AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
rialto PUBLIC financing AUTHORITY
THIS AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT, dated as of ___________, 2023 (this “Agreement”), among the parties executing this Agreement, amends and restates the Joint Exercise of Powers Agreement, dated November 1, 1988 (the “Original Agreement”), by and between the City of Rialto (the “City”) and the Successor Agency to the Redevelopment Agency of the City of Rialto (the “Successor Agency”).
WITNESSETH
WHEREAS, pursuant to Title 1, Division 7, Chapter 5 of the California Government Code (in effect as of the date hereof and as the same may from time to time be amended or supplemented, the “Joint Exercise of Powers Act”), two or more public agencies may by agreement jointly exercise any power common to the contracting parties; and WHEREAS, the City and the Redevelopment Agency of the City of Rialto (the “Predecessor Agency”), formerly a public body, corporate and politic organized and existing under and by virtue of the laws of the State of California, entered into the Original Agreement; WHEREAS, on June 28, 2011, the California Legislature enacted Assembly Bill 26 (2011 1st Extraordinary Session) (“ABx1 26”) to, among other things, dissolve existing redevelopment agencies, including the Predecessor Agency; WHEREAS, the California Supreme Court substantially upheld the provisions of ABx1 26 on December 29, 2011, resulting in the dissolution of the Predecessor Agency on February 1, 2012; WHEREAS, the powers, assets and obligations of the Predecessor Agency were transferred on February 1, 2012 to the Successor Agency; WHEREAS, under ABx1 26, a joint exercise of powers agreement in which a redevelopment agency is a member of the joint powers authority remained valid and binding on a successor agency, however, the successor agency’s rights, duties, and performance obligations under that joint exercise of powers agreement are limited by the constraints imposed on successor agencies by AB1x26; WHEREAS, under ABx1 26, the Successor Agency’s rights, duties, and performance obligations will, in the future, wind down pursuant to ABx1 26, and the City and the Successor Agency desire to replace the Successor Agency as a party to the Original Agreement with the Rialto Housing Authority (the “Housing Authority”), a public corporation formed under the Housing Authorities Law; WHEREAS, in addition, the City and the Housing Authority desire to revise and modernize provisions in the Original Agreement, which was executed and delivered nearly 35 years ago; WHEREAS, each of the City and the Housing Authority (together, the “Members”) is a “public agency” as that term is defined in Section 6500 of the Joint Exercise of Powers Act; and WHEREAS, the Joint Exercise of Powers Act authorizes the Members to create a joint exercise of powers entity with the authority to exercise any powers common to the Members, as specified in this Agreement, and to exercise the additional powers granted to it in the Joint Exercise of Powers Act and any other applicable provisions of the laws of the State of California, including without limitation, the power to issue or execute bonds, notes, commercial paper or any other evidences of indebtedness and leases, installment sale agreements or certificates of participation (herein “Bonds”), and to otherwise undertake financing programs under the Joint Exercise of Powers Act or other applicable provisions of the laws of the State of California to accomplish its public purposes; and WHEREAS, the Members desire to continue in existence the Rialto Public Financing Authority established under the Original Agreement; and NOW, THEREFORE, the parties hereto, for and in consideration of the mutual promises and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, do agree as follows:
Purpose.
This Agreement is made pursuant to the provisions of the Joint Exercise of Powers Act. The purpose of this Agreement is to establish a public entity for the joint exercise of powers common to the Members and for the exercise of additional powers given to a joint powers entity under the Joint Powers Act or any other applicable law, including, but not limited to, the issuance of Bonds for any purpose or activity permitted under the Joint Exercise of Powers Act or any other applicable law. Such purpose will be accomplished and such power exercised in the manner hereinafter set forth.
Term.
This Agreement shall continue in full force and effect until such time as it is terminated in writing by all of the Members; provided, however, that this Agreement shall not terminate or be terminated until all Bonds issued or caused to be issued by the Authority (defined below) shall no longer be outstanding under the terms of the indenture, trust agreement or other instrument pursuant to which such Bonds are issued, or unless a successor to the Authority assumes all of the Authority’s debts, liabilities and obligations.
Authority.
CREATION AND POWERS OF AUTHORITY.
Pursuant to the Joint Exercise of Powers Act, there is hereby continued in existence the public entity known as the “Rialto Public Financing Authority” (the “Authority”), and such Authority shall be a public entity separate and apart from the Members. Its debts, liabilities and obligations do not constitute debts, liabilities or obligations of any Members.
BOARD.
The Authority shall be administered by a Board of Directors (the “Board,” or the “Directors” and each a “Director”) consisting of five (5) members, unless and until such number is changed by amendment of this Agreement. The members of the City Council of the City (the “City Council”) ex officio shall constitute the Directors of the Authority. The Board shall be called the “Board of Directors of the Rialto Public Financing Authority.” All voting power of the Authority shall reside in the Board.
Directors may receive reasonable fixed compensation for serving as such, and shall be entitled to reimbursement for any expenses actually incurred in connection with serving as a Director, if the Board shall determine that such expenses shall be reimbursed and there are unencumbered funds available for such purpose.
OFFICERS; DUTIES; OFFICIAL BONDS.
The Mayor of the City shall serve as Chairperson of the Board and the Mayor Pro Tern shall serve as Vice-Chairperson of the Board. The City Clerk of the City shall serve as Secretary of the Board. The officers shall perform the duties normal to said offices and such other duties as may be imposed by the Board. The Vice-Chairperson shall perform all of the Chairperson’s duties in the absence of the Chairperson. The Chairperson or Vice-Chairperson on behalf of the Authority shall cause a copy of this Agreement to be filed with the Secretary of State pursuant to the Joint Exercise of Powers Act.
The City Manager of the City shall serve as Executive Director of the Authority. The Executive Director of the Authority shall be responsible for execution and supervision of the affairs of the Authority.
Pursuant to Section 6505.6 of the Joint Exercise of Powers Act, the Director of Finance of the City is hereby designated as the Treasurer of the Authority. Subject to the applicable provisions of any resolution, indenture, trust agreement or other instrument or proceeding authorizing or securing Bonds (each such resolution, indenture, trust agreement, instrument and proceeding being herein referred to as an “Indenture”) providing for a trustee or other fiscal agent, and except as may otherwise be specified by resolution of the Board, the Treasurer is designated as the depositary of the Authority to have custody of all money of the Authority, from whatever source derived and shall have the powers, duties and responsibilities specified in Sections 6505, 6505.5 and 6509.5 of the Joint Exercise of Powers Act.
The Treasurer of the Authority is designated as the public officer or person who has charge of, handles, or has access to any property of the Authority, and such officer shall file an official bond with the Secretary of the Authority in the amount specified by resolution of the Board but in no event less than $1,000.
The City Attorney of the City shall serve as legal advisor to the Authority.
The Board shall have the power to appoint such other officers and employees as it may deem necessary and to retain other legal advisors, consultants and accountants.
The Board shall have the power, by resolution, to the extent permitted by the Joint Exercise of Power Act or any other applicable law, to delegate any of its functions to one or more of the Directors or officers, employees or agents of the Authority and to cause any of such Directors, officers, employees or agents to take any actions and execute any documents or instruments for and in the name and on behalf of the Board or the Authority.
MEETINGS OF THE BOARD.
Ralph M. Brown Act.
All meetings of the Board, including, without limitation, regular, adjourned regular, special, and adjourned special meetings shall be called, noticed, held and conducted in accordance with the provisions of the Ralph M. Brown Act (commencing with Section 54950 of the Government Code of the State of California), or any successor legislation hereinafter enacted (the “Brown Act”).
Regular Meetings.
The Board shall provide for its regular meetings. The date, time and place of regular meetings shall be fixed by resolution of the Board. Regular meetings shall initially be scheduled on the second and fourth Tuesday of each calendar month. If there is no business to conduct at a regularly scheduled meeting, then no agenda shall be posted in accordance with the requirements of the Brown Act and the meeting shall be automatically canceled thereby. To the extent permitted by the Brown Act, regular meetings may be held by telephone conference or other telecommunication method.
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. To the extent permitted by the Brown Act, special meetings may be held by telephone conference or other telecommunication method.
Minutes.
The Secretary of the Authority shall cause to be kept minutes of the regular, adjourned regular, special, and adjourned special meetings of the Board and shall, as soon as reasonably practical after each meeting, cause a copy of the minutes to be forwarded to each Director.
Quorum.
A simple majority of the Board shall constitute a quorum for the transaction of business. No action may be taken by the Board except upon the affirmative vote of a simple majority of the Directors constituting a quorum, except that less than a quorum may adjourn a meeting to another time and place.
RULES AND REGULATIONS.
The Authority may adopt, from time to time, by resolution of the Board such rules and regulations for the conduct of its meetings and affairs as the Board may deem appropriate.
Powers.
The Authority shall have the power, in its own name, to exercise the common powers of the Members and to exercise all powers given to a joint powers entity under any of the laws of the State of California, including, but not limited to, the Joint Exercise of Powers Act, for any purpose authorized under this Agreement. Such powers shall include the common powers specified in this Agreement and may be exercised in the manner and according to the method provided in this Agreement. The Authority is hereby authorized to do all acts necessary for the exercise of such power, including, but not limited to, the following: to make and enter into contracts; to employ agents and employees; to acquire, construct, provide for maintenance and operation of, or maintain and operate, any buildings, works or improvements; to acquire, hold or dispose of property wherever located; to incur debts, liabilities or obligations; to receive gifts, contributions and donations of property, funds, services, and other forms of assistance from person, firms, corporations and any governmental entity; to sue and be sued in its own name; to make grants, loans or provide other financial assistance to governmental (e.g., the Members) and nonprofit organizations to accomplish any of its purposes; and generally to do any and all things necessary or convenient to accomplish its purposes.
Without limiting the generality of the foregoing, the Authority may issue or cause to be issued Bonds, and pledge any property or revenues as security to the extent permitted under the Joint Exercise of Powers Act, or any other applicable provision of law; provided, however, the Authority shall not issue Bonds with respect to any project located in the jurisdiction of one or more Members unless the governing body of any such Member, or its duly authorized representative, shall approve, conditionally or unconditionally, the project, including the issuance of Bonds therefor. Such approval may be evidenced by resolution, certificate, order, report or such other means of written approval of such project as may be selected by the Member (or its authorized representative) whose approval is required. No such approval shall be required in connection with Bonds that refund Bonds previously issued by the Authority and approved by the governing board of a Member.
The manner in which the Authority shall exercise its powers and perform its duties is and shall be subject to the restrictions upon the manner in which the City could exercise such powers and perform such duties. The manner in which the Authority shall exercise its powers and perform its duties shall not be subject to any restrictions applicable to the manner in which any other public agency could exercise such powers or perform such duties, whether such agency is a party to this Agreement or not.
Fiscal Year.
For the purposes of this Agreement, the term “Fiscal Year” shall mean the fiscal year as established from time to time by resolution of the Board, being, at the date of this Agreement, the period from July 1 to and including the following June 30.
Disposition of Assets.
At the end of the term hereof or upon the earlier termination of this Agreement as set forth in Section 2, after payment of all expenses and liabilities of the Authority, all property of the Authority both real and personal shall automatically vest in the Members in the manner and amount determined by the Board in its sole discretion and shall thereafter remain the sole property of the Members; provided, however, that any surplus money on hand shall be returned in proportion to the contributions made by the Members.
Bonds.
From time to time the Authority shall issue Bonds, in one or more series, on a tax-exempt or taxable basis, for the purpose of exercising its powers and raising the funds necessary to carry out its purposes under this Agreement.
The services of bond counsel, financing consultants and other consultants and advisors working on the projects and/or their financing shall be used by the Authority. To the extent permitted by law, the expenses of the Board shall be paid from the proceeds of the Bonds or any other unencumbered funds of the Authority available for such purpose.
Bonds Only Limited and Special Obligations of Authority.
The Bonds, together with the interest and premium, if any, thereon, shall not be deemed to constitute a debt of any Member or pledge of the faith and credit of the Members or the Authority. The Bonds shall be only special obligations of the Authority, and the Authority shall under no circumstances be obligated to pay the Bonds except from revenues and other funds pledged therefor. Neither the Members nor the Authority shall be obligated to pay the principal of, premium, if any, or interest on the Bonds, or other costs incidental thereto, except from the revenues and funds pledged therefor, and neither the faith and credit nor the taxing power of the Members nor the faith and credit of the Authority shall be pledged to the payment of the principal of, premium, if any, or interest on the Bonds nor shall the Members nor the Authority in any manner be obligated to make any appropriation for such payment.
No covenant or agreement contained in any Bond or related document shall be deemed to be a covenant or agreement of any Director, or any officer, employee or agent of the Authority in his or her individual capacity and neither the Board of the Authority nor any Director or officer thereof executing the Bonds shall be liable personally on any Bond or be subject to any personal liability or accountability by reason of the issuance of any Bonds.
Accounts and Reports.
All funds of the Authority shall be strictly accounted for. The Authority shall establish and maintain such funds and accounts as may be required by generally accepted accounting principles (GAAP) and in accordance with any provision of any contract or agreement entered into by the Authority. The books and records of the Authority shall be open to inspection at all reasonable times by each Member.
To the extent not covered by the duties assigned to a trustee chosen by the Authority, the Treasurer shall establish and maintain such funds and accounts as may be required by good accounting practice or by any provision of any Indenture entered into with respect to the proceeds of any Bonds issued by the Authority. The books and records of the Authority in the hands of a trustee or the Treasurer shall be open to inspection at all reasonable times by representatives of the Members. The Treasurer, within 180 days after the close of each Fiscal Year, shall give a complete written report of all financial activities for such Fiscal Year to the Members to the extent such activities are not covered by the report of such trustee. The trustee appointed under any Indenture shall establish suitable funds, furnish financial reports and provide suitable accounting procedures to carry out the provisions of said Indenture. Said trustee may be given such duties in said Indenture as may be desirable to carry out this Agreement.
Any costs of the audit, including contracts with, or employment of, certified public accountants or public accountants in making an audit pursuant to this Section, shall be borne by the Authority and shall be a charge against any unencumbered funds of the Authority available for that purpose.
In any Fiscal Year the Board may, by resolution adopted by unanimous vote, replace the annual special audit with an audit covering a two-year period.
Funds.
Subject to the applicable provisions of any Indenture, which may provide for a trustee or other fiduciary to receive, have custody of and disburse Authority funds, the Treasurer of the Authority shall receive, have the custody of and disburse Authority funds pursuant to the accounting procedures developed under Sections 3 and 9, and shall make the disbursements required by this Agreement or otherwise necessary to carry out any of the provisions of purposes of this Agreement.
Notices.
Notices and other communications hereunder to the Members shall be sufficient if delivered to the clerk of the governing body of each Member; provided, however, that to the extent permitted by law, the Authority may, provide notices and other communications and postings electronically (including, without limitation, through email or by posting to a website).
Reserved.
Indemnification.
To the full extent permitted by law, the Board may authorize indemnification by the Authority of any person who is or was a Director or an officer, employee or agent of the Authority, and who was or is a party or is threatened to be made a party to a proceeding by reason of the fact that such person is or was such a Director, officer, employee or agent of the Authority, against expenses, including attorney’s fees, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding, if such person acted in good faith in a manner such person reasonably believed to be in the best interests of the Authority and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful and, in the case of an action by or in the right of the Authority, acted with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
Contributions and Advances.
Contributions or advances of public funds and of the use of personnel, equipment or property may be made to the Authority by the Members for any of the purposes of this Agreement. Payment of public funds may be made to defray the cost of any such contribution or advance. Any such advance may be made subject to repayment, and in such case shall be repaid, in the manner agreed upon by the Authority and the Member making such advance at the time of such advance. It is mutually understood and agreed to that no Member has any obligation to make advances or contributions to the Authority to provide for the costs and expenses of administration of the Authority, even though any Member may do so.
Immunities.
All of the privileges and immunities from liabilities, exemptions from laws, ordinances and rules, and other benefits which apply to the activity of officers, agents or employees of Members when performing their respective functions within the territorial limits of their respective public agencies, shall apply to the same degree and extent to the Directors, officers, employees, agents or other representatives of the Authority while engaged in the performance of any of their functions or duties under the provisions of this Agreement.
Amendments.
This Agreement may be amended at any time, or from time to time, except as limited by contract with the owners of Bonds issued by the Authority or by applicable regulations or laws of any jurisdiction having authority, by one or more supplemental agreements executed by the Members either as required in order to carry out any of the provisions of this Agreement or for any other purpose, including without limitation addition of new parties (including any legal entities or taxing areas heretofore or hereafter created) in pursuance of the purposes of this Agreement.
Effectiveness.
This Agreement shall become effective and be in full force and effect and a legal, valid and binding obligation of each of the Members upon the execution and delivery hereof by the Members and the Successor Agency.
Partial Invalidity.
If any one or more of the terms, provisions, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this Agreement shall not be affected thereby, and shall be valid and enforceable to the fullest extent permitted by law.
Successors.
This Agreement shall be binding upon and shall inure to the benefit of the successors of the parties hereto. Except to the extent expressly provided herein, no Member may assign any right or obligation hereunder without the consent of the other Members.
Miscellaneous.
This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
The section headings herein are for convenience only and are not to be construed as modifying or governing the language in the section referred to.
Wherever in this Agreement any consent or approval is required, the same shall not be unreasonably withheld.
This Agreement shall be governed by and construed in accordance with the laws of the State of California.
This Agreement is the complete and exclusive statement of the agreement among the Members, which supersedes and merges all prior proposals, understandings, and other agreements, whether oral, written, or implied in conduct, between and among the Members relating to the subject matter of this Agreement.
The terms and provisions of the Original Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement.
Removal of Successor Agency.
Upon execution and delivery of this Agreement, the Successor Agency shall be and is hereby removed as a party to the Agreement for all purposes hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by their duly authorized representatives as of the day and year first above written.
CITY OF RIALTO
By: _____________________________________
Title: ___________________________________
Date: ___________________________________
Attest: _________________________________
Title: City Clerk
Date: ___________________________________
RIALTO HOUSING AUTHORITY
By: _____________________________________
Title: ___________________________________
Date: ___________________________________
Attest: _________________________________
Title: ___________________________________
Date: ___________________________________
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF RIALTO By: _____________________________________
Title: ___________________________________
Date: ___________________________________
Attest: _________________________________
Title: ___________________________________
Date: ___________________________________
Approved as to form:
By: _________________________________
Title: ___________________________________
Date: ___________________________________
56843632.2 6
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