited Obligations ...................................................................... 10
Section 12. Agreement Not Exclusive .................................................................................... 11
Section 13. Accounts and Reports .......................................................................................... 11
Section 14. Funds .................................................................................................................... 11
Section 15. Conflict of Interest Code ...................................................................................... 11
Section 16. Breach .................................................................................................................. 11
Section 17. Withdrawal ........................................................................................................... 11
Section 18. Notices ................................................................................................................. 12
Section 19. Effectiveness ........................................................................................................ 12
Section 20. Severability .......................................................................................................... 12
Section 21. Successors; Assignment ....................................................................................... 12
Section 22. Amendment of Agreement ................................................................................... 12
Section 23. Form of Approvals ............................................................................................... 12
Section 24. Waiver of Personal Liability ................................................................................ 12
Section 25. Section Headings ................................................................................................. 13
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TABLE OF CONTENTS
(continued)
Page
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Section 26. Counterparts ......................................................................................................... 13
Section 27. Designees of Officers of the Authority and Co-Counsel to the Authority;
Vice Chair to Act for Chair .................................................................................. 13
Section 28. Governing Law .................................................................................................... 14
Section 29. Integration ............................................................................................................ 14
Section 30. Validity of Prior Actions ...................................................................................... 14
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AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
THIS AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
(this "Agreement"), dated and effective June __, 2019 ("Effective Date"), is entered into by and
between the CITY OF CHULA VISTA (the "City"), a charter city organized and existing under
the laws of the State of California (the "State"), and the SAN DIEGO UNIFIED PORT DISTRICT
(the "Port District"), a public corporation created by the State legislature in 1962 pursuant to the
California Harbors and Navigation Code Appendix 1 (as amended from time to time, the "Port
Act"). This Agreement amends, restates, and supersedes in its entirety that certain Joint Exercise
of Powers Agreement creating the Chula Vista Bayfront Facilities Financing Authority, dated as
of May 1, 2014 (the "Original Agreement"), by and between the City and the Port District (each
of the City and the Port District shall be referred to individually as, a "Member," and, collectively,
the "Members"), which created the Chula Vista Bayfront Facilities Financing Authority (the
"Authority").
DECLARATION OF PURPOSE
A. Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 of the California
Government Code (known as the "Joint Exercise of Powers Act" and, as amended from time to
time, 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).
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 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
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exercise the additional powers granted to it in the Act and any other applicable provisions of the
laws of the State.
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 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 depicted on Schedule 1
attached hereto ("Chula Vista Bayfront") and have entered into that certain Amended and Restated
Chula Vista Bayfront Master Plan Financing Agreement dated June 20, 2017 (as amended from
time to time, 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 being undertaken in the
Chula Vista Bayfront 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. Unless this
Agreement specifically provides otherwise, any reference to any statute or agreement shall include
amendments to such statute or agreement, and, in the case of any statute, successor legislation.
Act. The term "Act" means Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 of
the Government Code (Section 6500 et seq.).
Agreement. The term "Agreement" means this Amended and Restated Joint Exercise of
Powers Agreement, as it may be amended from time to time.
Authority. The term "Authority" means the Chula Vista Bayfront Facilities Financing
Authority.
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.
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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 the Declaration of Purpose, Recital
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.
City Council. The term "City Council" means the City Council of the City.
Effective Date. The term "Effective Date" means June __, 2019.
Fiscal Year. The term "Fiscal Year" has the meaning set forth in Section 8.
Governing Body. The term "Governing Body" means with respect to the City, the City
Council of the City, and means, with respect to the Port District, the Board of Port Commissioners.
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 instrument
or agreement pursuant to which Bonds are issued.
Marks-Roos Local Bond Pooling Act of 1985. The term "Marks-Roos Local Bond Pooling
Act of 1985" means Article 4 of Chapter 5 of Division 7 of Title 1 of the Government Code
(Section 6584 and following).
Member. The term "Member" or "Members" means the City and/or the Port District, as
applicable.
Port Act. The term "Port Act" means Harbors and Navigation Code Appendix 1.
Port District. The term "Port District" means the San Diego Unified Port District, a public
corporation created by the State Legislature in 1962 pursuant to 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 ,
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including as contemplated by the Financing Agreement, 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 Effective Date and
shall continue in full force and effect until terminated by a written agreement of the Port District
and the City. This Agreement shall not 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. Ratification and Confirmation of Creation of the Authority. Creation of the
Authority pursuant to the Original Agreement and the Act is hereby ratified and confirmed. As
provided in the Act, the Authority shall be a public entity separate from the City and the Port
District. Except to the extent provided in Section 6508.1 of the Act, the debts, liabilities and
obligations of the Authority shall not constitute debts, liabilities or obligations of the City or the
Port District.
Within thirty (30) days after the Effective Date of this Agreement or any amendment
hereto, the Authority will cause a notice of this Agreement or amendment, as applicable, 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 in Section 6503.5 of the Act. Within thirty (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.
B. Governing Board. The Authority shall be administered by the Board. The
Board shall be comprised of five members, each of which must at all times, in the case of the Port
District, be a member of the Board of Port Commissioners or an employee of the Port District, or,
in the case of the City, a member of the City Council or an employee of the City. The Board shall
consist of (i) two members appointed by the City Council, (ii) two members appointed by the
Board of Port Commissioners, and (iii) the Port Commissioner 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 designation shall be delivered to
the Secretary of the Authority (the "Secretary") designated in Section 4.D hereof. 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 , including
the Port Commissioner appointed by it) or the Board of Port Commissioners (with respect to Board
members appointed by it), or (ii) shall cease to be an employee at the City or the Port District, as
the case may be.
The Board may adopt such bylaws (the "Bylaws") as it deems necessary or desirable for
the administration and operation of the Authority. The Board may adopt such policies and
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procedures as it deems necessary or desirable for the administration and operation of the Authority,
which shall include such policies and procedures as are necessary to assure compliance with the
Brown Act.
C. Meetings of Board.
(1) Time and Place. The Board shall hold its regular meetings at such
times and at such locations as may be established by the Bylaws or by resolution of the Board;
provided that the Board shall hold at least one regular meeting each year and no regular meetings
shall be scheduled at the same time as a meeting of the City Council or the Board of Port
Commissioners. 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 or the Executive
Director of the Authority by delivering written notice to each Board member; provided, however,
no special meetings shall be scheduled at the same time as a meeting of the City Council or Board
of Port Commissioners. 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 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. Regular and special meetings of the Board may be held by teleconference in accordance
with the provisions of the Brown Act and such procedures as the Secretary shall establish from
time to time.
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 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 t o 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
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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.
(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 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; Required Vote for Action. Four members of the Board
shall constitute a quorum for the transaction of business, except that if less than a quorum is present
at any meeting, the Secretary or any Board member who is present at the meeting may adjourn
meetings from time to time. Any action or decision of the Authority shall be on motion duly
approved by four members of the Board at a lawfully held meeting.
D. Officers; Duties; Other Authority Matters.
(1) Officers; Duties; Official Bonds. The officers of the Authority shall
be the Chair, the Vice Chair, Secretary, the Executive Director, the Treasurer, and the Auditor.
Terms of each of the officers of the Authority shall be established pursuant to the Bylaws.
(A) Chair. The Chair of the Authority (the "Chair") shall be a
Board member selected to serve as Chair by action of the Board. 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 of the Authority (the "Vice
Chair") shall be a Board member who is selected to serve as Vice Chair by action of the Board.
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 by action of the Board.
(C) Secretary. The Secretary is not required to be a member of
the Board and shall serve until a successor is designated by the Board. The Clerk of the Port
District is hereby designated as the Secretary. The Secretary shall keep the records of the Authority
at the offices of the Port District. The Secretary shall act as Secretary at the meetings of the
Authority and record all votes, 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) Executive Director. The President/CEO of the Port District,
who may, but is not required to be, a member of the Board, is hereby designated Executive Director
of the Authority (the "Executive Director"). The Executive Director 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 shall sign all agreements, contracts, deeds and other
instruments requiring execution 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
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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 as required pursuant
to Section 6505.1 of the Act, which official bond shall be in the amount of $25,000.
(E) Treasurer. The Director of Finance of the City, who may,
but is not required to be, a member of the Board, is hereby designated as the Treasurer of the
Authority (the "Treasurer"). The Treasurer shall have the powers, duties and responsibilities
specified in Section 6505.5 of the Act. 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 as required pursuant Section 6505.1 of the Act, which
official bond shall be in the amount of $25,000.
(F) Auditor. The Director of Finance of the City, who may, but
is not required to be, a member of the Board, is also hereby designated as the Auditor of the
Authority (the "Auditor"). The Auditor shall perform the functions assigned to the auditor in
Section 6505(b) of the Act relating to audits and in Section 6505.5 of the Act relating to payments.
Subject to the applicable provisions of any trust agreement, indenture or resolution providing for
a trustee or other fiscal agent, the Auditor 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 as required pursuant Section 6505.1 of the Act, which official bond shall be in the amount of
$25,000.
(2) Audits and Reports. So long as required by Section 6505 of the Act,
the Auditor shall prepare or cause to be prepared 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. The Auditor shall, within the time necessary to comply with the requirements of
the Act, file a report of any audit performed pursuant to this Section 4.D (2) as required by the Act
and shall send a copy of such report to the public entities required to receive such report in
accordance with the requirements of the Act. So long as required by Section 6505.5 of the Act,
the Treasurer shall prepare or cause to be prepared a report in writing, as required by Section
6505.5(e) of the Act, on the first day of July, October, January and April of each year, which report
shall be delivered to the Board, the City and the Port District and which report shall describe the
amount of money held by the Treasurer 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). Any costs of any audit required
pursuant to the Act, including costs of contracts with, or employment of certified public
accountants or public accountants, shall be borne by the Authority and shall be a charge against
any unencumbered funds of the Authority available for such purpose.
(3) Compensation for Services. The cost of the services performed by
the officers, who are employed by the Members, may be reimbursed by the Authority in
accordance with a separate agreement to be entered into between the Members and the Authority.
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(4) Additional Officers, Advisors, Consultants, Counsel. The Board
shall have the power to appoint such other officers as it may deem necessary and to retain such
advisors, consultants and experts, including accountants, as the Board shall deem necessary or
desirable. The Port Attorney of the Port District (the "Port Attorney") and the City Attorney of
the City (the "City Attorney") shall act as co-counsel to the Authority; provided, however, the
Board of Port Commissioners, as it relates to the Port Attorney, and the City Council, as it relates
to the City Attorney, shall consent to the appointment of its respective counsel to serve as co-
counsel to the Authority prior to the Port Attorney or City Attorney acting on behalf of the
Authority. The Board may retain or engage such advisors, consultants, experts and counsel on
such terms and at such rates of compensation as the Board may determine, for the performance of
Authority business and affairs, provided that adequate sources of funds are identified for the
payment of such advisors, consultants, experts and counsel.
(5) Privileges and Immunities. 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 the members of the Board of Port
Commissioners, members of the City Council, 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.
(6) No Deemed Employment. None of the officers, advisors,
consultants, experts or counsel, if any, appointed or retained by the Authority in connection with
the issuance of Bonds or as otherwise permitted under the Act, shall be deemed, by reason of their
appointment or retention by the Authority, to be employed by either Member.
(7) Public Retirement System Contracts. Notwithstanding Section 4.A,
Section 6508.2 of the Act prohibits members of authorities created pursuant to the Act from
agreeing that retirement liabilities may not constitute debts, liabilities or obligations of the
members if the Authority contracts with a public retirement system (as such term is defined in
Section 6508.2 of the Act, a "public retirement system"). The Authority did not enter into a
retirement contract with any public retirement system subsequent to the effectiveness of the
Original Agreement and does not currently have any retirement contract in effect with an y public
retirement system. Each of the City and the Port District hereby agree that it will not amend this
Agreement to provide that the Authority may enter into a retirement contract with a public
retirement system.
(8) Authority Records. In any event, the Authority 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 six (6) years following termination of the Authority or final payment of any Bonds
issued by the Authority, whichever is later. Any records not described in the preceding sentence
shall be maintained in accordance with the Records Retention Policy of the Port District, as it may
be amended from time to time.
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(9) Authority to Bind Authority. No Board member or officer of the
Authority, without prior specific or general authority by the affirmative vote of four members 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.
Section 5. Powers. The Authority shall have any and all powers, in its own name, which
are common powers of the Members and any and all powers separately conferred under applicable
law, including, without limitation, by the Act, upon the Authority for any purpose authorized under
this Agreement. 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.
To the extent required by Section 6509 of the Act, the Authority's exercise of its powers is subject
to such restrictions imposed on the City by the Constitution of the State, City Charter, and
applicable State statutes.
The Authority is hereby authorized, in its own name, to do all acts necessary or convenient
for the exercise of its powers for the purposes specified in this Agreement, including, but not
limited to, any or all of the following: to sue and be sued, including without limitation, bringing
a validation action pursuant to Section 860 of the California Code of Civil Procedure or any other
applicable statute related to validation actions; to make and enter into contracts; to employ agents
and 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.
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. Procurement Policy. The Authority shall, by resolution, adopt a procurement
policy (the "Procurement Policy"). Such Procurement Policy may be the procurement policy of
the City or the Port District or the Authority may adopt a Procurement Policy separate from that
of the City or Port District.
Section 8. 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.
Section 9. 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 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 in writing, subject to Section 10
hereof.
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Section 10. 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 or advance. 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 such
advance is made 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. Each of the City or the Port District may elect to allow the use of its personnel,
equipment or property in lieu of other contributions or advances to the Authority.
Section 11. 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. Expenses for the services of bond counsel, financial consultants and other
advisors and for accounting or other services determined necessary for the successful development
of a public capital project may be paid from the proceeds of the Bonds to the extent permissible
under applicable law.
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 limited
obligations of the Authority payable solely from, and secured solely by, the revenues, funds and
other assets pledged therefor under any applicable Indenture 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
instrumentality thereof, including the Port District and the City, but shall only constitute the special
limited obligation of the Authority as described above. Neither the faith and credit nor the taxing
power of the State or any public instrumentality 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 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 member of the Board, any member of the City Council, any member
of the Board of Port Commissioners or any officer, agent or employee of the Authority, the City
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11
or the Port District in his or her individual capacity, and no member of the Board 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 12. Agreement Not Exclusive. This Agreement shall not be exclusive and shall
not be deemed to amend or alter the terms of any other agreement between the City and the Port
District.
Section 13. 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 funds and accounts are not required to be held by 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 the Port District and their representatives.
Section 14. Funds. Subject to the provisions of each Indenture for outstanding Bonds
providing for a trustee to receive, have custody of and disburse funds which constit ute Authority
funds, the Treasurer of the Authority shall receive, have the custody of and disburse Authority
funds pursuant to applicable provisions of the Act and generally accepted accounting principles
and shall make the disbursements required by this Agreement or otherwise necessary to carry out
the provisions and purposes of this Agreement.
Section 15. 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 16. 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 each of the City and the Port
District shall continue to be responsible for compliance with all terms, covenants and conditions
that apply to it set forth herein. The City and the Port District hereby declare that this Agreement
is entered into for the benefit of the Authority 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 17. Withdrawal. Neither Member may withdraw from this Agreement if such
withdrawal would result in dissolution of the Authority while any Bonds or other obligations of
the Authority remain outstanding under the terms of any Indenture pursuant to which such Bonds
are issued or other obligations are incurred. Notwithstanding the foregoing, either Member may
withdraw from this Agreement if the Board of Port Commissioners and the City Council approve
such withdrawal and concurrently with the effectiveness of such withdrawal, the Member
requesting approval to withdraw from this Agreement assigns this Agreement to another public
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12
agency (as such term is defined in the Act), which public agency shall agree to assume the
obligations hereunder of the Member requesting approval to withdraw from this Agreement and
have delivered to the Port District and the City: (i) an executed counterpart of this Agreement; (ii)
a certified copy of the resolution adopted by the governing body of such public agency approving
this Agreement and execution and delivery of a counterpart of this Agreement to the Port District
and to the City; and (iii) such other documentation as shall be required by the Port District or by
the City. Such executed counterpart of this Agreement shall be deemed to constitute an
amendment of this Agreement and shall be filed as an amendment to this Agreement in accordance
with the provisions of the Act and Section 4.A hereof.
Section 18. Notices. Notices to the City and the Port District hereunder shall be sufficient
if delivered to the Director of Finance of the City and the City Manager of the City as to the City,
and to the Chief Financial Officer/Treasurer of the Port District and the Director, Real Estate of
the Port District as to the Port District.
Section 19. 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 on the Effective
Date.
Section 20. 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 21. Successors; Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the successors of the Members. Except to the extent expressly provided
`herein, neither Member may assign any right or obligation hereunder without the written consent
of the other.
Section 22. Amendment of Agreement. This Agreement may be amended by
supplemental agreement executed by the Members at any time; provided, however, that: (i) this
Agreement may not be amended to provide that the Authority may enter into any retirement
contract with any public retirement system for any reason; (ii) the Agreement may be terminated
only in accordance with Section 3 hereof; and (iii) any 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 23. 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 approval or
consent is required, unless the context specifies otherwise, the same shall not be unreasonably
withheld.
Section 24. Waiver of Personal Liability. No member of the Board, no member of any
committee established pursuant to the Bylaws (each, a "Committee"), no member of the City
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13
Council, no member of the Board of Port Commissioners nor any officer, employee or agent 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 members of the Board, members of any Committee, members of the City
Council, members of the Board of Port Commissioners, officers, employees or agents of the
Authority or a Member against any such claims, losses, damages, costs, injury and liability.
Without limiting the generality of the foregoing, no member of the Board, member of any
Committee, member of the City Council, member of the Board of Port Commissioners, officer,
employee or agent 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, a member
of any Committee, a member of the City Council, a member of the Board of Port Commissioners,
or an officer, employee or other agent of the Authority or any Member, 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, a member of any Committee, a member of the City Council, a
member of the Board of Port Commissioners, or an officer, employee or other agent of the
Authority or a Member, 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, a
member of any Committee, a member of the City Council, a member of the Board of Port
Commissioners, or an officer, employee or other agent of the Authority or a Member to the extent
permitted by law.
Section 25. Section Headings. All section headings contained herein are for convenience
of reference only and are not intended to define or limit the scope of any provision of this
Agreement.
Section 26. 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 27. Designees of Officers of the Authority and Co-Counsel to the Authority;
Vice Chair to Act for Chair. Where reference is made to duties to be performed for the Authority
by an employee of the Port District who is an officer of the Authority or by an employee of the
City who is an officer of the Authority, such duties may be performed by that person's duly
authorized deputy as designated from time to time pursuant to the Bylaws; provided however, that
all agreements, contracts, deeds and other instruments requiring execution by the Authority shall
be signed by the Executive Director or by such other representative of the Authority as shall be
designated in a resolution of the Board relating to execution of the agreement, contract, deed or
other instrument to be executed. Where reference is made to duties to be performed for the
Authority by the Port Attorney, acting as co-counsel to the Authority, or by the City Attorney,
acting as co-counsel to the Authority, such duties may be performed by that person's duly
authorized deputy as designated from time to time pursuant to the Bylaws . As provided Section
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14
4.D (1) (B) of this Agreement, the Vice Chair shall perform the duties of the Chair in the absence
or incapacity of the Chair.
Section 28. 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 29. 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.
Section 30. Validity of Prior Actions. The execution and delivery of this Agreement
shall have no effect on any actions taken by the Board pursuant to the Original Agreement and all
such actions shall remain valid and binding upon the Authority.
[Remainder of page intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives, as of the date first set forth above.
CITY OF CHULA VISTA
By: ________________________________
Mayor
Attest:
_____________________________________
City Clerk
Approved as to Form:
_____________________________________
City Attorney
SAN DIEGO UNIFIED PORT DISTRICT
By: ________________________________
President/CEO
Approved as to Form and Legality:
General Counsel
_____________________________________
Assistant/Deputy
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Schedule 1
Map of Chula Vista Bayfront
(see attached)
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Nature Center
parking
Harbor and Marinas
Chula Vista Bayfront Master Plan Illustrative
Locally and State-Approved Land Use Plan by
City of Chula Vista and Port of San Diego
Park
24 ac
Buffer:
25 ac
RV Park
Industrial Business Park
Industrial
Business Park
North
Buffer:
41.1 ac
Signature Park:
21 ac
Park
Seasonal
Wetland:
14.7 ac
Office
Mixed Use/ Commercial
Resort
Conference Center
RV Park/
Campground Hotel/
Cultural Retail
Retail (around harbor)
Residential
Hotel/Office Park Park E STREET F STREET H STREET J STREET v.01/02/13
Interstate 5
Wildlife
Reserve
Sweetwater
Marsh
South Bay
Salt Ponds
Chula Vista
Nature Center
Park
Harbor Park:
25 ac
Park
Public/
Quasi-Public
Mixed Use/
Commercial/
Parking Structure
Existing
Boat Yard
•RV Park/ Campground
•25 ft max height
•120,000 SF
•44 ft max height
•120,000 SF
•45 ft max height
•Portion of 2,850 hotel rooms
allowed between H-3 + H-23
•415,000 SF max conference space
•240 ft max hotel structure height
•120 ft max conference center height
•Portion of 2,850 hotel rooms
allowed between H-3 + H-23
•300 ft max height
•200,000 SF (cultural/retail)
•65 ft max height
•225,000 SF
•25 ft max height
•100,000 SF mixed use/commercial
•3,000 space parking garage
•155 ft max height
•1,500 residential units
•25 ft - 45 ft podium heights
•70 ft – 200 ft tower heights
•15,000 SF retail ground floor
•420,000 SF office
•250 rooms
•130 ft max height
•9,500 SF
•30 ft max height
•237 RV spaces
•25 ft max height
San Diego Bay L STREET I-5
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