Draft 8/2/22
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MENDED AND RESTATED JOINT POWERS AGREEMENT
SOUTHERN CALIFORNIA PUBLIC UTILITIES FINANCING AUTHORITY (formerly the Southern California Public Water Authority) This AMENDED AND RESTATED JOINT POWERS AGREEMENT (as may be amended, restated or otherwise modified from time to time, this “Agreement”) made in accordance with Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (commencing with Section 6500), as amended and supplemented from time to time (the “Act”), dated as of _________, 2022, is entered into by City of Los Angeles (“Los Angeles”) acting by and through the Department of Water and Power and the City of Burbank (“Burbank”).
WITNESSETH:
WHEREAS, the Act provides that two or more public agen cies by agreement may jointly exercise any power common to the contracting parties; that the agreement may provide for the creation of an entity which is separate from the parties to the agreement and responsible for the administration of the agreement; and, that the entity so created is also authorized to exercise the powers granted to it under the Act; and
WHEREAS, each of the parties to this Agreement is empowered by law to undertake projects for the use or benefit of public water and wastewater agencies, including, but not limited to, facilities for the production, storage, transmission, or treatment of water or wastewater, including facilities to remove hazardous substances, pollutants, or contaminants from that water; and WHEREAS, each of the parties to this Agreement is empowered by law to undertake projects for the use or benefit of public electric utilities, including, but not limited to, facilities for the provision of generation, transmission, storage, or distribution of electricity; and WHEREAS, e ach of the parties to this Agreement face significant challenges in meeting their objectives with respect to the region’s water resources and provision of safe, reliable, affordable, and sustainable electricity; and
WHEREAS, the Authority will provide Publicly Owned Utilities with the ability to use rate reduction bonds, which are a cost effective financing tool that can allow local agencies and their Publicly Owned Utilities to achieve favorable credit ratings for their public financing, thereby lowering t he cost to ratepayers of financing or refinancing projects, and potentially achieve other benefits; and ATTACHMENT 1
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WHEREAS, by the Joint Powers Agreement, dated as of October 1, 2016 (the “Original JPA”), Los Angeles and Burbank created and established the Authority for the purpose set forth herein, and to exercise their common power, and the powers granted to the Authority under the Act, in the manner set forth herein.
WHEREAS, by this Agreement, the parties hereto desire to amend and restate the Original JPA to make additional clarifications and to expand the number of members of the Authority’s governing board.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions.
Unless the context otherwise requires, the terms defined in this section and initially capitalized in the text shall for all purposes of this Agreement have the meanings herein specified. Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine or feminine gender is for convenience only and shall be deemed to mean and include the neuter, masculine or feminine gender, as appropriate. “Act” means Chapter 5 of Division 7 of Title 1 of the Government Code of the State, (commencing with Section 6500), and all laws amendatory thereof or supplemental thereto. “Agreement” has the meaning assigned to such term in the preamble. “Authority” means the Southern California Public Utilities Financing Authority created by this Agreement.
“Board” or “Board of Directors” means the governing body of the Authority. “Burbank Department” means the Department of Water and Power of Burbank. “Director” means a member of the Board of Directors.
“Los Angeles Department” means the Department of Water and Power of Los Angeles. “Member Agency” means a party to this Agreement, except those that have withdrawn in accordance with Section 15 hereof.
“Project” means any Utility Project or any other project , including, but not limited to, a Public Capital Improvement, for the use or benefit of public agencies providing water, wastewater or electrical service.
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“Project Agreement” means any agreement with public or private entities to plan, develop, permit, acquire, construct, finance, replace, modify, operate, manage or maintain a Project, including, but not limited to, design -build (DB) agreements, design -build-operate (DBO) agreements, construction contracts, leases, water purchase or sale agreements, power purchase or sale agreements or any other agreements necessary or convenient to accomplish a Project. “Special Purpose Entity” means a limited liability company, including a limited li ability company formed for the purposes of Section 6588.7(j) of the Act, a public benefit corporation or other special purpose entity.
“State” means the State of California.
“Utility Project” means the acquisition, construction, installation, retrofitting, rebuilding, or other addition to, or improvement of, any equipment, device, structure, improvement, process, facility, technology, rights or property, located either within, or outside of, the State of California, and that is used, or to be used, in connection with the existing or future operations of a P ublicly Owned Utility for any of the following purposes:
(1) Conservation or Reclamation Purposes.
(2) For the provision of generation, transmission, or distribution of electrical service. (3) In response to a Mandate.
(4) For any other utility purpose designated a “utility project” by a Publicly Owned Utility.
Capitalized terms not otherwise defined herein shall have the meanings as set forth or as used in the Act.
Section 2. Purpose.
This Agreement is made pursuant to the provisions of the Act relating to the joint exercise of powers common to public agencies. Each of the Member Agencies possesses the common power referred to in the recitals hereof. This Agreement is entered into in order to exercise such common power, and the powers granted to the Authority under the Act, for the purpose of financing or refinancing one or more Projects, including the development, acquisition, construction, reconstruction, improvement, enlargement, betterment, replacement, operation or maintenance of one or more Projects and the entering into Project Agreements and other agreements and documents in connection therewith. Such purpose will be accomplished and the powers exercised in the manner herein set forth.
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Section 3. Term.
This Agreement shall become effective upon execution of the initial Member Agencies and shall continue in full force and effect, until rescinded or terminated by a supplemental agreement of the Member Agencies; provided, however, that in no event shall this Agreement be terminated until such time as all bonds and refunding bonds of the Authority herein provided for, and the interest thereon, shall have been paid in full or defeased in accordance with the documents related to their issuance.
Section 4. Authority.
(A) Creation of Authority.
There is hereby created pursuant to the Act a public entity to be known as the “Southern California Public Utilities Financing Authority.” As authorized by the Act, the Authority shall be a public entity separate from the Member Agencies and shall be responsible for the administration of this Agreement.
Bonds or notes issued by the Authority and contracts or obligations which are entered into by the Authority to carry out the purposes for which such bonds or notes are issued and which are payable in whole or in part from the proceeds of said bonds or notes, shall not constitute a debt, liability or obligation of any Member. Pursuant to Section 6508.1 of the Act, no debt, liability or obligation of the Authority shall be a debt, liability or obligation of any Member e xcept as provided by Section 895.2 of the Government Code of the State of California in the case of injury caused by a negligent or wrongful act or omission occurring in the performance of this Agreement. No Member Agency shall be legally entitled to or sh all otherwise have access to the Authority's resources. No Member Agency shall be legally obligated, or shall otherwise assume the obligation, to finance the deficits of, or provide financial support to, the Authority.
Within 30 days after the effective date of this Agreement, or any amendment hereto, the Authority will cause a notice to be prepared and filed with the office of the Secretary of State in the manner set forth in Section 6503.5 of the Act. The Authority shall also file a copy of this Agreement, and any amendments hereto, with the State Controller in accordance with Section 6503.6 of the Act.
Within 70 days after the effective date hereof, and within 10 days after any change of facts required to be stated pursuant to Government Code Section 53051(b), the Authority shall cause a notice to be prepared and filed with the office of the Secretary of State of the State, and with the County Clerk of each county in which the Authority maintains an office, in the manner set forth in Government Co de Section 53051.
(B) Governing Board.
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The Authority shall be administered by the Board whose members shall consist of the General Manager of the Los Angeles Department , two (2) additional Directors appointed by the Los Angeles Department, the General Manager of the Burbank Department and two (2) additional Directors appointed by Burbank, or the respective designees as designated in writing of the Directors who are not General Managers. The Board may change the composition of the Board in connection with the ad mission of a new Member Agency pursuant to Section 15 hereof by an amendment to the bylaws, provided, however, that the number of Directors for each Member Agency shall be equal, the Board shall include the General Manager or equivalent top executive officer of each Member Agency and all other members of the Board shall be appointed by their respective Member Agencies.
Each Director shall serve in his or her individual capacity as a member of the Board. The Board shall have the general management of the affairs, property and business of the Authority and may adopt and modify from time to time rules and regulations for that purpose as it may deem proper.
No Director shall receive any compensation for serving as such, but shall be entitled to reimbursement for any expenses actually incurred in connection with serving as a Director if the Board determines that such expenses shall be reimbursed and there are unencumbered funds available for such purpose.
No Member Agency shall have the ability to remove a member of the Board as Board member at will; modify or approve the budget of the Authority; modify or approve rate or fee changes affecting revenues; veto, overrule or modify the decisions of the Board; or appoint, hire, reassign or dismiss those persons responsible for the day-to-day operations (management) of the Authority. Notwithstanding the foregoing, the change of a member of the Board as the result of the removal or replacement of the General Manager of a Member Agency’s public utility shall not be deem ed a prohibited removal of a member of the Board for the purposes of the preceding sentence. (C) Meetings of the Board.
(1) Regular Meetings. The Board shall provide for its regular meetings; provided, however, it shall hold at least one regular meeting each year. T he date, hour and place of the holding of the regular meetings shall be fixed by resolution of the Board. (2) Special Meetings. Special meetings of the Board may be called in accordance with the provisions of Section 54956 of the Government Code of the State of California or any successor provision thereto.
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(3) Brown Act. All meetings of the Board shall be called, noticed, held and conducted subject to the provisions of the Ralph M. Brown Act (Chapter 9 of Part 1 of Division 2 of Title 5 of the Government Code of the State (Sections 54950-54963)) or any successor legislation. (4) Minutes. The Secretary of the Authority shall cause minutes of all meetings of the Board, both regular and special, to be kept and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each Director and to each of the Member Agencies.
(5) Quorum. At least f our (4) Directors , which must include the General Manager Director of both the Los Angeles Department and the Burbank Department, shall constitute a quorum for the transaction of business, except that less than a quorum may adjourn a meeting. The Board may change the quorum requirement in connection with the admission of a new Member Agency pursuant to Section 15 hereof by an amendment to the bylaws , provided, however, that a quorum must include the General Manager or equivalent top executive officer Director of each Member Agency. (6) Voting. The vote of a t least four (4) Directors, which must include the affirmative vote of the General Manager Director of both the Los Angeles Department and the Burbank Department, shall be required to take any action hereunder, including but not limited to, approving or modifying budgets, setting rates or charges or issuing bonded debt. The financing or refinancing of each Project shall be required to be approved by the Board only once, provided such approval includes parameters or provision for the issuance of debt for, the setting or rates and charges for the sale or delivery of any output from and such other matters as the Board shall determine to be relevant to financing the design, acquisition, construction, development, equipping, improvement, or operation of such Project. After such approval of financing or refinancing of a Project, any budget for such financing or refinancing that is consistent with such initial approval shall not be subject to further Board approval. The Board may change the vote of the Directors required to take any action hereunder in connection with the admission of a new Member Agency pursuant to Section 15 hereof by an amendment to the bylaws , provided, however, that any such vote must require the affirmative vote of the General Manager or equivalent top executive officer Director of each Member Agency. (7) Bylaws. The Board may adopt such bylaws, rules and regulations as are necessary for the purposes hereof and may make amendments thereof. (D) Officers; Duties; Bonds.
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(1) The Board shall appoint a treasurer (the “Treasurer”) and an auditor (the “Auditor”) of the Authority pursuant to Section 6505.6 of the Act. The Board may appoint an attorney (the “Attorney”) for the Authority. All contracts shall be signed on behalf of the Authority as provided by resolution of the Board.
(2) Subject to the applicable provisions of any trust agreement, indenture or resolution providing for a trustee or other fiscal agent or establishing any Special Purpose Entity, the Treasurer is designated as the depositary of the Authority to have custody of all the money of the Authority, from whatever source, and, as such, shall have the powers, duties and responsibilities specified in Section 6505.5 of the Act. The Treasurer is designated as the public officer or person who has charge of, handles, or has access to any property of the Authority, and such o fficer shall, in accordance with Section 6505.1 of the Act, file an official bond in an amount determined by the Board. The Treasurer shall serve at the pleasure of the Board and may be replaced by an independent certified public accountant, the chief financial officer of any Member or any person pursuant to Section 6505.6 of the Act. (3) The Auditor shall have the powers, duties and responsibilities specified in Sections 6505 and 6505.5 of the Act. The Auditor shall serve at the pleasure of the Board. (4) The Attorney, or the designated deputy for such Attorney, shall attend all meetings of the Board, but the Attorney’s absence shall not affect the validity of any meeting. The Attorney for the Authority shall serve at the pleasure of the Board. (5) All charges to b e made against the Authority for the services of the Auditor, Treasurer and Attorney of the Authority shall be approved by the Board. (6) 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. (7) All of the privileges and immunities from liability, exemption from laws, ordinances and rules, and all pension, relief, disability, worker’s compensation and other benefits which apply to the activities of office rs, agents or employees of the Member Agencies when performing their respective functions shall apply to them to the same degree and extent while engaged in the performance of any of the functions and other duties in this Agreement. (8) None of the officers, agents or employees directly employed by the Authority shall be deemed, by reason of their employment by the Authority, to be employed by any ATTACHMENT 1
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Member Agency or, by reason of their employment by the Authority, to be subject to any of the requirements of any Member Agency.
(9) No member, officer or employee of the Authority or any Member Agency shall be individually or personally liable for any claims, losses, damages, costs, injury and liability of every kind, nature and description arising from the actions of the Authority or the actions undertaken pursuant to this Agreement, and the Authority shall defend such members, officers or employees of the Authority against any such claims, losses, damages, costs, injury and liability.
Section 5. Powers.
The Authority shall have the power common to each of the Member Agencies with respect to the financing or refinancing of any Project. The Authority is hereby authorized to do all acts necessary or convenient for the exercise of their common power.
Such powers shall be exercised in the manner provided in the Act, and, except as expressly set forth herein, subject only to such restrictions upon the manner of exercising such powers as are imposed upon Los Angeles in the exercise of similar powers.
The Authority shall also have any additional powers conferred under the Act or under any other applicable law, insofar as such additional powers may be necessary to accomplish the purpose set forth in Section 2 hereof, including, but not limited to, any or all of the following:
(a) enter into any agreement or contract, including, but not limited to, Project Agreements and Servicing Agreements, execute any instrument, and perform any act or thing necessary, convenient, or desirable to carry out any power authorized by this Agreement, (b) employ agents and employees;
(c) acquire, construct, manage, maintain or operate any building, works or improvements; (d) acquire by condemnation or contract, hold or dispose of property; (e) lease any Project or any part thereof;
(f) issue bonds, including, but not limited to Rate Reduction Bonds, and incur debts, liabilities or obligations which do not constitute a debt, liability or obligation of the Member Agencies; provided, however, that the Authority’s financing activities are limited to financing or refinancing Utility Projects and projects for the use or benefit of public agencies providing water, wastewater or electrical service.
Prior to the issuance of any Rate Reduction Bonds, the Authority shall ensure that the applicable Local ATTACHMENT 1
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Agency has complied with all of it s obligations under the Act, including, but not limited to, Section 6588.7(c) of the Act. The Authority may issue bonds pursuant to the Act and any other applicable laws of the State and issue refunding bonds pursuant to any applicable laws of the State to finance and refinance any Project or any part thereof. The Authority bonds shall be secured in such manner as the Authority shall determine and the Authority shall determine any other terms and conditions on any sale of bonds contemplated herein as it dee ms to be necessary, appropriate and in the public interest, in furtherance of the Act;
(g) adopt bylaws for the regulation of its affairs and the conduct of its business; (h) sue and be sued in its own name;
(i) engage the services of private consultants, including outside legal counsel, to render professional and technical assistance and advice in carrying out the purposes of this Agreement; (j) as provided by applicable law, employ and compensate bond counsel, financial consultants, and other advisers determined necessary by the Authority in connection with the issuance and sale of any bonds;
(k) contract for engineering, architectural, accounting or other services determined necessary by the Authority for the successful development of a Project; (l) pay the reasonable costs of consulting engineers, architects, accountants and construction, land-use, recreation and environmental experts employed by any sponsor or participant if the Authority determines those services are necessary for the successful development of Projects; (m) lease the Projects being financed to a Member Agency or any other local agency, upon terms and conditions that the Authority deems proper; charge and collect rents therefor; terminate any lease upon the failure of the lessee to comply with any of the obligations of the lease; include in any lease provisions that the lessee shall have options to renew the lease for a period or periods, and at rents as determined by the Authority; purchase or sell by an installment agreement or otherwise any or all of the Projects; or, upon payment of all the indebtedness incurred by the Authority for the financing or refinancing of the Projects, the Authority may convey any or all of the Project to the lessee or lessees; (n) sell the output from any Projects being financed to a Member Agency or any other local agency, upon terms and conditions that the Authority deems proper; charge and collect rates and charges therefor; terminate any sale agreement upon the failure of the Member Agency or local agency to comply with any of the obligations of the sale agreement; include in any provisions that the Member Agency or ATTACHMENT 1
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local agency shall have options to renew the sale agreement for a period or periods, and at rates and charges as determined by the Authority;
(o) take title to, lease, purchase or sell by installment sale or otherwise, lands, structures, real or personal property, rights, rights -of-way, franchises, e asements and other interests in lands that are located within the S tate that the Authority determines are necessary or convenient for the financing or refinancing of Projects, or any portion thereof;
(p) receive and accept from any source, loans, contributions or grants, in money, property, labor or other things of value, for, or in aid of, the construction financing, or refinancing, of a Project, or any portion thereof or for the financing of working capital, or for the payment of the principal of and interest on bonds if the proceeds of those bonds are used for one or more of the purposes specified in this section;
(q) mortgage all or any portion of its interest in Projects and the property on which any Project is located, whether owned or thereafter acquired, including the granting of a security interest in any property, tangible or intangible;
(r) issue, obtain or aid in obtaining, from any department or agency of the United States or of the state, or any private company, any insurance or guarantee to, or for, the payment or repayment of interest or principal, or both, or any part thereof, on any loan, lease or obligation or any instrument evidencing or securing the same, made or entered into pursuant to this Agreement; (s) invest any moneys held in reserve or sinking funds, or any moneys not required for immediate use or disbursement, in obligations that are authorized by law for the investment o f trust funds;
(t) delegate to any of its individual parties or other responsible individuals the power to act on its behalf subject to its general direction, guidelines and oversight; (u) adopt resolutions, including, but not limited to, Financing Resolutions in connection with the issuance of Rate Reduction Bonds, or authorize a single member limited liability company to adopt a Financing Resolution;
(v) make such filings, applications and submissions to governmental entities and regulatory bodies as may be necessary to comply with law and this Agreement, including, but not limited to, filings with the California Pollution Control Financing Authority in connection with the issuance of rate reduction bonds and filings with the California Debt and Investment Advisory Commission; ATTACHMENT 1
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(w) form limited liability companies, public benefit corporations or other special purpose entities as many be necessary for the purpose of financing or refinancing one or more Projects, including, but not limited to, the planning, development, acquisition, construction, equipping, reconstruction, reequipping, refurbishing, operation, maintenance and management thereof, including, but not limited to, the formation of a single member limited liability company for the purpose of financing or refinancing a Utility Project pursuant to the Act, and provide that any such limited liability company, public benefit corporation or other special purpose entity may exercise any powers of the Authority, specified in this Agreement or conferred under the Act or under any other applicable law, as such powers may be set forth in the formation documents of such limited liability company, public benefit corporation or other special purpose entity; and
(x) perform environmental review, engineering and design for, and, if appropriate, to permit, construct or develop Projects or other facilities consistent with the purposes of the Authority; (y) obtain and hold rights, permits and other authorizations for or pertaining to Projects or other facilities either by the Authority alone or in cooperation with any other Local Agency or other non- member entities;
(z) perform all acts necessary or proper to carry out fully the purposes of this Agreement; and
(aa) exercise any other power permitted by the Act.
Section 6. Projects Undertaken by Special Purpose Entities. To the extent permitted by law, all Projects shall be undertaken by Special Purpose Entities formed by the Authority unless otherwise approved by the Board. The liabilities and obligations associated with such Project shall be sole ly the liabilities and obligations of the applicable Special Purpose Entity that undertakes such Project and shall not be shared in any way with a different Special Purpose Entity unless otherwise approved by the Board.
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 through the following June 30.
Section 8. Disposition of Assets.
After completion of the Authority’s purposes, any surplus money on deposit in any fund o r account of the Authority shall be returned in proportion to the contributions made as required by Section ATTACHMENT 1
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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. Upon termination of this Agreement, all property of the Authority, both real and personal, shall be divided among the parties hereto in such manner as shall be agreed upon by the Member Agencies.
Section 9. Contributions and Advances.
Contributions or advances of public funds and of personnel, equipment or property may be made to the Authority by a Member Agency 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 shall be made subject to repayment, and shall be repaid, in the manner agreed upon by the Member Agency and the Authority at the time of making such advance. It is mutually understood and agreed that no Member Agency 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 any Member Agency may do so. A Member Agency may allow the use of personnel, equipment or property in lieu o f other contributions or advanc es to the Authority. After termination of this Agreement pursuant to Section 3, any surplus money in possession of the Authority shall be returned to the Member Agencies in proportion to the unreimbursed contributions each has made.
Section 10. 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 Member Agencies.
Section 11. Accounts and Reports.
There shall be strict accountability of all Authority funds and report of all receipts and disbursements.
To the extent not covered by the duties assigned to a trustee chosen by the Authority, the Treasurer of the Authority shall establish and maintain such funds and accounts as may be required by good accounting practice, including appropriate internal controls. The books and records of the Authority shall be open to inspection at all reasonable times by the Member Agencies and their representatives.
The Treasurer and Controller of the Authority are hereby authorized and directed to prepare or cause to be prepared and filed: (a) a special audit as required pursuant to Section 6505 of the Act every year during the term of this Agreement; and (b) a report in writing as required pursuant to Section 6505.5 of the Act, as of the first day of July, October, January and April of each fiscal year to the Board and each ATTACHMENT 1
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Member Agency, which report shall describe the amount of Authority money held by the Treasurer and Controller, the amount of receipts since the last such report, and the amount paid out since the last such report (which may exclude amounts held by a trustee of other fiduciary in connection with any revenue bonds or refunding revenue bonds herein provided for to the extent that such trustee or other fiduciary provides regular reports covering such amounts).
Section 12. Contract with Certified Public Accountant.
The Controller of the Authority shall either make or contract with a certified public accountant to make an annual audit of the accounts and records of the Authority, as required by Section 6505 of th e Act. The minimum requirements of the audit shall be those prescribed by the State Controller for special districts under Government Code Section 26909 and shall conform to generally accepted auditing standards. When such an audit of accounts and records is made by a certified public accountant, a report thereof shall be filed with each Member Agency and also with the county auditor of the county where the home office of the Authority is located and shall be sent to any public agency or person in California that submits a written request to the Authority. Such report shall be filed within twelve (12) months of the end of the fiscal year under examination. Any costs of the audit, including contracts with, or employment of, certified 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. The Authority may, by unanimous consent of the Board, replace the annual audit with a special audit covering a two-year period.
Section 13. Conflict of Interest Code.
The Authority by resolution shall adopt a Conflict of Interest Code as required by Article 4 of Chapter 1 of Division 4 of Title 1 of the Government Code of the State of California, unless otherwise exempt.
Section 14. Breach.
If default shall be made by a Member Agency in any covenant contained in this Agreement, such default shall not excuse a Member Agency from fulfilling its obligations under this Agreement or any documents related to the financing or refinancing of the Project and the Member Agencies shall continue to be liable for the payment of contributions, if any, and the performance of all conditions herein contained. The Member Agencies hereby declare that this Agreement is entered into for the benefit of the Authority created hereby, and the Member Agencies hereby grant to the Authority the right to enforce ATTACHMENT 1
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by whatever lawful means the Authority deems appropriate all of the obligations of each of the Member Agencies. 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 15. Withdrawal and Addition of Member Agencies.
A Member Agency may withdraw from this Agreement upon written notice to the Authority; provided, however, that (i) no Member Agency may withdraw while any bonds of the Authority remain outstanding, and (ii) no such withdrawal shall result in dissolution of the Authority. Any such withdrawal shall be effective only upon receipt of the notice of withdrawal by the Authority, which shall acknowledge receipt of such notice of withdrawal in writing and shall file such notice as an amendment to this Agreement effective upon filing notice with the office of the Secretary of State of the State in accordance with the Act.
Any Local Agency authorized by State law or its charter to, or that may pursuant to State law or its charter, undertake a Project may become a Member Agency upon meeting the following conditions:
(a) The Local Agency shall file with the Board of Directors a certified copy of a resolution of its governing body whereby the Local Agency (i) agrees to the provisions of this Agreement and (ii) requests to become a Member Agency.
(b) No Local Agency shall become a Member Agency until (i) its admission is approved at a regular or special meeting of the Board of Directors by unanimous vote and (ii) such Local Agency deposits or agrees to deposit with the Authority an amount equal to such share of the costs and expenses incurred by the Authority prior to the date of admission of such Local Agency as a Member Agency , as shall be determined by the Board of Directors.
Upon satisfaction of such condition s, the Authority shall file such executed amendment or amendment and restatement, effective upon filing with the office of the Secretary of State of the State in accordance with the Act.
Section 16. 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.
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Section 17. Successors; Assignment
This Agreement shall be binding upon and shall inure to the benefit of the successors of the Member Agencies. Except to the extent expressly provided herein, no Member Agency may assign any right or obligation hereunder without the consent of the other Member Agencies. Any attempt to assign or delegate such rights or duties in contravention of this Agreement shall be null and void.
Section 18. Amendment of Agreement.
This Agreement may be amended, and the Authority may be terminated or its powers may be changed, restricted or eliminated by supplemental agreement executed by the Member Agencies at any time; provided, that such supplemental agreement shall be subject to any restrictions contained in any bonds or refunding bonds of the Authority or documents related to any bonds or refunding bonds of the Authority to which the Authority is a party.
Section 19. Form of Approvals.
Whenever an approval is required in this Agreement, unless the context specifies otherwise, it shall be given, in the case of a Member Agency, by resolution duly adopted by the legislative body of the Member Agency, and, in the case of the Authority, by resolution duly adopted by the Board. Whenever in this Agreement any consent or approval is required, the same shall not be unreasonably withheld.
Section 20. Section Headings.
References to Sections shall be to Sections herein. 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 21. Counterparts and Signatures.
This Agreement may be executed in one or more counterparts, and by the parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. The parties hereto further agree that facsimile signatures or signatures scanned into .pdf (or signatures in another electronic format designated by the Los Angeles Department) and sent by e-mail shall be deemed original signatures.
Section 22. State Governing Law.
This Agreement should be construed in accordance with and governed by the laws of the State.
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Section 23. Indemnification.
(A) Any Member Agency that has the sole and exclusive use and benefit of a Project (an “Indemnifying Party”) shall indemnify, defend, and hold harmless each other Member Agency, including its elected and appointed officers, employees, and agents, from and against any and all liability, including but not limited to demands, claims, actions, fees, costs, and expenses (including attorney and expert witness fees), arising from or connected with the acts of such Indemnifying Party with respect to such Project; provided, however, that no Indemnifying Party shall indemnify another party for that party's own negligence or willful misconduct.
(B) Each of the parties t o this Agreement is a public entity. In contemplation of the provisions of Section 895.2 of the Government Code of the State of California imposing certain tort liability jointly upon public entities, solely by reason of such entities being parties to an agreement as defined by Section 895 of said Code, the parties hereto, as between themselves, pursuant to the authorization contained in Section 895.4 and 895.6 of said Code, will each assume the full liability imposed upon it or upon any of its officers, agents, or employees by law, for injury caused by a negligent or wrongful act or omission occurring in the performance of this Agreement, to the same extent that such liability would be imposed in the absence of Section 895.2 of said Code. To achieve the abo ve-stated purpose, each party indemnifies and holds harmless the other party solely by virtue of said Section 895.2. The provision of Section 2778 of the California Civil Code is made a part hereto as if fully set forth herein. Each Member Agency certifies that it has adequate self -insured retention of funds to meet any obligation arising from this Agreement.
1. Pursuant to Government Code Section 895.4 and 895.6, the parties shall each assume the full liability imposed upon it, or any of its officers, agents or employees, by law for injury caused by any negligent or wrongful act or omission by such party occurring in the performance of this Agreement.
2. Each party indemnifies and holds harmless the other party for any loss, costs, or expenses that may be imposed upon such other party by virtue of Government Code section 895.2, which imposes joint civil liability upon public entities solely by reason of such entities being parties to an agreement, as defined by Government Code section 895.
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3. In the event of third -party loss caused by negligence, wrongful act or omission by both parties, each party shall bear financial responsibility in proportion to its percentage of fault as may be mutually agreed or judicially determined. The provisions of Civil Code Section 2778 regarding interpretation of indemnity agreements are hereby incorporated.
Unless otherwise permitted by law, (1) the obligations of Los Angeles under this Section 23 shall be payable solely from, (a) with respect to water Projects of the Los Angeles Department, the Water Revenue Fund established under Section 679(a) of the Charter of Los Angeles, (b) with respect to electrical Projects of the Los Angeles Department, the Power Revenue Fund established under Section 679(b) of the Charter of Los Angeles, and (c) with respect to wastewater Projects, the revenues of the Los Angeles Publicly Owned Utility for which a Project if financed, (2) the obligations of Burbank under this Section 23 shall be payable solely from, (a) with respect to water Pr ojects of the Burbank Department, the water revenues received by the Burbank Department and, (b) with respect to electrical Projects of the Burbank Department, electric revenues received by the Burbank Department and (3) the obligations of any other Member Agency shall be payable solely from the revenues of such Member Agency’s Publicly Owned Utility for which a Project is financed.
CITY OF LOS ANGELES ACTING BY AND THROUGH
THE DEPARTMENT OF WATER AND POWER
BY BOARD OF WATER AND POWER COMMISSIONERS
OF THE CITY OF LOS ANGELES
By:
Title: _______________________
And:
Secretary
CITY OF BURBANK
By:
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